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International Review of Indigenous issues in 2000: Australia

4. National laws contributing to racism, racist practices and / or race related discrimination


Native title

i) The recognition of native title in Australia - Mabo, the Native Title Act 1993 (Cth) and Wik

On 3 June 1992 the High Court of Australia handed down its decision in Mabo v Queensland (No.2) (1992) 175 CLR 1. This decision constitutes the first recognition of indigenous property rights at common law in Australia. The Court rejected the previously existing view that Australia was terra nullius (or land belonging to no-one) upon settlement by Europeans in 1788. They held that the common law of Australia recognised that Aboriginal and Torres Strait Islander people had pre-existing native title rights to land and/or waters which survived the acquisition of sovereignty by the British from 1788 and which may continue today in certain circumstances.

Native title rights and interests are defined according to the traditional laws and customs of Indigenous people. For native title to be recognised by the Australian legal system, claimants must be able to demonstrate that they have maintained their connection with the land, and be able to trace that connection back prior to colonisation.

The Mabo case further held that as the Crown had acquired sovereignty over Australia, it had the power to extinguish native title by lawful executive and legislative actions, where a clear and plain intention to do so has been indicated.

This power to extinguish has been limited since 1975 due to the operation of the Commonwealth Racial Discrimination Act 1975 (the RDA). The effect of this Act is that State and Territory governments may not affect Indigenous property rights in ways which differ from their treatment of non-Indigenous property rights, as to do so would be racially discriminatory and in conflict with the Act. A failure to comply with this Act can result in constitutional invalidity of the State or Territory action due to the operation of section 109 of the federal Constitution, which provides that a State law must not be in conflict with a federal law. Consequently, the recognition of Indigenous property rights in Mabo meant that all Crown grants of interests in land after 1975 were potentially invalid for inconsistency with the RDA.

To deal with the implications of the Mabo decision, the Australian federal government sought to introduce a legislative scheme. After the longest debate in the history of the Senate, and a processthat involved extensive consultation and negotiation with Indigenous representatives, the Native Title Act 1993 (Cth) (NTA) passed through the federal Parliament. The Act was part of a three stage response to the Mabo decision, the other stages being the establishment of a land fund to purchase land for Indigenous groups whose native title had been extinguished and a social justice package. The NTA was seen at the time by Indigenous groups as a compact with the government.

The purposes of the NTA were to provide for:

In developing the NTA the government sought to confirm the principles in the Mabo decision, and not to pre-empt the courts in determining the principles of when native title can be established, and when it has been extinguished.

In 1996, the High Court delivered its decision in Wik Peoples v Queensland [51]. The case involved two varieties of a type of land tenure that is unique to Australia, known as a pastoral lease, and elaborated on the principles of native title established in the Mabo case.

It had been assumed by most during the drafting of the NTA that native title was extinguished by a pastoral lease. But in Wik the High Court held that the two varieties of pastoral leases at issue did not grant exclusive possession to the leaseholder, and that accordingly, native title could co-exist over land subject to a pastoral lease. To the extent that native title was inconsistent with the pastoral lease, under the principles established in Mabo, the pastoral leases prevailed over native title to the extent of that inconsistency.
While the Wik decision was consistent with the principles established in Mabo, it was of enormous practical significance due to two key factors. First, it greatly increased the proportion of the country which may now be subject to native title. Second, as most States and Territories had assumed that native title was extinguished by pastoral leases, they had failed to comply with the provisions of the NTA and potentially granted invalid titles.

ii) Proposed amendments to the NTA

The newly elected conservative government had flagged amendments to the NTA prior to the Wik decision, and now sought to revise these proposals in order to deal with what they considered were the unacceptable implications of the decision.

Throughout 1997 and 1998 the government proposed amendments to the NTA dominated the national headlines in Australia. The amendments were debated in Parliament in November and December 1997, when in the longest debate in the Senate's history the government's bill was substantially amended. This was deemed unacceptable by the government, which resubmitted an amended version of the bill, which was considered in April and May of 1998. The bill was again substantially amended, with the government rejecting the majority of the amendments. In July 1998, the amendments passed through Parliament. Most of the amendments came into operation on 30 September 1998. They significantly alter the original provisions of the NTA.

A significant difference in the process leading to these amendments was the lack of consultation by the government with Indigenous representatives. Indigenous involvement was limited to a few face to face meetings with the Prime Minister and involvement in the formal Parliamentary Committee process. This consultation occurred when the principles and policy parameters of the amendments had already been decided. When the amendments finally passed through the Senate, the National Indigenous Working Group, a coalition of representatives from most Indigenous representative bodies, released a statement indicating their lack of involvement in the process and their lack of consent to the amendments. A copy of this statement is enclosed at Attachment A.

iii) The amended NTA - Main provisions

The amendments to the Native Title Act substantially alter the character of the Act. This section provides an overview of the main purposes and provisions of the amended act.

Authorisation of activities by the States and Territories

A major consequence of the amendments is that they devolve a large part of the responsibility for native title issues from the national level to each of the States and Territories. The amendments authorise the States and Territories to introduce legislation that meets the minimum standards laid out in the federal amendments. Any such legislation that is introduced by the States and Territories will be constitutionally valid, as it will not be in conflict with the federal legislation. This is despite the discriminatory nature of some of the provisions. It has not been tested in the Courts, and is currently unclear whether the Constitution, under s51(26) or the races power, permits the federal government to discriminate against Indigenous people in this manner.

The substance of the state and territory legislation that is now permitted by the federal amendments is to allow the States and Territories to enact validation and confirmation provisions, and to introduce provisions that alter the right to negotiate for mining acts and compulsory acquisitions (these issues are discussed further below). This has the effect of fragmenting the approach to native title across the country, and makes it more difficult for concerned people or organisations, both within Australia and overseas, to evaluate the acceptability of the provisions.

Racial Discrimination Act

The amendments include a section [52] that states that native title regimes (including those of the states and territories) must be conducted in a non-discriminatory manner, and that where there is ambiguity in the meaning of any terms in the NTA, the Racial Discrimination Act must be resorted to in order to clarify the meaning.

This does not allow for any of the federal amendments to be challenged on the basis that they conflict with the Racial Discrimination Act. As explained above those provisions of the amendments which are racially discriminatory override the protection given by the Racial Discrimination Act. As noted, it is unclear whether the government has the constitutional authority to discriminate in this manner. Such discrimination is of international concern.

Validation

When the High Court rejected the doctrine of terra nullius and recognised the pre-existing 'native title' of Indigenous people to land, it created an anomaly within the law of property. After the implementation of the Racial Discrimination Act (Cth) (RDA) in 1975, discriminatory acts that dispossessed Indigenous people (such as the grant of an inconsistent interest in land) were unlawful, and consequently, invalid. The original NTA validated these otherwise unlawful acts. The validation provisions were a response to the discontinuity that is created when injustices, for the first time, are legally recognised as such.

The 1998 amendments to the NTA created new 'validation' provisions that validated racially discriminatory acts by states and territories in the period after the recognition of native title. These acts are 'intermediate period acts'; acts that took place after the proclamation of the NTA on 1 January 1994, and before the handing down of the High Court Wik [53] decision on 23 December 1996. [54] An intermediate period act is an act that is invalid because the procedural or substantive rights of native title holders were not taken into account. An example is the grant of a license or mining tenement on native title land without extending to native title parties the procedural rights required by the NTA (such as proper notification). The amendments provide that such grants are valid and are deemed to have always been valid. [55]

The background to these amendments is that, during the 'intermediate period', governments acted on an assumption, proven false in the Wik decision, that the grant of a pastoral leasehold extinguished native title. Consequently, in relation to native title holders and claimants co-existing on pastoral leasehold land, state governments ignored the provisions of the original NTA which required that, for governments intending to deal with native title land, native title holders have the same procedural rights as ordinary title holders. [56] The original NTA also provided that, in relation to the creation, extension and variation of a right to mine, native title holders and claimants had a right to negotiate with miners and governments over the project. In the intermediate period state governments, when issuing mining tenements over native title land that co-existed with pastoral leaseholds, disregarded the rights of native title holders as stipulated in the NTA.

As a result of the validation of intermediate period acts, native title is either extinguished, (where the act is the construction of a public work or the grant of certain freehold and leasehold estates) [57]; extinguished to the extent of any inconsistency, (where the act is the grant of 'other' leases) [58] ; or not extinguished but rendered unenforceable until the intermediate period act ceases to be in operation, (where the act is the grant of a mining lease or any other act). [59]

Native title holders are entitled to compensation as a result of the impact of the validation provisions on their title. However, access to compensation for loss or impairment of title is dependent on identifying the parcels of land on which grants have been made, state governments notifying actual or potential native title holders that their interests may be affected by acts which have been validated, and the determination by a court that native title exists on the land.

Confirmation

The original NTA left the principles of extinguishment of native title to the Courts to develop. The amendments to the NTA however, pre-empt the development of the common law by authorising the States and Territories to confirm by legislation that a specified range of titles and grants (referred to as 'previous exclusive possession acts') extinguish native title, and do so permanently.

The amendments include a schedule, 50 pages in length, which lists a series of interests in each State or Territory which are deemed to be titles which provide rights of exclusive possession and consequently which extinguish native title permanently.

There are doubts surrounding the true extent of some of the tenures which are confirmed as extinguishing native title. The amendments relating to confirmation may extinguish native title to an extent greater than the actual common law position. This is implicitly acknowledged in the Act itself, as the amendments provide that compensation is only payable for extinguishment which results from the operation of the NTA, and not payable if extinguishment would have occurred outside of the Act.

The amendments also provide that titles that are non-exclusive in nature (referred to as previous non-exclusive possession acts) permanently extinguish native title to the extent of the inconsistency. This is despite the uncertainty as to the common law position on the effect on native title of the grant of non-exclusive titles. One view of the common law position is that impairment of native title by the grant of such titles may only be temporary, with native title capable of reviving at a later date.

Upgrading pastoral leases

The government considered that the Wik decision created some uncertainty as to the validity of certain activities undertaken by pastoralists. While indigenous representatives were willing to support the legislative confirmation of existing pastoral rights, the government went further than this in the amendments and introduced provisions which confirmed that pastoralists could validly conduct activities in addition to those authorised by their lease. These additional activities are known as primary production activities.

Primary production is defined to include agriculture, forestry, aquaculture and farmstay tourism. These are far more intensive activities than pastoral activities such as grazing and have a far greater impact on the enjoyment of native title. Pastoralists are able to upgrade their activities to primary production levels without any requirement for consultation or negotiation with native title holders, and without compensation being payable.

Under the principles espoused in the Wik decision, pastoralists' rights will prevail over native title to the extent of any inconsistency. Thus, the dramatic expansion of pastoralists' rights means that native title is suppressed to a correspondingly greater extent.

Where an authorised primary production activity is conducted, the amended NTA provides that the 'non-extinguishment principle' applies. This principle means that native title is suspended while these activities are current. While better than clear extinguishment, when considered alongside the requirement for native title claimants to demonstrate that they have maintained a connection with traditional country in order to claim their title, the potential for permanent erosion of native title rights becomes clear.

Registration test

Registration of a native title claim provides a native title claimant with the right to negotiate and other procedural rights under the NTA. Prior to the amendments there was effectively no registration test, with claims being registered (and accordingly being able to access these rights) so long as their claim was not frivolous or vexatious.

The amendments introduced a registration test which must be met prior to being able to access these rights. The new registration test must now be applied retrospectively to all claims which have been lodged to date. This test requires, amongst other things, that claimants establish:

While there was agreement between the government and Indigenous groups that a higher registration test must be introduced, this test is too onerous and may operate to deny worthy native title claims. Often, claims must be registered within a set notice period. It will be difficult for some claimants to provide the detail required within this period (particularly where a court order is required). Similarly, the requirement of a physical connection to the land is stricter than the common law test laid down in Mabo, which requires a physical or traditional connection.

Right to negotiate

The original NTA provided native title claimants with a right to negotiate over mining activities and certain compulsory acquisitions which were proposed on land over which they had registered native title claims. These provisions were central in protecting native title rights. They can be seen as a loose approximation of traditional Indigenous value systems, which often require negotiation and consent to access traditional lands. The right to negotiate provisions were also seen by Indigenous representatives at the time as a trade-off for the extensive extinguishment of native title provided for in the original act.

The amendments significantly alter the right to negotiate provisions by providing for a number of exceptions and alternatives to the right to negotiate provisions.

Exceptions to the right to negotiate

The amendments provide that native title claimants will no longer be entitled to a right to negotiate in relation to the creation of a mining right in the following circumstances:

The right to negotiate also will no longer apply in relation to the compulsory acquisition of land for an infrastructure facility, for either a private or public purpose. These exemptions have the potential to impact significantly on native title rights and interests, particularly in relation to areas of cultural significance and sacred sites, and maintained indigenous access to the land.

Alternatives to the right to negotiate

In addition to these exemptions to the right to negotiate, the amendments provide that the States and Territories may establish two types of alternative provisions to the right to negotiate. The first is a state-based right to negotiate, which replaces the scheme in the federal legislation. This will result in a further devolution of native title issues from the national arena should any of the States take up this option.

The second set of provisions allow the States or Territories to establish an alternative procedure (under s43A of the NTA) which replaces native title claimants' right to negotiate with a reduced set of rights. This alternative provision can only apply in what is called an 'alternative provision area', which covers specified areas of leasehold land (including pastoral leases), reservations, freehold land and areas within towns and cities. Lands classifiable as 'alternative provision areas' cover large proportions of the land in some states.

Where this provision applies, native title claimants are provided with a right to object about the doing of the act and a right to be consulted about ways of minimising the impact of the doing of the act. Unlike the right to negotiate, the right to be consulted does not require the government to negotiate in good faith, nor does the validity of the grant being sought depend on proper consultation having taken place.

Previously, the NTA did not make distinctions between the rights afforded to claimants on the basis of the history of previous tenures on the land at issue. The distinctions drawn by the amendments treat native title rights on land where there may be co-existence (such as on pastoral leases) differently to native title rights on other land. Accordingly, they provide reduced and inadequate protection to native title rights covered by the alternative provisions, and do not respect the essence of the principle of co-existence in the High Court's decision in Wik.

(iv) International Commentary on the amended NTA

The CERD Committee's Decision of 18 March 1999

In August 1998 the CERD Committee became concerned that the amendments to the NTA were inconsistent with Australia's obligations under CERD. Members of the CERD Committee voiced the concern that the situation in Australia 'was clearly deteriorating' since Australia's previous appearance before the Committee in 1994. [60] The CERD Committee decided to act under its early warning and urgent action procedure and requested that Australia provide it with information relating to the amendments to the NTA any changes of policy in relation to Aboriginal land rights, and the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner. [61]

On 18 March 1999, the Committee found that significant amendments to the NTA were contrary to Australia's obligations under CERD. The Committee further found that the amended NTA, taken as a whole, was incompatible with Australia's international obligations. An important consideration in making this finding was that the amendments were enacted without obtaining the informed consent of Indigenous people. [62]

In summary, the 18 March 1999 decision expressed concern that:

The Committee urged the Australian Government to immediately suspend implementation of the amendments to the NTA and re-open discussions with Indigenous representatives with a view to finding solutions acceptable to the Indigenous peoples and which would comply with Australia's obligations under the Convention.

The Committee decided to keep Australia under the early warning procedure to be reviewed at the fifty-fifth session of the Committee in August 1999 'in light of the urgency and fundamental importance of these matters.' [63]

The CERD Committee's Concluding observations of March 2000 on Australia

The CERD Committee reconsidered the NTA amendments when Australia's periodic report was considered in Geneva on 21 and 22 March 2000. [64]

The CERD Committee was dissatisfied with the government's response to the CERD Committee's concerns as expressed in Decision 2(54) and to the government's failure to respond to its recommendation that the government renew negotiations with Indigenous people in order to rectify the situation. The CERD Committee's restated its two major concerns; first, that the amended NTA fails to meet the standard of equality required under the Convention, and second, that the requirement under article 5(c) of the Convention, emphasised in Decision 2(54), that Indigenous people give their informed consent to decisions that affect them, was disputed and ignored by the Australian government in relation to the enactment of the amended NTA.

The CERD Committee stated :[65]

9. Concern is expressed at the unsatisfactory response to decisions 2 (54) (March 1999) and 2 (55) (August 1999) of the Committee and at the continuing risk of further impairment of the rights of Australia's indigenous communities. The Committee reaffirms all aspects of its decisions 2 (54) and 2 (55) and reiterates its recommendation that the State party should ensure effective participation by indigenous communities in decisions affecting their land rights, as required under article 5 (c) of the Convention and General Recommendation XXIII of the Committee, which stresses the importance of securing the "informed consent" of indigenous peoples. The Committee recommends to the State party to provide full information on this issue in the next periodic report.

The CERD Committee reiterated the finding that the amended NTA is discriminatory:

8. The Committee notes that, after its renewed examination in August 1999 of the provisions of the NTA as amended in 1998, the devolution of power to legislate on the "future acts" regime has resulted in the drafting of state and territory legislation to establish detailed "future acts" regimes which contain provisions further reducing the protection of the rights of native title claimants that is available under Commonwealth legislation. Noting that the Commonwealth Senate on 31 August 1999 rejected one such regime, the Committee recommends that similarly close scrutiny continue to be given to any other proposed state and territory legislation to ensure that protection of the rights of indigenous peoples will not be reduced further.

The Concluding Observations by the Human Rights Committee in July 2000 on Native Title

The Human Rights Committee considered that the amendments to the NTA were a breach of ICCPR and stated in its Concluding Observations:

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 (art. 1, para. 2).

The Committee is concerned, despite positive developments towards recognizing the land rights of the Aboriginals and Torres Strait Islanders through judicial decisions (Mabo, 1992; Wik, 1996) and enactment of the Native Title Act of 1993, as well as actual demarcation of considerable areas of land, that in many areas native title rights and interests remain unresolved and that the Native Title Amendments of 1998 in some respects limit the rights of indigenous persons and communities, in particular in the field of effective participation in all matters affecting land ownership and use, and affects their interests in native title lands, particularly pastoral lands.

The Concluding Observations by the Committee on the Economic, Social and Cultural Rights in September 2000 on Native Title

The Economic Social and Cultural Rights Committee, in considering Australia's performance under the International Convention on Economic, Social and Cultural Rights (ICESCR) in September 2000 was concerned at the impact of the amendments to the NTA and stated in its Concluding Observations:

16. The Committee notes with regret that the amendments to the 1993 Native Title Act have affected the reconciliation process between the State party and the indigenous populations, who view these amendments as regressive.

Indigenous Heritage laws

The religious and cultural practices of Indigenous people are inextricably linked to land and water. However, the various land rights laws, including native title laws and state and territory land rights acts, do not adequately protect Indigenous heritage. Consequently, State and Commonwealth heritage legislation that address the preservation of Indigenous religious, cultural and ancestral areas and objects remain the most significant form of heritage protection available to Indigenous people.

There are major problems with the heritage protection legislation in Australia. There is little co-ordination between Commonwealth, State and Territory legislative regimes. There is no uniformity between different state and territory laws and legislation in a number of states is incompatible and inadequate. [66] The Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (The Commonwealth Heritage Act) was enacted as 'an interim measure' [67] originally intended to provide only 'last resort' protection where state or territory legislation failed. However, because state and territory protection is inadequate, the Commonwealth Heritage Act is often required to provide primary site protection. Problems with the Commonwealth Heritage Act include:

In recognition of the inadequacies of the Commonwealth Heritage Act the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 was introduced in the Commonwealth parliament in 1998 and has recently been the subject of a series of amendments. As it now stands the Bill substantially weakens even the inadequate protection currently available from the Commonwealth for areas and objects of significance to Indigenous people. State and territory legislation remain the primary source of heritage legislation, subject to accreditation by the Commonwealth. Yet the standard for accreditation is inadequate and Indigenous people must exhaust all remedies at this level before accessing the Commonwealth scheme. The Commonwealth will intervene only in the case of matters that affect the 'national interest'.

International Commentary on Indigenous Heritage Protection

Protection of Indigenous heritage is a fundamental component of the instruments and obligations relating to the international human rights of Indigenous people. The Australian legislation may be evaluated by reference to the principles outlined by Chairperson-Rapporteur Erica-Irene Daes in the Report of the seminar on the draft principles and guidelines for the protection of the heritage if Indigenous people :[68]

The Report also makes important recommendations concerning the protection of Indigenous heritage through national legislation:

23. National laws for the protection of indigenous peoples' heritage should:

(a) be adopted following consultations with the peoples concerned, in particular the traditional owners and teachers of religious, sacred and spiritual knowledge, and wherever possible should have the informed consent of the peoples concerned;

(b) guarantee that indigenous peoples can obtain prompt, effective and affordable judicial or administrative action in their own languages to prevent, punish and obtain full restitution and just compensation for the acquisition, documentation or use of their heritage without proper authorisation of the traditional owners;

(c) Deny to any person or corporation the right to obtain patent, copyright or other legal protection for any element of an indigenous peoples' heritage without adequate documentation of the free and informed consent of the traditional owners to an arrangement for the sharing of ownership, control, use and benefits;

(d) Ensure labelling, correct attribution and legal protection of indigenous peoples' artistic, literary and cultural works whenever they are offered for public display or sale.

24. In the event of a dispute over the custody or use of any element of an indigenous peoples' heritage, judicial and administrative bodies should be guided by the advice of indigenous elders who are recognised by the indigenous communities or peoples concerned as having specific knowledge of traditional laws.

25. Government should take immediate steps, in cooperation with the indigenous peoples concerned, to identify sacred and ceremonial sites, including burial sites, healing places, and traditional places of teaching, and to protect such places from unauthorised entry or use and from deterioration.

The Daes Report on the protection of Indigenous heritage contains the fundamental principles to guide governments in their formulation of heritage legislation:

Australian governments' legislative protection of Indigenous heritage should implement the above guidelines, not relegate protection to inadequate targeted legislation that conceives of Aboriginal heritage as a relic of a dying civilisation.
The Human Rights Committee considered Australia's compliance with international obligations relating to heritage protection in its consideration of Australia's periodic report under the ICCPR in July 2000. The Committee commented in particular upon the decision by the Minister for the Environment and Heritage, Senator Hill, to defer a protection order over Boobera Lagoon [74] for a further two years in order to allow water skiers to find an alternative recreational site. The decision struck the Human Rights Committee as a particularly worrying illustration of land management practices that prioritise non-Indigenous culture over Indigenous culture.

During oral submissions to the Committee, Mr Lahlah, the committee member from Mauritius, commented on the lack of judicial remedies for breaches of the Covenant. Regarding the Government's decision in relation to Boobera Lagoon Mr Lahlah stated:

As I understand, the water skiing is going to continue until alternative sites are found. I would have thought that since this is a Covenant right and water skiing is not as such a Covenant right, then maybe the reverse should have happened. I'm not taking this as a light matter. It may very well be that water skiing is related to property rights guaranteed under the constitution. It may very well be. I do not know. But in this case, the court would have had the opportunity of deciding on these priorities, cultural rights of certain minorities guaranteed under the Covenant and property rights not guaranteed under the Covenant but guaranteed elsewhere. [75]

At paragraph 11 of its Concluding Observations the Committee commented generally on Australia's compliance with its obligation to protect minority cultures under article 27 of ICCPR:

The Committee expresses its concern that securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities, that must be protected under article 27, are not always a major factor in determining land use.

The Committee recommends that in the finalization of the pending Bill intended to replace the Aboriginal and Torres Strait Islander Heritage Protection Act (1984), the State party should give sufficient weight to the above values.

The Committee's observations and recommendations were in response to the priority given by successive Australian governments to non-Indigenous land use over the human rights of Indigenous people.

Criminal justice system

(i) Over-representation in the criminal justice system and deaths in custody

Indigenous Australians are grossly over-represented in the criminal justice systems of the states and territories.

In 1987 a Royal Commission into Aboriginal Deaths in Custody initiated its investigation into the deaths of 99 Aboriginal people between January 1980 and the end of 1990. Amongst other findings, the Royal Commission found that the disproportionate number of Aboriginal deaths in custody occurred, "not because Aboriginal people in custody [76] are more likely to die than others in custody" , but because of "the grossly disproportionate rates at which Aboriginal people are taken into custody" . [77]

The degree of over-representation in police custody, as measured by the Commission's study of police cell custody in August 1988, was twenty-nine times.[78] A large number of Aboriginal people in police custody were detained in police lockups, detained in 'protective custody' or arrested for the offence of public drunkenness or other non-serious offences. [79]

The Royal Commission made 179 recommendations concerning law reform, changes in policing strategies, the criminal justice and coronial systems. The Royal Commission also warned that such changes, in themselves, would not be sufficient. Issues 'underlying the alienation of Aboriginal people and their continuing conflict with the law' [80] required more fundamental changes including redressing the disadvantage of Aboriginal people in relation to their economic position, health factors including substance abuse, access to an economic base including land and employment, and in relation to education. [81] The report made further recommendations in relation to these wide-ranging causes of Indigenous over-representation in custody.

Despite the recommendations of the Royal Commission into Aboriginal Deaths in Custody in 1991, the rate at which Indigenous people come into contact with the criminal justice system has not improved in the past decade:

The situation in respect of Indigenous deaths in custody and over representation in the prison system represents a major failure of social justice in Australia. No levels of government have responded adequately to the recommendations of the Royal Commission into Aboriginal Deaths in Custody. In fact, these problems have been exacerbated by 'law and order' legislative changes, such as mandatory sentencing, which despite their apparent neutrality in terms of racial effect, continue to impact disproportionately on Indigenous Australians.

(ii) Lack of interpreter services in Court

A further related issue is the lack of availability of interpreter services in Aboriginal languages for services, especially health and legal services.

In 1998 to 1999 the Northern Territory Anti-Discrimination Commissioner conducted an inquiry into:

In July 1999 the then Northern Territory Anti-Discrimination Commissioner published her report. [84] The report found as follows:

The consequences of this are that many Indigenous people are unable to provide their informed consent to invasive medical procedures or to understand court procedures. The inquiry heard numerous horror stories of medical procedures performed without consent, as well as widespread concern from the judiciary and members of the legal profession on the need for interpreter services in legal processes.

An Aboriginal Interpreter Service was initiated in April 2000 and now has 176 interpreters covering 104 languages.

The governments' recognition of the need for an Indigenous interpreter service is a very positive development. The development of an effective interpreter service is a long-term goal that will require considerable resources and funding. It is important to note that the quality of interpreting of Indigenous languages will be affected by a number of factors, including:

A long-term commitment is needed to ensure high quality interpreter services. Funding arrangements must recognise that the requirements of establishing an Indigenous interpreter service will be significantly higher than the costs of maintaining existing non-Indigenous interpreter services in European and Asian languages

The Royal Commission into Aboriginal Deaths in Custody recommended (recommendation 99) that legislation in all jurisdictions should provide that the court must be satisfied that an Aboriginal defendant has the ability to fully express himself or herself in the English language. If they cannot, then the Court should not proceed until a competent interpreter is provided without cost to that person.

The failure of governments to date to provide adequate interpreter services breaches international requirements under the ICERD and the ICCPR, including:

(iii) International Commentary on Indigenous People in the Criminal Justice System

The over-representation of Indigenous people in custody and the lack of interpreter services in the criminal process have been the subject of recent comment by the CERD Committee:

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 marginalisation, the discriminatory approach to law enforcement and the lack of sufficient diversionary programmes. [85]

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.

Mandatory sentencing

Protection of basic human rights has been further eroded in Australia's criminal justice systems by the enactment of racially discriminatory mandatory detention laws in Western Australia (WA) and the Northern Territory (NT) in 1996 and 1997 respectively. These laws remove judicial sentencing discretion by requiring courts to impose minimum sentences of detention or imprisonment on people convicted of certain offences and discriminate against Indigenous people by targeting non-serious offences more likely to be committed by Indigenous people,

The WA laws came into effect on 14 November 1996 through amendments to the Criminal Code 1913 (WA). These amendments provide that when convicted for a third time or more for a home burglary, adult and juvenile offenders must be sentenced to a minimum of 12 months imprisonment or detention (the 'three strikes and you're in' legislation). The provisions contain some allowance for both adults and juveniles to be released under supervision.

The NT laws came into effect on 8 March 1997 through amendments to the NT Sentencing Act 1995 and the Juvenile Justice Act 1983. The Sentencing Act provisions apply only to persons aged 17 years or over. [88] Under Section 78A of the Sentencing Act persons found guilty of certain property offences shall be subject to a mandatory minimum term of imprisonment of 14 days for a first offence. For a second property offence the mandatory minimum sentence is 90 days. For a third property offence the period of imprisonment is one year.

The NT Sentencing Act was recently amended again to provide that courts are not required to impose a sentence of detention under these provisions in certain 'exceptional circumstances'. However, this applies to adults only and not to juveniles.

Unlike the laws relating to adults which can be invoked at the first conviction, the mandatory detention provisions relating to juveniles in the NT require at least one prior conviction. Under section 53AE of the NT Juvenile Justice Act a person aged 15 or 16 years who has been convicted of a relevant property offence and has had at least one prior conviction for such an offence must be subject to detention for at least 28 days. Furthermore, the court may impose an additional 'punitive work order' provided its effect is not to release the child from the requirement to serve the mandatory sentence. [89]

The NT criminal justice system treats people as adults once they attain the age of 17 years. This means that 17 year olds will be subject to the adult mandatory detention provisions in the Sentencing Act. As indicated above, those provisions are not limited to repeat offenders and can be invoked on a first conviction. In addition, under the Juvenile Justice Act a person who turns 17 while serving a term in a juvenile detention facility is required to be transferred to an adult prison to serve out the remainder of the sentence.

For the purpose of the NT mandatory detention provisions, relevant property offences include:

Mandatory sentencing for minor property offences has a disproportionate impact on Indigenous Australians. Indigenous offenders more commonly commit the offences targeted for mandatory sentencing than non-Indigenous offenders. The arbitrariness of the distinction between property offences and other types of theft, the latter not being subjected to mandatory sentencing, is demonstrated by the following example. Whereas the theft of petrol from a bowser will attract a mandatory sentence, the theft of a tankful of petrol through the use of a fraudulent credit card does not. [91] Indigenous peoples do not commonly commit the latter type of 'white collar' crimes. The mandatory sentencing provisions also affect Indigenous children disproportionately. Indigenous children are more often charged with the offences targeted for mandatory sentencing than non-Indigenous children.

Where a pattern of sentencing, such as this, reveals that certain groups are more likely to receive the harshest penalties, sentencing is discriminatory. [92] Such discrimination is prohibited under numerous international conventions to which Australia is a party, including the guarantee of equality and non-discrimination under Articles 2 and 26 of the ICCPR [93]

In response to the public backlash against the introduction of mandatory sentencing laws in Australia, the Commonwealth government and the Northern Territory government reached an agreement that provides for the diversion of juveniles from custody by giving Northern Territory police discretion to divert juveniles at the pre-charge stage.

However, this agreement does not confer any greater discretion upon the courts. Instead discretion is vested in police officers to decide whether to pursue a matter through diversionary programs or through the courts, in which case mandatory sentencing will apply. Furthermore, mandatory detention laws in the Northern Territory and Western Australia do not allow for a right of appeal against the sentence if the sentence equates with the minimum permitted. The legislation is therefore also in breach of Article 14(5) of the ICCPR, which provides for the right to appeal a sentence, and Article 14(5) of the ICCPR, which provides that the sentence be reviewable by a higher tribunal according to law. The HRC has interpreted the phrase 'according to law' in Article 14.5 of the ICCPR as 'not intended to leave the very existence of the right to review to the discretion of the States parties.' [94]

In addition, the resulting changes to the mandatory sentencing regimes in relation to youth offenders are insufficient. Under the Western Australian system, no inherent concession is given to juveniles apart from the possibility of detaining such people in a prescribed 'detention centre' rather than a prison. Some concessions are given to children under the Northern Territory regime, although the NT regime is harsher than the WA regime. Under the Northern Territory mandatory sentencing regime, a juvenile can possibly be sentenced to 28 days' imprisonment whereas an adult would be sentenced to 14 days' imprisonment for the same crime under the NT regime. [95]

Article 14(4) of the ICCPR provides that in the case of juveniles the procedure shall take account of their age and promote their rehabilitation. Mandatory detention removes the court's discretion to take these factors into account. The recent amendments to the NT regime do not redress this situation.

Article 24 of the ICCPR recognises the right of every child, without any discrimination, to receive from his family, society and the State the protection required by his status as a minor. This also entails the adoption of special measures to protect children. [96] Article 24: Rights of the Child: Mandatory sentencing is also inconsistent with several Articles of the Convention on the Rights of the Child (CROC), namely Article 3.1, 37(b), 40.2(b) and 40.4. Violations of these Articles of CROC constitute persuasive evidence of violations of Article 24 of the ICCPR.

International Commentary on Mandatory Sentencing

(i) Consideration of Mandatory Sentencing by the CERD Committee in March 2000.

In its consideration of Australia in March 2000 the CERD Committee were particularly concerned by the following aspects of the mandatory sentencing or detention laws in the Northern Territory and Western Australia:

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. [97]

The Country-Rapporteur's questions reflect the recognition in CERD that discrimination may be indirect as well as direct. The definition of racial discrimination in CERD clearly incorporates indirect discrimination in Article 1.1, which includes discrimination 'in purpose or effect'.

The Australian 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… [98]

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. [99]

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.

The CERD Committee expressed concern at mandatory sentencing in its Concluding Observations in March 2000 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. [100]

(ii) Consideration of Mandatory Sentencing by the Human Rights Committee in July 2000.

In the dialogue with the Human Rights Committee, the Australian government provided more expansive answers on why it considered that mandatory sentencing laws are not racially discriminatory: [101]

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... [102]

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….

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. [103]

This answer does not acknowledge that the prevention of discrimination clearly includes discrimination that may be unintentional, but which nevertheless still has 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, the circumstances in which a 'differentiation of treatment' is justifiable do not extend to permitting invidious discrimination.

But even were such a balancing exercise allowable under the ICCPR, it is patently false to suggest that the mandatory sentencing laws, particularly those in the Northern Territory, relate only to 'serious property offences'. The mandatory sentencing laws apply to petty or minor property offences and it is inconceivable that such harsh laws could be seen as proportionate, reasonable or just in these circumstances.

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. [104]

The Human Rights Committee expressed its concern at mandatory sentencing in its Concluding Observation in July 2000:

17. Legislation regarding mandatory imprisonment in Western Australia and the Northern Territory, which leads in many cases to imposition of punishments that are 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, raises serious issues of compliance with various Articles in the Covenant.

The State party is urged to reassess the legislation regarding mandatory imprisonment so as to ensure that all Covenant rights are respected. [105]

(iii) Consideration of Mandatory Sentencing by the Committee Against Torture in November 2000.

The Committee Against Torture has also expressed its concern that the mandatory sentencing legislation breaches the Convention Against Torture to which Australia is a signatory. In November 2000 the Committee stated:

…(e) Legislation imposing mandatory minimum sentences, which has allegedly had a discriminatory effect regarding the indigenous population (including women and juveniles), who are over-represented in statistics for the criminal justice system.
The Committee Recommended:

The State party keep under careful review legislation imposing mandatory minimum sentences, to ensure that it does not raise questions of compliance with its international obligations under the Convention and other relevant international instruments, particularly with regard to the possible adverse effect upon disadvantaged groups.


51 (1996) 187 CLR 1
52 section 7 NTA
53 Wik v Queensland (1996) 187 CLR 1 ('Wik').
54 NTA, Division 2A, Part 2. S22F provides that states and territories may validate intermediate acts attributable to the state and territory.
55 NTA, s22A, 22F
56 NTA, s23(6)
57 NTA, s229
58 NTA, s230
59 NTA, s231, 232
60 Committee member Mr Wulfrum, in Committee on the Elimination of Racial Discrimination, Summary record of the 1287th meeting (53rd session), 14 August 1998, UN Doc CERD/C/SR.1287, para 32. See also comments by Mr Van Boven, Ms McDougall and Mr Garvalov at paras 29, 38 and 42 respectively.
61 Committee on the Elimination of Racial Discrimination, Decision 1(53) concerning Australia, 11 August 1998. UN Doc CERD/C/53/Misc.17/Rev.2.
62 Committee on the Elimination of Racial Discrimination, Decision (2)54 on Australia - Concluding observations/ comments, 18 March 1999. UN Doc CERD/C/54/Misc.40/Rev.2. Herein CERD Decision.
63 Ibid., at para 12.
64 The oral appearance of the Australia government delegation before the CERD Committee is documented in two ways:
(1) the unofficial, complete transcript of the dialogue by 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, ( FAIRA, CERD Transcript,- 21-22 March 2000), see also www.faira.org.au/cerd/; and
(2) 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 the office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, HREOC.
65 CERD Committee, Concluding Observations 2000, op. cit., para 8
66 Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, Report by Elizabeth Evatt AC, 21 June 1996 para 2.30. http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/evatt
67 Hansard, Reps 9 May 1984, 2130. "The original title of the Act was the Aboriginal and Torres Strait Islander Heritage (interim Protection) Act 1984. Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, Report by Elizabeth Evatt AC, 21 June 1996 http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/evatt
68 The report on the protection of the heritage of Indigenous people by Erica-Irene Daes is the most comprehensive statement from an international organisation of the appropriate standards for the protection of Indigenous peoples' heritage. The principles and guidelines are widely endorsed by Indigenous peoples and reflect the position of the Working Group on Indigenous Populations, the most expert group on Indigenous issues in the United Nations system. The principles were elaborated in accordance with the Working Group's mandate to develop standards regarding the rights of Indigenous peoples.
69 ibid, para 1.
70 ibid, para 2.
71 ibid, para 3.
72 ibid, para 4.
73 ibid, para 5.
74 Hill, Senator Robert, Press Release: Decision on the Future of Boobera Lagoon, 28 June 2000, www.environment.gov.au/minister/env/2000/mr28jun00.html, (27 November 2000).
75 Mr Lahlah, Transcript of Human Rights Committee's examination of Australia, 21 July 2000, www.faira.org.au (27 November 2000).
76 Report, Royal Commission into Aboriginal Deaths in Custody, National Report, Volume 1, 1991, 1.3 'The Disproportionate numbers of Aboriginal People in Custody' (Herein 'RCIADC Report')
77 RCIADC Report, ibid., Preface
78 RCIADC Report, ibid., 1.3 'The Disproportionate numbers of Aboriginal People in Custody' at 1.3.2
79 RCIADC Report, ibid., 1.6 'Reducing the Number of Aboriginal People in Custody - The Criminal Justice System' at 1.6.2
80 RCIADC Report, ibid., Preface
81 RCIADC Report, ibid., 1.3 'The Disproportionate numbers of Aboriginal People in Custody'
82 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.
83 Australian Bureau of Statistics, Corrective Services, June Quarter 1999, Ref: 4512.0, pp5, 21-22.
84 Office of the Northern Territory Anti-discrimination Commissioner, Report: Inquiry into the provision of an interpreter service in Aboriginal languages by the Northern Territory government, 1999.
85 CERD Committee, Concluding Observations 2000, op.cit., at para 15
86 Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, p5.
87 Criminal Code (WA), s401(4).
88 Sentencing Act 1995 (NT), s4.
89 Juvenile Justice Act 1983, s53AF.
90 Sentencing Act 1995 (NT), Schedule 1.
91 Martin, G, Seminar on Mandatory Sentencing, at Indigenous Human Rights Conference, Byron Bay, February 2000.
92 Human Rights and Equal Opportunity Commission Human rights brief no.2: Sentencing juvenile offenders, p5.
93 See also Human Rights Committee, General Comment 18, Non-discrimination. 10/11/89. (Thirty-seventh session, 1989), paragraph 7.
94 Salgar de Montejo v Colombia (64/79), paragraph 10.4.
95 See H. Bayes, 'Justice is blind: Mandatory sentencing of children in Western Australia and the Northern Territory', (1999) 22(1) University of New South Wales Law Journal 286, p. 286.
96 Human Rights Committee, General Comment 17, Rights of the Child (Article 24). 07/04/89. (Thirty-fifth session, 1989), at paragraph 1.
97 Ms McDougall in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part II, p5.
98 Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1394th meeting, Part III, pp6-7.
99 Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Mandatory sentencing laws.
100 CERD Committee, Concluding Observations 2000, op.cit. at para 15
101 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.
102 Ms Leon in FAIRA, Human Rights Committee Transcript, 20 July 2000, pp27-30.
103 Ibid, 21 July 2000, pp 15-16. Emphasis added.
104 Lord Colville, in ibid, 21 July 2000, pp 32-42.
105 Human Rights Committee. Concluding Observations, op. cit., para 17.

Last updated 7 October 2003.