International Review of Indigenous issues in 2000: Australia - 5. Failure to provide adequate protection of Indigenous Rights

International Review of Indigenous issues in 2000: Australia

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5. Failure to provide adequate protection of Indigenous Rights

Failure to implement the Genocide Conventio n Education and the abolition of Bilingual Education Programs in the Northern Territory Redressing Indigenous disadvantage

Failure to implement the Genocide Convention

While Australia is a signatory to the 1949 C onvention on the Prevention and Punishment of the Crime of Genocide, successive governments have not enshrined this law domestically. Bringing Them Home recommended that the Commonwealth Government legislate to implement the Genocide Convention with full domestic effect as part of official recognition that removal policies of the past are over and will not be repeated. In response, the Commonwealth Government claimed that no genocide occurred in Australia, so therefore there was no need to implement the Convention.

In October 1999, the Senate referred an Anti-Genocide Bill put forward by the Australian Democrats Party to the Legal and Constitutional References Committee for investigation and review by June 2000. [106] On 3 April 2001 both the major parties voted down a proposal by the Australian Democrats Party to debate an Antigenocide Bill aimed at, amongst other things deterring crimes against humanity.

Education and the abolition of Bi-lingual education in the Northern Territory

The rate of Aboriginal students' participation in education is vastly disproportionate to non-Indigenous students.

A significant number of Indigenous students do not complete the compulsory years of schooling. [107] In 1994 over one-third of Indigenous 15 to 24 year olds had not completed Year 10. [108] The school retention rate to Year 12 for Indigenous students is around 33% compared to almost 73% for all students. [109] The level of Aboriginal students' participation in education in rural and remote locations is even less. [110] Further, attendance by those enrolled is also low, sometimes falling to an estimated 20% attendance (for example, during ceremony times). [111]

In addition, 43% of Indigenous primary school students in rural and remote locations have significantly lower literacy and numeracy achievement. [112] In 1996 a Northern Territory Public Accounts Committee found that students in remote Aboriginal schools perform 3 to 7 years behind urban students of the same age in literacy and numeracy tests.

The poor performance of Aboriginal students from remote Aboriginal Schools in literacy and numeracy tests may well be attributable to English being a second language for many of them. In the 1996 Census, it was found that as a proportion of the total population aged five years and over, the Northern Territory recorded the highest percentage of people speaking a language other than English at home (22.5%). Over 70% of those people spoke an Indigenous language. Up to one-third of Indigenous students living in rural and remote Australia speak a language other than English as their first language.

Despite this, Aboriginal students are not recognised by the Commonwealth as requiring ESL funding and support. Furthermore, the Northern Territory government announced in December 1998 that it was phasing out bilingual education programs in government schools in Aboriginal communities, and replacing them with 'English as a Second Language' programs because of the low standards of English literacy among Aboriginal students.

The right to education on a basis of equality is a right guaranteed by international law:

• Article 28 of the Convention on the Rights of the Child (CROC) provides for state parties to recognise the right of the child to education, with a view to achieving this right on the basis of equal opportunity
• The International Convention on the Elimination of All Forms of Racial Discrimination (the ICERD) provides that education shall be available to all without discrimination on the basis of race [Articles 1(1) & 5(1)(e)(v)]
• Article 26 of the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO 69) requires states to take measures to ensure equality of opportunity to members of Indigenous peoples to acquire education

International law further requires that states ensure that Indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs and to preserve and practice their languages:

• CERD Committee, General Recommendation XXIII - on Indigenous Peoples [113]

• Article 27 of the International Covenant on Civil and Political Rights (ICCPR) states that minorities and persons belonging to minorities shall not be denied the right to "enjoy their own culture, to profess and practise their own religion, or to use their own language." This right is also protected by Article 30 of CROC in relation to children.

• Article 28(3) of the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO 69) requires states to take measures to preserve and promote the development and practice of the indigenous language of the peoples concerned

Following from these requirements, a number of international instruments, recognise that the right to education on a basis of equality requires that that education encompass the special educational issues of minority and indigenous groups regarding the maintenance of their cultures, religions and languages:

• Article 29(1) of CROC states that the education of the child shall be directed to (amongst other things) … (c) The development of respect for the child's parents, his or her own cultural identity, language and values…
• Article 2(b) of the Convention against Discrimination in Education excludes from its definition of discrimination in education, the establishment or maintenance for religious or linguistic reasons, of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil's parents or legal guardians, if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities, in particular for education of the same level.
• Article 28(1) of the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO 69) states "Children belonging to the peoples concerned shall, wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong. When this is not practicable, the competent authorities shall undertake consultations with these peoples with a view to the adoption of measures to achieve this objective."

The integration of Aboriginal languages into the formal education system through bilingual programs is consistent with international human rights standards. It makes schooling more accessible to Aboriginal students and it recognises cultural difference in a manner that is non-discriminatory in international law. Bilingual education programs value Aboriginal educators and knowledge. Aboriginal communities state that the success of the education of their children should be measured both by standards of English literacy, and also by respect for their rights to education, language, culture and land. For many Indigenous people, the decision of the Northern Territory government to phase out bilingual education programs in government schools in Aboriginal communities amounted to a denial of their right to choose the mode of education for their children and threatens the viability of remaining languages.

International human rights standards also require states to ensure that Indigenous people themselves are able to effectively participate in decisions regarding the provision of education and the kind of education provided:

• Article 27 of the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO 69) states that "Education programmes and services for the peoples concerned shall be developed and implemented in co-operation with them to address their special needs, and shall incorporate their histories, their knowledge and technologies, their value systems and their further social, economic and cultural aspirations."

• The CERD Committee General Recommendation XXIII requires that states '[E]nsure that members of Indigenous groups have equal rights in respect of effective participation… and that no decisions directly relating to their rights and interests are taken without their informed consent' . [114]

Many Aboriginal communities who currently have bilingual education programs have stated that the decision of the Northern Territory government was made without appropriate consultation. The lack of appropriate Indigenous participation in the Northern Territory decision to abandon bilingual education breaches Australia's obligations to respect the self-determination rights of its Indigenous peoples under Article 1 of the ICESCR and the right of Indigenous people to effective participation in decisions which affect them. It is also inconsistent with the consistently expressed desires of Indigenous people in the Northern Territory for greater community control over educational processes. [115]

Redressing Indigenous disadvantage

Across every measurement of socio-economic status and well-being, and across all age groups, geographical circumstances and genders, Australia's Indigenous people are severely disadvantaged, and disproportionately so when compared to the rest of Australian society. In addition, the Indigenous population has a young age structure. The disadvantage faced by Indigenous young people today has the potential to increase and further entrench the disparity between Indigenous and non-Indigenous Australians over the coming decades unless greater effort is made now to reduce the inequality that they face.

The systemic, grossly disproportionate rate of disadvantage faced by Indigenous youth indicates that they do not enjoy the full spectrum of human rights in a non-discriminatory manner. The achievement of the non-discriminatory enjoyment of the full spectrum of human rights for all people is the core obligation undertaken by States parties to ICESCR, CERD and the ICCPR.

Under Article 2(2) of CERD, the consequence of this disadvantage and discrimination is that Australia is required to take action 'to ensure the adequate development and protection' of Indigenous people, 'for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.'

Under ICESCR, this discrimination raises concerns that Australian governments may not be meeting their 'core minimum obligations' under the Convention towards Indigenous people across the full range of services that are routinely provided to non-Indigenous Australians. Australian governments [116] must be able to demonstrate that they are providing Indigenous people with 'minimum essential levels of each of the rights' and that they are making every effort to use all resources at their disposition to satisfy, as a matter of priority, those minimum obligations.

International Commentary

(i) Consideration of Indigenous Disadvantage by the CERD Committee in March 2000.

The issue to which the CERD Committee members returned time and again was the extent of Indigenous disadvantage, and the adequacy of government measures to redress this. In their comments the Committee members raise a number of complex issues of significance to attempts to redress Indigenous disadvantage. They acknowledge that:

• Indigenous disadvantage is the result of systemic discrimination; the appropriate benchmark by which to measure progress is one of equality between
• Indigenous and non-Indigenous Australians;
• the government is obligated to take sufficient steps (or special measures) to achieve such equality;
• there must be adequate monitoring and evaluation of progress, including measuring effectiveness through benchmarking and standard setting; and
• real progress requires the effective participation of Indigenous people in decision making (including through the representative voice of ATSIC).

The Government responded in a number of ways. They emphasised the importance of recognising progress to date:

if we cannot acknowledge that there has been some progress then the support for the efforts, which are considerable, to address these issues in the community as a whole will not be there. And so we have seen some beneficial improvements, they're outlined in the report before you, but we don't see those improvements as enough… [117]

There is also clear evidence that progress is being made:

• rising levels of educational attainment;
• improvements in health and housing (eg a 90% reduction in aboriginal infant mortality since the 1970s);

• and the fact that 15% of the continent has been returned to aboriginal ownership and control. [118]

The Government emphasised its commitment to redressing disadvantage through 'practical' measures:

Now it is impossible to undo the wrongs of the past, but the Australian Government has committed itself firmly to address what it sees as today's unacceptable level of disadvantage suffered by Australia's indigenous peoples. And the fact is that indigenous disadvantage in Australia has been long-standing and it will not be corrected overnight…

They emphasised the increased funding in Indigenous-specific programs:

Now despite some claims to the contrary, the fact is that government funding, total funding on indigenous support programs has increased. In this financial year the Government's indigenous-specific funding across all portfolios including health, housing, education and employment will be 2.2 billion Australian dollars… that's a significant increase on the figure of 1.8 billion that is referred to in the report. So you can see that increased commitment by that simple demonstration. [119]

They also emphasised the government's policies of empowerment and responsibility / mutual obligation:

Now I must stress that disadvantage will not be solved or remedied by money alone. We recognise that communities and individuals need to take some responsibility for their personal well-being as well. And they need to have the chance to claim success or to learn from failure, and we have therefore been involving and empowering Aboriginal and Torres Strait Islander people to overcome the legacy of our past, to eliminate need for welfare support, and we're improving indigenous Australians' access to health, housing, education, employment, economic wealth of our country in addition. In fact I would say that one of the tangible demonstrations of that empowerment is the very presence of such a large number of Australian indigenous people before your Committee in the audience today and making efforts to be heard in other ways, as I know they have... The government support for services remain but our aim of course is to create opportunities for indigenous Australians to be able to create their own future. [120]

And they acknowledged the historically derived nature of the disadvantage.

Notable in these responses is the absence of any recognition of the importance of a rights-based approach to redressing disadvantage. There is no confirmation of the centrality of Indigenous participation and self-determination to achieving lasting improvements in the enjoyment of economic, social and cultural rights. [121]

Similarly, there is no reference to a commitment to adopting special measures to redress Indigenous disadvantage as expeditiously as possible, through the adoption of targeted plans. Indeed, while the government affirms the importance of performance measures and benchmarks, the only examples they are able to give of benchmarks that have been adopted are socio-economic indicators and statistics collated as part of the Commonwealth's access and equity strategy. [122]

A further aspect of the government's responses that is of concern is the reference to $2.2 billion expenditure on 'special programs'. As a study on public expenditure on services for Indigenous people noted last year:

A focus on special programs for Indigenous people alone will provide a misleading picture of the distribution of public expenditure between Indigenous and non-Indigenous people. While Indigenous people benefit substantially more than other Australians from specific programs, they benefit substantially less from many, much bigger, general programs. [123]

Such a focus does not acknowledge, in relation to health for example, that Indigenous people access the large general schemes such as Medicare and the Prescribed Pharmaceutical Benefits scheme at substantially lower rates than non-Indigenous people. Nor does it identify that a large number of unemployed Indigenous people are 'hidden' within the Community Development Employment Projects Scheme rather than accessing Jobstart allowance. Put differently, much of the expenditure through programs that are identified as 'special programs' is in fact expenditure that would otherwise be spent through mainstream programs. It is not additional, as a characterisation as a 'special program' implies.

The Committee reached the following conclusions on the issue of Indigenous disadvantage:

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.

(ii) Consideration of Indigenous Disadvantage by the Human Rights Committee in July 2000.

The Human Rights Committee's concern for the comparative disadvantage of Indigenous people in Australia was based on the failure of Australia to meet its obligations under Article 27 of ICCPR which requires the culture of minority people be protected.

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 exclusion and poverty facing indigenous persons is indicative of the urgent nature of these concerns. In particular, the Committee recommends that the necessary steps 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.

(iii) Consideration of Indigenous Disadvantage by the Committee on Economic, Social and Cultural Rights in September 2000.

The disadvantage of Indigenous people in Australia raises concerns about whether the governments of Australia are taking sufficient steps, as required under ICESCR, towards the progressive realization of the enjoyment of economic, social and cultural rights by Indigenous people. As noted above, the Committee on Economic, Social and Cultural Rights has interpreted the principle of 'progressive realization over time' in a way that 'should not be misinterpreted as depriving the obligation of all meaningful content.' [124]

One of the main ways that the Committee on Economic, Social and Cultural Rights considers whether the principle of progressive realization has been 'deprived of meaningful content' in relation to Indigenous Australians will be through examining Australia's periodic reports to the Committee. [125] In considering Australia's periodic report in September 2000 the Committee stated at paragraphs 9, 10 and 15 respectively:

9. The Committee notes that the State party has allocated 2.3 billion Australian dollars for giving priority to indigenous programmes.

10. The Committee welcomes the partnership between the State party and indigenous communities in initiatives aimed at providing greater access for indigenous peoples to culturally appropriate health services and allocating significant resources for the improvement of indigenous health in general.

15. The Committee expresses its deep concern that, despite the efforts and achievements of the State party, the indigenous populations of Australia continue to be at a comparative disadvantage in the enjoyment of economic, social and cultural rights, particularly in the field of employment, housing, health and education.

(iv) Consideration of Indigenous Disadvantage by the Committee Against Torture in November 2000.

The Committee Against Torture has also considered the socio-economic disadvantage suffered by Indigenous people in Australia under its convention and made the following recommendations:

(g) The State party continue its efforts to address the socio-economic disadvantage that inter alia leads indigenous Australians to come disproportionately into contact with the criminal justice system.

106 The terms of reference can be found at http://www.aph.gov.au/senate/committee/advert/Antigenocide.htm 107 Human Rights and Equal Opportunity Commission, "Emerging Themes" National Inquiry into Rural and Remote Education, March 2000 108 ibid. 109 DETYA submission to the National Inquiry into Rural and Remote Education, page 89 110 David Curtis, ATSIC Commissioner, Melbourne hearing, National Inquiry into Rural and Remote Education 111 ATSIC submission to National Inquiry into Rural and Remote Education, page 26 112 DETYA submission to the National Inquiry into Rural and Remote Education, page 48 113 CERD Committee, General Recommendation XXIII, op. cit., para 3. 114 Ibid. 115 There has been government recognition of the benefits of increased community involvement and control in redressing Indigenous disadvantage: For example, the Desert schools report: An investigation of English language and literacy among young Aboriginal people in seven communities, AIATSIS, Canberra, 1996, was a Commonwealth-funded extensive study, of which principal recommendations focused on strengthening the involvement of communities in the education process. 116 While the power to enter into international treaties and conventions on behalf of Australia resides with the federal government, the states and territories of Australia are bound to act in compliance with Australia's international obligations. Article 27 of the Vienna Convention on the Law of Treaties, to which Australia is a party, provides that 'a party may not invoke provisions of its internal law as justification for its failure to perform a treaty.' 117 Minister Ruddock in FAIRA, CERD Transcript - 21-22 March 2000, 1393rd meeting, Part I, p3. 118 Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Wealthy Australia has not solved the problems of 2% of its population. 119 ibid. 120 ibid, p4. Note: I critique this concept of responsibilities in chapter 2 of this report, and the introduction of the Social Justice Report 1999. 121 In this regard, note the Human Rights Committee, Concluding Observations, which states in paragraph 9 that: with respect to article 1 of the (ICCPR), the Committee takes note of the explanation given by the delegation that rather than the term 'self-determination' the Government… prefers terms such as 'self-management' and 'self-empowerment' to express domestically the principles 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. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Benchmarking / Measuring reconciliation. Neutze, M, Sanders, W, Jones, G, Public expenditure on services for Indigenous people - Education, employment, health and housing, Discussion paper 24, The Australia Institute, Canberra, 1999, p xiii. Committee on Economic, Social and Cultural Rights, General comment 3: The nature of States parties obligations (Article 2, para 1), op.cit, para 9. Australia's third periodic report was lodged with the Committee on 15 June 1998: Committee on Economic, Social and Cultural Rights, Periodic Report: Australia, UN Doc: E/1994/104/Add.22 (State Party Report), 23 July 1998.

Last updated 7 October 2003.