Mr Chairman: I thank Mr Lechuga Hevin for his intervention and I now call on Mr Luis Valencia Rodriguez. You have the floor sir.

Mr Valencia Rodriguez: Mr Chairman, for my part, I don't want to go on at too great length on this subject although I think it is of great political and economic significance for the Aboriginal populations of Australia. I well understand the interest which has been aroused in this subject in many peoples, not only among them but in many political and economic circles in Australia which quite rightly feel that they're disadvantaged. I would just like to say that I entirely agree with the excellent introduction by Ms McDougall in her capacity as special rapporteur on that country and with the statements made by the colleagues who have taken the floor before me. I think that we're facing a policy adopted by Australia which does in fact show some incompatibility with the provisions of the Convention. I think that my colleagues have expressed concerns which lead me to raise one or two other comments or questions but they'll simply repeat what they've said. I think these interventions require specific answers which would make it possible for the committee to take a position in accordance with the convention. I, too, would like to state for the record that I note the goodwill showed by the Australian government and the good faith in presenting this report in response to our request, and I would also like to thank the distinguished representatives of Australia for their introductory statements. Thank you.

Mr Chairman: I'm thankful to Mr Luis Valencia Rodriguez for his contribution. As matters now stand, he was the last speaker on my list. Not anymore. I call on Ms Zou. You have the floor madam.

Ms Zou: For having responded to the decision from the committee by sending people especially from Canberra to have a dialogue with the committee, and for that I'd like to express my gratitude and thanks to the Australian government for its sincerity. With regard to the rights of the Aborigines in Australia, just now Ms McDougall has made a very clear and detailed profound analysis of the situation. I'm not entirely clear of the situation. There's no way for me to have an even more profound analysis of the situation than she has already done.

I'd just like to give a view of my first impressions. From all the material provided by NGOs, of course as far as my concerns, there's no way for me to finish reading them all in a few days because I'm limited in my English. However, I'm under the impression that from what has been, as far as we can see with the impression, the policy of the Australian government versus Aboriginals has been digressing. In another sense, this is less favourable than before. In the past the rights enjoyed by the Aboriginals have been taken back to some extent through methods of Acts or legislations.

Also, from my reading of newspapers some parties which have in their manifestation the ideal of xenophobia are quite active, such as the One Nation political party. And they openly in Australia advocate the philosophy of racial discrimination and xenophobia. In the face of this situation, it seems that the Australian government is yet to come up with a very strong reaction. This kind of practice is something that is totally against our convention. So I'd like to sound a warning that these kinds of measures call for sufficient attention on the part of the Australian government. It's not only a question relating to Aboriginals, the racism and xenophobia are of a general phenomenon. So much for my comments. Thanks.

Mr Chairman: Thank you very much Ms Zou for your intervention. I now call on the next speaker who is Ms Sadiq Ali.

Ms Ali: Thank you Mr Chairman. I shall be very brief because all our colleagues, especially Ms McDougall, have covered the subject very well. And I am also grateful to the delegation of Australia for devoting so much time to our queries. Now the only point that I would like to stress again and again, is that the committee links the obligation of non-discriminatory respect for Indigenous culture to the question of control over land. This is the point that is at the heart of the question and I would appeal to you to try and negotiate an amicable settlement.

Mr Chairman: I thank Ms Sadiq Ali for her contribution. She was the last speaker on my list. I stand to be corrected if this is not the case. And it appears to be. Now following some consultations with the distinguished delegation of Australia, I believe that we can usefully use the remaining 35 minutes by giving them the opportunity to start their initial responses and then of course they'll have the right to complete their responses on Monday morning. Now in order to prepare themselves a little bit with their papers and not with arguments - for that they are ready - I propose that we suspend the meeting for five minutes, not more. Just to give them time to collect their papers and start their responses. This meeting is suspended for five minutes.

The 1323rd meeting of the committee on the elimination of racial discrimination has resumed. As announced prior to the suspension, the distinguished delegation of Australia will use the remainder of our time to start its responses to the questions raised and the points made by the country rapporteur and the other members of the committee who have participated in the debate. I therefore call on the distinguished delegation of Australia to have the floor.

Distinguished delegation: Thank you Mr Chairman. I'd like to take this opportunity to thank all members of the committee for their obviously very thoughtful and very detailed questions and comments. The fortune in having the weekend in order to ensure our answers are equally detailed and thoughtful and I promise that come Monday we will be responding to all the issues that have been raised. As a preliminary matter, I wonder if I may be allowed just to further elaborate, Mr Chairman, your clarification to the question asked by Mr Yutzis concerning the invitation which we issued. As the Chairman clarified, we did issue the invitation at the request of the special rapporteur of the Commission on Human Rights on Racism and just to clarify the circumstances, in fact the distinguished special rapporteur was unable to visit Australia due to his illness. The second attempt to organise a visit was impossible because of the coincidence of our general election in Australia and since then the special rapporteur has indicated that changed circumstances in the politics of Australia mean that he believes there has been an improvement in the situation which no longer necessitates an early visit and he's indicated to us that he doesn't expect to be taking up the invitation in the course of this year. But of course, from the Australian government's point of view, he's welcome to take up that invitation at any time. I hope that clarifies that point.

If I may be allowed to move to a related matter that was raised by Ms Zou, the question of some political developments in Australia. I must say that this falls a little bit outside the area demarcated by the information request to us, we haven't come with detailed responses to these sorts of questions but I think I can draw on something which the special rapporteur himself said to the General Assembly of the United Nations in November of last year. If I may be allowed, Mr Chairman, I think it goes some way to answering the question and concern that you have raised with us. The special rapporteur said of Australia: 'As concerns Australia, the set back experienced by the One Nation party of which the leader Ms Pauline Hanson recently lost her seat as a member of the Australian Federal parliament should be noted. It is comforting to note that the population of Queensland, as well as the Australian government, are making an effort to reduce the influence of the party which opposes the official policies of multiculturalism and ethnic and cultural diversity which characterise that country.'

The special rapporteur went on to say: 'The day after the parliamentary elections which took place in October, the Australian Prime Minister emphasised in a speech that tolerance and non-discrimination as well as the multi-ethnic and multi-cultural character of Australia, remain essential values of the Australian people and undertook to promote an authentic reconciliation with the Aborigines in the context of the centenary celebrations of the Australian Federation'. He finished by saying: 'A new portfolio with responsibility for reconciliation has been created to that effect.' That's the end of the special rapporteur's quote.

I might also say in addition to that, that since the election the government has established a National Multicultural Advisory Council to advise the government on multicultural policies. This Council reflects the government's commitment to promoting open, constructive and factual debate on the nature of our multicultural society and the way it can be moved forward. The government has also recently launched the Living in Harmony program which is designed to support community awareness of racial, cultural, social and religious diversity in Australia. This initiative primarily funds community based education projects in partnerships which reduce racism and bigotry. I hope that goes some way to addressing the concerns that you put to us Ms Zou. Having said those few things, I'd like to defer to my colleague Mr Orr who will begin the task of addressing the specific questions which relate to the Land Title Act and Land Title policy in Australia. Thank you.

Mr Orr: Thank you Mr Chairman and I also thank the committee for its many comments and its many questions. I think I'll have some difficulty getting through those questions this evening though I understand we'll have the opportunity to complete answering those questions on Monday. Some of those questions were of quite a specific nature, some of them were much more general. What I thought I might do is just begin perhaps at a more general level and say some things which I didn't say in my introductory remarks which I think are perhaps relevant to informing the more detailed discussion being made. I might then move to the more specific questions. I think a number of members asked about Australia's general interpretation of its obligations under CERD, and in particular, under Articles 2 and 5. Australia regards these Articles as placing a two-fold obligation on it to prohibit racial discrimination and guarantee equality and a duty to take temporary affirmative action when circumstances warrant to ensure racial equality. In essence, therefore, they require equality between racial groups.

Equality can be achieved by formal equality and special measures where appropriate or at any rate by substantive equality. As Australia understands it, substantive equality requires the same treatment of things that are the same and appropriately different treatment of things that are different. However, judgements as to whether things are the same or whether things are analogous and if not, the appropriateness of different treatment can only be made on a case by case basis weighing all the relevant circumstances. Some of the matters I referred to in my introduction went to some of the analysis which the Australian government had undertaken in relation to Native Title rights. International law, as Australia understands it, generally recognises this by according States margins of appreciation in their implementation of non-discrimination principles. However, in relation to discrimination on the basis of race, the margin of appreciation is very narrow. This means that there'll be few instances where the State may treat racial groups in different ways. However, novel areas of law attract a wider margin of appreciation thereby recognising a greater range of permissible treatment.

In Australia's view, the recognition of Common Law Native Title Rights more than 200 years after the settlement of Australia, is some small basis for allowing some margin of appreciation, in particular in relation to historical actions. This was something that I raised in my introductory remarks and I know there are a number of specific questions which I'll proceed to answer. But there is an issue for Australia as to whether it can go back and undo discriminatory actions which have taken place in the period since settlement and before the Mabo decision in 1992. I just raised that as an issue and I think it's an issue that needs to inform our discussion about the validation regimes and the confirmation regime. Of course Australia recognises that in determining if a particular case complies with CERD it is important to have to regard that decisions regarding treatment are not arbitrary. In other words, they must have an objectively justifiable aim and proportionate means. And, that's another reason why in my introductory remarks I went to some length to explain the objective, the justifiable objective that some of the measures in the Native Title Amendment Act seek to meet and the proportionate means by which they seek to meet them.

Now I understand from some of your comments that you're uncomfortable with some of those; both as to the objectives and as to the proportionate means and again I'll come back to that when we look at the particular areas of concern that the committee has expressed in relation to the Amendment Act but suffice it to say at this stage that Australia is aware of the need to have objectively justifiable aims and proportionate means in dealing with this issue. As I've said in my submission and I think this was mentioned in a number of comments, Australia has incorporated CERD into its domestic law with the Racial Discrimination Act on 1975. A number of comments were made and a number of questions raised as to the relationship between the Racial Discrimination Act and the Native Title Act. I certainly want to speak to that and to answer those questions.

It is important to note, however, that the domestic interpretation of the Racial Discrimination Act, whilst it's informed to large extent by international law, is not dependent on it and a situation we've had in Australia has been that domestic interpretation of the Racial Discrimination Act has placed more emphasis on the requirements for formal equality and the only exception to that being special measures, has placed more emphasis on that approach than on an approach of allowing for substantive equality. So I just say that within the Australian judicial system, there is something of a disfunction between those two approaches. From our point of view, I don't think that makes a great deal of difference but it does, in a sense, colour the discussion that we've had and are having and I'll come back to this when I answer the questions with regard to the relationship between the Racial Discrimination Act in Australia and the Native Title Act. If I could just make one or two more general points about Australia's approach to CERD in relation to the Native Title Amendment Act, the fact that the Amendment Act deals principally with Native Title rights, that is the rights to land and waters, arising from the traditional laws of Australia's Indigenous Peoples as recognised by the Common Law and doesn't deal principally with the rights of others with interests in lands and waters whether those rights and interests arise under the Common Law or Statute Law does not in Australia's view make the Act discriminatory.

The original Native Title Act dealt principally with the Native Title Rights of Australia's Indigenous People and dealt very little with the rights of others. The Amendment Act is in a similar position. It deals extensively with the Native Title Rights of Australia's Indigenous People and only indirectly or to a limited extent with the rights of others. Again I say, in Australia's view, that doesn't make either the original Native Title Act or the Amendment Act of itself discriminatory. Rather in the Australian government's view, it is necessary to look at the overall substantive effect of the Native Title Act and the Native Title Amendment Act, and other relevant legislation and the balance that is struck between the various rights and interests.

This balance isn't struck just in the Native Title Act and the Native Title Amendment Act. Also, it is necessary to recognise that past Acts, historical Acts, and the effects of these cannot be undone. It is a point I made in my opening statement and I make again. Past Acts, however discriminatory, which have resulted in dispossession of Australia's Indigenous People cannot be undone though, of course, present and future policies can remedy the effects, the current effects, of such past Acts. So, bearing in mind these two points, the government believes that the Native Title Amendment Act doesn't breach CERD. And just the general point I made and I make again because there were a number of comments on this issue, the Native Title Act continues to pursue the objectives of the original Act.

There were some specific issues raised and as I said I'll come to those shortly but the Act itself states that it continues to pursue the objectives of recognising and protecting Native Title Rights of Australia's Indigenous People. As for the issue about obtaining the consent or consulting with Indigenous People, I'll make some specific comments with regard to those questions later as well. But I just want to make a general comment which I didn't make in the opening and that was that the government did attempt at the beginning of the process, after the Wik decision, to obtain some form of consensus as to its reconsideration of the operation of the Native Title Act.

In the government's view, this was not possible. However, the government did meet with stakeholders including Indigenous representatives and I'll provide some details about those meetings later. It did publish its proposals. It sought and considered comments at a number of stages during the process. It allowed extensive parliamentary debate with regard to the Amendment Act - indeed the longest debate in the history of the Commonwealth parliament. As I mentioned earlier, the government accepted a large number of amendments to its original proposed bill; many of those amendments took into account comments by the Opposition and minor parties and Indigenous representatives. The process of developing the Amendment Act and the Act itself in the end didn't meet the concerns of those Indigenous representatives. But as I also said in my opening address it did not meet the concerns of other stakeholders as well, including pastoralists, miners, and some States and Territories.

After making those preliminary comments, I might begin by addressing some of the questions which were raised by Ms McDougall, the rapporteur for this issue. Her first lot of questions concerned the Wik decision itself. You'll remember in my opening remarks, I set the structure of the Mabo decision which in 1992 first recognised Native Title and the Land Rights of Australia's Indigenous People, the Native Title Act, the Wik decision and then the response to the Wik decision and other issues in the Amendment Act.

Ms McDougall asks whether I agree with her summary of the Wik decision and I do because her summary is very similar to the summary which I provided of the Wik decision. Pastoral leases are a traditional form of grant by governments in Australia. Whilst it was assumed by many before the Wik decision that the grant of such rights had extinguished Native Title, the High Court clearly held in the Wik decision that the grant in a pastoral lease does not necessarily extinguish all the Native Title Rights in that land. Now, the word 'not necessarily' is important because what the court seems to be saying is that in some cases it might and in some cases it might not. And that you need to look at the specific facts of the case.

I think the Commonwealth government had, on the basis of its decision, assumed - and in my view to its credit - that all pastoral leases probably don't extinguish Native Title in Australia. That is, it started with the assumption that pastoral leases do not extinguish Native Title in Australia, perhaps an assumption which is more generous than the Wik decision itself. The second point in her summary is that Native Title is capable of co-existing on land with pastoral leases and again, the Australian government agrees with that. That co-existence which I talked about extensively in my opening summary.

Her third point is that where there is a conflict between the pastoralist's rights and those of the Native Title holder, the pastoralist's shall prevail but only to the extent of the inconsistency and again we agreed with that summary. Where I think the issue becomes harder is - what does this mean with regard to particular pastoral leases and particular Native Title holders.

The report says that pastoral leases are limited and asks why the Wik decision should cause a high degree of uncertainty. Well, I think there are a number of answers to that question. First of all, it is very unclear in most pastoral leases in Australia what the rights of the pastoral lessee are. This is something of a historical problem for Australia. Up until the Wik decision it didn't really matter what the pastoral lease said or what the rights given to the pastoral lessee were because it was really only a matter of the legal relationship between the government and the pastoral lessees and they were able to work it out amongst themselves.

The great thrust of the Wik decision is that there is now a very significant third party involved - the Native Title holder and it becomes important to ascertain what are the rights of the pastoral lessees because as the High Court said, they're the ones that prevail. And, as I said it is often difficult to ascertain what those rights are and more importantly they vary extensively across Australia.

As I mentioned in my opening statement - actually I may not have mentioned this but it's a point I need to make because it'll come up in a number of answers to these questions. Land law in Australia has been a matter for the States and Territories not the Commonwealth government. Therefore the States and Territories have developed their own rules, their own regulations, their own forms of tenure - some of which are quite idiosyncratic and none of which are comparable from one jurisdiction to another. So there's a broad range of things which pastoralists are able to do from State to State, and perhaps more importantly, there's a broad range of things which States are able to give, or enable pastoral lessees to do - an issue which we'll come to shortly.

But perhaps the most important point about the uncertainty which arises from the Wik decision is that whilst Common Law position and the position which the courts expounded - that's not necessarily the position of the Native Title Act itself. In fact, there's an argument that the Native Title Act reverses that, and gives the priority to the Native Title holders. Now, I could talk extensively about that but the point that really needs to be made is: there was significant confusion after the Wik decision as to what the rights of the pastoral lessees were and what the effect of the Native Title Act was on those. Perhaps I'll try and do this simply although I often have trouble doing this simply. Perhaps the general point to be made in my view that there was considerable uncertainty after the Wik decision as the rights of pastoral lessees and the rights of Native Title holders on land where those two rights co-existed. And one of the purposes of the Native Title Amendment Act was to try and bring some clarity to that situation.

Chairman: I am grateful to Mr Orr, as indeed to the head of the delegation of Australia, Mr. Goledzinowski, for their responses today. We look forward to them continuing their analysis of the points they want to continue with and respond to the many other questions which time did not allow to them to this point tonight. We shall turn out on Monday morning at 10 o'clock. We look forward to seeing them at that time. Until then we wish them well. Well, colleagues this concludes our business for this afternoon. This meeting is adjourned. We shall see each other on Monday morning at 10 o'clock. Until then, all the best. The meeting is adjourned.

Chairman: Before we resume our consideration of the report on Australia, I have an announcement to make. I received a note from Mr Banton informing me he would not be able to attend this meeting for the whole week because it seems that Mrs Banton experienced a slight stroke and she was admitted to a hospital in London and he, of course, had to be with her so I hope that we try to find out some news and tell him that we wish him the very best.

The second point I wanted to raise this morning with you before we resume the consideration of the report is that I think that maybe the bureau can meet today at 2.30 in the office which is reserved for the Committee so that we will have some consideration of the future work and how we will proceed from now on. Now I understand that the list of speakers, those who wanted to speak and did so on Friday. I understand that the delegation of Australia started even answering some of the points which were raised in that discussion so I will give you the floor to continue. You have the floor.