Social Justice Report 2000: Chapter 3: International scrutiny of Australia's Indigenous Affairs policies

Social Justice Report 2000

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Chapter 3: International scrutiny of Australia's Indigenous Affairs policies

Introduction

The CERD and the periodic reporting process

Australia's appearance before the Committee on the Elmination of Racial Discriminaiton in March 2000

The dialogue between Australia and CERD - March 2000

The meaning of non-discrimination and equality under the Convention

The existence of a margin of appreciation in implementing the non-discrimination principle

Protecting human rights in a federal system

An entrenched guarantee of racial non-discrimination

Redressing Indigenous disadvantage

Indigenous peoples and criminal justice systems

Mandatory sentencing

Reconciliation (including responding to forcible removal policies)

The government's response to CERD, and the treaty review process

Conclusion

In the past year Australia's compliance with international human rights obligations has been under scrutiny by United Nations human rights treaty committees through consideration of Australia's periodic reports under four treaties. [1] Much of this attention has focused on issues relating to Aborigines and Torres Strait Islanders. This chapter focuses on the dialogue between the Australian government and the Committee on the Elimination of Racial Discrimination (the Committee or the CERD), which took place in March 2000. The dialogue concerned Australia's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention or ICERD). The Committee's concluding observations on Australia were released on 24 March 2000. They expressed concern about Australia's compliance across a wide range of matters relating to Indigenous issues. The government rejected the Committee's comments and criticised its operation. This dialogue was a catalyst for a whole of government review of our participation in the United Nations human rights treaty system. The government's views on how Australian laws, policies and practices meet the requirements of the Convention are considered in this chapter. Also considered are whether the conclusions reached by the Committee are sustainable, and whether the government's response to the Committee was justified. In the course of this assessment a number of myths surrounding the operation of the treaty system and Australia's international obligations are exposed.

The CERD and the periodic reporting process

The CERD was the first human rights committee established within the United Nations structure. It consists of 'eighteen experts of high moral standing and acknowledged impartiality'. [2] Members are nominated by States Parties to the CERD [3] and elected through a secret ballot. Members of the Committee, or experts, do not represent their country of origin - they take their places on the Committee as independent experts on racial discrimination. To ensure their independence, members serve in a personal capacity and cannot be dismissed during their term.

The CERD monitors and reviews the actions of States who are parties to the Convention through four main mechanisms [4] : the periodic reporting mechanism [5]; requests for further information from States parties (for example, the early warning / urgent action procedure) [6]; individual communications [7]; and state-to-state complaints. [8]

The CERD's consideration of Australia in March 2000 took place in accordance with the periodic reporting mechanism. Under Article 9 of ICERD, States Parties are required to submit a report on the legislative, judicial, administrative or other measures that they have adopted and which give effect to the provisions of the Convention. States parties are required to submit comprehensive reports to the Committee every four years, with brief updating reports at intervening two-year periods.

The periodic reporting obligation is designed to assist each State party fulfil its obligations under the treaty, as well as provide a basis on which the Committee can discharge its responsibilities to monitor state parties' compliance. The reporting process is not merely 'a procedural matter designed solely to satisfy each State Party's formal obligation to report to the appropriate international monitoring body.' [9] It has the following varied purposes:

1. To 'ensure that a comprehensive review is undertaken with respect to national legislation, administrative rules and procedures, and practices in an effort to ensure the fullest possible conformity' [10] with the treaty, upon submission of the initial report by a State party.

2. To 'ensure that the State party monitors the actual situation with respect to each of the rights on a regular basis and is thus aware of the extent to which the various rights are, or are not, being enjoyed by all individuals within its territory or under its jurisdiction'. [11]

3. To 'provide the basis for the elaboration of clearly stated and carefully targeted policies, including the establishment of priorities which reflect the provisions of the [treaty] ... [and] to enable the Government to demonstrate that such principled policy-making has in fact been undertaken'. [12]

4. To 'facilitate public scrutiny of government policies ... and to encourage the involvement of the various ... sectors of society in the formulation, implementation and review of the relevant policies ... [T]he preparation of the report, and its consideration at the national level can come to be of at least as much value as the constructive dialogue conducted at the international level between the Committee and representatives of the reporting State '. [13]

5. To 'provide a basis on which the State party itself, as well as the Committee, can effectively evaluate the extent to which progress has been made towards the realization of the obligations contained in the [treaty]'. [14]

6. To 'enable the State party itself to develop a better understanding of the problems and shortcomings encountered in efforts to realize' [15] the full range of rights recognised in the relevant treaty, and consequently to provide 'the framework within which more appropriate policies can be devised'. [16]

7. To enable 'the Committee, and the States Parties as a whole, to facilitate the exchange of information among States and to develop a better understanding of the common problems faced by States and a fuller appreciation of the type of measures that might be taken to promote effective realization of each of the rights contained' [17] in the treaty. This also assists in identifying the most appropriate means by which the international community might assist States through the provision of technical assistance. [18]

Australia's appearance before the Committee on the Elimination of Racial Discrimination in March 2000

Australia submitted its combined 10th, 11th and 12th periodic reports under ICERD on 20 July 1999 [19] and the government delegation appeared before the Committee at their 56th session on 21 and 22 March 2000. The timing of this appearance was related to the ongoing scrutiny of the native title amendments by the Committee under their early warning/urgent action procedure. The Committee initiated the early warning procedure against Australia in August 1998 due to concerns about the potentially discriminatory nature of the amended Native Title Act 1993. In March 1999, the Committee released concluding observations that found the amended Native Title Act to be discriminatory and in breach of the Convention. [20] The Australian government disagreed with the Committee's conclusions, and replied that the Committee had failed to take into account the broader context of government policies relating to Indigenous people in reaching its conclusions. In particular, the government argued that:

The Australian Government's overall priority in indigenous affairs is to support Aboriginal and Torres Strait Islander people to overcome a history of disadvantage within Australian society, through a combination of initiatives designed to address health and welfare needs, while encouraging economic development and self-reliance ... It aims to ensure that all Australians share equally in a common future which will form the basis of a lasting reconciliation. [21]

In August 1999 the Committee reaffirmed its conclusions on native title and, in recognition of the views of the Australia government regarding the broader context of addressing Indigenous issues, also decided to 'continue consideration of this matter, together with the tenth, eleventh and twelfth periodic reports of the State party, during its fifty-sixth session in March 2000'. [22]

In the dialogue between the government and the Committee, Ms Gay McDougall [23] acted as Country Rapporteur for the Committee [24] and led the analysis of Australia's compliance. The Honourable Phillip Ruddock MP, Minister for Immigration and Multicultural Affairs and Minister Assisting the Prime Minister on Reconciliation, led the Australian delegation.

The Committee adopted its concluding observations on Australia on 24 March 2000. [25] The Committee acknowledged the following positive aspects of Australia's compliance with the Convention:

The comprehensiveness of Australia's reports and the constructive dialogue with the high level delegation (para 2);

The fact that Australia had addressed some of the concerns raised by the Committee in their previous concluding observations on Australia in 1994 (para 3);

The implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody in the period 1992-1998, and the development of a range of institutions, legislation, policies and programs to address racial discrimination (para 4);

The significant efforts that have taken place to achieve reconciliation (para 12);

The implementation of recommendations of the Bringing them home report to facilitate family reunion and improve counselling and family support services (para 13);

The introduction of the Racial Hatred Act 1995 (Cth) (para 14); and

The efforts made by the government to increase spending on health, housing, employment and education programmes for indigenous Australians (para 18).

The Committee also expressed the following concerns of relevance to Indigenous Australians:

The lack of an entrenched guarantee in Australian law against racial discrimination, which would override any subsequent legislation at the federal, state or territory levels (para 6);

The failure of the Commonwealth government to ensure compliance of the states and territories with the obligations under the Convention, including by utilising its powers under section 51(xxix) of the Constitution in relation to external affairs or section 122 in relation to territories (para 7);

The continuation of discriminatory practices in relation to native title, particularly the development of state regimes for future acts (para 8);

The unsatisfactory response of the Government to the Committee's findings of March 1999 and August 1999 that the native title amendments are racially discriminatory (para 9);

Proposed or actual changes to the role and functions of the Aboriginal and Torres Strait Islander Commission and the Aboriginal and Torres Strait Islander Social Justice Commissioner which may limit their capacity to address the full range of issues relating to Indigenous peoples (para 11);

The progress of reconciliation, and the apparent loss of confidence of Indigenous people in the process (para 12);

The inadequate response of the government to the recommendations of Bringing them home, including the failure to provide a national apology and monetary compensation (para 13);

The maintenance of a reservation to the Convention in relation to racial vilification, and the limitations of the Racial Hatred Act 1995 (Cth) (para 14);

Over-representation of Indigenous people in the criminal justice system (para 15);

Lack of interpreter services for Indigenous people in court processes (para 15);

The discriminatory impact of mandatory sentencing laws in the Northern Territory and Western Australia on Indigenous people (para 16); and

The extent of continuing discrimination and disadvantage faced by Indigenous people, and the lack of equality in Australian society that it reflects. The Committee also highlighted the obligation on the government to adopt measures to redress this situation within the shortest timeframe possible (para 18).

The dialogue between Australia and the CERD - March 2000

This section examines the dialogue between the Committee and the Australian government delegation in Geneva on 21 and 22 March 2000. [26] The dialogue was wide-ranging, with every committee member contributing. Each member raised issues on which they sought further information as to how a particular law, policy or practice complied with the obligations under the Convention. This section evaluates the government's arguments and considers whether the Committee was justified in reaching the conclusions that they did. It does so under the following headings:

The meaning of equality and non-discrimination under the Convention;

The existence of a margin of appreciation in implementing the non-discrimination principle;

Protecting human rights in a federal system;

The lack of an entrenched guarantee of racial non-discrimination;

Redressing Indigenous disadvantage;

Indigenous people and the criminal justice systems;

Mandatory sentencing; and

Reconciliation (including responding to forcible removal policies). [27]

The meaning of non-discrimination and equality under the Convention

In order to evaluate Australia's performance under ICERD it is necessary to consider what constitutes racial discrimination for the purposes of the Convention. Racial discrimination is defined in Article 1.1 of the Convention as:

any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

The Convention specifies in Article 1.4 that 'special measures' taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals 'requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights' shall not be deemed racial discrimination. [28]

The definition of racial discrimination in the Convention is integrally linked to the concept of equality before the law. It 'catches measures that are intended to result in inequality and measures which (with or without intent) have an unequal effect on the rights and freedoms of the individuals and groups involved'. [29] Article 5 of the Convention requires that:

States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.

At the outset of the dialogue, the Country-Rapporteur sought clarification from the Australian government as to its interpretation of the principle of equality before the law:

First of all, is it the view of the state party that the Convention establishes a legal duty to ensure formal equality with respect to the rights of historically disadvantaged racial and ethnic groups that still suffer from those inequalities, or is it substantive equality that is the obligation, and what are your definitions and where do you place special measures within that framework? [30]

The Australian delegation answered in the following terms:

Australia regards its obligations under the Convention as requiring equality between racial groups. This equality can be achieved by formal equality and special measures, where appropriate, or by substantive equality which recognizes that differential treatment is not necessarily discriminatory if it is legitimate, recognizing legitimate difference or distinct rights. [31]

The Country-Rapporteur responded by stating that:

I'm also very pleased to hear your delegation confirm that it is the position of the state party that the Convention establishes an obligation to ensure substantive equality, not mere formal equality, in situations like those that prevail in Australia today. [32]

The delegation responded further to this as follows:

Ms McDougall ... made the point ... that Australia had confirmed that substantive equality is required. I just wanted to make a little comment about that, and the issue ... about whether Australia regarded formal equality as sufficient for the purposes of the Convention. I think the Australian Government does not argue that the Convention only requires formal equality, and this point was certainly made to the Committee members when the Australian delegation appeared in March last year. [33] I suppose that the way the Australian Government would see its obligations under the Convention is that the equality required by the Convention can be achieved in a number of ways - that equality is equality between racial groups - and those ways include by formal equality and special measures where appropriate, and by substantive equality which recognises differential treatment, that differential treatment is not necessarily discriminatory. [34]

This clarification indicates that the government does not in fact accept that a substantive equality approach is required in order to meet its obligations under the Convention. Instead it indicates that the Convention's obligations can be met by a combination of measures that meet either a formal equality standard (including through the adoption of special measures), or a substantive equality standard.

In its submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund [35] inquiry into CERD and the Native Title Amendment Act 1998, the federal Attorney-General's Department elaborated further on the meaning of non-discrimination under the Convention:

At the time the CERD Convention was drafted, equality was conceptualised as sameness or identical treatment. Under this approach any distinctions in treatment are considered discriminatory ... The only exception to identical treatment provided under this scheme was for ... 'special measures' ...[36]

The Department argued that since the Convention was drafted, the meaning of equality has changed in international customary law to incorporate the idea that differences in treatment are permissible in order to achieve real or substantive equality. Accordingly, this changing interpretation has meant that:

The Convention is now seen by many as incorporating principles that allow differences in treatment provided they are permissible in terms of substantive equality. [37]

The government expanded this interpretation to the Human Rights Committee, when Australia's periodic report under the ICCPR was considered in July 2000. Before that Committee, the Government delegation stated:

Concerning Article 26 dealing with equality before the law and the prohibition of discrimination, I would note first that international law admits of both a formal and a substantive standard for assessing equality. Traditionally, racial equality was conceived of in terms of formal equality and, in that respect, the spirit of equality would lie in sameness and identical treatment, however, international law recognises that in some circumstances, positive discrimination towards certain racial groups may be necessary. This would be the case where in instances of underlying disadvantage, temporary affirmative action or special measures are allowed in order to hasten equal enjoyment of rights for all racial groups.

Since that time, the interpretation of the concept of equality has broadened to include substantive equality in that Governments may treat like things alike and different things differently. However, this alternative way of defining equality does not preclude the one originally conceived of in international law.The two approaches to the issue of equality coexist in international law. [38]

I have some concerns about these explanations.

On the one hand, the government's explanations accept that the obligations under ICERD and the ICCPR can be met by the provision of substantive equality (ie., different treatment if justified by the circumstances of a situation, when judged in accordance with the purposes and objectives of the Convention). This is a significant advance from the position advocated by the government during the native title debates in 1997 and 1998. [39] Such an advance is testimony to the value of international dialogues such as those with the CERD, as the international scrutiny of Australia's policies has clearly encouraged the government to explain its actions with a different frame of reference from that which it applies domestically.

On the other hand, the government's explanation is unclear as to whether providing substantive equality is obligatory or discretionary. It suggests that Australia's obligations under ICERD can be met by the provision of mere formal equality (ie., identical treatment, with the only differential treatment that is permissible being special measures). Substantive equality on this view is not seen as a fundamental requirement at international law, but as an optional extra. Accordingly, the government can choose to provide protective measures if it considers it legitimate to do so, and it can also choose not to. [40]

My concern is that there are circumstances in which it will be necessary for particular racial groups to be treated differently, in order to ensure that they are able to enjoy human rights in a non-discriminatory and equal manner. In interpreting the definition of racial discrimination in Article 1.1 of the Convention, the CERD has stated that:

A differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of Article 1, paragraph 4 (special measures) ... In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent or national or ethnic origin. [41]

Accordingly, under the Convention the classification of a form of different treatment as non-discriminatory is not confined to actions that qualify as special measures. The CERD has recognized, for example, that the protection of Indigenous culture and identity constitute a legitimate, non-discriminatory differentiation of treatment. It has called on States 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;

b) ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity;

c) provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;

d) ensure that members of indigenous peoples have equal rights in respect of effective participation in public life 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 practice and revitalize their cultural traditions and customs and to preserve and practice their languages. [42]

A failure to provide positive measures of protection to Indigenous culture may in fact operate to deny Indigenous people the opportunity to equally enjoy their human rights on a non-discriminatory basis.

The government's explanation of their obligation to provide equality is ambiguous, as it does not acknowledge that there may be circumstances in which such differential treatment is required. Instead, it leaves the government with a wide discretion (exercised in accordance with political concerns rather than an objective appraisal of the Convention's twin objectives of equality and non-discrimination) to determine which circumstances warrant protective measures.

Similarly, contrary to the government's position, the standard of equality required at international law was not a formal equality standard at the time of the adoption of the Convention in 1965. There is authority to suggest that by that time, international law accepted a substantive equality approach. This makes any suggestion that formal equality co-exists alongside substantive equality in international law today less tenable.

This is demonstrated by the consideration of the protection of minorities by the United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, in its first session in 1947. The Sub-Commission noted that the principle of equality has been informed by consideration of the twin objectives of preventing discrimination and protecting minorities:

Prevention of discrimination is the prevention of any action which denies to individuals or groups of people, equality of treatment which they may wish;

Protection of minorities is the protection of non-dominant groups which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics they possess and which distinguish them from the majority of the population.

If a minority wishes for assimilation and is debarred, the question is one of discrimination and should be treated as such. [43]

The Permanent Court of International Justice in their advisory opinion on Minority Schools in Albania [44] noted the connection between these objectives in 1935. The Court noted that, in order to secure for the concerned minority groups the possibility of living peaceably alongside the rest of the population while preserving their own characteristics, two things were necessary:

The first was to ensure that members of racial, religious or linguistic minorities should be placed in every respect on a footing of perfect equality with the other nationals of the State.

The second was to ensure for the minority elements suitable means for the preservation of their own characteristics and traditions.

These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its institutions, and were consequently compelled to renounce that which constitutes the very essences of its being as a minority. [45]

Put differently, to ensure the protection of minorities requires 'in the first instance, a guarantee of equal treatment (or the prevention of discrimination) together with additional special protective measures to preserve the distinct characteristics of the group'. [46]

Judge Tanaka, in the 1965 decision of the International Court of Justice in the South West Africa case similarly stated that:

The norm of non-discrimination as a reverse side of the notion of equality before the law prohibits a State to exclude members of a minority group from participating in rights, interests and opportunities which a majority population group can enjoy. On the other hand, a minority group shall be guaranteed the exercise of their own religious and education activities. This guarantee is conferred on the members of a minority group, for the purpose of protection of their interests and not from the motive of discrimination itself. By reason of protection of the minority this protection cannot be imposed upon members of minority groups, and consequently they have to choose to accept it or not. [47]

Preventing discrimination and protecting diversity are integrally linked through the concept of equality as it is properly understood at international law. Formal equality is not sufficient to provide the full range of protection required.

The existence of a margin of appreciation in implementing the non-discrimination principle

A related issue, which the Country-Rapporteur raised in the dialogue with Australia, was as follows:

[D]oes the state party consider the Convention to impose obligations that are absolute, or does the state party believe that there is a quote 'margin of appreciation' with respect to the obligations, the state party's obligation to enforce the provisions of our Convention? [48]

The government responded:

International law does accord States a 'margin of appreciation' in their implementation of international obligations, including non-discrimination principles.

It recognises the fact that there are circumstances in which national institutions are better placed to assess needs and make difficult choices between conflicting considerations.

The circumstances in which a State will be accorded a margin of appreciation will depend on the subject matter and the particular circumstances.

One of the circumstances recognised is in relation to novel areas of law.

Not only is native title law novel in Australia, the circumstances include its recognition where a system of land title derived from the Crown had been in existence for more than 200 years. [49]

In its submission to the Parliamentary Joint Committee on Native Title inquiry into CERD and the Native Title Amendment Act 1998, the Attorney-General's Department elaborated the government's position as follows:

The margin of appreciation is a degree of latitude allowed to individual States in their interpretation and application of treaty obligations ... Novel areas of law attract a wider margin of appreciation, such that a greater range of treatment will be regarded as meeting the treaty obligations ... A further consideration in terms of attracting a wider margin of appreciation is whether the overall effect of a scheme of law can be said to be reasonable. [50]

The Attorney-General's Department also stated, in arguing why the native title amendments are not discriminatory, that the relevant test under international law as to whether something falls within the margin of appreciation is whether it is 'arbitrary [or] ... reasonable in the circumstances'. [51]

The government relied on the notion of a margin of appreciation before both the CERD and the Human Rights Committee to argue that the native title amendments and mandatory sentencing laws are not racially discriminatory. [52]

The government's arguments that there is a margin of appreciation in relation to the non-discrimination principle must be rejected. There are three reasons why.

First, the prohibition of racial discrimination is considered to be 'one of the least controversial examples of the class of jus cogens'. [53] Article 53 of the Vienna Convention on the Law of Treaties (1969) defines jus cogens as 'a peremptory norm of general international law ... [which is] a law accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted'. There is no State discretion to deviate from the norm of non-discrimination in international law generally.

Second, as Mr Ernst Willheim persuasively argued before the Parliamentary Joint Committee on Native Title, there is no margin of appreciation in relation to ICERD:

The Convention is notable for its unqualified language. Unlike many other international conventions which embody loosely expressed objectives, key obligations of the Racial Discrimination Convention are expressed in absolute terms.

Thus, in Article 2 States Parties undertake to pursue

' ... a policy of elimination of racial discrimination in all its forms ... and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination'. [54]

After citing the definition of racial discrimination in Article 1.1 and the obligation to provide equality before the law in Article 5, Mr Willheim goes on to state:

No exceptions are contemplated. A party cannot, for example, implement the Convention except in relation to members of a particular race or except in relation to a particular human right. [55]

Third, in my submission to the Joint Parliamentary Committee on Native Title inquiry into CERD and the Native Title Amendment Act 1998, I argue that the government's arguments about a margin of appreciation misunderstand the scope of the Committee's interpretation of the meaning of racial discrimination. In particular, as noted above, the Committee has stated that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate. [56] As I note:

The purpose of [this explanation] is to rebut the argument that all differential treatment on the basis of race is discriminatory. The definition of discrimination under General Recommendation XIV allows differential treatment if its objectives and purposes are consistent with those of the Convention ...

General Recommendation XIV is not a means by which the implementation of government policy which results in a negative disparate impact on a particular racial group can, nonetheless, be acceptable if it is reasonable in all the circumstances and adopts proportionate means. Nor does General Recommendation XIV provide a margin of appreciation to States in meeting their obligations under the Convention. Its purpose is to ensure that measures which do recognise and protect cultural identity and practices are not classified as discrimination merely because they treat people differently. [57]

Protecting human rights in a federal system

Adequate protection of human rights in federal states, such as Australia, has long been a concern of the international human rights treaty committee system. It was one of the main concerns of the CERD when it last considered Australia in 1994. In its concluding observations, the Committee noted that:

Although the Commonwealth government is responsible for ratifying international human rights instruments, the implementation of their provisions requires the active participation of the states and territories which have almost exclusive jurisdiction over many of the matters covered by the Convention and cannot be compelled to change their laws. [58]

As a consequence of this, and with particular reference to the treatment of Indigenous Australians, the Committee stated that:

The Commonwealth Government should undertake appropriate measures to ensure the harmonious application of the provisions of the Convention at the federal and state and territory levels. [59]

The obligation to ensure compliance with the Convention at all levels of government arises in a number of provisions of the Convention. In particular, the Convention provides that the State Party:

undertakes 'to engage in no act or practice of racial discrimination' and 'to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation' (Article 2.1(a));

'Shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists (Article 2.1(c)); and

'shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination' (Article 6). [60]

The obligation to ensure national compliance has also been codified in the Vienna Convention on the Law of Treaties. [61] Article 27 of the Convention states that 'A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty'.

The Country-Rapporteur, in her introductory comments, asked the government to explain how it meets these obligations:

I sense that there is a lack of competence in the Commonwealth Parliament, or perhaps it's a reluctance, to take steps to ensure the harmonious application of the provisions of the Convention, not only at the federal level, but also at the state and territorial level. Now the Committee raised this issue, I believe, when Australia's last periodic report was reviewed, the issue being that discriminatory impact of state and territory levels, laws, in matters which, at that level they have almost, you know, primary jurisdiction, like for social programs et cetera, is I think a matter of concern so I would invite your comments. [62]

The Rapporteur asked further, in relation to mandatory detention laws in the Northern Territory and Western Australia:

if there is the competence in the federal, in the Commonwealth Parliament and the Federal Government to override laws passed in states and territories, and I do think you have that power in certain instances, then I would be interested in hearing why that power is not being used to override [these laws], and I understand the political difficulties in federal systems of overriding state and local jurisdiction, but in situations relating to human rights, I think it is actually an obligation to do so. [63]

In answering the Rapporteur's question, the Australian delegation repeatedly referred to the difficulties of being a federation in ensuring compliance with the Convention. In doing so, it advised Committee members that they were unlikely to understand the complexities of such systems:

it's because we are a federal state, and I know that not all of you would be perhaps experienced of what a federation is and involves, but in Australia we have a number of states and territories who, like the Commonwealth make significant contributions to dealing with these issues. [64]

Several Committee members assured the Australian delegation that they were indeed familiar with federalism, and emphasised the importance of federal responsibility for compliance with the Convention:

Mr Chairman we note that our Convention does not contain a federal clause, but we know what is a federal system - in the United States, in Germany, in Australia, in Austria, in Switzerland - and for us all these governments are responsible. They cannot stay behind sharing of competencies with local authorities. Whenever delegating competencies they should maintain the power to interfere and take measures to guarantee the implementation of the Convention. As Mrs McDougall noted, there is a flouting in the legislation in different Australian states. Some of them have legislation, some others do not have, some are dealing with some issues and not with the others. The minimum for us is our Convention, and this should be implemented and the Australian Government is responsible ... [65]

I would ask ... whether [the government] accepts that under Article 27 of the Vienna Convention on the Law of Treaties, it is responsible for the way that mandatory sentencing in the Northern Territories constitutes discrimination, in effect, in violation of the Convention's Articles 2(1)(a), (b), (c) and (d) ... [66]

I would like to emphasise that our Convention poses obligations for the state party and it is the state party, the Government, that is responsible for the fulfilment of obligations under all the conventions concerning human rights and the international law. And never, never, never could these responsibilities be delegated to governments of territories or local authorities, or whatsoever. This is a question of leadership... [67]

The government responded to these questions and statements by arguing that while the Committee may understand federal structures, they needed to acknowledge that 'there are also different types of federations. And Australia is a different type of federation because of our history'. [68]

In its written response to the Committee, the government elaborated on the difficulty of ensuring compliance by the states and territories:

Australia itself was originally a collection of autonomous British colonies which in 1900 decided to federate on their own terms. Ie, the colonies or States elected to retain the bulk of their powers (including eg law enforcement, health, education) and ceding only specified powers to the new federal government (such as immigration and defence).

In Australia therefore, the powers of the federal government are strictly defined and limited, and the constitutional balance can only be altered with the agreement of a majority of Australians in the majority of States.

The federal structure does not give the national government unlimited powers - it cannot readily override the States and Territories, and even where possible would not resort to overriding legislation if there were other ways of achieving the same objective, which is why the federal government is currently exploring its options in relation to the problem of mandatory sentencing. [69]

There are two concerns about this description of the federal system which relate to Australia's compliance with the Convention. First, at no time does the Australian government acknowledge that it is obligated under the Convention to ensure compliance of the states and territories. As one of the members of the Committee explained:

Certainly, we have all kinds of federations in the world. Each federation has its own specificity, this is true. We have well understood the broad and detailed explanations that he has given us. But we remain unchanged in our position on this question because the question of discrimination, in our opinion, should be one of the greatest preoccupations of the federal authority. And looking at what is happening in Australia, in seeing the composition, and especially the latitude given to the different components of the federation for treating such an important problem, we are a bit concerned. And I would simply like to say that, as everyone knows, the problem of discrimination is part of, and has always been a part of, the concern of the United Nations, of the international community. And it's for this very reason that, from the very beginning, the United Nations itself has always shown its commitment to the dignity and equality of all human beings. I think that for all the states of the world today, this is a cardinal principle that is of interest to all states. And so the federal state should take this into account ... [70]

Second, this description of the Australian federal system is misleading. It emphasises the limits of the Commonwealth's powers to ensure compliance and the difficulty of achieving constitutional change. Yet it fails to mention that, in addition to powers over immigration and defence, the Commonwealth does have the power to ensure compliance of the states and territories with international obligations. This is unquestionably the case under section 51(xxix) of the Constitution (in relation to external affairs); and depending on the issue, potentially under other heads of power in section 51 of the Constitution. In relation to territory laws, section 122 offers a further alternative for ensuring compliance.

The Country-Rapporteur made it clear that she did not find the government's explanation convincing in this regard:

Now this point about federalism, I was very interested in your comments. As you know I come from a country that has a federal system that was very much like Australia in the making. It started with independent colonies that decided to join a federation and only gave such powers to the Federal Government as those states chose. You know the question of states' rights really has been quite a perpetual issue in our country. It's one that you know we fought a civil war over. We fought a very bloody civil war in our country over whether states had the right to, and were free to, practice the abhorrent practice of slavery ...

So in our system very much like yours, we've made it very clear that the Federal Government has certain responsibilities, and with respect particularly to human rights issues, to these very sticky issues of civil rights as we call them, race relations in the United States. It's very clear that the Federal Government can override state legislation and unless I'm mistaken I thought that that was very much the case in Australia as well. [71]

The Committee's concluding observations justifiably reflect this concern:

7. The Committee reiterates its recommendation that the Commonwealth Government should 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.

An entrenched guarantee of racial non-discrimination

Related to how the Commonwealth government ensures compliance of the states and territories with international obligations is the issue of the level of protection against racial discrimination in Australian law.

The Country-Rapporteur commended the wide range of institutional measures that exist to meet Australia's obligations under the Convention:

the Australian Commonwealth and the government of the states and territories have enacted, I think, an impressive array of laws at the federal, state and territorial level, of laws, have established many agencies and programs to combat racial discrimination ... one has to welcome this multiplicity of attempts in law and in terms of institutional structures to address these issues. [72]

However, she expressed concern at the status that the protection of racial non-discrimination has in Australian law:

one of the issues that is of concern to me is that there is a lack of an entrenched guarantee against racial discrimination in Australian law ... We've seen that problem and discussed that problem with respect to the ... Native Title Act as amended. I notice, however, that on the other hand there is a power to pass legislation such as the Social Security Legislation Amendment Act, which has a special provision in it that is sort of an explicit savings clause that new legislation will, must be interpreted subject to the provisions of your Racial Discrimination Act, in other words CERD. I just want to hear whether it's the view of the state party that the overriding of the Racial Discrimination Act in any subsequent legislation amounts to a repudiation of the state party's obligations under CERD or whether you think it is as consistent as one can have it, so I'd be interested in your comments about that. [73]

In a presentation to the Committee, [74] I explained this issue as follows:

The Racial Discrimination Act (RDA) is the principle piece of domestic legislation that implements Australia's obligations under CERD ... the RDA is an ordinary enactment of the Commonwealth Parliament. Accordingly, subsequent specific enactments of the Commonwealth Parliament will take precedence over it. Accordingly, ordinary legislation of the Commonwealth Parliament may either expressly or by implication repeal the RDA or limit its operation in specific areas.

This is exactly what the amended Native Title Act (NTA) has done to Australia's domestic implementation of its obligations under CERD. The amended NTA impliedly repeals the RDA in relation to native title, and thereby removes Australia's commitment under CERD in this area.

But this is not the only way in which the guarantee against racial discrimination has been violated in Australia. The Australian constitution contains an express power to enact special laws directed to people of a particular race.

The scope of the Commonwealth's power to enact legislation directed at particular racial groups was the subject of judicial scrutiny in 1998. [75]

The case concerned 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 which 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 which discriminated against particular racial groups was Kirby J in dissent.

It is of great concern to me that the federal Parliament may at any time introduce laws which discriminate on the basis of race. That they have done so twice in the past four years, and on both occasions in relation to Indigenous peoples, raises concerns under Articles 1, 2 and 5 of the Convention. It also raises concerns under Article 6 of the Convention, which provides that 'States ... shall assure to everyone within their jurisdiction effective protection and remedies ... against any acts of racial discrimination.' There is no remedy against this discrimination, as the Australian legal system permits such laws. [76]

The government sought to explain this issue by suggesting that the native title amendments did not, in fact, override the guarantee of non-discrimination contained in the RDA:

The 1993 Native Title Act contained a provision describing the relationship between the RDA and the Native Title Act - nothing in the latter was to affect the operation of the former. The High Court said of this 1993 provision in WA v The Commonwealth in 1995 that it was difficult to see any inconsistency between the NTA and the RDA, but if there was any, the specific provisions of the NTA applied.

This provision was amended in 1998 to reflect the High Court's interpretation of how the 1993 provision could operate:

the RDA applies to the performance of functions and exercise of powers conferred by or authorised by the NTA (including by States and Territories under alternative regimes); and

the RDA can be used to construe ambiguous terms in the NTA.

Thus the current provision operates no differently to the 1993 provision.

The preamble to the 1993 Native Title Act recited Parliament's intention that the Act provide significant benefits to indigenous Australians, and constituted a 'special measure' under Article 1(4) of the Convention. Clearly this was not a repudiation of the Convention. [77]

The government's explanation is manifestly wrong. This is revealed by the government's acknowledgement in the first paragraph that the NTA would prevail over the RDA in the event of an inconsistency between the two laws. Put differently, the government admits that to the extent of any inconsistency, the NTA overrides the operation of the RDA. As noted previously, the Committee found in 1999 that the native title amendments do in fact discriminate. As a consequence, the amended NTA is inconsistent with the RDA, and does operate to displace it.

The government's reasoning also fails to acknowledge that the provision in the 1993 NTA describing the relationship between the NTA and the RDA was ineffective in preventing the RDA from being displaced. To argue that the current provision operates no differently from the original provision is to say no more than that the ineffectiveness of the original provision has been preserved. It does not address the issue raised by the Committee.

Significantly, the Country Rapporteur noted in her comments that the government could have made it unequivocal that the RDA would apply to the operation of the NTA, as they had done in relation to social security legislation under section 4 of the Social Security Legislation Amendment (Newly arrived resident's waiting periods and other measures) Act 1997. The Committee was fully aware that the Parliament had not adopted this option.

The government's arguments also fail to make clear that the provision in the amended NTA only operates to construe the meaning of ambiguous terms in the Act. It is ineffective where the NTA unambiguously discriminates against native titleholders.

Several members of the Committee were clearly troubled by the government's ability to override a guarantee against racial discrimination on the one hand, and the failure of the Commonwealth to ensure compliance of the states and territories on the other. Accordingly, they asked a series of questions about potential mechanisms for entrenching a guarantee of non-discrimination through constitutional means. [78]

The government responded as follows:

Some countries have entrenched certain rights in their Constitutions. Other countries, like Australia, establish rights through a range of institutions, laws and programs. Governments of both persuasions in Australia have considered a Bill of Rights. The critical issue is having the right culture / climate for protection of rights. The US has a different culture and system to Australia and many other countries. [79]

In its oral presentation, the government expanded on this as follows:

we believe that institutions and conventions, and support by the public for certain values, can be very important. In fact, may even be more important than having a rule, that we can show you in writing, that nobody really takes seriously or obeys. And there are some other questions that arise from time to time. The United States has some elements in its constitution which they'd look back on now, in relation to, say, the right to bear arms. And which they'd say, well that was fine at a particular point in time in history, but now is it an appropriate freedom? Certainly in the Australian context, if we'd had it entrenched in our Constitution, we'd be saying how can we modify it? As we've sought to deal with the issue of access to firearms in our society. I mean the fact is that we have considered bills of rights, and we've rejected it. We do have a different culture, we think our culture works well. We have institutionally and within our society, a very, very strong commitment to dealing with human rights issues... [80]

There are a number of matters of concern in this answer. First, the government emphasised that it is 'the right culture' that is important for the protection of rights. Yet the Committee was concerned that the practices of the government (in relation to native title, mandatory sentencing and so forth) indicate that Australia does not have the right culture to protect rights.

Similarly, to suggest that 'support by the public for certain values' is more important than having a rule that no one follows does not address the issue. The Committee asked about the implementation of an entrenched standard of non-discrimination from which no derogation is permitted. [81] The point of raising the standard to this level is to require that the rule be followed in all circumstances.

There can be no doubt that it is appropriate to entrench the principle of racial non-discrimination in Australian law. The Committee's concluding observation on this issue justifiably reflects this concern:

6. The Committee is concerned over the absence from Australian law of any entrenched guarantee against racial discrimination that would override subsequent law of the Commonwealth, states and territories.

Redressing Indigenous disadvantage

The issue to which the Committee members returned time and again was the extent of Indigenous disadvantage, and the adequacy of government measures to redress this.

The members of the Committee variously expressed their concerns about this issue as follows:

Australia's report covers or contains a great deal of information on legislative and judicial measures intended to combat racial discrimination. In addition the document does not conceal the problems facing the indigenous populations, this sector which finds itself in a great disadvantage within Australian society, in practically all aspects affecting the quality of life, housing for instance, health, employment, and education. And comparing them with the same statistics for the rest of the population, it represents a regrettable state of affairs. The report states this openly. The indigenous population has a worse state of health, dying younger than the non-indigenous Australians. Life expectancy at birth is 15 to 20 years less than that of the non-indigenous population, and with greater likelihood of dying of infectious diseases than the non-indigenous population, as we see from paragraph 62 of the report. In all matters relating to the conditions associated with their existence, the situation is equally grave. There is no need to detail the statistics which reflect this state of affairs since there is no area in which there is equality between the Aboriginal citizens and the non-indigenous Australians ... [82]

Why, for so long has the Aboriginal population continued to live in such a precarious manner, in a far less stable than the rest of the population? The weight of history apparently is strong, and shows that there hasn't been much change either quantitatively or qualitatively ...[83]

the country rapporteur and many others, amply have pointed out the tremendous mass of information, very interesting, in the report impressively, about the laws enacted, institutions established, large sums of money allocated in order to improve the conditions and remove racial discrimination. But in spite of this, which is also informed to us in a commendable way in the report through a number of statistic figures, the result is very very meagre. Very meagre indeed. And like others here, you ask yourself how come? Why is this? What is the matter? What is wrong? ... [84]

The Country-Rapporteur brought this issue into sharp focus:

I think we all have to welcome the increase in government resources going into what seem to be a multiplicity of programs and activities to address the social and economic disadvantage within the Aboriginal community, and I think that in some respects, in many respects, the report is very candid about the track record ...

Now I note that you said today that there's been great improvement over a short period of time, and I'm sure there has been, but you know it's interesting to me, and again I will say this because I come from a country myself where there is a disadvantaged community and a lot of government programs et cetera, it's of serious concern the extent of the dramatic inequalities that are still being experienced by these population groups when they represent only, you know, no more than 2% of the population of a highly developed, industrialised state, and I just, it makes me wonder about things like the effectiveness of the programs, monitoring, benchmarking, what are the standards, is anybody watching this to see whether or not they really are designed to meet the disadvantages that are real in the communities, you know the real history of systemic discrimination, institutional racism?

In other words how is it even with the increased level of expenditures and the many programs that you've described that I think are all quite laudable, so how is it that a country like Australia with the resources it has, has not yet been able to bring what's less than 2% of the population up to reasonable levels in terms of standards of living? [85]

Members of the Committee emphasised that while the government's efforts were impressive, the measuring stick for assessing the adequacy of the government's approach to Indigenous disadvantage was not the amount of money spent. The crucial question was whether these programs were sufficient to achieve equality and address the historical legacy:

We heard that there was a raise in housing so much, there was a raising, it is good. I congratulate the Australian Government for this. But no doubt I would also prefer to have the comparison between what the Aborigines have in the field of education compared to other Australians. And, or health, etc. All these statistics should be, the comparison should be done on the basis of the different groups of the population. Not to what the Aborigines have today, and what they had a year ago. Maybe you can compare what they have today to what they used to have before they were so badly treated some time ago ... [86]

I and others have received a mass of information about the serious concerns that Australians and others have about the health conditions of the indigenous population ... We are told that more and more is being done to address this situation. That is not to say that sufficient is being done ... [87]

Ms January-Bardill also highlighted the flaws of the current approach to addressing disadvantage:

I'd like to commend the Government for taking steps that it has done, especially in creating mechanisms and structures to address social inequalities felt by the indigenous peoples of Australia. However, I feel that this welfarist approach which throws money at problems has been very limited. And your own statistics on health-education show that there hasn't been much social upliftment. In fact people are continuing to live a fairly desperate life. And what this approach to injustice does is that it simply manages the inequalities, it doesn't really change them. And it can also create a lot of resentment within the majority population who sometimes feel that their taxes are used simply to uplift the lives of minority groups. So the question I'd like to ask, is what therefore are your critical success factors? What results do you hope to achieve from your welfare approach to social injustice? Experience has also showed in many countries that creating laws and legal frameworks as you have done, which you have been encouraged to do by our Convention, that these laws and frameworks are not, do not necessarily create results. They are simply a means to an end. What they do is to create an enabling environment which the institutions are expected to use to achieve the results that the State wants. So the question is, how are the institutions in the country, whether they are political, whether they are social, whether they are legal, or whether they are economic. What, how are they using this basket of legislation and administrative framework to achieve your goals of dealing with injustice and inequality? Specifically you know, around the Aboriginal peoples of Australia ...

And finally, I'd like to propose to the Government that unless the original indigenous people of Australia are actively involved in the political, socio-economic and legal life of Australia the status quo will not change, and if the Government is thinking about changing the injustices within the country then they have to include Australians in the decision-making process, their indigenous Australians in the decision-making processes. [88]

A related concern was the extent of budgetary cuts to the Aboriginal and Torres Strait Islander Commission and HREOC over the past five years:

When your last report, periodic report, was before this Committee we welcomed the establishment of bodies like ATSIC and the Human Relations Committee [sic], [89] but now we see that there are some changes taking place, either already implemented or discussed, to the functioning of both institutions, that might have an adverse impact on the, you know, their ability to effectively carry out their programs. ATSIC is federally funded, indigenous organisation, very unique structure ... it has been sort of established as the, a representative voice of the Aboriginal community, particularly I think with respect to ability to enter into negotiations, et cetera. So when you were before us before, it seemed that the state party was putting an emphasis on moving the responsibilities and creating in ATSIC a sort of body to represent the issues and interests of the Aboriginal community.

Now I understand and actually think it is quite an important thing to do mainstreaming of these responsibilities, and I think it's very important that you know all the other departments in the government have such responsibility also, but inasmuch as it's clear that there is a need for and, if you will, a legitimate or authoritative voice from the Aboriginal community to enter into consultations and negotiations with the government, I just wonder whether or not they are now being disempowered, so that they are not as able to play effectively that role. [90]

In these 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).

In relation to the Convention, these issues raise concerns under Articles 2 and 5 (equality before the law and non-discrimination), and Articles 1.4 and 2.2 (the requirement to take special measures). [91]

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 ... [92]

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. [93]

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 ...

We believe that the practical measures that we are implementing, leading to practical results to improve the lives of our indigenous peoples can, over time, incrementally, produce better results than we have today. And we are, through the implementation, systematically, of special programs and policy initiatives, seeking to improve economic independence for our indigenous peoples to overcome inequalities which we know continue to exist in some areas, and we have targeted those areas of greatest need, particularly health, education, housing, employment, and economic development opportunities as areas in which we can move forward. [94]

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. [95]

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. [96]

They noted the complicating factor of the demographic structure and location of the Indigenous population:

70% of that population lives in regional and rural areas of Australia. It's a very rapidly growing population, growing at double the rate of the general population. And one of the factors driving that very rapid population increase is the extent of inter-marriage between indigenous and non-indigenous Australians. The children of such unions are entitled to identify or be identified as Aboriginal, if they so choose. [97]

And they acknowledged the historically derived nature of the disadvantage:

Australia is far from unique in that it is still struggling to remedy the social and economic legacy of its past history. Canada and the USA also continue to experience similar difficulties in relation to their indigenous and Afro-American communities ... The fact that more remains to be done reflects the lingering effects of past problems:

in the area of employment for example, today's adults are still suffering the legacy of educational disadvantage of 40 or 50 years ago.

Similarly, the seeds of shortened Aboriginal adult life expectancy were planted in the substance abuse problems (eg tobacco) of their youth. [98]

Notable in these responses is the absence of any recognition of the importance of a rights 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. [99] As an example of this I noted in my submission to the Committee that:

In 1993, the government responded to the Mabo decision by announcing that they would take action in three areas - the introduction of the Native Title Act 1993 to recognise and protect native title (and validate non-Indigenous forms of land usage); the introduction of an Indigenous Land Fund - to redress dispossession for Indigenous people who would be unable to establish native title due to past extinguishment of their rights; and a Social Justice Package.

Broad consultations were undertaken in regard to the development of the Social Justice Package by ATSIC, the Aboriginal and Torres Strait Islander Social Justice Commissioner, and the Council for Aboriginal Reconciliation. Strategies and proposals were presented by these three bodies to the government in 1995. The proposals broadly called for the recognition of the rights of Indigenous people, as well as calling on the government to redress Indigenous disadvantage (and highlighting requirements for this to be addressed as a right, not out of welfare). In 1996, the newly elected government abandoned the Social Justice Package. [100]

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. [101]

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. [102]

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, justifiable, conclusions on this issue:

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.

11. The establishment of the Aboriginal and Torres Strait Islander Commission (ATSIC) and of the Aboriginal and Torres Strait Islander Social Justice Commissioner within the Human Rights and Equal Opportunity Commission (HREOC) were welcomed by the Committee. Concern is expressed that changes introduced and under discussion regarding the functioning of both institutions may have an adverse effect on the carrying out of their functions. The Committee recommends that the State party give careful consideration to the proposed institutional changes, so that these institutions preserve their capacity to address the full range of issues regarding the indigenous community.

Indigenous peoples and criminal justice systems

An issue related to the levels of Indigenous disadvantage is the over-representation of Indigenous people in the criminal justice systems of the states and territories. The Committee had expressed concern on this issue in its previous consideration of Australia in 1994:

543. The situation of the Aboriginal and Torres Islander people remains a subject of concern, despite efforts aimed at remedying the injustices inherited from the past. Concern is expressed that Aboriginals continue to die in custody at a rate comparable to that which led to the appointment of the Royal Commission.

545 ... It is, once again, noted with concern that, according to various social indicators, Aboriginals are more deeply affected by social problems such as alcoholism, drug abuse, delinquency and incarceration than any other social group in the country.

547... The recommendations adopted by various bodies entrusted with the protection of Aboriginal rights - the Royal Commission into Aboriginal Deaths in Custody, the Human Rights and Equal Opportunities Commission, and the Aboriginal and Torres Strait Islander Commission - should be fully implemented by all those concerned, particularly state and territory governments. [103]

The Committee followed up these concerns during the dialogue in March:

If I can go to Article 5 and questions relating to equality before the law. As you all know, the Royal Commission of Inquiry into Aboriginal Deaths in Custody found that the problem was ... the degree of over-representation in custody, was 29 times that of non-Aboriginals. The Royal Commission also concluded that the most significant factor in bringing indigenous community people into contact with the criminal justice system was their disadvantage and unequal position in the wider society. And they made subsequent recommendations and I note that the government has accepted 338 of the 339, and has allocated over 4 million dollars to seek to implement those recommendations. But despite that formal commitment to those recommendations and the programs put in place I think that it is still true, correct me if this is wrong, that the total number of Aboriginals in custody has increased, according to a study prepared for ATSIC by a criminologist. He says: 'claims by state and territory governments to have implemented recommendations cannot be sustained. Further state/territory governments have taken legislative actions not to envisage the Royal Commission of Inquiry, not envisaged by it, which has led to an increase in Aboriginal imprisonment.'

Now the Commission recommended strategies of diversion, diversion from incarceration, but I think since that time, particularly for juveniles the level of incarceration has remained at unacceptably high and disproportionate levels. And many have pointed to the mandatory sentencing laws that are now in place in at least one state and one territory as well as the limited diversionary options that are available. [104]

The government responded to the Committee as follows:

Australia acknowledges that Aboriginal people are grossly over-represented in the criminal justice system. The Royal Commission into Aboriginal Deaths in Custody identified two solutions to this problem:

Reducing underlying causes of socio-economic disadvantage and

Developing alternatives to detention and imprisonment.
The underlying causes are being addressed - exemplified in the $2.2bn in special programs for Indigenous Australians.

Alternatives to detention have also been encouraged, including through doubling the Aboriginal legal aid budget, as a result of the Royal Commission. The results are beginning to show:

The level of Aboriginal over-representation (relative to non-Aboriginal) has fallen in the last five years;

On a per capita basis, Aboriginals are less likely to die in custody than non-Aboriginals;

Indigenous people receive shorter sentences than non-Aboriginal offenders in almost all offence categories. [105]

I have already discussed above the approach to redressing Indigenous disadvantage generally. I also noted in my submission to the Committee that all levels of government have failed to adequately respond to the recommendations of the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their families. [106] These reports make numerous recommendations aimed at redressing the underlying causes of Indigenous over-representation in the criminal justice system, juvenile justice and care and protection systems. Many of the recommendations have not been acted upon or actively rejected by governments. [107]

The claim that 'the results are beginning to show' in addressing Indigenous detention rates cannot be sustained. Despite the recommendations of the Royal Commission into Aboriginal Deaths in Custody, the rate at which Indigenous people come into contact with the criminal justice system has not improved in the past decade:

From 1988 to 1998, the Indigenous prisoner population (across all age groups) has more than doubled. It has grown faster than non-Indigenous prisoner rates in all jurisdictions. Nationally, Indigenous prison populations have increased by an average of 6.9% per year for the decade. This is 1.7 times the average annual growth rate of the non-Indigenous prison population; [108]

Figures for the June 1999 quarter indicate that 76% of all prisoners in the Northern Territory (NT) and 34% of all prisoners in Western Australia (WA) were Indigenous. The rate of imprisonment of Indigenous people in Western Australia was 21.7 times higher than that of the non-Indigenous population. The rates in the other states for which statistics are available are also unacceptably high - 15.7 times higher in South Australia, 12.2 times higher in Victoria, 11.3 times higher in Queensland, 9.9 times higher in the Northern Territory and 5.1 times higher in Tasmania. [109]

The number of Indigenous deaths in custody in the decade since the Royal Commission has been 147, compared to 99 in the decade before the Royal Commission. [110] 17.2% of all prison deaths in the 1990s have been Indigenous people, compared to 12.1% in the 1980s. [111]

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

I'd also like to hear you talk, we've talked about equal access to law, a little bit about interpreter services. That's been raised with me that in courts, while there is a program to guarantee interpretation services to non-English speakers, that the service is not extended to, in general, to the Aboriginal community, or that it's not available or it's not able to be used successfully, and so I would like to hear your comments there. [112]

The issue of a lack of interpreter services had been graphically illustrated to the Committee with case studies of mandatory sentencing. On the issues of interpreters the Government stated:

It is important to distinguish between interpreter services for day-to-day purposes and interpreter services in the courts and criminal justice system ... In terms of day-to-day services, there is no universal service for either non-English speaking background Australians or aboriginal Australians ...

In relation to the courts, there is no automatic scheme of translation or interpreter service for any group of Australians, aboriginal or non-aboriginal. It is up to the magistrate or judge in the particular case to decide the issue. However, Aboriginal Australians have access to special legal aid assistance and representation which often include any necessary assistance (noting that government funding of aboriginal legal aid has been doubled in the past decade). [113]

This answer is of concern because, in the first instance, it fails to acknowledge that the provision of court interpreters, where required, is fundamental to a fair trial and equal treatment in legal proceedings (as required under Article 5(a) of the Convention). Furthermore, it is ambiguous in that it tends to suggest that the provision of legal aid assistance and special representation is adequate to meet any need for interpretation. But the role of interpreters in court is not a partisan one. They are a service of the court, intended to ensure that all who come before the court can properly understand the proceedings and be heard. The suggestion that 'Aboriginal Australians have access to special legal aid assistance and representation' is not relevant to the question at issue.

On these issues the Committee justifiably concluded as follows.

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

Mandatory sentencing

Mandatory sentencing or detention laws in the Northern Territory and Western Australia were of great concern to the Committee. In particular, mandatory sentencing illustrated concerns about:

the unwillingness of the federal government to ensure compliance of the states and territories with Australia's obligations under the Convention;

the (lack of) effectiveness of government programs to reduce the over-representation of Indigenous people in the criminal justice system;

the related problem of the lack of interpreter services in court proceedings; and

the inadequate response of government to the historically derived disadvantage faced by Indigenous people.

Mandatory sentencing laws clearly raise concerns in relation to Articles 2.1(a), (c) and 5(a) of the Convention.

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

My question is this, that first of all does the state party share the view that these mandatory sentencing regimes are inconsistent with its obligations under our Convention and perhaps under others? And I also wonder, I understand that there has been a legal committee of the government that has studied and concluded that quote, 'that the weight of the evidence of the committee was that the mandatory sentencing laws have a discriminatory impact on indigenous peoples and that is contrary to the provisions of CERD', and they named Articles 2 and 5 particularly. So I would want to know whether or not the state party fully agrees with that. [114]

The issue here is one of indirect discrimination. CERD clearly incorporates this, with the definition of racial discrimination in Article 1.1 including discrimination 'in purpose or effect'.

I have consistently argued that mandatory detention provisions target crimes that are generally committed by people from lower socio-economic backgrounds. In the Northern Territory and Western Australia this necessarily means Indigenous people. The limited statistics available show that these laws have a clear disparate impact upon people of different races, [115] and accordingly that they breach Articles 2 and 5 of the Convention.

The government responded to these issues as follows:

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

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

Now that doesn't justify it. I simply put it before you as material that has been in the public arena. We are a democracy, where these issues are discussed and debated, and debated very vigorously. The Commonwealth Attorney-General, my ministerial colleague, has written to his counterparts in both Western Australia and the Northern Territory, asking them to review their laws, particularly as they impact upon young people ... The Commonwealth is very conscious of looking for other ways through this issue, and we are seeking, from a committee of members of parliament, advice on further diversionary programs, and looking at the interpreter issue to see whether there are ways forward, progressively, to address these questions, which can help in alleviating some of the concerns about the mandatory sentencing question ... [116]

The government considers that it is better to address the problem of repeat offenders through program aimed at prevention, rehabilitation and diversion ... The government's main priority is to address the causes underpinning the over-representation of Indigenous people in prison. We believe we're meeting our obligations under CERD. [117]

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

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

In the dialogue with the Human Rights Committee, the government provided more expansive answers on why it considered that mandatory sentencing laws are not racially discriminatory: [118]

In relation to Articles 24 and 26 (of the ICCPR), the Government submits that mandatory detention laws do not discriminate against any group of people in ways that are prescribed by these Articles. The Government notes that these laws apply to all citizens equally, irrespective of race. This is consistent with the approach to discrimination adopted by the Committee. There is no distinction made in the legislation as to its application to various groups of people. For this reason, the Western Australian and Northern Territory legislation cannot be considered discriminatory... [119]

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

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

In those circumstances, the Western Australian Government has identified the offence of home burglary in particular as one that required suitable means to deter repeated offences of that sort. Similarly, the Northern Territory Government has identified that property offences are serious offences with an enormous impact on the Territory community. Thus, the Territory Government has attached mandatory detention sentences to commonly committed serious property offences.

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

The Governments in question have determined that mandatory minimum sentences for serious property offences and home burglary are not unreasonable, unjust or non proportional when taking into account the nature of the crimes in question, their repeat nature and the level of community concern about them. [120]

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

But even should such a balancing exercise be allowable under the ICCPR to determine whether mandatory sentencing laws are not 'unreasonable, unjust or non-proportional', it is patently false to suggest that such laws, particularly those in the Northern Territory, relate only to 'serious property offences'. Any balancing exercise that would be required would be in relation to petty or minor property offences. It is inconceivable that such harsh laws could be seen as proportionate, reasonable or just.

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

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

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

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

Now, I don't think the delegation can have it both ways, and therefore, this is another aspect of discrimination which I would bring to their attention and I would ask them to reflect upon it. [121]

The CERD justifiably expressed concern at mandatory sentencing as follows:

16. The Committee expresses its concern about the minimum mandatory sentencing schemes with regard to minor property offences enacted in Western Australia, and in particular in the Northern Territory. The mandatory sentencing schemes appear to target offences that are committed disproportionately by indigenous Australians, especially juveniles, leading to a racially discriminatory impact on their rate of incarceration. The Committee seriously questions the compatibility of these laws with the State party's obligations under the Convention and recommends to the State party to review all laws and practices in this field. [122]

Reconciliation (including responding to forcible removal policies)

In its previous consideration of Australia, the Committee had expressed concern at the level of discrimination and disadvantage experienced by Indigenous people. As a consequence of this, in its concluding observations the Committee stated:

547. The Committee recommends that Australia pursue an energetic policy of recognizing Aboriginal rights and furnishing adequate compensation for the discrimination and injustice of the past. [123]

There are two articles of the Convention that are relevant to this recommendation and which make reconciliation an appropriate matter for consideration by the Committee. Article 6 requires that the States party 'shall assure to everyone within their jurisdiction effective protection and remedies ... against any acts of racial discrimination' as well as the right to seek 'adequate and just reparation or satisfaction for any damage suffered as a result of such discrimination'. Article 7 provides that States Parties 'undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship ...'

During the dialogue with the government, the Country-Rapporteur commented as follows:

Article 7 obliges the states parties to undertake measures to combat prejudices which lead to racial discrimination and to promote understanding, tolerance and friendship among racial and ethnic groups and I think that that's where we started with the discussion that the honourable Minister gave us of the reconciliation process and its varied programs that are being put in place, the way in which it is trying to be innovative, et cetera ...

I'm also interested in how you see this process of reconciliation. I've heard about the programs as you've described earlier, but what are the benchmarks? What actually is taking place in addition to a public education program, how will you know when reconciliation has been achieved, what are the criteria? And is it not going to have to have the full consent and agreement of the other side of the table in a negotiation with the indigenous community, because it seems to me that at the very least, you know, one of the criteria for reconciliation is that both sides, or all sides, agree that yes, we have reached that point now. And I just wonder if there's not going to be, not consultation - I think that's something else - but real negotiation with the indigenous community about what reconciliation means, and how to get from here to there. [124 ]

The government responded to these issues by first acknowledging the wrongs of the past, but also by stating that such wrongs cannot be undone:

Now without any doubt one of the greatest blemishes in Australia's history has been the treatment of our indigenous peoples. I don't think you would find many Australians who would look back at our history who would say that it was always appropriate. The doctrine of terra nullius for instance denied indigenous land rights while indigenous peoples suffered injustices under many practices that past generations were involved. 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. [125]

During its consideration of the native title amendments in 1999, the Committee noted that it is problematic to suggest that we cannot undo the past. [126] The government made a similar suggestion stated in its appearance before the Human Rights Committee in July 2000. [127] A member of the Human Rights Committee, Mr Shinan, highlighted some of the problems with this approach during the dialogue with Australia in July 2000:

I wish to refer to what was said by the Ambassador in his introduction. He said 'We cannot wind the clock backwards'. This statement is, of course, true but to some extent it's not true. It's not true if it represents an effort to assimilate the indigenous cultures into a pattern of life which is fundamentally European, if it wants to convey the message that modernisation is here to stay, and modernisation will replace traditional forms of life and traditional cultures.

To some extent, we must stop the clock in order to see what we have in the form of traditional economies and traditional ways of life, and to some extent I would say we must also wind the clock backwards in order to see where there are vital traditions of the indigenous peoples of Australia and what are the sustainable traditions, and what can be done to give them a new sound economic basis so that their sustainability in the future could be secured. [128]

The government also stated its commitment to a process of reconciliation and noted that it would take time to achieve:

I would want to say very firmly that while people have talked about specific timeframes and with goodwill people have aspirations to achieve reconciliation sooner rather than later, it is a process which involves the meeting of people's hearts and minds in which you need to effect change, and it's a process that's going to be ongoing and one in which we are going to have to continue to work on over time ... [129]

The Parliament has committed itself to the process of reconciliation and seeks, it's welcomed the draft, and it's encouraged participation, and all of us hope we can get a document. But ... .the fact that we get a document, does that mean we're all going to be reconciled? Somebody has produced a document, do we put the issues aside and say look we're all together, we're reconciled? Now I suspect if I took that view and then came back to you and said look we got a document last year, we're reconciled, somebody would be asking me for measurable outcomes. I mean we realistically are saying we don't know that this document is going to bring that process to an end. We think it may have to be ongoing ... If we are going to influence the hearts and minds of people to be reconciled, I think the process is more important ... [130]

when I was in South Africa at the beginning of last year, many of the people I spoke to said well, look, you really don't have to look at the document, the document itself, because that's not really the answer, what you have to look at is the process that we have been through. The fact that people have had an opportunity to talk about these issues, to come together, to make their personal apologies, to make admissions about their involvement in the apartheid regime, and in many cases to seek a form of forgiveness for that. And that process was seen as something that had had a very significant and unifying impact on the community. And I would say that in Australia regardless of whether we get a document or not, the process that we are going through is being, is very important in the context of our national identity, in which we want to address these issues in a very positive way. [131]

The Country-Rapporteur expressed concern with this comment, by highlighting the need for the outcome of the process to be a consensual one:

I was not indeed asking for there to be a document that could be produced. Rather, for me, the real test is whether or not all of the parties agree that reconciliation has been achieved, and achieved on the basis of genuine negotiations between the, essentially in this case, two parties. But I think that one would have no doubt as to when reconciliation is achieved and it's certainly not on the basis of a document, it is a process. But it's a process that will never be successful unless the aggrieved parties feel that they have negotiated an outcome that is satisfactory to them. [132]

A related issue raised by the Committee was that of the government's response to forcible removal policies:

When I think about the reconciliation process I sort of go back to the issue of what's called the stolen generation ... The national inquiry into the separation of these families made seven or so recommendations for government response to these abuses and I'd be interested in hearing how many of those recommendations have indeed been acted on. You know, the difficulties of any people in coming to terms with racial discrimination in the past just cannot be underestimated. However, I would ask whether or not you feel that your government is showing sufficient leadership in this regard and why, and I read this in your report but I'd like to hear from this distinguished delegation why it is so difficult as a government, not as an individual but as a government, to take full responsibility for past government actions? There's been no constitutional break in this process, so the question is why would it be so difficult to fully admit and apologise for past wrongs by your government? [133]

The government referred to the Motion of Reconciliation that went through the parliament on 26 August 1999:

One of the 54 recommendations [of Bringing them home] involved a formal 'apology' by the respective Australian Parliaments, state and federal. The national Parliament adopted a 'statement of regret' last year. [134]

As I noted in my submission to the Senate Legal and Constitutional References Committee inquiry into the stolen generation, the Motion of Reconciliation resolved by both houses of federal Parliament does not contain the necessary elements of an apology identified in recommendation 5a of Bringing them home, and is 'generic' in the sense that it does not specifically mention forcible removal policies at all. [135]

Ultimately, the Committee justifiably expressed the following concerns about the process of reconciliation:

12. While acknowledging the significant efforts that have taken place to achieve reconciliation, concern is expressed about the apparent loss of confidence by the indigenous community in the process of reconciliation. The Committee recommends that the State party take appropriate measures to ensure that the reconciliation process is conducted on the basis of robust engagement and effective leadership, so as to lead to meaningful reconciliation, genuinely embraced by both the indigenous population and the population at large.

13. The Committee notes the conclusions of the 'National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families' and acknowledges the measures taken to facilitate family reunion and to improve counselling and family support services for the victims. Concern is expressed that the Commonwealth Government does not support a formal national apology and that it considers inappropriate the provision of monetary compensation for those forcibly and unjustifiably separated from their families, on the grounds that such practices were sanctioned by law at the time and were intended to 'assist the people whom they affected'. The Committee recommends that the State party consider the need to address appropriately the extraordinary harm inflicted by these racially discriminatory practices.

The government's response to CERD, and the treaty review process

The government responded to the concluding observations of the Committee by stating that the 'Committee's report is an unbalanced and wide-ranging attack that intrudes unreasonably into Australia's domestic affairs'; that 'the Committee has apparently failed to grapple with our unique and complex history'; and that the Committee 'paid scant regard to the Government's input and has relied almost exclusively on information provided by non-government organisations'. Accordingly, the government 'rejects the comments made' by the CERD. [136]

The government also stated that 'it is unacceptable that Australia, which is a model member of the United Nations, is being criticised in this way for its human rights record ... The Committee's comments do not do our country justice'. [137] In relation to the mandatory sentencing/ detention laws in the Northern Territory and Western Australia, the government stated that:

While it is not the Commonwealth's role to defend the legislation of any particular State or Territory, the Commonwealth regards the Committee's comments in relation to mandatory detention laws as inappropriate. The Commonwealth Racial Discrimination Act 1975 is a comprehensive enactment of Australia's obligations under the CERD. The act prohibits all forms of racial discrimination in all Australian jurisdictions, Federal, State and Territorial and provides a legislative framework for making complaints regarding racial discrimination. It is by reference to the Racial Discrimination Act and through its complaint mechanisms that any issue regarding race discrimination in Australia should be handled. These are matters for Australian legislatures and Australian courts. I am not aware of any complaint being made under, or by reference to, the Racial Discrimination Act in relation to either the Western Australian or the Northern Territory mandatory detention laws. [138]

In interviews with the press during the week that followed the release of the Committee's observations, various government Ministers also noted that:

some of the issues which the Committee had considered 'represent intrusions into matters that are of no concern to the Committee at all. They are outside their terms of reference'; [139]

the Committee's comments on race relations in Australia were 'unbalanced' and represented 'really a repetition of the submissions made by non-government organisations'; [140]

'this committee, it is an elected committee ... comprises representatives from a diverse range of countries, some of whose human rights records are nowhere, nothing like as good as Australia's'; [141]

'they seem to be running a political agenda rather than making an independent assessment or an impartial assessment of what the situation is in Australia';[142] and

that 'you can argue about what the international obligations are given the general terms of the treaties'. [143]

On the issue of mandatory sentencing it was stated that:

Our approach to mandatory sentencing, at the Commonwealth level, you appreciate that I am only speaking for the Commonwealth government, not for any other, is not to focus on our international obligations. International obligations under treaties are heavily negotiated, end up being in very broad, general terms and therefore are capable of, in the different minds, applying in different situations. Sometimes even in quite contradictory situations ... [144]

[the] committee is fundamentally flawed because it is based on the erroneous proposition that because there is a disproportionately large number of indigenous people likely to be caught up in these laws that it is racially based. It is not racially based at all. That is the equivalent of saying that all of our criminal laws are racially based. [145]

In relation to mandatory sentencing and Australia's federal system it was stated that:

in a federation, you've got to have a system where if the local community elects a government and that government does something and people at the center of government, the national government, is unhappy with that then you've got to think before you intervene and overturn that local law. Can I just say the criminal laws of this countries have for decades been run by the States. The Commonwealth doesn't run the criminal law of Australia except in so far as international things intrude, but the ordinary day to day criminal law ... [are] all state things. Now I think to march in and try and overturn every individual state criminal law you disagree with is making a bit of a mockery of federation ... you've got to preserve the federal compact to the extent of acknowledging the role of the States and the territories in these matters ...[146]

the criminal law of this country is overwhelmingly something administered by State and territory governments. The federal government has virtually no role in the domestic criminal law of this country, except in a very, very general sense. So that really is the basis of what we're saying ... [147]

ultimately these things have to be resolved by Australian Parliaments elected by Australians, and not by foreign committees. [148]

When asked whether the government would take note of the Committee's observations, the Attorney-General responded:

We are taking note. We carefully read it the moment it is issued and we form our own view on it. That's taking note of it, but if what they say is wrong, then we are entitled to reject it ... This report will have no influence whatever on what the Government does on pretty well any of the issues in the report. [149]

Less than a week after the Committee's observations were released, the government announced a review of Australia's participation in the treaty committee system. The review announcement expressed concern at the burdensome reporting requirements under the treaties; the backlog of overdue reports and delays in consideration of these by the committees; the perception of over-reliance on NGO submissions by the committees; and the suggestion that the committees were running political agendas rather than 'expert' objectives. [150] In relation to the CERD it was stated that:

In this context, the Government was appalled at the blatantly political and partisan approach taken by the UN's Committee on the Elimination of Racial Discrimination (CERD) when it examined Australia's periodic reports in Geneva last week ... The Committee's response was disappointing in the extreme. It largely ignored the significant progress made in Australia across the full spectrum of indigenous issues. The Committee's observations are little more than a polemical attack on the Government's Indigenous policies. They are based on an uncritical acceptance of the claims of domestic political lobbies and take little account of the considered reports submitted by the Government ...[151]

there are serious systemic problems in this reporting process and the resources needed for them to play their role effectively are not allocated to the treaty bodies. As a result, the outcomes of the system are not always fair and accurate assessments of state's performances. This was the case for Australia recently in relation to our implementation of the Convention Against Racial Discrimination. [152]

Under Article 9 of ICERD, the State Party may also make comments on the concluding observations of the Committee. Such comments must be included in the annual report of the Committee to the General Assembly. Accordingly, the government requested that the following comments be included in the CERD's annual report:

The Australian Government has carefully considered the Committee's concluding observations on Australia's tenth, eleventh and twelfth periodic reports issued on 24 March 2000. While noting some positive commentary, the overall thrust is unduly negative. The Australian Government rejects these comments. It approached the CERD meeting in good faith and sent a high-level delegation, led by the Minister for Immigration and Multicultural Affairs and Minister Assisting the Prime Minister for Reconciliation, the Hon. Phillip Ruddock MP. Australia provided extensive written and oral information in order to engage constructively with the Committee.

The Australian Government is very disappointed that the Committee's concluding observations ignored the progress Australia has made in addressing indigenous issues, gave undue weight to NGO submissions, and strayed from its legitimate mandate. The Australian Government is also deeply concerned about the lack of consideration the Committee accorded to its views, and to its outstanding record of commitment to international human rights obligations.

Following the issue of the Committee's concluding observations, the Government in March 2000 initiated a review of its engagement with United Nations treaty bodies, which will involve, interalia, consideration of the working procedures of CERD. The Government will announce the conclusions of the review in due course. [153]

I have a number of concerns about the government's response to the Committee's concluding observations. In particular, the following comments are not sustainable and must be rejected.

The Committee was 'unbalanced' in its views, as it ignored progress made in Indigenous issues and was unduly negative

As I noted at the outset of this chapter, the Committee praised a number of efforts by the Australian government to address racial discrimination in accordance with the Convention. These included a range of projects and processes relating to Indigenous issues - including the level of government spending; implementation of recommendations of Bringing them home and the Royal Commission into Aboriginal Deaths in Custody; and the existence of legislation outlawing racial discrimination federally, and in all states and territories. In my assessment, the Committee did acknowledge the positives and was not 'unduly negative'.

The Committee did not make a 'fair and accurate assessment' of Australia's performance

In the dialogue with the government, the Committee identified the articles of the Convention that they considered were relevant to particular issues. They also commented on the adequacy of the government's explanations of particular issues and concerns. In my assessment, provided in relation to each issue in the previous section, the conclusions reached by the Committee on each issue relating to Indigenous policy is sustainable and a 'fair and accurate assessment' of Australia's performance.

A number of issues dealt with by the Committee, specifically mandatory sentencing, are domestic issues and by commenting on these issues the Committee acted outside of its' mandate

As I have illustrated in the previous section, each issue that the Committee commented on in its concluding observations was clearly within the mandate of the CERD. [154] Reconciliation and stolen generations issues, for example, clearly raise issues of compliance with Articles 6 and 7 of ICERD; the extent of Indigenous disadvantage clearly raises issues under Articles 2 and 5 of the Convention; and mandatory sentencing raises issues under Articles 2(1)(a), 2(1)(c) and 5 of the Convention.

The argument that certain issues are purely domestic and not properly the concern of international treaty committees is not new. As Hilary Charlesworth notes:

The standard reaction to international criticism has been to question the legitimacy of an outside group or organization to comment on matters within Australia. The inviolability of Australian sovereignty is regularly given as a reason to resist international scrutiny. This type of reaction overlooks the fact that human rights issues within a nation state are now unquestionably of international concern, and have been so for over fifty years, from the signing of the UN Charter.[155]

The government's arguments regarding mandatory sentencing in many respects amount to nothing more than a reiteration of the arguments that were rejected by the Committee. This is particularly the case in relation to the arguments relating to our federal structure and the difficulty of overturning state or territory laws.

In disputing the Committee's concluding observations on mandatory sentencing, the government has also not fairly represented the views put by the Committee. The CERD's observations on mandatory sentencing cannot reasonably be described as expecting that the federal government will 'march in and try and overturn every individual state criminal law you disagree with'. Mandatory sentencing laws can be differentiated from other state and territory laws that a federal government may not like, as they involve fundamental issues of compliance - of Australia - with human rights obligations.

It is also wrong to suggest that the Committee's conclusion on mandatory sentencing was flawed as it was based on the proposition that Indigenous people are over-represented in custody. As I outline in the previous section, this is not the reason why the Committee concluded that mandatory sentencing laws breach the Convention. -

It was inappropriate for the Committee to consider mandatory sentencing laws as any complaints about it can be dealt with under the Racial Discrimination Act 1975 (Cth)

The argument that mandatory sentencing is appropriately a domestic issue that should be dealt with under the Racial Discrimination Act 1975 (Cth) (RDA) misunderstands the scope of the Act. There have been no complaints lodged with the Human Rights and Equal Opportunity Commission that allege that mandatory sentencing laws are racially discriminatory. But far from being proof that they are not discriminatory, the lack of complaints is a reflection of the fact that under section 24(2)(a) of the RDA any such complaint would be declined as not unlawful. [156] Accordingly, there is no capacity for an individual to lodge a complaint about mandatory sentencing laws under the RDA. If mandatory detention laws are discriminatory, they are lawfully so within the domestic legal system.[157] This is a breach of Article 6 of ICERD which requires that there be effective protection and remedies within the domestic system against any acts of racial discrimination.

The Committee's assessment of issues was 'blatantly political' rather than an objective and impartial assessment

As I noted in relation to the government's partial acceptance of a substantive equality approach to Articles 2 and 5 of ICERD, the standard against which the Committee makes its objective assessment is different to that which exists in domestic politics. It is the human rights standards of the Convention that are relevant. The will of the majority or the government, or the domestic political problems faced by the government in relation to a particular issue, are not relevant in determining whether particular actions are discriminatory or in breach of the Convention. This is not indicative of a blatantly political approach, but rather reflects that 'human rights law is counter-majoritarian in that it provides protection for individuals and minorities so that, in certain defined contexts, their interests are not always sacrificed to those in the political majority'. [158]

The Committee had made this point explicitly clear to the government in relation to native title issues in 1999. In that context, the government had argued that it had struck an appropriate balance between the interests of miners, pastoralists, Indigenous people and so forth in the native title amendments. The Committee made explicit that the balance is not between domestic political interests but between the enjoyment of rights by different racial groups in society. The native title amendments did not provide an appropriate balance in this regard. [159]

International treaties are drawn in such broad, general terms that there can be legitimately different interpretations of a State Parties obligations

This argument must be rejected in relation to ICERD. As I noted in the previous section, the obligations that arise in the Convention are of an explicit nature that leave little room for differing interpretations.

This point is demonstrated by the government's arguments relating to a margin of appreciation, and their justification of laws that they say have a 'legitimate' objective. As I noted above, the measuring stick under the Convention of when differential treatment is legitimate is the objectives of the Convention and not some unrelated, general notion of reasonableness.

The Committee's membership is drawn from countries with human rights records worse than that of Australia

This argument fails to acknowledge the status of committee members as serving in their personal capacity and independent experts on issues of racial discrimination. It also fails to acknowledge the high level of knowledge of the Australian situation demonstrated by committee members during the dialogue with the government.

Other governments have also misunderstood the status of committee members. This led the Committee in 1990 to adopt a general recommendation on the status of committee members in the following terms:

Considering that respect for the independence of the experts is essential to secure full observance of human rights and fundamental freedoms,

Recalling article 8, paragraph 1, of the International Convention on the Elimination of All Forms of Racial Discrimination,

Alarmed by the tendency of the representatives of States, organizations and groups to put pressure upon experts, especially those serving as country rapporteurs,

Strongly recommends that they respect unreservedly the status of its members as independent experts of acknowledged impartiality serving in their personal capacity. [160]

The Committee was 'unbalanced' in its views, giving too much weight to the submissions of non-government organisations and not enough to those of the government

This view is problematic from a number of perspectives. The Committee's role is not to balance the views of the government and NGOs. It is engaging in a dialogue that takes as its frame of reference the obligations of the Convention. A lack of reliance on the government's position is not an indication of a preference for the views of NGOs, but of the inadequacy of the responses of the government, when considered against the obligations voluntarily assumed under the Convention. The concluding observations of the CERD are, as I have already noted, sustainable and are a fair and accurate assessment of Australia's performance.

Further, the government does not suggest that there is not an appropriate role for NGOs in the Committee's evaluation of a State Parties' performance. An important issue for the government is how it provides for NGO participation in the development of the periodic report. As I noted, with my fellow Commissioners, in a recent submission to a parliamentary committee:

To ensure the credibility of Australia's relationship with UN treaty committees, it is essential that non-government organisations and other stakeholders be given the opportunity to provide input into the preparation of those reports. Effective consultation requires that governments allow sufficient time for these organisations to provide appropriately detailed input. It also requires a commitment of resources by government to facilitate consultation with NGOs, although the level of resourcing would not be onerous ...

Effective consultation with NGOs also means taking their views into account when it is given. This does not mean that governments are obliged to agree with or accept without question the views of these organizations. It means however that governments should take their views seriously and should give careful consideration to this material when it is received. While state reports to treaty committees are first and foremost government reports, to be accurate and well-informed they require input from those most closely involved with the issues under consideration. The fact that NGOs and others may also provide independent reports to treaty committees in no way diminishes this requirement ...

The provision of information by NGOs is an essential mechanism by which to test the information provided to committees. It is our experience that a good report to a committee will canvas most of the concerns raised by NGOs. [161]

In HREOC's view, there is a relationship between the level of NGO participation in the preparation of a periodic report, the quality of such reports and the consideration of the views of NGOs by the human rights treaty committees:

The Commission shares the Attorney's concern that committees accord state representatives ample opportunity to express their views and that appropriate weight be given to the matters put to them by governments. However, in the Commission's experience, it is difficult to identify any major instances where treaty committees have acted inappropriately in this regard. Moreover, one of the reasons why Committees need to seek input from NGOs is because state reports have on occasions lacked information of sufficient detail and accuracy to meet the Committee's requirements. Clearly, the less informative the state party's report, the greater resort the Committee will need to have to material provided by NGOs. [162]

The role of the CERD and the periodic reporting obligation

Earlier in the chapter I highlighted several purposes of the periodic reporting process. The government's approach to the CERD's observations is a combative one that does not accept that the Committee's role is an advisory one, to assist in ensuring greater compliance with the Convention and greater recognition of human rights domestically. A member of the Human Rights Committee pinpointed the problematic nature of the government's approach as follows:

Most of us have seen the reports in the newspapers that the Australian Cabinet has had some unhappiness with the work of treaty bodies. They didn't make any exception for this particular treaty body, although I don't suppose they should have too much trouble with this treaty body since they haven't appeared before us as now in some 14 years ...

I would like to suggest that perhaps the Government of Australia, like the Governments of other countries, ought to see this Committee as it sees itself. We see our work as an important contribution to your compliance with the obligations which you voluntarily assumed; in fact, eagerly assumed. And that is true not only about the protocol, but also about the Covenant itself.

So we don't see ourselves really, despite the tone of some of our questions, as sitting in judgment but as helping State Parties carry out the obligations which you voluntarily assumed, and wish to assume. Of course, that requires cooperation by the States Parties. It does not help to read, therefore, questions about the work of the treaty bodies, and even on communications it does not help to see Governments - and I don't refer only to Australia - somehow resist the judgments or the final views of this Committee.

Therefore, I can only close by saying that we cannot help Governments comply with the obligations which you voluntarily assumed unless there is cooperation between your Government and the Committees, both in regard to the reports which you filed and we hope you will file more frequently, and the response to our views. [163]

Conclusion

This chapter has raised many concerns about Australia's compliance with human rights obligations in relation to Aborigines and Torres Strait Islanders. Various United Nations human rights treaty committees have expressed these concerns after conducting constructive dialogues with the Australian government, such as the one with the CERD highlighted in this chapter.

While the issues considered internationally are also the focus of much attention domestically, the international dialogue adds value to domestic debates. The key feature that distinguishes the dialogue at the international level is that it is focused on the human rights dimensions of the issues at hand. At the domestic level, the human rights significance of an issue is often diluted according to economic and other interests.

But the right of an accused person to be sentenced proportionally to the crime committed, for example, is a principle that a human rights committee does not easily overturn in order to assuage a popular demand for tough criminal sanctions. And such a committee cannot be easily persuaded that the right of Indigenous titleholders to equal protection of their title by the law should be compromised in order to achieve certainty for other stakeholders. Indeed balancing interests is not the concern of a human rights dialogue. Rather, the concern is whether sufficient value is placed on fundamental and universal human rights principles despite the economic and political expediencies of a country.

As Kofi Annan, Secretary-General of the United Nations, recently stated:

No government has the right to hide behind national sovereignty in order to violate the human rights or fundamental freedoms of its peoples. Whether a person belongs to the minority or the majority, that person's human rights and fundamental freedoms are sacred. [164]

All parties to human rights treaties are brought to account by the UN treaty committee system. In the end what is important is that through international dialogue, the human rights dimension of the issues at hand can be greater emphasised and understood by those who draft and formulate policies and legislation at the domestic level.

In the next chapter I consider how the concerns raised by the CERD can be addressed, and what lessons can be extracted from the dialogue, in order that reconciliation can proceed within a human rights framework. Put differently, I will consider ways in which the international dialogue on human rights can be put into practice domestically, rather than the dialogue being seen as separate to the process of policy formulation and practice in the domestic arena.

1. Australia has appeared before four of the six United Nations human rights treaty committees in the year 2000. This is in relation to Australia's periodic reports under the International Convention on the Elimination of All Forms of Racial Discrimination, which were considered in March 2000; under the International Covenant on Civil and Political Rights, considered in July 2000; the International Covenant on Economic, Social and Cultural Rights, considered in August 2000; and the Convention on Torture, Cruel, Inhuman and Degrading Treatment, considered in November 2000.

2. ICERD, Article 8(1).

3. The terminology of ICERD refers to States Parties, or States. States in this sense refers to nation states, ie the nation state of Australia, and not to internal states and territories within a nation.

4. The convention entered into force in Australia on 30 October 1975. For an overview of the Committee's functions and procedures see United Nations High Commissioner for Human Rights, Fact Sheet No.12: The Committee on the Elimination of Racial Discrimination, http://www.unhchr.ch/html/menu6/2/fs12.htm.

5. ICERD, Article 9.

6. ibid. See further Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1999, pp 23-26.

7. ICERD, Article 14.

8. ICERD, Article 11.

9. Committee on Economic, Social and Cultural Rights, General comment 1 - Reporting by States parties, Un Doc: E/1989/22, 24/02/1989, para 1.

10. Committee on Economic, Social and Cultural Rights, General comment 1 - Reporting by States parties, op.cit, para 2.

11. ibid, para 3.

12. ibid, para 4. This objective is particularly relevant to the requirement under Articles 1(4) and 2(2) of ICERD to adopt special measures.

13. ibid, para 5. The periodic reporting process can therefore assist in the fulfilment of Article 7 of ICERD to promote understanding, tolerance and friendship among racial or ethnic groups, as well as to promote the purposes and principles of the Convention among society.

14. Committee on Economic, Social and Cultural Rights, General comment 1 - Reporting by States parties, op.cit, para 6.

15. ibid, para 8.

16. ibid.

17. ibid, para 9.

18. See also the comments on the reporting process by the Human Rights Committee: Human Rights Committee, Consolidated guidelines for State reports under the International Covenant on Civil and Politiical Rights, UN Doc: CCPR/C/66/GUI/Rev.1 (Basic reference document), 29 September 1999; and the CERD: Committee on the Elimination of Racial Discrimination, General guidelines regarding the form and contents of reports to be submitted by States Parties, UN Doc CERD/C/70/Rev.4 (Basic Reference Document), 14/12/99.

19. Committee on the Elimination of Racial Discrimination, Twelfth periodic reports of States parties due in 1998 : Australia, Un Doc: CERD/C/335/Add.2. (State Party Report). The report is also available at: www.austlii.edu.au/au/other/dfat/reports/CERD/. The reports were submitted 5 years, 3 years and 1 year late. The combined report covers the period from 1 July 1992 to 30 June 1998.

20. See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1999, pp26-42.

21. Commonwealth of Australia, Comments of the Government of Australia on decision 2 (54) adopted by the Committee on the Elimination of Racial Discrimination, Annex VIII in Committee on the Elimination of Racial Discrimination, Report of the Committee on the Elimination of Racial Discrimination, UN Doc: A/54/18 (Sessional/Annual Report of Committee).

22.Committee on the Elimination of Racial Discrimination, Decision 2(55) on Australia, UN Doc: A/54/18, para 23(2), para 4.

23. The expert nominated for election to the Committee by the United States of America.

24. There is a country rapporteur for each State Party to the Convention. The Country Rapporteur leads the Committee in its consideration and questioning of the country.

25. Committee on the Elimination of Racial Discrimination, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, UN Doc: CERD/C/304/Add.101, 19/04/2000. The Committee's decision is reproduced in full at Appendix 2, and can be downloaded at: http://www.faira.org.au/cerd/decisions.html.

26. The oral appearance is documented in two ways: the unofficial, complete transcript of the dialogue: Foundation for Islander Research Action (FAIRA), Transcript of Australia's hearing before the CERD Committee - 1393rd, 1394th and 1395th meetings, 21-22 March 2000, FAIRA, Brisbane 2000, http://www.faira.org.au/cerd/ (Herein FAIRA, CERD Transcript - 21-22 March 2000); and the official United Nations summary records: Committee on the Elimination of Racial Discrimination, Summary record - 1393rd meeting, UN Doc CERD/C/SR.1393; Committee on the Elimination of Racial Discrimination, Summary record - 1394th meeting, UN Doc CERD/C/SR.1394 (Transcript only available in French); Committee on the Elimination of Racial Discrimination, Summary record - 1395th meeting, UN Doc CERD/C/SR.1395; Committee on the Elimination of Racial Discrimination, Summary record - 1398th meeting, UN Doc CERD/C/SR.1398 (Transcript only available in French). Reference is also made to the written answers provided by the Australian delegation to the Committee. Copies of the written answers supplied by the government are available from the Secretariat of the CERD or by contacting my office.

27. Note: I have not considered the conclusions of the Committee in relation to native title or racial hatred legislation. In relation to native title, I have previously rejected the arguments put forward by the government to the Committee: see Native title report 1999, Chapter 2 and my submission to the Parliamentary Joint Committee on Native Title, which is an appendix to the Native title report 2000. The dialogue with the Committee on native title is also considered in my Native title report 2000. In relation to racial hatred there were no answers provided by the Australian delegation to the questions raised by the Committee on this issue.

28. Not only will special measures not be deemed racial discrimination, but Article 2.2 obligates States to take special measures, where the circumstances so warrant them.

29. International Council on human rights policy, The persistence and mutation of racism, International Council on human rights policy, Versoix, Switzerland 2000, p5.

30. Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, pp 2-3.

31. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Does Australia regard the Convention as requiring formal or substantive equality.

32. Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting, Part III, p12.

33. Note: Australia's appearance in March 1999 was in relation to the early warning procedure and the native title amendments. For an analysis of the government's explanation of how it believed the native title amendments to be consistent with the Convention see: Native title report 1999, op.cit, Chapter 2; Dick, D. and Donaldson, M., The compatibility of the amended Native Title Act 1993 (Cth) with the United Nations Convention on the Elimination of All Forms of Racial Discrimination, Issues Paper 29: Land, rights, laws: Issues of native title, Native Titles Research Unit, AIATSIS, Canberra, 1999.

34. Ms Horner in FAIRA, CERD Transcript - 21-22 March 2000, 1395th meeting, p2.

35. Herein Parliamentary Joint Committee on Native Title.

36. Attorney-General's Department, Submission No.24, Part I, p17; quoted in Parliament of the Commonwealth of Australia, Sixteenth report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund - CERD and the Native Title Amendment Act 1998, Commonwealth of Australia, Canberra, 2000, p8.

37. ibid.

38. Ms Leon in Foundation for Aboriginal Islander Action (FAIRA), Transcript of Australia's appearance before the Human Rights Committee - 20-21 July 2000, 21 July 2000, FAIRA, Brisbane, 2000, www.faira.org.au/hrc/, (Herein FAIRA, Human Rights Committee Transcript), p19. Emphasis added. See also Human Rights Committee, Summary record of the 1856th meeting: Australia, UN Doc: CCPR/C/SR.1856, 28/07/2000; Human Rights Committee, Summary record of the 1858th meeting: Australia , UN Doc: CCPR/C/SR.1858, 28/07/2000.

39. See further: Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1998, op.cit, Chapter 3.

40. Note: In its submission to the Parliamentary Joint Committee on Native Title the Attorney-General's Department stated that it is for 'the Parliament to decide whether substantive equality was to be provided and, if it was, what that encompassed': Quoted in Parliamentary Joint Committee on Native Title, CERD and the Native Title Amendment Act 1998, op.cit, p9.

41. Committee on the Elimination of Racial Discrimination, General recommendation XIV on article 1, paragraph 1 of the Convention, para 2 in Committee on the Elimination of Racial Discrimination, Compilation of General recommendations, Un Doc: CERD/C/365, 11/02/1999.

42. Committee on the Elimination of Racial Discrimination, General recommendation XXIII on the rights of indigenous peoples, para 4, in Committee on the Elimination of Racial Discrimination, Compilation of General recommendations, ibid.

43. Quoted in Pritchard, S, 'Special Measures' in Race Discrimination Commissioner, The Racial Discrimination Act: A review, HREOC, Canberra, 1995, p186. See also Pritchard, S, 'Native title from the perspective of international standards' (1997) 18 Australian Year Book of International Law 127, p146; and McKean, W, Equality and discrimination under international law, Oxford 1983, p182.

44. Minority schools in Albania (1935) PCIJ Ser A/B No.64.

45. ibid, p17; Quoted in Pritchard, S, 'Special measures', op.cit, p185. The Sub-Commission on Prevention of discrimination and protection of minorities stated in 1947, as a consequence of this understanding, that 'differential treatment of (minorities) is justified when it is in the interests of their contentment and the welfare of the community as a whole': UN Doc E/CN.4/52, Section V quoted in Pritchard, S, 'Special measures', op.cit, p186.

46. Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, CERD and the Native Title Amendment Act 1998: Report of the non-government members, Parliament of Australia, Canberra, 2000, pp114-15.

47. South West Africa Case (Second Phase) {1966} ICJ Rep 6, p305.

48. Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, p3.

49. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Does Australia regard the Convention as requiring formal or substantive equality.

50. Attorney-General's Department, Submission No.24, Part I, p17; quoted in Parliament of the Commonwealth of Australia, Sixteenth report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund - CERD and the Native Title Amendment Act 1998, op.cit, pp9, 128.

51. ibid, p130.

52. In relation to native title see: ibid, pp128-132; Native title report 1999, Chapter 2; In relation to mandatory sentencing: see below.

53. Pritchard, S, 'Native title from the perspective of international standards', op.cit, p142.

54. Aboriginal and Torres Strait Islander Commission, Submission 10(a) to the Parliamentary Joint Committee on Native Title inquiry into CERD and the Native Title Amendment Act 1998, p8.

55. ibid.

56. Committee on the Elimination of Racial Discrimination, General Recommendation XIV, as cited above at p 44.

57. Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund - Inquiry into CERD and the Native Title Amendment Act 1998, p13.

58. Committee on the Elimination of Racial Discrimination, Concluding observations on Australia, Contained within UN Doc: A/49/18, para 542.

59. ibid, para 547.

60. The obligation to ensure compliance at the state and territory level is even more explicit in the ICCPR and ICESCR. Article 50 of the ICCPR and Article 28 of ICESCR are identically worded, and state that 'the provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions'.

61. Australia is a party to the Convention.

62. Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, p3 .

63. ibid, p5.

64. Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting, Part I, p3.

65. Mr Diaconu in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, pp 8-9.

66. Mr Banton in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting, Part I, p5.

67. Mr Nobel, ibid, p6.

68. Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting, Part III, pp5-6.

69. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: On being a federation.

70. Mr Fall in FAIRA, CERD Transcript - 21-22 March 2000, 1395th meeting, p5.

71. Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting, Part III, p11.

72. Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, p2.

73. ibid, p2.

74. An edited version of my submission to the CERD, which discusses this issue more fully, is contained in Appendix one of this report. The appendix also includes extracts from my submissions to the Human Rights Committee and the Committee on Economic, Social and Cultural Rights.

75. The High Court examined section 51(xxvi) of the Constitution (the race power) in the case of Katinyeri v The Commonwealth [1998] HCA 22. The race power 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.'

76. Aboriginal and Torres Strait Islander Social Justice Commissioner, Australia's 10th, 11th and 12th periodic reports under CERD, Statement at NGO presentation to the Committee on the Elimination of Racial Discrimination, 20 March 2000, Geneva, p3.

77. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Does the overriding of the Racial Discrimination Act amount to a repudiation of CERD?

78. Mr Banton, op.cit, p5; Mr Bryde in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting, Part II, p3. Note: none of the Committee raised a Bill of Rights as the specific form of constitutional entrenchment that they envisaged.

79. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Bill of Rights (entrenching rights - lack of an entrenched guarantee against racial discrimination).

80. Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting, Part III, p6.

81. Such a standard would reflect the jus cogens status of the principle of racial non-discrimination, as discussed above.

82. Mr Lechuga Hevia in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting, Part II, p8.

83. Mr Yutzis, ibid, p7.

84. Mr Nobel, ibid, p6.

85. Ms McDougall, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, p4. Emphasis added.

86. Mr Aboul-Nasr, CERD Transcript - 21-22 March 2000, 1394th meeting, Part III, pp1-2.

87. Mr Banton, ibid, Part I, p4.

88. Ms January-Bardill, ibid, p4. Emphasis added.

89. Note: This is a reference to the Human Rights and Equal Opportunity Commission.

90. Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, p4.

91. A further obligation may also be said to arise under Article 7, as the State party is obligated to educate the community about the Convention and the obligations it creates: see further below in relation to reconciliation.

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

93. 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.

94. Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part I, p3. Note: I critique the adequacy of practical reconciliation in chapter 2 of this report.

95. ibid.

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

97. Mr Vaughan, ibid, p11.

98. 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. Note: in relation to the United States and Canada, recent research indicates that socio-economic conditions for Indigenous Australians are far worse than the conditions in those countries. One of the main reasons why is economic empowerment through greater recognition of Indigenous rights, especially relating to governance issues. See: Moran, M, 'Housing and health in Indigenous communities in the USA, Canada and Australia: the significance of economic empowerment' (2000) 7 Aboriginal and Torres Strait Islander Health Bulletin.

99. In this regard, note the concluding observations of July 2000 of the Human Rights Committee (UN Doc: CCPR/CO/69/AUS) 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.

100. My submission to the CERD, as well as those to the HRC and CESCR are included as appendix one of this report.

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

102. 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.

103. Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of All Forms of Racial Discrimination: Australia, UN Doc: A/49/18, paras535-551.

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

105. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Over-representation in the criminal justice system.

106. 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.

107. In relation to the Bringing them home report, the adequacy of government responses is assessed in Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 1998, http://www.hreoc.gov.au/social_justice/social_justice/index.html.

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

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

110. Dalton, V., Aboriginal deaths in prison 1980 to 1998: National overview, Australian Institute of Criminology (AIC), Trends and Issues in Crime and criminal justice: No. 131, AIC, Canberra, 1999, p2. This figure is to September 1999, and includes the death of two Torres Strait Islanders.

111. ibid, p6.

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

113. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Interpreter services.

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

115. Note the comments of the Senate Legal and Constitutional References Committee in their report on the Human Rights (Mandatory sentencing of juvenile offenders) Bill 1999 that 'the weight of evidence to the Committee was that the mandatory sentencing laws have a discriminatory impact on Indigenous people that is contrary to the provisions of CERD, in particular articles 2 and 5' and that 'there is no denying the fact that a series of 'disadvantage' factors make indigenous people in particular likely to be affected by mandatory sentencing. Although this may not have been intentional, it should now be sufficiently obvious that certain groups in the community are vulnerable through being more likely to commit these crimes as a result of their poverty and other factors. Given the evidence of at least indirect discrimination, it is important for states and territories to address such discrimination': Senate Legal and Constitutional References Committee, Inquiry into the Human Rights (Mandatory sentencing of juvenile offenders) Bill 1999, Parliament of Australia, Canberra, 2000, p84, 87.

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

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

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

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

120. ibid, 21 July 2000, pp 15-16. Emphasis added.

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

122. The Human Rights Committee also concluded that mandatory sentencing leads to 'the imposition of punishments disproportionate to the seriousness of the crimes committed and would seem to be inconsistent with the strategies adopted by the State Party to reduce the over-representation of indigenous persons in the criminal justice system' and raises 'serious issues of compliance with various articles of the Covenant': UN Doc CPR/CO/69/AUS, para 17.

123. Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of All Forms of Racial Discrimination: Australia, op.cit, para 547.

124. Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, pp 6-7.

125. Minister Ruddock, ibid, 1393rd meeting, Part I, p5.

126. See: Native title report 1999, op.cit, pp 30-33.

127. Ambassador Luck stated that 'it is impossible to turn back the clock' in FAIRA, Human Rights Committee transcript, 20 July 2000, p2.

128. Mr Shinan, ibid, 20 July 2000, p 39.

129. Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part I pp6-7.

130. ibid, 1395th meeting, Part I, p8.

131. Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting, Part III, p8.

132. Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1395th meeting, Part II, p6.

133. ibid.

134. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Separated children.

135. Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the stolen generation inquiry, HREOC Sydney 2000, p14.The submission is available at https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice

136. Attorney-General, CERD Report unbalanced, Press Release, 26 March 2000.

137. ibid.

138. ibid.

139. Attorney-General, Transcript of interview - 11:00am, 25 March 2000, Tangney Electoral Office, Perth, http://www.law.gov.au, p1.

140. ibid.

141.ibid.p2.

142.ibid, p3.

143. Attorney-General, Transcript of doorstop, Parliament House Canberra, 1:15pm 23 March 2000.

144. Attorney-General, Transcript of interview - 11:00am, 25 March 2000, Tangney Electoral Office, op.cit, p2.

145. Prime Minister, Transcript of interview on the Today show, 29 March 2000, p2.

146. ibid, p2.

147. Prime Minister, Transcript of interview with Philip Clark, 2BL, 28 March 2000.

148. ibid, p9.

149. Attorney-General, Transcript of interview - 11:00am, 25 March 2000, Tangney Electoral Office, op.cit, p5.

150. Minister for Foreign Affairs, Government to review UN treaty Committees, Press Release, 30 March 2000.

151. ibid.

152. Downer, A. (the Hon), Australia's hope for the United Nations in the twenty-first century, Speech - 2000 National Youth Conference of the United Nations Youth Association, Melbourne, 3 July 2000.

153. Commonwealth of Australia, Comments of the government of Australia on the concluding observations adopted by the Committee on the Elimination of Racial Discrimination on the tenth, eleventh and twelfth periodic reports of Australia, Annex X in Committee on the Elimination of Racial Discrimination, Report of the Committee on the Elimination of Racial Discrimination, Un Doc: A/55/18. (Sessional/Annual Report of Committee), 17/10/2000.

154. Perhaps the most controversial conclusion of the Committee was in relation to Australia's obligations under the Refugee Convention. On this issue it is notable that in the meeting in which the Committee finalised its concluding observations, there was vigorous debate among the Committee members as to whether such comments ought to be included. Ultimately they decided that the comments were related to Australia's obligations under the Convention, though the official summary record of the meeting does not indicate which Articles of the Convention applied in particular: see further, Committee on the Elimination of Racial Discrimination, Summary record - 1398th meeting, 24 March 2000, UN Doc: CERD/C/SR.1398. Note: the summary record is only available in French.

155. Charlesworth, H., 'Human rights and reconciliation in international perspective' in Magarey, S. (ed), Human rights and reconciliation in Australia, University of Queensland Press, St Lucia, 1999, pp18-19.

156. See Secretary, Department of Defence v HREOC (1997) 149 ALR 309.

157. There remains, however, the possibility of challenging the constitutionality of mandatory sentencing legislation under section 10 of the RDA. This is different to what the Attorney was claiming, as it is not something that is done in accordance with the complaints mechanisms under the RDA.

158. Charlesworth, H 'International human rights law and Australian federalism' in Opeskin, B. and Rothwell, D., International law and Australian Federalism, p283.

159. This point is discussed at length in chapter 2 of my Native title report 1999 and my submission to the Parliamentary Joint Committee on Native Title inquiry into CERD.

160. Committee on the Elimination of Racial Discrimination, General recommendation VII concerning Article 8, paragraph 1 of the Convention, in Committee on the Elimination of Racial Discrimination, Compilation of general recommendations, op.cit.

161. Human Rights and Equal Opportunity Commission, Submission to the Inquiry by the Joint Standing Committee on Foreign Affairs and Trade into Australia's relations with the United Nations in the post-cold war environment, (Herein HREOC, Submission: Australia's relations with the United Nations) http://www.humanrights.gov.au/human_rights/un_committee/index.html, pp9-10.

162. ibid, pp10-11.

163. Mr Henkin in FAIRA, Human Rights Committee transcript, 20 July 2000, pp 42-43.

164. Annan, K, 'Human rights and intervention in the 21st century' in United Nations Development Programme, Human Development Report 2000, Oxford University Press, New York 2000, p31.

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Social Justice Report 2000: Chapter 3: International scrutiny of Australia's Indigenous Affairs policies