COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF by mpU5Fw1Y

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									COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF
AUSTRALIA
11 August 2010

The Committee on the Elimination of Racial Discrimination has
considered the combined fifteenth through seventeenth periodic reports
of Australia on its implementation of the provisions of the
International Convention on the Elimination of all Forms of Racial
Discrimination.

Presenting the report, Peter Woolcott, Permanent Representative of
Australia to the United Nations Office at Geneva, said there had been
a number of significant developments in Aboriginal and Torres Strait
Islander affairs in Australia in recent years. In February 2008, the
then Prime Minister delivered the National Apology to Australia’s
Indigenous peoples, particularly, the Stolen Generation, for past
government policies that resulted in profound grief, suffering and
loss on the part of Indigenous Australians. In April 2009, Australia
announced its support of the United Nations Declaration on the Rights
of Indigenous Peoples and in August 2009 Australia was pleased to
welcome the Special Rapporteur on the situation of human rights and
fundamental freedoms of Indigenous peoples to the State. In November
2009 Australia also welcomed the Special Rapporteur on the right to
health.

According to Mr. Woolcott, the Council of Australian Governments had
agreed to close the gap on Indigenous disadvantage. In support of
this, the Council had set six specific targets, including: closing the
gap in life expectancy, child mortality rates, access to early
childhood education, children’s reading, writing and numeracy, year 12
attainment, and employment outcomes. In addition, in November 2009 the
Australian Government agreed to support the Indigenous representative
body known as the National Congress of Australia’s First Peoples, to
address some of the Committee’s concerns voiced in 2005 regarding the
importance of the representative participation of Indigenous peoples.

In preliminary concluding observations, Jose Francisco Cali Tzay, the
Committee Expert who served as country Rapporteur for the report of
Australia, said that for the next report the Committee would request a
definition of multiculturalism, information on the status of refugees
and an update on the situation of international students and the
Aboriginal and Torres Strait Islander peoples. The Committee would
also need statistics to help better understand the situation in
Australia, and further information on the country’s reservation to
Article 4 (a) and special measures.

Other Committee Experts raised questions and asked for further
information on subjects pertaining to, among other things, the
preservation of Indigenous languages and bilingual education in
schools, the treatment of refugees and asylum seekers, the collection
of biometric data, the status of minority women, racial and ethnic
profiling, the disproportionate number of Indigenous people in
prisons, the Northern Territory Emergency Response and the
reestablishment of the Racial Discrimination Act, the procedures for
native land title claims, and the composition and methods of work for
the National Congress of Australia’s First Peoples.
The delegation of Australia included representatives from a wide array
of governmental organizations, including the Department of Families,
Housing, Community Services and Indigenous Affairs, the Department of
Immigration and Citizenship,, the Department of Foreign Affairs and
Trade, the Attorney General’s Department, and the Permanent Mission of
Australia to the United Nations Office at Geneva.

The Committee will present its written observations and
recommendations on the fifteenth through seventeenth periodic reports
of Australia, which were presented in one document, at the end of its
session, which concludes on 27 August.

When the Committee reconvenes at 3 p.m. this afternoon it is scheduled
to take up the combined seventeenth through nineteenth periodic
reports of France (CERD/C/FRA/17-19).

Report of Australia
The combined fifteenth through seventeenth periodic reports of
Australia, submitted in one document (CERD/C/AUS/15-17), says that
while there is no specific prohibition against racial discrimination
in the Australian Constitution, human rights are currently protected
in Australia in a range of ways. These include through: strong
democratic institutions; certain rights in the Constitution; the
common law; and legislation, including anti-discrimination legislation
at the Commonwealth, state and territory levels. Australia has
implemented its obligations under the Convention on the Elimination of
Racial Discrimination in Australian law through the Racial
Discrimination Act of 1975.
The Commonwealth Government has set as a national priority closing the
disadvantage gap between Indigenous and non-Indigenous Australians. To
do this, the Government is directing its policies and programmes at a
set of measurable and time-specific targets, namely: to close the life-
expectancy gap between Indigenous people and other Australians within
a generation; to halve the mortality gap between Indigenous children
and other children under age five within a decade; to halve the gap in
literacy and numeracy achievement between Indigenous students and
other students within a decade; to halve the gap in employment
outcomes for Indigenous people within a decade; to at least halve the
gap in attainment by Indigenous students at Year 12 schooling (or
equivalent level) by 2020; and to provide all Indigenous four year
olds in remote communities with access to a quality preschool
programme within five years.
The Northern Territory Emergency Response is a significant Australian
Government initiative announced in June 2007, with bi-partisan
support, in response to a report on the prevalence of child abuse in
some Indigenous communities. The Northern Territory Emergency Response
encompasses a range of measures focusing on community safety, health,
housing and living conditions, welfare reform and restrictions on
alcohol and pornography. To address these goal areas, the Australian
Government is funding programmes in the areas of: welfare reform and
employment; law and order; enhancing education; supporting families;
improving child and family health; housing and land reform; and
coordination. The Government is committed and working towards building
a strong partnership with Indigenous Australians, based on respect,
cooperation and mutual responsibility. It is consulting with
Indigenous Australians from urban, regional and remote localities
across a diverse range of issues, including that of establishing a
national Indigenous representative body.
Presentation of Report

PETER WOOLCOTT, Permanent Representative of Australia to the United
Nations Office at Geneva, presenting the report of Australia, reminded
the Committee that a federal election would be held in Australia on 21
August and consistent with long standing practice, the Government had
assumed a “caretaker” role. As every election brought with it the
possibility of a change in government, it was very important to note
that Australia’s future policies and priorities in relation to some of
the matters before the Committee may depend on the outcome of the
election. Consequently, the Australian delegation was limited to
describing past positions under the caretaker conventions as it would
be inappropriate to elaborate or speculate on how past or existing
policy may be implemented or developed post election.

Mr. Woolcott then went on to acknowledge that Aboriginal and Torres
Strait Islander Australians occupied a special place in Australian
society as Australia’s first peoples. But it was clear that many
Aboriginal people and Torres Strait Islanders suffered profound
disadvantages when compared with the rest of Australian society. As a
society, Australia needed to work harder to enable the realization of
the human rights of Australia’s Indigenous peoples.

Mr. Woolcott said there had been a number of significant developments
in Aboriginal and Torres Strait Islander affairs in Australia in
recent years. In February 2008, the then Prime Minister delivered the
National Apology to Australia’s Indigenous peoples, particularly, the
Stolen Generation, for past government policies that resulted in
profound grief, suffering and loss on the part of Indigenous
Australians. In April 2009, Australia announced its support of the
United Nations Declaration on the Rights of Indigenous Peoples and in
August 2009 Australia was pleased to welcome the Special Rapporteur on
the situation of human rights and fundamental freedoms of Indigenous
peoples to the State. In November 2009 Australia also welcomed the
Special Rapporteur on the right to health.

According to Mr. Woolcott, the Council of Australian Governments had
agreed to close the gap on Indigenous disadvantage. In support of
this, the Council had set six specific targets, including: closing the
gap in life expectancy, child mortality rates, access to early
childhood education, children’s reading, writing and numeracy, year 12
attainment, and employment outcomes. In addition, in November 2009 the
Australian Government agreed to support the Indigenous representative
body known as the National Congress of Australia’s First Peoples, to
address some of the Committee’s concerns voiced in 2005 regarding the
importance of the representative participation of Indigenous peoples.

In April 2010 the Australian Government released “Australia’s Human
Rights Framework”, which reaffirmed Australia’s commitment to the core
United Nations human rights treaties to which Australia was party,
including the Convention on the Elimination of Racial Discrimination.
Separately, a range of other initiatives had been undertaken,
particularly those relevant to Indigenous Australians and their
encounters with the justice system. These measures included government
funds for the delivery of high quality and culturally sensitive legal
aid services for Indigenous Australians. In November 2009, a National
Indigenous Law and Justice Framework was completed and it focused on
measures to make Indigenous communities safer and to reduce the extent
of incarceration of Indigenous Australians, particularly young people.

Mr. Woolcott then went on to address issues of native title. In 2009
parliament enacted targeted legislative reforms to the Native Title
Act of 1993, which placed the Federal Court of Australia in the
central role of proactively managing the resolution of native title
claims. It also included measures to assist Indigenous and other
stakeholders in achieving quicker and better native title claim
settlements.

The inclusive and cohesive nature of Australia’s cultural, religious
and linguistic diversity was promoted and celebrated each year on 21
March, Harmony Day, which was also the International Day for the
Elimination of Racial Discrimination. Mr. Woolcott said that the
continuing message that “Everyone Belongs” encouraged people to
participate in their community, to respect cultural and religious
diversity and to foster a sense of belonging for everyone. Since the
first celebration of Harmony Day in 1990, thousands of schools,
community groups and organizations across Australia had hosted Harmony
Day events.

Mr. Woolcott told the Committee that Australia took its international
obligations seriously and, consistent with the 1951 Convention
relating to the Status of Refugees and its 1967 protocol, Australia
was committed to providing protection to people found to be refugees.
Australia was committed to providing protection to refugees. The
Committee had expressed interest in the suspension of processing of
all new asylum claims from Sri Lankan and Afghan nationals announced
in April 2010, to be reviewed within three and six months
respectively. The lifting of the suspension of processing claims from
Sri Lankan asylum seekers was announced in July 2010, following an
assessment of updated and detailed information on conditions in Sri
Lanka. All Sri Lankan asylum seekers were now having their claims
assessed on a case by case basis. The suspension of processing
remained in effect for claims from Afghan nationals. Mr. Woolcott
assured the Committee that the State was conscious of the need to
ensure that people were treated fairly and not kept in detention any
longer than necessary. All people in immigration detention would
continue to be treated fairly, humanely and with dignity, and they
would continue to have access to a range of health, recreational and
educational services. Detention services and their delivery were
subject to external scrutiny and the accountability framework which
included the Australian parliament and a number of statutory
authorities such as the Commonwealth Ombudsman, the Privacy
Commissioner and the Australian Human Rights Commission.

Lastly, Mr, Woolcott turned to the special task force established in
2009 to deal with attacks on international students. The international
student safety issue revealed deficiencies in the State’s education
and visa arrangements for international students. To ensure that those
who applied to study in Australia were genuine students and not
workers open to exploitation, education and visa systems for
international students had been reformed and the integrity of those
systems strengthened. Mr. Woolcott said the Government had increased
the amount of money that international students must prove they had to
support themselves financially before they could obtain a student
visa. They had also reformed the general skilled migration programme,
which would largely remove the incentive for overseas students to
apply for a particular course simply in the hope of being granted
permanent residency. Education standards had also been strengthened to
improve the quality of education institutions by tightening financial
viability and student fee protection requirements.

Mr. Woolcott then invited other members of his delegation to speak on
thematic issues pertaining to the periodic report. With regards to the
Northern Territory Emergency Response, the delegation said that the
legislation to reinstate the Racial Discrimination Act in relation to
the Northern Territory Emergency Response and to redesign a number of
Northern Territory Emergency Response measures was now law following
extensive consultations and engagement with Aboriginal people and
passage by parliament on 21 June 2010. The consultations gave
participants an opportunity to tell the Government how the measures
were working and what changes, if any, community members were seeking.
This reinstatement would occur from 31 December 2010, allowing time
for redesigned measures to be put into place and for an effective
transition.

The delegation went on to say that land occupied an important place in
the cultural, spiritual, social and economic lives of many Indigenous
Australians. As such, the negotiation of leases with traditional
owners provided formal recognition of Indigenous people as owners of
the land, and made it clear who could use the land and who was
responsible for looking after it. Ownership of leased land remained
with Indigenous owners. Residents would not be removed from their land
as the result of the granting of a lease.

The delegation then went on to describe how the State was addressing
Indigenous family violence, which was a major focus of all Australian
governments and they had agreed to national priorities in several
areas including boosting efforts to reduce violence against Indigenous
women and their children. They had also agreed to the development of
the National Plan to Reduce Violence against Women and their Children.
Though not yet finalized, the Australian Government had been working
with the states and territories to identify priority areas for action.
The delegation informed the Committee that the Government had recently
announced the Indigenous Family Safety Agenda to fund Indigenous
family safety community initiatives focused on the priority action
areas including addressing alcohol abuse, more effective police
protection, strengthening of social norms against violence and
coordinating support services.

With regard to anti-discrimination legislation, the delegation noted
that the Racial Discrimination Act of 1975 made it unlawful to
discriminate against any person because of their race in areas of
public life. The law also made offensive behaviour based on racial
hatred unlawful. Under the Act, complaints of racial discrimination
were made to the Australian Human Right Commission, which was required
to seek to conciliate the outcome. Depending on what the complaint was
about, conciliation could result in an apology or payment of damages.
From 2008 to 2009, the Commission received 396 complaints under the
Racial Discrimination Act of 1975, with eight per cent of those
complaints made on the ground of racial hatred. From 2008 to 2009, the
Commission successfully conciliated 55 per cent of the complaints
finalized. If conciliation was unsuccessful, the matter could be taken
to court.

The delegation said that in addition to legislation, Australia was
strongly committed to preventing racial vilification and
discrimination through human rights education. Education was the basis
upon which a genuine and lasting respect for human rights and
obligations was founded. In this regard, the Government had tasked the
Commission with a human rights education role. Projects undertaken by
the Commission in this regard included the “Geography of Racism
Research Project” and the “African Communities Project”. At the
request of the Government, the Commission was undertaking further work
to tackle cyber racism and in April 2010 it convened a summit with the
Internet Industry Association to discuss strategies to address
Internet racism with key stakeholders. In the 2010 budget, the
Government had committed 4.3 million AUD to enable the Commission to
continue its work addressing social marginalization and alienation of
vulnerable groups, such as international students.

The delegation said that a number of measures had been taken to
address Indigenous justice and community safety. For example, in 2009,
all Australian governments endorsed the National Indigenous Law and
Justice Framework, an overarching approach to addressing the serious
and complex issues that marked the interaction between Aboriginal and
Torres Strait Islander peoples and the justice systems in Australia.
Also in November 2009, the national government hosted a Roundtable on
Indigenous Community Safety which focused on four main areas:
community policing; alcohol reduction strategies; information sharing
and integrated service delivery; and supporting victims of family
violence. The federal government had also allocated additional ongoing
funding of 154 million AUD into legal assistance services over four
years. The delegation said the federal government was also responsible
for the Family Violence Prevention Legal Services Programme, under
which it funded 31 Indigenous-controlled community organizations to
provide legal and other support to victims of family violence. Funding
for this year was 19.5 million AUD. In relation to native title, a
further 80 land title claims had been determined since Australia last
appeared before the Committee, bringing the total of resolved title
claims to 136.

With regard to Australia’s humanitarian programme, the delegation said
Australia had a long history of humanitarian resettlement and it
remained committed to its obligations to provide protection to people
who required it. Since the end of World War II, nearly 750,000 people
had been welcomed by Australia through its Humanitarian Programme. The
Humanitarian Programme had two components: the onshore component
offered protection to people who were found to be refugees in
Australia and the offshore component offered resettlement to people
outside of Australia who were in need of humanitarian assistance.
Widespread changes were introduced in 2008 when the Government
announced a suite of reforms to immigration detention policy. Under
the Key Immigration Detention Values, immigration detention was used
in three instances: people who were unauthorized arrivals; unlawful
non-citizens who presented unacceptable risks to the community; and
unlawful non-citizens who had repeatedly refused to comply with their
visa conditions. Detention in immigration detention centres was used
only as a last resort and indefinite or otherwise arbitrary detention
was unacceptable and children were not detained in immigration
detention centres. The delegation said it was also worth noting that
the incidence of long term detention had been reduced; between March
2008 and April 2010, there was a 72 per cent reduction in the number
of people detained for more than two years.

Regarding multicultural affairs, the delegation said that the
Government operated a number of programmes that worked with the
broader Australian community to provide social and economic
opportunities, build understanding and acceptance of shared
responsibilities, and enhance respect among all Australians. The
department managed a number of key programs to sustain and enhance
Australia’s social cohesion based in such understanding and respect,
including: the Diversity and Social Cohesion Programme; Community
Liaison Officers; and National Harmony Day.

The delegation informed the Committee that in recent years, the
Australian Government had implemented a number of measures to further
improve the wellbeing of Indigenous Australians and eliminate
workplace discrimination generally. These positive, concrete steps to
address racial discrimination in the workplace and strengthen the
labour rights of migrants and asylum seekers included the new Fair
Work Act of 2009, which expanded workplace protections to prohibit a
range of adverse actions taken by employers, including dismissal. The
law also extended the protections to include prospective employees,
which meant that it was now unlawful for an employer to refuse to
employ a person, or to prejudicially alter the position of an
employee, on the basis of their race. Additionally, the Worker
Protection Act, introduced in September 2009, sought to eliminate
racial discrimination by ensuring migrant workers received the same
wage entitlements as local workers.

According to the delegation, the Australian Government had also made
progress in closing the gap in opportunities between Indigenous and
non-Indigenous Australians. Specifically, the Government was committed
to providing good access to quality education for Aboriginal and
Torres Strait Island people. In addition, the Government was committed
to Indigenous language education in Australian schools and recognized
the important role Indigenous language learning played in schools and
communities. These were just some examples of the many measures the
Australian Government had taken in recent years to further address
racial discrimination in the workplace and close the gap in
opportunities between Indigenous and non-Indigenous Australians.

Lastly, the delegation informed the Committee that Australia was
committed to improving the health outcomes of all Australians and
aimed to deliver high quality healthcare across the geographically and
culturally diverse population, regardless of race or social standing.
To this end, Commonwealth programmes to improve health outcomes for
Indigenous people had three objectives: to improve access to, and
responsiveness of, the mainstream health system; to ensure the
complementary action through Aboriginal and Torres Strait Islander
specific health and substance use services; and to collaborate across
governments and the health sector to improve service delivery and
outcomes. Under a National Partnership Agreement, the Commonwealth
government committed 805.5 million AUD over four years to tackle
chronic disease among Indigenous Australians. Overall, investment by
the Commonwealth government had increased by 33 per cent since 2007 to
improve access to healthcare tailored to meet the needs of Aboriginal
and Torres Strait Islander peoples.

Questions Raised by the Rapporteur and Experts

JOSE FRANCISCO CALI TZAY, the Committee Expert serving as country
Rapporteur for the report of Australia, said he had looked at the
information provided by the State party as well as civil society
groups and non-governmental organizations. Mr. Cali Tzay also took
into account the pre-electoral state of the country and he noted some
specific details of the caretaker arrangements including the
requirements that public officials have any public appearances pre-
approved and they were to limit their public statements to factual
points.

The Committee had looked at Australia three times in terms of its
early warning procedure and appreciated the action the Government had
taken regarding the last case the Committee had reviewed. Mr. Cali
Tzay also noted that Australia had issued a standing invitation to the
Special Procedures of the Human Rights Council and had ratified a
number of international instruments and their optional protocols;
however he drew attention to the fact that the State party had not
ratified the optional protocol to the Convention on Economic, Social
and Cultural Rights.

Mr. Cali Tzay asked the delegation to comment on the lack of
integration in the educational curriculum of human rights information
and he said he was concerned by Australia’s resistance to the
ratification of the International Labour Organization Convention 169.

Mr. Cali Tzay welcomed the reestablishment of the Racial
Discrimination Act, but he was concerned that the Northern Territory
Emergency Response laws were still being applied for the Northern
Territories and he requested more information on how this law was
being applied.

The Rapporteur applauded measures taken by the Australian State to
apologize to the stolen generation, but he was a concerned that in
order for victims to obtain reparations, they had to go though a
complicated and embarrassing procedure. Would it be possible to
streamline this process and make it easier?

With regard to the National Congress of Australia’s First Peoples, Mr.
Cali Tzay asked how autonomous this body was and how much power it
had. The Rapporteur said he would ask additional questions about the
native title act.

Mr. Cali Tzay applauded the Government’s attempts to improve the
health of Indigenous people. He also requested more information on the
status of Indigenous children in Australia. The Special Rapporteur for
Indigenous peoples had raised a number of concerns regarding
consultations with Indigenous communities and the return of title to
their land and Mr. Cali Tzay asked for further information on reforms
meant to have positive affects on these issues. How difficult was the
process of obtaining land title, what documents had to be provided and
was the burden of proof on Aboriginal peoples. How could they prove
they were the original owners of the land? Shouldn’t the burden of
proof be on the Government?

Were there proposals for reform of the Australian Human Rights
Commission? In terms of the National Human Rights Consultation
process, what state was this consultation in now?

How was the information from this Committee disseminated to the public
and was civil society involved in the preparation of this report as
well as the participation of Indigenous peoples?

Mr. Cali Tzay asked the delegation why Australia maintained its
reservation to Article 4 pertaining to the characterization of
discrimination as illegal. Was there lawful versus unlawful
discrimination?

With regards to the Internet, there was a telephone line and website
available to the general public regarding the dangers of the Internet,
including racist information. This was commendable, but Mr. Cali Tzay
asked why the measure was taken; was it out of fear that racist speech
was being spread online?

The Rapporteur said he was still concerned by the lack of
disaggregated data on the demographic makeup of the population and
wanted more information on special measures that could be taken by the
Government.

In the area of immigration, many laudable changes had been made,
however Mr. Cali Tzay was concerned about the period of detention and
children in detention centres. The report referred to Australia’s open
door policy in terms of immigrants and in this light the delegation
was asked to share its definition of multiculturalism and it was also
asked about attacks on international students.

The floor was then opened to other Committee members and the first
speaker asked about the representation of Aboriginal peoples in the
Australian prison system. The figures were worrisome and it was
something that needed to be addressed. Could the delegation comment on
what was being done to address this problem and why were the
incarceration rates rising for this population?

Another Committee Member asked how many victims of the stolen
generation had received reparations or compensation. There was also no
solid guarantee for non-discrimination in any of the states of
Australia so what guarantees were in place that legislation adopted by
the federal government would be implemented? Why not have an
overarching federal law that would impose uniform measures and what
state body was responsible for overseeing these laws? Where did the
Convention fit into the system of federal and state laws as well as
the laws of the autonomous territories? The delegation had talked
about multiculturalism and a multicultural policy. Was there a
difference between the two? How could one assure the participation of
various groups in the cultural life of the State? Referring to the
Durban document, which clearly stated that Indigenous peoples should
not be subject to any discrimination, the Committee Expert asked
whether renewable land leases deprived Indigenous peoples of the use
of their lands. The Committee Expert said that the State should also
pay more attention to the activities of businesses abroad which could
deprive people of their rights with regard to pollution and other
activities. The Committee Expert also suggested Australia review its
reservation to Article 4.

A Committee Expert commented that a treaty with Indigenous peoples
might be a good idea in light of the fact that there was never one
drawn up and it could help to ensure the rights of Indigenous peoples.
With regard to native title, it was important to seek creative and
participatory ways to address this issue and the Committee Expert went
on to say that language retrieval for Indigenous peoples was an
important aspect in maintaining the cultural life of a community and
there was a great deal on international best practices on how to do
that. The Committee Member also asked about the new national
curriculum that was being drafted and how Indigenous peoples would be
portrayed in the curriculum and what their involvement was in drafting
the new curriculum. The Expert also suggested a move from viewing
Indigenous peoples through a social problem paradigm to a rights based
approach. Lastly, the Committee Expert said the reinstatement of the
Racial Discrimination Act of 1975 would still not deal with the
discrimination engendered by the National Territory Emergency
Response, a law which came later.

The next Committee Expert asked for statistics on racially motivated
violence in Australian to see if there was an increase or decrease in
such violence over time and whether current measures and legislation
were sufficient in combating such violence. The Committee Member also
wanted to know what the mechanism was to translate Australia’s
international obligations into federal obligations. What did the
national curriculum entail to promote human rights and combat racism,
and how would the revision of history books be approached? Turning to
anti-terrorism measures, how did authorities ensure these measures did
not lead to racial and ethnic profiling and stigmatization of certain
minority groups in the country?

Regarding asylum seekers, an Expert asked if there was a distinction
between people who arrived by boat versus other means and if so were
they intercepted at sea. Was Christmas Island considered part of
Australian territory? The Expert also noted that there was talk of
having Timor be used as a place to process asylum seekers and the
Expert asked for any clarification the delegation could provide on
this matter.

Another Expert asked what mechanisms were in place to award collective
land rights and what was the quality of the land that was awarded?
Turning to the justice system, young Indigenous people were 21 times
more likely to end up in jail than non-Indigenous peoples. Were there
separate Indigenous jurisdictions?

The next Committee member focused their intervention on racially
motivated attacks against international students. According to media
reports, Australian police did not maintain records of racially
motivated violence but Indian international students were 2.5 times
more likely to be attacked than non-international students. The
attacks took the forms of stabbings, beatings and setting victims on
fire. The Australian Government had a responsibility to prevent these
actions, but because of reservations to Article 4 there was no
specific legislation criminalizing racially motivated acts of
violence. The absence of records by police was also a problem. What
was being done to address these issues? Were states being urged to
adopt laws to criminalize racially motivated acts of violence, or was
this prohibited by the State’s reservation to Article 4?

Another Committee member asked why Australia felt it didn’t need a
bill of rights to accompany its constitution. This followed by a
question on the number of people who died in police custody, over 1200
people. Regarding the prison population, the Expert said the figures
could be very misleading because they only indicated the percentage of
the prison population that was Indigenous, they didn’t give a clear
indication of what percentage of the Indigenous population was
imprisoned, which would give a clearer indication of the gravity of
the situation.

Another Committee Member asked for an update on measures taken to
eliminate discrimination against Muslims after 9/11 and the delegation
was also asked for clarification on the National Congress of
Australia’s First Peoples. Was it a legislative body? Was it only made
up of Indigenous peoples? What was its role and functions? How did it
interact with the Government?

A representative from the Australian Human Rights Commission then made
an intervention, and began by applauding the Government’s positive
achievements addressing racial inequality and discrimination. What
percentage of the budget was devoted to fostering a rights based
approach to ending racial discrimination, as opposed to broader
government policy agendas? Second, two shadow reports had identified a
strong need for a domestic implementation mechanism for the Convention
on the Elimination of Racial Discrimination. Third, in 2009 there was
a national human rights consultation held and there was strong support
for an enshrined bill of rights to further protect laws. Also human
rights education deserved greater attention and investment, as the
human rights framework was just a first step.

Despite welcomed reforms under Australia’s Native Title Act, the
claims process continued to be complex, highly adversarial, costly and
inefficient. The representative asked how the Australian Government
planned to deliver land justice to Aboriginal communities, meaning the
economic, social and cultural empowerment of Indigenous peoples
through the native land title system. The development of the National
Congress of Australia’s First peoples was welcomed, but it did not
constitute, nor should it substitute, for broader community
participation.

The representative went on to say that languages were critically
endangered in Australia and dying out rapidly. Today, there were 100
languages, most in varying stages of extinction and there were only 18
Indigenous languages currently spoken by all people in all age groups.
Without intervention, Indigenous language usage would cease in 10 to
30 years.

Over the last 18 months, the Commission had done work on the safety
and well being of international students, who told the Commission that
student safety was a symptom of other issues including racism and
discrimination, lack of accessible and affordable accommodation, poor
employment conditions, transport costs, lack of student support
services, variable quality of education, and social isolation and
exclusion.

From 2007 to 2010, the Commission conducted national community
consultations for African Australian communities, the newest migrant
group. Key issues included the need for improved understanding of
child protection and family law in Australia, the over-policing of
young men, and pervasive employment discrimination. During the last
four years, Commission members had also made nearly two dozen visits
to Australian Immigration Detention Centres, where they had observed
isolation, despair and deterioration of mental health in those who had
made the heartbreaking decision to leave their home countries.
Progress had occurred, but new detention values were policy, not law.
People were mandatorily detained in isolated, remote locations, people
who arrived by boat had reduced rights, and children and families were
still detained, although under less security.

Response by Delegation

Addressing concerns expressed regarding the regulation of activities
of Australian companies overseas, the delegation said that Australia
had appropriate legislative and administrative measures in place to
regulate the extra-territorial activities of Australian companies
operating overseas. Australian corporations overseas remained subject
to a number of Australian laws relating to corporate behaviour and
certain criminal law, particularly in relation to corruption.
Australian companies were also bound by the laws of the jurisdiction
in which they operated, including those relating to racial
discrimination. The Department of Foreign Affairs and Trade also
conducted outreach to Australian industries on the theme of “trading
with integrity” to highlight those Australian laws that did continue
to apply to Australians and Australian companies trading or investing
overseas, and to promote awareness of the international best practices
guidelines.

In terms of the involvement of civil society in the preparation of
this report, the delegation said that the report was prepared by the
Government in consultation with the Australian Human Rights
Commission. The report was also released for public comment and a
number of submissions were received from civil society, which assisted
in the preparation of the final report and the delegations appearance
before this Committee.

Regarding the application of the Northern Territory Emergency Response
legislation and the reinstatement of the Racial Discrimination Act,
the delegation said the amending legislation completely repealed all
provisions contained in the Northern Territory Emergency Response
legislation that excluded the operation of the Racial Discrimination
Act and those that deemed the measures to be special measures.
Starting on 31 December 2010 people had the right to bring proceedings
to challenge their treatment under the legislation or the legislation
itself. In terms of what constituted a special measure, it must result
in a benefit to some or all of a class of people based on race,
colour, descent, or origin; the measure was for the sole purpose of
improving the situation of beneficiaries; and the measure must end as
soon a situation achieved its aim. It was the Government’s view that
the special measures that were still in place were consistent with
this definition of special measures.

The positive effects of the Northern Territory Emergency Response
included drawing attention to the poor level of infrastructure in
Northern Territory communities and had increased funding to these
areas. More than 60 additional police had been deployed, 5 police
stations had been upgraded, a mobile child protection team had been
established, 18 temporary police stations had been added, and a
substance abuse intelligence desk had been established in Catherine.
The positive role of policing was demonstrated in a study released
earlier this year. Additional health services had also been provided,
including dental and audiology services as well as ear, nose and
throat services. Approximately 140 additional teachers had been funded
in schools and the school nutrition program provided meals to
thousands of students everyday. A consultation involving residents of
the Northern Territory Emergency Response communities showed that many
people thought that the income management programme had resulted in
less money being spent by families on alcohol, cigarettes and drugs
and more money being spent on children and household items. In terms
of the Basic Card, they could be used to pay for a number of things at
a number of outlets including food, non-alcoholic beverages, clothing,
childcare, car maintenance and other items. The Basics Card was
accepted at more than 4,300 merchants nationally.

The negative aspects of the Northern Territory Emergency Response
included members of Northern Territory communities feeling hurt,
humiliated and confused by how the law was initially implemented. They
also felt that different standards were applied to them versus other
Australians, and that some measures were not working as well as they
could such as the Basics Card not working well and alcohol
restrictions applied as blanket restrictions, rather than being
decided on a case by case basis. The changes the Government made to
address these problems included reinstating the Racial Discrimination
Act, making the income management programme non-discriminatory, and
changing alcohol restrictions so that they were more flexible and had
more community decision-making involvement.

Turning to questions related to closing the gap between Indigenous
peoples and non-Indigenous communities, the delegation noted that the
Government recognized that strategies would not work in isolation and
had to be part of an integrated approach. This included over 1.6
billion AUD to expand primary healthcare and tackle chronic disease,
almost 5.5 billion AUD to address housing conditions and shortages in
remote Indigenous communities, 291 million AUD to improve delivery and
access to services, 564 million AUD to address early childhood
development, and 228 million AUD to assist Aboriginal and Torres
Strait Islander peoples into employment. Regarding childhood poverty
in the remote Northern Territory, the delegation pointed out that a
family with two non-working parents and two young children would
receive monies under the social welfare system totalling 32,000 AUD
per year. The real issue is the child protection system which faced
enormous challenges in the Northern Territory because it was a huge
land mass with dispersed residents. There was an inquiry into the
system and a report was anticipated later this year.
In relation to the numerous questions asked by Committee Members about
the native land title system in Australia, the delegation explained
that there was a fundamental difference between land rights and native
title. Land rights were legislated by the government or state or
territory governments, and usually comprised a grant or freehold or
perpetual lease title to Indigenous Australians. In contrast, the
delegation explained that native title arose as a result of the
recognition under Australian common law, of Indigenous rights and
interests according to traditional Indigenous laws and customs. It was
not a grant or right created by the governments. Five year leases did
not affect the underlying title to the land; traditional owners still
owned the land, but the leases allowed the Government to access the
land and perform upkeep and develop infrastructure. People who had
access to the land before the leases could continue to use the land.
In relation to compensation, the Northern Territory valuator general
determined a reasonable amount of rent to be paid to the owners of the
land and the government paid those rents

The delegation then moved on to discuss Indigenous languages. It was
noted that there was a national Indigenous language policy, which
included the maintenance of an indigenous records programme and money
budgeted to maintain indigenous languages.

Regarding the implementation of the Convention on the Elimination of
Racial Discrimination in Australia, the delegation said Australia’s
compliance with international obligations was ensured not only through
prohibitions under laws in all jurisdictions, but also through an
interrelated system of parliamentary, judicial and administrative
structures, laws and institutions. Treaties in Australia were not self-
executing and required legislative implementation to be effective in
Australian law. Before Australia signed, ratified or otherwise became
bound by a treaty, the Government satisfied itself that any domestic
legislation necessary to implement the treaty were in place. The
Australian Human Rights Commission played a vital role in holding the
government of the day accountable to its human rights obligations.
Other institutions that played a role in protecting and promoting
human rights in Australia included the Commonwealth Ombudsman, the
Australian Law Reform Commission and, where appropriate, Royal
Commissions.

The delegation said that regarding the lack of a bill of rights, the
Government made the decision that rather than developing a legislative
charter, the framework for human rights was focused on ensuring people
understood their human rights and responsibilities and that laws were
developed, drafted and considered by parliament with a particular
focus on ensuring laws were consistent with Australia’s international
human rights obligations. In terms of Australia’s continued
reservation to Article 4(a), the delegation said that the approach of
successive governments had been that existing federal and state
territory legislative framework, combined with educative measures, had
been the best way to deal with racial discrimination and vilification.
All states and territories, with the exception of the Northern
Territory, had enacted legislation that prohibited racial
discrimination and, in most cases, had criminal provisions against
racial hatred.
Committee Experts had raised a number of questions about racism in the
justice system. The rate of imprisonment for Indigenous prisoners was
14 times higher than the rate for non-Indigenous prisoners as of 30
June 2009. In 2000, the Indigenous rate of incarceration was 9.6 per
cent and Indigenous peoples represented one quarter of the prison
population. The State had undertaken measures to reduce the over-
representation of Indigenous peoples in the criminal justice system
through a National Indigenous Law and Justice Framework, by focusing
on community safety and reducing alcohol and substance abuse-related
crime. There was not a separate Indigenous jurisdiction, although
Indigenous sentencing courts currently operated, or were being tried,
in all state and territory jurisdictions except Tasmania. In the
Northern Territory, access to the community court was not limited to
Indigenous Australians; nonetheless the majority of its clientele were
Indigenous.

In terms of fostering multiculturalism, the delegation said the State
provided English language training for migrants and interpretation
services for non-English speakers. The Access and Equity Strategy also
encouraged and supported all federal agencies to respond to the
cultural, linguistic and religious diversity of the Australian
population in the design and delivery of policies and programs. The
State had also undertaken several measures specifically to combat
racial discrimination against Arabs and Muslims in the aftermath of
September 11th. This included the Diversity and Social Cohesion
Programme, which developed projects to address cultural, racial, and
religious intolerance by promoting respect, fairness and a sense of
belonging for everyone.

The delegation also addressed issues concerning Australia’s detention
policies. Children were not placed in Immigration Detention Centres,
but where necessary were accommodated in low-security alternative
places of detention within the immigration detention framework, such
as residential housing and immigration transit accommodation.
Regarding asylum seekers, the delegation said that Australia would not
refoule a refugee regardless of the method of arrival in Australia.
People who arrived lawfully and claimed asylum were processed under
the onshore protection visa process. These applicants generally
remained in the community while their claims were assessed. Applicants
who arrived at an excised offshore place, such as irregular maritime
arrivals, were unable to submit a protection visa application unless
the Minister for Immigration and Citizenship allowed them to apply for
a protection visa. Generally speaking, irregular maritime arrivals
remained in immigration detention while their applications were
processed to conduct health, identity and security checks. This
ensured that any potential risks to the Australian community were
managed.

A Committee Expert had asked whether Christmas Island was part of
Australia, and the delegation said it was and that Australian laws
applied there, including international obligations. Under the
Migration Act, Christmas Island was an “excised offshore place”, which
meant that non-citizens who first entered Australia there without a
valid visa were unable to make a valid visa application unless the
Minister for Immigration and Citizenship permitted the person to make
a valid visa application. There was litigation currently before the
High Court of Australia, due to be heard on 24 and 25 August 2010,
concerning the assessment of asylum claims made by persons who entered
Australia at Christmas Island. People smuggling and irregular
migration in the Asia-Pacific region were enduring challenges that
required a regional response. The establishment of a processing centre
in the region was one element of a broader, sustainable regional
protection framework that the current Australian Government sought to
develop.

The delegation said that it had not ratified the International Labour
Organization Convention 169 because the ratification process was quite
complex and they had to ensure that all state and federal laws were in
compliance with the Convention before ratification could be
considered. Due to the caretaker restrictions, the delegation could
not say where this legislation would fall on the list of priorities
for the incoming government, but the subject of prioritisation of
Conventions would certainly be on the agenda at the next meeting of
the Workplace Relations Ministers Council, which handled the matters
relevant to ratifications of ILO Conventions.

The Australian curriculum was being developed by an authority
responsible for this area using the Melbourne Declaration on the
Education of Young Australians as the framework for reform. The aim of
the curriculum overhaul was the development of successful learners and
active and informed citizens, with an appreciation for
multiculturalism and the contributions of different groups to
Australia. This would include information on the culture and history
of Aboriginal and Torres Strait Islander Australians. Human rights
education was also embedded in the curriculum. Significant funding was
provided for bilingual education and to support Indigenous language
programmes.

Lastly, the delegation said Australian law enforcement authorities did
not routinely collect data on victims’ nationality, ethnicity or
immigration status, but it was clear from reports where the victims
had been identified as international students that the vast majority
of incidents involved robbery or had other non-racial motivations. The
Australian Institute of Criminology has now been tasked to address the
question of whether international students are subject to higher rates
of victimisation. Australian political leaders at all levels had
publicly condemned attacks on international students and had pledged
to work together to bring perpetrators to justice, protect students
and others in the community and promote tolerance.

Further Questions Posed by Experts

JOSE FRANCISCO CALI TZAY, the Committee Expert serving as country
Rapporteur for the report of Australia, asked whether bilingual
education was English for Indigenous peoples, or an Indigenous
language and English for all students. What was the status of children
who were born to immigrants on Christmas Island, and could they play
unaccompanied by police officers? Could the delegation also provide
more information on the social inclusion agenda, such as resources
allocated and strategies to ensure inclusion occurred in practice?

Another Expert commented that it was surprising that sending more
police into a community and opening more police stations was a
positive development. It was also noted that teaching Indigenous
people or newly arrived immigrants to speak English was not
multiculturalism.

Another Expert then asked if Australia accepted the “testing system”
in noting racial discrimination in access to housing, employment and
public spaces and was it frequently used? Was it true that Australia
was collecting biometric data in airports to determine the origin of
passengers? If so, what useful information was being obtained and used
and what measures were taken to protect rights to privacy?

The next Expert to speak asked the delegation about ethnic profiling
and stigmatization of certain groups. There were rules and regulations
in place to avoid this, but of course the rules and the application of
the rules on the ground were two different things. What preventive
measures were taken at the policy level to make sure this profiling
did not happen? Were people from certain groups singled out to provide
biometric data or did the media routinely identify perpetrators of
crime by their ethnic backgrounds?

A Committee Member said it would be helpful in the next report to have
more information on the forms and methods that consultations with
Indigenous communities took.

Another Committee Expert said that throughout the report, an element
that had not been mentioned was education as a whole. Were Indigenous
children integrated in the schools and did they learn general
education topics such as math and science?

The last Committee Expert to speak commented that they would have
liked to discuss steps for the future, but the caretaker conventions
prevented such discussion. What measures were taken to mitigate the
double burden that Muslim and Indigenous women faced in terms of both
gender and racial discrimination?

Replies by Delegation

Responding to those questions and others, the delegation said that
Indigenous languages were taught to both Indigenous and non-Indigenous
students in some schools. There were also approaches to support
Indigenous peoples reconnecting to their languages.

Regarding children on Christmas Island, a detention services provider
was contracted to provide services in detention centres so they would
be the ones escorting children, not police officers. The delegation
said without more details of the specific cases referred to by the
Committee member it was difficult to give a more fulsome answer.

The delegation said a broad approach had been adopted for social
inclusion, including the establishment of a Social Inclusion Board and
a Social Inclusion Framework. Some of the key focuses of this social
inclusion agenda included closing the gap in social outcomes between
Indigenous and non-Indigenous peoples, ensuring people could fully
participate in Australian society, and ensuring disadvantage was not
exacerbated by geographic location .

The delegation said that with regard to multiculturalism, the emphasis
on English was an important one because the ability to speak English
was vital to finding employment and employment was a major reason
people moved to Australia. Nevertheless, the Government also sought to
preserve peoples’ culture and languages through a variety of measures
including public television and radio.

The presence of police helped ensure freedom from violence for
families, according to the delegation and this was an important aspect
of improving life for Indigenous communities. There were also benefits
from restricting alcohol, including less violence and disruption in
communities. Women especially supported the continued restriction of
alcohol and the national consultation showed that there was support
for the continuation of the restrictions.. The consultation process
also showed that there was an expectation that people would have
access to the types of services available elsewhere, including
availability of police to protect and assist communities. Police
needed to be appropriately trained in culturally sensitive practices
and there needed to be a strong and close relationship between the
police and the community and that was an ongoing piece of work.

Regarding complaints of racial discrimination, the key point the
delegation wanted to make was that under the human rights framework
the current Government was committed to consolidating anti-
discrimination laws and this included looking at the complaints
process to make improvements so the issue of the burden of proof would
be considered under that review.

In terms of the application of the national security laws, the
delegation said there was no particular bias toward any ethnic or
racial communities. However, there was a mechanism in place to raise
concerns about the application of national security laws, which may
include concerns about possible racial profiling. Turning to the
collection of biometric data, the delegation said it was considered an
important tool in the management of identity crimes and the Government
believed it would improve integrity of visa application process. The
Government also met its privacy obligations in a number of ways,
including sanctions against the mishandling of data. All people who
launched paper based visa applications in selected countries,
regardless of country of origin, would be required to have their
picture and fingerprints taken.

The delegation was informed that the questions they were unable to
answer in the time allotted could be answered in writing.

Preliminary Concluding Observations

In preliminary concluding observations, JOSE FRANCISCO CALI TZAY, the
Committee Expert who served as country Rapporteur for the report of
Australia, thanked the delegation for its openness and dialogue with
the Committee and the participation of civil society groups. Mr. Cali
Tzay said that for the next report the Committee would request a
definition of multiculturalism, information on the status of refugees,
the situation of international students and the Aboriginal and Torres
Strait Islander peoples. The Committee would also need statistics to
help better understand the situation in Australia, and further
information on the country’s reservation to Article 4 (a), and special
measures.
In concluding remarks, PETER WOOLCOTT, Permanent Representative of
Australia to the United Nations Office at Geneva, thanked the
Committee for the high level interaction and said Australia was
committed to upholding its human rights obligations. Mr. Woolcott said
the delegation looked forward to receiving the concluding observations
in a few weeks and continued close interaction with this Committee.

								
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