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Social Justice Report 2000: Chapter 3: International scrutiny of Australia's Indigenous Affairs policies

Social Justice Report 2000

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  • Chapter 3: International scrutiny of Australia's Indigenous Affairs policies

    Introduction

    The
    CERD and the periodic reporting process

    Australia's
    appearance before the Committee on the Elmination of Racial Discriminaiton
    in March 2000

    The
    dialogue between Australia and CERD - March 2000

    The
    meaning of non-discrimination and equality under the Convention

    The
    existence of a margin of appreciation in implementing the non-discrimination
    principle

    Protecting
    human rights in a federal system

    An
    entrenched guarantee of racial non-discrimination

    Redressing
    Indigenous disadvantage

    Indigenous
    peoples and criminal justice systems

    Mandatory
    sentencing

    Reconciliation
    (including responding to forcible removal policies)

    The
    government's response to CERD, and the treaty review process

    Conclusion


    In
    the past year Australia's compliance with international human rights obligations
    has been under scrutiny by United Nations human rights treaty committees
    through consideration of Australia's periodic reports under four treaties.
    [1] Much of this attention has focused on issues
    relating to Aborigines and Torres Strait Islanders. This chapter focuses
    on the dialogue between the Australian government and the Committee on
    the Elimination of Racial Discrimination (the Committee or the CERD),
    which took place in March 2000. The dialogue concerned Australia's compliance
    with the International Convention on the Elimination of All Forms of Racial
    Discrimination (the Convention or ICERD). The Committee's concluding observations
    on Australia were released on 24 March 2000. They expressed concern about
    Australia's compliance across a wide range of matters relating to Indigenous
    issues. The government rejected the Committee's comments and criticised
    its operation. This dialogue was a catalyst for a whole of government
    review of our participation in the United Nations human rights treaty
    system. The government's views on how Australian laws, policies and practices
    meet the requirements of the Convention are considered in this chapter.
    Also considered are whether the conclusions reached by the Committee are
    sustainable, and whether the government's response to the Committee was
    justified. In the course of this assessment a number of myths surrounding
    the operation of the treaty system and Australia's international obligations
    are exposed.

    The
    CERD and the periodic reporting process

    The CERD was
    the first human rights committee established within the United Nations
    structure. It consists of 'eighteen experts of high moral standing and
    acknowledged impartiality'. [2] Members are nominated
    by States Parties to the CERD [3] and elected through
    a secret ballot. Members of the Committee, or experts, do not represent
    their country of origin - they take their places on the Committee as independent
    experts on racial discrimination. To ensure their independence, members
    serve in a personal capacity and cannot be dismissed during their term.

    The CERD monitors
    and reviews the actions of States who are parties to the Convention through
    four main mechanisms [4] : the periodic reporting
    mechanism [5]; requests for further information from
    States parties (for example, the early warning / urgent action procedure)
    [6]; individual communications [7];
    and state-to-state complaints. [8]

    The CERD's
    consideration of Australia in March 2000 took place in accordance with
    the periodic reporting mechanism. Under Article 9 of ICERD, States Parties
    are required to submit a report on the legislative, judicial, administrative
    or other measures that they have adopted and which give effect to the
    provisions of the Convention. States parties are required to submit comprehensive
    reports to the Committee every four years, with brief updating reports
    at intervening two-year periods.

    The periodic
    reporting obligation is designed to assist each State party fulfil its
    obligations under the treaty, as well as provide a basis on which the
    Committee can discharge its responsibilities to monitor state parties'
    compliance. The reporting process is not merely 'a procedural matter designed
    solely to satisfy each State Party's formal obligation to report to the
    appropriate international monitoring body.' [9] It
    has the following varied purposes:

    1. To 'ensure that a comprehensive review is undertaken with respect
    to national legislation, administrative rules and procedures, and
    practices in an effort to ensure the fullest possible conformity'
    [10] with the treaty, upon submission of the
    initial report by a State party.

    2. To 'ensure that the State party monitors the actual situation
    with respect to each of the rights on a regular basis and is thus
    aware of the extent to which the various rights are, or are not, being
    enjoyed by all individuals within its territory or under its jurisdiction'.
    [11]

    3. To 'provide the basis for the elaboration of clearly stated and
    carefully targeted policies, including the establishment of priorities
    which reflect the provisions of the [treaty] ... [and] to enable the
    Government to demonstrate that such principled policy-making has in
    fact been undertaken'. [12]

    4. To 'facilitate public scrutiny of government policies ... and to
    encourage the involvement of the various ... sectors of society in the
    formulation, implementation and review of the relevant policies ... [T]he
    preparation of the report, and its consideration at the national level
    can come to be of at least as much value as the constructive dialogue
    conducted at the international level between the Committee and representatives
    of the reporting State '. [13]

    5. To 'provide a basis on which the State party itself, as well as
    the Committee, can effectively evaluate the extent to which progress
    has been made towards the realization of the obligations contained
    in the [treaty]'. [14]

    6. To 'enable the State party itself to develop a better understanding
    of the problems and shortcomings encountered in efforts to realize'
    [15] the full range of rights recognised in
    the relevant treaty, and consequently to provide 'the framework within
    which more appropriate policies can be devised'. [16]

    7. To enable 'the Committee, and the States Parties as a whole, to
    facilitate the exchange of information among States and to develop
    a better understanding of the common problems faced by States and
    a fuller appreciation of the type of measures that might be taken
    to promote effective realization of each of the rights contained'
    [17] in the treaty. This also assists in identifying
    the most appropriate means by which the international community might
    assist States through the provision of technical assistance. [18]

    Australia's
    appearance before the Committee on the Elimination of Racial Discrimination
    in March 2000

    Australia
    submitted its combined 10th, 11th and 12th periodic reports under ICERD
    on 20 July 1999 [19] and the government delegation
    appeared before the Committee at their 56th session on 21 and 22 March
    2000. The timing of this appearance was related to the ongoing scrutiny
    of the native title amendments by the Committee under their early warning/urgent
    action procedure. The Committee initiated the early warning procedure
    against Australia in August 1998 due to concerns about the potentially
    discriminatory nature of the amended Native Title Act 1993. In March 1999,
    the Committee released concluding observations that found the amended
    Native Title Act to be discriminatory and in breach of the Convention.
    [20] The Australian government disagreed with the
    Committee's conclusions, and replied that the Committee had failed to
    take into account the broader context of government policies relating
    to Indigenous people in reaching its conclusions. In particular, the government
    argued that:

    The Australian
    Government's overall priority in indigenous affairs is to support Aboriginal
    and Torres Strait Islander people to overcome a history of disadvantage
    within Australian society, through a combination of initiatives designed
    to address health and welfare needs, while encouraging economic development
    and self-reliance ... It aims to ensure that all Australians share equally
    in a common future which will form the basis of a lasting reconciliation.
    [21]

    In August 1999
    the Committee reaffirmed its conclusions on native title and, in recognition
    of the views of the Australia government regarding the broader context
    of addressing Indigenous issues, also decided to 'continue consideration
    of this matter, together with the tenth, eleventh and twelfth periodic
    reports of the State party, during its fifty-sixth session in March 2000'.
    [22]

    In the dialogue
    between the government and the Committee, Ms Gay McDougall [23]
    acted as Country Rapporteur for the Committee [24]
    and led the analysis of Australia's compliance. The Honourable Phillip
    Ruddock MP, Minister for Immigration and Multicultural Affairs and Minister
    Assisting the Prime Minister on Reconciliation, led the Australian delegation.

    The Committee
    adopted its concluding observations on Australia on 24 March 2000. [25]
    The Committee acknowledged the following positive aspects of Australia's
    compliance with the Convention:

    • The comprehensiveness of Australia's reports and the constructive
      dialogue with the high level delegation (para 2);
    • The fact that Australia had addressed some of the concerns raised
      by the Committee in their previous concluding observations on Australia
      in 1994 (para 3);
    • The implementation of the recommendations of the Royal Commission
      into Aboriginal Deaths in Custody in the period 1992-1998, and the
      development of a range of institutions, legislation, policies and
      programs to address racial discrimination (para 4);
    • The significant efforts that have taken place to achieve reconciliation
      (para 12);
    • The implementation of recommendations of the Bringing them home
      report to facilitate family reunion and improve counselling and family
      support services (para 13);
    • The introduction of the Racial Hatred Act 1995 (Cth) (para 14);
      and
    • The efforts made by the government to increase spending on health,
      housing, employment and education programmes for indigenous Australians
      (para 18).

    The Committee
    also expressed the following concerns of relevance to Indigenous Australians:

    • The lack of an entrenched guarantee in Australian law against racial
      discrimination, which would override any subsequent legislation at
      the federal, state or territory levels (para 6);
    • The failure of the Commonwealth government to ensure compliance
      of the states and territories with the obligations under the Convention,
      including by utilising its powers under section 51(xxix) of the Constitution
      in relation to external affairs or section 122 in relation to territories
      (para 7);
    • The continuation of discriminatory practices in relation to native
      title, particularly the development of state regimes for future acts
      (para 8);
    • The unsatisfactory response of the Government to the Committee's
      findings of March 1999 and August 1999 that the native title amendments
      are racially discriminatory (para 9);
    • Proposed or actual changes to the role and functions of the Aboriginal
      and Torres Strait Islander Commission and the Aboriginal and Torres
      Strait Islander Social Justice Commissioner which may limit their
      capacity to address the full range of issues relating to Indigenous
      peoples (para 11);
    • The progress of reconciliation, and the apparent loss of confidence
      of Indigenous people in the process (para 12);
    • The inadequate response of the government to the recommendations
      of Bringing them home, including the failure to provide a national
      apology and monetary compensation (para 13);
    • The maintenance of a reservation to the Convention in relation to
      racial vilification, and the limitations of the Racial Hatred Act
      1995 (Cth) (para 14);
    • Over-representation of Indigenous people in the criminal justice
      system (para 15);
    • Lack of interpreter services for Indigenous people in court processes
      (para 15);
    • The discriminatory impact of mandatory sentencing laws in the Northern
      Territory and Western Australia on Indigenous people (para 16); and
    • The extent of continuing discrimination and disadvantage faced by
      Indigenous people, and the lack of equality in Australian society
      that it reflects. The Committee also highlighted the obligation on
      the government to adopt measures to redress this situation within
      the shortest timeframe possible (para 18).

    The
    dialogue between Australia and the CERD - March 2000

    This section
    examines the dialogue between the Committee and the Australian government
    delegation in Geneva on 21 and 22 March 2000. [26]
    The dialogue was wide-ranging, with every committee member contributing.
    Each member raised issues on which they sought further information as
    to how a particular law, policy or practice complied with the obligations
    under the Convention. This section evaluates the government's arguments
    and considers whether the Committee was justified in reaching the conclusions
    that they did. It does so under the following headings:

    • The meaning of equality and non-discrimination under the Convention;
    • The existence of a margin of appreciation in implementing the non-discrimination
      principle;
    • Protecting human rights in a federal system;
    • The lack of an entrenched guarantee of racial non-discrimination;
    • Redressing Indigenous disadvantage;
    • Indigenous people and the criminal justice systems;
    • Mandatory sentencing; and
    • Reconciliation (including responding to forcible removal policies).
      [27]

    The
    meaning of non-discrimination and equality under the Convention

    In order to
    evaluate Australia's performance under ICERD it is necessary to consider
    what constitutes racial discrimination for the purposes of the Convention.
    Racial discrimination is defined in Article 1.1 of the Convention as:

    any distinction, exclusion, restriction or preference based
    on race, colour, descent or national or ethnic origin which has the
    purpose or effect of nullifying or impairing the recognition, enjoyment
    or exercise, on an equal footing, of human rights and fundamental freedoms
    in the political, economic, social, cultural or any other field of public
    life.

    The Convention
    specifies in Article 1.4 that 'special measures' taken for the sole purpose
    of securing adequate advancement of certain racial or ethnic groups or
    individuals 'requiring such protection as may be necessary in order to
    ensure such groups or individuals equal enjoyment or exercise of human
    rights' shall not be deemed racial discrimination. [28]

    The definition
    of racial discrimination in the Convention is integrally linked to the
    concept of equality before the law. It 'catches measures that are intended
    to result in inequality and measures which (with or without intent) have
    an unequal effect on the rights and freedoms of the individuals and groups
    involved'. [29] Article 5 of the Convention requires
    that:

    States Parties undertake to prohibit and to eliminate racial
    discrimination in all its forms and to guarantee the right of everyone,
    without distinction as to race, colour, or national or ethnic origin,
    to equality before the law.

    At the outset
    of the dialogue, the Country-Rapporteur sought clarification from the
    Australian government as to its interpretation of the principle of equality
    before the law:

    First of all, is it the view of the state party that the
    Convention establishes a legal duty to ensure formal equality with respect
    to the rights of historically disadvantaged racial and ethnic groups
    that still suffer from those inequalities, or is it substantive equality
    that is the obligation, and what are your definitions and where do you
    place special measures within that framework? [30]

    The Australian
    delegation answered in the following terms:

    Australia regards its obligations under the Convention as
    requiring equality between racial groups. This equality can be achieved
    by formal equality and special measures, where appropriate, or by substantive
    equality which recognizes that differential treatment is not necessarily
    discriminatory if it is legitimate, recognizing legitimate difference
    or distinct rights. [31]

    The Country-Rapporteur
    responded by stating that:

    I'm also very pleased to hear your delegation confirm that
    it is the position of the state party that the Convention establishes
    an obligation to ensure substantive equality, not mere formal equality,
    in situations like those that prevail in Australia today. [32]

    The delegation
    responded further to this as follows:

    Ms McDougall ... made the point ... that Australia had confirmed
    that substantive equality is required. I just wanted to make a little
    comment about that, and the issue ... about whether Australia regarded
    formal equality as sufficient for the purposes of the Convention. I
    think the Australian Government does not argue that the Convention only
    requires formal equality, and this point was certainly made to the Committee
    members when the Australian delegation appeared in March last year.
    [33] I suppose that the way the Australian Government
    would see its obligations under the Convention is that the equality
    required by the Convention can be achieved in a number of ways - that
    equality is equality between racial groups - and those ways include
    by formal equality and special measures where appropriate, and by substantive
    equality which recognises differential treatment, that differential
    treatment is not necessarily discriminatory. [34]

    This clarification
    indicates that the government does not in fact accept that a substantive
    equality approach is required in order to meet its obligations under the
    Convention. Instead it indicates that the Convention's obligations can
    be met by a combination of measures that meet either a formal equality
    standard (including through the adoption of special measures), or a substantive
    equality standard.

    In its submission
    to the Parliamentary Joint Committee on Native Title and the Aboriginal
    and Torres Strait Islander Land Fund [35] inquiry
    into CERD and the Native Title Amendment Act 1998, the federal Attorney-General's
    Department elaborated further on the meaning of non-discrimination under
    the Convention:

    At the time the CERD Convention was drafted, equality was
    conceptualised as sameness or identical treatment. Under this approach
    any distinctions in treatment are considered discriminatory ... The only
    exception to identical treatment provided under this scheme was for ...
    'special measures' ...[36]

    The Department
    argued that since the Convention was drafted, the meaning of equality
    has changed in international customary law to incorporate the idea that
    differences in treatment are permissible in order to achieve real or substantive
    equality. Accordingly, this changing interpretation has meant that:

    The Convention is now seen by many as incorporating principles
    that allow differences in treatment provided they are permissible in
    terms of substantive equality. [37]

    The government
    expanded this interpretation to the Human Rights Committee, when Australia's
    periodic report under the ICCPR was considered in July 2000. Before that
    Committee, the Government delegation stated:

    Concerning Article 26 dealing with equality before the law and the
    prohibition of discrimination, I would note first that international
    law admits of both a formal and a substantive standard for assessing
    equality. Traditionally, racial equality was conceived of in terms
    of formal equality and, in that respect, the spirit of equality would
    lie in sameness and identical treatment, however, international law
    recognises that in some circumstances, positive discrimination towards
    certain racial groups may be necessary. This would be the case where
    in instances of underlying disadvantage, temporary affirmative action
    or special measures are allowed in order to hasten equal enjoyment
    of rights for all racial groups.

    Since that time, the interpretation of the concept of equality has
    broadened to include substantive equality in that Governments may
    treat like things alike and different things differently. However,
    this alternative way of defining equality does not preclude the one
    originally conceived of in international law.The
    two approaches to the issue of equality coexist in international law.
    [38]

    I have some
    concerns about these explanations.

    On the one
    hand, the government's explanations accept that the obligations under
    ICERD and the ICCPR can be met by the provision of substantive equality
    (ie., different treatment if justified by the circumstances of a situation,
    when judged in accordance with the purposes and objectives of the Convention).
    This is a significant advance from the position advocated by the government
    during the native title debates in 1997 and 1998. [39]
    Such an advance is testimony to the value of international dialogues such
    as those with the CERD, as the international scrutiny of Australia's policies
    has clearly encouraged the government to explain its actions with a different
    frame of reference from that which it applies domestically.

    On the other
    hand, the government's explanation is unclear as to whether providing
    substantive equality is obligatory or discretionary. It suggests that
    Australia's obligations under ICERD can be met by the provision of mere
    formal equality (ie., identical treatment, with the only differential
    treatment that is permissible being special measures). Substantive equality
    on this view is not seen as a fundamental requirement at international
    law, but as an optional extra. Accordingly, the government can choose
    to provide protective measures if it considers it legitimate to do so,
    and it can also choose not to. [40]

    My concern
    is that there are circumstances in which it will be necessary for particular
    racial groups to be treated differently, in order to ensure that they
    are able to enjoy human rights in a non-discriminatory and equal manner.
    In interpreting the definition of racial discrimination in Article 1.1
    of the Convention, the CERD has stated that:

    A differentiation
    of treatment will not constitute discrimination if the criteria for such
    differentiation, judged against the objectives and purposes of the Convention,
    are legitimate or fall within the scope of Article 1, paragraph 4 (special
    measures) ... In seeking to determine whether an action has an effect contrary
    to the Convention, it will look to see whether that action has an unjustifiable
    disparate impact upon a group distinguished by race, colour, descent or
    national or ethnic origin. [41]

    Accordingly,
    under the Convention the classification of a form of different treatment
    as non-discriminatory is not confined to actions that qualify as special
    measures. The CERD has recognized, for example, that the protection of
    Indigenous culture and identity constitute a legitimate, non-discriminatory
    differentiation of treatment. It has called on States 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;

    b) ensure that members of indigenous peoples are free and equal in
    dignity and rights and free from any discrimination, in particular
    that based on indigenous origin or identity;

    c) provide indigenous peoples with conditions allowing for a sustainable
    economic and social development compatible with their cultural characteristics;

    d) ensure that members of indigenous peoples have equal rights in
    respect of effective participation in public life 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
    practice and revitalize their cultural traditions and customs and
    to preserve and practice their languages. [42]

    A failure to
    provide positive measures of protection to Indigenous culture may in fact
    operate to deny Indigenous people the opportunity to equally enjoy their
    human rights on a non-discriminatory basis.

    The government's
    explanation of their obligation to provide equality is ambiguous, as it
    does not acknowledge that there may be circumstances in which such differential
    treatment is required. Instead, it leaves the government with a wide discretion
    (exercised in accordance with political concerns rather than an objective
    appraisal of the Convention's twin objectives of equality and non-discrimination)
    to determine which circumstances warrant protective measures.

    Similarly,
    contrary to the government's position, the standard of equality required
    at international law was not a formal equality standard at the time of
    the adoption of the Convention in 1965. There is authority to suggest
    that by that time, international law accepted a substantive equality approach.
    This makes any suggestion that formal equality co-exists alongside substantive
    equality in international law today less tenable.

    This is demonstrated
    by the consideration of the protection of minorities by the United Nations
    Sub-Commission on the Prevention of Discrimination and the Protection
    of Minorities, in its first session in 1947. The Sub-Commission noted
    that the principle of equality has been informed by consideration of the
    twin objectives of preventing discrimination and protecting minorities:

    Prevention of discrimination is the prevention of any action which
    denies to individuals or groups of people, equality of treatment which
    they may wish;

    Protection
    of minorities is the protection of non-dominant groups which, while
    wishing in general for equality of treatment with the majority, wish
    for a measure of differential treatment in order to preserve basic
    characteristics they possess and which distinguish them from the majority
    of the population.

    If a minority
    wishes for assimilation and is debarred, the question is one of discrimination
    and should be treated as such. [43]

    The Permanent
    Court of International Justice in their advisory opinion on Minority Schools
    in Albania [44] noted the connection between these
    objectives in 1935. The Court noted that, in order to secure for the concerned
    minority groups the possibility of living peaceably alongside the rest
    of the population while preserving their own characteristics, two things
    were necessary:

    The first was
    to ensure that members of racial, religious or linguistic minorities should
    be placed in every respect on a footing of perfect equality with the other
    nationals of the State.

    The second
    was to ensure for the minority elements suitable means for the preservation
    of their own characteristics and traditions.

    These two requirements
    are indeed closely interlocked, for there would be no true equality between
    a majority and a minority if the latter were deprived of its institutions,
    and were consequently compelled to renounce that which constitutes the
    very essences of its being as a minority. [45]

    Put differently,
    to ensure the protection of minorities requires 'in the first instance,
    a guarantee of equal treatment (or the prevention of discrimination) together
    with additional special protective measures to preserve the distinct characteristics
    of the group'. [46]

    Judge Tanaka,
    in the 1965 decision of the International Court of Justice in the South
    West Africa case similarly stated that:

    The norm of
    non-discrimination as a reverse side of the notion of equality before
    the law prohibits a State to exclude members of a minority group from
    participating in rights, interests and opportunities which a majority
    population group can enjoy. On the other hand, a minority group shall
    be guaranteed the exercise of their own religious and education activities.
    This guarantee is conferred on the members of a minority group, for the
    purpose of protection of their interests and not from the motive of discrimination
    itself. By reason of protection of the minority this protection cannot
    be imposed upon members of minority groups, and consequently they have
    to choose to accept it or not. [47]

    Preventing
    discrimination and protecting diversity are integrally linked through
    the concept of equality as it is properly understood at international
    law. Formal equality is not sufficient to provide the full range of protection
    required.

    The
    existence of a margin of appreciation in implementing the non-discrimination
    principle

    A related issue,
    which the Country-Rapporteur raised in the dialogue with Australia, was
    as follows:

    [D]oes the state party consider the Convention to impose
    obligations that are absolute, or does the state party believe that
    there is a quote 'margin of appreciation' with respect to the obligations,
    the state party's obligation to enforce the provisions of our Convention?
    [48]

    The government
    responded:

    International law does accord States a 'margin of appreciation'
    in their implementation of international obligations, including non-discrimination
    principles.

    • It recognises the fact that there are circumstances in which
      national institutions are better placed to assess needs and make
      difficult choices between conflicting considerations.
    • The circumstances in which a State will be accorded a margin of
      appreciation will depend on the subject matter and the particular
      circumstances.
    • One of the circumstances recognised is in relation to novel areas
      of law.
    • Not only is native title law novel in Australia, the circumstances
      include its recognition where a system of land title derived from
      the Crown had been in existence for more than 200 years. [49]

    In its submission
    to the Parliamentary Joint Committee on Native Title inquiry into CERD
    and the Native Title Amendment Act 1998, the Attorney-General's Department
    elaborated the government's position as follows:

    The margin of appreciation is a degree of latitude allowed
    to individual States in their interpretation and application of treaty
    obligations ... Novel areas of law attract a wider margin of appreciation,
    such that a greater range of treatment will be regarded as meeting the
    treaty obligations ... A further consideration in terms of attracting a
    wider margin of appreciation is whether the overall effect of a scheme
    of law can be said to be reasonable. [50]

    The Attorney-General's
    Department also stated, in arguing why the native title amendments are
    not discriminatory, that the relevant test under international law as
    to whether something falls within the margin of appreciation is whether
    it is 'arbitrary [or] ... reasonable in the circumstances'. [51]

    The government
    relied on the notion of a margin of appreciation before both the CERD
    and the Human Rights Committee to argue that the native title amendments
    and mandatory sentencing laws are not racially discriminatory. [52]

    The government's
    arguments that there is a margin of appreciation in relation to the non-discrimination
    principle must be rejected. There are three reasons why.

    First, the
    prohibition of racial discrimination is considered to be 'one of the least
    controversial examples of the class of jus cogens'. [53]
    Article 53 of the Vienna Convention on the Law of Treaties (1969)
    defines jus cogens as 'a peremptory norm of general international law ...
    [which is] a law accepted and recognized by the international community
    of States as a whole as a norm from which no derogation is permitted'.
    There is no State discretion to deviate from the norm of non-discrimination
    in international law generally.

    Second, as
    Mr Ernst Willheim persuasively argued before the Parliamentary Joint Committee
    on Native Title, there is no margin of appreciation in relation to ICERD:

    The Convention is notable for its unqualified language. Unlike many
    other international conventions which embody loosely expressed objectives,
    key obligations of the Racial Discrimination Convention are expressed
    in absolute terms.

    Thus, in
    Article 2 States Parties undertake to pursue

    ' ... a policy
    of elimination of racial discrimination in all its forms ... and, to
    this end:

    (a) Each
    State Party undertakes to engage in no act or practice of racial discrimination'.
    [54]

    After citing
    the definition of racial discrimination in Article 1.1 and the obligation
    to provide equality before the law in Article 5, Mr Willheim goes on to
    state:

    No exceptions are contemplated. A party cannot, for example,
    implement the Convention except in relation to members of a particular
    race or except in relation to a particular human right. [55]

    Third, in my
    submission to the Joint Parliamentary Committee on Native Title inquiry
    into CERD and the Native Title Amendment Act 1998, I argue that the government's
    arguments about a margin of appreciation misunderstand the scope of the
    Committee's interpretation of the meaning of racial discrimination. In
    particular, as noted above, the Committee has stated that a differentiation
    of treatment will not constitute discrimination if the criteria for such
    differentiation, judged against the objectives and purposes of the Convention,
    are legitimate. [56] As I note:

    The purpose
    of [this explanation] is to rebut the argument that all differential treatment
    on the basis of race is discriminatory. The definition of discrimination
    under General Recommendation XIV allows differential treatment if its
    objectives and purposes are consistent with those of the Convention ...

    General Recommendation
    XIV is not a means by which the implementation of government policy which
    results in a negative disparate impact on a particular racial group can,
    nonetheless, be acceptable if it is reasonable in all the circumstances
    and adopts proportionate means. Nor does General Recommendation XIV provide
    a margin of appreciation to States in meeting their obligations under
    the Convention. Its purpose is to ensure that measures which do recognise
    and protect cultural identity and practices are not classified as discrimination
    merely because they treat people differently. [57]

    Protecting
    human rights in a federal system

    Adequate protection
    of human rights in federal states, such as Australia, has long been a
    concern of the international human rights treaty committee system. It
    was one of the main concerns of the CERD when it last considered Australia
    in 1994. In its concluding observations, the Committee noted that:

    Although the Commonwealth government is responsible for ratifying
    international human rights instruments, the implementation of their
    provisions requires the active participation of the states and territories
    which have almost exclusive jurisdiction over many of the matters covered
    by the Convention and cannot be compelled to change their laws. [58]

    As a consequence
    of this, and with particular reference to the treatment of Indigenous
    Australians, the Committee stated that:

    The Commonwealth Government should undertake appropriate
    measures to ensure the harmonious application of the provisions of the
    Convention at the federal and state and territory levels. [59]

    The obligation
    to ensure compliance with the Convention at all levels of government arises
    in a number of provisions of the Convention. In particular, the Convention
    provides that the State Party:

    • undertakes 'to engage in no act or practice of racial discrimination'
      and 'to ensure that all public authorities and public institutions,
      national and local, shall act in conformity with this obligation'
      (Article 2.1(a));
    • 'Shall take effective measures to review governmental, national
      and local policies, and to amend, rescind or nullify any laws and
      regulations which have the effect of creating or perpetuating racial
      discrimination wherever it exists (Article 2.1(c)); and
    • 'shall assure to everyone within their jurisdiction effective
      protection and remedies, through the competent national tribunals
      and other State institutions, against any acts of racial discrimination'
      (Article 6). [60]

    The obligation
    to ensure national compliance has also been codified in the Vienna Convention
    on the Law of Treaties. [61] Article 27 of the Convention
    states that 'A party may not invoke the provisions of its internal law
    as justification for its failure to perform a treaty'.

    The Country-Rapporteur,
    in her introductory comments, asked the government to explain how it meets
    these obligations:

    I sense that there is a lack of competence in the Commonwealth
    Parliament, or perhaps it's a reluctance, to take steps to ensure the
    harmonious application of the provisions of the Convention, not only
    at the federal level, but also at the state and territorial level. Now
    the Committee raised this issue, I believe, when Australia's last periodic
    report was reviewed, the issue being that discriminatory impact of state
    and territory levels, laws, in matters which, at that level they have
    almost, you know, primary jurisdiction, like for social programs et
    cetera, is I think a matter of concern so I would invite your comments.
    [62]

    The Rapporteur
    asked further, in relation to mandatory detention laws in the Northern
    Territory and Western Australia:

    if there is the competence in the federal, in the Commonwealth
    Parliament and the Federal Government to override laws passed in states
    and territories, and I do think you have that power in certain instances,
    then I would be interested in hearing why that power is not being used
    to override [these laws], and I understand the political difficulties
    in federal systems of overriding state and local jurisdiction, but in
    situations relating to human rights, I think it is actually an obligation
    to do so. [63]

    In answering
    the Rapporteur's question, the Australian delegation repeatedly referred
    to the difficulties of being a federation in ensuring compliance with
    the Convention. In doing so, it advised Committee members that they were
    unlikely to understand the complexities of such systems:

    it's because we are a federal state, and I know that not all
    of you would be perhaps experienced of what a federation is and involves,
    but in Australia we have a number of states and territories who, like
    the Commonwealth make significant contributions to dealing with these
    issues. [64]

    Several Committee
    members assured the Australian delegation that they were indeed familiar
    with federalism, and emphasised the importance of federal responsibility
    for compliance with the Convention:

    Mr Chairman we note that our Convention does not contain a federal
    clause, but we know what is a federal system - in the United States,
    in Germany, in Australia, in Austria, in Switzerland - and for us
    all these governments are responsible. They cannot stay behind sharing
    of competencies with local authorities. Whenever delegating competencies
    they should maintain the power to interfere and take measures to guarantee
    the implementation of the Convention. As Mrs McDougall noted, there
    is a flouting in the legislation in different Australian states. Some
    of them have legislation, some others do not have, some are dealing
    with some issues and not with the others. The minimum for us is our
    Convention, and this should be implemented and the Australian Government
    is responsible ... [65]

    I would
    ask ... whether [the government] accepts that under Article 27 of the
    Vienna Convention on the Law of Treaties, it is responsible for the
    way that mandatory sentencing in the Northern Territories constitutes
    discrimination, in effect, in violation of the Convention's Articles
    2(1)(a), (b), (c) and (d) ... [66]

    I would
    like to emphasise that our Convention poses obligations for the state
    party and it is the state party, the Government, that is responsible
    for the fulfilment of obligations under all the conventions concerning
    human rights and the international law. And never, never, never could
    these responsibilities be delegated to governments of territories
    or local authorities, or whatsoever. This is a question of leadership...
    [67]

    The government
    responded to these questions and statements by arguing that while the
    Committee may understand federal structures, they needed to acknowledge
    that 'there are also different types of federations. And Australia is
    a different type of federation because of our history'. [68]

    In its written
    response to the Committee, the government elaborated on the difficulty
    of ensuring compliance by the states and territories:

    Australia itself was originally a collection of autonomous British
    colonies which in 1900 decided to federate on their own terms. Ie,
    the colonies or States elected to retain the bulk of their powers
    (including eg law enforcement, health, education) and ceding only
    specified powers to the new federal government (such as immigration
    and defence).

    In Australia
    therefore, the powers of the federal government are strictly defined
    and limited, and the constitutional balance can only be altered with
    the agreement of a majority of Australians in the majority of States.

    The federal
    structure does not give the national government unlimited powers -
    it cannot readily override the States and Territories, and even where
    possible would not resort to overriding legislation if there were
    other ways of achieving the same objective, which is why the federal
    government is currently exploring its options in relation to the problem
    of mandatory sentencing. [69]

    There are two
    concerns about this description of the federal system which relate to
    Australia's compliance with the Convention. First, at no time does the
    Australian government acknowledge that it is obligated under the Convention
    to ensure compliance of the states and territories. As one of the members
    of the Committee explained:

    Certainly, we have all kinds of federations in the world.
    Each federation has its own specificity, this is true. We have well
    understood the broad and detailed explanations that he has given us.
    But we remain unchanged in our position on this question because the
    question of discrimination, in our opinion, should be one of the greatest
    preoccupations of the federal authority. And looking at what is happening
    in Australia, in seeing the composition, and especially the latitude
    given to the different components of the federation for treating such
    an important problem, we are a bit concerned. And I would simply like
    to say that, as everyone knows, the problem of discrimination is part
    of, and has always been a part of, the concern of the United Nations,
    of the international community. And it's for this very reason that,
    from the very beginning, the United Nations itself has always shown
    its commitment to the dignity and equality of all human beings. I think
    that for all the states of the world today, this is a cardinal principle
    that is of interest to all states. And so the federal state should take
    this into account ... [70]

    Second, this
    description of the Australian federal system is misleading. It emphasises
    the limits of the Commonwealth's powers to ensure compliance and the difficulty
    of achieving constitutional change. Yet it fails to mention that, in addition
    to powers over immigration and defence, the Commonwealth does have the
    power to ensure compliance of the states and territories with international
    obligations. This is unquestionably the case under section 51(xxix) of
    the Constitution (in relation to external affairs); and depending on the
    issue, potentially under other heads of power in section 51 of the Constitution.
    In relation to territory laws, section 122 offers a further alternative
    for ensuring compliance.

    The Country-Rapporteur
    made it clear that she did not find the government's explanation convincing
    in this regard:

    Now this point about federalism, I was very interested in your comments.
    As you know I come from a country that has a federal system that was
    very much like Australia in the making. It started with independent
    colonies that decided to join a federation and only gave such powers
    to the Federal Government as those states chose. You know the question
    of states' rights really has been quite a perpetual issue in our country.
    It's one that you know we fought a civil war over. We fought a very
    bloody civil war in our country over whether states had the right
    to, and were free to, practice the abhorrent practice of slavery ...

    So in our
    system very much like yours, we've made it very clear that the Federal
    Government has certain responsibilities, and with respect particularly
    to human rights issues, to these very sticky issues of civil rights
    as we call them, race relations in the United States. It's very clear
    that the Federal Government can override state legislation and unless
    I'm mistaken I thought that that was very much the case in Australia
    as well. [71]

    The Committee's
    concluding observations justifiably reflect this concern:

    7. The Committee reiterates its recommendation that the Commonwealth
    Government should undertake appropriate measures to ensure the consistent
    application of the provisions of the Convention, in accordance with
    article 27 of the Vienna Convention on the Law of Treaties, at all levels
    of government, including states and territories, and if necessary by
    calling on its power to override territory laws and using its external
    affairs power with regard to state laws.

    An
    entrenched guarantee of racial non-discrimination

    Related to
    how the Commonwealth government ensures compliance of the states and territories
    with international obligations is the issue of the level of protection
    against racial discrimination in Australian law.

    The Country-Rapporteur
    commended the wide range of institutional measures that exist to meet
    Australia's obligations under the Convention:

    the Australian Commonwealth and the government of the states
    and territories have enacted, I think, an impressive array of laws at
    the federal, state and territorial level, of laws, have established
    many agencies and programs to combat racial discrimination ... one has
    to welcome this multiplicity of attempts in law and in terms of institutional
    structures to address these issues. [72]

    However, she
    expressed concern at the status that the protection of racial non-discrimination
    has in Australian law:

    one of the issues that is of concern to me is that there
    is a lack of an entrenched guarantee against racial discrimination in
    Australian law ... We've seen that problem and discussed that problem with
    respect to the ... Native Title Act as amended. I notice, however, that
    on the other hand there is a power to pass legislation such as the Social
    Security Legislation Amendment Act, which has a special provision in
    it that is sort of an explicit savings clause that new legislation will,
    must be interpreted subject to the provisions of your Racial Discrimination
    Act, in other words CERD. I just want to hear whether it's the view
    of the state party that the overriding of the Racial Discrimination
    Act in any subsequent legislation amounts to a repudiation of the state
    party's obligations under CERD or whether you think it is as consistent
    as one can have it, so I'd be interested in your comments about that.
    [73]

    In a presentation
    to the Committee, [74] I explained this issue as
    follows:

    The Racial Discrimination Act (RDA) is the principle piece of domestic
    legislation that implements Australia's obligations under CERD ... the
    RDA is an ordinary enactment of the Commonwealth Parliament. Accordingly,
    subsequent specific enactments of the Commonwealth Parliament will
    take precedence over it. Accordingly, ordinary legislation of the
    Commonwealth Parliament may either expressly or by implication repeal
    the RDA or limit its operation in specific areas.

    This is
    exactly what the amended Native Title Act (NTA) has done to Australia's
    domestic implementation of its obligations under CERD. The amended
    NTA impliedly repeals the RDA in relation to native title, and thereby
    removes Australia's commitment under CERD in this area.

    But this
    is not the only way in which the guarantee against racial discrimination
    has been violated in Australia. 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. [75]

    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 dissent.

    It is of
    great concern to me that the federal Parliament may at any time introduce
    laws which discriminate on the basis of race. That they have done
    so twice in the past four years, and on both occasions in relation
    to Indigenous peoples, raises concerns under Articles 1, 2 and 5 of
    the Convention. It also raises concerns under Article 6 of the Convention,
    which provides that 'States ... shall assure to everyone within their
    jurisdiction effective protection and remedies ... against any acts of
    racial discrimination.' There is no remedy against this discrimination,
    as the Australian legal system permits such laws. [76]

    The government
    sought to explain this issue by suggesting that the native title amendments
    did not, in fact, override the guarantee of non-discrimination contained
    in the RDA:

    The 1993 Native Title Act contained a provision describing the relationship
    between the RDA and the Native Title Act - nothing in the latter was
    to affect the operation of the former. The High Court said of this
    1993 provision in WA v The Commonwealth in 1995 that it was difficult
    to see any inconsistency between the NTA and the RDA, but if there
    was any, the specific provisions of the NTA applied.

    This provision
    was amended in 1998 to reflect the High Court's interpretation of
    how the 1993 provision could operate:

    • the RDA applies to the performance of functions and exercise
      of powers conferred by or authorised by the NTA (including by States
      and Territories under alternative regimes); and
    • the
      RDA can be used to construe ambiguous terms in the NTA.

    Thus the current provision operates no differently to the 1993 provision.

    The preamble
    to the 1993 Native Title Act recited Parliament's intention that the
    Act provide significant benefits to indigenous Australians, and constituted
    a 'special measure' under Article 1(4) of the Convention. Clearly
    this was not a repudiation of the Convention. [77]

    The government's
    explanation is manifestly wrong. This is revealed by the government's
    acknowledgement in the first paragraph that the NTA would prevail over
    the RDA in the event of an inconsistency between the two laws. Put differently,
    the government admits that to the extent of any inconsistency, the NTA
    overrides the operation of the RDA. As noted previously, the Committee
    found in 1999 that the native title amendments do in fact discriminate.
    As a consequence, the amended NTA is inconsistent with the RDA, and does
    operate to displace it.

    The government's
    reasoning also fails to acknowledge that the provision in the 1993 NTA
    describing the relationship between the NTA and the RDA was ineffective
    in preventing the RDA from being displaced. To argue that the current
    provision operates no differently from the original provision is to say
    no more than that the ineffectiveness of the original provision has been
    preserved. It does not address the issue raised by the Committee.

    Significantly,
    the Country Rapporteur noted in her comments that the government could
    have made it unequivocal that the RDA would apply to the operation of
    the NTA, as they had done in relation to social security legislation under
    section 4 of the Social Security Legislation Amendment (Newly arrived
    resident's waiting periods and other measures) Act 1997
    . The Committee
    was fully aware that the Parliament had not adopted this option.

    The government's
    arguments also fail to make clear that the provision in the amended NTA
    only operates to construe the meaning of ambiguous terms in the Act. It
    is ineffective where the NTA unambiguously discriminates against native
    titleholders.

    Several members
    of the Committee were clearly troubled by the government's ability to
    override a guarantee against racial discrimination on the one hand, and
    the failure of the Commonwealth to ensure compliance of the states and
    territories on the other. Accordingly, they asked a series of questions
    about potential mechanisms for entrenching a guarantee of non-discrimination
    through constitutional means. [78]

    The government
    responded as follows:

    Some countries have entrenched certain rights in their Constitutions.
    Other countries, like Australia, establish rights through a range of
    institutions, laws and programs. Governments of both persuasions in
    Australia have considered a Bill of Rights. The critical issue is having
    the right culture / climate for protection of rights. The US has a different
    culture and system to Australia and many other countries. [79]

    In its oral
    presentation, the government expanded on this as follows:

    we believe that institutions and conventions, and support
    by the public for certain values, can be very important. In fact, may
    even be more important than having a rule, that we can show you in writing,
    that nobody really takes seriously or obeys. And there are some other
    questions that arise from time to time. The United States has some elements
    in its constitution which they'd look back on now, in relation to, say,
    the right to bear arms. And which they'd say, well that was fine at
    a particular point in time in history, but now is it an appropriate
    freedom? Certainly in the Australian context, if we'd had it entrenched
    in our Constitution, we'd be saying how can we modify it? As we've sought
    to deal with the issue of access to firearms in our society. I mean
    the fact is that we have considered bills of rights, and we've rejected
    it. We do have a different culture, we think our culture works well.
    We have institutionally and within our society, a very, very strong
    commitment to dealing with human rights issues... [80]

    There are a
    number of matters of concern in this answer. First, the government emphasised
    that it is 'the right culture' that is important for the protection of
    rights. Yet the Committee was concerned that the practices of the government
    (in relation to native title, mandatory sentencing and so forth) indicate
    that Australia does not have the right culture to protect rights.

    Similarly,
    to suggest that 'support by the public for certain values' is more important
    than having a rule that no one follows does not address the issue. The
    Committee asked about the implementation of an entrenched standard of
    non-discrimination from which no derogation is permitted. [81]
    The point of raising the standard to this level is to require that the
    rule be followed in all circumstances.

    There can be
    no doubt that it is appropriate to entrench the principle of racial non-discrimination
    in Australian law. The Committee's concluding observation on this issue
    justifiably reflects this concern:

    6. The Committee is concerned over the absence from Australian
    law of any entrenched guarantee against racial discrimination that would
    override subsequent law of the Commonwealth, states and territories.

    Redressing
    Indigenous disadvantage

    The issue to
    which the Committee members returned time and again was the extent of
    Indigenous disadvantage, and the adequacy of government measures to redress
    this.

    The members
    of the Committee variously expressed their concerns about this issue as
    follows:

    Australia's report covers or contains a great deal of information
    on legislative and judicial measures intended to combat racial discrimination.
    In addition the document does not conceal the problems facing the
    indigenous populations, this sector which finds itself in a great
    disadvantage within Australian society, in practically all aspects
    affecting the quality of life, housing for instance, health, employment,
    and education. And comparing them with the same statistics for the
    rest of the population, it represents a regrettable state of affairs.
    The report states this openly. The indigenous population has a worse
    state of health, dying younger than the non-indigenous Australians.
    Life expectancy at birth is 15 to 20 years less than that of the non-indigenous
    population, and with greater likelihood of dying of infectious diseases
    than the non-indigenous population, as we see from paragraph 62 of
    the report. In all matters relating to the conditions associated with
    their existence, the situation is equally grave. There is no need
    to detail the statistics which reflect this state of affairs since
    there is no area in which there is equality between the Aboriginal
    citizens and the non-indigenous Australians ... [82]

    Why, for
    so long has the Aboriginal population continued to live in such a
    precarious manner, in a far less stable than the rest of the population?
    The weight of history apparently is strong, and shows that there hasn't
    been much change either quantitatively or qualitatively ...[83]

    the country
    rapporteur and many others, amply have pointed out the tremendous
    mass of information, very interesting, in the report impressively,
    about the laws enacted, institutions established, large sums of money
    allocated in order to improve the conditions and remove racial discrimination.
    But in spite of this, which is also informed to us in a commendable
    way in the report through a number of statistic figures, the result
    is very very meagre. Very meagre indeed. And like others here, you
    ask yourself how come? Why is this? What is the matter? What is wrong? ...
    [84]

    The Country-Rapporteur
    brought this issue into sharp focus:

    I think we all have to welcome the increase in government resources
    going into what seem to be a multiplicity of programs and activities
    to address the social and economic disadvantage within the Aboriginal
    community, and I think that in some respects, in many respects, the
    report is very candid about the track record ...

    Now I note
    that you said today that there's been great improvement over a short
    period of time, and I'm sure there has been, but you know it's interesting
    to me, and again I will say this because I come from a country myself
    where there is a disadvantaged community and a lot of government programs
    et cetera, it's of serious concern the extent of the dramatic inequalities
    that are still being experienced by these population groups when they
    represent only, you know, no more than 2% of the population of a highly
    developed, industrialised state
    , and I just, it makes me wonder
    about things like the effectiveness of the programs, monitoring, benchmarking,
    what are the standards, is anybody watching this to see whether or
    not they really are designed to meet the disadvantages that are real
    in the communities, you know the real history of systemic discrimination,
    institutional racism?

    In other
    words how is it even with the increased level of expenditures and
    the many programs that you've described that I think are all quite
    laudable, so how is it that a country like Australia with the resources
    it has, has not yet been able to bring what's less than 2% of the
    population up to reasonable levels in terms of standards of living?

    [85]

    Members of
    the Committee emphasised that while the government's efforts were impressive,
    the measuring stick for assessing the adequacy of the government's approach
    to Indigenous disadvantage was not the amount of money spent. The crucial
    question was whether these programs were sufficient to achieve equality
    and address the historical legacy:

    We heard that there was a raise in housing so much, there was a raising,
    it is good. I congratulate the Australian Government for this. But
    no doubt I would also prefer to have the comparison between what the
    Aborigines have in the field of education compared to other Australians.
    And, or health, etc. All these statistics should be, the comparison
    should be done on the basis of the different groups of the population.
    Not to what the Aborigines have today, and what they had a year ago.
    Maybe you can compare what they have today to what they used to have
    before they were so badly treated some time ago ... [86]

    I and others
    have received a mass of information about the serious concerns that
    Australians and others have about the health conditions of the indigenous
    population ... We are told that more and more is being done to address
    this situation. That is not to say that sufficient is being done ...
    [87]

    Ms January-Bardill
    also highlighted the flaws of the current approach to addressing disadvantage:

    I'd like to commend the Government for taking steps that it has done,
    especially in creating mechanisms and structures to address social
    inequalities felt by the indigenous peoples of Australia. However,
    I feel that this welfarist approach which throws money at problems
    has been very limited. And your own statistics on health-education
    show that there hasn't been much social upliftment. In fact people
    are continuing to live a fairly desperate life. And what this approach
    to injustice does is that it simply manages the inequalities, it doesn't
    really change them. And it can also create a lot of resentment within
    the majority population who sometimes feel that their taxes are used
    simply to uplift the lives of minority groups. So the question I'd
    like to ask, is what therefore are your critical success factors?
    What results do you hope to achieve from your welfare approach to
    social injustice? Experience has also showed in many countries that
    creating laws and legal frameworks as you have done, which you have
    been encouraged to do by our Convention, that these laws and frameworks
    are not, do not necessarily create results. They are simply a means
    to an end. What they do is to create an enabling environment which
    the institutions are expected to use to achieve the results that the
    State wants. So the question is, how are the institutions in the country,
    whether they are political, whether they are social, whether they
    are legal, or whether they are economic. What, how are they using
    this basket of legislation and administrative framework to achieve
    your goals of dealing with injustice and inequality? Specifically
    you know, around the Aboriginal peoples of Australia ...

    And finally,
    I'd like to propose to the Government that unless the original indigenous
    people of Australia are actively involved in the political, socio-economic
    and legal life of Australia the status quo will not change, and if
    the Government is thinking about changing the injustices within the
    country then they have to include Australians in the decision-making
    process, their indigenous Australians in the decision-making processes.
    [88]

    A related concern
    was the extent of budgetary cuts to the Aboriginal and Torres Strait Islander
    Commission and HREOC over the past five years:

    When your last
    report, periodic report, was before this Committee we welcomed the establishment
    of bodies like ATSIC and the Human Relations Committee [sic], [89]
    but now we see that there are some changes taking place, either already
    implemented or discussed, to the functioning of both institutions, that
    might have an adverse impact on the, you know, their ability to effectively
    carry out their programs. ATSIC is federally funded, indigenous organisation,
    very unique structure ... it has been sort of established as the, a representative
    voice of the Aboriginal community, particularly I think with respect to
    ability to enter into negotiations, et cetera. So when you were before
    us before, it seemed that the state party was putting an emphasis on moving
    the responsibilities and creating in ATSIC a sort of body to represent
    the issues and interests of the Aboriginal community.

    Now I understand
    and actually think it is quite an important thing to do mainstreaming
    of these responsibilities, and I think it's very important that you know
    all the other departments in the government have such responsibility also,
    but inasmuch as it's clear that there is a need for and, if you will,
    a legitimate or authoritative voice from the Aboriginal community to enter
    into consultations and negotiations with the government, I just wonder
    whether or not they are now being disempowered, so that they are not as
    able to play effectively that role. [90]

    In these comments
    the Committee members raise a number of complex issues of significance
    to attempts to redress Indigenous disadvantage. They acknowledge that:

    • Indigenous disadvantage is the result of systemic discrimination;
      - the appropriate benchmark by which to measure progress is one
      of equality between Indigenous and non-Indigenous Australians;
    • the government is obligated to take sufficient steps (or special
      measures) to achieve such equality;
    • there must be adequate monitoring and evaluation of progress,
      including measuring effectiveness through benchmarking and standard
      setting; and
    • real progress requires the effective participation of Indigenous
      people in decision making (including through the representative
      voice of ATSIC).

    In relation
    to the Convention, these issues raise concerns under Articles 2 and 5
    (equality before the law and non-discrimination), and Articles 1.4 and
    2.2 (the requirement to take special measures). [91]

    The government
    responded in a number of ways. They emphasised the importance of recognising
    progress to date:

    if we cannot
    acknowledge that there has been some progress then the support for the
    efforts, which are considerable, to address these issues in the community
    as a whole will not be there. And so we have seen some beneficial improvements,
    they're outlined in the report before you, but we don't see those improvements
    as enough ... [92]

    There is also
    clear evidence that progress is being made:

    • rising levels of educational attainment;
    • improvements in health and housing (eg a 90% reduction in aboriginal
      infant mortality since the 1970s);
    • and the fact that 15% of the continent has been returned to aboriginal
      ownership and control. [93]

    The government
    emphasised its commitment to redressing disadvantage through 'practical'
    measures:

    Now it is impossible to undo the wrongs of the past, but the Australian
    Government has committed itself firmly to address what it sees as
    today's unacceptable level of disadvantage suffered by Australia's
    indigenous peoples. And the fact is that indigenous disadvantage in
    Australia has been long-standing and it will not be corrected overnight ...

    We believe
    that the practical measures that we are implementing, leading to practical
    results to improve the lives of our indigenous peoples can, over time,
    incrementally, produce better results than we have today. And we are,
    through the implementation, systematically, of special programs and
    policy initiatives, seeking to improve economic independence for our
    indigenous peoples to overcome inequalities which we know continue
    to exist in some areas, and we have targeted those areas of greatest
    need, particularly health, education, housing, employment, and economic
    development opportunities as areas in which we can move forward. [94]

    They emphasised
    the increased funding in Indigenous-specific programs:

    Now despite some claims to the contrary, the fact is that
    government funding, total funding on indigenous support programs has
    increased. In this financial year the Government's indigenous-specific
    funding across all portfolios including health, housing, education and
    employment will be 2.2 billion Australian dollars ... that's a significant
    increase on the figure of 1.8 billion that is referred to in the report.
    So you can see that increased commitment by that simple demonstration.
    [95]

    They also emphasised
    the government's policies of empowerment and responsibility / mutual obligation:

    Now I must stress that disadvantage will not be solved or
    remedied by money alone. We recognise that communities and individuals
    need to take some responsibility for their personal well-being as well.
    And they need to have the chance to claim success or to learn from failure,
    and we have therefore been involving and empowering Aboriginal and Torres
    Strait Islander people to overcome the legacy of our past, to eliminate
    need for welfare support, and we're improving indigenous Australians'
    access to health, housing, education, employment, economic wealth of
    our country in addition. In fact I would say that one of the tangible
    demonstrations of that empowerment is the very presence of such a large
    number of Australian indigenous people before your Committee in the
    audience today and making efforts to be heard in other ways, as I know
    they have... The government support for services remain but our aim
    of course is to create opportunities for indigenous Australians to be
    able to create their own future. [96]

    They noted
    the complicating factor of the demographic structure and location of the
    Indigenous population:

    70% of that population lives in regional and rural areas
    of Australia. It's a very rapidly growing population, growing at double
    the rate of the general population. And one of the factors driving that
    very rapid population increase is the extent of inter-marriage between
    indigenous and non-indigenous Australians. The children of such unions
    are entitled to identify or be identified as Aboriginal, if they so
    choose. [97]

    And they acknowledged
    the historically derived nature of the disadvantage:

    Australia is far from unique in that it is still struggling
    to remedy the social and economic legacy of its past history. Canada
    and the USA also continue to experience similar difficulties in relation
    to their indigenous and Afro-American communities ... The fact that more
    remains to be done reflects the lingering effects of past problems:

    • in the area of employment for example, today's adults are still
      suffering the legacy of educational disadvantage of 40 or 50 years
      ago.
    • Similarly, the seeds of shortened Aboriginal adult life expectancy
      were planted in the substance abuse problems (eg tobacco) of their
      youth. [98]

    Notable in
    these responses is the absence of any recognition of the importance of
    a rights approach to redressing disadvantage. There is no confirmation
    of the centrality of Indigenous participation and self-determination to
    achieving lasting improvements in the enjoyment of economic, social and
    cultural rights. [99] As an example of this I noted
    in my submission to the Committee that:

    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.
    [100]

    Similarly,
    there is no reference to a commitment to adopting special measures to
    redress Indigenous disadvantage as expeditiously as possible, through
    the adoption of targeted plans. Indeed, while the government affirms the
    importance of performance measures and benchmarks, the only examples they
    are able to give of benchmarks that have been adopted are socio-economic
    indicators and statistics collated as part of the Commonwealth's access
    and equity strategy. [101]

    A further aspect
    of the government's responses that is of concern is the reference to $2.2
    billion expenditure on 'special programs'. As a study on public expenditure
    on services for Indigenous people noted last year:

    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. [102]

    Such a focus
    does not acknowledge, in relation to health for example, that Indigenous
    people access the large general schemes such as Medicare and the Prescribed
    Pharmaceutical Benefits scheme at substantially lower rates than non-Indigenous
    people. Nor does it identify that a large number of unemployed Indigenous
    people are 'hidden' within the Community Development Employment Projects
    Scheme rather than accessing Jobstart allowance. Put differently, much
    of the expenditure through programs that are identified as 'special programs'
    is in fact expenditure that would otherwise be spent through mainstream
    programs. It is not additional, as a characterisation as a 'special program'
    implies.

    The Committee
    reached the following, justifiable, conclusions on this issue:

    18. The
    Committee acknowledges the efforts being made to increase spending
    on health, housing, employment and education programmes for indigenous
    Australians. Serious concern remains at the extent of the continuing
    discrimination faced by indigenous Australians in the enjoyment of
    their economic, social and cultural rights. The Committee remains
    seriously concerned about the extent of the dramatic inequality still
    experienced by an indigenous population that represents only 2.1 per
    cent of the total population of a highly developed industrialized
    State.

    The Committee
    recommends that the State party ensure, within the shortest time possible,
    that sufficient resources are allocated to eradicate these disparities.

    11. The
    establishment of the Aboriginal and Torres Strait Islander Commission
    (ATSIC) and of the Aboriginal and Torres Strait Islander Social Justice
    Commissioner within the Human Rights and Equal Opportunity Commission
    (HREOC) were welcomed by the Committee. Concern is expressed that
    changes introduced and under discussion regarding the functioning
    of both institutions may have an adverse effect on the carrying out
    of their functions. The Committee recommends that the State party
    give careful consideration to the proposed institutional changes,
    so that these institutions preserve their capacity to address the
    full range of issues regarding the indigenous community.

    Indigenous
    peoples and criminal justice systems

    An issue related
    to the levels of Indigenous disadvantage is the over-representation of
    Indigenous people in the criminal justice systems of the states and territories.
    The Committee had expressed concern on this issue in its previous consideration
    of Australia in 1994:

    543. The
    situation of the Aboriginal and Torres Islander people remains a subject
    of concern, despite efforts aimed at remedying the injustices inherited
    from the past. Concern is expressed that Aboriginals continue to die
    in custody at a rate comparable to that which led to the appointment
    of the Royal Commission.

    545 ... It
    is, once again, noted with concern that, according to various social
    indicators, Aboriginals are more deeply affected by social problems
    such as alcoholism, drug abuse, delinquency and incarceration than
    any other social group in the country.

    547...
    The recommendations adopted by various bodies entrusted with the protection
    of Aboriginal rights - the Royal Commission into Aboriginal Deaths
    in Custody, the Human Rights and Equal Opportunities Commission, and
    the Aboriginal and Torres Strait Islander Commission - should be fully
    implemented by all those concerned, particularly state and territory
    governments. [103]

    The Committee
    followed up these concerns during the dialogue in March:

    If I can
    go to Article 5 and questions relating to equality before the law.
    As you all know, the Royal Commission of Inquiry into Aboriginal Deaths
    in Custody found that the problem was ... the degree of over-representation
    in custody, was 29 times that of non-Aboriginals. The Royal Commission
    also concluded that the most significant factor in bringing indigenous
    community people into contact with the criminal justice system was
    their disadvantage and unequal position in the wider society. And
    they made subsequent recommendations and I note that the government
    has accepted 338 of the 339, and has allocated over 4 million dollars
    to seek to implement those recommendations. But despite that formal
    commitment to those recommendations and the programs put in place
    I think that it is still true, correct me if this is wrong, that the
    total number of Aboriginals in custody has increased, according to
    a study prepared for ATSIC by a criminologist. He says: 'claims by
    state and territory governments to have implemented recommendations
    cannot be sustained. Further state/territory governments have taken
    legislative actions not to envisage the Royal Commission of Inquiry,
    not envisaged by it, which has led to an increase in Aboriginal imprisonment.'

    Now the
    Commission recommended strategies of diversion, diversion from incarceration,
    but I think since that time, particularly for juveniles the level
    of incarceration has remained at unacceptably high and disproportionate
    levels. And many have pointed to the mandatory sentencing laws that
    are now in place in at least one state and one territory as well as
    the limited diversionary options that are available. [104]

    The government
    responded to the Committee as follows:

    Australia
    acknowledges that Aboriginal people are grossly over-represented in
    the criminal justice system. The Royal Commission into Aboriginal
    Deaths in Custody identified two solutions to this problem:

    • Reducing
      underlying causes of socio-economic disadvantage and
    • Developing
      alternatives to detention and imprisonment.

      The underlying
      causes are being addressed - exemplified in the $2.2bn in special
      programs for Indigenous Australians.

      Alternatives
      to detention have also been encouraged, including through doubling
      the Aboriginal legal aid budget, as a result of the Royal Commission.
      The results are beginning to show:

    • The level
      of Aboriginal over-representation (relative to non-Aboriginal) has
      fallen in the last five years;
    • On a per
      capita basis, Aboriginals are less likely to die in custody than non-Aboriginals;
    • Indigenous
      people receive shorter sentences than non-Aboriginal offenders in
      almost all offence categories. [105]

    I have already
    discussed above the approach to redressing Indigenous disadvantage generally.
    I also noted in my submission to the Committee that 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. [106] 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. [107]

    The claim that
    'the results are beginning to show' in addressing Indigenous detention
    rates cannot be sustained. 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; [108]
    • 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. [109]
    • 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.
      [110] 17.2% of all prison deaths in the 1990s
      have been Indigenous people, compared to 12.1% in the 1980s. [111]

    The Committee
    also raised the issue of the provision of interpreters in court proceedings:

    I'd also
    like to hear you talk, we've talked about equal access to law, a little
    bit about interpreter services. That's been raised with me that in
    courts, while there is a program to guarantee interpretation services
    to non-English speakers, that the service is not extended to, in general,
    to the Aboriginal community, or that it's not available or it's not
    able to be used successfully, and so I would like to hear your comments
    there. [112]

    The issue of
    a lack of interpreter services had been graphically illustrated to the
    Committee with case studies of mandatory sentencing. On the issues of
    interpreters the Government stated:

    It is important
    to distinguish between interpreter services for day-to-day purposes
    and interpreter services in the courts and criminal justice system ...
    In terms of day-to-day services, there is no universal service for
    either non-English speaking background Australians or aboriginal Australians ...

    In relation
    to the courts, there is no automatic scheme of translation or interpreter
    service for any group of Australians, aboriginal or non-aboriginal.
    It is up to the magistrate or judge in the particular case to decide
    the issue. However, Aboriginal Australians have access to special
    legal aid assistance and representation which often include any necessary
    assistance (noting that government funding of aboriginal legal aid
    has been doubled in the past decade). [113]

    This answer
    is of concern because, in the first instance, it fails to acknowledge
    that the provision of court interpreters, where required, is fundamental
    to a fair trial and equal treatment in legal proceedings (as required
    under Article 5(a) of the Convention). Furthermore, it is ambiguous in
    that it tends to suggest that the provision of legal aid assistance and
    special representation is adequate to meet any need for interpretation.
    But the role of interpreters in court is not a partisan one. They are
    a service of the court, intended to ensure that all who come before the
    court can properly understand the proceedings and be heard. The suggestion
    that 'Aboriginal Australians have access to special legal aid assistance
    and representation' is not relevant to the question at issue.

    On these issues
    the Committee justifiably concluded as follows.

    15. The
    Committee notes with grave concern that the rate of incarceration
    of indigenous people is disproportionately high compared with the
    general population. Concern is also expressed that the provision of
    appropriate interpretation services is not always fully guaranteed
    to indigenous people in the criminal process. The Committee recommends
    that the State party increase its efforts to seek effective measures
    to address socio-economic marginalization, the discriminatory approach
    to law enforcement and the lack of sufficient diversionary programmes.

    Mandatory
    sentencing

    Mandatory
    sentencing or detention laws in the Northern Territory and Western Australia
    were of great concern to the Committee. In particular, mandatory sentencing
    illustrated concerns about:

    • the unwillingness
      of the federal government to ensure compliance of the states and territories
      with Australia's obligations under the Convention;
    • the (lack
      of) effectiveness of government programs to reduce the over-representation
      of Indigenous people in the criminal justice system;
    • the related
      problem of the lack of interpreter services in court proceedings;
      and
    • the inadequate
      response of government to the historically derived disadvantage faced
      by Indigenous people.

    Mandatory sentencing
    laws clearly raise concerns in relation to Articles 2.1(a), (c) and 5(a)
    of the Convention.

    The Committee
    also noted that mandatory detention laws may be discriminatory in their
    impact, and accordingly breach the obligations in Articles 2 and 5 of
    the Convention. The Country-Rapporteur expressed her concern as follows.

    My question
    is this, that first of all does the state party share the view that
    these mandatory sentencing regimes are inconsistent with its obligations
    under our Convention and perhaps under others? And I also wonder,
    I understand that there has been a legal committee of the government
    that has studied and concluded that quote, 'that the weight of the
    evidence of the committee was that the mandatory sentencing laws have
    a discriminatory impact on indigenous peoples and that is contrary
    to the provisions of CERD', and they named Articles 2 and 5 particularly.
    So I would want to know whether or not the state party fully agrees
    with that. [114]

    The issue here
    is one of indirect discrimination. CERD clearly incorporates this, with
    the definition of racial discrimination in Article 1.1 including discrimination
    'in purpose or effect'.

    I have consistently
    argued that mandatory detention provisions target crimes that are generally
    committed by people from lower socio-economic backgrounds. In the Northern
    Territory and Western Australia this necessarily means Indigenous people.
    The limited statistics available show that these laws have a clear disparate
    impact upon people of different races, [115] and
    accordingly that they breach Articles 2 and 5 of the Convention.

    The government
    responded to these issues as follows:

    I'm not
    offering it to defend it because my Prime Minister has said he personally
    does not favour mandatory sentencing provisions ... [But] mandatory sentencing
    only occurs where there has been a breach of law, primarily in relation
    to property offences - in the case of Western Australia, home burglary
    - which were seen as very significant issues in those jurisdictions,
    so it only operates there. It requires a conviction for an offence.
    It also requires conviction under our law where the burden of proof
    is beyond reasonable doubt. It's not a low order burden of proof that
    operates in relation to these matters. And the fact is that under
    our criminal justice system, the responsibility for those questions
    rests with the states.

    Now, the
    Commonwealth has expressed its concern about the impact of these laws
    on young people in particular, and in relation to the impact on indigenous
    peoples. Now I think the impact can be quite variable, because convictions
    are required, I'd suspect that it's probably, in many cases, going
    to be more difficult for convictions to occur, because I think it's
    a natural reaction that those who are involved in the proceedings
    work harder to make sure that if a mandatory sentence is likely, that
    it is resisted, if there is any possible doubt. And one of the points
    that's been made to me is that while Aborigines are over-represented
    in our criminal justice statistics - and that is something that we
    have been concerned about, it's something that's been addressed by
    Royal Commissions, it's something in which we are putting a lot of
    work with the states to try to redress - but the fact is that mandatory
    sentencing is likely to produce an outcome where indigenous people,
    if the offences related to these matters, would be less represented
    in the statistics, rather than more represented. And it is certainly
    the case that it cannot be established that mandatory sentencing has
    significantly led to, or contributed to, over-representation in our
    criminal justice system.

    Now that
    doesn't justify it. I simply put it before you as material that has
    been in the public arena. We are a democracy, where these issues are
    discussed and debated, and debated very vigorously. The Commonwealth
    Attorney-General, my ministerial colleague, has written to his counterparts
    in both Western Australia and the Northern Territory, asking them
    to review their laws, particularly as they impact upon young people ...
    The Commonwealth is very conscious of looking for other ways through
    this issue, and we are seeking, from a committee of members of parliament,
    advice on further diversionary programs, and looking at the interpreter
    issue to see whether there are ways forward, progressively, to address
    these questions, which can help in alleviating some of the concerns
    about the mandatory sentencing question ... [116]

    The government
    considers that it is better to address the problem of repeat offenders
    through program aimed at prevention, rehabilitation and diversion ...
    The government's main priority is to address the causes underpinning
    the over-representation of Indigenous people in prison. We believe
    we're meeting our obligations under CERD. [117]

    These explanations
    are deeply unsatisfactory. There is no evidence to support the claim that
    it will be more difficult to get a conviction under mandatory sentencing
    because of the standard of proof required. There is also no evidence that
    'mandatory sentencing is likely to produce an outcome where indigenous
    people ... would be less represented in the statistics'.

    A common misconception
    about the arguments relating to the discriminatory nature of mandatory
    sentencing is the suggestion that mandatory sentencing depends on it having
    'significantly led to, or contributed to, over-representation in our criminal
    justice system' for it to be discriminatory. There is no clear evidence
    that it has led to over-representation, but this is not the point. The
    issue is that mandatory detention is diametrically opposed to the accepted
    goals of the Royal Commission into Aboriginal Deaths in Custody of preventing
    incarceration wherever possible. It militates against efforts to reduce
    levels of over-representation in custody.

    In the dialogue
    with the Human Rights Committee, the government provided more expansive
    answers on why it considered that mandatory sentencing laws are not racially
    discriminatory: [118]

    In relation
    to Articles 24 and 26 (of the ICCPR), the Government submits that
    mandatory detention laws do not discriminate against any group of
    people in ways that are prescribed by these Articles. The Government
    notes that these laws apply to all citizens equally, irrespective
    of race. This is consistent with the approach to discrimination adopted
    by the Committee. There is no distinction made in the legislation
    as to its application to various groups of people. For this reason,
    the Western Australian and Northern Territory legislation cannot be
    considered discriminatory... [119]

    mandatory
    detention laws are laws of general application... they apply without
    any distinction as to race or other characteristics ... In the Government's
    view, the fact that the detention laws apply only to selected offences
    does not mean that the laws discriminate against indigenous people
    or any other group. This Committee in its general comment on non discrimination
    has said that not every differentiation will constitute discrimination
    if the criteria for such differentiation are reasonable and objective.

    The Northern
    Territory and Western Australian Governments have identified particular
    offences as being of significant concern to their communities. For
    example, Western Australia has the highest rate of home burglary in
    Australia and the Western Australian Government has stated that people
    who are the victims of home burglary suffer not only the loss of valuable
    possessions, but also the feeling that the sanctity of their homes
    has been violated.

    In those
    circumstances, the Western Australian Government has identified the
    offence of home burglary in particular as one that required suitable
    means to deter repeated offences of that sort. Similarly, the Northern
    Territory Government has identified that property offences are serious
    offences with an enormous impact on the Territory community. Thus,
    the Territory Government has attached mandatory detention sentences
    to commonly committed serious property offences.

    The relevant
    State and Territory Governments have identified the basis for the
    selection of particular offences as appropriate for mandatory detention
    in cases of repeat offending as being their seriousness in terms of
    community impact. This is a reasonable and legitimate objective of
    the criminal law.

    The Governments
    in question have determined that mandatory minimum sentences for serious
    property offences and home burglary are not unreasonable, unjust or
    non proportional when taking into account the nature of the crimes
    in question, their repeat nature and the level of community concern
    about them. [120]

    This answer
    does not acknowledge that the prevention of discrimination clearly includes
    discrimination that may be unintentional, but which nevertheless still
    a disparate impact. It also misrepresents the circumstances in which a
    differentiation of treatment is 'reasonable and objective'. As noted above
    in relation to the margin of appreciation argument under CERD, it does
    not extend to permitting invidious discrimination.

    But even should
    such a balancing exercise be allowable under the ICCPR to determine whether
    mandatory sentencing laws are not 'unreasonable, unjust or non-proportional',
    it is patently false to suggest that such laws, particularly those in
    the Northern Territory, relate only to 'serious property offences'. Any
    balancing exercise that would be required would be in relation to petty
    or minor property offences. It is inconceivable that such harsh laws could
    be seen as proportionate, reasonable or just.

    A final concern
    about the government's justifications of mandatory sentencing is the stated
    commitment to diversionary and non-custodial options to address the underlying
    causes of over-representation. There is no logical connection between
    such a commitment and the existence of mandatory sentencing.

    Lord Colville,
    a member of the Human Rights Committee, explained this issue well in relation
    to the funding agreement between the Northern Territory and federal governments:

    I was extremely
    interested in hearing from Ms Leon that $A5 million per year are being
    devoted to diversionary programs, orders for the police to avoid bringing
    charges provided that somebody will comply with some other diversionary
    program or possibly the powers of the Magistrates, limited though
    they may be, to pass what I believe are conditional release orders
    instead of using the mandatory sentence.

    Now, there
    is a dilemma here I think for the delegation. Either these are palliatives
    which indicate that there is a recognition that mandatory sentencing
    is unfair in itself in which case my point is proved, or alternatively,
    there is no particular reason to spend $A5 million per year in the
    Northern Territories and Western Australia to provide these diversionary
    programs which are not available or are not funded in other parts
    of the Australian Territory.

    Now, I
    don't think the delegation can have it both ways, and therefore, this
    is another aspect of discrimination which I would bring to their attention
    and I would ask them to reflect upon it. [121]

    The CERD justifiably
    expressed concern at mandatory sentencing as follows:

    16. The
    Committee expresses its concern about the minimum mandatory sentencing
    schemes with regard to minor property offences enacted in Western
    Australia, and in particular in the Northern Territory. The mandatory
    sentencing schemes appear to target offences that are committed disproportionately
    by indigenous Australians, especially juveniles, leading to a racially
    discriminatory impact on their rate of incarceration. The Committee
    seriously questions the compatibility of these laws with the State
    party's obligations under the Convention and recommends to the State
    party to review all laws and practices in this field. [122]

    Reconciliation
    (including responding to forcible removal policies)

    In its previous
    consideration of Australia, the Committee had expressed concern at the
    level of discrimination and disadvantage experienced by Indigenous people.
    As a consequence of this, in its concluding observations the Committee
    stated:

    547. The
    Committee recommends that Australia pursue an energetic policy of
    recognizing Aboriginal rights and furnishing adequate compensation
    for the discrimination and injustice of the past. [123]

    There are two
    articles of the Convention that are relevant to this recommendation and
    which make reconciliation an appropriate matter for consideration by the
    Committee. Article 6 requires that the States party 'shall assure to everyone
    within their jurisdiction effective protection and remedies ... against any
    acts of racial discrimination' as well as the right to seek 'adequate
    and just reparation or satisfaction for any damage suffered as a result
    of such discrimination'. Article 7 provides that States Parties 'undertake
    to adopt immediate and effective measures, particularly in the fields
    of teaching, education, culture and information, with a view to combating
    prejudices which lead to racial discrimination and to promoting understanding,
    tolerance and friendship ...'

    During the
    dialogue with the government, the Country-Rapporteur commented as follows:

    Article
    7 obliges the states parties to undertake measures to combat prejudices
    which lead to racial discrimination and to promote understanding,
    tolerance and friendship among racial and ethnic groups and I think
    that that's where we started with the discussion that the honourable
    Minister gave us of the reconciliation process and its varied programs
    that are being put in place, the way in which it is trying to be innovative,
    et cetera ...

    I'm also
    interested in how you see this process of reconciliation. I've heard
    about the programs as you've described earlier, but what are the benchmarks?
    What actually is taking place in addition to a public education program,
    how will you know when reconciliation has been achieved, what are
    the criteria? And is it not going to have to have the full consent
    and agreement of the other side of the table in a negotiation with
    the indigenous community, because it seems to me that at the very
    least, you know, one of the criteria for reconciliation is that both
    sides, or all sides, agree that yes, we have reached that point now.
    And I just wonder if there's not going to be, not consultation - I
    think that's something else - but real negotiation with the indigenous
    community about what reconciliation means, and how to get from here
    to there. [124]

    The government
    responded to these issues by first acknowledging the wrongs of the past,
    but also by stating that such wrongs cannot be undone:

    Now without
    any doubt one of the greatest blemishes in Australia's history has
    been the treatment of our indigenous peoples. I don't think you would
    find many Australians who would look back at our history who would
    say that it was always appropriate. The doctrine of terra nullius
    for instance denied indigenous land rights while indigenous peoples
    suffered injustices under many practices that past generations were
    involved. Now it is impossible to undo the wrongs of the past, but
    the Australian Government has committed itself firmly to address what
    it sees as today's unacceptable level of disadvantage suffered by
    Australia's indigenous peoples. [125]

    During its
    consideration of the native title amendments in 1999, the Committee noted
    that it is problematic to suggest that we cannot undo the past. [126]
    The government made a similar suggestion stated in its appearance before
    the Human Rights Committee in July 2000. [127]
    A member of the Human Rights Committee, Mr Shinan, highlighted some of
    the problems with this approach during the dialogue with Australia in
    July 2000:

    I wish to refer
    to what was said by the Ambassador in his introduction. He said 'We cannot
    wind the clock backwards'. This statement is, of course, true but to some
    extent it's not true. It's not true if it represents an effort to assimilate
    the indigenous cultures into a pattern of life which is fundamentally
    European, if it wants to convey the message that modernisation is here
    to stay, and modernisation will replace traditional forms of life and
    traditional cultures.

    To some extent,
    we must stop the clock in order to see what we have in the form of traditional
    economies and traditional ways of life, and to some extent I would say
    we must also wind the clock backwards in order to see where there are
    vital traditions of the indigenous peoples of Australia and what are the
    sustainable traditions, and what can be done to give them a new sound
    economic basis so that their sustainability in the future could be secured.
    [128]

    The government
    also stated its commitment to a process of reconciliation and noted that
    it would take time to achieve:

    I would
    want to say very firmly that while people have talked about specific
    timeframes and with goodwill people have aspirations to achieve reconciliation
    sooner rather than later, it is a process which involves the meeting
    of people's hearts and minds in which you need to effect change, and
    it's a process that's going to be ongoing and one in which we are
    going to have to continue to work on over time ... [129]

    The Parliament
    has committed itself to the process of reconciliation and seeks, it's
    welcomed the draft, and it's encouraged participation, and all of
    us hope we can get a document. But ... .the fact that we get a document,
    does that mean we're all going to be reconciled? Somebody has produced
    a document, do we put the issues aside and say look we're all together,
    we're reconciled? Now I suspect if I took that view and then came
    back to you and said look we got a document last year, we're reconciled,
    somebody would be asking me for measurable outcomes. I mean we realistically
    are saying we don't know that this document is going to bring that
    process to an end. We think it may have to be ongoing ... If we are going
    to influence the hearts and minds of people to be reconciled, I think
    the process is more important ... [130]

    when I
    was in South Africa at the beginning of last year, many of the people
    I spoke to said well, look, you really don't have to look at the document,
    the document itself, because that's not really the answer, what you
    have to look at is the process that we have been through. The fact
    that people have had an opportunity to talk about these issues, to
    come together, to make their personal apologies, to make admissions
    about their involvement in the apartheid regime, and in many cases
    to seek a form of forgiveness for that. And that process was seen
    as something that had had a very significant and unifying impact on
    the community. And I would say that in Australia regardless of whether
    we get a document or not, the process that we are going through is
    being, is very important in the context of our national identity,
    in which we want to address these issues in a very positive way. [131]

    The Country-Rapporteur
    expressed concern with this comment, by highlighting the need for the
    outcome of the process to be a consensual one:

    I was
    not indeed asking for there to be a document that could be produced.
    Rather, for me, the real test is whether or not all of the parties
    agree that reconciliation has been achieved, and achieved on the basis
    of genuine negotiations between the, essentially in this case, two
    parties. But I think that one would have no doubt as to when reconciliation
    is achieved and it's certainly not on the basis of a document, it
    is a process. But it's a process that will never be successful unless
    the aggrieved parties feel that they have negotiated an outcome that
    is satisfactory to them. [132]

    A related issue
    raised by the Committee was that of the government's response to forcible
    removal policies:

    When I
    think about the reconciliation process I sort of go back to the issue
    of what's called the stolen generation ... The national inquiry into
    the separation of these families made seven or so recommendations
    for government response to these abuses and I'd be interested in hearing
    how many of those recommendations have indeed been acted on. You know,
    the difficulties of any people in coming to terms with racial discrimination
    in the past just cannot be underestimated. However, I would ask whether
    or not you feel that your government is showing sufficient leadership
    in this regard and why, and I read this in your report but I'd like
    to hear from this distinguished delegation why it is so difficult
    as a government, not as an individual but as a government, to take
    full responsibility for past government actions? There's been no constitutional
    break in this process, so the question is why would it be so difficult
    to fully admit and apologise for past wrongs by your government? [133]

    The government
    referred to the Motion of Reconciliation that went through the parliament
    on 26 August 1999:

    One of the
    54 recommendations [of Bringing them home] involved a formal 'apology'
    by the respective Australian Parliaments, state and federal. The national
    Parliament adopted a 'statement of regret' last year. [134]

    As I noted
    in my submission to the Senate Legal and Constitutional References Committee
    inquiry into the stolen generation, the Motion of Reconciliation resolved
    by both houses of federal Parliament does not contain the necessary elements
    of an apology identified in recommendation 5a of Bringing them home, and
    is 'generic' in the sense that it does not specifically mention forcible
    removal policies at all. [135]

    Ultimately,
    the Committee justifiably expressed the following concerns about the process
    of reconciliation:

    12. While
    acknowledging the significant efforts that have taken place to achieve
    reconciliation, concern is expressed about the apparent loss of confidence
    by the indigenous community in the process of reconciliation. The
    Committee recommends that the State party take appropriate measures
    to ensure that the reconciliation process is conducted on the basis
    of robust engagement and effective leadership, so as to lead to meaningful
    reconciliation, genuinely embraced by both the indigenous population
    and the population at large.

    13. The
    Committee notes the conclusions of the 'National Inquiry into the
    Separation of Aboriginal and Torres Strait Islander Children from
    their Families' and acknowledges the measures taken to facilitate
    family reunion and to improve counselling and family support services
    for the victims. Concern is expressed that the Commonwealth Government
    does not support a formal national apology and that it considers inappropriate
    the provision of monetary compensation for those forcibly and unjustifiably
    separated from their families, on the grounds that such practices
    were sanctioned by law at the time and were intended to 'assist the
    people whom they affected'. The Committee recommends that the State
    party consider the need to address appropriately the extraordinary
    harm inflicted by these racially discriminatory practices.

    The
    government's response to CERD, and the treaty review process

    The government
    responded to the concluding observations of the Committee by stating that
    the 'Committee's report is an unbalanced and wide-ranging attack that
    intrudes unreasonably into Australia's domestic affairs'; that 'the Committee
    has apparently failed to grapple with our unique and complex history';
    and that the Committee 'paid scant regard to the Government's input and
    has relied almost exclusively on information provided by non-government
    organisations'. Accordingly, the government 'rejects the comments made'
    by the CERD. [136]

    The government
    also stated that 'it is unacceptable that Australia, which is a model
    member of the United Nations, is being criticised in this way for its
    human rights record ... The Committee's comments do not do our country justice'.
    [137] In relation to the mandatory sentencing/
    detention laws in the Northern Territory and Western Australia, the government
    stated that:

    While it
    is not the Commonwealth's role to defend the legislation of any particular
    State or Territory, the Commonwealth regards the Committee's comments
    in relation to mandatory detention laws as inappropriate. The Commonwealth
    Racial Discrimination Act 1975 is a comprehensive enactment of Australia's
    obligations under the CERD. The act prohibits all forms of racial
    discrimination in all Australian jurisdictions, Federal, State and
    Territorial and provides a legislative framework for making complaints
    regarding racial discrimination. It is by reference to the Racial
    Discrimination Act and through its complaint mechanisms that any issue
    regarding race discrimination in Australia should be handled. These
    are matters for Australian legislatures and Australian courts. I am
    not aware of any complaint being made under, or by reference to, the
    Racial Discrimination Act in relation to either the Western Australian
    or the Northern Territory mandatory detention laws. [138]

    In interviews
    with the press during the week that followed the release of the Committee's
    observations, various government Ministers also noted that:

    • some
      of the issues which the Committee had considered 'represent intrusions
      into matters that are of no concern to the Committee at all. They
      are outside their terms of reference'; [139]
    • the Committee's
      comments on race relations in Australia were 'unbalanced' and represented
      'really a repetition of the submissions made by non-government organisations';
      [140]
    • 'this
      committee, it is an elected committee ... comprises representatives from
      a diverse range of countries, some of whose human rights records are
      nowhere, nothing like as good as Australia's'; [141]
    • 'they
      seem to be running a political agenda rather than making an independent
      assessment or an impartial assessment of what the situation is in
      Australia';[142] and
    • that 'you
      can argue about what the international obligations are given the general
      terms of the treaties'. [143]

    On the issue
    of mandatory sentencing it was stated that:

    Our approach
    to mandatory sentencing, at the Commonwealth level, you appreciate
    that I am only speaking for the Commonwealth government, not for any
    other, is not to focus on our international obligations. International
    obligations under treaties are heavily negotiated, end up being in
    very broad, general terms and therefore are capable of, in the different
    minds, applying in different situations. Sometimes even in quite contradictory
    situations ... [144]

    [the] committee
    is fundamentally flawed because it is based on the erroneous proposition
    that because there is a disproportionately large number of indigenous
    people likely to be caught up in these laws that it is racially based.
    It is not racially based at all. That is the equivalent of saying
    that all of our criminal laws are racially based. [145]

    In relation
    to mandatory sentencing and Australia's federal system it was stated that:

    in a federation,
    you've got to have a system where if the local community elects a
    government and that government does something and people at the center
    of government, the national government, is unhappy with that then
    you've got to think before you intervene and overturn that local law.
    Can I just say the criminal laws of this countries have for decades
    been run by the States. The Commonwealth doesn't run the criminal
    law of Australia except in so far as international things intrude,
    but the ordinary day to day criminal law ... [are] all state things.
    Now I think to march in and try and overturn every individual state
    criminal law you disagree with is making a bit of a mockery of federation ...
    you've got to preserve the federal compact to the extent of acknowledging
    the role of the States and the territories in these matters ...[146]

    the criminal
    law of this country is overwhelmingly something administered by State
    and territory governments. The federal government has virtually no
    role in the domestic criminal law of this country, except in a very,
    very general sense. So that really is the basis of what we're saying ...
    [147]

    ultimately
    these things have to be resolved by Australian Parliaments elected
    by Australians, and not by foreign committees. [148]

    When asked
    whether the government would take note of the Committee's observations,
    the Attorney-General responded:

    We are
    taking note. We carefully read it the moment it is issued and we form
    our own view on it. That's taking note of it, but if what they say
    is wrong, then we are entitled to reject it ... This report will have
    no influence whatever on what the Government does on pretty well any
    of the issues in the report. [149]

    Less than
    a week after the Committee's observations were released, the government
    announced a review of Australia's participation in the treaty committee
    system. The review announcement expressed concern at the burdensome reporting
    requirements under the treaties; the backlog of overdue reports and delays
    in consideration of these by the committees; the perception of over-reliance
    on NGO submissions by the committees; and the suggestion that the committees
    were running political agendas rather than 'expert' objectives. [150]
    In relation to the CERD it was stated that:

    In this
    context, the Government was appalled at the blatantly political and
    partisan approach taken by the UN's Committee on the Elimination of
    Racial Discrimination (CERD) when it examined Australia's periodic
    reports in Geneva last week ... The Committee's response was disappointing
    in the extreme. It largely ignored the significant progress made in
    Australia across the full spectrum of indigenous issues. The Committee's
    observations are little more than a polemical attack on the Government's
    Indigenous policies. They are based on an uncritical acceptance of
    the claims of domestic political lobbies and take little account of
    the considered reports submitted by the Government ...[151]

    there are
    serious systemic problems in this reporting process and the resources
    needed for them to play their role effectively are not allocated to
    the treaty bodies. As a result, the outcomes of the system are not
    always fair and accurate assessments of state's performances. This
    was the case for Australia recently in relation to our implementation
    of the Convention Against Racial Discrimination. [152]

    Under Article
    9 of ICERD, the State Party may also make comments on the concluding observations
    of the Committee. Such comments must be included in the annual report
    of the Committee to the General Assembly. Accordingly, the government
    requested that the following comments be included in the CERD's annual
    report:

    The Australian
    Government has carefully considered the Committee's concluding observations
    on Australia's tenth, eleventh and twelfth periodic reports issued on
    24 March 2000. While noting some positive commentary, the overall thrust
    is unduly negative. The Australian Government rejects these comments.
    It approached the CERD meeting in good faith and sent a high-level delegation,
    led by the Minister for Immigration and Multicultural Affairs and Minister
    Assisting the Prime Minister for Reconciliation, the Hon. Phillip Ruddock
    MP. Australia provided extensive written and oral information in order
    to engage constructively with the Committee.

    The Australian
    Government is very disappointed that the Committee's concluding observations
    ignored the progress Australia has made in addressing indigenous issues,
    gave undue weight to NGO submissions, and strayed from its legitimate
    mandate. The Australian Government is also deeply concerned about the
    lack of consideration the Committee accorded to its views, and to its
    outstanding record of commitment to international human rights obligations.

    Following the
    issue of the Committee's concluding observations, the Government in March
    2000 initiated a review of its engagement with United Nations treaty bodies,
    which will involve, interalia, consideration of the working procedures
    of CERD. The Government will announce the conclusions of the review in
    due course. [153]

    I have a number
    of concerns about the government's response to the Committee's concluding
    observations. In particular, the following comments are not sustainable
    and must be rejected.

    • The
      Committee was 'unbalanced' in its views, as it ignored progress made
      in Indigenous issues and was unduly negative

    As I noted
    at the outset of this chapter, the Committee praised a number of efforts
    by the Australian government to address racial discrimination in accordance
    with the Convention. These included a range of projects and processes
    relating to Indigenous issues - including the level of government spending;
    implementation of recommendations of Bringing them home and the Royal
    Commission into Aboriginal Deaths in Custody; and the existence of legislation
    outlawing racial discrimination federally, and in all states and territories.
    In my assessment, the Committee did acknowledge the positives and was
    not 'unduly negative'.

    • The
      Committee did not make a 'fair and accurate assessment' of Australia's
      performance

    In the dialogue
    with the government, the Committee identified the articles of the Convention
    that they considered were relevant to particular issues. They also commented
    on the adequacy of the government's explanations of particular issues
    and concerns. In my assessment, provided in relation to each issue in
    the previous section, the conclusions reached by the Committee on each
    issue relating to Indigenous policy is sustainable and a 'fair and accurate
    assessment' of Australia's performance.

    • A
      number of issues dealt with by the Committee, specifically mandatory
      sentencing, are domestic issues and by commenting on these issues
      the Committee acted outside of its' mandate

    As I have illustrated
    in the previous section, each issue that the Committee commented on in
    its concluding observations was clearly within the mandate of the CERD.
    [154] Reconciliation and stolen generations issues,
    for example, clearly raise issues of compliance with Articles 6 and 7
    of ICERD; the extent of Indigenous disadvantage clearly raises issues
    under Articles 2 and 5 of the Convention; and mandatory sentencing raises
    issues under Articles 2(1)(a), 2(1)(c) and 5 of the Convention.

    The argument
    that certain issues are purely domestic and not properly the concern of
    international treaty committees is not new. As Hilary Charlesworth notes:

    The standard
    reaction to international criticism has been to question the legitimacy
    of an outside group or organization to comment on matters within Australia.
    The inviolability of Australian sovereignty is regularly given as
    a reason to resist international scrutiny. This type of reaction overlooks
    the fact that human rights issues within a nation state are now unquestionably
    of international concern, and have been so for over fifty years, from
    the signing of the UN Charter.[155]

    The government's
    arguments regarding mandatory sentencing in many respects amount to nothing
    more than a reiteration of the arguments that were rejected by the Committee.
    This is particularly the case in relation to the arguments relating to
    our federal structure and the difficulty of overturning state or territory
    laws.

    In disputing
    the Committee's concluding observations on mandatory sentencing, the government
    has also not fairly represented the views put by the Committee. The CERD's
    observations on mandatory sentencing cannot reasonably be described as
    expecting that the federal government will 'march in and try and overturn
    every individual state criminal law you disagree with'. Mandatory sentencing
    laws can be differentiated from other state and territory laws that a
    federal government may not like, as they involve fundamental issues of
    compliance - of Australia - with human rights obligations.

    It is also
    wrong to suggest that the Committee's conclusion on mandatory sentencing
    was flawed as it was based on the proposition that Indigenous people are
    over-represented in custody. As I outline in the previous section, this
    is not the reason why the Committee concluded that mandatory sentencing
    laws breach the Convention. -

    • It
      was inappropriate for the Committee to consider mandatory sentencing
      laws as any complaints about it can be dealt with under the Racial
      Discrimination Act 1975 (Cth)

    The argument
    that mandatory sentencing is appropriately a domestic issue that should
    be dealt with under the Racial Discrimination Act 1975 (Cth) (RDA) misunderstands
    the scope of the Act. There have been no complaints lodged with the Human
    Rights and Equal Opportunity Commission that allege that mandatory sentencing
    laws are racially discriminatory. But far from being proof that they are
    not discriminatory, the lack of complaints is a reflection of the fact
    that under section 24(2)(a) of the RDA any such complaint would be declined
    as not unlawful. [156] Accordingly, there is no
    capacity for an individual to lodge a complaint about mandatory sentencing
    laws under the RDA. If mandatory detention laws are discriminatory, they
    are lawfully so within the domestic legal system.[157]
    This is a breach of Article 6 of ICERD which requires that there be effective
    protection and remedies within the domestic system against any acts of
    racial discrimination.

    • The
      Committee's assessment of issues was 'blatantly political' rather
      than an objective and impartial assessment

    As I noted
    in relation to the government's partial acceptance of a substantive equality
    approach to Articles 2 and 5 of ICERD, the standard against which the
    Committee makes its objective assessment is different to that which exists
    in domestic politics. It is the human rights standards of the Convention
    that are relevant. The will of the majority or the government, or the
    domestic political problems faced by the government in relation to a particular
    issue, are not relevant in determining whether particular actions are
    discriminatory or in breach of the Convention. This is not indicative
    of a blatantly political approach, but rather reflects that 'human rights
    law is counter-majoritarian in that it provides protection for individuals
    and minorities so that, in certain defined contexts, their interests are
    not always sacrificed to those in the political majority'. [158]

    The Committee
    had made this point explicitly clear to the government in relation to
    native title issues in 1999. In that context, the government had argued
    that it had struck an appropriate balance between the interests of miners,
    pastoralists, Indigenous people and so forth in the native title amendments.
    The Committee made explicit that the balance is not between domestic political
    interests but between the enjoyment of rights by different racial groups
    in society. The native title amendments did not provide an appropriate
    balance in this regard. [159]

    • International
      treaties are drawn in such broad, general terms that there can be
      legitimately different interpretations of a State Parties obligations

    This argument
    must be rejected in relation to ICERD. As I noted in the previous section,
    the obligations that arise in the Convention are of an explicit nature
    that leave little room for differing interpretations.

    This point
    is demonstrated by the government's arguments relating to a margin of
    appreciation, and their justification of laws that they say have a 'legitimate'
    objective. As I noted above, the measuring stick under the Convention
    of when differential treatment is legitimate is the objectives of the
    Convention and not some unrelated, general notion of reasonableness.

    • The
      Committee's membership is drawn from countries with human rights records
      worse than that of Australia

    This argument
    fails to acknowledge the status of committee members as serving in their
    personal capacity and independent experts on issues of racial discrimination.
    It also fails to acknowledge the high level of knowledge of the Australian
    situation demonstrated by committee members during the dialogue with the
    government.

    Other governments
    have also misunderstood the status of committee members. This led the
    Committee in 1990 to adopt a general recommendation on the status of committee
    members in the following terms:

    Considering
    that respect for the independence of the experts is essential to secure
    full observance of human rights and fundamental freedoms,

    Recalling
    article 8, paragraph 1, of the International Convention on the Elimination
    of All Forms of Racial Discrimination,

    Alarmed
    by the tendency of the representatives of States, organizations and
    groups to put pressure upon experts, especially those serving as country
    rapporteurs,

    Strongly
    recommends
    that they respect unreservedly the status of its members
    as independent experts of acknowledged impartiality serving in their
    personal capacity. [160]

    • The
      Committee was 'unbalanced' in its views, giving too much weight to
      the submissions of non-government organisations and not enough to
      those of the government

    This view is
    problematic from a number of perspectives. The Committee's role is not
    to balance the views of the government and NGOs. It is engaging in a dialogue
    that takes as its frame of reference the obligations of the Convention.
    A lack of reliance on the government's position is not an indication of
    a preference for the views of NGOs, but of the inadequacy of the responses
    of the government, when considered against the obligations voluntarily
    assumed under the Convention. The concluding observations of the CERD
    are, as I have already noted, sustainable and are a fair and accurate
    assessment of Australia's performance.

    Further, the
    government does not suggest that there is not an appropriate role for
    NGOs in the Committee's evaluation of a State Parties' performance. An
    important issue for the government is how it provides for NGO participation
    in the development of the periodic report. As I noted, with my fellow
    Commissioners, in a recent submission to a parliamentary committee:

    To ensure
    the credibility of Australia's relationship with UN treaty committees,
    it is essential that non-government organisations and other stakeholders
    be given the opportunity to provide input into the preparation of
    those reports. Effective consultation requires that governments allow
    sufficient time for these organisations to provide appropriately detailed
    input. It also requires a commitment of resources by government to
    facilitate consultation with NGOs, although the level of resourcing
    would not be onerous ...

    Effective
    consultation with NGOs also means taking their views into account
    when it is given. This does not mean that governments are obliged
    to agree with or accept without question the views of these organizations.
    It means however that governments should take their views seriously
    and should give careful consideration to this material when it is
    received. While state reports to treaty committees are first and foremost
    government reports, to be accurate and well-informed they require
    input from those most closely involved with the issues under consideration.
    The fact that NGOs and others may also provide independent reports
    to treaty committees in no way diminishes this requirement ...

    The provision
    of information by NGOs is an essential mechanism by which to test
    the information provided to committees. It is our experience that
    a good report to a committee will canvas most of the concerns raised
    by NGOs. [161]

    In HREOC's
    view, there is a relationship between the level of NGO participation in
    the preparation of a periodic report, the quality of such reports and
    the consideration of the views of NGOs by the human rights treaty committees:

    The Commission
    shares the Attorney's concern that committees accord state representatives
    ample opportunity to express their views and that appropriate weight
    be given to the matters put to them by governments. However, in the
    Commission's experience, it is difficult to identify any major instances
    where treaty committees have acted inappropriately in this regard.
    Moreover, one of the reasons why Committees need to seek input from
    NGOs is because state reports have on occasions lacked information
    of sufficient detail and accuracy to meet the Committee's requirements.
    Clearly, the less informative the state party's report, the greater
    resort the Committee will need to have to material provided by NGOs.
    [162]

    • The role
      of the CERD and the periodic reporting obligation

    Earlier in
    the chapter I highlighted several purposes of the periodic reporting process.
    The government's approach to the CERD's observations is a combative one
    that does not accept that the Committee's role is an advisory one, to
    assist in ensuring greater compliance with the Convention and greater
    recognition of human rights domestically. A member of the Human Rights
    Committee pinpointed the problematic nature of the government's approach
    as follows:

    Most of us
    have seen the reports in the newspapers that the Australian Cabinet has
    had some unhappiness with the work of treaty bodies. They didn't make
    any exception for this particular treaty body, although I don't suppose
    they should have too much trouble with this treaty body since they haven't
    appeared before us as now in some 14 years ...

    I would like
    to suggest that perhaps the Government of Australia, like the Governments
    of other countries, ought to see this Committee as it sees itself. We
    see our work as an important contribution to your compliance with the
    obligations which you voluntarily assumed; in fact, eagerly assumed. And
    that is true not only about the protocol, but also about the Covenant
    itself.

    So we don't
    see ourselves really, despite the tone of some of our questions, as sitting
    in judgment but as helping State Parties carry out the obligations which
    you voluntarily assumed, and wish to assume. Of course, that requires
    cooperation by the States Parties. It does not help to read, therefore,
    questions about the work of the treaty bodies, and even on communications
    it does not help to see Governments - and I don't refer only to Australia
    - somehow resist the judgments or the final views of this Committee.

    Therefore,
    I can only close by saying that we cannot help Governments comply with
    the obligations which you voluntarily assumed unless there is cooperation
    between your Government and the Committees, both in regard to the reports
    which you filed and we hope you will file more frequently, and the response
    to our views. [163]

    Conclusion

    This chapter
    has raised many concerns about Australia's compliance with human rights
    obligations in relation to Aborigines and Torres Strait Islanders. Various
    United Nations human rights treaty committees have expressed these concerns
    after conducting constructive dialogues with the Australian government,
    such as the one with the CERD highlighted in this chapter.

    While the issues
    considered internationally are also the focus of much attention domestically,
    the international dialogue adds value to domestic debates. The key feature
    that distinguishes the dialogue at the international level is that it
    is focused on the human rights dimensions of the issues at hand. At the
    domestic level, the human rights significance of an issue is often diluted
    according to economic and other interests.

    But the right
    of an accused person to be sentenced proportionally to the crime committed,
    for example, is a principle that a human rights committee does not easily
    overturn in order to assuage a popular demand for tough criminal sanctions.
    And such a committee cannot be easily persuaded that the right of Indigenous
    titleholders to equal protection of their title by the law should be compromised
    in order to achieve certainty for other stakeholders. Indeed balancing
    interests is not the concern of a human rights dialogue. Rather, the concern
    is whether sufficient value is placed on fundamental and universal human
    rights principles despite the economic and political expediencies of a
    country.

    As Kofi Annan,
    Secretary-General of the United Nations, recently stated:

    No government
    has the right to hide behind national sovereignty in order to violate
    the human rights or fundamental freedoms of its peoples. Whether a
    person belongs to the minority or the majority, that person's human
    rights and fundamental freedoms are sacred. [164]

    All parties
    to human rights treaties are brought to account by the UN treaty committee
    system. In the end what is important is that through international dialogue,
    the human rights dimension of the issues at hand can be greater emphasised
    and understood by those who draft and formulate policies and legislation
    at the domestic level.

    In the next
    chapter I consider how the concerns raised by the CERD can be addressed,
    and what lessons can be extracted from the dialogue, in order that reconciliation
    can proceed within a human rights framework. Put differently, I will consider
    ways in which the international dialogue on human rights can be put into
    practice domestically, rather than the dialogue being seen as separate
    to the process of policy formulation and practice in the domestic arena.

     


    1.
    Australia has appeared before four of the six United Nations human rights
    treaty committees in the year 2000. This is in relation to Australia's
    periodic reports under the International Convention on the Elimination
    of All Forms of Racial Discrimination, which were considered in March
    2000; under the International Covenant on Civil and Political Rights,
    considered in July 2000; the International Covenant on Economic, Social
    and Cultural Rights, considered in August 2000; and the Convention on
    Torture, Cruel, Inhuman and Degrading Treatment, considered in November
    2000.

    2.
    ICERD, Article 8(1).

    3.
    The terminology of ICERD refers to States Parties, or States. States in
    this sense refers to nation states, ie the nation state of Australia,
    and not to internal states and territories within a nation.

    4.
    The convention entered into force in Australia on 30 October 1975. For
    an overview of the Committee's functions and procedures see United Nations
    High Commissioner for Human Rights, Fact Sheet No.12: The Committee on
    the Elimination of Racial Discrimination, http://www.unhchr.ch/html/menu6/2/fs12.htm.

    5.
    ICERD, Article 9.

    6.
    ibid. See further Aboriginal and Torres Strait Islander Social Justice
    Commissioner, Native title report 1999, pp 23-26.

    7.
    ICERD, Article 14.

    8.
    ICERD, Article 11.

    9.
    Committee on Economic, Social and Cultural Rights, General comment 1 -
    Reporting by States parties, Un Doc: E/1989/22, 24/02/1989, para 1.

    10.
    Committee on Economic, Social and Cultural Rights, General comment 1 -
    Reporting by States parties, op.cit, para 2.

    11.
    ibid, para 3.

    12.
    ibid, para 4. This objective is particularly relevant to the requirement
    under Articles 1(4) and 2(2) of ICERD to adopt special measures.

    13.
    ibid, para 5. The periodic reporting process can therefore assist in the
    fulfilment of Article 7 of ICERD to promote understanding, tolerance and
    friendship among racial or ethnic groups, as well as to promote the purposes
    and principles of the Convention among society.

    14.
    Committee on Economic, Social and Cultural Rights, General comment 1 -
    Reporting by States parties, op.cit, para 6.

    15.
    ibid, para 8.

    16.
    ibid.

    17.
    ibid, para 9.

    18.
    See also the comments on the reporting process by the Human Rights Committee:
    Human Rights Committee, Consolidated guidelines for State reports under
    the International Covenant on Civil and Politiical Rights, UN Doc: CCPR/C/66/GUI/Rev.1
    (Basic reference document), 29 September 1999; and the CERD: Committee
    on the Elimination of Racial Discrimination, General guidelines regarding
    the form and contents of reports to be submitted by States Parties, UN
    Doc CERD/C/70/Rev.4 (Basic Reference Document), 14/12/99.

    19.
    Committee on the Elimination of Racial Discrimination, Twelfth periodic
    reports of States parties due in 1998 : Australia, Un Doc: CERD/C/335/Add.2.
    (State Party Report). The report is also available at: www.austlii.edu.au/au/other/dfat/reports/CERD/.
    The reports were submitted 5 years, 3 years and 1 year late. The combined
    report covers the period from 1 July 1992 to 30 June 1998.

    20.
    See further: Aboriginal and Torres Strait Islander Social Justice Commissioner,
    Native title report 1999, pp26-42.

    21.
    Commonwealth of Australia, Comments of the Government of Australia on
    decision 2 (54) adopted by the Committee on the Elimination of Racial
    Discrimination, Annex VIII in Committee on the Elimination of Racial Discrimination,
    Report of the Committee on the Elimination of Racial Discrimination, UN
    Doc: A/54/18 (Sessional/Annual Report of Committee).

    22.Committee
    on the Elimination of Racial Discrimination, Decision 2(55) on Australia,
    UN Doc: A/54/18, para 23(2), para 4.

    23.
    The expert nominated for election to the Committee by the United States
    of America.

    24.
    There is a country rapporteur for each State Party to the Convention.
    The Country Rapporteur leads the Committee in its consideration and questioning
    of the country.

    25.
    Committee on the Elimination of Racial Discrimination, Concluding Observations
    by the Committee on the Elimination of Racial Discrimination: Australia,
    UN Doc: CERD/C/304/Add.101, 19/04/2000. The Committee's decision is reproduced
    in full at Appendix 2, and can be downloaded at: http://www.faira.org.au/cerd/decisions.html.

    26.
    The oral appearance is documented in two ways: the unofficial, complete
    transcript of the dialogue: Foundation for Islander Research Action (FAIRA),
    Transcript of Australia's hearing before the CERD Committee - 1393rd,
    1394th and 1395th meetings, 21-22 March 2000, FAIRA, Brisbane 2000, http://www.faira.org.au/cerd/
    (Herein FAIRA, CERD Transcript - 21-22 March 2000); and the official United
    Nations summary records: Committee on the Elimination of Racial Discrimination,
    Summary record - 1393rd meeting, UN Doc CERD/C/SR.1393; Committee on the
    Elimination of Racial Discrimination, Summary record - 1394th meeting,
    UN Doc CERD/C/SR.1394 (Transcript only available in French); Committee
    on the Elimination of Racial Discrimination, Summary record - 1395th meeting,
    UN Doc CERD/C/SR.1395; Committee on the Elimination of Racial Discrimination,
    Summary record - 1398th meeting, UN Doc CERD/C/SR.1398 (Transcript only
    available in French). Reference is also made to the written answers provided
    by the Australian delegation to the Committee. Copies of the written answers
    supplied by the government are available from the Secretariat of the CERD
    or by contacting my office.

    27.
    Note: I have not considered the conclusions of the Committee in relation
    to native title or racial hatred legislation. In relation to native title,
    I have previously rejected the arguments put forward by the government
    to the Committee: see Native title report 1999, Chapter 2 and my submission
    to the Parliamentary Joint Committee on Native Title, which is an appendix
    to the Native title report 2000. The dialogue with the Committee on native
    title is also considered in my Native title report 2000. In relation to
    racial hatred there were no answers provided by the Australian delegation
    to the questions raised by the Committee on this issue.

    28.
    Not only will special measures not be deemed racial discrimination, but
    Article 2.2 obligates States to take special measures, where the circumstances
    so warrant them.

    29.
    International Council on human rights policy, The persistence and mutation
    of racism, International Council on human rights policy, Versoix, Switzerland
    2000, p5.

    30.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting,
    Part II, pp 2-3.

    31.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Does Australia regard the Convention
    as requiring formal or substantive equality.

    32.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting,
    Part III, p12.

    33.
    Note: Australia's appearance in March 1999 was in relation to the early
    warning procedure and the native title amendments. For an analysis of
    the government's explanation of how it believed the native title amendments
    to be consistent with the Convention see: Native title report 1999, op.cit,
    Chapter 2; Dick, D. and Donaldson, M., The compatibility of the amended
    Native Title Act 1993 (Cth) with the United Nations Convention on the
    Elimination of All Forms of Racial Discrimination, Issues Paper 29: Land,
    rights, laws: Issues of native title, Native Titles Research Unit, AIATSIS,
    Canberra, 1999.

    34.
    Ms Horner in FAIRA, CERD Transcript - 21-22 March 2000, 1395th meeting,
    p2.

    35.
    Herein Parliamentary Joint Committee on Native Title.

    36.
    Attorney-General's Department, Submission No.24, Part I, p17; quoted in
    Parliament of the Commonwealth of Australia, Sixteenth report of the Parliamentary
    Joint Committee on Native Title and the Aboriginal and Torres Strait Islander
    Land Fund - CERD and the Native Title Amendment Act 1998, Commonwealth
    of Australia, Canberra, 2000, p8.

    37.
    ibid.

    38.
    Ms Leon in Foundation for Aboriginal Islander Action (FAIRA), Transcript
    of Australia's appearance before the Human Rights Committee - 20-21 July
    2000, 21 July 2000, FAIRA, Brisbane, 2000, www.faira.org.au/hrc/, (Herein
    FAIRA, Human Rights Committee Transcript), p19. Emphasis added. See also
    Human Rights Committee, Summary record of the 1856th meeting: Australia,
    UN Doc: CCPR/C/SR.1856, 28/07/2000; Human Rights Committee, Summary record
    of the 1858th meeting: Australia , UN Doc: CCPR/C/SR.1858, 28/07/2000.

    39.
    See further: Acting Aboriginal and Torres Strait Islander Social Justice
    Commissioner, Native title report 1998, op.cit, Chapter 3.

    40.
    Note: In its submission to the Parliamentary Joint Committee on Native
    Title the Attorney-General's Department stated that it is for 'the Parliament
    to decide whether substantive equality was to be provided and, if it was,
    what that encompassed': Quoted in Parliamentary Joint Committee on Native
    Title, CERD and the Native Title Amendment Act 1998, op.cit, p9.

    41.
    Committee on the Elimination of Racial Discrimination, General recommendation
    XIV on article 1, paragraph 1 of the Convention, para 2 in Committee on
    the Elimination of Racial Discrimination, Compilation of General recommendations,
    Un Doc: CERD/C/365, 11/02/1999.

    42.
    Committee on the Elimination of Racial Discrimination, General recommendation
    XXIII on the rights of indigenous peoples, para 4, in Committee on the
    Elimination of Racial Discrimination, Compilation of General recommendations,
    ibid.

    43.
    Quoted in Pritchard, S, 'Special Measures' in Race Discrimination Commissioner,
    The Racial Discrimination Act: A review, HREOC, Canberra, 1995, p186.
    See also Pritchard, S, 'Native title from the perspective of international
    standards' (1997) 18 Australian Year Book of International Law 127, p146;
    and McKean, W, Equality and discrimination under international law, Oxford
    1983, p182.

    44.
    Minority schools in Albania (1935) PCIJ Ser A/B No.64.

    45.
    ibid, p17; Quoted in Pritchard, S, 'Special measures', op.cit, p185. The
    Sub-Commission on Prevention of discrimination and protection of minorities
    stated in 1947, as a consequence of this understanding, that 'differential
    treatment of (minorities) is justified when it is in the interests of
    their contentment and the welfare of the community as a whole': UN Doc
    E/CN.4/52, Section V quoted in Pritchard, S, 'Special measures', op.cit,
    p186.

    46.
    Parliamentary Joint Committee on Native Title and the Aboriginal and Torres
    Strait Islander Land Fund, CERD and the Native Title Amendment Act 1998:
    Report of the non-government members, Parliament of Australia, Canberra,
    2000, pp114-15.

    47.
    South West Africa Case (Second Phase) {1966} ICJ Rep 6, p305.

    48.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting,
    Part II, p3.

    49.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Does Australia regard the Convention
    as requiring formal or substantive equality.

    50.
    Attorney-General's Department, Submission No.24, Part I, p17; quoted in
    Parliament of the Commonwealth of Australia, Sixteenth report of the Parliamentary
    Joint Committee on Native Title and the Aboriginal and Torres Strait Islander
    Land Fund - CERD and the Native Title Amendment Act 1998, op.cit, pp9,
    128.

    51.
    ibid, p130.

    52.
    In relation to native title see: ibid, pp128-132; Native title report
    1999, Chapter 2; In relation to mandatory sentencing: see below.

    53.
    Pritchard, S, 'Native title from the perspective of international standards',
    op.cit, p142.

    54.
    Aboriginal and Torres Strait Islander Commission, Submission 10(a) to
    the Parliamentary Joint Committee on Native Title inquiry into CERD and
    the Native Title Amendment Act 1998, p8.

    55.
    ibid.

    56.
    Committee on the Elimination of Racial Discrimination, General Recommendation
    XIV, as cited above at p 44.

    57.
    Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission
    to the Parliamentary Joint Committee on Native Title and the Aboriginal
    and Torres Strait Islander Land Fund - Inquiry into CERD and the Native
    Title Amendment Act 1998, p13.

    58.
    Committee on the Elimination of Racial Discrimination, Concluding observations
    on Australia, Contained within UN Doc: A/49/18, para 542.

    59.
    ibid, para 547.

    60.
    The obligation to ensure compliance at the state and territory level is
    even more explicit in the ICCPR and ICESCR. Article 50 of the ICCPR and
    Article 28 of ICESCR are identically worded, and state that 'the provisions
    of the present Covenant shall extend to all parts of federal States without
    any limitations or exceptions'.

    61.
    Australia is a party to the Convention.

    62.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting,
    Part II, p3 .

    63.
    ibid, p5.

    64.
    Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1394th
    meeting, Part I, p3.

    65.
    Mr Diaconu in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting,
    Part II, pp 8-9.

    66.
    Mr Banton in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting,
    Part I, p5.

    67.
    Mr Nobel, ibid, p6.

    68.
    Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1394th
    meeting, Part III, pp5-6.

    69.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: On being a federation.

    70.
    Mr Fall in FAIRA, CERD Transcript - 21-22 March 2000, 1395th meeting,
    p5.

    71.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting,
    Part III, p11.

    72.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting,
    Part II, p2.

    73.
    ibid, p2.

    74.
    An edited version of my submission to the CERD, which discusses this issue
    more fully, is contained in Appendix one of this report. The appendix
    also includes extracts from my submissions to the Human Rights Committee
    and the Committee on Economic, Social and Cultural Rights.

    75.
    The High Court examined section 51(xxvi) of the Constitution (the race
    power) in the case of Katinyeri 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.'

    76.
    Aboriginal and Torres Strait Islander Social Justice Commissioner, Australia's
    10th, 11th and 12th periodic reports under CERD, Statement at NGO presentation
    to the Committee on the Elimination of Racial Discrimination, 20 March
    2000, Geneva, p3.

    77.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Does the overriding of the Racial Discrimination
    Act amount to a repudiation of CERD?

    78.
    Mr Banton, op.cit, p5; Mr Bryde in FAIRA, CERD Transcript - 21-22 March
    2000, 1394th meeting, Part II, p3. Note: none of the Committee raised
    a Bill of Rights as the specific form of constitutional entrenchment that
    they envisaged.

    79.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Bill of Rights (entrenching rights -
    lack of an entrenched guarantee against racial discrimination).

    80.
    Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1394th
    meeting, Part III, p6.

    81.
    Such a standard would reflect the jus cogens status of the principle of
    racial non-discrimination, as discussed above.

    82.
    Mr Lechuga Hevia in FAIRA, CERD Transcript - 21-22 March 2000, 1394th
    meeting, Part II, p8.

    83.
    Mr Yutzis, ibid, p7.

    84.
    Mr Nobel, ibid, p6.

    85.
    Ms McDougall, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part
    II, p4. Emphasis added.

    86.
    Mr Aboul-Nasr, CERD Transcript - 21-22 March 2000, 1394th meeting, Part
    III, pp1-2.

    87.
    Mr Banton, ibid, Part I, p4.

    88.
    Ms January-Bardill, ibid, p4. Emphasis added.

    89.
    Note: This is a reference to the Human Rights and Equal Opportunity Commission.

    90.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting,
    Part II, p4.

    91.
    A further obligation may also be said to arise under Article 7, as the
    State party is obligated to educate the community about the Convention
    and the obligations it creates: see further below in relation to reconciliation.

    92.
    Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd
    meeting, Part I, p3.

    93.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Wealthy Australia has not solved the
    problems of 2% of its population.

    94.
    Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd
    meeting, Part I, p3. Note: I critique the adequacy of practical reconciliation
    in chapter 2 of this report.

    95.
    ibid.

    96.
    ibid, p4. Note: I critique this concept of responsibilities in chapter
    2 of this report, and the introduction of the Social Justice Report 1999.

    97.
    Mr Vaughan, ibid, p11.

    98.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Wealthy Australia has not solved the
    problems of 2% of its population. Note: in relation to the United States
    and Canada, recent research indicates that socio-economic conditions for
    Indigenous Australians are far worse than the conditions in those countries.
    One of the main reasons why is economic empowerment through greater recognition
    of Indigenous rights, especially relating to governance issues. See: Moran,
    M, 'Housing and health in Indigenous communities in the USA, Canada and
    Australia: the significance of economic empowerment' (2000) 7 Aboriginal
    and Torres Strait Islander Health Bulletin.

    99.
    In this regard, note the concluding observations of July 2000 of the Human
    Rights Committee (UN Doc: CCPR/CO/69/AUS) which states in paragraph 9
    that: with respect to article 1 of the (ICCPR), the Committee takes note
    of the explanation given by the delegation that rather than the term 'self-determination'
    the Government ... prefers terms such as 'self-management' and 'self-empowerment'
    to express domestically the principles of indigenous peoples exercising
    meaningful control over their affairs. The Committee is concerned that
    sufficient action has not been taken in that regard. The State Party should
    take the necessary steps in order to secure for the Indigenous inhabitants
    a stronger role in decision-making over their traditional lands and natural
    resources.

    100.
    My submission to the CERD, as well as those to the HRC and CESCR are included
    as appendix one of this report.

    101.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Benchmarking / Measuring reconciliation.

    102.
    Neutze, M, Sanders, W, Jones, G, Public expenditure on services for Indigenous
    people - Education, employment, health and housing, Discussion paper 24,
    The Australia Institute, Canberra, 1999, p xiii.

    103.
    Committee on the Elimination of Racial Discrimination, Concluding observations
    of the Committee on the Elimination of All Forms of Racial Discrimination:
    Australia, UN Doc: A/49/18, paras535-551.

    104.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting,
    Part II, p5.

    105.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Over-representation in the criminal justice
    system.

    106.
    One of the terms of reference required the inquiry to examine contemporary
    forms of separation, such as contact with juvenile justice and the care
    and protection systems.

    107.
    In relation to the Bringing them home report, the adequacy of government
    responses is assessed in Acting Aboriginal and Torres Strait Islander
    Social Justice Commissioner, Social Justice Report 1998, http://www.hreoc.gov.au/social_justice/social_justice/index.html.

    108.
    Carcach, C., Grant, A. and Conroy, R., Australian corrections: The imprisonment
    of Indigenous people Australian Institute of Criminology (AIC), Trends
    and Issues in Crime and criminal justice: No. 137, AIC, Canberra, 1999,
    p2.

    109.
    Australian Bureau of Statistics, Corrective Services, June Quarter 1999,
    Ref: 4512.0, pp5, 21-22.

    110.
    Dalton, V., Aboriginal deaths in prison 1980 to 1998: National overview,
    Australian Institute of Criminology (AIC), Trends and Issues in Crime
    and criminal justice: No. 131, AIC, Canberra, 1999, p2. This figure is
    to September 1999, and includes the death of two Torres Strait Islanders.

    111.
    ibid, p6.

    112.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting,
    Part II, p5.

    113.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Interpreter services.

    114.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting,
    Part II, p5.

    115.
    Note the comments of the Senate Legal and Constitutional References Committee
    in their report on the Human Rights (Mandatory sentencing of juvenile
    offenders) Bill 1999 that 'the weight of evidence to the Committee was
    that the mandatory sentencing laws have a discriminatory impact on Indigenous
    people that is contrary to the provisions of CERD, in particular articles
    2 and 5' and that 'there is no denying the fact that a series of 'disadvantage'
    factors make indigenous people in particular likely to be affected by
    mandatory sentencing. Although this may not have been intentional, it
    should now be sufficiently obvious that certain groups in the community
    are vulnerable through being more likely to commit these crimes as a result
    of their poverty and other factors. Given the evidence of at least indirect
    discrimination, it is important for states and territories to address
    such discrimination': Senate Legal and Constitutional References Committee,
    Inquiry into the Human Rights (Mandatory sentencing of juvenile offenders)
    Bill 1999, Parliament of Australia, Canberra, 2000, p84, 87.

    116.
    Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1394th
    meeting, Part III, pp6-7.

    117.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Mandatory sentencing laws.

    118.
    Note: the government presented a range of arguments in relation to how
    mandatory sentencing provisions are consistent with article 9, 10, 14
    and so forth: See further Ms Leon in FAIRA, Human Rights Committee Transcript,
    20 July 2000, pp27-30. These arguments are not addressed here. Note, however,
    the extensive and persuasive response of Lord Colville, in ibid, 21 July
    2000, pp 32-42.

    119.
    Ms Leon in FAIRA, Human Rights Committee Transcript, 20 July 2000, pp27-30.

    120.
    ibid, 21 July 2000, pp 15-16. Emphasis added.

    121.
    Lord Colville, in ibid, 21 July 2000, pp 32-42.

    122.
    The Human Rights Committee also concluded that mandatory sentencing leads
    to 'the imposition of punishments disproportionate to the seriousness
    of the crimes committed and would seem to be inconsistent with the strategies
    adopted by the State Party to reduce the over-representation of indigenous
    persons in the criminal justice system' and raises 'serious issues of
    compliance with various articles of the Covenant': UN Doc CPR/CO/69/AUS,
    para 17.

    123.
    Committee on the Elimination of Racial Discrimination, Concluding observations
    of the Committee on the Elimination of All Forms of Racial Discrimination:
    Australia, op.cit, para 547.

    124.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting,
    Part II, pp 6-7.

    125.
    Minister Ruddock, ibid, 1393rd meeting, Part I, p5.

    126.
    See: Native title report 1999, op.cit, pp 30-33.

    127.
    Ambassador Luck stated that 'it is impossible to turn back the clock'
    in FAIRA, Human Rights Committee transcript, 20 July 2000, p2.

    128.
    Mr Shinan, ibid, 20 July 2000, p 39.

    129.
    Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd
    meeting, Part I pp6-7.

    130.
    ibid, 1395th meeting, Part I, p8.

    131.
    Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1394th
    meeting, Part III, p8.

    132.
    Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1395th meeting,
    Part II, p6.

    133.
    ibid.

    134.
    Commonwealth of Australia, Written answers to the Committee on the Elimination
    of Racial Discrimination. Issue: Separated children.

    135.
    Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission
    to the stolen generation inquiry, HREOC Sydney 2000, p14.The submission
    is available at http://www.humanrights.gov.au/social_justice/stolen_children/index.html

    136.
    Attorney-General, CERD Report unbalanced, Press Release, 26 March 2000.

    137.
    ibid.

    138.
    ibid.

    139.
    Attorney-General, Transcript of interview - 11:00am, 25 March 2000, Tangney
    Electoral Office, Perth, http://www.law.gov.au,
    p1.

    140.
    ibid.

    141.ibid.p2.

    142.ibid,
    p3.

    143.
    Attorney-General, Transcript of doorstop, Parliament House Canberra, 1:15pm
    23 March 2000.

    144.
    Attorney-General, Transcript of interview - 11:00am, 25 March 2000, Tangney
    Electoral Office, op.cit, p2.

    145.
    Prime Minister, Transcript of interview on the Today show, 29 March 2000,
    p2.

    146.
    ibid, p2.

    147.
    Prime Minister, Transcript of interview with Philip Clark, 2BL, 28 March
    2000.

    148.
    ibid, p9.

    149.
    Attorney-General, Transcript of interview - 11:00am, 25 March 2000, Tangney
    Electoral Office, op.cit, p5.

    150.
    Minister for Foreign Affairs, Government to review UN treaty Committees,
    Press Release, 30 March 2000.

    151.
    ibid.

    152.
    Downer, A. (the Hon), Australia's hope for the United Nations in the twenty-first
    century, Speech - 2000 National Youth Conference of the United Nations
    Youth Association, Melbourne, 3 July 2000.

    153.
    Commonwealth of Australia, Comments of the government of Australia on
    the concluding observations adopted by the Committee on the Elimination
    of Racial Discrimination on the tenth, eleventh and twelfth periodic reports
    of Australia, Annex X in Committee on the Elimination of Racial Discrimination,
    Report of the Committee on the Elimination of Racial Discrimination, Un
    Doc: A/55/18. (Sessional/Annual Report of Committee), 17/10/2000.

    154.
    Perhaps the most controversial conclusion of the Committee was in relation
    to Australia's obligations under the Refugee Convention. On this issue
    it is notable that in the meeting in which the Committee finalised its
    concluding observations, there was vigorous debate among the Committee
    members as to whether such comments ought to be included. Ultimately they
    decided that the comments were related to Australia's obligations under
    the Convention, though the official summary record of the meeting does
    not indicate which Articles of the Convention applied in particular: see
    further, Committee on the Elimination of Racial Discrimination, Summary
    record - 1398th meeting, 24 March 2000, UN Doc: CERD/C/SR.1398. Note:
    the summary record is only available in French.

    155.
    Charlesworth, H., 'Human rights and reconciliation in international perspective'
    in Magarey, S. (ed), Human rights and reconciliation in Australia, University
    of Queensland Press, St Lucia, 1999, pp18-19.

    156.
    See Secretary, Department of Defence v HREOC (1997) 149 ALR 309.

    157.
    There remains, however, the possibility of challenging the constitutionality
    of mandatory sentencing legislation under section 10 of the RDA. This
    is different to what the Attorney was claiming, as it is not something
    that is done in accordance with the complaints mechanisms under the RDA.

    158.
    Charlesworth, H 'International human rights law and Australian federalism'
    in Opeskin, B. and Rothwell, D., International law and Australian Federalism,
    p283.

    159.
    This point is discussed at length in chapter 2 of my Native title report
    1999 and my submission to the Parliamentary Joint Committee on Native
    Title inquiry into CERD.

    160.
    Committee on the Elimination of Racial Discrimination, General recommendation
    VII concerning Article 8, paragraph 1 of the Convention, in Committee
    on the Elimination of Racial Discrimination, Compilation of general recommendations,
    op.cit.

    161.
    Human Rights and Equal Opportunity Commission, Submission to the Inquiry
    by the Joint Standing Committee on Foreign Affairs and Trade into Australia's
    relations with the United Nations in the post-cold war environment, (Herein
    HREOC, Submission: Australia's relations with the United Nations) http://www.humanrights.gov.au/human_rights/un_committee/index.html,
    pp9-10.

    162.
    ibid, pp10-11.

    163.
    Mr Henkin in FAIRA, Human Rights Committee transcript, 20 July 2000, pp
    42-43.

    164.
    Annan, K, 'Human rights and intervention in the 21st century' in United
    Nations Development Programme, Human Development Report 2000, Oxford University
    Press, New York 2000, p31.