Committee on the Elimination of Racial Discrimination discusses anti-discrimination efforts in Australia and Belarus with civil society

GENEVA (27 November 2017) - The Committee on the Elimination of Racial Discrimination this morning held an informal meeting with civil society representatives from Australia and Belarus, whose reports will be considered this week.  The report of Slovakia will also be reviewed this week but there were no non-governmental organizations present from that country.

In her opening remarks, Anastasia Crickley, Committee Chairperson, welcomed civil society representatives from Australia and Belarus.

During the discussion, representatives of first nations from Australia noted the Government of Australia’s manufacturing of “consent” for its use of First Nations’ resources and their lands, the ongoing denial of the existence of Aboriginal peoples as nations of peoples as an act of racial supremacy, forcible removal of hundreds of thousands of Aboriginal peoples’ children from their families and lands, vulnerability of Aboriginal women to violence, and destruction of Aboriginal lands through massive industrial projects.  Other civil society representatives from Australia drew attention to the lack of a human rights charter in Australia, removal of pathways to Australian citizenship for migrants, and the imposition of a deliberately cruel regime to ensure that any person seeking asylum by boat would never be resettled in Australia.

Civil society representatives from Belarus drew attention to the lack of effective legal control to ensure equality and protection against discrimination, lack of clear criteria for the definition of extremism, failure to create an independent national human rights body in accordance with the Paris Principles, exclusion of ethnic and religious minorities from decision-making related to their socio-economic wellbeing, lack of specially designed centres for foreign citizens and stateless persons, lack of religious freedom, the vulnerable situation of the Roma community, most notably in the labour market, and widespread ethnic profiling of the Roma population by law enforcement forces.

Speaking in the discussion on Australia were Mary Graham, member of the Kombu-merri Yugambeh First Nation, Irene Watson, member of the Tanganekald, Meintangk and Boandik Nations, Trudie Broderick, member of the Birri Gubba First Nation, Lesley Clements, member of the Quandamooka and Wakka Wakka First Nations, Foundation for Aboriginal and Islander Research, National Congress of Australia’s First Peoples, National Aboriginal and Torres Strait Islander Legal Services, Aboriginal Family Law Services, Earth Justice, Human Rights Law Centre, and Federation of Ethnic Communities Council of Australia.  Speaking on Belarus were Coalition of Belarusian Non-Governmental Organizations, Belarusian Helsinki Committee, and ADC Memorial.

The Committee will next meet in public this afternoon at 3 p.m. to begin its consideration of the combined eighteenth to twentieth periodic reports of Australia (CERD/C/AUS/18-20). 

Opening Statement

ANASTASIA CRICKLEY, Committee Chairperson, welcomed representatives of civil society from Australia and Belarus. 

Statements by Aboriginal Peoples’ Representatives from Australia

Mary Graham, member of the Kombu-merri Yugambeh First Nation, noted that any measures such as the Australian Government’s attempt to domesticate her people as objects in international law was racially discriminatory.   She expressed concern that the ongoing exclusion of indigenous peoples as sovereign subjects of international law was based upon racist ideologies, enabled by the ongoing de iure power held by States to determine and construct whom and what were “proper” sovereign subjects of international law.  The colonial history of Australia and its presumed authority over Aboriginal lands was a history of no or little consultation with First Nations over the future of the relationships they had with their ancestral lands.  She requested that the Committee ensure that the Australian State took positive action to ensure First Nations’ free exercise of their inherent right to self-determination and that Australia met its obligation to sit with the real representatives of First Nations.  She furthermore requested that the Committee ask Australia to stop its processes of manufacturing “consent” for its use of First Nations’ resources and their lands. 

Irene Watson, member of the Tanganekald, Meintangk and Boandik Nations, noted that her people were Aboriginal peoples and nations as understood within international jurisprudence.  Aboriginal Australia was evidence of the earliest known international relations and lawful observance of those relations, evidence of the density of international relations was in the numerous Aboriginal languages which belonged to Aboriginal Australia.  The ongoing denial of their existence as nations of peoples at the time of colonization was ongoing and it constituted acts of racial supremacy.  The Australian State had consistently imposed its laws, policies and procedures on Aboriginal nations and lands based on the false and racist premise that their inherent rights to their lands and natural world were subservient to the Australian Crown’s “presumed underlying title” to Aboriginal lands and natural world.  What authorized the efforts of the British Empire to dispossess Aboriginal ancient lands and connections to them?  Ms. Watson asked the Committee to acknowledge the standing sovereign position of the Aboriginal peoples of Australia, whose lands had been unlawfully entered, stolen and governed without their consent. 

Trudie Broderick, member of the Birri Gubba First Nations, stated that Australia’s actions and inactions were a violation of the International Convention on the Elimination of All Forms of Racial Discrimination.  Racial discrimination was experienced across Aboriginal Australia by First Nations Peoples and had been so since the Australian State’s colonial policies derived from terra nullis impacted Aboriginal lands.  The removal of First Nations children from their families and communities had been a programme designed by the State to rid the land of its peoples and it was based on a legal framework invoking “theories of racial superiority”, part of a civilizing project to forcibly remove hundreds of thousands of Aboriginal Peoples’ children from their lands.  They continued to be removed at ten times the rate of non-Aboriginal children from homes and families into State child welfare systems.  It was evil that a State such as Australia continued to engage in destructive conduct against Aboriginal peoples and that there was no international body to examine that issue.  There was no end in sight to the removal of Aboriginal children and yet another inquiry like all others in the past would continue the pretense in Australian society and in the international community that the State had redressed and accepted accountability for the stolen generations. 
 
Lesley Clements, member of the Quandamooka and Wakka Wakka First Nations, reminded that the removal of Aboriginal children from their families and communities continued nowadays, as noted in the Don Dale Report.   Since 2014, despite opposition by all Aboriginal and Torres Strait Islander children’s organizations and communities, the Australian governments in each State and territory had passed legislation which mandated short time frames before children in out-of-home care were permanently removed from their families.  Many children placed in long and short-term care in Australia were vulnerable to physical and sexual abuse, bullying, and a failure to look to basic needs such as education, medical care, nutrition, cultural and emotional connections.  As a concept, the “best interests of the child” was a colonialist value-based judgment.  That was a continuation of destruction against First Nations based upon racist values and concepts maintained by the colonizer.  On 30 June 2016 Aboriginal and Torres Strait Islander children represented 36.3 per cent of all children in statutory out-of-home care, and they were 9.8 times more likely to be residing there than non-indigenous children.

Foundation for Aboriginal and Islander Research reminded that Australia had no treaty or law to protect the rights of indigenous peoples.  Indigenous peoples urged that the escalating racism be addressed, as well as Australia’s disregard for the recommendations from the Universal Periodic Review.  They also drew attention to the fact that there was no human rights charter in Australia.  The Government needed to strengthen the existing human rights institutions and community-based legal services, and to address the limited engagement of civil society in indigenous issues.  There was a misunderstanding of special measures and racist laws.   The exercise of self-determination should be recognized.  Indigenous land rights should be protected in non-discriminatory laws and consistent land titles in indigenous territories should be adopted.  Finally, there should be a mechanism for resolving disputes of indigenous peoples. 

National Congress of Australia’s First Peoples stated that evidence of systemic and institutional racism and discrimination against Aboriginal and Torres Strait Islander people in Australia was increasingly being disclosed and was set to escalate.  Those discriminatory practices and trends had to be stopped to change the tide of harmful effects on the lives and futures of indigenous communities, families and individuals.  The organization asked the Committee to recommend to the Australian Parliament to enter into a genuine partnership with Aboriginal and Torres Strait Islander peoples to develop nation-wide educational programmes to eliminate racism and discrimination in systems and institutions, and to develop an action plan to implement the United Nations Declaration on the Rights of Indigenous Peoples within the next 12 months.  The Australian Government’s recent rejection of the Referendum Council’s recommendations to progress to a referendum to reform the Constitution had further lessened Aboriginal and Torres Strait Islander peoples’ hopes for equality and rightful recognition of their rights and freedoms.  

National Aboriginal and Torres Strait Islander Legal Services highlighted the high rate of incarceration of Aboriginal peoples in Australia, noting that the problem had been largely ignored.  Many laws and policies, including racial profiling and lack of community-based penalty options, affected adversely indigenous Australian peoples.  Indifference to the underlying factors causing disadvantage impeded access to justice.  The organization requested the Committee to urge the Australian Government to ensure suitable legal reforms.  The accountability of State and territory governments in Australia was needed to address the high incarceration rate among indigenous Australians, including the involvement of indigenous representatives in that process. 

Aboriginal Family Law Services drew attention the vulnerability of Aboriginal women to violence, noting the problem of underreporting.  Many women did not report due to the fact that the justice system was tainted and discriminatory.  Legal services were limited in their services for Aboriginal women.  Australia should develop a specific Aboriginal plan of action to address punitive policing and violence towards Aboriginal women and girls.  The permanency policy severed the ties of Aboriginal children to their families and lands.  Children in remote areas had been taken far away from their families and had been abused.  The Australian Government should set up national targets to reduce the overrepresentation of Aboriginal children in State care institutions. 

Earth Justice drew attention to the destruction of Aboriginal lands through massive industrial projects.  Those projects would permanently destroy vast amounts of ancestral lands, including water.  Australia had to ensure that indigenous peoples were consulted in good faith in such development projects, which had been lacking.  There was no protection of ancestral homeland and no guarantee of equality before land.  Indigenous peoples in general provided a very important contribution to the management of land and protection against climate change.

Questions by Experts

VERENE ALBERTHA SHEPHERD, Committee Expert and Country Rapporteur for Australia, inquired about the involvement of non-governmental organizations in the preparation of the State party’s report.  What was the role of the Prime Minister’s indigenous peoples’ advisor?

What was the most important question that the Committee should put to the Australian Government regarding land titles?

Experts also asked about the socio-economic indicators for Aboriginal peoples and about closing of the gap.  How had civil society representatives participated in that process and in the drawing up of the national health plan for Aboriginal peoples in Australia?  What were the funding cuts for the Indigenous Advancement Strategy?

What was the legal status of the United Nations Declaration on the Rights of Indigenous Peoples?  What were the practices on the right to prior consultation and were they enforced?  What was the status of the political dialogue of indigenous peoples and the Government of Australia?  Was the dialogue regular? 

What data was available about indigenous land ownership?  Was there imprisonment for ordinary unpaid civil debts?  What was the situation of indigenous children detained in prisons?

Replies by Aboriginal Peoples’ Representatives from Australia

National Aboriginal and Torres Strait Islander Legal Services said that people were mostly affected by the debts from the Government.  The overall debt situation negatively affected trust in the justice system.

Foundation for Aboriginal and Islander Research explained that the constitutional reform should contain a specific provision to prevent racial discrimination, which the Government had not supported despite high public support for it.  The Indigenous Advisory Committee was not indigenous because it consisted of indigenous and non-indigenous members; it was the Government chosen way of consultation.  Free and prior consent applied in certain situations, such as protection of indigenous cultural heritage, but it was not a final word.  The Native Title Act had significantly weakened negotiations with indigenous people.  When it came to native titles, the onus of proof needed to be reversed in the favour of indigenous peoples. 

National Congress of Australia’s First Peoples stated it had sat with the Australian Prime Minister and had agreed to pursue services to ensure correct targets for indigenous peoples, and that they were achieved and monitored. 

Mary Graham clarified that the age of criminal responsibility of minors had been increased from 10 to 12 years.  But it should be higher according to international standards.  As for closing the gap strategy, it contained plans to address violence against indigenous women and the high incarceration rate, but targets were not on track.

Irene Watson explained that the United Nations Declaration on the Rights of Indigenous Peoples was mostly a rhetorical instrument taken up by the Australian Government.  There were no mechanisms and processes aligned with the Declaration that could take effect in any meaningful way.  Much was left to be desired.  Practices adopted in relation to free and prior consent demonstrated great weaknesses such as caring for the land.  Aboriginal heritage legislation had some references to that.  It was a very weak process that was open to the overriding ministerial powers to determine any future protection or destruction of sites.  In South Australia there was a major golf course construction on indigenous lands.  There was no consultative process at all.  In many areas there was much to be desired. 

Statements by Other Non-Governmental Organizations from Australia

Human Rights Law Centre noted that human rights were still not comprehensively or consistently protected in law in Australia, which remained the only western democratic nation without a national human rights law.  The absence of comprehensive human rights laws disproportionately affected ethnic and racial minority groups.  That was compounded by a lack of protection in Australia’s Constitution for a right to equality, and the fact that the Constitution actually authorized racial discrimination.  Anti-discrimination laws were inconsistent, limited in scope and they failed to address systemic or intersectional discrimination.  The Australian Human Rights Commission had been subjected to unprecedented political attacks and had had funding cut since the last review by the Committee.  In addition, the Government had twice attempted to weaken the national racial vilification laws since the Committee’s last review, and it had managed to pass laws that made it harder to lodge complaints to the Human Rights Commission.  The absence of a national human rights law facilitated the gradual chipping away of rights vital to the ability for racial and ethnic minority groups to participate in society. 

Federation of Ethnic Communities Council of Australia said that the Australian Government aimed to remove pathways to Australian citizenship for migrants.  It had been blatantly racist because it linked the granting of citizenship with the command of university-level English.  The organization urged the Committee to ensure that the Government of Australia did not adopt such stringent citizenship laws.  Migrant workers and students were grossly underpaid and they were often victims of work place abuse.  The Committee should urge Australia to ratify relevant conventions of the International Labour Organization on the rights of migrants and their families, and to fund a multicultural policy to address those issues.

Human Rights Law Centre reminded that in 2013 the Australian Government had implemented a deliberately cruel regime to ensure that any person seeking asylum by boat would never be resettled in Australia.  It had reopened offshore processing centres in Nauru, Manus Island, and Papua New Guinea.  For four and a half years the Australian Government had held over 2,000 people in desperate and dangerous conditions offshore.  That group had been shot, attacked, and sexually attacked.  Some 1,792 children and adults had been found to be refugees, but after four and a half years only 54 had been resettled in Australia.  The organization urged the Committee to recommend that Australia immediately evacuate all remaining refugees and people seeking asylum held on the Manus Island and Nauru to Australia.  Turning to boat returns, the organization reminded that the Australian Government had the power to detain people at sea and to transfer them to any country or vessel of another country, even without that country’s consent.  The Government also deliberately obstructed family reunions. 

Questions by Experts

Experts highlighted the issue of different treatment of migrants arriving by sea, as compared to those arriving by air.  Had any new feature been added since 2012, when that policy had been introduced?

Turning to the income management policy for Aboriginal peoples in the Northern Territory, Experts inquired about its four-year evaluation and about any consultation with Aboriginal peoples and civil society.  What kind of other programmes should be put in place? 

Experts also noted that suicide rates among Aboriginal and Torres Strait Island people were escalating.

Some migrants on labour visas were very vulnerable to labour exploitation.  What was the evaluation of racism in the political discourse situation since 2010?

Replies by Other Non-Governmental Organizations from Australia   

Federation of Ethnic Communities Council of Australia said that the people arriving by sea were treated much more harshly than those arriving by air.  The kind of conditions they endured in offshore processing centres had been widely publicised. 

Human Rights Law Centre explained that the income management policy and the four year review in the Northern Territory had reflected a lack of good results.  It was a compulsory policy that was inconsistent with human rights.  The Committee on Economic, Social and Cultural Rights had recommended that Australia move away from that policy.  As for racism in political discourse, there were attempts to weaken Australia’s laws prohibiting hate speech. 

Human Rights Law Centre explained that there was linking of national security policy with migration and terrorism, which had set the tone for framing the discourse on migrants through the lens of terrorism.  There were political parties that attacked Muslims and the presence of Islam in Australia, and that adopted generally racist platforms.  There was a campaign against young Sudanese migrants, even though links with terrorism and ethnicity had been shown to be incorrect.

Trudie Broderick explained that indigenous peoples experienced discrimination across different fields, and especially when sexual orientation and gender identity were added to the mix.  There was a very high proportion of young indigenous peoples committing suicide.  But more solid data was needed on that phenomenon.

National Congress of Australia’s First Peoples explained that the statistics on suicide among indigenous peoples were collected.  The evaluation of the income management policy for Aboriginal peoples was not seen as independent by many people.   

Statements by Non-Governmental Organizations from Belarus

Coalition of Belarusian Non-Governmental Organizations noted that Belarus lacked effective legal control to ensure equality and protection against discrimination.  Comprehensive anti-discrimination legislation that would contain a definition of discrimination, including a definition of racial discrimination and hate speech, had never been adopted.  Belarus had not taken sufficient measures to clarify certain provisions of the Law on Countering Extremism.  Namely, it did not provide clear criteria of extremism.  Belarus had also failed to create an independent national human rights body in accordance with the Paris Principles.  It was a criminal offence punishable by imprisonment up to two years to take part in unregistered public associations, including religious ones.  Ethnic and religious minorities were excluded from decision-making related to their socio-economic wellbeing.  The practice of ethnic profiling of the Roma population by law enforcement forces was widespread.  The cases of granting the status of stateless persons particularly affected Roma women and children.  It was not unusual for media outlets to publish articles containing hate speech expressions.  It was also of concern that training programmes for civil servants failed to include specialized focus on the management of religious, cultural and national diversity.  Currently, there were no specially designed centres for foreign citizens and stateless persons in Belarus, and there were many situations where foreign nationals were expelled or extradited to the countries where they were exposed to immediate danger.  Finally, religious freedoms were not respected.   

ADC Memorial drew attention to the precarious situation of the Roma in Belarus, namely discrimination in employment.  The Roma were not hired neither in the public nor the private sector, which led to other more serious problems.  The State had not taken any concrete measures to improve the situation of the Roma in the labour market.  There was a threat of removal of Roma children from their families.  Since there were no State programmes for employment opportunities, that situation had forced some Roma to violate the law.  The number of Roma in prisons was, thus, disproportionately high and strengthened stereotypes against them.  The Government should make sure that courts did not use discriminatory approaches towards the Roma, and it should remove decrees on the removal of Roma children from poor families. 

Questions by Experts

YANDUAN LI, Committee Expert and Country Rapporteur for Belarus, asked whether any other ethnic groups in Belarus were vulnerable and needed the Committee’s attention. 

What was the situation of human trafficking in Belarus?  What was the assessment of the efforts of the State party to combat that phenomenon?  To what extent was civil society consulted in the preparation of the State party’s report?  

Experts observed that the provisions of the Criminal Code on the spread of religious and ethnic hatred was sometimes activated for political use.  How were those provisions applied?  Did the State provide any opportunity to limit hate speech in the media and on the Internet?  Was there any cooperation between the police and civil society in that respect?

Were the Roma prosecuted when they reported racial discrimination?    

Replies by Non-Governmental Organizations from Belarus

Coalition of Belarusian Non-Governmental Organizations clarified that only the Roma were vulnerable in Belarus.  The problem of hate crimes was mainly connected with the Jewish population and desecration of Jewish religious sites, monuments and property.  The Law on Ethnic Minorities was quite general and it did not provide specific protection for their rights.  The Ministry of Information was supposed to monitor the use of hate speech in the media and on the Internet.  However, there was no notion of “hate speech” in legislation.  The Ministry of Information had a lot of power, but it did not use that power to fight hate speech in public discourse. 

Belarusian Helsinki Committee stated that civil society did not have any comprehensive cooperation with the Government, which prepared the State report separately and in cooperation with different ministries.  Civil society prepared a parallel report and it was invited to a presentation of the State report.  As for the provisions of the Criminal Code on the spread of religious and ethnic hatred, that article was not fully developed.  Some of the convictions were related to people who carried out blog activities on the Internet which were not to the Government’s liking.  The Criminal Code was, therefore, not used proportionately; it was used to target those who held dissident opinion. 

ADC Memorial explained that the Roma population in Belarus faced pressure and persecution when they tried to defend their rights.  Some interviewed Roma persons said that when they tried to approach the authorities for assistance, many of them were threatened with the removal of their children from their families and with the visit from the tax authorities.  Due to their numerous families and poverty, many Roma felt they were outside all legal avenues.

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