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

Social Justice Report 2000

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

Introduction

The CERD and the periodic reporting process

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

The dialogue between Australia and CERD - March 2000

The meaning of non-discrimination and equality under the Convention

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

Protecting human rights in a federal system

An entrenched guarantee of racial non-discrimination

Redressing Indigenous disadvantage

Indigenous peoples and criminal justice systems

Mandatory sentencing

Reconciliation (including responding to forcible removal policies)

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

Conclusion

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

The CERD and the periodic reporting process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The comprehensiveness of Australia's reports and the constructive dialogue with the high level delegation (para 2);

The fact that Australia had addressed some of the concerns raised by the Committee in their previous concluding observations on Australia in 1994 (para 3);

The implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody in the period 1992-1998, and the development of a range of institutions, legislation, policies and programs to address racial discrimination (para 4);

The significant efforts that have taken place to achieve reconciliation (para 12);

The implementation of recommendations of the Bringing them home report to facilitate family reunion and improve counselling and family support services (para 13);

The introduction of the Racial Hatred Act 1995 (Cth) (para 14); and

The efforts made by the government to increase spending on health, housing, employment and education programmes for indigenous Australians (para 18).

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

The lack of an entrenched guarantee in Australian law against racial discrimination, which would override any subsequent legislation at the federal, state or territory levels (para 6);

The failure of the Commonwealth government to ensure compliance of the states and territories with the obligations under the Convention, including by utilising its powers under section 51(xxix) of the Constitution in relation to external affairs or section 122 in relation to territories (para 7);

The continuation of discriminatory practices in relation to native title, particularly the development of state regimes for future acts (para 8);

The unsatisfactory response of the Government to the Committee's findings of March 1999 and August 1999 that the native title amendments are racially discriminatory (para 9);

Proposed or actual changes to the role and functions of the Aboriginal and Torres Strait Islander Commission and the Aboriginal and Torres Strait Islander Social Justice Commissioner which may limit their capacity to address the full range of issues relating to Indigenous peoples (para 11);

The progress of reconciliation, and the apparent loss of confidence of Indigenous people in the process (para 12);

The inadequate response of the government to the recommendations of Bringing them home, including the failure to provide a national apology and monetary compensation (para 13);

The maintenance of a reservation to the Convention in relation to racial vilification, and the limitations of the Racial Hatred Act 1995 (Cth) (para 14);

Over-representation of Indigenous people in the criminal justice system (para 15);

Lack of interpreter services for Indigenous people in court processes (para 15);

The discriminatory impact of mandatory sentencing laws in the Northern Territory and Western Australia on Indigenous people (para 16); and

The extent of continuing discrimination and disadvantage faced by Indigenous people, and the lack of equality in Australian society that it reflects. The Committee also highlighted the obligation on the government to adopt measures to redress this situation within the shortest timeframe possible (para 18).

The dialogue between Australia and the CERD - March 2000

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

The meaning of equality and non-discrimination under the Convention;

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

Protecting human rights in a federal system;

The lack of an entrenched guarantee of racial non-discrimination;

Redressing Indigenous disadvantage;

Indigenous people and the criminal justice systems;

Mandatory sentencing; and

Reconciliation (including responding to forcible removal policies). [27]

The meaning of non-discrimination and equality under the Convention

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

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

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

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

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

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

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

The Australian delegation answered in the following terms:

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

The Country-Rapporteur responded by stating that:

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

The delegation responded further to this as follows:

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

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

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

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

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

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

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

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

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

I have some concerns about these explanations.

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

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

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

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

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

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

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

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

d) ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent;

e) ensure that indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs and to preserve and practice their languages. [42]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The government responded:

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

It recognises the fact that there are circumstances in which national institutions are better placed to assess needs and make difficult choices between conflicting considerations.

The circumstances in which a State will be accorded a margin of appreciation will depend on the subject matter and the particular circumstances.

One of the circumstances recognised is in relation to novel areas of law.

Not only is native title law novel in Australia, the circumstances include its recognition where a system of land title derived from the Crown had been in existence for more than 200 years. [49]

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

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

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

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

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

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

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

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

Thus, in Article 2 States Parties undertake to pursue

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

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

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

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

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

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

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

Protecting human rights in a federal system

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

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

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

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

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

undertakes 'to engage in no act or practice of racial discrimination' and 'to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation' (Article 2.1(a));

'Shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists (Article 2.1(c)); and

'shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination' (Article 6). [60]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Committee's concluding observations justifiably reflect this concern:

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

An entrenched guarantee of racial non-discrimination

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

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

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

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

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

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

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

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

But this is not the only way in which the guarantee against racial discrimination has been violated in Australia. The Australian constitution contains an express power to enact special laws directed to people of a particular race.

The scope of the Commonwealth's power to enact legislation directed at particular racial groups was the subject of judicial scrutiny in 1998. [75]

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

The Court agreed that the legislation was detrimental to a particular racial group - the Indigenous people of the area. The majority found that the parliament had the constitutional power to pass the legislation - through the race power, although their Honours' reasons differed. The only judge who found unequivocally that the race power did not support laws which discriminated against particular racial groups was Kirby J in dissent.

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

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

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

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

the RDA applies to the performance of functions and exercise of powers conferred by or authorised by the NTA (including by States and Territories under alternative regimes); and

the RDA can be used to construe ambiguous terms in the NTA.

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

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

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

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

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

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

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

The government responded as follows:

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

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

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

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

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

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

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

Redressing Indigenous disadvantage

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

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

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

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

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

The Country-Rapporteur brought this issue into sharp focus:

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

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

In other words how is it even with the increased level of expenditures and the many programs that you've described that I think are all quite laudable, so how is it that a country like Australia with the resources it has, has not yet been able to bring what's less than 2% of the population up to reasonable levels in terms of standards of living? [85]

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

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

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

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

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

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

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

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

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

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

Indigenous disadvantage is the result of systemic discrimination; - the appropriate benchmark by which to measure progress is one of equality between Indigenous and non-Indigenous Australians;

the government is obligated to take sufficient steps (or special measures) to achieve such equality;

there must be adequate monitoring and evaluation of progress, including measuring effectiveness through benchmarking and standard setting; and

real progress requires the effective participation of Indigenous people in decision making (including through the representative voice of ATSIC).

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

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

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

There is also clear evidence that progress is being made:

rising levels of educational attainment;

improvements in health and housing (eg a 90% reduction in aboriginal infant mortality since the 1970s);

and the fact that 15% of the continent has been returned to aboriginal ownership and control. [93]

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

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

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

They emphasised the increased funding in Indigenous-specific programs:

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

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

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

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

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

And they acknowledged the historically derived nature of the disadvantage:

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

in the area of employment for example, today's adults are still suffering the legacy of educational disadvantage of 40 or 50 years ago.

Similarly, the seeds of shortened Aboriginal adult life expectancy were planted in the substance abuse problems (eg tobacco) of their youth. [98]

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

In 1993, the government responded to the Mabo decision by announcing that they would take action in three areas - the introduction of the Native Title Act 1993 to recognise and protect native title (and validate non-Indigenous forms of land usage); the introduction of an Indigenous Land Fund - to redress dispossession for Indigenous people who would be unable to establish native title due to past extinguishment of their rights; and a Social Justice Package.

Broad consultations were undertaken in regard to the development of the Social Justice Package by ATSIC, the Aboriginal and Torres Strait Islander Social Justice Commissioner, and the Council for Aboriginal Reconciliation. Strategies and proposals were presented by these three bodies to the government in 1995. The proposals broadly called for the recognition of the rights of Indigenous people, as well as calling on the government to redress Indigenous disadvantage (and highlighting requirements for this to be addressed as a right, not out of welfare). In 1996, the newly elected government abandoned the Social Justice Package. [100]

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

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

A focus on special programs for Indigenous people alone will provide a misleading picture of the distribution of public expenditure between Indigenous and non-Indigenous people. While Indigenous people benefit substantially more than other Australians from specific programs, they benefit substantially less from many, much bigger, general programs. [102]

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

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

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

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

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

Indigenous peoples and criminal justice systems

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

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

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

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

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

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

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

The government responded to the Committee as follows:

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

Reducing underlying causes of socio-economic disadvantage and

Developing alternatives to detention and imprisonment.
The underlying causes are being addressed - exemplified in the $2.2bn in special programs for Indigenous Australians.

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

The level of Aboriginal over-representation (relative to non-Aboriginal) has fallen in the last five years;

On a per capita basis, Aboriginals are less likely to die in custody than non-Aboriginals;

Indigenous people receive shorter sentences than non-Aboriginal offenders in almost all offence categories. [105]

I have already discussed above the approach to redressing Indigenous disadvantage generally. I also noted in my submission to the Committee that all levels of government have failed to adequately respond to the recommendations of the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their families. [106] These reports make numerous recommendations aimed at redressing the underlying causes of Indigenous over-representation in the criminal justice system, juvenile justice and care and protection systems. Many of the recommendations have not been acted upon or actively rejected by governments. [107]

The claim that 'the results are beginning to show' in addressing Indigenous detention rates cannot be sustained. Despite the recommendations of the Royal Commission into Aboriginal Deaths in Custody, the rate at which Indigenous people come into contact with the criminal justice system has not improved in the past decade:

From 1988 to 1998, the Indigenous prisoner population (across all age groups) has more than doubled. It has grown faster than non-Indigenous prisoner rates in all jurisdictions. Nationally, Indigenous prison populations have increased by an average of 6.9% per year for the decade. This is 1.7 times the average annual growth rate of the non-Indigenous prison population; [108]

Figures for the June 1999 quarter indicate that 76% of all prisoners in the Northern Territory (NT) and 34% of all prisoners in Western Australia (WA) were Indigenous. The rate of imprisonment of Indigenous people in Western Australia was 21.7 times higher than that of the non-Indigenous population. The rates in the other states for which statistics are available are also unacceptably high - 15.7 times higher in South Australia, 12.2 times higher in Victoria, 11.3 times higher in Queensland, 9.9 times higher in the Northern Territory and 5.1 times higher in Tasmania. [109]

The number of Indigenous deaths in custody in the decade since the Royal Commission has been 147, compared to 99 in the decade before the Royal Commission. [110] 17.2% of all prison deaths in the 1990s have been Indigenous people, compared to 12.1% in the 1980s. [111]

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

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

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

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

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

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

On these issues the Committee justifiably concluded as follows.

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

Mandatory sentencing

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

the unwillingness of the federal government to ensure compliance of the states and territories with Australia's obligations under the Convention;

the (lack of) effectiveness of government programs to reduce the over-representation of Indigenous people in the criminal justice system;

the related problem of the lack of interpreter services in court proceedings; and

the inadequate response of government to the historically derived disadvantage faced by Indigenous people.

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

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

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

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

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

The government responded to these issues as follows:

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

Now, the Commonwealth has expressed its concern about the impact of these laws on young people in particular, and in relation to the impact on indigenous peoples. Now I think the impact can be quite variable, because convictions are required, I'd suspect that it's probably, in many cases, going to be more difficult for convictions to occur, because I think it's a natural reaction that those who are involved in the proceedings work harder to make sure that if a mandatory sentence is likely, that it is resisted, if there is any possible doubt. And one of the points that's been made to me is that while Aborigines are over-represented in our criminal justice statistics - and that is something that we have been concerned about, it's something that's been addressed by Royal Commissions, it's something in which we are putting a lot of work with the states to try to redress - but the fact is that mandatory sentencing is likely to produce an outcome where indigenous people, if the

Site navigation

Aboriginal & Torres Strait Islander Social Justice navigation