The following list gives a summary of the final observations of CERD. The
numbers in parenthesis refers to the paragraph numbers in the full report.
(which is below the summary.... ch)
CONCLUDING OBSERVATIONS ON AUSTRALIA
BY CERD (COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION)
56th session, 6 -24 March 2000
Summary List of Concerns and Recommendations
CONCERNS
The absence of any entrenched guarantee in law against racial
discrimination (6)
The national responsibility to comply with treaties, including compliance
by States (7)
Reduction of rights for Aboriginals in State regimes� on Native Title (8)
Unsatisfactory response to CERD Decisions 2(54) & 2(55) on Native Title
laws (9)
ATSIC capacities to address the issues of Indigenous Peoples (11) HREOC
capacities to address the issues of Indigenous Peoples (11)
Loss of confidence by the Indigenous community in the process of
reconciliation (12)
Government refusal to apologise for separation of Aboriginal families (13)
Government refusal to compensate for separation of Aboriginal families (13)
Rates of Aboriginal incarceration (15)
Lack of interpreter services (15)
Seriously questions whether mandatory sentencing complies with the
convention (16)
The extent of inequality still experienced by the Aboriginal population (18)
RECOMMENDATIONS
Close scrutiny to be given to any proposed �State regime� on Native Title (8)
Full information on Native Title compliance be in the next Periodic Report
to CERD (9)
Report from the Parliamentary enquiry (on race discrimination) be sent to
CERD (10)
Reconsider any proposed changes to ATSIC or HREOC that limits their
capacity (11)
There be effective leadership to ensure meaningful reconciliation (12)
Government address the harm caused by separation of Aboriginal families (13)
Government withdraw its reservation to Article 4(a) re racial hatred laws (14)
Government increase its efforts to address socio-economic marginalisation (15)
Government increase its efforts to address discriminatory law enforcement (15)
Government increase its efforts to address the insufficient diversionary
programs (15)
All mandatory sentencing� laws be reviewed by the Australian Government(16)
Government implement faithfully� the 1951 Convention on the Status of
Refugees (17)
More funds be given to eradicate social/economic/cultural disparities in a
short time (18)
Reports to CERD and findings be widely available to the public (19)
The next Periodic Report, due 30 October 2000, address the present
observations (20)
*************
COMMITTEE ON THE ELIMINATION Future:
CERD/C/56/CRP�
OF RACIAL DISCRIMINATION
CERD/C/56/Misc.42/rev.3
56th session 24 March 2000
6-24 March 2000 UNEDITED VERSION
Concluding Observations by the Committee on the Elimination of
Racial Discrimination
Australia
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 22 March 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 has been 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 on
the Elimination of Racial Discrimination.
5. The Committee notes with appreciation the many measures adopted by
the State party during the period under review (1992-98) 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 of
Australia, including the launching of a �New Agenda for Multicultural
Australia� and the implementation of the �Living in Harmony� initiative.
C. Concerns and recommendations
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 expresses concern and reiterates its recommendation
that the Commonwealth Government 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 over the �future acts� regime has resulted
in the drafting of state and territory legislation to establish detailed
�future acts� regimes which contain provisions reducing further the
protection of the rights of native title claimants that is available under
Commonwealth legislation. Noting that the Commonwealth Senate rejected on
31 August 1999 one such regime, the Committee recommends that similarly
close scrutiny continue to be given to 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 Committee
Decisions 2(54) (March 1999) and 2(55) (August 1999) 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 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 ensuring the �informed consent� of indigenous peoples. The
Committee recommends 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 the �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) of the Committee. 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
inquiry to the Committee when it is tabled.
11. The establishment of the Aboriginal and Torres Strait Islander
Commission (ATSIC) and of the Aboriginal and Torres Strait 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 a 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 counseling 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 the State 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 to
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
the 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 in the case of
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
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 on the Status of
Refugees, as well as the 1967 Protocol thereto, with a view to continuing
its co-operation with the UNHCR also 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% 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 be allocated to eradicate these disparities.
19. The Committee recommends that the state�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.
--
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