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COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
56th session
6-24 March 2000
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Future: CERD/C/56/CRP…
CERD/C/56/Misc.42/rev.3
24 March 2000
UNEDITED VERSION
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Concluding Observations by
the Committee
on the Elimination of Racial Discrimination
Australia
- The Committee considered the tenth, eleventh and
twelfth periodic reports of Australia, submitted as one
document (CERD/C/335/Add.2), at its 1393rd, 1394th and
1395th meetings (CERD/C/SR/1393, 1394 and 1395), held on
21 and 22 March 2000. At its 1398th meeting, held on 24
March 2000, it adopted the following concluding
observations.
A. Introduction
- The Committee welcomes the reports submitted by the
State party and the additional oral and written
information provided by the delegation, while regretting
the late submission of the tenth and eleventh periodic
reports. Appreciation is expressed for the
comprehensiveness of the report and of the oral
presentation. The Committee has been encouraged by the
attendance of a high-ranking delegation and expresses its
appreciation for the constructive responses of its
members to the questions asked.
- The Committee acknowledges that the State party has
addressed some of the concerns and recommendations of the
Committee's concluding observations on the ninth periodic
report (A/49/18, paras. 535-551).
B. Positive aspects
- The Committee is encouraged by the attention given by
the State party to its obligations under the Convention
and to the work of the Committee on the Elimination of
Racial Discrimination.
- The Committee notes with appreciation the many
measures adopted by the State party during the period
under review (1992-98) in the area of racial
discrimination, including those adopted to implement the
recommendations of the Royal Commission into Aboriginal
Deaths in Custody. The Committee welcomes the numerous
legislative measures, institutional arrangements,
programmes and policies that focus on racial
discrimination, as comprehensively detailed in the tenth,
eleventh and twelfth reports of Australia, including the
launching of a "New Agenda for Multicultural Australia"
and the implementation of the "Living in Harmony"
initiative.
C. Concerns and
recommendations
- 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.
- The Committee expresses concern and reiterates its
recommendation that the Commonwealth Government 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.
- The Committee notes that, after its renewed
examination in August 1999 of the provisions of the
Native Title Act as amended in 1998, the devolution of
power to legislate over the "future acts" regime has
resulted in the drafting of state and territory
legislation to establish detailed "future acts" regimes
which contain provisions reducing further the protection
of the rights of native title claimants that is available
under Commonwealth legislation. Noting that the
Commonwealth Senate rejected on 31 August 1999 one such
regime, the Committee recommends that similarly close
scrutiny continue to be given to any other proposed state
and territory legislation to ensure that protection of
the rights of indigenous peoples will not be reduced
further.
- Concern is expressed at the unsatisfactory response
to Committee Decisions 2(54) (March 1999) and 2(55)
(August 1999) and at the continuing risk of further
impairment of the rights of Australia's indigenous
communities. The Committee reaffirms all aspects of its
Decisions 2(54) and 2(55) and reiterates its
recommendation that the State party ensure effective
participation by indigenous communities in decisions
affecting their land rights, as required under article
5(c) of the Convention and General Recommendation XXIII
of the Committee, which stresses the importance of
ensuring the "informed consent" of indigenous peoples.
The Committee recommends the State party to provide full
information on this issue in the next periodic
report.
- The Committee notes that the Parliamentary Joint
Committee on Native Title and the Aboriginal and Torres
Strait Islander Land Fund is conducting an inquiry into
the "Consistency of the Native Title Amendment Act 1998
with Australia's international obligations under the
Convention on the Elimination of all Forms of Racial
Discrimination (CERD)". It is hoped that the results will
assist the State party to re-evaluate its response to
Decisions 2(54) and 2(55) of the Committee. The Committee
requests the State party, in accordance with the
provisions of article 9, paragraph 1 of the Convention,
to transmit the report of the Joint Parliamentary
Committee inquiry to the Committee when it is tabled.
- The establishment of the Aboriginal and Torres Strait
Islander Commission (ATSIC) and of the Aboriginal and
Torres Strait 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.
- While acknowledging the significant efforts that have
taken place to achieve reconciliation, concern is
expressed about the apparent loss of confidence by the
indigenous community in the process of reconciliation.
The Committee recommends that the State party take
appropriate measures to ensure that the reconciliation
process is conducted on the basis of robust engagement
and effective leadership, so as to lead to a meaningful
reconciliation, genuinely embraced by both the indigenous
population and the population at large.
- The Committee notes the conclusions of the "National
Inquiry into the Separation of Aboriginal and Torres
Strait Islander Children from their Families" and
acknowledges the measures taken to facilitate family
reunion and to improve counseling and family support
services for the victims. Concern is expressed that the
Commonwealth Government does not support a formal
national apology and that it considers inappropriate the
provision of monetary compensation for those forcibly and
unjustifiably separated from their families, on the
grounds that such practices were sanctioned by law at the
time and were intended to "assist the people whom they
affected". The Committee recommends that the State party
consider the need to address appropriately the
extraordinary harm inflicted by these racially
discriminatory practices.
- The Committee acknowledges the adoption of the Racial
Hatred Act 1995 which has introduced a civil law
prohibition of offensive, insulting, humiliating or
intimidating behaviour based on race. The Committee
recommends that the State party continue making efforts
to adopt appropriate legislation with a view to giving
full effect to the provisions of, and withdrawing its
reservation to, article 4(a) of the Convention.
- The Committee notes with grave concern that the rate
of incarceration of indigenous people is
disproportionately high compared to 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 the socio-economic marginalization, the
discriminatory approach to law enforcement, and the lack
of sufficient diversionary programmes.
- The Committee expresses its concern about the minimum
mandatory sentencing schemes with regard to minor
property offences enacted in Western Australia, and in
particular in the Northern Territory. The mandatory
sentencing schemes appear to target offences that are
committed disproportionately by indigenous Australians,
especially in the case of juveniles, leading to a
racially discriminatory impact on their rate of
incarceration. The Committee seriously questions the
compatibility of these laws with the State party's
obligations under the Convention and recommends the State
party to review all laws and practices in this field.
- Taking note of some recent statements from the State
party in relation to asylum-seekers, the Committee
recommends that the State party implement faithfully the
provisions of the 1951 Convention on the Status of
Refugees, as well as the 1967 Protocol thereto, with a
view to continuing its co-operation with the UNHCR also
in accordance with the Guidelines in UNHCR's "Handbook on
Refugee Determination Procedures".
- 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% 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 be allocated to eradicate these
disparities.
- The Committee recommends that the state's reports be
made widely available to the public from the time they
are submitted and that the Committee's observations on
them be similarly publicized.
- The Committee recommends that the State party's next
periodic report, due on 30 October 2000, be an updating
report and that it address the points raised in the
present observations.
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