Editors --- "Concluding Observations of the Committee on the Elimination of Racial Discrimination: Australia - Digest" [2005] AUIndigLawRpr 37; (2005) 9(2) Australian Indigenous Law Reporter 117

International Developments

Concluding Observations of the Committee on the Elimination of Racial Discrimination



Australia

Consideration of Reports Submitted by States Parties Under Article 9 of the Convention

66th Session of the Committee on the Elimination of Racial Discrimination

Document No CERD/C/AUS/CO/14

21 February–11 March 2005

1. The Committee considered the 13th and 14th periodic reports of Australia, respectively due in 2000 and 2002, submitted as one document (CERD/C/428/Add 2), at its 1685th and 1686th meetings (CERD/C/SR/1685 and 1686), held on 1 and 2 March 2005. At its 1699th meeting, held on 10 March 2005, it adopted the following concluding observations.

A Introduction

2. The Committee welcomes the report submitted by the State party, which mainly focuses on issues raised in the Committee’s previous concluding observations, as well as the additional oral information provided by the delegation.

B Positive Aspects

3. The Committee notes with satisfaction that serious acts of racial hatred or incitement to racial hatred are criminal offences in most Australian States and Territories. It particularly welcomes, in this regard, legislative developments in Victoria and Queensland.

4. The Committee notes with satisfaction that significant progress has been achieved in the enjoyment of economic, social and cultural rights by the indigenous peoples. It welcomes the commitment of all Australian governments to work together on this issue through the Council of Australian Governments, as well as the adoption of a national strategy on indigenous family violence.

5. The Committee notes with great interest the diversionary and preventative programmes aimed at reducing the number of indigenous juveniles entering the criminal justice system, as well as the development of culturally sensitive procedures and practices among the police and the judiciary.

6. The Committee welcomes the abrogation of mandatory sentencing provisions in the Northern Territory.

7. The Committee welcomes the adoption of a Charter of Public Service in a Culturally Diverse Society to ensure that government services are provided in a way that is sensitive to the language and cultural needs of all Australians.

8. The Commission welcomes the numerous human rights education programmes developed by the Human Rights and Equal Opportunity Commission (‘HREOC’).

C Concerns and Recommendations

9. The Committee, while noting the explanations provided by the delegation, reiterates its concern about the absence of any entrenched guarantee against racial discrimination that would override the law of the Commonwealth (article 2).

The Committee recommends to the State party that it work towards the inclusion of an entrenched guarantee against racial discrimination in its domestic law.

10. The Committee notes that the Australian Human Rights Commission Legislation Bill 2003 reforming the HREOC has lapsed in Parliament, but that the State party remains committed to pursue the reform of the Commission. It notes the concerns expressed by the HREOC that some aspects of the reform could significantly undermine its integrity, independence and efficiency (article 2).

The Committee notes the importance given by the State party to the HREOC in monitoring Australia’s compliance with the provisions of the Convention and recommends that it take fully into account the comments expressed by the HREOC on the proposed reform, and that the integrity, independence and efficiency of the Commission be fully preserved and respected.

11. The Committee is concerned by the abolition of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’), the main policy-making body in Aboriginal affairs consisting of elected indigenous representatives. It is concerned that the establishment of a board of appointed experts to advise the Government on indigenous peoples issues, as well as the transfer of most programmes previously provided by ATSIC and Aboriginal and Torres Strait Islander Service to government departments, will reduce participation of indigenous peoples in decision making and thus alter the State party’s capacity to address the full range of issues relating to indigenous peoples (articles 2 and 5).

The Committee recommends that the State party take decisions directly relating to the rights and interests of indigenous peoples with their informed consent, as stated in its General Recommendation 23 (1997). The Committee recommends that the State party may reconsider the withdrawal of existing guarantees for the effective representative participation of indigenous peoples in the conduct of public affairs as well as in decision and policy-making relating to their rights and interests.

12. The Committee notes that Australia has not withdrawn its reservation to article 4(a) of the Convention. It notes with concern that the Commonwealth, the State of Tasmania and the Northern Territory have no legislation criminalizing serious acts of racial hatred or incitement to racial hatred.

The Committee reiterates its recommendation that the State party make efforts to adopt appropriate legislation with a view to giving full effect to the provisions of, and to withdrawing its reservation to, article 4(a) of the Convention. The Committee wishes to receive information on complaints, prosecutions and sentences regarding serious acts of racial hatred or incitement to racial hatred in States and Territories the legislation of which specifies such offences.

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15. The Committee notes with concern that it has proved difficult for complainants, under the Racial Discrimination Act, to establish racial discrimination in the absence of direct evidence, and that no cases of racial discrimination, as distinct from racial hatred, have been successfully litigated in the Federal courts since 2001 (articles 4 and 6).

The Committee, having taken note of the explanations provided by the delegation, invites the State party to envisage regulating the burden of proof in civil proceedings involving racial discrimination so that once an alleged victim has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for differential treatment.

16. The Committee notes with concern the persistence of diverging perceptions between governmental authorities and indigenous peoples and others on the compatibility of the 1998 amendments to the Native Title Act with the Convention. The Committee reiterates its view that the Mabo case and the 1993 Native Title Act constituted a significant development in the recognition of indigenous peoples’ rights, but that the 1998 amendments wind back some of the protections previously offered to indigenous peoples, and provide legal certainty for government and third parties at the expense of indigenous title. The Committee stresses in this regard that the use by the State party of a margin of appreciation in order to strike a balance between existing interests is limited by its obligations under the Convention (article 5).

The Committee recommends that the State party should not adopt measures withdrawing existing guarantees of indigenous rights and that it should make all efforts to seek the informed consent of indigenous peoples before adopting decisions relating to their rights to land. It further recommends that the State party reopen discussions with indigenous peoples with a view to discussing possible amendments to the Native Title Act and finding solutions acceptable to all.

17. The Committee is concerned about information according to which proof of continuous observance and acknowledgement of the laws and customs of indigenous peoples since the British acquisition of sovereignty over Australia is required to establish elements in the statutory definition of native title under the Native Title Act. The high standard of proof required is reported to have the consequence that many indigenous peoples are unable to obtain recognition of their relationship with their traditional lands (article 5).

The Committee wishes to receive more information on this issue, including on the number of claims that have been rejected because of the requirement of this high standard of proof. It recommends that the State party review the requirement of such a high standard of proof, bearing in mind the nature of the relationship of indigenous peoples to their land.

18. The Committee notes that 51 determinations of Native Title have been made since 1998, and that 37 of them have confirmed the existence of Native Title. It also acknowledges the provisions introduced by the 1998 amendments to the Native Title Act regarding Indigenous Land Use Agreements, as well as the creation of the Indigenous Land Fund in 1995 to purchase land for indigenous Australians unable to benefit from recognition of native title (article 5).

The Committee wishes to receive more detailed information, including statistical data, on the extent to which such arrangements respond to indigenous claims over land. Information on achievements at State and Territories level may also be provided.

19. While noting the improvement in the enjoyment, by the indigenous peoples, of their economic, social and cultural rights, the Committee is concerned over the wide gap that still exists between the indigenous peoples and others, in particular in the area of employment, housing, health, education and income (article 5).

The Committee recommends that the State party intensify its efforts in order to achieve equality in the enjoyment of rights and allocate adequate resources to programmes aimed at the eradication of disparities. It recommends in particular that decisive steps be taken in order to ensure that a sufficient number of health professionals provide services to indigenous peoples, and that the State party set up benchmarks for monitoring progress in key areas of indigenous disadvantage.

20. The Committee, having taken note of the explanations provided by the State party, reiterates its concern about provisions for mandatory sentencing in the Criminal Code of Western Australia. The Committee is concerned by reports of the disparate impact of this law on indigenous groups, and reminds the State party that the Convention prohibits direct as well as indirect discrimination (article 5).

The Committee recommends that the State party take appropriate measures to achieve abrogation of such legislation, following the example of the Northern Territory. The Committee further stresses the role and responsibility of the Federal government in this regard under the Convention.

21. The Committee remains concerned about the striking over-representation of indigenous people in prisons as well as the percentage of indigenous deaths in custody. It has also been reported that indigenous women constitute the fastest growing prison population (article 5).

The Committee recommends that the State party increase its efforts to remedy this situation. It wishes to receive more information about the implementation of the recommendations of the Royal Commission on Aboriginal Deaths in Custody.

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25. The Committee, while acknowledging the efforts undertaken by the State party to achieve reconciliation, and having taken note of the 1999 Motion of Reconciliation, is concerned about reports that the State party has rejected most of the recommendations adopted by the Council for Aboriginal Reconciliation in 2000 (article 6).

The Committee encourages the State party to increase its efforts with a view to ensuring that a meaningful reconciliation is achieved and accepted by the indigenous peoples and the population at large. It reiterates its recommendation that the State party consider the need to address appropriately the harm inflicted by the forced removal of indigenous children.

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The full text of these observations, and the text of the International Convention on the Elimination of all forms of Racial Discrimination, are available online at <http://www.ohchr.org/english/bodies/cerd/> .