In July 2000 the Human Rights Committee considered Australia's implementation record over the past 12 years and made some recommendations for improvements. Notable among these were the need for effective implementation of the International Covenant on Civil and Political Rights and repeal of mandatory sentencing in WA and NT.
This document provides analysis and description of the Committee's findings.
Principal subjects of concern and recommendations:
About the Human Rights Committee
The Human Rights Committee was established when the International Covenant on Civil and Political Rights (ICCPR) came into force in 1976. It has 18 members who are elected from human rights experts nominated by countries who are members of the Covenant. They serve in their personal capacities and not as representatives of their countries of origin (see ICCPR article 28).
Click here for a list of current members.
The role of the Human Rights Committee is to promote compliance with the Covenant on the part of member States by:
- considering and commenting on reports submitted periodically by member States, assisted by information provided by international and national non-government organizations and agencies (Concluding Observations, see article 40)
- publishing interpretation guidelines about different articles of the Covenant (General Comments)
- considering complaints against a State party by another State party (article 41)
- considering individual complaints (Communications) about any member State which has ratified the First Optional Protocol and publishing Views (Jurisprudence)
Australia is required to provide a report every 5 years. The initial Australian report was submitted in 1981. The Committee's Guidelines on State reports can be accessed here.
Australia's third and fourth periodic reports
Australia's third periodic report was due in 1991 and was submitted on 28 August 1998. Australia's fourth periodic report was due in 1996 and was submitted on 24 August 1999. In March 2000 the Committee, having considered the two reports, published a list of 21 issues to be taken up in Australia's oral presentation.
The oral presentation and discussion with the Committee took place in Geneva on 20 and 21 July 2000. The Australian Government delegation was led by Australia's Ambassador to the United Nations, His Excellency Les Luck. Other members were Mr Bill Campbell, First Assistant Secretary, Office of International Law, and Ms Renee Leon, Assistant Secretary, Public International Law Branch in that Office of the Attorney-General's Department, Mr John van Beurden, Office of Indigenous Policy, Department of Prime Minister and Cabinet and Ms Robyn Bicket, Immigration Counsellor at Australia's Mission in Geneva.
For the Committee's Summary Record of its meeting with the Australian delegation, click here:
This Document
The aim of this paper is to set the Committee's conclusions and recommendations in their context of Australia's report, the supplementary information provided by the Human Rights and Equal Opportunity Commission (HREOC), the Aboriginal and Torres Strait Islander Commission (ATSIC) and non-government organizations, and the questions posed to the Australian delegation by members of the Human Rights Committee. All material is extracted only; it cannot be provided here in full. The submissions made by the Human Rights and Equal Opportunity Commission are available by clicking here.
The record of questions posed and comments made was taken by the Director of the Commission's Human Rights Unit, Meredith Wilkie, who attended the hearing in Geneva with the Aboriginal and Torres Strait Islander Social Justice Commissioner, Dr Bill Jonas, and Senior Policy Officer in the Commission's Native Title Unit, Ms Robynne Quiggin.
On 28 July 2000 the Human Rights Committee published its Concluding Observations concerning Australia's compliance with the Covenant.
Preliminary comments
The Committee recorded its appreciation of the quality of Australia's reports (para 2). The third report was particularly lengthy at 318 pages and the Committee commented on its comprehensiveness. One member, however, reminded the Australian delegation that the Committee has a great deal of information to process and will be assisted in future by greater concision.
The Committee expressed regret at the long delay in the submission of Australia's third report (para 3). The Committee also expressed its appreciation for the contribution of the ngos and statutory agencies to its consideration of Australia's reports (para 4).
Positive aspects
The positive measures noted since the Committee's examination of Australia's second report 12 years ago were:
- Australia's accession to the first Optional Protocol to the Covenant giving individuals the right to submit complaints (Communications) to the Committee (para 5)
- the steps taken to implement the Committee's Views in the Toonen Case in which Tasmania's criminalisation of homosexual acts between consenting adult males in private was found to violate the right to privacy in article 17 (para 5)
- the enactment of anti-discrimination legislation in every State and Territory (para 6)
- the establishment of the Aboriginal and Torres Strait Islander Social Justice Commissioner in 1993 (para 7) and
- the improved status of women in Australia.
Principal subjects of concern and recommendations
The Committee addressed seven broad topics in its concluding observations:
- Indigenous self-determination
- Native title and heritage protection
- Stolen generations
- Effective implementation of the Covenant
- Mandatory sentencing
- Deportation of people risking torture or summary execution
- Mandatory detention of unauthorised arrivals
1. Indigenous Self-Determination
Article 1 of the Covenant states that:
- All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
- All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
Australia's report
"The Australian Government has been following closely the international debates concerning self-determination in its application to indigenous peoples. Information on the measures by which the Australian Government is seeking to advance the economic, social and cultural development of indigenous Australians is provided in the section of this report relating to article 27." (third report, para 30).
HREOC's submission
"The Commission is particularly concerned at government policy on the applicability of the principle of self-determination to Indigenous peoples.
"The present government has abandoned self-determination as policy guiding Indigenous affairs.[1] In November 1996 the Minister for Aboriginal and Torres Strait Islander Affairs announced that the government's Indigenous affairs policy would no longer be based on the principle of self-determination. Instead, government policy is now based on the concept of 'self-empowerment.' This concept, which has no meaning in international law, is exemplified by the government's calls for Indigenous peoples to move beyond welfare dependency:
self-empowerment enables Aborigines and Torres Strait Islanders to have a real ownership of (their) programs thereby engendering a greater sense of responsibility and independence... In this sense, self-empowerment varies from self-determination in that it is a means to an end - ultimately social and economic equality - rather than merely an end in itself. [2]
"This misunderstands the scope and intent of the principle of self-determination. Self-determination cannot accurately be described as an end of itself. The right of self-determination is the right to make decisions and to control their implementation. As Dr Lowitja O'Donoghue has described it, 'self-determination is a 'dynamic right' under the umbrella of which Aboriginal and Torres Strait Islander peoples will continue to seek increasing autonomy in decision making.' [3]
"In July 1998 the Cabinet of the federal Government decided to urge Canada, New Zealand and the United States to support the removal of the term 'self-determination' from the Draft Declaration on the Rights of Indigenous Peoples. [4] This breaches the obligation in article 1(3) to promote the realization of self-determination.
"On 17 March 2000, the government again rejected a call for self-determination for Aboriginal peoples by rejecting wording in the Draft Declaration of Reconciliation, prepared by the Council for Aboriginal Reconciliation.
"The government has also rejected the recommendations of key reports for redressing Indigenous disadvantage. Most notably, they have rejected or failed to implement recommendations of the Royal Commission into Aboriginal Deaths in Custody, and Bringing them home, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. Many recommendations, particularly those concerning the application of the principle of self-determination, have been actively rejected."
ATSIC's submission
"It is with disappointment and outrage that Indigenous Australians have noted the decision of the Australian Government to withdraw its support for the concept of self-determination in domestic Indigenous affairs policy and in the development of a United Nations Draft Declaration on the Rights of Indigenous Peoples. The decision of Federal Cabinet to abandon the term "self-determination" for Indigenous peoples was first reported on 22 August 1998. The Foreign Minister was reported to have confirmed that Australia would urge the UN to abandon the term self-determination for Indigenous peoples and replace it with concepts of "self-management" or "self-empowerment."
"The Government's rejection of self-determination signals a significant departure from established policy in Australia where self-determination has been a policy in Indigenous affairs since 1972. In 1991 the Royal Commission into Aboriginal Deaths in Custody recommended:
That governments negotiate with appropriate Aboriginal organisations and communities to determine guidelines as to the procedures and processes which should be followed to ensure that the self-determination principle is applied in the design and implementation of any policy or program or the substantial modification of any policy or program which will substantially effect Aboriginal people.
"Pursuant to Articles 1, 2 and 26, and General Comment 18 and 23 of the ICCPR, ATSIC believes that the abandonment of the concept of self-determination as policy by the Australian Government violates the right of Aboriginal and Torres Strait Islander peoples to freely determine their own political status and freely pursue their economic, social and cultural development."
Committee's list of issues - 4
The Committee asked: "What is the policy of Australia in relation to the applicability to the indigenous peoples in Australia of the right of self-determination of all peoples?"
Australia's oral presentation
The Australian delegation told the Committee that Australia supports Indigenous people having more meaningful control of their own affairs. To this end Australia has established ATSIC. Also "most discrete Indigenous communities own their own land" and "exercise local government functions". There are 700 Indigenous-controlled housing organizations and over 100 Indigenous-managed medical services. The Australian policy is one of Indigenous self-management or self-empowerment. However, Australia is unable to accept a specifically Indigenous self-determination right.
Questions and responses
Committee member Martin Scheinin from Finland noted that the Australian delegation "did not give much support for the idea that the situation of Indigenous peoples is relevant to article 1". But article 1 "is relevant in the context of Indigenous peoples".
Committee's conclusion and recommendation
"With respect to article 1 of the Covenant, the Committee takes note of the explanation given by the delegation that rather than the term 'self-determination' the Government of the State party prefers terms such as 'self-management' and 'self-empowerment' to express domestically the principle 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 (article 1, para 2)." (para 9)
2. Native Title and Indigenous Heritage Protection
Article 27 of the Covenant states:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
2(a) Native Title
Australia's report
Australia's third and fourth reports covered the period up to 1996. More recent developments in native title, including the 1998 'Wik' amendments, were addressed by the government delegation in its oral submissions.
"All residents of Australia, whether indigenous or immigrant, enjoy the same basic rights and obligations. Australia's multicultural policy is to accept the contribution of all cultures without encouraging ethnic of cultural separatism. It is policy to provide all Australians with the opportunity to participate fully in, and contribute to, our society.
" ... Indigenous peoples are a unique group in Australian society and their needs and interests have warranted, and continue to warrant, special attention." (third report, paras 1351-1352)
"In 1996, the Government introduced into Parliament amendments to the Native Title Act 1993. The amendments clarify the circumstances in which acts affecting native title may be done, facilitate agreements between government and native title holders about those acts, streamline the processes for determining native title matters, provide an effective registration process for claims and ensure that native title and compensation determinations under the Native Title Act 1993 are enforceable.
"The Government subsequently announced a number of further amendments relating to the registration of claims, statutory functions for representative Aboriginal and Torres Strait Islander bodies, and the right to negotiate process and establishing a register for indigenous land use agreements. The amendments have not yet been considered by Parliament.
"On 23 December 1996 the High Court handed down its decision in Wik Peoples v. Queensland (1996) 141 ALR 129. The decision concerns the effect on native title at common law of pastoral leases granted under certain Queensland legislation. The High Court decided by majority (4-3) that the grant of the pastoral leases did not confer on the lessees a right of exclusive possession, and therefore the grant of the pastoral leases had not necessarily extinguished native title. However, where the rights of the pastoral lessees are inconsistent with native title, the rights of the lessees prevail. The Government is currently considering the implications of this decision, particularly in relation to the operation of the Native Title Act 1993." (fourth report, paras 133-135)
HREOC's submission
"The amended Native Title Act [as amended in 1998 subsequent to the Wik decision] prefers non-Indigenous title to land over Indigenous title to land in the following ways;
(i) The validation provisions prefer the interests of non-Indigenous titleholders whose rights were invalidly obtained between 1975 and 1996 over the interests of Indigenous titleholders. Native title is either extinguished or unenforceable as a result of these provisions.
(ii) The confirmation provisions prefer non-Indigenous interests which are specified in the Act or referred to generically as 'exclusive possession acts' and 'non-exclusive possession acts' over Indigenous titleholders. Native title is either extinguished or unenforceable as a result of these provisions.
(iii) The future act provisions prioritise specified activities of non-Indigenous titleholders and government over Indigenous control of native title land. For example, pastoralists have a right to carry out a range of activities outside of their lease, including agriculture, forestry, aquaculture, without consultation with Indigenous titleholders. Native title unenforceable as a result of any inconsistence with these activities.
(iv) The right to negotiate, where mining or compulsory acquisition is proposed over native title land has been, in some instances removed, or reduced in scope as a result of the amendments. For instance, the right to negotiate where native title co-exists on pastoral leasehold land has been reduced to a right to 'object and consult'.
"In each of these instances, where an inconsistency or potential inconsistency exists between the full enjoyment of Indigenous interests and the full enjoyment of non-Indigenous interests, Indigenous interests are either extinguished or impaired in order to ensure the full enjoyment of non-Indigenous interests in land."
ATSIC's submission
"ATSIC, along with the National Indigenous Working Group (NIWG), did not agree with or consent to the 1998 amendments to the Native Title Act 1993 (NTA) that significantly reduced the rights of Indigenous people. ATSIC was willing at the time of the amendments in 1998, and is still willing, to negotiate amendments to improve the workability of the NTA. However, it is essential that the discriminatory aspects of the 1998 amendments, including those provisions identified by the CERD [UN Committee on the Elimination of Racial Discrimination] as discriminatory, be removed as a matter of urgency. Some of the key concerns with the Native Title Amendment Act are:
- Confirmation of Past Extinguishment;
- Validation of "Intermediate Period" Titles;
- Expansion of the Rights of Pastoralists;
- Erosion of the Rights to Negotiate; and
- Effective Suspension of the Racial Discrimination Act.
"Most State and Territory Parliaments have now passed legislation, specifically allowed for under the Commonwealth Act, for validation and for confirmation of extinguishment. Thus native title has been extinguished, without judicial authority, with further confirmation of extinguishment possible, and thousands of potentially invalid mining interests granted by State/Territory governments have been validated without native title holders having had the opportunity to exercise the Right to Negotiate provided by the NTA. Significant detriment to the rights of Indigenous people in Australia has already taken place as a result of the 1998 amendments. The progressive implementation of the 1998 amendments through State and Territory legislation means that native title rights continue to be eroded. There is an element of urgency in the situation. Implementation of the provision identified by CERD as discriminatory should be suspended forthwith."
Committee's list of issues - 7
"Please comment on the extent to which the amendments to the Native Title Amendment Act, which aim at securing the economic interests of farmers and miners, limit the possibilities of Aborigines and Torres Strait Islanders in claiming native title rights and interests to control future developments on their native title lands and waters."
Australia's oral presentation
Native title is "a new and emerging concept". The original Native Title Act was "not functioning optimally". Native title "exists where people have retained their link with the land and where it has not been extinguished by government". The confirmation provisions "have caused no divestment of native title rights". However, the "full right to negotiate is not appropriate where native title is a co-existing right" - as on pastoral leases. The right to negotiate was impeding resource development without giving Indigenous people significant benefits in return. Following the 1998 amendments they retain other procedural rights: to be consulted, to object, to petition an independent arbiter. The Committee on the Elimination of Racial Discrimination "failed to consider the benefits conferred by the 1998 amendments".
Questions and responses
Committee member Martin Scheinin (Finland) stated that the way in which native title was discussed by Australia was "misleading" and "has meant that insufficient information on article 27 has been provided". "Article 27 speaks to enjoyment of culture; concentrating on native title is misleading, since native title problems may take decades of litigation to resolve". He asked, "What steps are being taken to protect the sustainability of cultures and communities today?" In reference to the delegation's point that it is not possible to turn back the clock, Mr Scheinin said "While that is true in one sense, it is not true in the sense that it implies that Indigenous cultures will inevitably be assimilated into a pattern of life which is fundamentally European. Indeed, it can be argued that there is a need to turn the clock back, in order to see what can be done to secure the sustainability of traditional forms of Aboriginal economic and cultural life." Assimilation is "not appropriate". It is necessary, under article 27, to provide "a sound economic basis to secure future sustainability [of the culture and the Indigenous communities]".
P N Bhagwati of India noted that 40% of Australia is constituted by pastoral leases. The 1998 amendments are directed against native land holders. How is that compatible with articles 2, 26 and 27 of the Covenant?
Committee's conclusion and recommendation
"The Committee is concerned, despite positive developments towards recognising 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 limits 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 Committee recommends that the State party take further steps in order to secure the rights of its indigenous population under article 27 of the Covenant. The high level of the exclusion and poverty facing indigenous persons is indicative of the urgent nature of these concerns. In particular, the Committee recommends that the necessary steps should be taken to restore and protect the titles and interests of indigenous persons in their native lands, including by considering amending anew the Native Title Act, taking into account these concerns." (para 10)
2(b) Indigenous Heritage Protection
Australia's report
Australia's third report details the heritage protection regimes under Commonwealth, State and Territory laws (paras 1446-1465). The fourth report updates the information with respect to Victoria (paras 142-144).
HREOC's submission
"The religious and cultural practices of Indigenous people are inextricably linked to land and water. In 1995-96 the Australian government commissioned a review of legislative protections for sites of religious, cultural and ancestral significance. Extensive reforms were suggested, and widely supported by Indigenous groups. The reforms have not been implemented. Protection remains inadequate and sites remain vulnerable to desecration and destruction."
"Protection of cultural heritage is required for compliance with articles 1, 18 and 27.
"Failure to protect cultural heritage may violate a people's right to privacy as protected under article 17 as well as their family rights in article 23. In Hopu and Bessert v France (549/93), the authors alleged that a hotel development on the sacred burial grounds of their ancestors breached, inter alia, their rights to privacy. The HRC majority agreed, as the authors' relationship with their ancestors constituted an important part of their identity."
ATSIC's submission
"Indigenous cultural heritage includes those areas or objects which are significant to Indigenous peoples because of religious and cultural beliefs; historic sites, including the built environment; human remains; archaeological sites; and traditions or oral histories and intellectual property that are or have been part of or connected with the cultural life of Indigenous communities, including songs, rituals, ceremonies, dances, art, customs, laws, spiritual beliefs and stories.
"The Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ("the Evatt Report") completed in 1996 proposed a series of recommendations to ensure the protection of Aboriginal cultural heritage in a practical and effective manner. The Evatt Report envisages the adoption of uniform minimum standards for Aboriginal heritage protection, accompanied by an accreditation procedure that would improve the standard of protection at the State and Territory level and reduce the need to apply to the Commonwealth for protection. The Report's recommendations seek to ensure that the Commonwealth maintains its function as an instance of last resort in recognition of the significance of Aboriginal cultural heritage as a matter of national responsibility, arising under the Australian Constitution and international instruments, such as the ICCPR.
"In response the Government introduced The Aboriginal and Torres Strait islander Heritage Protection Bill 1998. As drafted, the legislation would effectively allow the Commonwealth to withdraw from protecting Indigenous heritage. Instead, state/territory heritage legislation would be accredited after certain 'minimum standards' are met and the Commonwealth's involvement limited to cases involving the 'national interest'.
"Pursuant to Articles 18 and 27 of the ICCPR, ATSIC believes that the Australian Government's heritage protection legislation fails to provide appropriate protection to Indigenous religious and cultural practices. The Australian Government appears committed to minimising, if not relinquishing, its obligations as a mechanism of last resort in cultural heritage protection, which is in violation of the right of people to manifest their "religion or belief in worship, observance, practice and teaching" and the rights of minorities to enjoy their own culture."
Committee's list of issues - 8
"Please provide information about the arrangements for preservation of religious, cultural and ancestral sites of indigenous peoples."
Australia's oral presentation
There is heritage protection legislation in each State and Territory and also a federal Act of 1984. That Act was intended as an interim measure and operates as a last resort [safety-net]. A government bill will replace it and aims to protect Indigenous sites through negotiation and mediation. The bill "separates the assessment of significance from the question of protection".
Questions and responses
The discussion here was closely linked to that of native title: both being dealt with by the Committee as article 27 issues. Therefore, note the comments by Martin Scheinin above.
Mr Scheinin (Finland) cited the Hindmarsh Island Bridge (SA) and Boobera Lagoon (near Goondiwindi Qld) cases as two examples of Australia's failure to protect Indigenous heritage. The Australian delegation responded that the Indigenous claim over Hindmarsh Island was actually disputed by another Indigenous group and that Boobera Lagoon would be protected once an alternative site for water-skiing was located.
The delegation made the point that "article 27 does not require Australia to enact legislation to guarantee these rights". The "reconciliation process has improved acceptance and understanding of Indigenous cultures".
Mr Lallah (Mauritius) commented that Australia had missed the point of the Committee's discussion of article 27. Article 27 sets out rights and article 2 requires that violation of those rights must have an effective remedy. Just because article 27 is framed in the terms that 'people shall not be denied the right' does not mean they don't have an affirmative right which must have a remedy in the event of breach. Taking the Boobera Lagoon example through to its natural conclusion: if protection is denied the Indigenous people have no remedy in Australian law. They have no cause of action. Taking that example to make another point, too: water-skiing is not a Covenant right whereas protection of religious sites and heritage sites is a Covenant right. Why then must the Covenant right be suspended while water-skiing proceeds? "I would have thought the reverse situation would be the case."
Committee's conclusion and recommendation
"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." (para 11)
Article 2 of the Covenant requires Australia to ensure that the rights in the Covenant are effectively implemented and that there are remedies available in the event of breaches. Article 17 protects the sanctity of the family unit. It states:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
Article 24 is concerned with the protection of children. It provides in paragraph 1:
Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
Australia's report
Australia's third report mentions the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (paras 77-79). However, the Inquiry's report, Bringing them home (May 1997) had not been completed by the end of the reporting period (December 1995). Australia's fourth report (covering 1996) does not mention the inquiry.
HREOC's submission
"The report [Bringing them home] identified that:
- Forcible removal policies saw the removal of between 1 in 3 and 1 in 10 Indigenous children in the period 1910 to 1970;
- The effects of such removal were, for most victims, negative, multiple and profoundly disabling;
- Removal laws were racially discriminatory, and genocidal in intent;
- For many children removed there were breaches of fiduciary duty and duty of care, as well as criminal actions.
"The report adopted the van Boven principles for reparation for gross violations of human rights as the basis of recommendations for addressing the harm caused.
"The report also considered contemporary forms of separation, and recommended the introduction of national standards and framework legislation incorporating international human rights standards for the treatment of Indigenous children.
"The government responded to the report in 1997 with a $43 million package. The government has rejected recommendations for compensation and other forms of reparation. In a recent submission, the government rejects further the basis for reparations and argues that the laws were not genocidal and did not amount to a gross violation of human rights."
ATSIC's submission
"Results from the 1995 National Aboriginal and Torres Strait Islander Survey show that 10% of Indigenous peoples aged 25 or over were taken away from the natural family. The Human Rights and Equal Opportunity Commission published its report into the practice of removing children from their families entitled Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families in 1997. The Inquiry found [5] that from about 1946, laws and practices which, for the purpose of eliminating Indigenous cultures, promoted the removal of Indigenous children for rearing in non-Indigenous institutions and households were in breach of the international prohibition of genocide. The inquiry recommended formal recognition and apology, as well as reparation to people removed as children, their families and communities.
"Pursuant to Article 2 of the ICCPR, ATSIC believes that the Australian Government's response to the Stolen Generations Inquiry fails to provide effective remedy for the past practice of forced removal of Indigenous children from their families. The Government's refusal to consider an apology to members of the Stolen Generation and the provision of compensation to these people is in conflict with Australia's obligations "to ensure that any person whose rights or freedoms as herein recognized are violated should have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity."
Committee's list of issues - 6
"Please give details on the extent of the phenomenon of removal of indigenous children from their families under past governmental policies. What is the present situation of these persons? What has the inquiry by the President of the Human Rights Equal [sic] Opportunity Commission and the Race Discrimination Commissioner, and the Aboriginal and Torres Strait Islander Social Justice Commissioner accomplished to redress this situation? In addition, what has been done to remedy the situation, and has compensation been paid to the victims?"
Australia's oral presentation
All Australian governments have responded to the Bringing them home report. The Commonwealth has committed a $63 million package to the central finding that family reunion is the most urgent need. The package is for services to rebuild family and community ties. The Commonwealth does not believe compensation is the answer although compensation can be claimed in the courts.
Questions and responses
Martin Scheinin (Finland) stated that if it were true that removed children are
- more likely to experience arrest and imprisonment
- more likely to experience mental health problems and to report poor physical health
- less likely to form stable relationships
- more likely to have their children removed in turn
then that is "alarming proof of the total failure of the former assimilation policy" and means those people suffer "double marginalisation". "The wound is very deep and the State party needs to do more to heal that wound."
Eckart Klein (Germany) asked Australia "not to consider removals as a deplorable mass phenomenon but as occurrences that have hit individuals. Each and every case must be inquired into and remedied." The Australian delegation said that they were being treated as individuals.
Cecilia Medina Quiroga (Chile, Chair of the Committee) summed up the Committee's concern under this heading: that of "terrifying wrongs, especially forcible removals". These had violated the principle of equality - that all human beings are equal in dignity and rights. Australia's efforts more recently were "pretty commendable". However, because of the extent of past wrongs the inequality continues. Therefore, "the measures need to be extraordinary - of the order of magnitude of the harm that was done. Australia still has some way to go to remedy the harm done in the past and to avoid the persistence of inequality in the future."
Committee's conclusion and recommendation
"While noting the efforts of by [sic] the State party to address the tragedies resulting from the previous policy of removing indigenous children from their families, the Committee remains concerned about the continuing effects of this policy.
"The Committee recommends that the State party intensify these efforts so that the victims themselves and their families will consider that they have been afforded a proper remedy. (articles 2, 17 and 24)." (para 12)
4. Implementation of Covenant Rights
Article 2 of the Covenant provides in part:
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Australia's report
"In Australia, the Covenant and other treaties are not 'self-executing'. The provisions of treaties to which Australia has become a party do not become part of domestic law by virtue only of the formal acceptance of the treaty by Australia ..." (third report, para 40)
"... Australia believes that not every matter concerning human rights is properly dealt with by resort to additional legal sanctions. In many cases, rights are better preserved by less formal processes, often associated with inquiry, conciliation and report. Methods such as special parliamentary committees or royal commissions may be appropriate to determine the balance between rights and obligations, which is an inherent part of the method by which human rights and freedoms are protected and promoted." (third report, para 49)
HREOC's submission
"ICCPR is not incorporated in Australian domestic law. However:
Federal administrators are required by a High Court decision (Teoh, 1995) to take ICCPR rights into account in the exercise of any discretion where not clearly excluded by law. A bill to override the decision is before the Parliament.
Courts may interpret federal legislation as complying with ICCPR where the meaning is ambiguous.
"ICCPR is scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) with the following effects:
- Forms part
of the definition of 'human rights' for the purpose of describing
the Commission's functions.
- Individuals
can complain to the Commission about alleged violations of the ICCPR
by or on behalf of the Commonwealth but not the States and Territories
and not if the 'violation' is mandated by federal legislation or
regulation.
- With respect
to complaints within jurisdiction, the Commission can attempt to
conciliate a complaint. If unsuccessful, the complainant cannot
take the matter to any tribunal or court (under HREOCA). The Commission
may submit a report with recommendations to the Parliament through
the Attorney-General. Neither the Government nor the Parliament
is required to respond to a Commission report.
- The Commission
can examine federal legislation and regulations for compliance with
the ICCPR. A report with recommendations for amendment may be made
to the Parliament through the Attorney-General. Again neither the
Government nor the Parliament is required to respond to such a report.
- The Commission
also has a responsibility for raising public awareness and acceptance
of the ICCPR.
- The Commission can seek to appear as amicus curiae to raise the human rights aspects of any case, but only with the permission of the court."
Committee's list of issues - 1, 2 and 3
"Please explain whether all the Covenant rights are protected under Australian law. What remedy does a person have in the case of violation of his or her rights under the Covenant? Do all administrative authorities have an obligation to ensure that their decisions are compatible with Australia's obligations under the Covenant?
"Please indicate what measures have been taken pursuant to the Committee's Views under the Optional Protocol, in particular concerning case A. v Australia (No. 560/1993)."
[Note that the Committee concluded in this case that A, a Cambodian asylum seeker who was detained at Port Hedland and elsewhere from November 1989 until January 1994, had been subjected to arbitrary detention contrary to article 9 of the Covenant because of the length of his detention. Australia was unable to advance grounds in his particular case which justified detention of that duration.]
"Recalling the obligation undertaken by States parties pursuant to article 50 of the Covenant to ensure that the provisions of the Covenant shall extend to all parts of federal States without any limitations or exceptions, please inform the Committee about the measures that have been taken to ensure compliance with this provision."
Australia's oral presentation
In Australia, treaties are not self-executing. Australian government policy is not to enter into treaties unless Australian law already complies. However, just because a country gives effect to the Covenant does not mean there will never be breaches. In Australia no single law gives effect to the Covenant. A federal law would not be enough in any event. The general manner of giving effect to the Covenant is by
- liberal democratic institutions
- constitutional guarantees including freedom of religion
- common law guarantees of personal liberty and natural justice
- international law as a source of common law development
- the federal anti-discrimination, human rights and privacy Acts as well as the Act establishing ATSIC
- State and Territory anti-discrimination legislation.
Remedies for violations of human rights are not restricted to monetary compensation. In Australia it is not possible to sue for a remedy directly on the Covenant. However, the Covenant is scheduled to the Human Rights and Equal Opportunity Commission Act so that people can complain about federal government actions and the Commission can attempt to conciliate. Ultimately the Commission can report on the matter to the federal Attorney-General.
In discrimination matters the complaint process can be pursued into the Federal Court which can award civil remedies. Also Australia has ratified the Optional Protocol.
There is no general law requiring administrative decision-makers to respect Covenant rights although government policy is that they should. Some statutes do require this, such as the Criminal Deportation Guidelines under the Migration Act.
Australia accepts that the Covenant extends to all constituent States and Territories. Australia's implementation of the Covenant is consistent with its own federal system. The external affairs power is not without limits: in particular federal legislation cannot interfere with the core functions of its constituent members. Therefore, it is better to implement Covenant rights at State and Territory level. Article 50 does not require the federal government to enact overriding legislation every time a State or Territory breaches the Covenant.
As to Australia's actions in respect of the Committee's Views in the A Case, Australia "does not agree with the Committee's interpretation of 'arbitrary' in the Covenant". Processing of protection visa applicants is now more efficient and if detainees spend lengthy periods in detention it is because they are pursuing their claims through the courts. Australia has also acted to mitigate the impacts of detention with Immigration Detention Standards imposed on the private detention service-provider [ACM]. The Standards were developed in consultation with the Commonwealth Ombudsman.
Questions and responses
Committee member David Kretzmer (Israel) noted that Australia has not provided a full statement with respect to implementation of the Covenant rights. Only freedoms are respected in the manner stipulated by the government. That is not sufficient for positive rights. For example, there is no remedy against the imposition of mandatory sentencing and this lack of remedy is a violation of article 2.3.
Rajsoomer Lallah (Mauritius) agreed that Australia has not taken appropriate measures. He recognised that " it is a great political decision" but "that is no reason not to persist". If the Covenant norms are universal, "why should they not be universal within Australia?" Legislative coverage of discrimination is insufficient as non-discrimination is just one facet. Another facet is positive equality (article 26) and that is central to Covenant rights. Article 26 is only effectively implemented if there is guiding national universal legislation. Also nothing in Australia "approximates implementation of article 27 rights". Australia's "patchwork method" is "highly unsatisfactory" and Covenant implementation "needs to become a Constitutional matter".
Louis Henkin (USA) stated that "the Commonwealth is responsible for compliance, including compliance by State and Territory Governments". A federal statute could require complete State compliance with all Covenant provisions. He asked, "What is the relevance of core functions of the States? What are they?" In the USA "core functions are not used as an excuse in the case of treaty implementation". "Are alternative means of persuasion being tried to get States to carry out national policies?" Later he pointed out that "the fact that treaties are not self-executing emphasises the obligation of Australia to ensure it [the Covenant] is executed".
Nisuke Ando (Japan) recalled that the Committee had been assured by the Australian delegation during its consideration of Australia's second report 12 years previously that the external affairs power enabled the Commonwealth to act on otherwise State matters. He asked "What have you been doing?"
Mr Bhagawati (India) expressed "great concern" that the Covenant is not enforceable in Australian courts. How, therefore, is Australia complying with the requirements of article 2? It is "only a patchwork" and not all Covenant rights are guaranteed by law. "The principle of equality and non-discrimination appears to be violated in the case of Indigenous people". The Covenant is scheduled to the Commission's Act and otherwise given a special status. "Why then can it not be incorporated?"
Christine Chanet (France) also expressed the view that Australia's approach to implementation of Covenant rights is a "patchwork" - one "with holes in it". Australia needs "a single law of incorporation". Australia's report "deals primarily with social measures but we are interested in implementation of the Covenant itself. On the question of remedies, the Covenant cannot be invoked [in Australian courts]. It needs to be more than something symbolic as the Covenant is a normative text".
The Australian delegation responded by reading article 2.2 to the Committee and pointing out that legislation is only required when 'necessary' in accordance with the State party's Constitution. "That wording does not require states to take any particular measure to incorporate the Covenant. It does not require states to introduce a Bill of Rights or even a single statute."
In Australia there are "genuine constitutional constraints to doing so". In response to the question what are the core State functions, the Australian delegation mentioned the legal doctrines that the Commonwealth cannot burden the States or discriminate amongst them and cannot curtail States' capacities to function as governments. Further the Commonwealth cannot control the content or enforcement of State laws. "It is open to Australia to implement the Covenant as it has done." "The common law is a genuine means of giving effect to at least some of the rights in the Covenant."
Lord Colville (UK) noted that there seemed to be no procedural hindrance and no constitutional constraint on the introduction of a bill to override mandatory sentencing in WA and the NT as was done recently.
Ms Medina Quiroga (Chile and Committee Chair) concluded that the Covenant is ranked too low in the Australian legal order. "Article 2 does not give a discretion to fail to give effect to the Covenant." In Australia there are no remedies for Covenant rights not already protected in the domestic legal order. For example, there is no remedy for arbitrary detention. Regardless of the explanation that some Covenant issues fall within the business of the States, article 2 requires legislation which offends Covenant rights to be over-ridden.
Committee members also raised the proposed legislation over-riding the High Court's decision in Ah Hin Teoh (1995) 183 CLR 273 to the effect that Australians have a 'legitimate expectation' that treaties entered into by the Commonwealth will be respected in the exercise of discretions by Commonwealth decision-makers.
The Australian delegation pointed out that "Teoh did not decide that international obligations must be taken into account; it didn't go that far". The Commonwealth has determined that "extension of the doctrine of legitimate expectation causes uncertainty and detracts from the proper role of Parliament".
There was a sharp exchange on the question of Australia's failure to comply with the Committee's Views in the A Case. The Australian position is that the State party's relationship with the Committee is one of "constructive dialogue" but that Australia will not always agree with the Committee's Views. Of course they are given "full consideration".
Mr Klein (Germany) asked whether there is an established procedure for considering the Committee's Views. Mr Scheinin (Finland) asked whether the government had sought independent legal advice before taking the decision to disagree with the Committee's interpretation of the Covenant.
In response to these questions the Australian delegation explained that responses are cleared at Ministerial level and that the Office of International Law within the Attorney-General's Department is "well-qualified to advise" the government and "there is no need for non-government expert advice". When asked whether Australia would make the advice of the Office available to the Committee the Australian delegation responded that it would not.
Ms Medina Quiroga (Chile) asked Australia "to reconsider the statement that if Australia does not agree with the Committee's Views it won't implement them". "What if all State parties took that attitude? What kind of remedy is the Optional Protocol if State parties don't take it into account?"
Committee's conclusion and recommendations
"The Committee is concerned that in the absence of a constitutional Bill of Rights, or a constitutional provision giving effect to the Covenant, there remain lacunae in the protection of Covenant rights in the Australian legal system. There are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the Covenant have been violated.
"The State party should take measures to give effect to all Covenant rights and freedoms and to ensure that all persons whose Covenant rights and freedoms have been violated shall have an effective remedy (article 2)." (para 13)
"While noting the explanation by the delegation that political negotiations between the Commonwealth Government and the governments of states and territories take place in cases in which the latter have adopted legislation or policies that may involve a violation of Covenant rights, the Committee stresses that such negotiations cannot relieve the State party of its obligation that Covenant rights will be respected and ensured in all parts of its territory without any limitations or exceptions (article 50).
"The Committee considers that political arrangements between the Commonwealth Government and the governments of states or territories may not condone restrictions on Covenant rights that are not permitted under the Covenant." (para 14)
"The Committee is concerned by the government bill in which it would be stated, contrary to a judicial decision, that ratification of human rights treaties does not create legitimate expectations that government officials will use their discretion in a manner that is consistent with those treaties.
"The Committee considers that enactment of such a bill would be incompatible with the State party's obligations under article 2 of the Covenant and urges the government to withdraw the bill." (para 15)
"The Committee is concerned over the approach of the State party to the Committee's Views in the Communication No. 560/1993 (A. v Australia). Rejecting the Committee's interpretation of the Covenant when it does not correspond with the interpretation presented by the State party in its submissions to the Committee undermines the State party's recognition of the Committee's competence under the Optional Protocol to consider communications.
"The Committee recommends that the State party reconsider its interpretation with a view to achieving full implementation of the Committee's views." (para 16)
5. Mandatory Sentencing in WA and NT
Article 2.1 of the Covenant requires that Covenant rights should be enjoyed by everyone without discrimination, including racial discrimination. It states:
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 26 is an even broader guarantee of equality before the law. It states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 9.1 prohibits arbitrary arrest and detention. Article 14.1 requires in part that:
In the determination of any criminal charge against him, or of his rights or obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
Article 14.5 provides that:
Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
Australia's report
"Incarceration of indigenous peoples in Australia increased by 61 per cent between 1988 and 1995. Incarceration of non-indigenous people has increased by 38 per cent. Indigenous people are 17.3 times more likely to be arrested and 14.7 times more likely to be imprisoned than non-indigenous people.
"Indigenous people are more likely than non-indigenous people to be imprisoned for assault, break and enter, motor vehicle offences, property offences and justice procedures offences and are also more likely to be arrested for good order offences.
"Indigenous people are twice as likely as non-indigenous people to be arrested in circumstances where assault occasioning no harm is the most serious offence and are three times more likely to be imprisoned for such an offence. This indicates that provocative policing is continuing with regard to the use of offensive language, resisting arrest and assault occasioning no harm." (fourth report, paras 72-74)
Note that neither report mentions the WA (first introduced in 1992) or the NT (first introduced in 1997) legislation requiring certain categories of property offenders to be sentenced to stipulated minimum periods of detention or imprisonment.
HREOC's submission
"Mandatory sentencing laws are arbitrary, and are not proportionate to the crime. The overriding aim of mandatory sentencing laws is incapacitation rather than rehabilitation. They do not have regard to the circumstances of juvenile offenders. Mandatory sentences are not reviewable by a court. They breach several provisions of the Convention on the Rights of the Child, and in some circumstances can result in harsher treatment for juveniles than adults who commit the same crime.
"Mandatory sentencing laws target particular property offences that are generally committed by people of lower socio-economic backgrounds. They are discriminatory in effect against Indigenous people in particular.
"The federal government has constitutional power to override mandatory sentencing laws but has explicitly chosen not to do so, in breach of its obligations under Article 50. The Committee on the Elimination of Racial Discrimination has expressed concern at the failure to ensure compliance with these obligations."
"In WA mandatory sentencing (to detention) applies to burglary.
| Burglary Charges X Race and Age - WA- 1998 | |||
| Age and Sex | Race | Number | % of total that age and sex |
| Male Juveniles | Indigenous | 1 258 | 58% |
| Non-Indigenous | 920 | 42% | |
| Male Adults | Indigenous | 43 | 30.5% |
| Non-Indigenous | 98 |
69.5% |
|
| Female Juveniles | Indigenous | 160 | 66.6% |
| Non-Indigenous | 80 | 33.3% | |
| Female Adults | Indigenous | 9 | 9% |
| Non-Indigenous | 4 | 4% | |
Source: Crime Research
Centre at the University of WA. Note that only about 4% of WA minors are
Indigenous.
"In NT mandatory sentencing applies to property offences. Indigenous people were 83% of offenders imprisoned for property offences in the NT in 1999."
ATSIC's submission
"One of the key recommendations of the Royal Commission into Aboriginal Deaths in Custody was Recommendation 92: "That governments which have not already done so should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort". Two Australian jurisdictions, Western Australia and the Northern Territory, have subsequently introduced mandatory sentencing legislation in relation to both adults and juveniles.
"A recent report [6] released in Australia on the mandatory sentencing of juvenile offenders in Western Australia and the Northern Territory attests to further evidence of racial discrimination at work in Indigenous communities and in the lives of our children. These mandatory sentencing regimes, although they appear to be facially neutral, are foreseeably discriminatory in their impact.
- Discriminatory treatment through the adverse use of discretion within the justice system means that Indigenous young people are more likely to appear in court, are more likely to have a prior record, and they are more likely to fall within the mandatory sentencing regimes.
- The vast majority of both adults and juveniles appearing before the courts for the principal offences which fall under the mandatory sentencing regime are Aboriginal. For example in 1996, 84% of all court appearances for 'steal motor vehicle' offences involved Aboriginal and Torres Strait Islander defendants; and 77% of all juvenile court appearances for break and enter involved Aboriginal and Torres Strait Islander young people.
- Conversely, the types of property offences (fraud) excluded from the mandatory sentencing regimes are precisely the offences where the majority of both adult and juvenile offenders are non-Indigenous. For example 77% of adult fraud cases involved non-Indigenous defendants.
- A further discriminatory factor is the location of detention centres and the removal of Indigenous children and young people from their families and communities. Most detention centres in Western Australia and Northern Territory are potentially hundreds, if not thousands of kilometres away from many Aboriginal and Torres Strait Islander communities they service. It is an issue that particularly affects Indigenous children and young people because they are more likely to come from a non-urban background.
"The recent death in custody of a 15 year old Aboriginal boy who hanged himself in a Darwin detention centre on 10 February 2000 has tragically highlighted the inhumanity of the mandatory sentencing laws, the impact of which fall predominantly on the Aboriginal community. The boy concerned was serving a 28 day sentence for stealing a small quantity of pens, textas and pencils and minor damage to property in his home community of Angurugu on the remote Groote Eylandt. It is unlikely that he would have been in detention, other than for the Northern Territory mandatory sentencing laws.
"Pursuant to Articles 2, 7, 9,10, 14 and 26 of the ICCPR and General Comments 13, 18 and 21 ATSIC believes that the mandatory sentencing laws of the Northern Territory place Australia in serious breach of its human rights obligations in that their impact discriminates against Aboriginal and Torres Strait Islander peoples and they do not take account of the defendant's age nor promote his or her rehabilitation."
National Children's and Young People's Legal Centre and Defence for Children International (Australian Section) joint submission
"The authors submit that the key sentencing principle of proportionate response which underpins article 7 and therefore article 7 is itself violated by the requirement of incarceration imposed upon courts by mandatory detention laws and that the mandatory detention or imprisonment of a child or adult amounts to cruel, inhuman or degrading punishment where, as is the case under mandatory detention laws, incarceration must be imposed even if:
- an insignificant amount of property is involved;
- the objective seriousness of the crime is minor; or
- the culpability for the offence is low. (para 31)
"The authors ... adopt the conclusion in the NAALAS [Northern Australian Aboriginal Legal Aid Service] advice that mandatory detention laws do not allow the courts to consider all circumstances of a case in committing a person to detention and will therefore always be arbitrary in that they fail to meet the criteria of appropriateness and justice. (para 41)
"In respect of article 14.1, the authors urge the Committee to expressly adopt a definition of the 'determination' of a criminal charge as extending to the process of sentencing. It is submitted that the a [sic] criminal charge is either determined at the point of acquittal or, where found proven, following the handing-down of sentence. Sentencing requires the exercise of judicial power. (para 43)
"In respect of article 14.5, the authors also submit that the requirement of a guarantee of review of a criminal justice sentence is breached by mandatory detention laws where the Legislature of a jurisdiction has ousted the scope for judicial discretion to impose a non-custodial sentence at first instance or appellate court level by legislating that a penalty of a minimum period of detention shall be imposed for certain offences. (para 51)
"The authors submit that article 24.1 is breached by Australia because the mandatory detention laws do not accord children under the age of 18 years the required protection that is due to a minor." (para 52)
Committee's list of issues - 11 and 12
"Please comment on official reports according to which race was referred to as a determining factor in the imprisonment and the sentencing of juveniles. "Is the system of juvenile mandatory sentencing still in effect in some states or territories? Please explain the system, in particular whether it has an inordinate effect on Aboriginals and whether it is compatible with Australia's obligations under articles 14, 24 and 26 of the Covenant."
Australia's oral presentation
In WA and NT with respect to sentences of mandatory detention or imprisonment, article 14.1 is not violated because it only covers the trial and not the sentencing process and article 14.5 is not violated since appeal courts can review the conviction and whether the sentence was lawfully imposed. These laws are not discriminatory because they apply to everyone. This test of discrimination is one which is consistent with that of the Committee. Australia is not aware of the 'official reports' referred to by the Committee in issue 11.
Questions and responses
Mr Scheinin (Finland) noted that the delegation had passed by the Committee's questions "too lightly; more detailed answers are required". Crimes affected by mandatory sentencing "are more likely to hit Indigenous people". Therefore, "there is a discriminatory effect". "It is precisely those crimes where Indigenous people are likely to be charged which are subject to mandatory detention" having, therefore, precisely the opposite effect to that proposed by the Royal Commission into Aboriginal Deaths in Custody.
Mr Bhagwati (India) cited examples from the HREOC submission of very trivial offences being met with mandatory imprisonment in the NT:
- A 29 year old homeless Indigenous man wandered into a backyard when drunk and took a $15 towel. It was his third minor property offence. He was imprisoned for one year.
- Two 17 year old girls with no previous criminal convictions were both sentenced to 14 days in prison for theft of clothes from other girls who were staying in the same room.
- An 18 year old man was sentenced to 90 days in prison for stealing 90 cents from a motor vehicle.
These offences are "trivial" and the imposition of detention "arbitrary". Further, the laws "operate largely on Indigenous people". He asked "what will the federal government propose to do about it?"
Mme Chanet (France) stated, "I cannot conceive of mandatory sentencing in the same breath as justice - particularly when it affects minors". The detention is arbitrary because it is absolutely disproportionate to the offence committed. Further, the idea underlying it is "to target a certain group" and therefore "the effect is discriminatory". Short prison terms "are not rehabilitative" but "are breeding grounds for crime". She asked "what are the exceptional circumstances [used to justify mandatory sentencing]?" and "why are the judges not trusted [to impose appropriate sentences]?"
The Australian delegation stated that "mandatory detention laws apply only to selected offences" and do not discriminate against Indigenous people. The differential impact they have on Indigenous people "is reasonable and objective". In the NT mandatory sentences affect "commonly committed serious offences". 'Seriousness' is judged "in terms of community impact". "Mandatory sentences are not unjust or disproportionate taking into account their repeat nature, the level of community concern and their serious nature." This is not to say that the federal government does not have concerns - specifically as to their potential impact on juveniles.
Lord Colville (UK) took the delegation to task on its narrow interpretation of article 14(1). He stated that fairness also applies to sentencing: the 'determination of a criminal charge' covers both the trial as to guilt or innocence and sentencing and article 14(1) requires the whole 'determination' to be fair. In order to be fair, sentencing needs to take mitigating factors into account. If the judiciary does not have a discretion on sentencing, then it's not fair and the judge is not independent and impartial. The problem "cannot be dismissed as easily as the delegation has attempted".
Lord Colville also noted that home burglary is the same phenomenon in all States so "why is there discrimination based on residence in WA and the NT?" The Commonwealth's $5 million package for diversionary measures for juveniles in the NT (in exchange for federal backbenchers dropping their support for the proposed over-ride bill) indicates the need for "palliatives which recognise that mandatory sentencing is unfair; otherwise why are diversionary measures only needed in the NT?"
Mr Klein (Germany) inquired as to the status and application of the principle of proportionality in Australian law. The question arises in the context of mandatory sentencing, among others, due to its "disproportionate hard effect on juvenile Aboriginals."
The Australian delegation advised that "the principle of proportionality is not enshrined in any particular law but is promoted by a variety of means: laws are passed by democratically elected Parliaments, the judiciary has a discretion with respect to sentencing (except in the case of mandatory sentences) and there are guidelines for administrative decisions."
Committee's conclusion and recommendation
"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." (para 17)
6. Deportation of people risking torture or summary execution
Articles 6 and 7 of the Covenant prohibit arbitrary deprivation of life, torture and other cruel, inhuman and degrading treatment and punishment. The Human Rights Committee has advised States parties that these articles restrain them from returning illegal entrants and others to countries where they are at risk of execution, torture or other article 6 or 7 violation.
Australia's report
The third report deals at length with the criminal law on homicide and assaults and with regulation of police and prison officer abuses of power. Indigenous health is also covered (paras 277-385). The fourth report covers euthanasia and provides further information about Indigenous health programs (paras 27-62). The particular issue of non-refoulement, however, is not addressed in either report.
HREOC's submission
Briefing members of the Committee on Wednesday 19 July, HREOC's delegation explained that asylum seekers first attempt to establish to the satisfaction of the Department of Immigration and Multicultural Affairs that they are refugees within the definition of the Refugee Convention: that is, that they have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Those unable to persuade the Department can apply to the Refugee Review Tribunal and, within limits, to the Federal Court. Those who fear execution or torture upon return to their country of origin but not for a Refugee Convention reason must rely on the personal, non-compellable and non-reviewable discretionary decision of the Minister for Immigration and Multicultural Affairs under section 417 of the Migration Act 1958 (Cth). The Commission indicated that this is one example of Australia's failure to implement a Covenant right effectively and to provide an adequate remedy in the event of violation.
Committee's list of issues - 14
"How does the law protect the right of a person not to be deported to a country in which he or she could be executed or could face torture or other cruel, inhuman or degrading treatment of punishment?"
Australia's oral presentation
No person is removed from Australia if they engage Australia's protection obligations under the Refugee Convention. They can seek merits review by the Refugee Review Tribunal. Those found not to be Convention refugees may still engage Australia's non-refoulement obligation under the Convention Against Torture or the Covenant. Australia has chosen to implement this obligation through the Minister's public interest intervention power to substitute a more favourable decision for the RRT's decision. The Minister has issued guidelines which require these cases to be drawn to his attention. The RRT may also draw cases to the Minister's attention. Criminal deportation guidelines are similarly sensitive to the non-refoulement obligation and visa cancellation is subject to merits review on this ground. All applicants can seek judicial review on points of law.
Questions and responses
Roman Wieruszewski (Poland) said that more information was needed on this point. Statistical data are needed. How often has Australia refrained from deporting a person although not a Convention refugee?
Committee's conclusion and recommendation
"The Committee notes the recent review within Parliament of the State party's refugee and humanitarian immigration policies and that the Minister for Immigration and Multicultural Affairs has issued guidelines for referral to him of cases in which questions regarding the State party's compliance with the Covenant may arise.
"The Committee is of the opinion that the duty to comply with Covenant obligations should be secured in domestic law. It recommends that persons who claim that their rights have been violated should have an effective remedy under that law." (para 18)
7. Mandatory Detention of Unauthorised Arrivals
Article 9.1 of the Covenant reads in full:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
Article 9.4 provides:
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
Australia's report
"In June 1996 the Federal Court found in Human Rights and Equal Opportunity Commission and Anor v. Secretary of the Department of Immigration and Multicultural Affairs that, despite section 256 of the Migration Act, the Human Rights and Equal Opportunity Commission Act 1986 required the Department to deliver a confidential letter from the Human Rights and Equal Opportunity Commission to a detainee offering legal advice. The detainee had not requested legal advice or access to a lawyer.
"In response to this decision, the Migration Legislation Amendment Bill (No. 2) 1996 was introduced to Parliament in June 1996. It has yet to be enacted. The Bill seeks to ensure that the intention of section 256 of the Migration Act is not able to be overcome through the use of the Human Rights and Equal Opportunity Act or other similar mechanisms. The legislation is not intended to diminish the right of detainees to seek legal advice or the Department's obligations to facilitate access to legal advice where it is sought." (fourth report, paras 64-65) [*Note that the Bill has since passed into law.]
HREOC's submission
"Sections 189 and 196 of the Migration Act 1958 (Cth) require the detention of almost all unauthorised arrivals, regardless of their individual circumstances. As such detention is 'lawful' under Australian domestic law and the courts have no power to order the release of these detainees unless it can be shown that they are not in fact unlawful non-citizens [to whom mandatory detention applies].
"Section 256 of the Migration Act 1958 (Cth) requires the provision of legal assistance upon request. Section 193 requires all detainees to be notified of their right to make such a request with the exception of those who have arrived unlawfully by boat or plane (that is, without a valid visa). Departmental officers have adopted a policy of failing to inform unauthorised arrivals of their legal rights. Legal assistance is not given unless it is specifically 'requested'. [7] Legal advisers, including HREOC itself, cannot initiate contact with detainees in 'separation detention' to inform them of their legal rights."
Committee's list of issues - 17
"Please explain the law and practice regarding detention of asylum-seekers and of other persons who arrive in Australia without proper travel documents. Please give figures on the numbers of persons detained and the period for which they have been detained. What remedies are available for asylum-seekers or other persons in 'immigration detention' against arbitrary detention? Do the people detained in 'immigration detention' have the right to legal advice and are they informed of this right?"
Australia's oral presentation
With respect to Australia's treatment of those who enter unlawfully, "differing views are held". Some organizations hold genuine concerns which have been put to the Committee and there is robust debate which may lead, in time, to finding common ground. Australia upholds the Covenant and the Refugee Convention "but has a legitimate interest in the integrity of its migration program".
Since December 1992 legislation requires all unlawful non-citizens to be detained. Australia does not detain asylum seekers per se. They are detained if they have no lawful documentation and "often they arrive having [intentionally] disposed of their documents". At 20 May 2000 some 16% of asylum seekers were in detention. "Detention ensures people do not enter the Australian community until their claims are made out." Exploiting their legal review rights "can regrettably extend detention".
"Detention is not per se arbitrary. It is prescribed by law and is subject to judicial review and independent scrutiny by the Ombudsman." Fortnightly reviews and the possibility of release on a Bridging Visa ensure detention does not become arbitrary.
"The fact that people are not informed of their right to request legal assistance does not violate the Covenant because the Covenant only requires that in criminal cases (article 14)."
Questions and responses
Mr Wieruszewski (Poland) expressed doubts that Australia's system is compatible with article 9. "How does Australia implement article 9.2? Are detainees informed as to the reasons for detention and about their rights and procedures?" He asked whether detention is automatic. "If so, it may be arbitrary." He asked whether individual circumstances are taken into account.
"With respect to article 9.4, to what extent are there effective remedies?" Finally he noted that some people could be excluded by law from claiming compensation for unlawful detention. That would violate article 26.
Mr Scheinin (Finland) queried whether it wasn't contrary to article 17 to prevent NGOs from contacting detained aliens to tell them about their rights.
Mme Chanet (France) argued that mandatory detention is arbitrary detention because of that fact. "How does a fortnightly review make the detention no longer arbitrary?"
The Australian delegation responded to the questions about the applicability of article 9.4 to asylum seekers by stating that 'lawfulness' of detention (which must be reviewable in a court) means 'lawfulness under Australian law'. The Migration Act makes it 'lawful' to detain all unauthorised arrivals - in fact it requires their detention.
The Act does make a distinction between unauthorised arrivals and other unlawful non-citizens (such as visa overstayers) but that distinction is not discriminatory. It is "made on legitimate and objective criteria [sic] namely, the aim of ensuring the orderly movement of people".
Detainees are informed of the reasons for their detention as soon as they are detained. However "Australia disagrees they are entitled to be informed about all procedures and entitlements."
Finally as to restrictions on access to detainees by HREOC, the Commonwealth Ombudsman and NGOs: "limits are justified by the need to ensure that their claims are not influenced by external inputs and to protect the good order of the detention centres."
Committee's conclusion and recommendation
"The Committee considers that the mandatory detention under the Migration Act of 'unlawful non-citizens', including asylum seekers, raises questions of compliance with article 9, paragraph 1, of the Covenant, which provides that no person shall be subjected to arbitrary detention. The Committee is concerned at the State party's policy, in this context of mandatory detention, of not informing the detainees of their right to seek legal advice and of not allowing access of non-governmental human rights organizations to the detainees in order to inform them of this right.
"The Committee urges the State party to reconsider its policy of mandatory detention of 'unlawful non-citizens' with a view to instituting alternative mechanisms of maintaining an orderly immigration process. The Committee recommends that the State party inform all detainees of their legal rights, including their right to seek legal counsel." (para 19)
Reactions to the Committee's Concluding Observations
Australia's Attorney-General
"The Commonwealth Government welcomes the constructive dialogue with the Committee on these matters as part of our continuing commitment to international human rights standards. However, we do not agree with a number of its observations. Our views on those issues were canvassed in detail during the course of the Committee's consideration of Australia's reports last week.
"In this context, it is wrong to suggest that this or any other UN human rights committee is judging Australia. The Committee is not a court and it is not there to sit in judgment on countries.
"We have every reason to be proud of our human rights record. But we also acknowledge that there are issues of ongoing concern. The Government is already taking action to address most of the issues on which the Committee has commented and will continue to do so.
"The Committee noted a number of positive developments on matters relating to our indigenous peoples. It also expressed its view that further steps needed to be taken to advance their position. The Government made clear to the Committee its strong commitment to addressing the disadvantages suffered by many Aboriginal and Torres Strait Islander people. However, the Government does not agree that many of the steps suggested by the Committee are either necessary or desirable.
"The Committee indicated that there were serious issues of compliance with the Covenant in relation to mandatory detention laws in Western Australia and the Northern Territory and requested the Governments to reassess the legislation. The general criminal law, including sentencing, is a matter for the States and Territories. Nevertheless, the Commonwealth has moved decisively to ensure that mandatory detention does not adversely impact on young people.
"The mandatory detention agreement concluded between the Commonwealth and the Northern Territory Governments this week will divert juveniles from the criminal justice system and provide them with the opportunity to learn from their mistakes. In accordance with usual practice, all of the Committee's observations will be forwarded to the States and Territories.
"The concerns expressed by the Committee about the application of our immigration policies to asylum-seekers are not new. The Government has, on previous occasions, made clear to the Committee the reasons for these policies, including that of maintaining the integrity of our orderly migration program. The Government has no intention of changing its policy of mandatory detention of asylum-seekers, which is consistent with our obligations under the Covenant.
"The Committee expressed its concern about the lack of a Constitutional Bill of Rights. I am not about to reignite an old debate about a Bill of Rights. However, the Chair of the Committee agreed with the Australian delegation that the Covenant gives each country a discretion as to how it implements its obligations.
"In Australia we do so through a combination of our strong democratic institutions, the common law and an extensive array of statutes and programs at the Commonwealth, State and Territory level. This fits our circumstances and is highly effective. It also needs to be borne in mind that under our federal system of Government, responsibility for implementing obligations under treaties such as the Covenant is shared between the Federal, State and Territory Governments and much of the public infrastructure within Australia exists at State and Territory level.
"The Committee noted its appreciation of the quality of Australia's reports and the extensive written and oral answers provided by the Australian delegation.
"The Committee also commented positively on a number of aspects of the implementation of the Covenant in Australia, including the enactment of comprehensive anti-discrimination legislation and the considerable improvement in the status of women."
Amnesty International
"Today's findings of the UN Human Rights Committee on Australia's record of civil and political rights confirm Amnesty International's major concerns on the country, and should strengthen the case of Australians campaigning for improvements in domestic human rights protection.
"The International Covenant on Civil and Political Rights provides for the Human Rights Committee to routinely examine reports by state parties on their records of implementing covenant rights.
"In particular, the Committee's comments support Amnesty International's long-standing position that:
-- the effects of the "stolen children" policies are a human rights issue generating human rights obligations today - a fact the government's formal response to the "stolen children" inquiry did not accept;
-- the twice-proposed Administrative Decisions (Effects of International Instruments) Bill - to prevent Australians from taking violations of their rights to court - would be "incompatible" with Australia's obligations to provide effective remedies for any violations of their treaty rights (paragraph 15 of Concluding Observations);
-- Australia's mandatory immigration detention law "raises questions of compliance" with its international obligations, with remedies recommended including information "for all detainees of their legal rights", and the creation of a legal duty to comply with the Covenant in deportation cases (paragraphs 18 and 19);
-- Australia has failed to address previous Human Rights Committee concerns about the arbitrary detention over four years of a Cambodian asylum-seeker (paragraph 16);
-- "mandatory imprisonment" legislation in the Northern Territory and Western Australia should be reviewed "to ensure that all Covenant rights are respected" (paragraph 17);
-- the Commonwealth Government has an obligation to ensure equal implementation of rights at all levels of state and territory government, and that state-federal arrangements "may not condone restrictions on Covenant rights" (paragraph 14).
"Amnesty International urges all interest groups in Australia to seriously examine and discuss the Committee's findings and recommendations."
Aboriginal and Torres Strait Islander Social Justice Commissioner
"The Human Rights Committee's observations show that a constructive dialogue has taken place, and this is the purpose of the exercise. The Committee seeks to assist Australia meet its obligations under a treaty to which Australia is a voluntary party. In other words, it seeks to assist the Australian government meet its obligations to Australians.
"As a party to the treaty Australia cannot rely on our Federal system of government as an excuse to allow States and Territories to breach the Covenant. Further, Australia should not use federation, and the co-ordination of States and territories as an excuse for taking 10 years to submit its periodic reports.
"The Committee noted that there are still areas in which Australia's domestic legal system does not provide an effective remedy to persons whose