Transcript of the 1393rd, 1394th and 1395th Meetings held during the Fifty-Sixth Session of the Committee on the Elimination of Racial Discrimination during its consideration of Australia's Tenth, Eleventh and Twelfth Periodic Reports and its continuing consideration of the matters considered by the Committee at its 54th and 55th Sessions in 1999.

(Chairman)
I thank Mr de Gouttes for his comments and I now call on Mr Pillai to be followed by Mr Bryde. Mr Pillai you have the floor.

(Mr Pillai)
Thank you Mr Chairman. I begin by thanking the leader of the delegation for a concise introduction of the detailed report. In the presentation of the report by him and the indirect comments of other members of the delegation as well as in the report one expression has come out often, that is multicultural Australia. I'm not sure if this expression adequately reflects the multi-racial character of Australia. In any case I do not believe that this expression displays any lack of willingness on the part of Australia to affirm its multi-racial identity. To this extent I will be happy if in future reports, if factual indication of the multi-racial character of the country is given to the Committee. I refer in this connection Mr. Chairman to the figures of the immigrant population by the country of origin as given at page 4 of the report. It need not necessarily reflect the ethnic composition. On the issue of ethnicity I would like to refer to para 130 of the report, at page 27, which, this is with reference to a New South Wales case, speaks of a ruling by the Equal Opportunity Tribunal, that being Jewish is a racial identity. The para also states that, I'm quoting, 'This was the first time that this ruling influenced the 1994 definition of race.' Is it that this ruling had its impact on New South Wales only, or the Federal Government and other States? What has been the influence of this ruling on the Government to identify ethnicism in Australia and in addressing racial issues? Prevention of racial discrimination and promotion of communal harmony, Mr Chairman, involve the entire community. Government initiatives are very important, but equally important is the role of non-government agencies and the civil society at large. Apart from the reference to the Australian Chamber of Commerce and Industry and of course to the Human Rights and Equal Opportunity Commission and certain other statutory bodies, I notice very little reference to the role of the civil society in promoting racial tolerance and in promoting the interests of disadvantaged communities. While on this issue I would like to make a reference to the statement made by Madame Zou, our colleague yesterday. Xenophobic stands of certain elements in the political segment of the society are getting more pronounced the world over. Freedom of speech is certainly one of the basic tenets of democracy. Exploitation of this freedom to promote xenophobia and communal hatred warrants strong State action. I would also refer to para 416 of the country report which indicates no change in the position of the Government even though a great deal of discussion took place. When the earlier report was considered by the Committee and a recommendation to this effect was made I notice the comments contained in the report in respect of Article 4, that there is a great deal of reliance placed by the Government on the Federal Crimes Act 1914, but I do believe that the provisions of this Act may not be adequate in the long run to deal with the situation. And I believe further Mr Chairman that a vibrant and stable democracy that Australia is, it could certainly set an example by reconsidering the reservation in respect of Article 4a of the Convention. The interests of Aborigines have received a great deal of attention in Australia. The report refers to the work of many institutions in this area. Reference in most cases is to the funds made available to these institutions or the social aspects of their work. The report speaks of efforts at mainstream employment of Aborigines. Comments were also made yesterday on the building up of social infrastructure, to enable them to avail of mainstream employment, employment opportunities. Para 73, that's at page 17 of the report, states that unemployment rate among indigenous people is 23% compared to 9% for the total population. Could we have some idea of the progress in the provision of employment opportunities? What are the kinds of jobs skills that are being imparted to the Aborigines? The core document which forms a part of the country report of '94 here is that you find there is no core document submitted along with this report. It contains a table at page 26 of the average annual employment growth. This table is for the population as a whole, and does not contain a break-up indicating the growth rate in respect of the indigenous population or the different segments of the population. I would seek such an up to date table showing the break-up in respect of various indigenous groups as well as the other communities in Australia in regard to employment opportunities. A great deal of reference has been made to the land rights of indigenous people. Land is not only the basis of livelihood, it's oftentimes the basis of values that bond members of the community. Many governments have been heard about the extent of land vested with the Aborigines. I would like to have some idea as to the criteria that determined the extent of land held, or the quality of land held by them.

Operation of the criminal justice system, Mr Chairman for the Aborigines has come in for extensive comments by the country rapporteur, and others who spoke earlier. A very large number of custodial deaths and juvenile prisoners among the Aborigines have been a matter of concern for everyone, including the Australian Government. There have been comments that some of the Aborigines who underwent jail sentences did not know what they were sentenced for. There have been comments that certain offences committed by whites do not come within the mandatory sentencing procedures. The procedure of mandatory sentencing seems to warrant a serious reconsideration. Mr Chairman, these were the brief comments that I wanted to make. Thank you.

(Chairman)
Thank you very much Mr Pillai for your comments. The next speaker is Mr Bryde. Mr Bryde you have the floor.

(Mr Bryde)
Thank you Mr. Chairman. At this stage I do not want to repeat the critical concerns of my colleagues, even though sometimes repetition is helpful because it shows that a concern is shared throughout the Committee. But I would like to take advantage of the expert delegation of Australia to ask some questions on the constitutional situation. I note, as other members did, that a lot of the criticism is directed not at the Federal Government, but at States and the Northern Territory. In addition I note that also some of the welcomed programs outlined to us, for instance in the field of education, are actions in fields which are not really under the jurisdiction of the Commonwealth, education for instance. So I'm interested in the constitutional mechanisms to ensure compliance by States and Territories with the international obligations of the state party, and in this context the question put by Mr Banton is very important because he asked whether a prohibition of racial discrimination might be included into the Federal Constitution because such an inclusion would make this prohibition automatically take precedence throughout the federal legal system. This might help things considerably. My second question relates to the country rapporteur's final question. Why are they there, not there, why are the representatives of the indigenous population only in the lobby, and not in government? Now you can answer this question partly by pointing out that they form only 2% of the population, but this is only true for the Federal Government. In the Northern Territory the indigenous population forms 25% or more of the population. So I would like to know whether the indigenous population is proportionally represented in the legislative and administrative structure in the Northern Territory, where many of the problems we are addressing reside. And if not, why not? And whether institutional arrangement in this territory, which after all is still under the constitutional authority of the Commonwealth, could be invented to make, create systems of power sharing or more representative government. Thank you very much.

(Chairman)
I thank Mr Bryde for his comments which were brief indeed. I know that someone watches the watch and that would be borne out. It was the briefest statement so far. Of course there are other speakers who may beat that record. We shall soon find out. The next speaker is Mr Rechetov. I call on Mr Rechetov to be followed by Mrs January-Bardill. Mr Rechetov has the floor.

(Mr Rechetov)
Thank you Mr. Chairman. I will try to beat Mr Bride's record. I think that we are all grateful for the continued dialogue with Australia on the problems which have occurred there. I believe that we ought to be particularly, we certainly approve the fact that this dialogue of our committee with the state party is being very broadly reflected in the social life of Australia as we've seen, and we've seen a lot of proof of this. And I'd also like to thank the state party for having sent a very influential delegation. In point of fact this is a delegation, one which is of a constantly increasing level. It's already at ministerial level but we've seen some changes which might not be positive in terms of the membership of the delegation that we had in 1994. In the Australian delegation there was a representative of the indigenous population. Unfortunately, this is a fact which I used at the time to refer to some other delegations, including the Swedish delegation asking them if they wouldn't for example include a representative of the Sami population. This didn't happen, unfortunately, but I did use this instance, this positive fact that there was a representative of the indigenous peoples in the Australian delegation, and the fact that this is no longer the case is certainly not, doesn't make sense, insofar as the indigenous population is not declining, but increasing in its proportion to the population as a whole. Now, these two delegations, if we could include indigenous people in the delegation, I'm sure we'd be able to better reflect the situation in that country. Mr Chairman, having looked at the Australian report, I read a very interesting article at the same time which appeared in the Heidelberg Journal of International Law which gave a comparison of the situation of the indigenous population in the United States, Canada and Australia, New Zealand, and Latin America, and in the Northern Scandinavian countries. It's quite a pity that there was no article on the indigenous population in Russia, and I think that its situation is certainly no better than that in the other countries. But in any event, apparently, what I noted with respect to Australia was the attention paid by the author of the article to the so called 'ten point plan' by the Government which had been drafted following a well known case, the Wik case, and it was described as follows: 'in the light of the Wik decision the Federal Government developed a ten point plan allowing the widespread extinguishment of Native Title over time, dismantling the right to negotiate of Native Title holders in respect of pastoral leases, and reductions in the ability of Native Title holders to benefit or enjoy their title.' Now in our report, in the Australian report there's a law on 1998 on this question of the Native Title Act which had been drafted after this ten point plan. Now this plan in our report unfortunately doesn't, there's no description of this, no reference to it. Is this an accident? Wasn't it possible to reflect this objectively? I think that since this plan, we find even researchers consider it to be particularly important, the report certainly would benefit if this 'ten point plan' had been objectively described in the Australian report. Thank you very much, Mr Chairman.

(Chairman)
I thank Mr Rechetov. Mr Banton, has he broken the record of Mr ... He did not. Well we shall keep trying. The next colleagues. Mrs January-Bardill to be followed by Mr Shahi. That's a good candidate. Mrs Bardill.

(Mrs January-Bardill)
Thank you, Chair, thank you, thank you. I'd also like to thank through you the Australian Government for the very comprehensive report that we have seen, and also Ms. McDougall for the rapporteuring of the report. I'd like to make three, three comments I suppose, and I think there will be embedded the questions in them.

The first is that I notice in your statistics that you have not included South Africans in the demographics of the country. And I'm aware that many of my compatriots have chosen Australia as their new home. Primarily for the sunshine and the elements of kith and kin, but there may also be other reasons. So I'd like the Government to just say why South Africans are not on the list.

Secondly, 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 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.

Then with regard to the Native Titles Act, in justifying the amendments the Australian Government apparently argued that there should be no special rights for any one group of Australians, that we should all enjoy equal rights. Isn't it also true though that in treating people the same, that can lead to the violation of the rights of some of them? That in fact you do have to treat people differently to achieve equality sometimes. It's like, I'm a management consultant and I work with people and I have to give them very colourful metaphors. And one I often use is that if you water all the flowers in the world at the same time, and give them the same amount of water some of them are going to die. And therefore there is always a need to, especially when we engage in redress activity, to treat people differently, and in this case I think there is a justification for treating the Aboriginal Australians differently in ensuring that they have more rights to their land.

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. Thank you Chair.

(Chairman)
The Chair thanks you, Madam, for your comments and I now call on Mr Shahi to be followed by Mr Yutzis. Mr Shahi has the floor.

(Mr Shahi)
Thank you Mr Chairman. Yesterday the Minister for Immigration and Multicultural Affairs …. gave us an excellent presentation of the spirit in which Australia approaches its obligations under the Convention, and its program and policies to promote a truly multicultural society in Australia. I was greatly impressed by his presentation, and also the wealth of the information given to us in the twelfth periodic report of Australia. It is a frank report, a candid report. It acknowledges the shortcomings of Australian policies and programs and also its legislative and judicial measures, and it is indeed encouraging that Australia is dedicated to the improvement of the situation of the indigenous, of the First Australians population. Having said that Mr. Chairman, I would like to make just two or three points in view of the fact that we are pressed for time.

First, I share the concern of colleagues who have said that the mandatory sentencing in Australia, particularly in the Northern Territory I think, conflicts with the canons of norms of justice. I think disproportionate number of Aborigines find themselves in prison and the mandatory sentences also is considered by legal experts to be violation of the norms of independent judiciary. So we hope that given the substantial expenditure being incurred by the Australian Government on the advancement of the removal of disadvantages of the Aboriginal population, they'll give priority attention of this question of mandatory sentencing which is having a very discriminating effect on the Aboriginal population.

The other question is that if we have come across so much information about the lack of access to the justice system, and to the due redress of grievances on the part of the Aboriginal population. On account of lack of translators, the Aborigines don't understand. There are very few translation services I believe and particularly in the Northern Territory, and elsewhere too in Australia, whatever provision is being made for translation into Aborigines' languages; there are many dialects I believe. It will entail an enormous program of training to provide translation services to the Aborigines so that they could defend themselves, they can understand the charges under which they are being indicted. And also that they could defend themselves and the access to justice and the law. This legal system has been denied to them, and I would commend in this substantial expenditure that the Australian Government has earmarked for the advancement of the Aborigines, considerable amount should be time and attention, and resources should be made available to providing the means of access to the Aboriginal population to the justice system.

Finally Mr Chairman I should like to make one more point, and of course colleagues have referred, have asked exhaustive questions about custodial deaths and others, standard of living, housing, others, I don't wish to go over that and repeat what they have said. But I would like to emphasise one thing. Australia has shown a remarkable understanding of the needs of, the imperative of multiculturalism for a country like Australia which consists of now immigrants from over 130 countries. And by the way, like Mrs. January-Bardill I don't find any mention of Pakistan in the immigrant population. I know that there are some Pakistanis in Australia. But I say that I think that what Australia's doing to promote multi-culture, to advance its policy of multiculturalism, I think it must be understood that the indigenous population is in a different category. Compared to, they are worse off compared to many immigrants from other countries. And so therefore much greater affirmative action is called for in the case of Aborigines. They should be given as much if not even greater emphasis in the amelioration programs and I particularly emphasise affirmative action.

And finally in this regard, I would draw attention, of course I do not wish to comment on the question of Native Title because I have made a request to our Chairman that what was stated to us yesterday by one of the members of Australian delegation could be spelt out again to us, or distributed by way of a document in the form of a document because otherwise we would be not very relevant. We will be repeating what are our concerns, but we want to understand what is the updated position. And if necessary I'll make a comment or two after that document is circulated. But meanwhile, I'm sure that the Australian delegation have studied the general recommendation by this Committee on the rights of indigenous people, adopted on 18^thof August 1997, because this declaration of the Committee emphasises the importance inter alia of due participation. Participation, equal rights and effective participation in the public life, and that no decisions directly relating to their rights and interests be taken without their informed consent. This is a very thing to empower the Aboriginal people also, as the other immigrants have been empowered by the liberal Australian society. Then finally I would like to read out operative paragraph 5 of the general recommendation by way of emphasis. 'The Committee especially calls upon states parties to recognise and protect the rights of indigenous people to own, develop, control, and use their communal lands, territories, and resources. And where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is, only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair, and prompt compensation. Such compensation should as far as possible take the form of lands and territories.' We are aware that Australia has a program to acquire land, and to restore that to the Aborigines, but the program I think needs to be expedited. And of course Australia is a vast continent and there are vast places for ownership by the Aborigines. But considering the fact that the great part of the Australian continent is … consists of desert, and all that, and therefore the significance of the area does not become that important, but the quality of the land is also important.

And with this words I would once again express my thanks to the Australian delegation and the interest they are taking in enlightening us about their treatment of the Aboriginal population as well the components of their multicultural society. And thank you very much.

(Chairman)
Thank you Mr Shahi. Now with reference to your request, I believe it has already been distributed. Two texts of statements made yesterday by members of the Australian delegation. They have been distributed, and I believe they should be in front of your desk. They were distributed this morning. If anyone doesn't - three, yes. If anyone doesn't have it then the secretariat would be more than pleased to accommodate the colleague who has not received them. I thank you very much. Now I call on Mr Yutzis. Mr Yutzis has the floor.

(Mr Yutzis)
Thank you very much Mr Chairman. I would join with my colleagues who recognised that this report was most excellent indeed and also noted the size and importance of the delegation which means we can continue this dialogue within the framework of our Convention. Mr Chairman, you asked us to be brief. I will endeavour to be extremely brief maybe I'll even beat the record for brevity. Well, that might be difficult, but I'll be as brief as possible. While being brief, I would like to say that I certainly do agree with the questions raised by the special rapporteur, and those of the previous speakers.

What I would like to stress Mr Chairman, is that historical responsibility that each nation has with respect to those who are less powerful or more vulnerable this is the responsibility of the State. These powers should not be delegated to regions or cantons. This is something stated by our Convention. Mrs McDougall, Mr Chairman, also and my colleagues as well, but in particular Mrs McDougall, spoke about a question or an enigma, and I would ask the question, I presume the answer would be quite long, but then there would be a more specific question. Why, for so long 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, and the only question I have, Mr Chairman which I think would be over and beyond the questions raised by my colleagues, and I don't think I'm repeating any of the other questions raised, unless I'm wrong. Well, Mr Chairman, there is an element which from my modest point of view does indicate a regression with respect to the position of Australia. As to representation and representivity of the Aboriginal sectors, Mr Chairman, in the final observations of the Committee of 1994, with respect to Australia, the Committee noted as positive the fact that there was a Commissioner for Social Justice of Aborigines and the Torres Strait Islanders. This was noted as a positive point by the Committee. Today we are not in a position to say the same thing. Mr Chairman, the amendments proposed by the Australian Government with respect to the Commission on Human Rights and Equal Opportunity in 66 seemed to indicate that the functions will not be changing but that there would be an amalgamation of two posts, that of the Commissioner for Social Justice and that of the Commissioner Against Racial Discrimination. And this was considered as a subject of concern by the Commission on Human Rights and Equal Opportunity, and I hope the delegation will clarify this point. It would appear that the future position of the Commissioner would not call for great experience or complete experience with respect to the life and situation of the Torres Strait Islanders. The Commissioner himself stated in this connection and I'll read the text in English because I think that it would add to the understanding of, by our colleagues. He said, and I'm quoting, "It is sufficient to point out that the quality of intimate knowledge, the under the skin experience of life as an Aboriginal person or Torres Strait Islander cannot be replicated. Such knowledge and direct experience, is in my view, an essential qualification for the job." Well it would thus appear that there are some questions, and I would be grateful if the delegation could reply on these. Mr Chairman, yesterday afternoon Minister Ruddock whom I would congratulate on his presence here explained to the Committee that the budget for human rights and for the Commission of Human Rights and Equal Opportunity had been reduced at the same time as other public expenses. Fine. We know that the world economy except for some very rare exceptions is going through a difficult period and we are familiar with the difficulties encountered by States in reducing their budgets and in keeping the fiscal deficit at a certain level. But this is the question, I wonder if it's true, the budget for the Commission on Human Rights and Equal Opportunities was reduced by 40%? Is this true, is this figure correct, and how is this to be justified? Because if I ask the question, the reason is the basis of the interpretation I have, things relating to affirmative action, to use the English term, would mean that you protect the budget that protects the most vulnerable sectors and it is for this reason I'd like an answer on this question. Then a second question, again along the same lines. These changes with respect to the Commissioner, post of Commissioner. Has this weakened the autonomy of the Commissioner for Social Justice, or not? We do indeed believe that it is important to explain this. And my final question, again because I wish to be brief. Why is the Commissioner not here, as was the case in 1994, and why could he not give information to the Committee because his presence wouldn't just be formal but he could also give us direct information since he is the one who deals in the Government with this question? Thank you.

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