Human Rights and Equal Opportunity Commission Website

Information concerning Australia and the International Convention on the Elimination of All Forms of Racial Discrimination

Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner, Human Rights and Equal Opportunity Commission

March 2000

This paper contains information about the following issues:

1) Native Title
2) The Racial Discrimination Act 1975 (Cth) and the lack of an entrenched guarantee against racial discrimination
3) Indigenous disadvantage and special measures
4) Mandatory Detention laws in the Northern Territory and Western Australia
5) The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Bringing them home
6) Royal Commission into Aboriginal Deaths in Custody
7) The abolition of bilingual education programs in the Northern Territory
8) The lack of interpreter services in Aboriginal languages in the Northern Territory
9) Multiculturalism

The discussion of each issue contains information that is additional to or not covered by the Australian government's 10th, 11th and 12th periodic reports under CERD. The relevance of each issue to Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination is also explained.

All the material contained in this document has previously been brought to the attention of the Australian government through a range of HREOC publications and submissions

1) Native Title

Summary of issue

In August 1999, the Committee affirmed Decision 2(54) on Australia that the Native Title Amendment Act 1998 breaches Australia's obligations under Articles 2 and 5 of CERD
In Decision 2(54) the Committee called on Australia to suspend implementation of the amendments, and reopen negotiations with Indigenous peoples with a view to obtaining their informed consent
Since August 1999, states and territories continue to implement the native title amendments, and the Commonwealth has not entered into negotiations with Indigenous peoples
Extinguishment of native title continues to be effected by the states, under the authority of the Commonwealth government
These further actions are inconsistent with Australia's obligations under Articles 2 and 5 of the Convention
In addition to being inconsistent with the Committee's recommendations in Decision 2(54), these developments constitute further breaches of the Convention under Articles 2(1)(a), 2(1)(c) and 6.

The Aboriginal and Torres Strait Islander Social Justice Commissioner has, in March 1999 and August 1999, provided submissions to the CERD Committee in relation to amendments to Australia's native title legislation.[1] Following is an update of developments in relation to native title subsequent to the August 1999 submission.

Decision 2(54) of the CERD Committee noted that the validation, confirmation and primary production upgrade provisions, and restrictions and exceptions to the right to negotiate discriminate against native title holders. Since August 1999, state and territory native title legislation continues to be considered or has been enacted under the authority of the above discriminatory provisions. In order to restitute the principles of equality and non-discrimination in the State legislation it would be necessary to amend the Commonwealth Native Title Act so as to make it consistent with the Racial Discrimination Act 1975 (Cth) (RDA).

The validation provisions

Previous submissions to the CERD Committee have outlined the operation of the provisions which enable states to validate 'intermediate period acts'. [2] The 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.

The following table sets out the current status validation legislation introduced by States and Territories as at 30 June 1999. Changes that have occurred subsequent to the submission to the Committee dated August 1999 are distinguished by bold type.

Table 1: Validation legislation introduced by the states and territories

State or Territory	Legislative action	Status of legislation
New South Wales	Native Title (New South Wales) Amendment Act 1998	Proclaimed on 30 September 1998
Victoria	Land Titles Validation (Amendment) Act 1998	Parts 1 and 2 received assent on 24 November 1998
Australian Capital Territory (ACT)	Native Title (Amendment) Bill 1999	The bill is before the Legislative Assembly
South Australia	Statutes Amendment (Native Title) Bill (No.2) 1998 Native Title (South Australia) (Validation and Confirmation) Amendment Bill 1999 Bill validates to full extent authorised by NTA	Now lapsed. Introduced into Parliament which resumes 28 March 2000.
Western Australia	Titles Validation (Amendment) Act 1999 Titles (Validation) and Native Title (Effect of Past Acts) Act 1999 Exclusive possession intermed- iate period acts and public works now extinguish native title.	Assented to by Parliament on 5 May 1999 Received assent on 13 December 1999.
Northern Territory	Validation of Titles and Actions Amendment Act 1998	Assented to by Parliament on 28 August 1998 and commenced on 1 October 1998
Queensland	Native Title (Queensland) State Provisions Act 1998	Assented to on 3 September 1998.
Tasmania	No proposed legislation to date	N/A

The confirmation provisions

Section 23E of the NTA provides that states and territories may introduce legislation that deems certain classes of tenures as well as specifically scheduled tenures granted before 23 December 1996 to have either extinguished or impaired native title. Native title holders are entitled to compensation for any extinguishment of native title as a result of these provisions.

The following table sets out the current status of confirmation legislation introduced by States and Territories as at 30 June 1999. Changes that have occurred subsequent to August 1999 are distinguished by bold type.

Table 2: Confirmation legislation introduced by the states and territories

State or Territory	Legislative action	Status of legislation
New South Wales	Native Title (New South Wales) Amendment Act 1998	Royal assent and proclaimed on 30 September 1998
Victoria	Land Titles Validation (Amendment) Act 1998	Parts 1 and 2 received assent on 24 November 1998
Australian Capital Territory (ACT)	Native Title (Amendment) Bill 1999	The bill is before the Legislative Assembly
South Australia	Statutes Amendment (Native Title) Bill (No.2) 1998 Native Title (South Australia) (Validation and Confirmation) Amendment Bill 1999 Bill validates to full extent authorised by NTA	Now lapsed. Introduced into Parliament which resumes 28 March 2000.
Western Australia	Titles Validation (Amendment) Act 1999 Titles (Validation) and Native Title (Effect of Past Acts) Act 1999 Exclusive possession intermed- iate period acts and public works now extinguish native title.	Passed by Parliament on 5 May 1999 Received assent on 13 December 1999.
Northern Territory	Validation of Titles and Actions Amendment Act 1998 Lands and Mining (Miscellaneous Amendments) Act 1998 Statute Law Revision Act 1999	Assented to on 28 August 1998 and commenced on 1 October 1998
Queensland	Native Title (Queensland) State Provisions Act 1998	Assented to on 3 September 1998.
Tasmania	No proposed legislation to date	N/A

The discriminatory effect of the confirmation provisions was considered in previous submissions to the Committee. [3]

Since August 1999, Western Australia has passed legislation confirming extinguishment on further titles. Extinguishment now includes all scheduled and other interests authorised by the amended Commonwealth NTA, with the exception of leases not still in force on 23 December 1996. [4] These are known as historic leases. The Western Australian amendments confirm extinguishment of native title on a further 1300 grants. [5]

In my previous submission I outlined the findings of Lee J, in the Miriuwung Gajerrong case. [6] In this case Justice Lee found that, at common law, native title had survived on a number of leases, some of which had been included in the Commonwealth NTA schedule as extinguishing titles.

On 3 March 2000 the full bench of the Federal Court handed down its decision in the appeal of the Miriuwung Gajerrong case.[7] By a majority of two to one the appeal court overturned many of Justice Lee's findings regarding extinguishment of native title. The full court found that some titles scheduled to the Native Title Act do in fact extinguish native title - namely, conditional purchase leases and some special purpose leases under s152 of the Land Act 1933 (WA). The court, however, also upheld Justice Lee's findings that other special purpose leases, including for example leases for canning and preserving, did not extinguish native title.

With the exception of historic leases, these leases are now deemed, by the recent Western Australian legislation, to have extinguished native title. Native title holders are left with only a right to pursue compensation for this extinguishment.

The Western Australian legislation also expands the extinguishment of native title on land affected by public works. At common law and prior to the amendments, public works extinguished native title from the time of the commencement of construction or establishment of the public work, and extended only to the 'footprint' of the work. The amendments provide for extinguishment from the time of the grant and expand the area of extinguishment to include the adjacent land and waters.[8]

The right to negotiate provisions

The human rights impact of amendments replacing the right to negotiate is outlined in previous submissions. [9]

In paragraph 7 of Decision 2(54) the CERD Committee expressed its concern that provisions within the NTA that place 'restrictions concerning the right of indigenous title holders to negotiate non-indigenous land uses' are discriminatory. The Committee urged the Australian Government to suspend implementation of the 1998 amendments.[10] Most states and territories have introduced legislation that contains provisions which restrict the ability of native title holders to negotiate over non-Indigenous land uses.

The following table sets out the current status of alternative right to negotiate legislation that the states and territories have introduced, as at 30 June 1999. Changes that have occurred subsequent to my August submission are distinguished by bold type.

State and territory legislation that adopts exceptions to the right to negotiate provisions

State or territory	Legislative action	Status of legislation
New South Wales	Ss32-39 Native Title (NSW) Amendment Act 1998 (NSW) provide that the Administrative Decisions Tribunal will hear objections arising in relation to s24MD(6B). Amendments to Mining Act and Petroleum Act (Onshore) Act 1991 ensure that particular grants qualify as either approved exploration grants (s26A) or approved opal or gem mining (s26C). These provisions do not come into force until the Commonwealth Minister has made a determination. NSW has applied for a determination in relation to s26C, but not for s26A	Proclaimed on 30 September 1998 The C'th Minister is considering the application for determination at 18.1.2000
Victoria	The Land Titles Validation (Amendment) Act 1998 amends the Pipelines Act 1967 in order to comply with the requirements of s24MD(6B).	Enacted by Parliament and in force No legislation as yet
ACT	No legislation is planned.	N/A
South Australia	South Australia has had a state based right to negotiate in place since 1994. Amendments in the Statutes Amendment (Native Title) Bill (No 2) modify this scheme so that it complies with s43 NTA. This Bill also proposes to introduce provisions consistent with s26A of the NTA. Consultation in relation to the amendment to the right to negotiate provisions is continuing.	Introduced in Parliament on 10 December 1998 Consultations continue
Western Australia	The Native Title (States Provisions) Act 1999 (WA) Replace the RTN with a state based scheme (s43); Replace the RTN on pastoral leasehold land (s43A); Comply with the requirements of s24MD(6B	Bill received assent on 10.1.2000 The WA govt has made an application to the Cth AG for a determination
Northern Territory	The following acts and regulations have been passed Land Acquisition Amendment Act (No 2) 1998 Mining Amendment Act (No 2) 1998 Petroleum Amendment Act 1998 Petroleum (Submerged Lands) Amendment Act 1998 Land and Mining Tribunal Act 1998 Energy Pipelines Amendment Act 1998 Validation of Titles and Actions Amendment Act 1998 Land Acquisitions Amendment Regulations 1998 Mining Amendment Regulations 1999 No 14 Petroleum Amendment Regulations 1999 No 15 Energy Pipelines Amendment Regulations 1998. The Attorney-General made three determinations that the alternative provisions complied with the requirements of the Commonwealth Native Title Act. On 31 December 1999, the Senate disallowed those determinations. Negotiations continue	Enacted by Parliament and in force Alternative provisions are presently inoperable due to the disallowance.
Queensland	Native Title (Queensland) State Provisions Act (No.2) 1998 introduces the following provisions Section 43 - State base right to negotiate Section 43A - alternative right to negotiate Section 26A - exploration acts, but only on pastoral leasehold land Section 26B - gold or tin mining. The Native Title (Queensland) Provisions Amendment Act 1999 significantly amends this Act. The Queensland government sought 13 determinations from the Attorney General. The consultation period ends 31.1.2000. A determination that the alternative provisions comply with the requirements of the Cth Act is subject to disallowance by the Senate	Assented to on 27 November 1998. Assented to on 29 July 1999. Alternative provisions may become effective.
Tasmania	No proposed legislation to date.

The Northern Territory was the first government to seek approval from the Commonwealth in relation to its alternative right to negotiate regime. In considering the scheme the Attorney-General was required by the NTA to take into account submissions made by Aboriginal and Torres Strait Islander representative bodies. Despite their objections to substantial areas of the scheme it was approved.

Ultimately the regime was prevented from operation by a successful disallowance motion in the Senate. The motion succeeded on the basis that if it were not disallowed the Northern Territory could make subsequent amendments to their legislation without referral back to the Commonwealth Parliament. Only the Commonwealth Attorney-General would have an ongoing supervisory role over subsequent amendments. It was considered that this was insufficient to ensure that Indigenous concerns over the state regimes were adequately addressed. A further factor considered by the Senate was the failure of the Northern Territory Government to obtain the consent of the land councils. [11]

There are alternative procedures available within the NTA which incorporate the principle of effective participation - namely, Indigenous Land Use Agreements. Representative bodies and many other stakeholders support the pursuit of Indigenous Land Use Agreements where appropriate, and where the future acts regime has been so affected by discriminatory amendments that it fails to protect native title. [12]

Western Australia passed the Native Title (State Provisions) Act 1999 which provides for a state Native Title Commission to administer:

Future acts on unallocated crown land and Aboriginal reserves under s 43,
Replacement of the right to negotiate on pastoral lands with the lesser notification and consultation provisions of s 43A,
and a regime for the operation of s 24MD(6B).

The alternative provisions will have effect in the event that the Attorney-General makes the determination that they comply with the NTA.

Queensland has sought 13 determinations from the Commonwealth Attorney-General regarding future mining acts. Native title matters which come within the provisions will be administered by a State Tribunal. The consultation period concluded on 31 January 2000. If the Attorney-General makes the determinations, the regime will come into force unless it is disallowed by a successful motion in the Senate.

Relevance to CERD

These developments raise a number of concerns under CERD. As noted by the Committee in Decision 2(54) they are in breach of Articles 2 and 5 of the Convention.

The failure of the government to enter into negotiations to amend the Native Title Act also places Australia in breach of its obligations under the Convention. In particular:

Article 2(1)(a) of the Convention requires States parties to undertake not to engage in any 'act or practice of racial discrimination against persons… and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.'
Article 2(1)(c) provides further that States 'shall take effective measures to review governmental… policies, and to amend, rescind or nullify any laws… which have the effect of creating or perpetuating racial discrimination wherever it exists.'

That the Commonwealth legislation authorises the states and territories to discriminate against Indigenous peoples also denies Indigenous peoples 'effective protection and remedies' against acts of racial discrimination which violate their human rights and fundamental freedoms. Such protection is required under Article 6 of the Convention.

2) The Racial Discrimination Act 1975 (Cth) and the lack of an entrenched guarantee against racial discrimination

Summary of issue

There is a lack of an entrenched guarantee against racial discrimination in Australian law
The limits of Australia's legal protection against racial discrimination are exposed in two ways:

I) The ability for the Commonwealth to override the protection of the Racial Discrimination Act (RDA) through subsequent legislation

The 1998 amendments to the Native Title Act 1993 (NTA) impliedly repeal the operation of the RDA in relation to native title. As a consequence, states and territories are freed by the constraints normally imposed by the RDA and are no longer required to act in accordance with the principles of CERD in relation to their treatment of native title across a range of matters.
It is notable that the Commonwealth Parliament, in the Social Security Legislation Amendment (Newly Arrived Residents' Waiting Periods and Other Measures) Act 1997, included a provision which guaranteed that that legislation would be interpreted consistently with the principles of the RDA and CERD - a substantial innovation in implementing Australia's obligations under CERD, and one that could (but has not been) adopted in relation to the NTA;

II) The constitutional power of the Commonwealth to discriminate against particular racial groups.

The race power of the Constitution was used in 1997 to enact the Hindmarsh Island Bridge Act 1997 (Cth). The High Court held that this was a law that discriminates against Indigenous people, and that the Parliament has the power under the Constitution to enact such laws if it so chooses.

These matters raise concerns under the following Articles of the Convention:

Articles 1(1): a distinction based on race which has the purpose of nullifying or impairing the recognition, enjoyment or exercise of rights on an equal footing
Article 2(1)(a): States not to engage in discrimination against a particular group;
Article 2(1)(c): States to repeal all laws that discriminate against a particular group;
Article 5: Equality before the law; and
Article 6: States to assure to everyone effective protection and remedies against acts of racial discrimination.

An ongoing difficulty with Australia's implementation of the CERD is the lack of an entrenched guarantee against racial discrimination in Australian law. This difficulty has arisen in two ways.

i) The interaction of the Racial Discrimination Act with other federal legislation

The RDA embodies Australia's domestic implementation of its obligations under CERD. [13] This Federal anti-discrimination statute was introduced in 1975. It makes discrimination on the basis of race, colour, descent or national or ethnic origin unlawful. It is designed to protect the rights of all Australians.

The RDA binds both state and federal governments. For example, it would be illegal to deny access to a federal or state government service on the basis of race.

Under section 109 of the Australian Constitution, federal legislation overrides state legislation to the extent that the state law is inconsistent with the federal law. Accordingly, the RDA generally operates to nullify state legislation that is racially discriminatory.

However, the principle of parliamentary sovereignty enables the Federal Parliament to pass legislation that overrides previous legislation. Parliament is not bound by its own prior legislation. Accordingly, the Federal Parliament can pass legislation subsequent to the RDA that specifically authorises action inconsistent with the provisions of the RDA. Such later legislation (in the absence of explicit provision to the contrary) overrides, or impliedly repeals, the RDA to the extent that the subsequent legislation is inconsistent with it.

If federal legislation subsequent to the RDA specifically authorises action that is inconsistent with the RDA, and authorises states to act pursuant to this subsequent federal legislation, then state parliaments will be relieved of the constraints normally imposed by the RDA.

The Native Title Act 1993 (NTA) is federal legislation subsequent to the RDA. This fact is crucial to the interaction between the two acts and to the compatibility of native title legislation with Australia's obligations under CERD.

The RDA has protected native title from extinguishment by state legislation in the past. The High Court of Australia has directly considered the operation of the RDA prior to the enactment of the NTA. The Court has also considered the RDA's curtailed operation subsequent to passage of the NTA.

Recognition of native title under the common law of Australia was made by the High Court in Mabo v State of Queensland (No2) (1992) 175 CLR 1. It was preceded by the Court's judgment in Mabo v State of Queensland (No 1) (1988) 166 CLR 186. The earlier case dealt with the Queensland Coast Islands Declaratory Act 1985 (Qld) which sought to abolish retrospectively, without compensation, any native title rights of the plaintiffs, the Meriam people of the Murray Islands. Had the legislation been effective the Mabo action would have been terminated. The legislation was held to 'fail' because it contravened section 10 of the RDA.

In interpreting the scope of section 10 of the RDA, Justices Brennan, Toohey and Gaudron considered Australia's obligations under CERD:

Section 10 of the Racial Discrimination Act 1975 (Cth) is enacted to implement art.5 of (ICERD) and the 'right' to which s 10 refers is, like the rights mentioned in art.5, a human right - not necessarily a legal right enforceable under the municipal law. The human rights to which s 10 refers include the right to own and inherit property… rights of that kind have long been recognised (such as in art.17 of the UDHR)…

When inequality in enjoyment of a human right exists between persons of different races, colours or national or ethnic origins under Australian law, s 10 operates by enhancing the enjoyment of the human right by the disadvantaged persons to the extent necessary to eliminate the inequality. As the inequality with which s 10 is concerned exists 'by reason of' a municipal law, the operation of the municipal law is nullified by s 10 to the extent necessary to eliminate the inequality. [14]

The High Court considered whether the Queensland Act prevented the Meriam people from enjoying the human right to own and inherit property, free from arbitrary deprivation, to the same extent as other members of the community. The Court held that:

By extinguishing the traditional legal rights characteristically vested in the Meriam people, the 1985 Act abrogated the immunity of the Meriam people from arbitrary deprivation of their legal rights in and over the Murray Islands. The Act thus impaired their human rights while leaving unimpaired the corresponding human rights of those whose rights in and over the Murray Islands did not take their origin from the laws and customs of the Meriam people…

The 1985 Act has the effect of precluding the Meriam people from enjoying some, if not all, of their legal rights in and over Murray Island while leaving all other persons unaffected in the enjoyment of their legal rights… Accordingly, the Meriam people enjoy their human right of the ownership and inheritance of property to a 'more limited'extent than others who enjoy the same human right. [15]

As a result, the Queensland Act was inconsistent with the protection afforded by section 10(1) of the RDA, which operates to clothe

the holders of traditional native title.. with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community. [16]

By virtue of section 109 of the Australian Constitution, the RDA prevailed over and nullified the operation of the Queensland Coast Islands Declaratory Act.

The equal protection of property rights was revisited by the High Court in Western Australia v Commonwealth. [17] That case concerned the validity of a Western Australian act - the Lands (Titles and Traditional Usage) Act 1993 (WA) - which sought to abolish native title in Western Australia and replace it with a subordinate right of 'traditional usage' that could be overridden by other interests, such as mining titles. The High Court affirmed the reasoning of its earlier decision in Mabo (No.1), holding that where,

under the general law, the Indigenous 'persons of a particular race' uniquely have a right to own or to inherit property within Australia arising from Indigenous law and custom but the security of enjoyment of that property is more limited than the security enjoyed by others who have a right to own or to inherit other property, the persons of the particular race are given, by s.10(1)(of the RDA), security in the enjoyment of their property 'to the same extent' as persons generally have security in the enjoyment of their property… Security in the right to own property carries immunity from arbitrary deprivation of the property… [18]

Accordingly, as the effect of the Western Australian act was to prevent native titleholders from enjoying their human rights in relation to land to the same extent as people of other races, the legislation was in conflict with the RDA.

In Western Australia v Commonwealth the High Court also considered the interaction between the RDA and NTA as two potentially inconsistent federal Acts. The High Court found that the NTA and the RDA were complementary pieces of legislation insofar as both provide legal protection and standards for dealing with native title. The NTA provides more elaborate provisions than the RDA as it is 'purpose built' to deal with native title and related issues. The majority of the High Court observed in Western Australia v Commonwealth that the regime established by the Native Title Act is 'more specific and more complex than the regime established by the Racial Discrimination Act.' [19]

The Court held that, as subsequent legislation dealing specifically with native title, the provisions of the NTA would impliedly repeal the protection of the RDA to the extent that there is inconsistency between the two Acts:

If the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both acts emanate from the same legislature and must be construed so as to avoid absurdity and to give each of the provisions a scope for operation. The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. [20]

The court also considered the effect of section 7 of the original NTA. This section deals explicitly with the interrelationship of the NTA and the RDA.

Section 7

(1) Nothing in this Act affects the operation of the Racial Discrimination Act 1975.

(2) Subsection (1) does not affect the validation of past acts by or in accordance with this Act.

Section 7 was inserted in the original NTA to give some guarantee that its provisions would not override the RDA and would conform with the principle of non-discrimination. The specific exception to the general protection apparently offered by s.7(1), expressed in s.7(2) was intended to enable the validation of interests in land which had been granted by governments after the commencement of the RDA on 31 October 1975.

Following the Mabo decision, a question arose as to the validity of titles granted after the commencement of the RDA, given their consequential extinguishment or impairment of native title interests and the absence of any procedural protection or compensation. Such titles were clearly issued at a time when, while native title existed, it had not been recognised under the common law of Australia. In these circumstances, Indigenous representatives engaged in negotiations with the Federal government accepted the imperative to provide security of title.

In Western Australia v Commonwealth the High Court concluded that section 7 was in fact ineffective to provide general RDA protection in the face of the specific, subsequent provisions of the NTA.

Section 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s 7(1) cannot be intended to nullify those provisions. It may be that s 7(2) is otiose but that provision is properly to be seen as inserted out of an abundance of caution. [21]

Accordingly, the NTA covers the field in matters pertaining to native title while the RDA continues to operate on matters outside the scope of the NTA.

The recent amendments to the NTA [22] provided an opportunity to redraft section 7 in order to effectively apply the RDA to the provisions of the NTA.

The section could have made it unequivocal that the provisions of the NTA are subject to the provisions of the RDA. There is precedent for this level of protection. The Social Security Legislation Amendment (Newly Arrived Residents' Waiting Periods and Other Measures) Act 1997 contained a provision defining the interaction of the RDA with Social Security legislation.

Section 4 - Effect of the Racial Discrimination Act 1975

(1) Without limiting the general operation of the Racial Discrimination Act 1975 in relation to the provisions of the Social Security Act 1991, the provisions of the Racial Discrimination Act 1975 are intended to prevail over the provisions of this Act.

(2) The provisions of this Act do not authorise conduct that is inconsistent with the provisions of the Racial Discrimination Act 1975.

To the Commission?s knowledge, this is the only example of a subsequent specific enactment of the Commonwealth Parliament that is subject to the RDA. The enactment of this provision represents a significant innovation in the application and reach of the CERD in Australian law. Such a provision could equally be applied to the Native Title Act 1993 if there was a willingness to do so.

A similar amendment was not adopted in the amended NTA. The section was amended in the following terms:

Section 7 - Racial Discrimination Act

(1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.

(2) Subsection (1) means only that:
(a) the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and
(b) to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.

(3) Subsections (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act.

As amended, section 7 does not ensure the protection of native title by the general standards of equality and non-discrimination enshrined in the RDA. As the Committee noted in Decision 2(54), several provisions of the amended NTA are discriminatory and in breach of Articles 2 and 5 of the Convention. Accordingly, powers unambiguously authorised by the NTA are freed from the constraints of the RDA and the standards of CERD.

ii) Scope of the races power, s51(xxvi) Constitution

The Australian constitution contains an express power to enact special laws directed to people of a particular race. The scope of the Commonwealth's power to enact legislation directed at particular racial groups was the subject of judicial scrutiny in 1998. The High Court examined section 51(xxvi) of the Constitution (the race power) in the case of Kartinyeri v The Commonwealth [1998] HCA 22. The race power gives the Commonwealth power to enact legislation.'with respect to ... the people of any race for whom it is deemed necessary to make special laws.'

The case concerned a law of the federal Parliament, the Hindmarsh Island Bridge Act 1997 (Cth), and whether the constitutional power under which it was enacted supported legislation which clearly disadvantaged a particular racial group. The legislation sought to withdraw the protection of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in relation to a particular site in order to facilitate the building of a bridge.

The Court agreed that the legislation was detrimental to a particular racial group - the Indigenous people of the area. The majority found that the parliament had the constitutional power to pass the legislation - through the race power, although their Honours' reasons differed. The only judge who found unequivocally that the race power did not support laws which discriminated against particular racial groups was Kirby J. In so finding His Honour had regard to international law of which he said:

If there is one subject upon which the international law of fundamental rights resonates with a single voice it is the prohibition of detrimental distinctions on the basis of race.

Relevance to CERD

The overriding of the RDA amounts to a repudiation of Australia's obligations under CERD. In particular:

Articles 1(1): a distinction based on race which has the purpose of nullifying or impairing the recognition, enjoyment or exercise of rights on an equal footing;
Article 2(1)(a): States not to engage in discrimination against a particular group;
Article 2(1)(c): States to repeal all laws that discriminate against a particular group;
Article 5: Equality before the law; and
Article 6: States to assure to everyone effective protection and remedies against acts of racial discrimination.

3) Indigenous disadvantage and special measures

Summary of issues

Indigenous Australians suffer grossly disproportionate levels of disadvantage across all indicators of socio-economic status
Governments have introduced programs, and continue to seek to identify further methods, for redressing this disadvantage
Yet recent research indicates that government programs are inadequate when considered against the goal of raising Indigenous people to a position of equality within Australian society
Similarly, there is little understanding within Australian society of the need and legitimacy of adopting special measures
Key reports which make recommendations for redressing Indigenous disadvantage, including the Royal Commission into Aboriginal Deaths in Custody, and Bringing them home, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From their families, have not been fully implemented. Many recommendations, particularly those concerning the application of the principle of self-determination, have been actively rejected
The Social Justice Package, the third component of the government's response to the Mabo decision (alongside the NTA and Land Fund), has been abandoned. Following broad consultations with Indigenous peoples, peak Indigenous organisations had proposed that the social justice package involve measures to redress Indigenous disadvantage and to recognise the unique status of Indigenous people.

Relevance to CERD

Articles 1, 2 and 5: lack of equality within Australian society;
Articles 1(4), 2(2) and 7: requirement to adopt special measures, and the duty under Article 7 to promote understanding of the legitimacy of adopting such measures;
General Recommendation XXI on self-determination; and General Recommendation XXIII on Indigenous peoples

Background

Indigenous Australians remain the most disadvantaged of all Australians. There are clear disparities between Indigenous and non-Indigenous Australians across all indicators of quality of life.

The most recent publication of the Australian Bureau of Statistics notes that:

As a group, Indigenous people are disadvantaged relative to other Australians with respect to a number of socioeconomic factors, and these disadvantages place them at greater risk of ill health and reduced well-being. [23]

The following statistics from the 1996 Census illustrate this disadvantage [24]:

Indicator	Indigenous Adults	Non-Indigenous Adults
Hold a post-school educational qualification	11%	31%
Unemployment rate	23% [25]	9%
Median income (males)	$189	$415
Median income (females)	$190	$224
Own house (or in process of purchasing it)	31%	71%
Life expectancy (males)	56.9 years	75.2 years
Life expectancy (females)	61.7 years	81.1 years

This disadvantage is also reflected in contact with welfare services and correctional services. As the Australian Bureau of Statistic has noted:

Although there are differences by State and Territory, Indigenous children are more likely than non-Indigenous children to be the subjects of substantiated cases of abuse and neglect (with rates about 2-8 times higher in most jurisdictions in 1997-98), under care and protection orders (about 4 times higher in 1998) and on out-of-home placements (almost 6 times higher in 1998). Indigenous children are also over-represented in the juvenile justice system, with about 40% of children in 'corrective institutions for children' identified as Indigenous in the 1996 Census. Indigenous adults are more likely to have contact with legal and correctional services, with almost 19% of the adult prison population in 1997 being identified as Indigenous. The imprisonment rate for Indigenous adults was over 14 times that for non-Indigenous adults. [26]

The Royal Commission into Aboriginal Deaths in Custody concluded that the over-representation of Indigenous people in the criminal justice system is inextricably linked to their socio-economic status.

Indigenous women

The Australian Bureau of Statistics has noted that:

The health disadvantage of Indigenous Australians begins early in life and continues throughout the life cycle. On average, Indigenous mothers give birth at a younger age than non-Indigenous mothers. In most States and Territories, their babies are about twice as likely to be of low birth weight and more than twice as likely to die at birth than are babies born to non-Indigenous mothers. [27]

The following statistics on Indigenous mothers and their babies, highlight the health disadvantage of Indigenous women:

In 1996, the fertility rates for Indigenous women was 2.2 children, compared to 1.8 for non-Indigenous women;
Indigenous women begin childbearing at a younger age, have higher birth rates in their teenage years and early twenties and tend to have more children than non-Indigenous women;
The average age of Indigenous mothers was 24.0 years, compared to 28.6 years for non-Indigenous mothers. 23.1% of Indigenous mothers in 1996 were teenagers, more than four times the non-Indigenous rate (4.8%);
The proportion of low birthweight babies (less than 2500 grams) of Indigenous mothers was 12.4%, more than twice the rate of non-Indigenous mothers (6.2%);
the fetal death rate among births to Indigenous mothers of 13.9 per 1000 births was more than double that of 6.7 per 1000 for non-Indigenous births. [28]

The government's response to Indigenous disadvantage

Australian governments do acknowledge the disadvantage facing Indigenous Australians and have programs in place that seek to redress this disadvantage. For example, the federal Government launched an Indigenous Employment Program in May 1999. The program has three elements - a wage assistance and cadetship program; an Indigenous Small Business Fund; and Job network. [29]

In formulating this program the Government has acknowledged the clear disadvantage faced by Indigenous Australians in employment status, as well as the difficulties in improving this situation. The government acknowledges, for example, that in order to redress Indigenous unemployment they must consider the following characteristics of the Indigenous population: the unskilled or semi-skilled character of the workforce, the greater proportion of people in rural and remote areas, and the reliance upon publicly funded employment opportunities. The focus of the policy is on improving opportunities in private enterprise.

At this stage the policy is in its formative stages, and it is too early to establish whether it is sufficient to ensure the progressive realization of equality in employment opportunities for Indigenous people.

A number of initiatives have also commenced which are aimed at identifying ways of redressing Indigenous disadvantage. These include:The House of Representatives Standing Committee on Family and Community Affairs [30] is currently conducting a wide-ranging inquiry into Indigenous health. The Committee's inquiry began in September 1997, and is considering issues relating to:

the coordination of service delivery and planning, barriers to access to services and professional education requirements, as well as consideration of the impact on health of a number of other matters such as location, access to transport, opportunities for employment and education and social and cultural factors. [31]

The Senate Employment, Workplace Relations, Small Business and Education Committee is also conducting an inquiry into Indigenous education, which requires it to:
review parliamentary, government and commission reports on Indigenous education presented during the past ten years, assess the recommendations made in these reports, investigate the extent to which action has been taken to address them, and to identify any impediments to the implementation of the various recommendations and recommend how these might be removed. [32]
The Commonwealth Grants Commission has been empowered to undertake an independent assessment of the overall need of Indigenous Australians for services and programs, with the ultimate aim of improving the situation of Indigenous people through better allocation of grants.
The Council for Aboriginal Reconciliation is in the process of developing four national strategies for reconciliation, including national strategies to redress Indigenous disadvantage, for the recognition of Aboriginal and Torres Strait Islander rights and for Indigenous economic independence. The national strategies are due to be tabled in federal Parliament on May 26 and to the Australian community on May 27.

Principal concerns

Indigenous disadvantage is grossly disproportionate and has not improved sufficiently across most indicators in recent years.

A recent study of Commonwealth and State/Territory outlays on education, health, housing and employment programs provides us with some further detail against which to judge the adequacy of governmental responses. [34] These four areas are the priority service delivery areas identified by the federal government in budget papers and policy statements. The report seeks to determine whether enough attention is given to Indigenous need 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' [35] or put differently, the effort required 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 programs designed to address their needs, rather than general programs that are available, subject to eligibility criteria, to all Australians. This focus on specific programs has developed due to the 'unsuitability, or inaccessibility to Indigenous people, of general programs.' [36] 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 organisations under Indigenous control. Accordingly,

a focus on special programs 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 programs, they benefit substantially less from many, much bigger, general programs. [37]

The authors concluded the following about expenditure in each of the four areas considered:

Education - Public expenditure on education is 18% higher per capita for Indigenous people than for non-Indigenous in the 3-24 year age group. Equity considerations require that there be additional expenditure on the education of Indigenous Australians, and this difference per head is a 'very modest contribution' to reducing Indigenous disadvantage. [38]
Employment - Public expenditures on programs for the unemployed are 48% higher per unemployed Indigenous person than per non-Indigenous unemployed person. Part of this difference is explained by higher levels of long term unemployment and higher average costs of employment programs for Indigenous people, as well as the reliance upon Community Development Employment Projects (CDEP). The level of disadvantage faced by Indigenous people, the difficulties of maintaining employment levels for the rapidly expanding Indigenous population entering working age and the multiple objectives of the CDEP suggest that the margin 'is not excessive'. [39]
Health - Drawing on analysis in the Deeble report, [40] the authors note that total funding per head, which includes privately and publicly funded health care, is 8% higher for Indigenous people. Given the health status of Indigenous people, 'allocation of public expenditure according to need would almost certainly put more resources into health services for Indigenous people.' [41]
Housing - Housing benefits expressed on a per capita basis indicate that non-Indigenous people receive between 9 and 21 per cent more benefits than Indigenous people. Given the greater housing needs of Indigenous people, existing policies are 'inequitable and inadequate' and this justifies 'increased resources being put into programs directed specifically towards addressing their housing needs.' [42]

These figures, when compared to the levels of disadvantage highlighted above, tend to indicate that while there are government funding and programs aimed at redressing Indigenous disadvantage, they are clearly not sufficient to raise Indigenous people to a position of equality within Australian society. International human rights principles provide justification for giving higher priority to Indigenous disadvantage and for taking steps, or further steps, to redress this disadvantage and achieve equality of outcome.

The following concerns are also raised by the government's approach to redressing Indigenous disadvantage:

There is a perception that Indigenous people are treated more favourably than non-Indigenous people due to the level of government expenditure on Indigenous issues. As noted above in relation to expenditure on health, housing, employment and education, the level of government expenditure is not excessive given the level of disadvantage faced. Greater education about the legitimacy of special measures is required to address this concern, and is required under Article 7 of the Convention.
All levels of government have failed to adequately 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. [43] These reports make numerous recommendations aimed at redressing the underlying causes of Indigenous over-representation in the criminal justice system, juvenile justice and care and protection systems. Many of the recommendations have not been acted upon or actively rejected by governments. [44]
The federal government has actively rejected the concept of self-determination in relation to Indigenous policy. [45]
In 1993, the government responded to the Mabo decision by announcing that they would take action in three areas - the introduction of the Native Title Act 1993 to recognise and protect native title (and validate non-Indigenous forms of land usage); the introduction of an Indigenous Land Fund - to redress dispossession for Indigenous people who would be unable to establish native title due to past extinguishment of their rights; and a Social Justice Package.
Broad consultations were undertaken in regard to the development of the Social Justice Package by ATSIC, the Aboriginal and Torres Strait Islander Social Justice Commissioner, and the Council for Aboriginal Reconciliation. Strategies and proposals were presented by these three bodies to the government in 1995. The proposals broadly called for the recognition of the rights of Indigenous people, as well as calling on the government to redress Indigenous disadvantage (and highlighting requirements for this to be addressed as a right, not out of welfare). In 1996, the newly elected government abandoned the Social Justice Package.

Relevance to CERD

The level of Indigenous disadvantage raises concerns in relation to Australia's obligations under Articles 1, 2, and 5 of the Convention.

The systemic, grossly disproportionate rate of disadvantage faced by Indigenous people indicates that they do not enjoy the full spectrum of human rights in a non-discriminatory manner. The achievement of the non-discriminatory enjoyment of the full spectrum of human rights for all people is one of the core obligations undertaken by States parties to the Convention.

The consequence of this disadvantage and discrimination is that Australia is required under Articles 1(4) and 2(2) of CERD to take special measures to ensure the adequate development and protection of Indigenous people, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. The legitimacy of adopting special measures to redress disadvantage is not broadly understood, and the government is required under Article 7 to promote and such an understanding.

Similarly, the government's failure to fully implement, and in some cases reject, the recommendations of the Royal Commission into Aboriginal Deaths in Custody and the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, and the abandonment of the Social Justice Package, are inconsistent with the Committee's General Recommendation XXI on self-determination.

4) Mandatory detention laws in the Northern Territory and Western Australia

Mandatory sentencing laws were enacted in Western Australia in 1996 (through amendments to the Criminal Code (WA) 1913) and in the Northern Territory in 1997 (through amendments to the Sentencing Act (NT) 1995 and the Juvenile Justice Act (NT) (1993)).

The Western Australian laws provide that when convicted for a third time or more for a home burglary, adult and juvenile offenders must be sentenced to a minimum of twelve months imprisonment or detention.[46] This is regardless of the gravity of the offence.

The Northern Territory Sentencing Act provides that persons over the age of 17 found guilty of certain property offences shall be subject to a mandatory minimum term of imprisonment of fourteen days for a first offence, ninety days for a second property offence and one year for a third property offence. [47] The Juvenile Justice Act provides that a person aged 15 or 16 who has been convicted for a certain property offence and has at least one prior conviction for such an offence, must be detained for at least twenty-eight days. [48] Additional punitive orders may be made on top of this mandatory period.

Although the Northern Territory Sentencing Act has been recently amended to provide for alternatives to sentencing in 'exceptional circumstances', these provisions do not apply to 15 and 16 year olds who are sentenced under the Juvenile Justice Act.

Case studies

The following are some examples of offenders sentenced under the NT and WA laws.

Children [49]

Two 17 year old girls with no previous criminal convictions were both sentenced to 14 days in prison for theft of clothes from other girls who were staying in the same room;
A 17 year old girl with no prior convictions was sentenced to 14 days in prison for receiving jewellery stolen by other young people. The jewellery was later recovered;
A 17 year old boy was incarcerated for 28 days in an adult prison for a second conviction of minor theft. If the second offence had been committed on or after his 17th birthday the period of imprisonment would have been 14 days only;
A 15 year old girl was detained for 28 days for unlawful possession of a vehicle. In fact she was only a passenger in a stolen vehicle;
A 17 year old petrol sniffer from an Aboriginal community was sentenced to seven months plus 120 days for stealing food, alcohol, cigarettes, soft drink and petrol and causing associated minor property damage. The stolen items were consumed with friends. His sentence was based on the mandatory detention formula (120 days) with an additional seven months. He had very little family support and his record was clean until June 1998.
Robert is a 15 year old Aborigine. He was first referred to the Department of Family, Youth and Children's Services when he was 12 due to a lack of parental support. Since the age of 14 Robert has mostly looked after himself. This year he attempted suicide while in police custody, having been arrested for a mandatory detention offence. The offence was one of property damage. He broke a window after hearing about the suicide of a close friend.
Tony is 17 years old and lives between Alice Springs and several bush communities. Tony has been accessing crisis accommodation with youth services since he was 14 years old. He has a history of multiple substance dependency. Tony has minimal education and his literacy skills are low. English is his third language. He has never had his own income and workers who know him believe the bureaucracy of the system and the excessive paperwork is what deters him from accessing this entitlement. Tony is considered to be an adult in the Northern Territory. He has been charged with a mandatory detention offence (unlawful entry into a shop) and is facing imprisonment in an adult jail.

Adults

A 24 year old Indigenous mother was sentenced to 14 days in prison for receiving a stolen $2.50 can of beer;
A 27 year old white teacher disputed the quality of a hotdog at a Darwin fast food bar and poured water onto the till. She paid in full for the damage she caused. She was sentenced to 14 days in prison;
A 29 year old homeless Indigenous man wandered into a backyard when drunk and took a $15 towel. It was his third minor property offence. He was imprisoned for one year;
A 20 year old man with no prior convictions was sentenced to 14 days in prison for theft of $9.00 worth of petrol; and
An 18 year old man was sentenced to 90 days in prison for stealing 90 cents from a motor vehicle. [50]

Concerns with mandatory detention laws

The Human Rights and Equal Opportunity Commission released a briefing paper on mandatory detention in August 1999. This can be downloaded from the HREOC website at www.humanrights.gov.au This paper raised the following concerns about the mandatory detention provisions:

Mandatory detention raises concerns under Australia's international obligations under the ICCPR and CROC, namely:
- ICCPR: Art. 9(1) - Arbitrary detention; Art. 14(1) - Sentences to be reviewable by a higher court; Arts. 2 and 26 - Non-discrimination and equality before the law;
- CROC: Art. 3 - best interests of the child; Art. 37(b) - detention as last resort; Art 40(2) - sentences to be reviewable; Art 40(4) - proportionality and juveniles to be dealt with in manner appropriate to their age
Mandatory detention laws target crimes committed by people of lower socio-economic backgrounds, particularly Indigenous Australians. Consequently, they have disproportionately affected Indigenous peoples. Indigenous peoples are already severely over-represented in the criminal justice system.

Relevance to CERD

The discriminatory effect of the NT and WA mandatory sentencing laws is of concern under Articles 2 and 5 of CERD. This discriminatory impact has been explained as follows:

On the face of it, mandatories are not discriminatory. Indeed they appear to be the very opposite; they allow for no differentiation according to race, sex or age. However, it is clear that mandatories are discriminatory in effect… (they) involve the policy choice to select certain types of criminal activity for special attention. These policy choices invariably involve the selection of offences... in which minority groups and lower socio-economic groups are over-represented… Recent research [51] has confirmed expectations with the three strikes burglary laws (in WA); Aboriginal children constituted a staggering 80 per cent of the three strikes cases in the Children's Court of Western Australia from February 1997 to May 1998. [52]

The National Children's and Youth Law Centre also notes the disparate impact of mandatory detention laws on Indigenous people:

While there are few reliable estimates of how many people have been gaoled under mandatory sentencing laws since they took effect in mid-1997, those Territorians familiar with the effects of the regime say it runs into the hundreds. The majority of those sentenced have been young, Aboriginal men. [53]

Indigenous women have also been disproportionately affected by mandatory sentencing laws.The Australian Women Lawyer's Association has estimated, based on figures from the Northern Territory Correctional Services Department, that there was a 223% increase in the number of Indigenous women incarcerated in the first year of operation of the legislation. As of 30 June 1999, Indigenous women made up 91% of all women prisoners - an increase on the figure in previous years. [54]

Other scrutiny of the mandatory detention laws

The United Nations Committee on the Rights of the Child, in their concluding observations on Australia in 1997, expressed concern at the mandatory detention laws and their disproportionate impact upon Indigenous juveniles.

The Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 has been introduced to the Senate of the federal Parliament. The Bill seeks to prohibit mandatory detention of juveniles in any state or territory. The Senate Legal and Constitutional References Committee report of the inquiry into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 was delivered in early March 2000. The report concluded that:

The Committee is convinced by the submissions and argument that mandatory minimum sentencing is not appropriate in a modern democracy that values human rights, and it contravenes the Convention on the Rights of the Child. Whilst there are differences between the Western Australian and Northern Territory mandatory sentencing regimes, the Committee accepts the views as expressed by the Law Council of Australia -'we are comparing bad with bad and we are trying to prioritise badness.' [55]

The Committee recommended that the Bill be legislated. It has since passed through the Senate, the upper chamber of the federal Parliament, but has yet to be considered in the lower house.

The United Nations High Commissioner for Human Rights has also recently provided comments to the Australian government on the compatibility of the mandatory detention laws with Australia's international obligations.

5) The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Bringing them home

The Human Rights and Equal Opportunity Commission conducted a major inquiry during the reporting period into the separation of Aboriginal and Torres Strait Islander children from their families. The inquiry was required to trace the historical practice of forcibly removing Indigenous children from their families, and the effects of that removal. Formal Terms of Reference were issued on 11 May 1995 and revised in August 1995.

The terms of reference required HREOC to:

a) trace the past laws, practices and policies which resulted in the separation of Aboriginal and Torres Strait Islander children from their families by compulsion, duress or undue influence and the effects of those laws, practices and policies;

b) examine the adequacy of and the need for any changes in current laws, practices and policies relating to services and procedures currently available to those Aboriginal and Torres Strait Islander peoples who were affected by the separation under compulsion, duress or undue influence of Aboriginal and Torres Strait Islanders children from their families, including but not limited to current laws, practices and policies relating to access to individual and family records and to other forms of assistance locating and reunifying families;

c) examine the principles relevant to determining the justification for compensation for persons or communities affected by such separations;

d) examine current laws, practices and policies with respect to the placement and care or Aboriginal and Torres Strait Islander children and advice on any changes required taking into account the principles of self determination by Aboriginal and Torres Strait Islander peoples.

In performing its functions in relation to the terms of reference, the Commission is to consult widely among the Australian community, in particular with Aboriginal and Torres Strait Islander communities, with relevant non-government organisations and with relevant Federal, State and Territory authorities and if appropriate may consider and report on the relevant laws, practices and policies of any other country.

The outcome of the inquiry, the report Bringing Them Home, was tabled in the Commonwealth Parliament on 26 May 1997. The Commonwealth Government formally responded to the report on 16 December 1997.

Conclusions and Recommendations of the report

The report contains detailed information concerning the legislative history of State, Territory and Commonwealth laws applying specifically to Indigenous children and general child welfare and adoption laws. In all Australian States and Territories from around 1900 onwards legislation was enacted to deal with Indigenous children in accordance with the policy of assimilation and protection. These enactments outlined procedures and criteria by which Indigenous children could be made wards of the State and removed from their families. Legal enactments concerning Indigenous child welfare were progressively repealed in the 1950s and 1960s.

The inquiry found that these legislative regimes were racially discriminatory in that they established legal regimes for Indigenous children and their families which were distinct and inferior to those for non Indigenous children and their families. For example, Indigenous children and their families were commonly denied access to judicial review. The inquiry further found that many of the discriminatory practices that evolved under these specific enactments continued after the enactment of general child welfare legislation in the States and the Northern Territory.

The inquiry also found that there were a number of other features of the assimilation policies that were clearly discriminatory. For example, a number of jurisdictions legislated to remove the parental rights of Indigenous parents. In some States, the chief protector [56], or an equivalent official, was made the legal guardian of all Indigenous children. Moreover, chief protectors and protection boards were not required to consider questions of reasonableness or sufficiency in relation to the confinement of Indigenous children.

Additionally, the various protectors and protection boards that were made responsible for Indigenous people owed legal obligations of care and protection to the children who were forcibly removed and place under their control. The inquiry found that protectors and protection boards failed in their guardianship and fiduciary duties to Indigenous wards to whom they had statutory and common law responsibilities. The boards generally failed to provide care to contemporary standards, to protect the children from harm and involve Indigenous parents in decision making about their children. In many cases, the agents or delegates of the State (missions, church institutions, foster carers and employers) also breached their fiduciary duties.

The inquiry found that the policy of forcibly transferring Indigenous children to non Indigenous institutions fell within the international legal definition of genocide. The inquiry noted that from 1948 onwards, the date of the Convention on the Prevention and Punishment of the Crime of Genocide, there were clear statements on the content of the crime of genocide and its unlawfulness. The Commonwealth of Australia ratified the Convention in 1949 and it entered into force in 1951.

The inquiry noted that the crime of genocide is not restricted to the immediate physical destruction of a group but includes the forcible transfer of children [article 2(e)] with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group. The inquiry noted that the essence of the crime of genocide is the intention to destroy the group. The inquiry concluded that child removal policies were genocidal because the principal aim was the elimination of Australia's Indigenous peoples' distinct identities. The inquiry recommended that the Commonwealth Parliament legislate to give domestic legal effect to the Convention on the Prevention and Punishment of the Crime of Genocide. The inquiry found that the continuation into the 1970s and 1980s of preferring non Indigenous foster and adoptive families for Indigenous children was also genocidal.

The inquiry found that from about 1950 onwards, the continuation of separate welfare laws for Indigenous children was in breach of the international legal prohibition of racial discrimination.

The inquiry also noted that international human rights law recognises the right of victims of gross violations of human rights to reparation. The inquiry recommended that reparation be made to all who suffered because of forcible removal policies. The inquiry used the principles outlined by Professor Theo van Boven in the document titled Basic principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights [57] as an appropriate basis upon which to assess reparations. In accordance with the van Boven principles, the inquiry recommended that reparation should consist of acknowledgment and apology, guarantees against repetition, measures of restitution, measures of rehabilitation and monetary compensation.

Implementation of the recommendations of the report

In 1998 a follow-up project was undertaken by the Human Rights and Equal Opportunity Commission to collate the various government responses and report on the progress of their implementation. [58]

In November 1999, the Senate referred matters relating to the recommendations of Bringing Them Home to a Legal and Constitutional References Committee for inquiry and report by October 2000, including the adequacy and effectiveness of the Commonwealth Government's response and the possibility of establishing an alternative dispute resolution mechanism for resolving stolen generation issues. [59]

Relevance to CERD

Articles 2 and 5

The Bringing Them Home Report made it clear that the policies and practices underlying the removal of Aboriginal children from their families were discriminatory. There remains an obligation to redress this past discrimination and to provide effective remedy through competent authorities for any person whose rights or freedoms have been violated. Bringing Them Home made recommendations in relation to the provision of reparations and monetary compensation under particular heads of damage; the establishment of a National Compensation Fund; and the granting of minimum lump sums for those Indigenous people affected by policies of forcible removal. The Commonwealth Government rejected the proposal for reparations or monetary compensation, and has adopted a 'watching brief' in respect of ongoing litigation. [60]

Additionally, despite Australia being a signatory to the 1949 Convention on the Prevention and Punishment of the Crime of Genocide, successive governments have not enshrined this law domestically. In September 1999 the Federal Court confirmed in the case of Nulyarimma v Thompson [61] that there is no offence of genocide known in Australian law.

Bringing Them Home recommended that the Commonwealth Government legislate to implement the Genocide Convention with full domestic effect as part of official recognition that removal policies of the past are over and will not be repeated. In response, the Commonwealth Government claimed that no genocide occurred in Australia, so therefore there was no need to implement the Convention. [62]

In October 1999, the Senate referred an Anti-Genocide Bill put forward by the Australian Democrats to the Legal and Constitutional References Committee for investigation and review by June 2000. [63]

General Recommendations XXI and XXIII

Bringing Them Home recommended self-determination be implemented in relation to the well-being of Indigenous children and young people through national framework legislation for juvenile justice and care and protection systems. The Commonwealth Government actively rejected these recommendations. [64]

6) Royal Commission into Aboriginal Deaths in Custody

The Royal Commission into Aboriginal Deaths in Custody was established by the Commonwealth Government in 1987 in response to concerns at the number of Indigenous people dying in custody.

The Royal Commission inquired into the deaths of ninety-nine Aboriginal and Torres Strait Islander people who had died in custody during the period between 1 January 1980 and 31 May 1989 and the findings for each were handed down in separate reports.

The terms of reference of the Royal Commission was subsequently expanded to allow for investigation into the underlying causes of incarceration.

The whole range of societal and historical factors which impact on Aboriginal lives came into focus from the investigations into the deaths of so many of them which occurred whilst ostensibly under the care and protection of the State. [65]

The Royal Commission made 339 recommendations, which subsequently received widespread apparent support from Australian governments within the confines of their jurisdictions.

In compliance with the Royal Commission report, national, state and territory Aboriginal Justice Advisory Committees have been established to monitor the implementation of the Royal Commission recommendations.

Despite the recommendations of the Royal Commission into Aboriginal Deaths in Custody, the rate at which Indigenous people come into contact with the criminal justice system has not improved in the past decade.

From 1988 to 1998, the Indigenous prisoner 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 year for the decade. This is 1.7 times the average annual growth rate of the non-Indigenous prison population; [66]
Figures for the June 1999 quarter indicate that 76% of all prisoners in the Northern Territory (NT) and 34% of all prisoners in Western Australia (WA) were Indigenous. The rate of imprisonment of Indigenous people in Western Australia was 21.7 times higher than that of the non-Indigenous population. 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. [67]
The number of Indigenous deaths in custody in the decade since the Royal Commission has been 147, compared to 99 in the decade before the Royal Commission.[68] 17.2% of all prison deaths in the 1990s have been Indigenous people, compared to 12.1% in the 1980s. [69]

Relevance to CERD

The over-representation of Indigenous prisoners in Australian gaols and the high incidence of death amongst the Indigenous prison population raises concerns in relation to CERD.

General Recommendation XXI: Self-determination

Self-determination was prescribed by the Royal Commissioners as being necessary for Aboriginal and Torres Strait Islander peoples to overcome their previous and continuing, institutionalised disadvantage and domination. "The thrust of this report is that the elimination of disadvantage requires an end of domination and an empowerment of Aboriginal people; that control of their lives, of their communities must be returned to Aboriginal hands." [70]

The Australian Government has abandoned self-determination as a policy direction for Aboriginal and Torres Strait Islander peoples.

Non-discrimination and equality (Articles 2 and 5)

The inequality that exists between Indigenous and non-Indigenous peoples in Australia, in relation to every major socioeconomic indicator was highlighted in the Royal Commission Report. The continuing over-representation of Indigenous prisoners in Australian gaols and the high levels of Indigenous deaths in custody indicate that the underlying causes of Indigenous disadvantage have not been addressed since the publication of the Commission Report in 1991.

7) Bilingual Education

In December 1998 the Northern Territory Government announced that it was phasing out bilingual education programs in government schools in Aboriginal communities, and replacing them with 'English as a Second Language' programs. The primary reason given by the government for this change was the low standards of English literacy among Aboriginal students.

The Commonwealth Government is currently undertaking its own Inquiry into Indigenous Education that is due to report in March 2000. The Human Rights and Equal Opportunity Commission is also currently conducting a National Inquiry into Rural and Remote Education and consultations in the Northern Territory have highlighted widespread concern about changes to bilingual education programs. [71]

Many Aboriginal communities who currently have bilingual education programs have stated that the decision of the Northern Territory Government was made without appropriate consultation or a genuine desire to address the systemic issues underlying the vastly disproportionate rate of Aboriginal students' participation in education. The integration of Aboriginal languages into the formal education system through bilingual programs makes schooling more accessible to Aboriginal students, and also values Aboriginal educators and knowledge. Aboriginal communities state that the success of the education of their children should be measured not only by standards of English literacy, but also by respect for their rights to education, language, culture and land.

Relevance to CERD

Bilingual education programs recognise cultural difference in a manner that is non-discriminatory in international law.

The Committee on the Elimination of Racial Discrimination has recognised that measures that seek to protect the culture and identity of Indigenous peoples may constitute a legitimate, non-discriminatory differentiation of treatment, and fall within Article 5 of the Convention. The Committee has indicated that CERD places obligations on governments to take all appropriate means to combat and eliminate discrimination against Indigenous peoples:

1. [T]he Committee has consistently affirmed that discrimination against Indigenous peoples falls under the scope of the Convention and that all appropriate means must be taken to combat and eliminate such discrimination. …

3. The Committee is conscious of the fact that in many regions of the world Indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized.

4. The Committee calls in particular upon States parties to:

a. recognize and respect Indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation; … [and]

d. ensure that members of Indigenous groups have equal rights in respect of effective participation… and that no decisions directly relating to their rights and interests are taken without their informed consent;

e. ensure that Indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages. [72]

8) Interpreter services in Aboriginal languages in the Northern Territory

There has been significant concern expressed by Indigenous people in the Northern Territory at the lack of availability of interpreter services in Aboriginal languages for services, especially health and legal services.

In response, the Northern Territory Anti-Discrimination Commissioner conducted an inquiry into:

whether there is a need for an interpreter service;
the effect of a lack of interpreter service on access to government services for Indigenous people;
the extent of disadvantage suffered by Indigenous people as a result of the lack of interpreter services in the delivery of legal and medical services;
feasibility of establishing a permanent service, as well as how such a service might work (including cost, number of languages, training and access and availability due to geographical issues etc); and
alternative approaches to ensure equal access to services and facilities.

In July 1999 the then Northern Territory Anti-Discrimination Commissioner published her report of inquiry into the lack of interpreter services. [73]

The report found as follows:

Aboriginal people represent 27% of the population in the Northern Territory, of which 74.5% speak an Indigenous language and have a poor understanding of English;
Aboriginal people are not provided with interpreter services to assist with language difficulties in accessing community services, particularly health and legal services;
By comparison, all other people of non-English speaking background (who comprise 8% of the Territory's population) are able to access free interpreter services in over 150 languages;
The consequences of this are that many Indigenous people are unable to provide their informed consent to invasive medical procedures, as well as to understand court procedures. The inquiry heard numerous horror stories of medical procedures performed without consent (see pages 30-45), as well as widespread concern from the judiciary and members of the legal profession on the need for interpreter services in legal processes. (see pages 1-6, 30-45);
In relation to legal services it is important to recall that the Royal Commission into Aboriginal Deaths in Custody recommended (recommendation 99) that legislation in all jurisdiction should provide that the court must be satisfied that an Aboriginal defendant has the ability to fully express himself or herself in the English language. If they cannot, then the Court should not proceed until a competent interpreter is provided without cost to that person.

The report concluded that:

the extent of disadvantage and less favourable treatment for non-English speaking Aboriginal people due to the lack of an interpreter service in the Northern Territory is enormous and far-reaching. Aboriginal people represent in excess of 50% of clients utilising legal and medical services and facilities in the Northern Territory. However, they are unable to properly access and utilise those services, due to cultural and language barriers which exist, which inhibits communication between themselves and service providers. These barriers impede and frustrate service delivery for both the provider and user, and furthermore create extreme difficulties and problems causing inappropriate, inefficient and non-cost effective delivery of services. (Page 64)

The report also concluded that the failure to provide interpreter services was in breach of the Northern Territory Anti-Discrimination Act 1992 and the federal Racial Discrimination Act 1975. The Commissioner particularly expressed concern that both acts contain special measures provisions that could be used overcome this particular disadvantage faced by Aboriginal people (see report page 8-11).

The report also concluded that the failure to provide interpreter services contravenes Australia's obligations under the ICCPR. In particular, it is in breach of the following provisions:

Articles 9(2): The right of a person who is arrested to be promptly informed of the reason for arrest and of any charges to be laid;
Article 14(3)(f): The right of a person charged with a criminal offence, in full equality and as a minimum guarantee, to have the free assistance of an interpreter in court; and
Article 26: Equality before the law.

Articles 1(4), 2 and 5 of CERD are also breached by the lack of interpreter services.

The Northern Territory government is opposed to establishing an interpreter service, and the Commonwealth government sees the provision of this service as an internal matter for the Northern Territory.

9) Multiculturalism

BACKGROUND

In 1997 the government established the National Multicultural Advisory Council (NMAC) to "develop a report which recommends … a policy and implementation framework for the next decade that is aimed at ensuring that cultural diversity is a unifying force for Australia".

The establishment of NMAC is discussed at paragraph 121 of the Australian periodic report.

NMAC delivered its report Australian Multiculturalism: Towards an Inclusive Australia Multicultural Australia in May 1999. The report contained 32 recommendations to government concerning the further development of multicultural policy in Australia.

A New Agenda for a Multicultural Australia released in December 1999, outlines the government's response to the NMAC report and confirms its support for most of the recommendations outlined in the report.

A new agenda for multicultural Australia

The following are excerpts from the Australian government report:

The term Australian multiculturalism summarises the way we address the challenges and opportunities of our cultural diversity. It is a term which recognises and celebrates Australia's cultural diversity. It accepts and respects the right of all Australians to express and share their individual cultural heritage within an overriding commitment to Australia and the basic structures and values of Australian democracy. It also refers specifically to the strategies, policies and programs that are designed to:

make our administrative, social and economic infrastructure more responsive to the rights, obligations and needs of our culturally diverse population;

promote social harmony among the different cultural groups in our society; and

optimise the benefits of our cultural diversity for all Australians.

The values of Australian multiculturalism form one dimension of the values which make up Australian citizenship which is built on a set of common civic values, rights and obligations that can unify Australians. These include: respect for institutional structures, participation in support of democracy and its institutions, respect for the law, respect for and tolerance of others' beliefs and practices, individual freedom of association and prime loyalty to Australia's interests…

For multiculturalism to be a unifying force in our developing nationhood and identity, it needs to be inclusive. It is about and for all Australians; it is not concerned mainly with immigration and minority ethnic communities. Multicultural Australia emphasises the things that unite us as a people - our common membership of the Australian community, our desire for social harmony, the benefits of our diversity and our evolving national character and identity.

In this context, the multicultural framework of our society has broadly benefited Indigenous peoples through its promotion of the integrity of diverse cultures and their harmonious intermingling. Aboriginal and Torres Strait Islander peoples are Australia's original inhabitants - its 'First Peoples'. While, therefore, they provide a foundation for the cultural diversity of the nation, it is appropriate that their distinct needs and rights be reaffirmed and accorded separate consideration…

The Government's Productive Diversity strategy aims to capitalise on the linguistic and cultural skills, business networks and market knowledge of individuals in our diverse population an

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Aboriginal & Torres Strait Islander Social Justice navigation

Information concerning Australia and the International Convention on the Elimination of All Forms of Racial Discrimination

Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner, Human Rights and Equal Opportunity Commission

1) Native Title

3) Indigenous disadvantage and special measures

4) Mandatory detention laws in the Northern Territory and Western Australia

5) The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Bringing them home

6) Royal Commission into Aboriginal Deaths in Custody

7) Bilingual Education

8) Interpreter services in Aboriginal languages in the Northern Territory

9) Multiculturalism