Committee on the Elimination of Racial Discrimination considers report of Australia

11 August 2010

The Committee on the Elimination of Racial Discrimination has considered the combined fifteenth through seventeenth periodic reports of Australia on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.

Presenting the report, Peter Woolcott, Permanent Representative of Australia to the United Nations Office at Geneva, said there had been a number of significant developments in Aboriginal and Torres Strait Islander affairs in Australia in recent years. In February 2008, the then Prime Minister delivered the National Apology to Australia’s Indigenous peoples, particularly, the Stolen Generation, for past government policies that resulted in profound grief, suffering and loss on the part of Indigenous Australians. In April 2009, Australia announced its support of the United Nations Declaration on the Rights of Indigenous Peoples and in August 2009 Australia was pleased to welcome the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous peoples to the State. In November 2009 Australia also welcomed the Special Rapporteur on the right to health.

According to Mr. Woolcott, the Council of Australian Governments had agreed to close the gap on Indigenous disadvantage. In support of this, the Council had set six specific targets, including: closing the gap in life expectancy, child mortality rates, access to early childhood education, children’s reading, writing and numeracy, year 12 attainment, and employment outcomes. In addition, in November 2009 the Australian Government agreed to support the Indigenous representative body known as the National Congress of Australia’s First Peoples, to address some of the Committee’s concerns voiced in 2005 regarding the importance of the representative participation of Indigenous peoples.

In preliminary concluding observations, Jose Francisco Cali Tzay, the Committee Expert who served as country Rapporteur for the report of Australia, said that for the next report the Committee would request a definition of multiculturalism, information on the status of refugees and an update on the situation of international students and the Aboriginal and Torres Strait Islander peoples. The Committee would also need statistics to help better understand the situation in Australia, and further information on the country’s reservation to Article 4 (a) and special measures.

Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, the preservation of Indigenous languages and bilingual education in schools, the treatment of refugees and asylum seekers, the collection of biometric data, the status of minority women, racial and ethnic profiling, the disproportionate number of Indigenous people in prisons, the Northern Territory Emergency Response and the reestablishment of the Racial Discrimination Act, the procedures for native land title claims, and the composition and methods of work for the National Congress of Australia’s First Peoples.

The delegation of Australia included representatives from a wide array of governmental organizations, including the Department of Families, Housing, Community Services and Indigenous Affairs, the Department of Immigration and Citizenship,, the Department of Foreign Affairs and Trade, the Attorney General’s Department, and the Permanent Mission of Australia to the United Nations Office at Geneva.

The Committee will present its written observations and recommendations on the fifteenth through seventeenth periodic reports of Australia, which were presented in one document, at the end of its session, which concludes on 27 August.

When the Committee reconvenes at 3 p.m. this afternoon it is scheduled to take up the combined seventeenth through nineteenth periodic reports of France (CERD/C/FRA/17-19).

Report of Australia

The combined fifteenth through seventeenth periodic reports of Australia, submitted in one document (CERD/C/AUS/15-17), says that while there is no specific prohibition against racial discrimination in the Australian Constitution, human rights are currently protected in Australia in a range of ways. These include through: strong democratic institutions; certain rights in the Constitution; the common law; and legislation, including anti-discrimination legislation at the Commonwealth, state and territory levels. Australia has implemented its obligations under the Convention on the Elimination of Racial Discrimination in Australian law through the Racial Discrimination Act of 1975.
The Commonwealth Government has set as a national priority closing the disadvantage gap between Indigenous and non-Indigenous Australians. To do this, the Government is directing its policies and programmes at a set of measurable and time-specific targets, namely: to close the life-expectancy gap between Indigenous people and other Australians within a generation; to halve the mortality gap between Indigenous children and other children under age five within a decade; to halve the gap in literacy and numeracy achievement between Indigenous students and other students within a decade; to halve the gap in employment outcomes for Indigenous people within a decade; to at least halve the gap in attainment by Indigenous students at Year 12 schooling (or equivalent level) by 2020; and to provide all Indigenous four year olds in remote communities with access to a quality preschool programme within five years.
The Northern Territory Emergency Response is a significant Australian Government initiative announced in June 2007, with bi-partisan support, in response to a report on the prevalence of child abuse in some Indigenous communities. The Northern Territory Emergency Response encompasses a range of measures focusing on community safety, health, housing and living conditions, welfare reform and restrictions on alcohol and pornography. To address these goal areas, the Australian Government is funding programmes in the areas of: welfare reform and employment; law and order; enhancing education; supporting families; improving child and family health; housing and land reform; and coordination. The Government is committed and working towards building a strong partnership with Indigenous Australians, based on respect, cooperation and mutual responsibility. It is consulting with Indigenous Australians from urban, regional and remote localities across a diverse range of issues, including that of establishing a national Indigenous representative body.

Presentation of Report

PETER WOOLCOTT, Permanent Representative of Australia to the United Nations Office at Geneva, presenting the report of Australia, reminded the Committee that a federal election would be held in Australia on 21 August and consistent with long standing practice, the Government had assumed a “caretaker” role. As every election brought with it the possibility of a change in government, it was very important to note that Australia’s future policies and priorities in relation to some of the matters before the Committee may depend on the outcome of the election. Consequently, the Australian delegation was limited to describing past positions under the caretaker conventions as it would be inappropriate to elaborate or speculate on how past or existing policy may be implemented or developed post election.

Mr. Woolcott then went on to acknowledge that Aboriginal and Torres Strait Islander Australians occupied a special place in Australian society as Australia’s first peoples. But it was clear that many Aboriginal people and Torres Strait Islanders suffered profound disadvantages when compared with the rest of Australian society. As a society, Australia needed to work harder to enable the realization of the human rights of Australia’s Indigenous peoples.

Mr. Woolcott said there had been a number of significant developments in Aboriginal and Torres Strait Islander affairs in Australia in recent years. In February 2008, the then Prime Minister delivered the National Apology to Australia’s Indigenous peoples, particularly, the Stolen Generation, for past government policies that resulted in profound grief, suffering and loss on the part of Indigenous Australians. In April 2009, Australia announced its support of the United Nations Declaration on the Rights of Indigenous Peoples and in August 2009 Australia was pleased to welcome the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous peoples to the State. In November 2009 Australia also welcomed the Special Rapporteur on the right to health.

According to Mr. Woolcott, the Council of Australian Governments had agreed to close the gap on Indigenous disadvantage. In support of this, the Council had set six specific targets, including: closing the gap in life expectancy, child mortality rates, access to early childhood education, children’s reading, writing and numeracy, year 12 attainment, and employment outcomes. In addition, in November 2009 the Australian Government agreed to support the Indigenous representative body known as the National Congress of Australia’s First Peoples, to address some of the Committee’s concerns voiced in 2005 regarding the importance of the representative participation of Indigenous peoples.

In April 2010 the Australian Government released “Australia’s Human Rights Framework”, which reaffirmed Australia’s commitment to the core United Nations human rights treaties to which Australia was party, including the Convention on the Elimination of Racial Discrimination. Separately, a range of other initiatives had been undertaken, particularly those relevant to Indigenous Australians and their encounters with the justice system. These measures included government funds for the delivery of high quality and culturally sensitive legal aid services for Indigenous Australians. In November 2009, a National Indigenous Law and Justice Framework was completed and it focused on measures to make Indigenous communities safer and to reduce the extent of incarceration of Indigenous Australians, particularly young people.

Mr. Woolcott then went on to address issues of native title. In 2009 parliament enacted targeted legislative reforms to the Native Title Act of 1993, which placed the Federal Court of Australia in the central role of proactively managing the resolution of native title claims. It also included measures to assist Indigenous and other stakeholders in achieving quicker and better native title claim settlements.

The inclusive and cohesive nature of Australia’s cultural, religious and linguistic diversity was promoted and celebrated each year on 21 March, Harmony Day, which was also the International Day for the Elimination of Racial Discrimination. Mr. Woolcott said that the continuing message that “Everyone Belongs” encouraged people to participate in their community, to respect cultural and religious diversity and to foster a sense of belonging for everyone. Since the first celebration of Harmony Day in 1990, thousands of schools, community groups and organizations across Australia had hosted Harmony Day events.

Mr. Woolcott told the Committee that Australia took its international obligations seriously and, consistent with the 1951 Convention relating to the Status of Refugees and its 1967 protocol, Australia was committed to providing protection to people found to be refugees. Australia was committed to providing protection to refugees. The Committee had expressed interest in the suspension of processing of all new asylum claims from Sri Lankan and Afghan nationals announced in April 2010, to be reviewed within three and six months respectively. The lifting of the suspension of processing claims from Sri Lankan asylum seekers was announced in July 2010, following an assessment of updated and detailed information on conditions in Sri Lanka. All Sri Lankan asylum seekers were now having their claims assessed on a case by case basis. The suspension of processing remained in effect for claims from Afghan nationals. Mr. Woolcott assured the Committee that the State was conscious of the need to ensure that people were treated fairly and not kept in detention any longer than necessary. All people in immigration detention would continue to be treated fairly, humanely and with dignity, and they would continue to have access to a range of health, recreational and educational services. Detention services and their delivery were subject to external scrutiny and the accountability framework which included the Australian parliament and a number of statutory authorities such as the Commonwealth Ombudsman, the Privacy Commissioner and the Australian Human Rights Commission.

Lastly, Mr, Woolcott turned to the special task force established in 2009 to deal with attacks on international students. The international student safety issue revealed deficiencies in the State’s education and visa arrangements for international students. To ensure that those who applied to study in Australia were genuine students and not workers open to exploitation, education and visa systems for international students had been reformed and the integrity of those systems strengthened. Mr. Woolcott said the Government had increased the amount of money that international students must prove they had to support themselves financially before they could obtain a student visa. They had also reformed the general skilled migration programme, which would largely remove the incentive for overseas students to apply for a particular course simply in the hope of being granted permanent residency. Education standards had also been strengthened to improve the quality of education institutions by tightening financial viability and student fee protection requirements.

Mr. Woolcott then invited other members of his delegation to speak on thematic issues pertaining to the periodic report. With regards to the Northern Territory Emergency Response, the delegation said that the legislation to reinstate the Racial Discrimination Act in relation to the Northern Territory Emergency Response and to redesign a number of Northern Territory Emergency Response measures was now law following extensive consultations and engagement with Aboriginal people and passage by parliament on 21 June 2010. The consultations gave participants an opportunity to tell the Government how the measures were working and what changes, if any, community members were seeking. This reinstatement would occur from 31 December 2010, allowing time for redesigned measures to be put into place and for an effective transition.

The delegation went on to say that land occupied an important place in the cultural, spiritual, social and economic lives of many Indigenous Australians. As such, the negotiation of leases with traditional owners provided formal recognition of Indigenous people as owners of the land, and made it clear who could use the land and who was responsible for looking after it. Ownership of leased land remained with Indigenous owners. Residents would not be removed from their land as the result of the granting of a lease.

The delegation then went on to describe how the State was addressing Indigenous family violence, which was a major focus of all Australian governments and they had agreed to national priorities in several areas including boosting efforts to reduce violence against Indigenous women and their children. They had also agreed to the development of the National Plan to Reduce Violence against Women and their Children. Though not yet finalized, the Australian Government had been working with the states and territories to identify priority areas for action. The delegation informed the Committee that the Government had recently announced the Indigenous Family Safety Agenda to fund Indigenous family safety community initiatives focused on the priority action areas including addressing alcohol abuse, more effective police protection, strengthening of social norms against violence and coordinating support services.

With regard to anti-discrimination legislation, the delegation noted that the Racial Discrimination Act of 1975 made it unlawful to discriminate against any person because of their race in areas of public life. The law also made offensive behaviour based on racial hatred unlawful. Under the Act, complaints of racial discrimination were made to the Australian Human Right Commission, which was required to seek to conciliate the outcome. Depending on what the complaint was about, conciliation could result in an apology or payment of damages. From 2008 to 2009, the Commission received 396 complaints under the Racial Discrimination Act of 1975, with eight per cent of those complaints made on the ground of racial hatred. From 2008 to 2009, the Commission successfully conciliated 55 per cent of the complaints finalized. If conciliation was unsuccessful, the matter could be taken to court.

The delegation said that in addition to legislation, Australia was strongly committed to preventing racial vilification and discrimination through human rights education. Education was the basis upon which a genuine and lasting respect for human rights and obligations was founded. In this regard, the Government had tasked the Commission with a human rights education role. Projects undertaken by the Commission in this regard included the “Geography of Racism Research Project” and the “African Communities Project”. At the request of the Government, the Commission was undertaking further work to tackle cyber racism and in April 2010 it convened a summit with the Internet Industry Association to discuss strategies to address Internet racism with key stakeholders. In the 2010 budget, the Government had committed 4.3 million AUD to enable the Commission to continue its work addressing social marginalization and alienation of vulnerable groups, such as international students.

The delegation said that a number of measures had been taken to address Indigenous justice and community safety. For example, in 2009, all Australian governments endorsed the National Indigenous Law and Justice Framework, an overarching approach to addressing the serious and complex issues that marked the interaction between Aboriginal and Torres Strait Islander peoples and the justice systems in Australia. Also in November 2009, the national government hosted a Roundtable on Indigenous Community Safety which focused on four main areas: community policing; alcohol reduction strategies; information sharing and integrated service delivery; and supporting victims of family violence. The federal government had also allocated additional ongoing funding of 154 million AUD into legal assistance services over four years. The delegation said the federal government was also responsible for the Family Violence Prevention Legal Services Programme, under which it funded 31 Indigenous-controlled community organizations to provide legal and other support to victims of family violence. Funding for this year was 19.5 million AUD. In relation to native title, a further 80 land title claims had been determined since Australia last appeared before the Committee, bringing the total of resolved title claims to 136.

With regard to Australia’s humanitarian programme, the delegation said Australia had a long history of humanitarian resettlement and it remained committed to its obligations to provide protection to people who required it. Since the end of World War II, nearly 750,000 people had been welcomed by Australia through its Humanitarian Programme. The Humanitarian Programme had two components: the onshore component offered protection to people who were found to be refugees in Australia and the offshore component offered resettlement to people outside of Australia who were in need of humanitarian assistance. Widespread changes were introduced in 2008 when the Government announced a suite of reforms to immigration detention policy. Under the Key Immigration Detention Values, immigration detention was used in three instances: people who were unauthorized arrivals; unlawful non-citizens who presented unacceptable risks to the community; and unlawful non-citizens who had repeatedly refused to comply with their visa conditions. Detention in immigration detention centres was used only as a last resort and indefinite or otherwise arbitrary detention was unacceptable and children were not detained in immigration detention centres. The delegation said it was also worth noting that the incidence of long term detention had been reduced; between March 2008 and April 2010, there was a 72 per cent reduction in the number of people detained for more than two years.

Regarding multicultural affairs, the delegation said that the Government operated a number of programmes that worked with the broader Australian community to provide social and economic opportunities, build understanding and acceptance of shared responsibilities, and enhance respect among all Australians. The department managed a number of key programs to sustain and enhance Australia’s social cohesion based in such understanding and respect, including: the Diversity and Social Cohesion Programme; Community Liaison Officers; and National Harmony Day.

The delegation informed the Committee that in recent years, the Australian Government had implemented a number of measures to further improve the wellbeing of Indigenous Australians and eliminate workplace discrimination generally. These positive, concrete steps to address racial discrimination in the workplace and strengthen the labour rights of migrants and asylum seekers included the new Fair Work Act of 2009, which expanded workplace protections to prohibit a range of adverse actions taken by employers, including dismissal. The law also extended the protections to include prospective employees, which meant that it was now unlawful for an employer to refuse to employ a person, or to prejudicially alter the position of an employee, on the basis of their race. Additionally, the Worker Protection Act, introduced in September 2009, sought to eliminate racial discrimination by ensuring migrant workers received the same wage entitlements as local workers.

According to the delegation, the Australian Government had also made progress in closing the gap in opportunities between Indigenous and non-Indigenous Australians. Specifically, the Government was committed to providing good access to quality education for Aboriginal and Torres Strait Island people. In addition, the Government was committed to Indigenous language education in Australian schools and recognized the important role Indigenous language learning played in schools and communities. These were just some examples of the many measures the Australian Government had taken in recent years to further address racial discrimination in the workplace and close the gap in opportunities between Indigenous and non-Indigenous Australians.

Lastly, the delegation informed the Committee that Australia was committed to improving the health outcomes of all Australians and aimed to deliver high quality healthcare across the geographically and culturally diverse population, regardless of race or social standing. To this end, Commonwealth programmes to improve health outcomes for Indigenous people had three objectives: to improve access to, and responsiveness of, the mainstream health system; to ensure the complementary action through Aboriginal and Torres Strait Islander specific health and substance use services; and to collaborate across governments and the health sector to improve service delivery and outcomes. Under a National Partnership Agreement, the Commonwealth government committed 805.5 million AUD over four years to tackle chronic disease among Indigenous Australians. Overall, investment by the Commonwealth government had increased by 33 per cent since 2007 to improve access to healthcare tailored to meet the needs of Aboriginal and Torres Strait Islander peoples.

Questions Raised by the Rapporteur and Experts

JOSE FRANCISCO CALI TZAY, the Committee Expert serving as country Rapporteur for the report of Australia, said he had looked at the information provided by the State party as well as civil society groups and non-governmental organizations. Mr. Cali Tzay also took into account the pre-electoral state of the country and he noted some specific details of the caretaker arrangements including the requirements that public officials have any public appearances pre-approved and they were to limit their public statements to factual points.

The Committee had looked at Australia three times in terms of its early warning procedure and appreciated the action the Government had taken regarding the last case the Committee had reviewed. Mr. Cali Tzay also noted that Australia had issued a standing invitation to the Special Procedures of the Human Rights Council and had ratified a number of international instruments and their optional protocols; however he drew attention to the fact that the State party had not ratified the optional protocol to the Convention on Economic, Social and Cultural Rights.

Mr. Cali Tzay asked the delegation to comment on the lack of integration in the educational curriculum of human rights information and he said he was concerned by Australia’s resistance to the ratification of the International Labour Organization Convention 169.

Mr. Cali Tzay welcomed the reestablishment of the Racial Discrimination Act, but he was concerned that the Northern Territory Emergency Response laws were still being applied for the Northern Territories and he requested more information on how this law was being applied.

The Rapporteur applauded measures taken by the Australian State to apologize to the stolen generation, but he was a concerned that in order for victims to obtain reparations, they had to go though a complicated and embarrassing procedure. Would it be possible to streamline this process and make it easier?

With regard to the National Congress of Australia’s First Peoples, Mr. Cali Tzay asked how autonomous this body was and how much power it had. The Rapporteur said he would ask additional questions about the native title act.

Mr. Cali Tzay applauded the Government’s attempts to improve the health of Indigenous people. He also requested more information on the status of Indigenous children in Australia. The Special Rapporteur for Indigenous peoples had raised a number of concerns regarding consultations with Indigenous communities and the return of title to their land and Mr. Cali Tzay asked for further information on reforms meant to have positive affects on these issues. How difficult was the process of obtaining land title, what documents had to be provided and was the burden of proof on Aboriginal peoples. How could they prove they were the original owners of the land? Shouldn’t the burden of proof be on the Government?

Were there proposals for reform of the Australian Human Rights Commission? In terms of the National Human Rights Consultation process, what state was this consultation in now?

How was the information from this Committee disseminated to the public and was civil society involved in the preparation of this report as well as the participation of Indigenous peoples?

Mr. Cali Tzay asked the delegation why Australia maintained its reservation to Article 4 pertaining to the characterization of discrimination as illegal. Was there lawful versus unlawful discrimination?

With regards to the Internet, there was a telephone line and website available to the general public regarding the dangers of the Internet, including racist information. This was commendable, but Mr. Cali Tzay asked why the measure was taken; was it out of fear that racist speech was being spread online?

The Rapporteur said he was still concerned by the lack of disaggregated data on the demographic makeup of the population and wanted more information on special measures that could be taken by the Government.

In the area of immigration, many laudable changes had been made, however Mr. Cali Tzay was concerned about the period of detention and children in detention centres. The report referred to Australia’s open door policy in terms of immigrants and in this light the delegation was asked to share its definition of multiculturalism and it was also asked about attacks on international students.

The floor was then opened to other Committee members and the first speaker asked about the representation of Aboriginal peoples in the Australian prison system. The figures were worrisome and it was something that needed to be addressed. Could the delegation comment on what was being done to address this problem and why were the incarceration rates rising for this population?

Another Committee Member asked how many victims of the stolen generation had received reparations or compensation. There was also no solid guarantee for non-discrimination in any of the states of Australia so what guarantees were in place that legislation adopted by the federal government would be implemented? Why not have an overarching federal law that would impose uniform measures and what state body was responsible for overseeing these laws? Where did the Convention fit into the system of federal and state laws as well as the laws of the autonomous territories? The delegation had talked about multiculturalism and a multicultural policy. Was there a difference between the two? How could one assure the participation of various groups in the cultural life of the State? Referring to the Durban document, which clearly stated that Indigenous peoples should not be subject to any discrimination, the Committee Expert asked whether renewable land leases deprived Indigenous peoples of the use of their lands. The Committee Expert said that the State should also pay more attention to the activities of businesses abroad which could deprive people of their rights with regard to pollution and other activities. The Committee Expert also suggested Australia review its reservation to Article 4.

A Committee Expert commented that a treaty with Indigenous peoples might be a good idea in light of the fact that there was never one drawn up and it could help to ensure the rights of Indigenous peoples. With regard to native title, it was important to seek creative and participatory ways to address this issue and the Committee Expert went on to say that language retrieval for Indigenous peoples was an important aspect in maintaining the cultural life of a community and there was a great deal on international best practices on how to do that. The Committee Member also asked about the new national curriculum that was being drafted and how Indigenous peoples would be portrayed in the curriculum and what their involvement was in drafting the new curriculum. The Expert also suggested a move from viewing Indigenous peoples through a social problem paradigm to a rights based approach. Lastly, the Committee Expert said the reinstatement of the Racial Discrimination Act of 1975 would still not deal with the discrimination engendered by the National Territory Emergency Response, a law which came later.

The next Committee Expert asked for statistics on racially motivated violence in Australian to see if there was an increase or decrease in such violence over time and whether current measures and legislation were sufficient in combating such violence. The Committee Member also wanted to know what the mechanism was to translate Australia’s international obligations into federal obligations. What did the national curriculum entail to promote human rights and combat racism, and how would the revision of history books be approached? Turning to anti-terrorism measures, how did authorities ensure these measures did not lead to racial and ethnic profiling and stigmatization of certain minority groups in the country?

Regarding asylum seekers, an Expert asked if there was a distinction between people who arrived by boat versus other means and if so were they intercepted at sea. Was Christmas Island considered part of Australian territory? The Expert also noted that there was talk of having Timor be used as a place to process asylum seekers and the Expert asked for any clarification the delegation could provide on this matter.

Another Expert asked what mechanisms were in place to award collective land rights and what was the quality of the land that was awarded? Turning to the justice system, young Indigenous people were 21 times more likely to end up in jail than non-Indigenous peoples. Were there separate Indigenous jurisdictions?

The next Committee member focused their intervention on racially motivated attacks against international students. According to media reports, Australian police did not maintain records of racially motivated violence but Indian international students were 2.5 times more likely to be attacked than non-international students. The attacks took the forms of stabbings, beatings and setting victims on fire. The Australian Government had a responsibility to prevent these actions, but because of reservations to Article 4 there was no specific legislation criminalizing racially motivated acts of violence. The absence of records by police was also a problem. What was being done to address these issues? Were states being urged to adopt laws to criminalize racially motivated acts of violence, or was this prohibited by the State’s reservation to Article 4?

Another Committee member asked why Australia felt it didn’t need a bill of rights to accompany its constitution. This followed by a question on the number of people who died in police custody, over 1200 people. Regarding the prison population, the Expert said the figures could be very misleading because they only indicated the percentage of the prison population that was Indigenous, they didn’t give a clear indication of what percentage of the Indigenous population was imprisoned, which would give a clearer indication of the gravity of the situation.

Another Committee Member asked for an update on measures taken to eliminate discrimination against Muslims after 9/11 and the delegation was also asked for clarification on the National Congress of Australia’s First Peoples. Was it a legislative body? Was it only made up of Indigenous peoples? What was its role and functions? How did it interact with the Government?

A representative from the Australian Human Rights Commission then made an intervention, and began by applauding the Government’s positive achievements addressing racial inequality and discrimination. What percentage of the budget was devoted to fostering a rights based approach to ending racial discrimination, as opposed to broader government policy agendas? Second, two shadow reports had identified a strong need for a domestic implementation mechanism for the Convention on the Elimination of Racial Discrimination. Third, in 2009 there was a national human rights consultation held and there was strong support for an enshrined bill of rights to further protect laws. Also human rights education deserved greater attention and investment, as the human rights framework was just a first step.

Despite welcomed reforms under Australia’s Native Title Act, the claims process continued to be complex, highly adversarial, costly and inefficient. The representative asked how the Australian Government planned to deliver land justice to Aboriginal communities, meaning the economic, social and cultural empowerment of Indigenous peoples through the native land title system. The development of the National Congress of Australia’s First peoples was welcomed, but it did not constitute, nor should it substitute, for broader community participation.

The representative went on to say that languages were critically endangered in Australia and dying out rapidly. Today, there were 100 languages, most in varying stages of extinction and there were only 18 Indigenous languages currently spoken by all people in all age groups. Without intervention, Indigenous language usage would cease in 10 to 30 years.

Over the last 18 months, the Commission had done work on the safety and well being of international students, who told the Commission that student safety was a symptom of other issues including racism and discrimination, lack of accessible and affordable accommodation, poor employment conditions, transport costs, lack of student support services, variable quality of education, and social isolation and exclusion.

From 2007 to 2010, the Commission conducted national community consultations for African Australian communities, the newest migrant group. Key issues included the need for improved understanding of child protection and family law in Australia, the over-policing of young men, and pervasive employment discrimination. During the last four years, Commission members had also made nearly two dozen visits to Australian Immigration Detention Centres, where they had observed isolation, despair and deterioration of mental health in those who had made the heartbreaking decision to leave their home countries. Progress had occurred, but new detention values were policy, not law. People were mandatorily detained in isolated, remote locations, people who arrived by boat had reduced rights, and children and families were still detained, although under less security.

Response by Delegation

Addressing concerns expressed regarding the regulation of activities of Australian companies overseas, the delegation said that Australia had appropriate legislative and administrative measures in place to regulate the extra-territorial activities of Australian companies operating overseas. Australian corporations overseas remained subject to a number of Australian laws relating to corporate behaviour and certain criminal law, particularly in relation to corruption. Australian companies were also bound by the laws of the jurisdiction in which they operated, including those relating to racial discrimination. The Department of Foreign Affairs and Trade also conducted outreach to Australian industries on the theme of “trading with integrity” to highlight those Australian laws that did continue to apply to Australians and Australian companies trading or investing overseas, and to promote awareness of the international best practices guidelines.

In terms of the involvement of civil society in the preparation of this report, the delegation said that the report was prepared by the Government in consultation with the Australian Human Rights Commission. The report was also released for public comment and a number of submissions were received from civil society, which assisted in the preparation of the final report and the delegations appearance before this Committee.

Regarding the application of the Northern Territory Emergency Response legislation and the reinstatement of the Racial Discrimination Act, the delegation said the amending legislation completely repealed all provisions contained in the Northern Territory Emergency Response legislation that excluded the operation of the Racial Discrimination Act and those that deemed the measures to be special measures. Starting on 31 December 2010 people had the right to bring proceedings to challenge their treatment under the legislation or the legislation itself. In terms of what constituted a special measure, it must result in a benefit to some or all of a class of people based on race, colour, descent, or origin; the measure was for the sole purpose of improving the situation of beneficiaries; and the measure must end as soon a situation achieved its aim. It was the Government’s view that the special measures that were still in place were consistent with this definition of special measures.

The positive effects of the Northern Territory Emergency Response included drawing attention to the poor level of infrastructure in Northern Territory communities and had increased funding to these areas. More than 60 additional police had been deployed, 5 police stations had been upgraded, a mobile child protection team had been established, 18 temporary police stations had been added, and a substance abuse intelligence desk had been established in Catherine. The positive role of policing was demonstrated in a study released earlier this year. Additional health services had also been provided, including dental and audiology services as well as ear, nose and throat services. Approximately 140 additional teachers had been funded in schools and the school nutrition program provided meals to thousands of students everyday. A consultation involving residents of the Northern Territory Emergency Response communities showed that many people thought that the income management programme had resulted in less money being spent by families on alcohol, cigarettes and drugs and more money being spent on children and household items. In terms of the Basic Card, they could be used to pay for a number of things at a number of outlets including food, non-alcoholic beverages, clothing, childcare, car maintenance and other items. The Basics Card was accepted at more than 4,300 merchants nationally.

The negative aspects of the Northern Territory Emergency Response included members of Northern Territory communities feeling hurt, humiliated and confused by how the law was initially implemented. They also felt that different standards were applied to them versus other Australians, and that some measures were not working as well as they could such as the Basics Card not working well and alcohol restrictions applied as blanket restrictions, rather than being decided on a case by case basis. The changes the Government made to address these problems included reinstating the Racial Discrimination Act, making the income management programme non-discriminatory, and changing alcohol restrictions so that they were more flexible and had more community decision-making involvement.

Turning to questions related to closing the gap between Indigenous peoples and non-Indigenous communities, the delegation noted that the Government recognized that strategies would not work in isolation and had to be part of an integrated approach. This included over 1.6 billion AUD to expand primary healthcare and tackle chronic disease, almost 5.5 billion AUD to address housing conditions and shortages in remote Indigenous communities, 291 million AUD to improve delivery and access to services, 564 million AUD to address early childhood development, and 228 million AUD to assist Aboriginal and Torres Strait Islander peoples into employment. Regarding childhood poverty in the remote Northern Territory, the delegation pointed out that a family with two non-working parents and two young children would receive monies under the social welfare system totalling 32,000 AUD per year. The real issue is the child protection system which faced enormous challenges in the Northern Territory because it was a huge land mass with dispersed residents. There was an inquiry into the system and a report was anticipated later this year.

In relation to the numerous questions asked by Committee Members about the native land title system in Australia, the delegation explained that there was a fundamental difference between land rights and native title. Land rights were legislated by the government or state or territory governments, and usually comprised a grant or freehold or perpetual lease title to Indigenous Australians. In contrast, the delegation explained that native title arose as a result of the recognition under Australian common law, of Indigenous rights and interests according to traditional Indigenous laws and customs. It was not a grant or right created by the governments. Five year leases did not affect the underlying title to the land; traditional owners still owned the land, but the leases allowed the Government to access the land and perform upkeep and develop infrastructure. People who had access to the land before the leases could continue to use the land. In relation to compensation, the Northern Territory valuator general determined a reasonable amount of rent to be paid to the owners of the land and the government paid those rents

The delegation then moved on to discuss Indigenous languages. It was noted that there was a national Indigenous language policy, which included the maintenance of an indigenous records programme and money budgeted to maintain indigenous languages.

Regarding the implementation of the Convention on the Elimination of Racial Discrimination in Australia, the delegation said Australia’s compliance with international obligations was ensured not only through prohibitions under laws in all jurisdictions, but also through an interrelated system of parliamentary, judicial and administrative structures, laws and institutions. Treaties in Australia were not self-executing and required legislative implementation to be effective in Australian law. Before Australia signed, ratified or otherwise became bound by a treaty, the Government satisfied itself that any domestic legislation necessary to implement the treaty were in place. The Australian Human Rights Commission played a vital role in holding the government of the day accountable to its human rights obligations. Other institutions that played a role in protecting and promoting human rights in Australia included the Commonwealth Ombudsman, the Australian Law Reform Commission and, where appropriate, Royal Commissions.

The delegation said that regarding the lack of a bill of rights, the Government made the decision that rather than developing a legislative charter, the framework for human rights was focused on ensuring people understood their human rights and responsibilities and that laws were developed, drafted and considered by parliament with a particular focus on ensuring laws were consistent with Australia’s international human rights obligations. In terms of Australia’s continued reservation to Article 4(a), the delegation said that the approach of successive governments had been that existing federal and state territory legislative framework, combined with educative measures, had been the best way to deal with racial discrimination and vilification. All states and territories, with the exception of the Northern Territory, had enacted legislation that prohibited racial discrimination and, in most cases, had criminal provisions against racial hatred.

Committee Experts had raised a number of questions about racism in the justice system. The rate of imprisonment for Indigenous prisoners was 14 times higher than the rate for non-Indigenous prisoners as of 30 June 2009. In 2000, the Indigenous rate of incarceration was 9.6 per cent and Indigenous peoples represented one quarter of the prison population. The State had undertaken measures to reduce the over-representation of Indigenous peoples in the criminal justice system through a National Indigenous Law and Justice Framework, by focusing on community safety and reducing alcohol and substance abuse-related crime. There was not a separate Indigenous jurisdiction, although Indigenous sentencing courts currently operated, or were being tried, in all state and territory jurisdictions except Tasmania. In the Northern Territory, access to the community court was not limited to Indigenous Australians; nonetheless the majority of its clientele were Indigenous.

In terms of fostering multiculturalism, the delegation said the State provided English language training for migrants and interpretation services for non-English speakers. The Access and Equity Strategy also encouraged and supported all federal agencies to respond to the cultural, linguistic and religious diversity of the Australian population in the design and delivery of policies and programs. The State had also undertaken several measures specifically to combat racial discrimination against Arabs and Muslims in the aftermath of September 11th. This included the Diversity and Social Cohesion Programme, which developed projects to address cultural, racial, and religious intolerance by promoting respect, fairness and a sense of belonging for everyone.

The delegation also addressed issues concerning Australia’s detention policies. Children were not placed in Immigration Detention Centres, but where necessary were accommodated in low-security alternative places of detention within the immigration detention framework, such as residential housing and immigration transit accommodation. Regarding asylum seekers, the delegation said that Australia would not refoule a refugee regardless of the method of arrival in Australia. People who arrived lawfully and claimed asylum were processed under the onshore protection visa process. These applicants generally remained in the community while their claims were assessed. Applicants who arrived at an excised offshore place, such as irregular maritime arrivals, were unable to submit a protection visa application unless the Minister for Immigration and Citizenship allowed them to apply for a protection visa. Generally speaking, irregular maritime arrivals remained in immigration detention while their applications were processed to conduct health, identity and security checks. This ensured that any potential risks to the Australian community were managed.

A Committee Expert had asked whether Christmas Island was part of Australia, and the delegation said it was and that Australian laws applied there, including international obligations. Under the Migration Act, Christmas Island was an “excised offshore place”, which meant that non-citizens who first entered Australia there without a valid visa were unable to make a valid visa application unless the Minister for Immigration and Citizenship permitted the person to make a valid visa application. There was litigation currently before the High Court of Australia, due to be heard on 24 and 25 August 2010, concerning the assessment of asylum claims made by persons who entered Australia at Christmas Island. People smuggling and irregular migration in the Asia-Pacific region were enduring challenges that required a regional response. The establishment of a processing centre in the region was one element of a broader, sustainable regional protection framework that the current Australian Government sought to develop.

The delegation said that it had not ratified the International Labour Organization Convention 169 because the ratification process was quite complex and they had to ensure that all state and federal laws were in compliance with the Convention before ratification could be considered. Due to the caretaker restrictions, the delegation could not say where this legislation would fall on the list of priorities for the incoming government, but the subject of prioritisation of Conventions would certainly be on the agenda at the next meeting of the Workplace Relations Ministers Council, which handled the matters relevant to ratifications of ILO Conventions.

The Australian curriculum was being developed by an authority responsible for this area using the Melbourne Declaration on the Education of Young Australians as the framework for reform. The aim of the curriculum overhaul was the development of successful learners and active and informed citizens, with an appreciation for multiculturalism and the contributions of different groups to Australia. This would include information on the culture and history of Aboriginal and Torres Strait Islander Australians. Human rights education was also embedded in the curriculum. Significant funding was provided for bilingual education and to support Indigenous language programmes.

Lastly, the delegation said Australian law enforcement authorities did not routinely collect data on victims’ nationality, ethnicity or immigration status, but it was clear from reports where the victims had been identified as international students that the vast majority of incidents involved robbery or had other non-racial motivations. The Australian Institute of Criminology has now been tasked to address the question of whether international students are subject to higher rates of victimisation. Australian political leaders at all levels had publicly condemned attacks on international students and had pledged to work together to bring perpetrators to justice, protect students and others in the community and promote tolerance.

Further Questions Posed by Experts

JOSE FRANCISCO CALI TZAY, the Committee Expert serving as country Rapporteur for the report of Australia, asked whether bilingual education was English for Indigenous peoples, or an Indigenous language and English for all students. What was the status of children who were born to immigrants on Christmas Island, and could they play unaccompanied by police officers? Could the delegation also provide more information on the social inclusion agenda, such as resources allocated and strategies to ensure inclusion occurred in practice?

Another Expert commented that it was surprising that sending more police into a community and opening more police stations was a positive development. It was also noted that teaching Indigenous people or newly arrived immigrants to speak English was not multiculturalism.

Another Expert then asked if Australia accepted the “testing system” in noting racial discrimination in access to housing, employment and public spaces and was it frequently used? Was it true that Australia was collecting biometric data in airports to determine the origin of passengers? If so, what useful information was being obtained and used and what measures were taken to protect rights to privacy?

The next Expert to speak asked the delegation about ethnic profiling and stigmatization of certain groups. There were rules and regulations in place to avoid this, but of course the rules and the application of the rules on the ground were two different things. What preventive measures were taken at the policy level to make sure this profiling did not happen? Were people from certain groups singled out to provide biometric data or did the media routinely identify perpetrators of crime by their ethnic backgrounds?

A Committee Member said it would be helpful in the next report to have more information on the forms and methods that consultations with Indigenous communities took.

Another Committee Expert said that throughout the report, an element that had not been mentioned was education as a whole. Were Indigenous children integrated in the schools and did they learn general education topics such as math and science?

The last Committee Expert to speak commented that they would have liked to discuss steps for the future, but the caretaker conventions prevented such discussion. What measures were taken to mitigate the double burden that Muslim and Indigenous women faced in terms of both gender and racial discrimination?

Replies by Delegation

Responding to those questions and others, the delegation said that Indigenous languages were taught to both Indigenous and non-Indigenous students in some schools. There were also approaches to support Indigenous peoples reconnecting to their languages.

Regarding children on Christmas Island, a detention services provider was contracted to provide services in detention centres so they would be the ones escorting children, not police officers. The delegation said without more details of the specific cases referred to by the Committee member it was difficult to give a more fulsome answer.

The delegation said a broad approach had been adopted for social inclusion, including the establishment of a Social Inclusion Board and a Social Inclusion Framework. Some of the key focuses of this social inclusion agenda included closing the gap in social outcomes between Indigenous and non-Indigenous peoples, ensuring people could fully participate in Australian society, and ensuring disadvantage was not exacerbated by geographic location .

The delegation said that with regard to multiculturalism, the emphasis on English was an important one because the ability to speak English was vital to finding employment and employment was a major reason people moved to Australia. Nevertheless, the Government also sought to preserve peoples’ culture and languages through a variety of measures including public television and radio.

The presence of police helped ensure freedom from violence for families, according to the delegation and this was an important aspect of improving life for Indigenous communities. There were also benefits from restricting alcohol, including less violence and disruption in communities. Women especially supported the continued restriction of alcohol and the national consultation showed that there was support for the continuation of the restrictions.. The consultation process also showed that there was an expectation that people would have access to the types of services available elsewhere, including availability of police to protect and assist communities. Police needed to be appropriately trained in culturally sensitive practices and there needed to be a strong and close relationship between the police and the community and that was an ongoing piece of work.

Regarding complaints of racial discrimination, the key point the delegation wanted to make was that under the human rights framework the current Government was committed to consolidating anti-discrimination laws and this included looking at the complaints process to make improvements so the issue of the burden of proof would be considered under that review.

In terms of the application of the national security laws, the delegation said there was no particular bias toward any ethnic or racial communities. However, there was a mechanism in place to raise concerns about the application of national security laws, which may include concerns about possible racial profiling. Turning to the collection of biometric data, the delegation said it was considered an important tool in the management of identity crimes and the Government believed it would improve integrity of visa application process. The Government also met its privacy obligations in a number of ways, including sanctions against the mishandling of data. All people who launched paper based visa applications in selected countries, regardless of country of origin, would be required to have their picture and fingerprints taken.

The delegation was informed that the questions they were unable to answer in the time allotted could be answered in writing.

Preliminary Concluding Observations

In preliminary concluding observations, JOSE FRANCISCO CALI TZAY, the Committee Expert who served as country Rapporteur for the report of Australia, thanked the delegation for its openness and dialogue with the Committee and the participation of civil society groups. Mr. Cali Tzay said that for the next report the Committee would request a definition of multiculturalism, information on the status of refugees, the situation of international students and the Aboriginal and Torres Strait Islander peoples. The Committee would also need statistics to help better understand the situation in Australia, and further information on the country’s reservation to Article 4 (a), and special measures.

In concluding remarks, PETER WOOLCOTT, Permanent Representative of Australia to the United Nations Office at Geneva, thanked the Committee for the high level interaction and said Australia was committed to upholding its human rights obligations. Mr. Woolcott said the delegation looked forward to receiving the concluding observations in a few weeks and continued close interaction with this Committee.

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