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Collings, Neva --- "Australian Government Exposes Itself Before the UN" [2000] IndigLawB 73; (2000) 5(4) Indigenous Law Bulletin 11

Australian Government Exposes Itself Before the UN

By Neva Collings

This year the spotlight has been on Australia with the Olympic Games and a ‘warts and all’ exposé of Australia’s compliance with human rights standards by a raft of treaty monitoring committees.

It has been very interesting observing events from outside Australia during the Games: the showcase of Indigenous culture at the opening ceremony, the general popularity of ‘Aboriginal Australia’ in conversation, shop fronts and on T-shirts. All the while, behind the façade of sporting prowess and prosperity, state governments slide native title legislation through Parliament, mandatory sentencing laws thwart judicial discretion and impact disproportionately upon the Aboriginal populations in those jurisdictions and heritage protection legislation fails to achieve its purpose. It is this reality that has been exposed and scrutinised by a range of UN human rights monitoring committees and working groups.

UN Treaty Body Mandates

In addition to the annual meeting of the Working Group on Indigenous Populations (‘the WGIP’) and the Intersessional Working Group elaborating the Draft Declaration for the Rights of Indigenous Peoples, this year three United Nations treaty monitoring committees have examined Australia’s periodic reports: the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, and the Committee for the Convention Against Torture and All Forms of Cruel, Inhuman and Degrading Treatment. The latter will not be discussed here. Member states are required to report to these committees every 4-5 years on their own implementation and observation of the human rights declared and protected by the treaty.

The reporting requirement ensures that information is provided to the treaty monitoring committees, comprised of government nominated individuals acting in their expert capacities, to provide guidance to the parties to the conventions on implementing the rights and obligations enshrined in them. The objective is to ensure realisation of human rights standards on the ground. There is little point in signing a document with no accountability nor responsibility to see it carried through. And the fact the Australian government has tabled its reports demonstrates the importance of this.

Some Committees have a mechanism whereby information can be requested from governments outside the reporting cycle, such as the Convention on the Elimination of All forms of Racial Discrimination (‘CERD’) Committee’s early warning/urgent procedure, under which it called the Australian government to account in 1998 for its racist amendments to the Native Title Act 1993 (Cth).[1] The CERD Committee has maintained pressure on the Australian government to rescind the amendments ever since. The World Heritage Centre of UNESCO has similarly maintained pressure to respect the cultural elements of the ‘heritage’ classification of Kakadu World Heritage Park and to this end sought to mediate and guide the dispute surrounding the proposed Jabiluka mine.

There are also special meetings of United Nations agencies that adopt ‘recommendations’ and ‘standards’ concerning their general mandate and where Aboriginal and Torres Strait Islander issues can be put on the agenda. Special meetings relevant to Australia include the Economic, Social and Cultural Rights Committee’s special session on 27 November 2000 to consider traditional knowledge and intellectual property and the Committee on the Rights of the Child’s general discussion on State Violence on 22 September 2000. NGOs can have access to these meetings and are encouraged to participate both in writing and in person. ATSIC submitted a paper on Indigenous traditional knowledge that was translated into the official UN languages.

What is the Point of the Reporting?

It might be argued that the United Nations and international human rights monitoring processes are self-serving. But at a time when domestic redress is limited and where lobbying is met with limited or no acknowledgement by government, international avenues are an important way of maintaining domestic awareness of and drawing international attention to breaches and abuses of human rights by state governments.

However, this impact and impetus seems to dissipate once the committees adjourn and adopt their recommendations. The argument of futility re-emerges. The resistance to compliance continues at home and life goes on. But it’s not the end of the road. At one level, the political leverage afforded by international awareness can be likened to the ‘peoples’ movement’ only on a much broader scale through a process of ‘international shaming’.

Finally, in terms of gradual compliance, international law is itself a source of common law and influences the interpretation of legislation and implementation of treaties through a process of osmosis. This was noted by Justice Brennan in Mabo v Queensland (No. 2) where he said:

the common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of common law, especially when international law declares the existence of universal human rights. [2]

Findings of the Committees

Human Rights Committee

The Human Rights Committee (‘the HRC’) oversees and monitors the implementation of the International Covenant on Civil and Political Rights (‘the ICCPR’), adopted by the UN General Assembly in 1966, ratified by Australia in 1976 and scheduled to the Human Rights and Equal Opportunity Act 1985 (Cth). The ICCPR is primarily concerned with peoples’ ability to participate in political and administrative decisions concerning their lives, both as individuals and as collectives.

The Committee meets for nine weeks each year to consider the reports of states parties who have ratified the ICCPR and whose periodic report is due. Three months prior to the meeting, the Australian government is asked to respond to a list of issues. A response to the specific issues is anticipated. This year the HRC met from 17 to 28 July in Geneva, and considered Australia’s third and fourth periodic reports on 20 and 21 July. The HRC’s concluding comments were made public on 31 October. [3]

During the meeting, state representatives introduce country reports and respond to oral and written questions by the HRC’s 18 members who serve in their personal capacity.[4] This year the Australian delegation was headed by the Australian Ambassador of the Permanent Mission based here in Geneva, Mr Les Luck. Mr Bruce Campbell and Rene Leon from Attorney General’s Department, John Van Burden from Department of Prime Minister and Cabinet and three staff members from the Australian Permanent Mission attended.

NGO’s also have an opportunity to bring issues to the attention of the HRC and influence the sorts of questions committee members ask of the government. This year the Aboriginal delegation organised a special lunch-time briefing session the day before Australia’s report was considered, inviting all members of the HRC. Representatives of the Australian government mission also attended.

The following comments and questions of one committee member, Mr Lallah, provides an example of the dialogue that takes place between the HRC and Government:

I don't think I have been as puzzled as I have been in the light of some of the answers given by the delegation. I will give only one example and it will assist me in my approach to concluding comments. Perhaps the delegation could help me.



I heard Mr Campbell say that the rights under Article 27 does (verbatim) not require legislation. About two or three seconds afterwards, this was a little watered down, I understood, by reference....to legislation governing land titles and sacred sites....So, there is some legislation. But the basic point that seems to me to have been missed is that although Article 27 says that people shall not be denied the right in community with others, there is still a right here and this right becomes important because all rights are required to have remedies under Article 23(v) of our Covenant.



If the right under Article 27 had legislative authority, had been legislatively ordained, then people affected in those minorities could have gone to court, could have asked for a remedy and that remedy would have entitled them to have a direct and primary say in what constitutes their culture and traditions and would have enabled the court to make a judgment about the priority, for example, of water skiing over cultural and religious rights.



As I understand, the water skiing is going to continue until alternative sites are found. I would have thought that since this is a Covenant right and water skiing is not as such a Covenant right, then maybe the reverse should have happened......It may very well be that water skiing is related to property rights guaranteed under the constitution. It may very well be. I do not know. But in this case, the court would have had the opportunity of deciding on these priorities, cultural rights of certain minorities guaranteed under the Covenant and property rights not guaranteed under the Covenant but guaranteed elsewhere.

Other members of the HRC queried the absence of a bill of rights, the absence of legislation to implement the ICCPR, and pointed out that Australia is one of few developed countries not to have taken up either or both of these. Under Article 2, it is obligatory to take necessary steps to give effect to the rights under the ICCPR and provide an effective remedy for their violation. In response to the government explanation that amendments to the Constitution to this end had been rejected by the ‘people’ at referendum, the HRC said the Federal government should persist. Given the universality of the standards embodied in the ICCPR, a single failure should not be seen as a final result.

Clearly countries around the world are each different with a unique set of circumstances, and choose how they progress. As long as some attempt at progress is made. Where there is evidence of regression, which has been the experience of Aboriginal and Torres Strait Islander peoples in exercising their civil and political rights guaranteed under the ICCPR, this is taken very seriously by the HRC. Of particular concern were the amendments to heritage protection legislation, the formal shift away from a policy of self determination, mandatory sentencing regimes and the Native Title (Amendment) Act 1993 (Cth).

Economic, Social and Cultural Rights Committee

The Committee on Economic, Social and Cultural Rights (‘the CESCR’), consisting of 18 independent experts, considered Australia’s periodic report on 24th and 25th August this year. Australia’s periodic report was 12 years overdue. On 24 August the CESCR held an extraordinary briefing session during which members of the CESCR can question NGO representatives. A delegation of seven non-government representatives from Australia addressed the committee. Other states parties were represented by up to two representatives such as Sudan and Jordan. A member of the Australian government mission attended the briefing, as well as the private briefing session the day before Australia’s report was considered.

One committee member said he had not heard about the ‘lost generation’ and queried how to define this group. Another member said that in terms of jurisprudence, states parties are not responsible for past acts. There were also queries about how to reconcile traditional practices and lifestyles with the general standard of living expected for Australia.

In its concluding observations, the CESCR said that Australia's indigenous people continued to be disadvantaged in employment, housing, health and education. It also noted that the amendments to the Native Title Act 1993 (Cth) were regressive and had affected the reconciliation process. While not as strong as the CERD Committee’s recommendation that the native title amendment process commence anew, it noted the amendments as a negative development.

Working Group on Indigenous Populations

The Working Group on Indigenous Populations (‘the WGIP’) was established in 1982[5] by a resolution of the Economic and Social Council[6] authorising the Sub-Commission on Human Rights and Minorities to establish a ‘working group’ on indigenous populations. This chain of command, though long-winded, demonstrates the low rank of the WGIP in the UN hierarchy and highlights the significance of the decision of the Economic and Social Council this year to establish a Permanent Forum for Indigenous Populations (see below).

From the outset, the mandate of the WGIP has been concerned with the human rights of Indigenous populations and issues and questions such as the definition of indigenous peoples, land rights, discrimination, and self determination.

At the 18th Working Group on Indigenous Populations this year from 24 -28 July 2000, Palais de Nations, the theme was Indigenous Children and Youth.

Youth representatives from Australia included Mark Yettica-Paulson, Meagan Davis (Foundation for Aboriginal and Islander Research Action (‘FAIRA’)) and Lyndon Ormond-Parker (Gundjehmi Aboriginal Corporation Northern Territory). Also attending were representatives with ‘expertise’ on ‘youth issues’ including Dr Bill Jonas (Aboriginal and Torres Strait Islander Social Justice Commissioner – Human Rights and Equal Opportunity Commission (‘HREOC’)), Ms Robynn Quiggin (HREOC), Neva Collings (FAIRA), Muriel Cadd (Secretariat of the National Aboriginal Islander Child Care (‘SNAICC’)), Frank Guivarra (SNAICC), Alf Bamblett (SNAICC), ATSIC Chairperson Geoff Clark, his executive assistant, Les Malezer, and Brian Stacey of the Native Title Unit.

Mark presented a group intervention along with indigenous youth from other countries. Meagan presented an intervention flagging the issue of mandatory sentencing and her experience as an Indigenous fellow of the UN Office of the High Commissioner for Human Rights. Mark also performed at the cultural ceremony on Thursday morning during the WGIP.

The agenda also provided an opportunity to comment on recent developments, and I delivered an intervention (speech) on recent developments associated with the native title regime.

Permanent Forum for Indigenous Peoples

The decision to establish a United Nations Permanent Forum for Indigenous Peoples was made this year on 31 July. The United Nations Economic and Social Council adopted the resolution by consensus, a rare occurrence in the international community.

The programme of activities for the International Decade of the World's Indigenous People (1995-2004) identified the establishment of the Forum as one of the main objectives of the Decade. The High Commissioner for Human Rights and coordinator of the Decade, Mrs Mary Robinson, welcomed the development:

The permanent forum promises to give indigenous peoples a unique voice within the United Nations system, commensurate with the unique problems which many indigenous people still face, but also with the unique contribution they make to the human rights dialogue, at the local, national and international levels.

The Permanent Forum was first proposed in 1993 at the Vienna World Conference on Human Rights. The formal ‘resolution’ was voiced by Indigenous peoples through the forum of the WGIP, channelled up through the Sub-Commission, through the Commission on Human Rights, and finally to the Economic and Social Council this year for approval.

It is a very significant step forward for indigenous peoples in the international political arena. Indigenous representatives of Member States will, for the first time, participate in a high level forum in the United Nations system. Indigenous peoples have been seeking representation at the international level since first approaching the League of Nations early last century.

The Permanent Forum will be an advisory body to the Economic and Social Council providing expert advice on Indigenous issues, programme development, funds and agencies of the UN. It will seek to raise awareness and promote the integration and coordination of activities relating to indigenous issues within the UN system. Further it will prepare and disseminate information on indigenous issues.

Unlike the WGIP, one of the lowest ranking fora in the UN hierarchy, the Permanent Forum will stand shoulder to shoulder with the Commission on Human Rights, by-passing the Sub-Commission altogether. The Forum will consist of 16 representatives. Eight members are to be nominated by governments and elected by the Council, and eight are to be appointed by the President of the Council following broad consultations with indigenous organisations and groups.

The Permanent Forum will meet for 10 days each year either in either Geneva or New York. The location has not been decided. New York is the headquarters of the Economic and Social Council and the General Assembly, while Geneva is the headquarters for the UN High Commission for Human Rights (‘the UNHCHR’). The UNHCHR is also the secretariat for the Working Group on Indigenous Populations and the intersessional Working Group for the Draft Declaration on the Rights of Indigenous Peoples.

More recently, a proposal has been put forward in a resolution of the Economic and Social Council underpinning the Permanent Forum:

consulting at the highest level with indigenous organisations from all regions to canvass their recommendations for the eight indigenous members of the permanent forum.

The General Assembly resolution for the Permanent Forum proposes that the establishment of the Permanent Forum should lead to careful consideration of the future of the Working Group on Indigenous Populations of the Sub-Commission of the Promotion and Protection of Human Rights.

The scope for Aboriginal and Torres Strait Islander participation and influence at the international level has expanded significantly in recent years, with shadow reports to the treaty monitoring committees, the decision of the Economic and Social Council to establish a permanent forum for indigenous peoples, and utilisation of individual complaints mechanisms. However it is vital for the recommendations and comments of such international fora advocating reform to be carried through to the local level, to be used as leverage for change when lobbying governments at all levels, which is where the hard work begins.

Australia may have lodged its reports for the time being, but there is now a general awareness of unresolved issues down under, and nothing can abrogate government’s responsibility to its citizens, including indigenous peoples.

Neva Collings is international projects officer for the Foundation for Aboriginal and Islander Research Action based in Geneva. Neva graduated in 1995 with a Bachelor of Economics/Laws from Sydney University.


[1] See Sarah Pritchard, ‘Early warning/urgent action decision concerning Australia from the UN Committee on the Elimination of Racial Discrimination’ [1998] IndigLawB 75; (1998) 4 (15) Indigenous Law Bulletin 17.

[2] Brennan J with whom Mason CJ and McHugh J agreed: Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[3] See (2000) 5(4) Australian Indigenous Law Reporter (forthcoming). See also <www.faira.org.au>.

[4] See <www.faira.org.au> for the full transcript of the Human Rights Committee examination of Australia’s periodic report.

[5] Provisional Agenda - E/CN.4/Sub.2/AC.4/1982/1.

[6] ECOSOC resolution 1982/34, 7 May 1982.

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