COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
Fifty-sixth session
6-24 March 2000
CONSIDERATION OF REPORTS SUBMITTED BY STATES
PARTIES UNDER ARTICLE 9 OF THE CONVENTION
Concluding observations of the Committee on the
Elimination of Racial Discrimination
Australia
1. The Committee considered
the tenth, eleventh and twelfth periodic reports of Australia, submitted
as one document (CERD/C/335/Add.2), at its 1393rd, 1394th and 1395th
meetings (CERD/C/SR.1393, 1394 and 1395), held on 21 and 22 March
2000. At its 1398th meeting, held on 24 March 2000, it adopted the
following concluding observations.
A. Introduction
2. The Committee welcomes
the reports submitted by the State party and the additional oral and
written information provided by the delegation, while regretting the
late submission of the tenth and eleventh periodic reports. Appreciation
is expressed for the comprehensiveness of the report and of the oral
presentation. The Committee was encouraged by the attendance of a
high-ranking delegation and expresses its appreciation for the constructive
responses of its members to the questions asked.
3. The Committee acknowledges
that the State party has addressed some of the concerns and recommendations
of the Committee's concluding observations on the ninth periodic report
(A/49/18, paras. 535-551).
B. Positive aspects
4. The Committee is encouraged
by the attention given by the State party to its obligations under
the Convention and to the work of the Committee.
5. The Committee notes
with appreciation the many measures adopted by the State party during
the period under review (1992-1998) in the area of racial discrimination,
including those adopted to implement the recommendations of the Royal
Commission into Aboriginal Deaths in Custody. The Committee welcomes
the numerous legislative measures, institutional arrangements, programmes
and policies that focus on racial discrimination, as comprehensively
detailed in the tenth, eleventh and twelfth reports, including the
launching of a "New Agenda for Multicultural Australia" and the implementation
of the "Living in Harmony" initiative.
C. Concerns and recommendations
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.
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.
8. The Committee notes
that, after its renewed examination in August 1999 of the provisions
of the Native Title Act as amended in 1998, the devolution of power
to legislate on the "future acts" regime has resulted in the drafting
of state and territory legislation to establish detailed "future acts"
regimes which contain provisions further reducing the protection of
the rights of native title claimants that is available under Commonwealth
legislation. Noting that the Commonwealth Senate on 31 August 1999
rejected one such regime, the Committee recommends that similarly
close scrutiny continue to be given to any other proposed state and
territory legislation to ensure that protection of the rights of indigenous
peoples will not be reduced further.
9. Concern is expressed
at the unsatisfactory response to decisions 2 (54) (March 1999) and
2 (55) (August 1999) of the Committee and at the continuing risk of
further impairment of the rights of Australia's indigenous communities.
The Committee reaffirms all aspects of its decisions 2 (54) and 2
(55) and reiterates its recommendation that the State party should
ensure effective participation by indigenous communities in decisions
affecting their land rights, as required under article 5 (c) of the
Convention and General Recommendation XXIII of the Committee, which
stresses the importance of securing the "informed consent" of indigenous
peoples. The Committee recommends to the State party to provide full
information on this issue in the next periodic report.
10. The Committee notes
that the Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund is conducting an inquiry into
"Consistency of the Native Title Amendment Act 1998 with Australia's
international obligations under the Convention on the Elimination
of All Forms of Racial Discrimination (CERD)". It is hoped that the
results will assist the State party to re-evaluate its response to
decisions 2 (54) and 2 (55). The Committee requests the State party,
in accordance with the provisions of article 9, paragraph 1, of the
Convention, to transmit the report of the Joint Parliamentary Committee's
inquiry to the Committee when it is tabled.
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.
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.
14. The Committee acknowledges
the adoption of the Racial Hatred Act 1995 which has introduced a
civil law prohibition of offensive, insulting, humiliating or intimidating
behaviour based on race. The Committee recommends that the State party
continue making efforts to adopt appropriate legislation with a view
to giving full effect to the provisions of, and withdrawing its reservation
to, article 4 (a) of the Convention.
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.
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.
17. Taking note of some
recent statements from the State party in relation to asylum-seekers,
the Committee recommends that the State party implement faithfully
the provisions of the 1951 Convention relating to the Status of Refugees,
as well as the 1967 Protocol thereto, with a view to continuing its
cooperation with the United Nations High Commissioner for Refugees
and in accordance with the guidelines in UNHCR's "Handbook on Refugee
Determination Procedures".
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.
19. The Committee recommends
that the State party's reports be made widely available to the public
from the time they are submitted and that the Committee's observations
on them be similarly publicized.
20. The Committee recommends
that the State party's next periodic report, due on 30 October 2000,
be an updating report and that it address the points raised in the
present observations.