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Native Title Report 2000: Appendix 4

Appendix 4


observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS.
(Concluding Observations/Comments)

Sixty-ninth session


OF REPORTS SUBMITTED UNDER ARTICLE 40 Concluding observations of the Human
Rights Committee


1. The Committee
examined the third and fourth periodic reports of Australia (CCPR/C/AUS/99/3
and 4) at its 1855th, 1857th and 1858th meetings, held on 20 and 21 July
2000. At its 1867th meeting on 28 July 2000, the Committee adopted the
following concluding observations.


2. The Committee
appreciates the quality of the reports of Australia, which conformed with
the Committee's guidelines for the preparation of State party reports
and provided a comprehensive view of such measures as have been adopted
by Australia to implement the Covenant in all parts of the country. The
Committee also appreciated the extensive additional oral and written information
provided by the State party delegation during the examination of the report.
Furthermore, the Committee expresses appreciation for the answers to its
oral and written questions and for the publication and wide dissemination
of the report by the State party.

3. The Committee
regrets the long delay in the submission of the third report, which was
received by the Committee ten years after the examination of the second
periodic report of the State party.

4. The Committee
expresses its appreciation for the contribution of non-governmental organisations
and statutory agencies to its work in considering the State party's reports.

Positive aspects

5. The Committee
welcomes the accession of the State party to the Optional Protocol to
the Covenant in 1991, thereby recognizing the competence of the Committee
to consider communications from individuals within its territory and subject
to its jurisdiction. It welcomes the action taken by the State party to
implement the views of the Committee in the case of communication 488/1992
(Toonen vs. Australia) by enacting the necessary legislation at the federal

6. The Committee
welcomes the enactment of anti-discrimination legislation in all jurisdictions
of the State party, including legislation to assist disabled persons.

7. The Committee
welcomes the establishment of the Aboriginal and Torres Strait Islander
Social Justice Commissioner in 1993.

8. The Committee
notes with satisfaction that the status of women in Australian society
has improved considerably during the reporting period, particularly in
public service, in the general workforce, and in academic enrollment,
although further equality has yet to be achieved in many sectors. The
Committee welcomes the initiatives to make available to women facilities
to ensure their equal access to legal services, including in rural areas,
and the strengthening of the Sex Discrimination Act, 1984.

Principal subjects of concern
and recommendations

9. With respect to
Article 1 of the Covenant, the Committee takes note of the explanation
given by the delegation that rather than the term "self-determination"
the Government of the State party prefers terms such as "self-management"
and "self-empowerment" to express domestically the principle of indigenous
peoples exercising meaningful control over their affairs. The Committee
is concerned that sufficient action has not been taken in that regard.
The State party should take the necessary steps in order to secure for
the indigenous inhabitants a stronger role in decision-making over their
traditional lands and natural resources (Article 1, para 2).

10. The Committee
is concerned, despite positive developments towards recognising the land
rights of the Aboriginals and Torres Strait Islanders through judicial
decisions (Mabo 1992, Wik 1996) and enactment of the Native Title Act
of 1993, as well as actual demarcation of considerable areas of land,
that in many areas native title rights and interests remain unresolved
and that the Native Title Amendments of 1998 in some respects limits the
rights of indigenous persons and communities, in particular in the field
of effective participation in all matters affecting land ownership and
use, and affects their interests in native title lands, particularly pastoral
The Committee recommends that the State party take further steps in order
to secure the rights of its indigenous population under Article 27 of
the Covenant. The high level of the exclusion and poverty facing indigenous
persons is indicative of the urgent nature of these concerns. In particular,
the Committee recommends that the necessary steps should be taken to restore
and protect the titles and interests of indigenous persons in their native
lands, including by considering amending anew the Native Title Act, taking
into account these concerns.

11. The Committee
expresses its concern that securing continuation and sustainability of
traditional forms of economy of indigenous minorities (hunting, fishing
and gathering), and protection of sites of religious or cultural significance
for such minorities, that must be protected under Article 27, are not
always a major factor in determining land use. The Committee recommends
that in the finalization of the pending Bill intended to replace the Aboriginal
and Torres Strait Islander Heritage Protection Act (1984), the State party
should give sufficient weight to the above values.

12. While noting
the efforts of by the State party to address the tragedies resulting from
the previous policy of removing indigenous children from their families,
the Committee remains concerned about the continuing effects of this policy.
The Committee recommends that the State party intensify these efforts
so that the victims themselves and their families will consider that they
have been afforded a proper remedy. (Articles 2, 17 and 24).

13. The Committee
is concerned that in the absence of a constitutional Bill of Rights, or
a constitutional provision giving effect to the Covenant, there remain
lacunae in the protection of Covenant rights in the Australian legal system.
There are still areas in which the domestic legal system does not provide
an effective remedy to persons whose rights under the Covenant have been
violated. The State party should take measures to give effect to all Covenant
rights and freedoms and to ensure that all persons whose Covenant rights
and freedoms have been violated shall have an effective remedy (Article

14. While noting
the explanation by the delegation that political negotiations between
the Commonwealth Government and the governments of states and territories
take place in cases in which the latter have adopted legislation or policies
that may involve a violation of Covenant rights, the Committee stresses
that such negotiations cannot relieve the State party of its obligation
that Covenant rights will be respected and ensured in all parts of its
territory without any limitations or exceptions (Article 50).
The Committee considers that political arrangements between the Commonwealth
Government and the governments of states or territories may not condone
restrictions on Covenant rights that are not permitted under the Covenant.

15. The Committee
is concerned by the government bill in which it would be stated, contrary
to a judicial decision, that ratification of human rights treaties does
not create legitimate expectations that government officials will use
their discretion in a manner that is consistent with those treaties.
The Committee considers that enactment of such a bill would be incompatible
with the State party's obligations under Article 2 of the Covenant and
urges the government to withdraw the bill.

16. The Committee
is concerned over the approach of the State party to the Committee's Views
in the Communication No. 560/1993 (A. v. Australia). Rejecting the Committee's
interpretation of the Covenant when it does not correspond with the interpretation
presented by the State party in its submissions to the Committee undermines
the State party's recognition of the Committee's competence under the
Optional Protocol to consider communications.The Committee recommends
that the State party reconsider its interpretation with a view to achieving
full implementation of the Committee's views.

17. Legislation regarding
mandatory imprisonment in Western Australia and the Northern Territory,
which leads in many cases to imposition of punishments that are disproportionate
to the seriousness of the crimes committed and would seem to be inconsistent
with the strategies adopted by the State party to reduce the over-representation
of indigenous persons in the criminal justice system, raises serious issues
of compliance with various Articles in the Covenant.
The State party is urged to reassess the legislation regarding mandatory
imprisonment so as to ensure that all Covenant rights are respected.

18. The Committee
notes the recent review within Parliament of the State party's refugee
and humanitarian immigration policies and that the Minister for Immigration
and Multicultural Affairs has issued guidelines for referral to him of
cases in which questions regarding the State party's compliance with the
Covenant may arise.
The Committee is of the opinion that the duty to comply with Covenant
obligations should be secured in domestic law. It recommends that persons
who claim that their rights have been violated should have an effective
remedy under that law.

19. The Committee
considers that the mandatory detention under the Migration Act of "unlawful
non-citizens", including asylum seekers, raises questions of compliance
with Article 9, paragraph 1, of the Covenant, which provides that no person
shall be subjected to arbitrary detention. The Committee is concerned
at the State party's policy, in this context of mandatory detention, of
not informing the detainees of their right to seek legal advice and of
not allowing access of non-governmental human rights organizations to
the detainees in order to inform them of this right.
The Committee urges the State party to reconsider its policy of mandatory
detention of "unlawful non-citizens" with a view to instituting alternative
mechanisms of maintaining an orderly immigration process. The Committee
recommends that the State party inform all detainees of their legal rights,
including their right to seek legal counsel.

20. The Committee
requests the fifth periodic report to be submitted by 31 July 2005. It
requests that the present concluding observations and the next periodic
report be widely disseminated among the public, including civil society
and non-governmental organisations operating in the State party.