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Inquiries and Reports - United Nations
Mr Maurice Glèlè-Ahanhanzo
Commission on Human Rights resolution 2001/5
February 2002
Editor’s note: The full report can be found at <www.unhchr.ch>.
At the invitation of the Australian Government and pursuant to Commission on Human Rights resolution 2000/14 (III) of 17 April 2000, the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance undertook a mission to Australia from 22 April to 10 May 2001. The purpose of this mission was to enable the Special Rapporteur to evaluate the impact, on the various components of the Australian population, of legislation and governmental policy in the area of action to combat racism, racial discrimination and xenophobia. Particular stress was laid on the situation of the Aboriginal peoples and the Torres Strait Islanders, especially in the light of the information reaching the Special Rapporteur concerning the discriminatory character of the Native Title Amendment Act 1998. Other information related to the difficulties in the process of reconciliation between Indigenous and non-Indigenous inhabitants, and the discriminatory nature of the laws on mandatory sentencing enforced in Western Australia and the Northern Territory, which had led to an excessive percentage of young Aboriginals among the prison population.
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The Special Rapporteur considered the legislative and administrative frameworks in place for combating racism and racial discrimination including Federal and State and Territory antidiscrimination legislation. The report also considers organisations and policies in support of Aboriginals and Torres Strait Islanders. It provides a brief overview of the Aboriginal and Torres Strait Islander Commission, The Torres Strait Regional Authority, and four programs which are specifically directed at Indigenous Australians these being the Federal Indigenous Employment Programme, Thursday Island hospital, The Aboriginal and Torres Strait Islander Development Corporation and the Institute of Aboriginal and Torres Strait Islander Studies. The consequences of the destruction of Aboriginal societies, difficulties with the reconciliation process and actions taken by Aboriginal organisations amongst other matters are discussed in the report.
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53. Many interlocutors stress that, despite the measures taken by the Australian Government to combat racism and racial discrimination, these phenomena continue to affect Aboriginals and Torres Strait Islanders. This is particularly reflected in the restriction of land rights, level of education, access to employment, and health and housing conditions. The Race Discrimination and Aboriginal and Torres Strait Islander Social Justice Commissioner considers that the programmes set up by the Government to achieve equality between these peoples and the rest of the Australian population and the resources allocated to these programmes are insufficient. On the basis of data evinced by a recent study on public investments in the four priority areas designated by the federal Government (education, employment, health and housing),[1] the Commissioner observes that these investments do not enable Indigenous people to become integrated in an egalitarian manner within Australian society.
54. The study seeks to determine whether enough attention is given to Indigenous needs in these areas. The concept of need used in the study is ‘the additional effort (if any) required to bring outcomes for Indigenous people to comparable overall levels with the Australian population as a whole, or put differently, the effort to ensure that Indigenous Australians are treated equally’. One of the general conclusions of the study is that ‘Indigenous people are more likely to access specific programmes designed to address their needs, rather than general programmes that are available, subject to eligibility criteria, to all Australians’. This focus on specific programmes has developed due to the ‘unsuitability, or inaccessibility to Indigenous people, of general programmes’. Reasons why general services may be inaccessible or unsuitable include the geographical location of Indigenous people, cultural reasons, and a preference for services delivered through organizations under Indigenous control. Accordingly:
A focus on special programmes 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 programmes, they benefit substantially less from many, much bigger, general programmes.[2]
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59. The Race Discrimination and Aboriginal and Torres Strait Islander Social Justice Commissioner has made a detailed analysis of the consequences of the Native Title Amendment Act 1998. In this connection, he notes that despite decision 2 (54) of the Committee on the Elimination of Racial Discrimination adopted in August 1999, calling on Australia to suspend implementation of this Act, which is contrary to its international obligations, the Act continues to be applied. Notwithstanding that the validation provisions, the confirmation of extinguishment provisions, the primary upgrade provisions, and the restrictions concerning the right of Indigenous title holders to negotiate stipulated in the law discriminate against native title holders,[3] states and territories continue to implement the amended Act. The Commonwealth has not entered into negotiations with Indigenous peoples and extinguishment of native title continues to be effected by the states, under the authority of the Commonwealth Government. In particular, the validation provisions result in the loss or impairment of the rights of native title holders in favour of the rights of non-Indigenous title holders. Generally, states and territories have been unwilling to negotiate an alternative to blanket validation legislation. The validation of intermediate-period acts deprives native title holders of procedural rights to engage in decisions about land, substituting a compensation scheme for rights removed.
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[Editor’s note: The Report reproduces tables which illustrate validation legislation, confirmation legislation and alternative right to negotiate legislation in the states and territories. It also provides a brief discussion of their application in each state and territory.]
76. In connection with the administration of justice, two questions attracted the attention of the Special Rapporteur: the high percentage of Aboriginals in the criminal justice system and their deaths in prison and detention centres, and the discriminatory nature of the mandatory sentencing laws in the Northern Territory and Western Australia. The representatives of the Commonwealth Government and all other people with whom the Special Rapporteur spoke agree that the high percentage of Aboriginals and Torres Strait Islanders results from their socio-economic marginalization and the destructuring of their society. The measures already in place to remedy this situation will only take effect in the long term.
77. The Race Discrimination and Aboriginal and Torres Strait Islander Social Justice Commissioner stated that all levels of government have failed adequately to 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. These reports make numerous recommendations aimed at redressing the underlying causes of Indigenous over-representation in the criminal justice, juvenile justice, and care and protection systems. Many of the recommendations have not been acted upon or are actively rejected by governments. The Commissioner makes the following observations in his report for the year 2000:
From 1988 to 1998, the Indigenous prison 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 cent per year for the decade. This is 1.7 times the average annual growth rate of the non-Indigenous population;
Figures for the June 1999 quarter indicate that 76 per cent of all prisoners in the Northern Territory and 34 per cent of all prisoners in Western Australia were Indigenous. The rate of imprisonment of Indigenous people in Western Australia was 21.7 times higher than that of non-Indigenous populations. 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;
Aborigine adults make up 17 per cent of prison inmates but only 1.6 per cent of Australia’s adult population. Indigenous children are also over-represented in the juvenile justice system, with about 40 per cent of children in ‘corrective institutions for children’ identified as Indigenous in the 1996 census.
78. In 1987, the Royal Commission into Aboriginal Deaths in Custody found that Indigenous people are more likely to die while in custody than are non-Indigenous people and reported on the deaths of 99 Aboriginal people between 1980 and the end of 1990. The Commissioner reported that in the decade since that time 147 Indigenous people died; 17.2 per cent of all prison deaths in the 1990s have been Indigenous peoples compared to 12.1 per cent in the 1980s. The measures adopted by the governments at all levels have not yet produced concrete results.
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107. The Human Rights and Equal Opportunity Commission states in its report for 1999–2000 that during the period 1998–1999 it received 467 complaints of racial discrimination under the Racial Discrimination Act 1975. In 2000, it received only 299 complaints, a decrease of 62 per cent. But the Commission states that ‘the overall number of complaints received in the year 2000 is, however, not dissimilar to previous years’. It explains that ‘employment-related complaints represented the largest area of complaint under the Act (34 per cent), followed equally by racial hatred (19 per cent) and the provision of goods and services (19 per cent) complaints’. It should be further noted that the majority of complainants are of non-English-speaking background, Aboriginals or Torres Strait Islanders.
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Background
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No. complainants
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Non-English-speaking background
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164
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Aboriginal and Torres Strait Islander
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63
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English-speaking background
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57
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Unknown
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15
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Total
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299
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116. These are community organizations generally based on different clans or emerging from a group of persons of Aboriginal origin. Their chief function is to ensure the economic and social development of these clans and groups and to protect their interests.
117. In the State of Queensland, the Special Rapporteur visited the Yarrabah community: situated about 37 km from Cairns, it is composed of 3400 people. Originally, it was a community set up by an Anglican missionary to save the Aboriginals from extermination. In 1986, it established a council with responsibility for development and management and with a membership of seven; only the chairman is remunerated by the State of Queensland. The community receives from the Aboriginal and Torres Strait Islander Commission (ATSIC) an annual grant of $A18 million, which is used primarily for the construction of infrastructure, including a 10 bed clinic and housing, and the remuneration of service providers. The council has also developed a project for the training of five Aboriginal police officers, who liaise with the State of Queensland police; it is also supporting the training of a young Aboriginal manager, who will be involved in project execution.
118. In Alice Springs in the Northern Territory, the Special Rapporteur visited the Tangentyere council, a body responsible for promoting the interests of the Arrente people, who own the region around Alice Springs. The council has been in existence since 1979 and is endeavouring to provide modern housing for some 1200 people. It also engages in social activities, notably night patrols to prevent anti-social behaviour by certain Aboriginals. This is one of the projects under the Community Development Programme (CDEP), which provides a partial solution to the problem of Aboriginal unemployment. The council has succeeded in banning the sale of alcohol in the areas inhabited by Aboriginals. It collaborates with the municipality of Alice Springs, notably for the purpose of finding jobs for Aboriginals, most of whom work on road maintenance. Another community organization which provides support for Arrentes living in the Alice Springs region is the Arrente Council: it assists families in obtaining grants from the government of the Northern Territory; it provides transport between the town and the rural areas where the communities live. It has set up a public works department which carries out contracts for scrub clearance along roads, maintenance of footpaths, maintenance of urban pavements and parks, and the cutting and sale of wood for heating purposes. These activities also come under the CDEP.
119. Also in Alice Springs, the Central Australian Aboriginal Congress has for 25 years been engaged in the improvement of Aboriginal health: in its clinic, 10 doctors, a nurse and 9 auxiliary staff provide general and specialized medical care (dentistry, orthopaedics, ophthalmology, ear, nose and throat care for children). The Central Australian Aboriginal Legal Service provides assistance for Aboriginals taking legal action; it was set up to deal with the problem of the large numbers of Aboriginals in Australian prisons and to enable them to be better represented in a judicial system which is different from their own traditional system and uses English, which most of the accused do not understand. This service intervenes in civil and criminal cases, providing interpretation services and lawyers.
120. In the field of education, the Special Rapporteur learned about the activities of the Alice Springs Aboriginal Development Institute, which was established in 1969 and now has the status of a university institute attached to La Trobe University in the State of Victoria. The Institute devotes itself to the high level training of Aboriginals, giving due weight to the requirements of Aboriginal culture and non-Aboriginal values (the training schedule takes account of traditional ceremonies in which students are required to participate). It trains teachers, educators, publishers, social assistants, managers, entrepreneurs and interpreters. Some of the Institute’s courses are aimed at the personality development of Aboriginals and focus on persons suffering the effects of racial discrimination; other courses, such as the Aboriginal leadership programme, are aimed at providing political training, teaching Aboriginals to negotiate, supporting their communities and designing development projects. In the year 2000, the Institute trained 600 students. Despite its achievements, the Institute’s leaders consider that it does not receive sufficient financial support from the Northern Territory government because of its desire for autonomy and its pro-Aboriginal approach. Thus credits have still not been granted by the government for the extension and modernization of the Institute, a project which was submitted in 1994 and approved by the federal Department of Education, Training and Youth Affairs. This project will enable the Institute to become an Aboriginal university with several departments.
121. Organizations such as the Stolen Generation Consultation Project provide legal and psychological support for victims of the child abduction policy practised by the Commonwealth Government up to 1970. The Special Rapporteur attended a meeting of this organization in Alice Springs on 2 May and heard particularly moving testimony by a number of people in their seventies who were searching for their origins.
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132. The Special Rapporteur notes that substantial efforts are being made by the Australian Government to end racism and racial discrimination. The programmes aimed at improving the living conditions of the Indigenous peoples exist, even if they have not yet succeeded in producing the desired results. Recognition of ethnic diversity and the promotion of inter-ethnic harmony undoubtedly constitute an ideal policy for consolidating the Australian nation, provided it does not waver under the influence of electoral considerations. In addition, the question of reconciliation with the Aboriginal peoples remains outstanding, because it affects the foundations of the Australian State and conflicting cultural values.
133. For the Aboriginals, despite the democratic foundations of the Australian State and its desire to incorporate all its ethnic components on an egalitarian basis, this State is a manifestation of colonization whose consequences remain to this day, notably through the limitation of their land rights, the tragedy of the abducted children, cultural clashes and highly precarious living conditions outside the wealth of the majority of Australians. In their view, the resolution of conflicts is dependent on negotiation on equal terms between Australia’s governors and those who originally possessed the continent, the eminent owners of the Australian lands, of which they have been dispossessed, particular account being taken of their indissoluble links with the land. The land question remains crucial and is the key to the Australian problem. The Commonwealth Government and the dominant political forces mainly take a forward-looking approach which, while envisaging the possibilities of remedying the consequences of past actions, wishes to reduce their effects on the building of a new nation. There is undoubtedly a medium term character in the positions displayed by the various protagonists, and the Australian people has on many occasion succeeded in finding the catalysts for dialogue in order to restore confidence and ensure peaceful coexistence.
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135. The following recommendations are therefore prompted by a desire to pave the way for a coming-together of the various protagonists:
(1) The policy of multiculturalism should be widely discussed and defined by a broad consensus. In order to reduce if not eliminate the superiority and inferiority complexes which underlie relations between the Aboriginals and the mainly English-speaking heirs of European culture, the policy should be based on recognition of the right to difference and to cultural identity, with broad communication between one culture and another. Inspiration should be drawn from UNESCO’s declarations and programmes on cultural identity, cultural diversity and multiculturalism; thus, through education, there will be a breakthrough in the present situation, which is represented by a so-called multiculturalism policy when in fact the various communities and peoples lead parallel lives while continuing to ignore one another. The Special Rapporteur therefore recommends that the Australian Government should review its policy of multiculturalism, in order to turn it into a channel for the dynamic and harmonious transformation of national society, through education at all levels;
(2) The process of reconciliation should be given fresh impetus, taking greater account of the positions of the representatives of the Indigenous peoples;
(3) The Native Title Act should be amended in the light of the proposals already made by the Aboriginals in order to enable them to extricate themselves from the extreme poverty afflicting them in their daily lives;
(4) Since sport, and Australian football in particular, are activities which bring the various components of the Australian population together, and are a potential vehicle for tolerance and respect between individuals, the Special Rapporteur recommends that the Australian Football Association should initiate a broad campaign against racism and racial discrimination aimed at spectators. This campaign might be modelled on the ‘Let’s kick racism out of football’ campaign initiated in the United Kingdom in 1993 by the Commission for Racial Equality and the Professional Footballers’ Association;
(5) Subsidies should be made available to the Alice Springs Aboriginal Development Institute so that the university can be built;
(6) The state and territory legislation on the recognition of qualifications should be uniform, and diplomas issued by more overseas universities should be recognized;
(7) The Australian Government should accede to the Convention on the Elimination of All Forms of Discrimination against Women;
(8) The government of the State of Queensland should accelerate compensation procedures for Aboriginals and Torres Strait Islanders whose wages have been withheld since 1897, through the implementation of the measures for the protection of these peoples;
(9) The Australian Government is urgently requested to find a humane solution to the question of the ‘stolen generation’, whose situation is psychologically and socially blocked and desperate;
(10) Lastly, the Special Rapporteur would like to recommend to the Australian authorities that they continue, improve and intensify the efforts already being made to combat racism and racial discrimination against the Aboriginal peoples, in particular by attacking their extreme poverty.??
[1] M Neutze, W Sanders, and G Jones ‘Public expenditure on service for Indigenous people — education, employment, health and housing’ Discussion Paper 24 The Australian Institute Canberra 1999.
[2] Ibid p xiii.
[3] For a fuller understanding of the Native Title Act see CERD/C/4/Add.2, CERD/C/SR.1324, CERD/C/SR/1393 and CERD/C/304/Add.101.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2002/54.html