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| home | news llINDIGENOUS PEOPLES IN THE COMMONWEALTH ivesa Dialogue hosted by
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UN Committee on the Elimination of all Forms of Racial Discrimination (CERD) and Indigenous peoples: A case study in Australia A presentation by Geoff Clark, Chairman, Aboriginal and Torres Strait Islander Commission Summer School on Indigenous Peoples Irish Centre for Human Rights 8-15 June 2002 Introduction It is a great pleasure to be here with you today. I have been made to feel very welcome. It is said that around 30% of Australians have some form of Irish ancestry. Your mob had a strong presence among the first illegal immigrants to Australia - the first settlers that arrived in Australia in 1788. Today, St Patrick’s Day is celebrated with great enthusiasm throughout Australia by Irish expatriates, descendants and a large number of honorary Irish. Many of your young people come backpacking to Australia every year to enjoy our beaches, wide-open country and the chance to explore family connections. When they feel a bit homesick, there are numerous fake Irish pubs that serve nourishing pints of Guinness. But there are other reasons why an Aboriginal person would feel an affinity for the Irish. You have survived invasion and occupation and maintained your culture and heritage. Your people have survived injustice and marginalisation at home and abroad. You have battled to maintain your sovereignty and had that recognised in the Treaty of Independence of 1921. You have shown a strong regard for social justice and have taken an active role in protecting international standards in human and cultural rights and offering a haven to refugees. These matters of land, human rights, culture, identity and international standards form the core of my presentation today. In this talk, I will begin by describing the characteristics of the Indigenous populations of Australia. I will then outline the system of governance in Australia and some of the issues that arise from that. From there, I will cover a number of the issues that have brought unfavourable attention from UN committees onto Australia in recent years, in particular:
Finally, I will summarise the observations made by those committees and the Australian government’s response. Characteristics of the Aboriginal and Torres Strait Islander populations There are two Indigenous peoples in Australia - the Aboriginal population whose cultures were formed on the mainland and in Tasmania and the Torres Strait Islander population whose cultural heritage comes from the string of islands that lie between the northern tip of Australia and Papua New Guinea. The 1996 national Census reported that there were 386,049 Aboriginal and Torres Strait Islander people. This is expected to increase to somewhere between 469,000 and 649,000 by 2006. Our people have both a higher than average birth rate and a higher than average death rate, which means that the median age of our population is around 14 years less than for the total Australia population. Life expectancy at birth for Aboriginal and Torres Strait Islanders is around 20 years less than the life expectancy enjoyed by non-Indigenous people. The Indigenous population is becoming increasingly urbanised - so do not expect to see us living in bark shelters in the desert. The average national unemployment rate for our people is something like 50%, although this is disguised through various government income support schemes. Our people face 20 times the risk of mainstream Australians of going to goal - whether for failing to pay a fine or for something more serious. Australian governance Australia has a federal system - a group of states that originated as separate colonies. Its constitution contains little mention of rights except to guarantee free trade between the states. We have a Commonwealth parliament, made up of a Senate and a House of Representatives. Each state and territory has its own legislature, most of which also consist of two chambers. The states and territories determine and administer health, housing, education, justice, land use, heritage protection and most welfare programs. The third tier of government is made up of shires and municipalities, which administer local services such as roads and sanitation. The state legislatures grew out of colonial administrations. They have a strong tradition of resisting intervention from the national government. This has resulted in a set of inconsistent policies and legislative practices across the country. For example, it wasn’t that long ago that the states had incompatible railway systems - a rail trip from Sydney to Melbourne required a midnight shuffle across a cold platform to change trains in order to complete the journey on a different gauge of track. At the time of colonisation, the local administrators in Australia viewed the country as terra nullius - a land belonging to no one. This was not the view of the British government of the day, but Australia’s distance from England made such preferences unenforceable. The terra nullius concept became the framework that shaped all policies affecting Indigenous people - we had no standing and certainly no rights. Until reformed in 1967, the national constitution specifically excluded our people from the powers granted to the federal government. As a result, the states and territories developed individual approaches to human rights. In rural areas, our people were displaced as the agricultural industries acquired our traditional lands. We were forced onto fragments of land with no economic value. The only work was manual labour for which we were paid in rations. The cattle barons of those days built their empires on this cheap source of labour. In urban areas, our people had even fewer options and were forced to live on the fringes of the white community in crowded and unhygienic conditions. Australia began to take its human rights responsibilities seriously in 1975 when it ratified the United Nations International Convention on the Elimination of all forms of Racial Discrimination - ICERD - and passed the Racial Discrimination Act. In 1991, the Royal Commission into Aboriginal Deaths in Custody handed down its final report on a four-year inquiry with 339 recommendations on all aspects of Indigenous disadvantage from policing and custodial procedures to economic and cultural empowerment. Mandatory sentencing For a number of years, governments in the Northern Territory and the state of Western Australia maintained mandatory sentencing regimes - ie legislated penalties for particular forms of crime, especially property offences. Last year a change of government in the Northern Territory saw the legislation amended in that jurisdiction. However, similar a change of government in Western Australia in 2001 did not produce a similar response. In that state the laws apply to children as young as 10 years old and there have been cases where 11 and 12 year old children have been sentenced to 12 months detention. Mandatory sentencing regimes have a heavy impact on Indigenous people caught up in the justice system. We are already over represented in the courts and gaols of the land due to the combined forces of poverty and racial disadvantage. Many professional and community organisations throughout Australia have been strongly critical of mandatory sentencing regimes. According to the Law Council of Australia, mandatory sentencing is harsh, leads to unfair results, and is ineffective in deterring offenders or reducing recidivism rates. Amnesty International and the United Nations Committee on the Rights of the Child have been critical of mandatory sentencing in Australia. In 1997 the CROC Committee noted in relation to Australia that:
Also in 1997, the Australian Law Reform Commission and the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families recommended that the Commonwealth take a stronger position in formulating national standards and in bringing Australia’s treatment of Indigenous youth in particular into line with international expectations. ATSIC’s research on the impact of mandatory sentencing leads to the conclusion that these legislative regimes are unjust, discriminatory and undermine Aboriginal and Torres Strait Islander people’s development of localised and effective community-based justice mechanisms. Discriminatory treatment through the adverse use of discretion within the justice system means that Indigenous young people are more likely to appear in court, are more likely to have a prior record, and they are more likely to fall within the mandatory sentencing regimes. These issues directly affect the impact of mandatory sentencing. In the Northern Territory, court data showed that in 1996 84% of all court appearances for stealing motor vehicles involved Aboriginal and Torres Strait Islander defendants and 77% of all juvenile court appearances for break and enter involved Indigenous young people. A further discriminatory factor is the location of detention centres and the removal of Indigenous children and young people from their families and communities. Most detention centres in Western Australia and the Northern Territory are potentially hundreds, if not thousands of kilometres away from many Aboriginal and Torres Strait Islander communities they service. ATSIC argues that mandatory sentencing contradicts sentencing principles and undermines the rule of law through a lack of fairness and proportionality.
Finally, mandatory sentencing violates human rights principles and breaches international law:
The stolen generations In the early 20th century, state governments decided that our people were doomed and that they had a duty to ‘smooth the dying pillow’. They categorised us according to the ideology of racial purity - as full bloods, half-castes, quadroons and octoroons. The number of full bloods was in decline, so the decision was made to leave them on mission reserves to die out. For the rest of us, the policy was to eradicate our cultural connections. Children who had a non-Indigenous parent or grandparent were removed from their parents and communities. This was often done forcibly by government officials and police. The children were placed with non-Indigenous families to assimilate and lose all trace of their cultures and heritage. These practices continued for some 70 years, and today there is not a single Indigenous family in the country that has not been affected by these removals. These policies had a massive impact on family and community structures, on the transmittal of cultural knowledge and on the individual’s sense of identity and belonging. They are a major force behind the social problems in Indigenous communities today - because of the loss of traditional lines of authority and knowledge and loss of respect for cultural values. In 1997, the independent Human Rights and Equal Opportunity Commission completed its National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. Its report on the practices that created the Stolen Generations recommended a number of measures including a national apology, reparations and compensation for victims. The federal government has refused to act on the major recommendations, offering only to provide funds for counselling services and to add to the Link Up service for re-uniting families. The government claimed it could not apologise for the actions of others and to do so would incur an enormous financial liability. The individual states were the authorities behind the removals and so it could be argued that they faced the most exposure to litigation, yet they have all made apologies. This makes the federal government’s position look more ridiculous. The major churches have also apologised for their roles in supporting the past policies and in running the missions and children’s homes where our parents, grand parents and aunts and uncles suffered abuse and deprivation. ATSIC has maintained the position that there should be an apology from the national government and that a reparations tribunal would provide a better means for assessing claims than ad hoc litigation. We no longer expect to see an apology from the present Prime Minister - nor would Indigenous people regard it as sincere if it was offered. We must look forward to recognition of the Stolen Generations from the next government - whatever its political orientation. Land issues Land is the basis for Indigenous identity. It defines our communities and our cultural practices. It is the source of our knowledge and it imposes the responsibility of custodianship. In Australia, there are two processes available to Indigenous people to pursue our rights to our traditional lands - land rights and native title. Both have been subject to government moves to curtail Indigenous rights. I will deal with each separately. Land rights In 1975 the national government introduced the first legislation to provide a process for Aboriginal people to claim land. The Aboriginal Land Rights (Northern Territory) Act gives Aboriginal traditional owners certain controls over use of their land, including a veto on mining at the mineral exploration phase. An amount equivalent to royalties from mining projects on Aboriginal land is channelled into a trust account, the Aboriginals Benefit Account, for the benefit of traditional owners and Northern Territory Aborigines. This legislation was imposed on the Northern Territory, which does not have the status of a state. Some states have followed with their own versions of land rights legislation but none give the same level of benefit. The ideal of national land rights flourished only briefly in the mid-1980s before falling victim to political cowardice. The current Australian government wants to make a number of significant changes to the Land Rights Act to reduce the existing level of Indigenous rights. In October 1997 the Government initiated a comprehensive review of the operation of the Act. The report of that review found that the Land Right Act has been very effective in granting traditional Aboriginal land in the Northern Territory and that ‘the benefits of the Land Rights Act have greatly exceeded their costs for Aboriginal Territorians’. It also recommended some substantial changes to the Act that have proved very contentious among Aboriginal people. These include:
ATSIC will resist most of the proposed changes because they focus on reducing Aboriginal control over traditional lands. We believe a number of the recommended changes would breach Australia’s obligations under the International Covenant on Civil and Political Rights and be inconsistent with the principles of Australia’s Racial Discrimination Act. The government has recently restated its intention to proceed with changes to the Land Rights Act because the legislation is a restriction on development. Native title On 3 June 1992, Australia’s High Court issued a landmark ruling ruled that a group of Torres Strait Islanders, including Eddie Mabo, were entitled to the possession, occupation, use and enjoyment of the lands in the Mer (Murray) Islands. The High Court’s decision overturned the doctrine of terra nullius and found that the common law recognised that the native title rights of Australia’s Indigenous peoples have survived. The Mabo judgment also recognised, for the first time, that we have rights that are not dependent on a government grant and provided a basis for a more equal relationship. The original Native Title Act 1993 that followed the High Court judgment was a considerable advance for us because it was the first time a government negotiated with us about what should be in legislation that directly affects us. In 1998, the federal government made changes to the Native Title Act without any agreement or negotiation with Indigenous people. In 1999 some of those amendments were found by the UN Committee on the Elimination of Racial Discrimination (CERD) to be racially discriminatory. International attention Over the past few years, there has been a growing mass of reports from UN bodies that monitor compliance with international instruments on human and cultural rights. The evidence is that over recent years Australia's commitment to human rights has been in retreat. Principal causes for concern have included the nation's treatment of refugees and Indigenous issues. We are now nearing the end of the International Decade of the World's Indigenous People, adopted in 1993 by the UN's General Assembly and sponsored by Australia. Australian governments have shown little interest in contributing to the Decade or working to achieve the objectives set by the UN, including the speedy approval of the Draft Declaration on the Rights of Indigenous Peoples now being considered within the UN system. The 1998 amendments to the Native Title Act were criticised by both the Committee on the Elimination of all forms of Racial Discrimination and the Human Rights Committee in 1999 and again in 2000. Both committees found certain amendments discriminatory. In August 2000 the Committee on Economic, Social and Cultural Rights expressed concern that Indigenous Australians remained at a ‘comparative disadvantage in the enjoyment of economic, social and cultural rights’ and ‘noted with regret’ that the 1998 amendments to the NTA had harmed Reconciliation. In November 2000, the Committee Against Torture became the fourth UN body to criticise Australia, reminding governments that they are answerable for their treatment of Indigenous people caught in the nation's justice systems. When last reviewed by CAT in 1991, Australia was described as ‘in the forefront of countries defending human rights’. CAT found it necessary to recommend that the Federal Government ‘ensure that all States and Territories are at all times in compliance’ with their obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and that it ‘keep under careful review legislation imposing mandatory minimum sentences’. The role of UN Committee on the Elimination of all Forms of Racial Discrimination (CERD) CERD monitors the compliance of State parties (ie national governments) with their obligations under the International Convention on the Elimination of all forms of Racial Discrimination - ratified by Australia in 1975. CERD has 18 members of high moral standing and acknowledged impartiality. In August 1998 CERD asked Australia to provide information on the changes to the Native Title Act, its policy on land rights and on the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner. ATSIC and other organisations also made submissions. In March 1999 CERD found that native title amendments were potentially in breach of the International Convention on the Elimination of all forms of Racial Discrimination - ICERD - and that 4 sections within it were racially discriminatory. It urged Australia to suspend the implementation of the 1998 amendments to the Act and to re-open discussions with Indigenous people to find solutions acceptable to them and which would comply with Australia’s obligations under the Convention. The committee also said it had decided to keep this matter on its agenda under its early warning and urgent action procedures to be reviewed again at its 55th session. In August 1999, after again receiving submissions from the Australian Government, CERD affirmed its March decision that provisions of the amended Native Title Act were discriminatory. It also stated that the planned changes of policy on the exercise of land rights risked creating an acute impairment of those rights. The Australian Government rejected CERD’s finding that provisions of the amended Native Title Act were discriminatory. At the March 2000 meeting of CERD, the Australian Government addressed a range of issues considered relevant to Australia’s obligations under the International Convention:
The Government’s delegation to that meeting included a Minister and several high-ranking officials. ATSIC provided a submission to CERD as did the National Indigenous Working Group on Native Title and other Indigenous organisations in Australia. Under the rules of CERD, our organisations were not able to presentations or enter into dialogue with the Committee. However, we were able to meet some of the Committee members outside of the meeting. CERD’s concluding observations make positive comments about Australia’s actions on multiculturalism and racial harmony but expressed serious concerns as follows:
Throughout the process, the Australian government was extremely negative and hostile towards the findings of the Committee. It went so far as to attack individual Committee members and the countries they represented. A number of public statements issued by senior Ministers in the Government described CERD’s findings as unbalanced and an unreasonable intrusion into Australia’s domestic affairs. The Government asked the United Nations to review the Committee’s approach and announced a domestic review of Australia’s involvement in the UN treaty system. ATSIC hopes that CERD will continue to monitor Australia’s compliance with its obligation on the elimination of both overt and covert forms of racism for some time to come. The future In Australia, the decade from 1990 to 2000 was designated as the decade for reconciliation. ATSIC was part of a community-wide process designed to increase understanding and cooperation between Indigenous people and the wider community in Australia. The actions - and sometimes the inactions - of governments have not helped advance this ideal. I believe the Indigenous people in Australia have lost a great deal of faith in the likelihood that reconciliation can occur in the near future. The Howard government, elected in 1996, committed itself to what it calls practical reconciliation with the focus on jobs, health, housing and education. It dismissed talk about cultural rights and especially Indigenous rights as empty symbolism. But Dr Bill Jonas, our Social Justice Commissioner, has critiqued the Government’s agenda for ‘practical reconciliation’ as a way both to shut down debate on rights and to merely manage disadvantage. In his Social Justice report for 2001, released by the government in May this year, Dr Jonas asks ‘whatever happened to reconciliation?’ He said:
Dr Jonas has called for a Senate inquiry into the reconciliation process and in particular into the documents produced by the Council for Aboriginal Reconciliation. Indigenous people cannot trust the promises of governments. We have no choice but to start looking for new methods for safeguarding our rights and entitlements. In May 2000, I announced that ATSIC would begin a new push for a treaty of some form that would recognise and enshrine the status and rights of Aboriginal and Torres Strait Islander people in the legislative framework of the country. ATSIC has begun community consultations to learn the views our people hold. We see this as the essential next step in securing and protection our rights as the first peoples of our land. Australian governments are too slow to acknowledge and embrace the developing body of international law and opinion that is providing the foundation for formal recognition of Indigenous rights by the members of the UN. Nonetheless, UN processes play a very important role in consolidating understanding and respect for those principles. Indigenous people look to UN and other international recognition and support as the means for ensuring the survival of our Indigenous identities and our cultural rights that support those identities. Indigenous identity must be seen as something to be celebrated - not merely tolerated.
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