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COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF AUSTRALIA
02 March 2005
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Committee on the Elimination
of Racial Discrimination 2 March 2005
The Committee on the Elimination of Racial Discrimination has considered the report of Australia on its implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.
Presenting the report was Mike Smith, Ambassador and Permanent Representative of Australia to the United Nations Office at Geneva, who said that one of the defining characteristics of the Australian character was the concept of a "fair go" – a real and widespread sense in the community that everyone should be treated equally and fairly. Domestically, Australia tackled discrimination in two ways. The Racial Discrimination Act of 1975 underpinned Australia’s implementation of the Convention, and in addition to the Federal Act, each State and Territory enacted legislation that prohibited racial discrimination.
In the course of the discussion, which was held over two meetings, issues concerning the State party’s Native Title Act and aboriginal rights in general; the Australian Human Rights and Equal Opportunity Commission; discrimination against Arab and Muslim populations in the territory; separated indigenous children and indigenous family violence; multiculturalism; and immigration policies in Australia, were raised among other subjects.
In preliminary remarks, the country Rapporteur for the report, Committee Expert Raghavan Vasudevan Pillai, thanked the delegation for its competence in responding to the questions posed by Committee Experts and complimented its members for the comprehensiveness of the various issues addressed throughout the discussion.
The Committee will present its final conclusions and recommendations on the thirteenth and fourteenth periodic reports of Australia, which were presented in one document, at the end of its session, which concludes on 11 March.
The delegation of Australia also included representatives of the Department of Immigration and Multicultural and Indigenous Affairs; the Attorney General’s Department; the Department of Foreign Affairs and Trade and the Permanent Mission of Australia to the United Nations Office at Geneva.
When the Committee reconvenes at 3 p.m. this afternoon, it will begin its consideration of the initial and second periodic reports of Ireland (CERD/C/460/Add.1).
Report of Australia
According to the thirteenth and fourteenth periodic reports of Australia, presented in one document CERD/C/428/Add.2, the principal means by which Australia implements the International Convention on the Elimination of All Forms of Racial Discrimination is through the Racial Discrimination Act of 1975 and the Human Rights and Equal Opportunity Commission. The Racial Discrimination Act prohibits all forms of racial discrimination in all Australian jurisdictions, Federal, State, and Territorial. The Human Rights and Equal Opportunity Commission is the principal agency responsible both for monitoring compliance with the Convention within Australia, and for investigating and conciliating complaints, including complaints of alleged human rights violations. The Commission has responsibilities for inquiring into alleged infringements under three anti-discrimination acts as well as inquiring into alleged infringements of human rights.
Successive Australian Governments have implemented a range of initiatives in support or recognition of Aboriginal and Torres Strait Islander land rights. Consequently, well over 15 per cent of the Australian continent is now owned or controlled by Aboriginal and Torres Strait Islander people. The various measures implemented include land rights legislation, legislation to recognize and protect native title, and purchases of land on behalf of indigenous Australians.
All Australian States and Territories (except for Western Australia, which has a land reserve scheme) have implemented land rights legislation that generally grants inalienable title to land to indigenous people. The Australian Government is exploring innovative "diversion"’ strategies as part of its AUD 21 million initiative, the "National Crime Prevention" programme, as well as encouraging information-sharing between jurisdictions on effective initiatives.
Presentation of Report
MIKE SMITH, Ambassador and Permanent Representative of Australia to the United Nations Office at Geneva, outlining how human rights were addressed in his country, said the Human Rights and Equal Opportunity Commission in Australia worked to foster greater understanding and protection of human rights in Australia, and played a vital role in promoting, on behalf of the Australia Government, awareness of, and respect for human rights in the community. The Australian Government’s Community Liaison Officer network provided migrant communities with a direct means to communicate with the Federal Government which was able to use the network to provide information, assurance of support and advice to communities across a vast geographical distance.
One of the defining characteristics of the Australian character was the concept of a "fair go" – a real and widespread sense in the community that everyone should be treated equally and fairly. Domestically, Australia tackled discrimination in two ways, Mr. Smith said. Among the human rights legislation in Australia was the Racial Discrimination Act of 1975 which underpinned Australia’s implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. The Act made it unlawful to discriminate against any person by reason of that person’s race, colour, descent, or ethnic origin, in a number of areas including access to places and facilities, the provision of goods and services, employment and advertisements. The Act also prohibited offensive behaviour based on racial hatred. In addition to the Federal Act, each State and Territory had enacted legislation that prohibited racial discrimination.
Mr. Smith reaffirmed his Government’s strong commitment to fostering human rights education in Australia. An example of Australia’s ongoing commitment to the elimination of racial discrimination was the Government’s recent publication of a new National Framework for the protection of human rights in Australia. The Framework outlined the Government’s five main priorities for enhancing the enjoyment of human rights in Australia. One of these priorities was "addressing disadvantage and assisting independence", and included a wide range of programmes, services and support mechanisms designed to assist indigenous Australians in particular to reach their full potential, free from discrimination.
Since 1947, over six million migrants had moved to Australia and today, nearly one in four of Australia’s 20 million people were born overseas. Australia’s cultural character included some 200 ancestries and 200 languages. Along with cultural diversity, religious diversity was evident throughout Australian society. A practical aspect of the Australian Government’s commitment to anti-discrimination was Australia’s national multicultural policy which provided a framework for strengthening community harmony and promoting the economic, cultural and social benefits of Australia’s cultural diversity for all Australians. Within the framework, the goals of the Access and Equity strategy were embodied in the Charter of Public Service in a Culturally Diverse Society. The Charter placed an emphasis on building cultural diversity considerations into strategic planning, policy development, budget reporting and evaluation processes of mainstream government services.
Through its "Diversity Works" programme, the Australian Government promoted and encouraged the effective use of the cultural knowledge and language skills of the Australian workforce. The programme demonstrated and educated about the practical, proven benefits of diversity. The Australian Government had established the "Living in Harmony" initiative which was primarily a community-based education programme aimed at enhancing Australians' appreciation and understanding of the society in which they lived. The initiative had three complementary elements: first, the Community Grants Programme, designed to develop strategic local solutions at the community level; the national Partnerships Programme which enabled the Australian Government to work with major organizations and peak bodies; and the Public Information Strategy which raised the profile of the initiative and communicated its core message.
The Australian Government had recently overhauled and redesigned its policy and administrative arrangements in the field of indigenous affairs, Mr. Smith indicated. The new framework was based on three basic principles: first, that any successful solution must be based on the assumption of "shared responsibility" by both governments and indigenous communities themselves; second, governments needed to get their own house in order to improve their internal coordination and demonstrate greater flexibility and responsiveness to local needs; and the new approach was based on giving priority outcomes, instead of processes. This new approach was underpinned by a fundamental reorganization of governmental administrative arrangements which was driven and monitored by a task force of the ten key federal government ministers, under the chairmanship of the Minister for Indigenous Affairs. Moreover, they were advised by a newly established National Indigenous Council. There had also been substantial improvements in most of the key socio-economic indicators namely, a drop in the rate of indigenous unemployment and in the indigenous infant mortality rate.
Turning to the issue of native titles, Mr. Smith reported that there was now widespread evidence that the amended legislative regime in Australia was working much more effectively than prior to 1998, largely due to the entering into force of the Indigenous Land Use Agreements in the same year. In addition, there had been thousands of other native title agreements reached between proponents of development and native title parties. There had also been a significant increase in the finalization of native title claims.
The head of the Australian delegation noted that the overall circumstances of indigenous women had been improving markedly in recent times; however, significant problems remained for them. For example, the rate of imprisonment of indigenous women had been increasing. Also of great concern was the exposure of indigenous women to sexual abuse and violence. The Government’s recent response to this problem had included a AUD 60 million package of related programmes, including doubling the number of legal aid services for indigenous women. In response to concerns of Muslim women, the Australian Government in 2004 had initiated and organized a national women’s forum to explore issues affecting Muslim women.
Mr. Smith expressed his Government’s disappointment with the report of the Committee following the last hearing. The Australian Government felt the Committee’s observations largely ignored the significant progress made in Australia across the spectrum of indigenous issues, while reflecting an unquestioning acceptance of arguments raised in submissions by non-governmental organizations. Moreover, the Government believed that it was unreasonable for the Committee to make recommendations on the reconciliation process, to suggest that Australia used external affairs powers to override Australian State laws in certain instances, or to propose how it should allocate its resources to address indigenous issues. Mr. Smith also expressed his country’s disappointment with the report of the visit to Australia by the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.
In conclusion, Mr. Smith said his country had been very active in support of efforts to find practical ways to streamline the treaty body system and had been advocating reforms directed towards the failure of treaty bodies and special mechanisms to screen out communications that had little merit, improving the interface between Committees, State parties and non-governmental organizations, and improving the operation of the Committees in considering reports and in ensuring that they stayed within their mandates.
Questions Raised by Country Rapporteur and Committee Experts
RAGHAVAN VASUDEVAN PILLAI, the Committee Expert serving as country Rapporteur on the report of Australia, noted that a number of developments had taken place since the consideration of the last report of Australia, including the debate within Australian society on the State party’s treatment of the Convention’s provisions and amendments to the Native Title Act. A great deal of emphasis had been given in the report on the promotion of anti-racism and human rights education, by the Human Rights and Equal Opportunity Commission and the State territory’s governments.
Referring to a media report published in 2000 which stated that the Committee had "failed to grapple with the unique and complex history of race relations in Australia", the country Rapporteur said he was pleased this view was not shared by all in Australia. Mr. Pillai recalled a speech made by a former Prime Minister of Australia who had said that if the comments by CERD had been made by any person in Australia, the Government would have had to regard them as "reasoned and thoughtful".
Mr. Pillai noted that non-governmental organizations made invaluable contributions to the Committee. In that context he said he had hoped to see in the report that the State party had consulted with non-governmental organizations when drafting the document.
The Rapporteur mentioned that the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance had reported about racist and xenophobic acts against Arabs and Muslims, particularly after the 12 October 2002 bombing in Bali. Concern was also expressed by the Special Rapporteur on the increase in racist insults in football stadiums directed against aboriginal players. Mr. Pillai asked how the State party proposed to respond to the observation made by the Human Rights and Equal Opportunity Commission on this subject.
Mr. Pillai reiterated the concern previously expressed by the Committee about the absence in Australian law of any entrenched guarantee against racial discrimination that would override the subsequent law of the Commonwealth, States and Territories.
As for the mechanism for monitoring the compliance with the Convention, Mr. Pillai recalled the Committee’s concern expressed over the proposed changes to the overall structure of the Human Rights and Equal Opportunity Commission. In that connection, he asked the State party to provide a fresh look at the proposed legislative reforms of the Commission.
Mr. Pillai drew attention to the Australian Government’s announcement in May 2004 that it would abolish the Aboriginal and Torres Strait Islanders Commission as well as the Aboriginal and Torres Strait Islanders services. He further noted that the Human Rights and Equal Opportunity Commission had reported that most of the services and programmes provided to indigenous people by the two organizations had been transferred to mainstream government departments and that the new arrangements had been put in place since July 2004. He asked whether this new non-representative arrangement instilled confidence and optimism among aboriginals.
Mr. Pillai noted that there had been significant improvement in respect of a number of human development indices, although, disparities still remained. The initiatives by the Council of Australian Government to address disadvantaged indigenous people were commendable, he added.
Turning to the issue of housing for indigenous people, the Rapporteur asked for information as to how the State party was addressing this housing requirement, particularly in urban areas which had significant indigenous populations.
Mr. Pillai referred to the statement made by the Australian Social Justice Commissioner who said that aboriginal juveniles made up one-third of all offenders before the court.
The Rapporteur recalled that for nearly six years, the Committee had consistently expressed its concern over the amendments to the Native Title Act and it had recommended in 1999 that the State party should re-open discussions with indigenous Australians with a view to finding solutions acceptable to indigenous peoples and which complied with Australia’s obligations under the Convention. Mr. Pillai added that the majority of the Parliamentary Joint Committee had concluded that the amended Native Title Act was consistent with Australia’s obligations under the Convention. However, the separate report of the non-governmental members of the Parliamentary Joint Committee found that under the amended Native Title Act, indigenous rights were extinguished or impaired for the benefit of non-indigenous interests.
The Rapporteur also noted that the Migration Act, as amended in 1994, requested that non-citizens unlawfully in Australia must be immediately detained and the detention requirements would subsist until the person was found to have a lawful reason to remain in Australia or was deported. The total number of detainees as of May 2002, he further noted, was around 1,500 persons, mostly from Africa and Asia. The United Nations Working Group against arbitrary detention had had the impression that the conditions of detention were in many ways similar to prison conditions, Mr. Pillai said.
A Committee Expert asked for information about the results obtained by the Government as a result of its efforts to publicize anti-racism through various education projects. He also asked for additional information about the Native Title Act in general and about laws governing land rights for aborigines. He asked whether southern Australia had managed to promulgate a law on racial discrimination. Questions were also raised by the Expert on the process of reconciliation and efforts being made in the field of housing and employment, in particular.
Several Committee Experts asked for clarification on the State’s position on multiculturalism and its policy on integrating various ethnic groups into mainstream society. An Expert asked specifically whether aboriginal people had the same rights as did all citizens of Australia.
Other Committee Experts raised questions concerning the conditions and places of detention of illegal immigrants; the dissemination of racist ideas; family violence; common law; refugees and asylum seekers; family reunification; and health services for indigenous people.
A Committee Expert asked whether there was any provision in Australian law in line with article 10 of the ILO Convention regarding penalties and prison sentences imposed on indigenous people.
Another Expert asked what initiatives had been taken by the Government to counter balance the tendency to focus on the Muslim community in its fight against terrorism.
Response by Delegation
In response to several questions raised on the State party’s Native Title Act, the delegation recalled that the colonial power of the Australian territories in the nineteenth century had never recognized any form of indigenous land tenure. In 1992 the Australian High Court had recognized that a form of native title had survived the colonial period. In 1993, the Government legislated the Native Title Act which established a system for recognition of native title without which governments could extinguish native title by granting land to a third party. In 1996, a second major native title decision resulted in almost 80 per cent of the continent being potentially subject to native title claims. Up to that point it had been presumed that native titles survived only on vacant land. The effect of the 1996 decision was to overturn a basic assumption of the 1993 legislation and meant that legislation applied to much privately held land as well. An example of the amendments to the Act made in 1998 was the validation of mining and other interests granted to third parties between 1993 and 1996. The competing interests between parties seeking validation of their mining rights and indigenous groups whose rights had been adversely affected were reconciled by entitling indigenous parties to claim compensation.
As a result of the changes made to the Native Title Act, the delegation noted that between the initial Act in 1993 and the 1998 amendments there were only five determinations of native title claims in Australia; since 1998, there had been 51 such determinations and at present some 20 per cent of the continent was owned by indigenous Australians. There were also 144 registered indigenous land use agreements whereby a mining company, for example, allowed for the development to proceed pending a possible determination on the native title. This meant that the native title claimant did not have to establish the native title before benefiting from the agreement with the company. In answer to a related question, the delegation noted that the incidence of native title was a matter for agreement between the parties or agreements in the court through common law.
Regarding the Human Right and Equal Opportunity Commission and the separation of powers in Australia, the delegation noted that there was also a separation of power between the commonwealth and the states and territories, which had been a matter of cooperation and contest between the different players. This cooperative approach between all levels of government was particularly relevant in the area of human rights. States and territories, for example, had enacted their own human rights related legislation. Complaints of racial discrimination could be taken to the Commission. A joint Federal and States Standing Committee on Treaties was an example of the cooperative power sharing approach embraced by the Government. States were often the primary implementers of human rights responsibilities; one such example of this was the training of law enforcement officials. The delegation outlined a number of State Government initiatives to provide human rights and cultural and religious sensitivity training to police and emergency services officers.
In response to more questions raised about the Human Rights and Equal Opportunity Commission, the delegation stated that the Government of Australia supported the Commission and aimed to ensure that it was best structured to fulfil its obligations and respond to current and emerging human rights issues. The Commission had a wide set of functions ranging from education to handling complaints to intervention. Concerning the budget and restructuring of the Commission, the delegation noted that the largest changes had been in 2001 when functions relating to the privacy of information section were transferred to the new office of the Privacy Commissioner. Following a recent decision, the High Court determined that under the Australian Constitution the Commission did not have the judicial power to making binding decisions. The Government decided the Human Rights and Equal Opportunity Commission should focus more on conciliated outcomes which often put people in a better position to understand and resolve discrimination issues. Moreover, the Government strongly supported the Commission's educative role, the delegation stated.
Concerning free speech, the delegation said the Racial Discrimination Act prohibited racial vilification. The Act did, however, contain a number of exemptions relating to the protection of free speech in certain circumstances.
Regarding the treatment of Arab and Muslim populations in the context of Australia’s counter-terrorism laws, the delegation said the counter-terrorism laws of Australia were designed to protect the entire population. Prior to the enactment of the most recent amendments to the State’s counter-terrorism legislation, Australia could only make changes to its list of terrorist organizations if the Security Council had also listed the organization in question. Any person subjected to questioning under the laws was granted their rights equally and could only be questioned by an authorized official.
Turning to aboriginal matters, the delegation noted that there had been significant progress made in the socio-economic sphere; in the area of education, the proportion of aboriginal children staying in school through high school had risen from 29 per cent in 1996 to 39 per cent today. In the area of vocational training, the number of aboriginal students had doubled in recent years. Unemployment rates had also fallen for aboriginal people. Infant mortality had declined by 25 per cent and household overcrowding had also improved; one-third of the indigenous population now owned their own homes. In short, there was a clear pattern of improvement and the Government hoped to improve things further.
Three-quarters of the indigenous population of Australia lived in urban centres, the delegation noted in response to a question on indigenous matters. Concerning judicial issues, aboriginal people were over represented in the criminal justice system. Two solutions came about to address this problem; custodial sentences were deemed to be the last option; decisions were taken to attack the underlying causes of this dilemma, namely looking into social disadvantages; and diversionary programmes were created as an alternative to going through the criminal justice system, for example; as a result an increasing number of the offenders were sentenced to community service orders instead of gaol. Another alternative which had been developed was family conferencing, whereas when a defender appeared before the court family members were brought in to discuss the situation with the judicial officials. These various initiatives have resulted in, among other things, a drop in the proportion of aboriginal people arrested by the police and juvenile imprisonment rates had fallen over the past decade. The policy focus was moving to crime prevention and the socio economic determinants.
Responding to a question, the delegation said there were no designated seats in federal Parliament for indigenous people; the most recent indigenous Member of Parliament lost his seat in the election last year. However, there was a significant number of aboriginal members in state and territorial parliaments. In terms of political commitment, every Government in Australia had a Minister for aboriginal affairs. At the level of the Federal Government there was a new Ministerial Task Force charged with focusing on the national policy concerning indigenous issues. The Prime Minster had also been actively engaged in the process; recently, he chaired a round table with indigenous women to address the issue of family violence. The dialogue between the Government and indigenous people was as high now as it had ever been, the delegation added.
Concerning separated children, the delegation said that in the first half of the last century, a number of aboriginal children had been placed in the custodial care of the State, some with and some against their consent. The proportion of indigenous children affected, for various reasons, during that period was believed to be about 10 per cent. A national inquiry had been held in the 1990s to look back at that situation and it had recommended a number of measures to help the children and families affected by that situation; a result of the inquiry was the "Bringing them Home" report, and now programmes, which had resulted in over 1,000 indigenous children being reunified with their families.
In answer to a question on equal citizenship rights, the delegation said all citizens enjoyed this right. In earlier years, there had been restrictions facing indigenous people but the last of these restrictions were abolished by the 1975 Racial Discrimination Act.
On the subject of the case of racism in sporting events, the delegation said the incident raised by the Committee Expert had taken place some ten years ago and in 1995 the Australian Football League became the first sporting body to adopt procedures which provided for condemnation of racial discrimination.
Concerning the expenditure for indigenous health programmes, the per capita amount of money spent by all governments on indigenous health was higher than for non-indigenous populations, the delegation stated.
Turning to family violence, the delegation said this situation was as bad in remote indigenous communities as in others and had been widely documented; the immediate cause was often alcohol abuse. The issue was of concern among the indigenous community and the Government itself and had been the subject of discussion among Government authorities. In response, several initiatives had been taken, including a framework on partnership against domestic violence programmes and a women’s leaderships programme.
On multiculturalism, the delegation said a comprehensive review of the Government’s multicultural policy had been conducted in 1996 when a policy framework was put into action for the next decade. A national multicultural advisory council had been set up for this purpose; a new agenda for multicultural Australia had also been released. Moreover, a new Ministry had been created in 2001 dedicated to multicultural affairs and an Advisory Council had been set up to deal with questions pertaining to multiculturalism. Australia's society was made up of people from various cultures and religions and the Government had taken several steps to uphold the rights of all of its inhabitants, seeking to ensure a harmonious diverse society.
On the issue of anti-Arab and anti-Muslim sentiments, the delegation said that in 2003 a study had been conducted by the Human Rights and Equal Opportunity Commission to determine whether these groups had been subjected to racial discrimination. The report had concluded that there was an increase in discrimination and vilification against these groups; police abuse and unfair media reporting was reported to have been taking place, among other things. In response, a long-term strategy was initiated by the Government to improve legal protection and public awareness of the Arab and Muslim communities, to address misinformation and to ensure community safety through law enforcement. The "Living in Harmony" initiative was another aspect of this project. Furthermore, a number of national projects had been created to address racism among these groups in Australia.
Concerning immigration detention, the delegation said there was much misunderstanding about detention in Australia. People were placed in immigration detention if they were unlawful immigrants, not because they were seeking asylum. Some of those in detention were seeking asylum, however, the vast number of those who sought asylum in Australia had arrived in the territory lawfully and were not detained while their claims were assessed. The vast majority of those held in immigration detention were held in specific immigration detention centres, five in all, throughout the country. They were governed by immigration standards and the centres were not correctional facilities. Moreover, these centres were visited by human rights officials and members of Parliament, among other Government officials. Those in detention had full access to legal protection and rights.
Concerning who was allowed to migrate to Australia, any person was able to apply to migrate to Australia regardless of their ethnicity, country of origin, gender, colour or religion, the delegation noted.
Preliminary Observations
RAGHAVAN VASUDEVAN PILLAI, the Committee Expert serving as country Rapporteur, thanked the delegation for its competence in responding to the questions posed by Committee Experts. He hoped that the Australian Government would take the comments made by the Committee in the spirit of a fruitful dialogue. Mr. Pillai also complimented the delegation for the comprehensiveness of the various issues addressed throughout the two-day discussion.
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This press release is not an official record and is provided for public information only.
of Racial Discrimination 2 March 2005
The Committee on the Elimination of Racial Discrimination has considered the report of Australia on its implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.
Presenting the report was Mike Smith, Ambassador and Permanent Representative of Australia to the United Nations Office at Geneva, who said that one of the defining characteristics of the Australian character was the concept of a "fair go" – a real and widespread sense in the community that everyone should be treated equally and fairly. Domestically, Australia tackled discrimination in two ways. The Racial Discrimination Act of 1975 underpinned Australia’s implementation of the Convention, and in addition to the Federal Act, each State and Territory enacted legislation that prohibited racial discrimination.
In the course of the discussion, which was held over two meetings, issues concerning the State party’s Native Title Act and aboriginal rights in general; the Australian Human Rights and Equal Opportunity Commission; discrimination against Arab and Muslim populations in the territory; separated indigenous children and indigenous family violence; multiculturalism; and immigration policies in Australia, were raised among other subjects.
In preliminary remarks, the country Rapporteur for the report, Committee Expert Raghavan Vasudevan Pillai, thanked the delegation for its competence in responding to the questions posed by Committee Experts and complimented its members for the comprehensiveness of the various issues addressed throughout the discussion.
The Committee will present its final conclusions and recommendations on the thirteenth and fourteenth periodic reports of Australia, which were presented in one document, at the end of its session, which concludes on 11 March.
The delegation of Australia also included representatives of the Department of Immigration and Multicultural and Indigenous Affairs; the Attorney General’s Department; the Department of Foreign Affairs and Trade and the Permanent Mission of Australia to the United Nations Office at Geneva.
When the Committee reconvenes at 3 p.m. this afternoon, it will begin its consideration of the initial and second periodic reports of Ireland (CERD/C/460/Add.1).
Report of Australia
According to the thirteenth and fourteenth periodic reports of Australia, presented in one document CERD/C/428/Add.2, the principal means by which Australia implements the International Convention on the Elimination of All Forms of Racial Discrimination is through the Racial Discrimination Act of 1975 and the Human Rights and Equal Opportunity Commission. The Racial Discrimination Act prohibits all forms of racial discrimination in all Australian jurisdictions, Federal, State, and Territorial. The Human Rights and Equal Opportunity Commission is the principal agency responsible both for monitoring compliance with the Convention within Australia, and for investigating and conciliating complaints, including complaints of alleged human rights violations. The Commission has responsibilities for inquiring into alleged infringements under three anti-discrimination acts as well as inquiring into alleged infringements of human rights.
Successive Australian Governments have implemented a range of initiatives in support or recognition of Aboriginal and Torres Strait Islander land rights. Consequently, well over 15 per cent of the Australian continent is now owned or controlled by Aboriginal and Torres Strait Islander people. The various measures implemented include land rights legislation, legislation to recognize and protect native title, and purchases of land on behalf of indigenous Australians.
All Australian States and Territories (except for Western Australia, which has a land reserve scheme) have implemented land rights legislation that generally grants inalienable title to land to indigenous people. The Australian Government is exploring innovative "diversion"’ strategies as part of its AUD 21 million initiative, the "National Crime Prevention" programme, as well as encouraging information-sharing between jurisdictions on effective initiatives.
Presentation of Report
MIKE SMITH, Ambassador and Permanent Representative of Australia to the United Nations Office at Geneva, outlining how human rights were addressed in his country, said the Human Rights and Equal Opportunity Commission in Australia worked to foster greater understanding and protection of human rights in Australia, and played a vital role in promoting, on behalf of the Australia Government, awareness of, and respect for human rights in the community. The Australian Government’s Community Liaison Officer network provided migrant communities with a direct means to communicate with the Federal Government which was able to use the network to provide information, assurance of support and advice to communities across a vast geographical distance.
One of the defining characteristics of the Australian character was the concept of a "fair go" – a real and widespread sense in the community that everyone should be treated equally and fairly. Domestically, Australia tackled discrimination in two ways, Mr. Smith said. Among the human rights legislation in Australia was the Racial Discrimination Act of 1975 which underpinned Australia’s implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. The Act made it unlawful to discriminate against any person by reason of that person’s race, colour, descent, or ethnic origin, in a number of areas including access to places and facilities, the provision of goods and services, employment and advertisements. The Act also prohibited offensive behaviour based on racial hatred. In addition to the Federal Act, each State and Territory had enacted legislation that prohibited racial discrimination.
Mr. Smith reaffirmed his Government’s strong commitment to fostering human rights education in Australia. An example of Australia’s ongoing commitment to the elimination of racial discrimination was the Government’s recent publication of a new National Framework for the protection of human rights in Australia. The Framework outlined the Government’s five main priorities for enhancing the enjoyment of human rights in Australia. One of these priorities was "addressing disadvantage and assisting independence", and included a wide range of programmes, services and support mechanisms designed to assist indigenous Australians in particular to reach their full potential, free from discrimination.
Since 1947, over six million migrants had moved to Australia and today, nearly one in four of Australia’s 20 million people were born overseas. Australia’s cultural character included some 200 ancestries and 200 languages. Along with cultural diversity, religious diversity was evident throughout Australian society. A practical aspect of the Australian Government’s commitment to anti-discrimination was Australia’s national multicultural policy which provided a framework for strengthening community harmony and promoting the economic, cultural and social benefits of Australia’s cultural diversity for all Australians. Within the framework, the goals of the Access and Equity strategy were embodied in the Charter of Public Service in a Culturally Diverse Society. The Charter placed an emphasis on building cultural diversity considerations into strategic planning, policy development, budget reporting and evaluation processes of mainstream government services.
Through its "Diversity Works" programme, the Australian Government promoted and encouraged the effective use of the cultural knowledge and language skills of the Australian workforce. The programme demonstrated and educated about the practical, proven benefits of diversity. The Australian Government had established the "Living in Harmony" initiative which was primarily a community-based education programme aimed at enhancing Australians' appreciation and understanding of the society in which they lived. The initiative had three complementary elements: first, the Community Grants Programme, designed to develop strategic local solutions at the community level; the national Partnerships Programme which enabled the Australian Government to work with major organizations and peak bodies; and the Public Information Strategy which raised the profile of the initiative and communicated its core message.
The Australian Government had recently overhauled and redesigned its policy and administrative arrangements in the field of indigenous affairs, Mr. Smith indicated. The new framework was based on three basic principles: first, that any successful solution must be based on the assumption of "shared responsibility" by both governments and indigenous communities themselves; second, governments needed to get their own house in order to improve their internal coordination and demonstrate greater flexibility and responsiveness to local needs; and the new approach was based on giving priority outcomes, instead of processes. This new approach was underpinned by a fundamental reorganization of governmental administrative arrangements which was driven and monitored by a task force of the ten key federal government ministers, under the chairmanship of the Minister for Indigenous Affairs. Moreover, they were advised by a newly established National Indigenous Council. There had also been substantial improvements in most of the key socio-economic indicators namely, a drop in the rate of indigenous unemployment and in the indigenous infant mortality rate.
Turning to the issue of native titles, Mr. Smith reported that there was now widespread evidence that the amended legislative regime in Australia was working much more effectively than prior to 1998, largely due to the entering into force of the Indigenous Land Use Agreements in the same year. In addition, there had been thousands of other native title agreements reached between proponents of development and native title parties. There had also been a significant increase in the finalization of native title claims.
The head of the Australian delegation noted that the overall circumstances of indigenous women had been improving markedly in recent times; however, significant problems remained for them. For example, the rate of imprisonment of indigenous women had been increasing. Also of great concern was the exposure of indigenous women to sexual abuse and violence. The Government’s recent response to this problem had included a AUD 60 million package of related programmes, including doubling the number of legal aid services for indigenous women. In response to concerns of Muslim women, the Australian Government in 2004 had initiated and organized a national women’s forum to explore issues affecting Muslim women.
Mr. Smith expressed his Government’s disappointment with the report of the Committee following the last hearing. The Australian Government felt the Committee’s observations largely ignored the significant progress made in Australia across the spectrum of indigenous issues, while reflecting an unquestioning acceptance of arguments raised in submissions by non-governmental organizations. Moreover, the Government believed that it was unreasonable for the Committee to make recommendations on the reconciliation process, to suggest that Australia used external affairs powers to override Australian State laws in certain instances, or to propose how it should allocate its resources to address indigenous issues. Mr. Smith also expressed his country’s disappointment with the report of the visit to Australia by the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.
In conclusion, Mr. Smith said his country had been very active in support of efforts to find practical ways to streamline the treaty body system and had been advocating reforms directed towards the failure of treaty bodies and special mechanisms to screen out communications that had little merit, improving the interface between Committees, State parties and non-governmental organizations, and improving the operation of the Committees in considering reports and in ensuring that they stayed within their mandates.
Questions Raised by Country Rapporteur and Committee Experts
RAGHAVAN VASUDEVAN PILLAI, the Committee Expert serving as country Rapporteur on the report of Australia, noted that a number of developments had taken place since the consideration of the last report of Australia, including the debate within Australian society on the State party’s treatment of the Convention’s provisions and amendments to the Native Title Act. A great deal of emphasis had been given in the report on the promotion of anti-racism and human rights education, by the Human Rights and Equal Opportunity Commission and the State territory’s governments.
Referring to a media report published in 2000 which stated that the Committee had "failed to grapple with the unique and complex history of race relations in Australia", the country Rapporteur said he was pleased this view was not shared by all in Australia. Mr. Pillai recalled a speech made by a former Prime Minister of Australia who had said that if the comments by CERD had been made by any person in Australia, the Government would have had to regard them as "reasoned and thoughtful".
Mr. Pillai noted that non-governmental organizations made invaluable contributions to the Committee. In that context he said he had hoped to see in the report that the State party had consulted with non-governmental organizations when drafting the document.
The Rapporteur mentioned that the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance had reported about racist and xenophobic acts against Arabs and Muslims, particularly after the 12 October 2002 bombing in Bali. Concern was also expressed by the Special Rapporteur on the increase in racist insults in football stadiums directed against aboriginal players. Mr. Pillai asked how the State party proposed to respond to the observation made by the Human Rights and Equal Opportunity Commission on this subject.
Mr. Pillai reiterated the concern previously expressed by the Committee about the absence in Australian law of any entrenched guarantee against racial discrimination that would override the subsequent law of the Commonwealth, States and Territories.
As for the mechanism for monitoring the compliance with the Convention, Mr. Pillai recalled the Committee’s concern expressed over the proposed changes to the overall structure of the Human Rights and Equal Opportunity Commission. In that connection, he asked the State party to provide a fresh look at the proposed legislative reforms of the Commission.
Mr. Pillai drew attention to the Australian Government’s announcement in May 2004 that it would abolish the Aboriginal and Torres Strait Islanders Commission as well as the Aboriginal and Torres Strait Islanders services. He further noted that the Human Rights and Equal Opportunity Commission had reported that most of the services and programmes provided to indigenous people by the two organizations had been transferred to mainstream government departments and that the new arrangements had been put in place since July 2004. He asked whether this new non-representative arrangement instilled confidence and optimism among aboriginals.
Mr. Pillai noted that there had been significant improvement in respect of a number of human development indices, although, disparities still remained. The initiatives by the Council of Australian Government to address disadvantaged indigenous people were commendable, he added.
Turning to the issue of housing for indigenous people, the Rapporteur asked for information as to how the State party was addressing this housing requirement, particularly in urban areas which had significant indigenous populations.
Mr. Pillai referred to the statement made by the Australian Social Justice Commissioner who said that aboriginal juveniles made up one-third of all offenders before the court.
The Rapporteur recalled that for nearly six years, the Committee had consistently expressed its concern over the amendments to the Native Title Act and it had recommended in 1999 that the State party should re-open discussions with indigenous Australians with a view to finding solutions acceptable to indigenous peoples and which complied with Australia’s obligations under the Convention. Mr. Pillai added that the majority of the Parliamentary Joint Committee had concluded that the amended Native Title Act was consistent with Australia’s obligations under the Convention. However, the separate report of the non-governmental members of the Parliamentary Joint Committee found that under the amended Native Title Act, indigenous rights were extinguished or impaired for the benefit of non-indigenous interests.
The Rapporteur also noted that the Migration Act, as amended in 1994, requested that non-citizens unlawfully in Australia must be immediately detained and the detention requirements would subsist until the person was found to have a lawful reason to remain in Australia or was deported. The total number of detainees as of May 2002, he further noted, was around 1,500 persons, mostly from Africa and Asia. The United Nations Working Group against arbitrary detention had had the impression that the conditions of detention were in many ways similar to prison conditions, Mr. Pillai said.
A Committee Expert asked for information about the results obtained by the Government as a result of its efforts to publicize anti-racism through various education projects. He also asked for additional information about the Native Title Act in general and about laws governing land rights for aborigines. He asked whether southern Australia had managed to promulgate a law on racial discrimination. Questions were also raised by the Expert on the process of reconciliation and efforts being made in the field of housing and employment, in particular.
Several Committee Experts asked for clarification on the State’s position on multiculturalism and its policy on integrating various ethnic groups into mainstream society. An Expert asked specifically whether aboriginal people had the same rights as did all citizens of Australia.
Other Committee Experts raised questions concerning the conditions and places of detention of illegal immigrants; the dissemination of racist ideas; family violence; common law; refugees and asylum seekers; family reunification; and health services for indigenous people.
A Committee Expert asked whether there was any provision in Australian law in line with article 10 of the ILO Convention regarding penalties and prison sentences imposed on indigenous people.
Another Expert asked what initiatives had been taken by the Government to counter balance the tendency to focus on the Muslim community in its fight against terrorism.
Response by Delegation
In response to several questions raised on the State party’s Native Title Act, the delegation recalled that the colonial power of the Australian territories in the nineteenth century had never recognized any form of indigenous land tenure. In 1992 the Australian High Court had recognized that a form of native title had survived the colonial period. In 1993, the Government legislated the Native Title Act which established a system for recognition of native title without which governments could extinguish native title by granting land to a third party. In 1996, a second major native title decision resulted in almost 80 per cent of the continent being potentially subject to native title claims. Up to that point it had been presumed that native titles survived only on vacant land. The effect of the 1996 decision was to overturn a basic assumption of the 1993 legislation and meant that legislation applied to much privately held land as well. An example of the amendments to the Act made in 1998 was the validation of mining and other interests granted to third parties between 1993 and 1996. The competing interests between parties seeking validation of their mining rights and indigenous groups whose rights had been adversely affected were reconciled by entitling indigenous parties to claim compensation.
As a result of the changes made to the Native Title Act, the delegation noted that between the initial Act in 1993 and the 1998 amendments there were only five determinations of native title claims in Australia; since 1998, there had been 51 such determinations and at present some 20 per cent of the continent was owned by indigenous Australians. There were also 144 registered indigenous land use agreements whereby a mining company, for example, allowed for the development to proceed pending a possible determination on the native title. This meant that the native title claimant did not have to establish the native title before benefiting from the agreement with the company. In answer to a related question, the delegation noted that the incidence of native title was a matter for agreement between the parties or agreements in the court through common law.
Regarding the Human Right and Equal Opportunity Commission and the separation of powers in Australia, the delegation noted that there was also a separation of power between the commonwealth and the states and territories, which had been a matter of cooperation and contest between the different players. This cooperative approach between all levels of government was particularly relevant in the area of human rights. States and territories, for example, had enacted their own human rights related legislation. Complaints of racial discrimination could be taken to the Commission. A joint Federal and States Standing Committee on Treaties was an example of the cooperative power sharing approach embraced by the Government. States were often the primary implementers of human rights responsibilities; one such example of this was the training of law enforcement officials. The delegation outlined a number of State Government initiatives to provide human rights and cultural and religious sensitivity training to police and emergency services officers.
In response to more questions raised about the Human Rights and Equal Opportunity Commission, the delegation stated that the Government of Australia supported the Commission and aimed to ensure that it was best structured to fulfil its obligations and respond to current and emerging human rights issues. The Commission had a wide set of functions ranging from education to handling complaints to intervention. Concerning the budget and restructuring of the Commission, the delegation noted that the largest changes had been in 2001 when functions relating to the privacy of information section were transferred to the new office of the Privacy Commissioner. Following a recent decision, the High Court determined that under the Australian Constitution the Commission did not have the judicial power to making binding decisions. The Government decided the Human Rights and Equal Opportunity Commission should focus more on conciliated outcomes which often put people in a better position to understand and resolve discrimination issues. Moreover, the Government strongly supported the Commission's educative role, the delegation stated.
Concerning free speech, the delegation said the Racial Discrimination Act prohibited racial vilification. The Act did, however, contain a number of exemptions relating to the protection of free speech in certain circumstances.
Regarding the treatment of Arab and Muslim populations in the context of Australia’s counter-terrorism laws, the delegation said the counter-terrorism laws of Australia were designed to protect the entire population. Prior to the enactment of the most recent amendments to the State’s counter-terrorism legislation, Australia could only make changes to its list of terrorist organizations if the Security Council had also listed the organization in question. Any person subjected to questioning under the laws was granted their rights equally and could only be questioned by an authorized official.
Turning to aboriginal matters, the delegation noted that there had been significant progress made in the socio-economic sphere; in the area of education, the proportion of aboriginal children staying in school through high school had risen from 29 per cent in 1996 to 39 per cent today. In the area of vocational training, the number of aboriginal students had doubled in recent years. Unemployment rates had also fallen for aboriginal people. Infant mortality had declined by 25 per cent and household overcrowding had also improved; one-third of the indigenous population now owned their own homes. In short, there was a clear pattern of improvement and the Government hoped to improve things further.
Three-quarters of the indigenous population of Australia lived in urban centres, the delegation noted in response to a question on indigenous matters. Concerning judicial issues, aboriginal people were over represented in the criminal justice system. Two solutions came about to address this problem; custodial sentences were deemed to be the last option; decisions were taken to attack the underlying causes of this dilemma, namely looking into social disadvantages; and diversionary programmes were created as an alternative to going through the criminal justice system, for example; as a result an increasing number of the offenders were sentenced to community service orders instead of gaol. Another alternative which had been developed was family conferencing, whereas when a defender appeared before the court family members were brought in to discuss the situation with the judicial officials. These various initiatives have resulted in, among other things, a drop in the proportion of aboriginal people arrested by the police and juvenile imprisonment rates had fallen over the past decade. The policy focus was moving to crime prevention and the socio economic determinants.
Responding to a question, the delegation said there were no designated seats in federal Parliament for indigenous people; the most recent indigenous Member of Parliament lost his seat in the election last year. However, there was a significant number of aboriginal members in state and territorial parliaments. In terms of political commitment, every Government in Australia had a Minister for aboriginal affairs. At the level of the Federal Government there was a new Ministerial Task Force charged with focusing on the national policy concerning indigenous issues. The Prime Minster had also been actively engaged in the process; recently, he chaired a round table with indigenous women to address the issue of family violence. The dialogue between the Government and indigenous people was as high now as it had ever been, the delegation added.
Concerning separated children, the delegation said that in the first half of the last century, a number of aboriginal children had been placed in the custodial care of the State, some with and some against their consent. The proportion of indigenous children affected, for various reasons, during that period was believed to be about 10 per cent. A national inquiry had been held in the 1990s to look back at that situation and it had recommended a number of measures to help the children and families affected by that situation; a result of the inquiry was the "Bringing them Home" report, and now programmes, which had resulted in over 1,000 indigenous children being reunified with their families.
In answer to a question on equal citizenship rights, the delegation said all citizens enjoyed this right. In earlier years, there had been restrictions facing indigenous people but the last of these restrictions were abolished by the 1975 Racial Discrimination Act.
On the subject of the case of racism in sporting events, the delegation said the incident raised by the Committee Expert had taken place some ten years ago and in 1995 the Australian Football League became the first sporting body to adopt procedures which provided for condemnation of racial discrimination.
Concerning the expenditure for indigenous health programmes, the per capita amount of money spent by all governments on indigenous health was higher than for non-indigenous populations, the delegation stated.
Turning to family violence, the delegation said this situation was as bad in remote indigenous communities as in others and had been widely documented; the immediate cause was often alcohol abuse. The issue was of concern among the indigenous community and the Government itself and had been the subject of discussion among Government authorities. In response, several initiatives had been taken, including a framework on partnership against domestic violence programmes and a women’s leaderships programme.
On multiculturalism, the delegation said a comprehensive review of the Government’s multicultural policy had been conducted in 1996 when a policy framework was put into action for the next decade. A national multicultural advisory council had been set up for this purpose; a new agenda for multicultural Australia had also been released. Moreover, a new Ministry had been created in 2001 dedicated to multicultural affairs and an Advisory Council had been set up to deal with questions pertaining to multiculturalism. Australia's society was made up of people from various cultures and religions and the Government had taken several steps to uphold the rights of all of its inhabitants, seeking to ensure a harmonious diverse society.
On the issue of anti-Arab and anti-Muslim sentiments, the delegation said that in 2003 a study had been conducted by the Human Rights and Equal Opportunity Commission to determine whether these groups had been subjected to racial discrimination. The report had concluded that there was an increase in discrimination and vilification against these groups; police abuse and unfair media reporting was reported to have been taking place, among other things. In response, a long-term strategy was initiated by the Government to improve legal protection and public awareness of the Arab and Muslim communities, to address misinformation and to ensure community safety through law enforcement. The "Living in Harmony" initiative was another aspect of this project. Furthermore, a number of national projects had been created to address racism among these groups in Australia.
Concerning immigration detention, the delegation said there was much misunderstanding about detention in Australia. People were placed in immigration detention if they were unlawful immigrants, not because they were seeking asylum. Some of those in detention were seeking asylum, however, the vast number of those who sought asylum in Australia had arrived in the territory lawfully and were not detained while their claims were assessed. The vast majority of those held in immigration detention were held in specific immigration detention centres, five in all, throughout the country. They were governed by immigration standards and the centres were not correctional facilities. Moreover, these centres were visited by human rights officials and members of Parliament, among other Government officials. Those in detention had full access to legal protection and rights.
Concerning who was allowed to migrate to Australia, any person was able to apply to migrate to Australia regardless of their ethnicity, country of origin, gender, colour or religion, the delegation noted.
Preliminary Observations
RAGHAVAN VASUDEVAN PILLAI, the Committee Expert serving as country Rapporteur, thanked the delegation for its competence in responding to the questions posed by Committee Experts. He hoped that the Australian Government would take the comments made by the Committee in the spirit of a fruitful dialogue. Mr. Pillai also complimented the delegation for the comprehensiveness of the various issues addressed throughout the two-day discussion.
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