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Native Title Report 2000: Appendix 3

Appendix 3

observations on Australia of the International Committee on the Elimination
of Racial Discrimination, 24 March 2000

observations by the International Committee on the Elimination of Racial
Discrimination : Australia. 19/04/2000. CERD/C/304/Add.101.


Fifty-sixth session
6-24 March 2000


observations of the Committee on the Elimination of Racial Discrimination


1. The Committee
considered the tenth, eleventh and twelfth periodic reports of Australia,
submitted as one document (CERD/C/335/Add.2), at its 1393rd, 1394th and
1395th meetings (CERD/C/SR.1393, 1394 and 1395), held on 21 and 22March
2000. At its 1398th meeting, held on 24 March 2000, it adopted the following
concluding observations.

A. Introduction

2. The Committee
welcomes the reports submitted by the State party and the additional oral
and written information provided by the delegation, while regretting the
late submission of the tenth and eleventh periodic reports. Appreciation
is expressed for the comprehensiveness of the report and of the oral presentation.
The Committee was encouraged by the attendance of a high-ranking delegation
and expresses its appreciation for the constructive responses of its members
to the questions asked.

3. The Committee
acknowledges that the State party has addressed some of the concerns and
recommendations of the Committee's concluding observations on the ninth
periodic report (A/49/18, paras. 535-551).

B. Positive aspects

4. The Committee
is encouraged by the attention given by the State party to its obligations
under the Convention and to the work of the Committee.

5. The Committee
notes with appreciation the many measures adopted by the State party during
the period under review (1992-1998) in the area of racial discrimination,
including those adopted to implement the recommendations of the Royal
Commission into Aboriginal Deaths in Custody. The Committee welcomes the
numerous legislative measures, institutional arrangements, programmes
and policies that focus on racial discrimination, as comprehensively detailed
in the tenth, eleventh and twelfth reports, including the launching of
a "New Agenda for Multicultural Australia" and the implementation of the
"Living in Harmony" initiative.

C. Concerns and

6. The Committee
is concerned over the absence from Australian law of any entrenched guarantee
against racial discrimination that would override subsequent law of the
Commonwealth, states and territories.

7. The Committee
reiterates its recommendation that the Commonwealth Government should
undertake appropriate measures to ensure the consistent application of
the provisions of the Convention, in accordance with Article 27 of the
Vienna Convention on the Law of Treaties, at all levels of government,
including states and territories, and if necessary by calling on its power
to override territory laws and using its external affairs power with regard
to state laws.

8. The Committee
notes that, after its renewed examination in August 1999 of the provisions
of the Native Title Act as amended in 1998, the devolution of power to
legislate on the "future acts" regime has resulted in the drafting of
state and territory legislation to establish detailed "future acts" regimes
which contain provisions further reducing the protection of the rights
of native title claimants that is available under Commonwealth legislation.
Noting that the Commonwealth Senate on 31 August 1999 rejected one such
regime, the Committee recommends that similarly close scrutiny continue
to be given to199 any other proposed state and territory legislation to
ensure that protection of the rights of indigenous peoples will not be
reduced further.

9. Concern is expressed
at the unsatisfactory response to decisions 2 (54) (March 1999) and 2
(55) (August 1999) of the Committee and at the continuing risk of further
impairment of the rights of Australia's indigenous communities. The Committee
reaffirms all aspects of its decisions 2 (54) and 2 (55) and reiterates
its recommendation that the State party should ensure effective participation
by indigenous communities in decisions affecting their land rights, as
required under Article 5 (c) of the Convention and General Recommendation
XXIII of the Committee, which stresses the importance of securing the
"informed consent" of indigenous peoples. The Committee recommends to
the State party to provide full information on this issue in the next
periodic report.

10. The Committee
notes that the Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund is conducting an inquiry into "Consistency
of the Native Title Amendment Act 1998 with Australia's international
obligations under the Convention on the Elimination of All Forms of Racial
Discrimination (CERD)". It is hoped that the results will assist the State
party to re-evaluate its response to decisions 2 (54) and 2 (55). The
Committee requests the State party, in accordance with the provisions
of Article 9, paragraph 1, of the Convention, to transmit the report of
the Joint Parliamentary Committee's inquiry to the Committee when it is

11. The establishment
of the Aboriginal and Torres Strait Islander Commission (ATSIC) and of
the Aboriginal and Torres Strait Islander Social Justice Commissioner
within the Human Rights and Equal Opportunity Commission (HREOC) were
welcomed by the Committee. Concern is expressed that changes introduced
and under discussion regarding the functioning of both institutions may
have an adverse effect on the carrying out of their functions. The Committee
recommends that the State party give careful consideration to the proposed
institutional changes, so that these institutions preserve their capacity
to address the full range of issues regarding the indigenous community.

12. While acknowledging
the significant efforts that have taken place to achieve reconciliation,
concern is expressed about the apparent loss of confidence by the indigenous
community in the process of reconciliation. The Committee recommends that
the State party take appropriate measures to ensure that the reconciliation
process is conducted on the basis of robust engagement and effective leadership,
so as to lead to meaningful reconciliation, genuinely embraced by both
the indigenous population and the population at large.

13. The Committee
notes the conclusions of the "National Inquiry into the Separation of
Aboriginal and Torres Strait Islander Children from their Families" and
acknowledges the measures taken to facilitate family reunion and to improve
counselling and family support services for the victims. Concern is expressed
that the Commonwealth Government does not support a formal national apology
and that it considers inappropriate the provision of monetary compensation
for those forcibly and unjustifiably separated from their families, on
the grounds that such practices were sanctioned by law at the time and
were intended to "assist the people whom they affected". The Committee
recommends that theState party consider the need to address appropriately
the extraordinary harm inflicted by these racially discriminatory practices.

14. The Committee
acknowledges the adoption of the Racial Hatred Act 1995 which has introduced
a civil law prohibition of offensive, insulting, humiliating or intimidating
behaviour based on race. The Committee recommends that the State party
continue making efforts to adopt appropriate legislation with a view to
giving full effect to the provisions of, and withdrawing its reservation
to, Article 4 (a) of the Convention.

15. The Committee
notes with grave concern that the rate of incarceration of indigenous
people is disproportionately high compared with the general population.
Concern is also expressed that the provision of appropriate interpretation
services is not always fully guaranteed to indigenous people in the criminal
process. The Committee recommends that the State party increase its efforts
to seek effective measures to address socio-economic marginalization,
the discriminatory approach to law enforcement and the lack of sufficient
diversionary programmes.

16. The Committee
expresses its concern about the minimum mandatory sentencing schemes with
regard to minor property offences enacted in Western Australia, and in
particular in the Northern Territory. The mandatory sentencing schemes
appear to target offences that are committed disproportionately by indigenous
Australians, especially juveniles, leading to a racially discriminatory
impact on their rate of incarceration. The Committee seriously questions
the compatibility of these laws with the State party's obligations under
the Convention and recommends to the State party to review all laws and
practices in this field.

17. Taking note of
some recent statements from the State party in relation to asylum-seekers,
the Committee recommends that the State party implement faithfully the
provisions of the 1951 Convention relating to the Status of Refugees,
as well as the 1967 Protocol thereto, with a view to continuing its cooperation
with the United Nations High Commissioner for Refugees and in accordance
with the guidelines in UNHCR's "Handbook on Refugee Determination Procedures".

18. The Committee
acknowledges the efforts being made to increase spending on health, housing,
employment and education programmes for indigenous Australians. Serious
concern remains at the extent of the continuing discrimination faced by
indigenous Australians in the enjoyment of their economic, social and
cultural rights. The Committee remains seriously concerned about the extent
of the dramatic inequality still experienced by an indigenous population
that represents only 2.1 per cent of the total population of a highly
developed industrialized State. The Committee recommends that the State
party ensure, within the shortest time possible, that sufficient resources
are allocated to eradicate these disparities.

19. The Committee
recommends that the State party's reports be made widely available to
the public from the time they are submitted and that the Committee's observations
on them be similarly publicized.

20. The Committee
recommends that the State party's next periodic report, due on 30 October
2000, be an updating report and that it address the points raised in the
present observations.