Celermajer, Dani --- "Overdue and Understated: Australias ICCPR Report" [1996] HRightsDef 22; (1996) Human Rights Defender

Overdue and Understated: Australias Draft Third ICCPR Report

By Dani Celermajer

Approaching mid 1996, Australia is still to submit its Third Periodic Report under article 40 of the International Covenant on Civil and Political Rights, now almost four years overdue. Article 40 requires State parties to submit to the Human Rights Committee reports on the measures they have adopted to give effect to the rights recognised herein and on the progress made in the enjoyment of those rights.

In Australia, the Commonwealth Attorney-Generals Department is responsible for the preparation of reports to the Human Rights Committee. In mid-1995 the Department distributed to selected agencies, including the Office of the Aboriginal and Torres Strait Islander Commissioner, a final draft for internal comment.

The methodology for the preparation of the draft Third Report consisted of cutting and pasting the contributions of Government departments and agencies. There was minimal consultation with non-governmental organisations, and little attempt to evaluate the material submitted. The highly disappointing Third Report amounts to little more than a perfunctory inventory of inquiries, policies and programmes.

While the Government report is bound to provide the official version, it could well be expected to present material in a manner which meets the reporting guidelines. The Covenant itself requires that: reports shall indicate the factors and difficulties, if any, affecting the implementation of the present Covenant. It would be hardly over-stating the case to call Australias Third Report a whitewash. The Government clearly regards the reporting process as an exercise of little value.

The Human Rights Committee does not take a confrontative position or reprimand countries for their failures. Instead, it engages in constructive dialogue with States in order to create a context for moving towards human rights improv-ements. The Australian Government could regard its reporting oblig-ations as an opportunity to evaluate its performance and to draw on the expertise of Human Rights Committee to shape future policy. The draft Third Report does point to some areas of difficulty. Much, however, is left untold. Were the Committees sole source of inform-ation the Governments Report, it would be justified in drawing un-realistically positive conclusions about the enjoyment of human rights by Indigenous Australians and Government actions to address problems.

Getting Accurate Information to Treaty Bodies: The Role of NGOs

How can we ensure that Australians, in particular Australians whose rights under international inst-ruments are not being upheld, can benefit from the reporting process? How can we ensure that the superv-isory bodies receive adequate, accurate and candid information?

The role of independent statutory authorities such as the Human Rights and Equal Opportunity Commission (HREOC) with respect to such reports remains ill defined, both domestically and at the UN. Is HREOC an arm of Government or should it participate as an independent and critical/evaluative voice? While it is standard practice for HREOC to receive draft reports for comment, inclusion or exclusion of its comments is at the discretion of the Attorney Generals Department.

In 1994, the Aboriginal and Torres Strait Islander Social Justice Commissioner, then acting Race Discrimination Commissioner, Mick Dodson, together with then Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, appeared before the Committee on the Elimination of Racial Discrimination when it examined Australias Ninth Periodic Report. The Committee expressed its appreciation for the opportunity to have access to different perspectives on Australias performance and recommended this practice as a model for the examination of other countries reports.

The Australian Government has not generally supported the involvement of NGOs in the preparation of its reports to treaty bodies. Poor consultative mechanisms, lack of publicity, limited distribution of drafts and lack of resources contribute to the functional exclusion of NGOs. More generally, the government has made little effort to inform NGOs about international reporting procedures so that they can seek to submit information to treaty bodies. How many NGOs know that there are reporting obligations, let alone when reports are due?

For some years, a number of Aboriginal and Torres Strait Islander organisations have seen the value of international work. Many have attended the Working Group on Indigenous Populations. However, activity has more or less begun and ended there. Only recently has information on other UN procedures and bodies been made available to Aboriginal and Torres Strait Islander people, largely through the efforts of NGOs and a number of individuals.

In the absence of easily accessible independent sources of information, human rights supervisory bodies are not in a position to inform themselves of the real situation in a country. The Human Rights Committee meets for three, three-week sessions each year; it is serviced by a tiny secretariat; and in any one session will be required to examine half a dozen or so country reports, consider communications under the First Optional Protocol, elaborate General Comments and conduct all its other business.

The Role and Response of the Social Justice Commissioner

Upon deliberation, the Social Justice Commissioner resolved to produce a critical commentary on Australias draft Third Report. This was submitted to the Attorney Generals Department in the hope that it will influence the content and form of the final draft.

The Commissioner notes that the draft Third Report is an uncritical compilation of information, rather than a focussed analysis of developments directly relevant to the prov-isions of the Covenant. The Report, he says, should provide a frank and detailed picture of the differences programmes and policies are making in the lives of Aboriginal and Torres Strait Islander peoples. There should be no reason why Australias reports do not provide coherent, readable and enlightening accounts of the tasks to which Australia has committed itself through ratification of international human rights inst-ruments. Reports which candidly acknowledge difficulties, false starts and failures, as well as, where appropriate, positive outcomes, are more likely to enhance Australias international reputation than high sounding statements which gloss over the facts of the lives of Aboriginal and Torres Strait Islander peoples.

The Social Justice Commissioner draws attention to the fact that although Australia has twice appeared before the Human Rights Committee, the draft Third Report offers no evaluation of progress made in securing implementation of the ICCPR. It makes no reference to questions raised by the Committee during the examination of earlier reports and provides no additional information in relation to questions not previously answered. The Social Justice Commissioner points out that despite the adoption of new prog-rammes and policies and increased expenditure in recent years, the Indigenous peoples of Australia continue to be arrested, imprisoned and die in custody at an unacceptable rate and to contend with debilitating disadvantage in virtually every area affecting their lives. Australias reports should provide an accurate picture of difficulties and the outcomes of strategies adopted to achieve recognition of the rights of Aboriginal and Torres Strait Islander peoples.

With respect to the right of all peoples to self-determination (article 1), the Commissioner notes that Aboriginal and Torres Strait Islander peoples are distinct peoples in the sense of article 1. However, the Reports narrow description of self-determination does not adequately represent the meaning and signif-icance of this right to Indigenous peoples. According to the Report, self-determination means allowing indigenous people the right to determine for themselves the extent to which they want to be subject to the dominant culture and supporting the indigenous people in exercising that right.

In relation to policing, prison and criminal justice matters (articles 6,7 9 and 10), the Commissioner draws attention to the Reports omission to adequately or honestly report on failure of prison conditions and policing practices to meet international standards, as articulated in the Standard Minimum Rules for Prisoners and the Beijing Ruleson Juvenile Justice. The Commissioner points out that most human rights supervisory bodies have noted their wish to receive, together with the usual narrative description, statistical information to enhance the clarity and comprehensiveness of reports. The Report fails to provide up to date statistical information on arrest rates or prison populations. The Commisisoner also notes that although extensive reference is made under these articles to the Royal Commission into Aboriginal Deaths in Custody, there is no mention of the well documented fact that many of the Royal Commission recommendations have not been implemented.

Similarly, the sections of the Report which discuss Indigenous health (articles 6 and 27) make extensive reference to the National Aboriginal Health Strategy (NAHS), yet no mention of the finding of the Evaluation Committee established by the Commonwealth to evaluate the implementation of the NAHS that the NAHS was never effectively implemented.

The Reports discussion of the implementation of article 27 (right of minorities to practice their cultures and religions, and speak their languages) devotes significant space to the Australian Law Reform Commissions Report on the Recognition of Aboriginal Customary Law. The Commissioner points out that the ALRCs Report was discussed extensively in Australias Second Report to the Human Rights Committee and that it would thus be appropriate for the Third Report to address in detail the implementation of the ALRCs recommendations. The Third Report boldly asserts that both Federal and State Governments have attempted to implement the ALRC recommendations and to accommodate developments occurring since the ALRC report was produced. Clearly, this claim cannot be supported. On the contrary, the failure to respond to, let alone implement the ALRC s recommendations has been a source of ongoing contention.

Where To From Here?

Should the final Report submitted to the Human Rights Committee not reflect the Social Justice Commissioners critical and corrective comments, he intends to submit an independent report. It might be worthwhile for NGOs to keep an eye on the timing for the Committees consideration of Australias Third Report and to submit information to the Secretary of the Human Rights Committee for distribution to Committee members.

The Department of Foreign Affairs and Trade is currently preparing Australias most recent report under the International Covenant on Economic, Social and Cultural Rights (ICESCR), and has indicated its intention to consult with NGOs in the latter half of 1996. Like the ICCPR, ICESCR contains many provisions directly relevant to Indigenous peoples, in particular those relating to health, education, housing and social services.

Australian, and in particular Indigenous, NGOs should not lose sight of the value which international monitoring can have for promoting and securing the enjoyment of human rights. The UN may not be the flavour of the month in the current climate of hostility to politcal correctness but Australias international human rights obligations stand. We should endeavour to maximise their potential.

Dani Celermajer works in the office of the Aboriginal and Torres Strait Islander Social Justice Commissioner.