Marks, Greg --- "Human Rights Special - Australia, the Committee on the Elimination of All Forms of Racial Discrimination and Indigenous Rights" [2004] IndigLawB 72; (2004) 6(7) Indigenous Law Bulletin 11
Australia, the Committee on the Elimination of All Forms of Racial Discrimination and Indigenous Rights
by Greg Marks
Introduction
The Committee on the Elimination of All Forms of Racial Discrimination (‘the CERD Committee’ or ‘the Committee’) will next meet in Geneva from 21 February − 11 March 2005. The agenda includes examination of Australia’s 13th and 14th Periodic Reports provided in accordance with Article 9(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (‘the CERD Convention’ or ‘the Convention’),[1] to which Australia is a party. Australia last appeared before the Committee in March 2000 when Australia’s 10th, 11th and 12th Periodic Reports were considered. At that time, the Committee also discussed issues involving Australia’s actions in the period from 1998 to 2000, particularly in regard to native title.
Australia has submitted to the Committee its combined 13th and 14th reports, covering the period 1 July 1998 to 30 June 2002.[2] In doing so, the Minister for Foreign Affairs, Mr Downer, noted that ‘Australia takes its obligations under the Convention seriously and is committed to the effective operation of both the Convention and the Committee’.[3]
The CERD Convention
The CERD Convention was adopted by the United Nations (‘UN’) General Assembly in 1965 and came into force in 1969. From that time it was legally binding on all states that had ratified it. The Convention was one of the earliest and most widely ratified of the UN human rights treaties. It was developed in response to mounting international concern that discrimination on the grounds of race, colour, descent or national or ethnic origin is fundamentally unjust and a major cause of conflict leading to untold suffering and loss of life.[4]
The importance of the Convention cannot be overestimated. The principle of non-discrimination on the basis of race is one of the foundational principles of the UN; it is contained in the UN Charter[5] and the 1948 Universal Declaration of Human Rights.[6] Non-discrimination on the grounds of race is generally considered to have become a fundamental norm of customary international law (ius cogens) from which no derogation is permitted.[7]
The CERD Committee
The UN General Assembly established the CERD Committee to monitor actions by states parties in fulfilling their obligations under the Convention. As former Secretary to the CERD Committee, Michael O’Flaherty, has said, ‘[a]t the heart of the supervision system is the Committee on the Elimination of Racial Discrimination’.[8] The Committee is comprised of 18 independent experts, who, in the words of the Convention, are to be people of ‘high moral standing and acknowledged impartiality’.[9]
The CERD Committee examines individual complaints and Periodic Reports by states parties. The Committee also issues Decisions and Concluding Observations. From time to time, General Comments are issued to assist states in interpretation of the Convention and preparation of reports.[10]
The CERD Committee does not have the judicial status or functions of an international tribunal or court such as the International Court of Justice. Nevertheless, Michael Banton, a former member, has pointed out, ‘the Committee has, from the time of its first meeting in 1970, sought to act judicially, arguably with increasing success’.[11] The Committee’s body of Decisions, Concluding Observations and General Comments amount to a substantial jurisprudence that is both authoritative and provides detailed guidance to states in fulfilling their obligations.
Australia and the CERD Committee
Until 1998, Australia’s relationship with the CERD Committee had been generally positive. In 1994, the Committee observed, ‘[t]he State party is commended for its regularity in fulfilling its reporting obligations and for the seriousness with which it takes its obligations’.[12] Whilst noting its concerns with the situation of Indigenous peoples in Australia, the Committee nevertheless expressed its satisfaction with, ‘the numerous measures taken in Australia, since the consideration of the previous report, to improve relations between all groups and in particular the situation of Aboriginal people.’[13]
However, in August 1998 concern over reported developments in Australia regarding Indigenous policy led the CERD Committee to seek a response from Australia under its early warning and urgent action procedures. These procedures had been implemented in 1993 to allow the Committee to examine situations where it considered there may be particular cause for concern.[14]
Australia was required to provide the Committee with information regarding changes to the Native Title Act 1993 (Cth) (‘the Act’), to policy in relation to Aboriginal land rights, and to the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner.[15] The Committee wished to examine the compatibility of any such changes with Australia's obligations under the CERD Convention at its 54th session in March 1999.[16]
The CERD Committee’s decision of March 1999 raised concerns about the compatibility of the Act as amended[17] with Australia’s obligations under the Convention.[18] These concerns have been reaffirmed at two subsequent sessions of the Committee,[19] and can be presumed to still be on the Committee agenda. O’Flaherty observes that ‘[o]nce a State is placed under the [early warning and urgent action] procedure it remains indefinitely on the agenda of the Committee and may receive attention at forthcoming sessions’.[20]
In its March 1999 decision the Committee observed that:
While the original Native Title Act recognises and seeks to protect Indigenous title, provisions that extinguish or impair the exercise of Indigenous title rights and interests pervade the amended Act.[21]
The Committee identified specific provisions that it said discriminated against Indigenous native title holders under the newly amended Act.[22] The lack of effective participation by Indigenous communities in the formulation of the amendments also raised concerns with respect to Australia’s compliance.[23] The Committee drew attention to its General Recommendation XXIII (Concerning Indigenous Peoples)[24] which states that no decisions directly relating to the rights of Indigenous peoples are to be taken without their informed consent.
The Committee urged the Australian Government, in conformity with General Recommendation XXIII, to suspend implementation of the 1998 amendments and to reopen discussions with the representatives of the Aboriginal and Torres Strait Islander peoples.[25] The Government, however, expressed its disagreement with these conclusions. Attorney-General, Darryl Williams, criticised the CERD Committee’s approach as unbalanced and as not having referred to the submissions made by the Government.[26]
The CERD Committee 64TH Session: Geneva, February/March 2005
The Australian Government’s Periodic Report to the 64th session of the CERD Committee contains a detailed rebuttal of the Committee’s 1999 and 2000 findings, outlined above, in respect of native title. However, the Periodic Report only deals with developments up to the end of the reporting period, that is, to 30 June 2002. Since then a number of High Court decisions have been detrimental to the recognition and protection of the native title rights and interests of Indigenous Australians.[27] A number of the 1998 amendments and subsequent court decisions where, in cognisance of the historical dispossession and expropriation of the lands of Indigenous peoples in this country, the protection provided to native title falls short of our international obligations.
The Government’s Periodic Report refers to the majority findings of an Inquiry by a Parliamentary Joint Committee (‘PJC’) in 2000 into the compatibility of the amended Act with Australia’s obligations under the CERD Convention.[28] The PJC Report takes issue with the Committee’s views on the requirement for informed consent and argues that there is a ‘margin of appreciation’ in interpreting the provisions of the Convention. The Government endorsed these findings in October 2001.[29] It should be noted that the non-Government members of the PJC concluded that the amended Act is in breach of our Convention obligations.[30]
Whether the CERD Committee will be persuaded by the Government’s arguments remains to be seen. All that can be said at this juncture is that there are outstanding findings by the Committee that Australia stands in breach of its obligations in respect of native title. It will, of course, be looking at Australia’s performance across the full range of legislation, policy and practice. It would appear from the Australian Periodic Report that native title will remain an important item on the agenda at next year’s meeting in Geneva.
Greg Marks is a Canberra-based consultant and researcher, whose principal areas of interest are international law, Indigenous rights and native title.
[1] International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).
[2] Commonwealth, Combined Thirteenth and Fourteenth Periodic Report of the Government of Australia under Article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination (2003) <www.dfat.gov.au/hr/reports/cerd/cerd_report.pdf> at 24 November 2004.
[3] The Hon Alexander Downer MP, ‘The Convention on the Elimination of All Forms of Racial Discrimination (CERD) – Periodic Report’ (Press Release, 25 November 2003) <www.foreignminister.gov.au/releases/2003/index.html> at 24 November 2004.
[4] Office of the High Commissioner for Human Rights, Fact Sheet No. 12 – The Committee on the Elimination of Racial Discrimination (1991) <www.unhchr.ch/html/menu6/2/fs12.htm#racial> at 24 November 2004.
[5] Charter of the United Nations, Article 1(3).
[6] Universal Declaration of Human Rights, 71, UN Doc A/810, Article 2.
[7] See Sam Blay, Ryszard Piotrowicz and B Martin Tsamenyi (eds), Public International Law – An Australian Perspective (1999) 69 and Sarah Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (1996) 14 – 15.
[8] Michael O’Flaherty, ‘Substantive Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination’ in Sarah Pritchard, above n7, 163.
[9] CERD, above n1, Article 8 (1).
[10] Ibid, Article 14. This is an optional provision. Individuals can only bring complaints to the Committee if they are subject to the jurisdiction of States that have made the required declaration. Australia made such a declaration in 1993.
[11] Michael Banton, ‘Decision-taking in the Committee on the Elimination of Racial Discrimination’ in Philip Alston and James Crawford (eds), The Future of UN Human Rights Treaty Monitoring, (2000), 56.
[12] Committee on the Elimination of Racial Discrimination, Report of the Committee on Racial Discrimination, [536], UN Doc A/49/18 (1994).
[13]Ibid [538].
[14] CERD, Annual Report of the Committee on the Elimination of Racial Discrimination, [15-19] and annexure 3, UN Doc A/48/18 (1993).
[15] Committee on the Elimination of Racial Discrimination, Decision 1(53) Concerning Australia, 11 August 1998, UN Doc CERD/C/53/Misc.17/Rev.2.
[16] Ibid.
[17] The Native Title (Amendment) Act 1998 (Cth).
[18] CERD, Decision 2 (54) on Australia – Concluding Observations/Comments,18 March 1999, [6], UN Doc CERD/C/54/MISC.40/rev.2.
[19] In August 1999: Decision 2 (55) on Australia: Australia 16/08/99, UN Doc. A/54/18; and
in March 2000: CERD, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia., 24/03/2000, UN Doc.CERD/C/304/Add.101, 19 April 2000.
[20] O’Flaherty, above n8, 160.
[21] CERD, above n18, [6].
[22] Ibid, [7].
[23] Ibid, [9] referring to Article 5 (c) of the Convention.
[24] CERD, General Recommendation XXIII – Indigenous Peoples – General Comment 1997.
[25] Ibid, [10].
[26] Darryl Williams, ‘United Nations Committee Misunderstands and Misrepresents Australia’ (Press Release, 19 March 1999).
[27] Western Australia v Ward (2002) 191 ALR 1; Wilson v Anderson (2002) 190 ALR 313; Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 194 ALR 538.
[28] Sixteenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, CERD and the Native Title Act 1998, June 2000 (‘PJC Report’).
[29] Department of Foreign Affairs and Trade, above n2, [128].
[30] Ibid, ‘Report of the Non-Government Members of the PJC’, 83.