ETHNOCIDE: A CRIME EQUAL TO GENOCIDE

Navanethem Pillay

UN High Commissioner for Human Rights

Palais Wilson

52 rue des Paquis

CH-1201 Geneva

Switzerland

24 May 2011

ETHNOCIDE: A CRIME EQUAL TO GENOCIDE

Submission by Michael Anderson,

Leader of the Euahlayi Nation

Co-founder of the 1972 Aboriginal Embassy in Canberra

and Convenor of the New Way Summit

Continuing Sovereignty:

In 1999 a submission was made to the United Nations entitled Australia-The Concealed Colony. It was compiled by senior researchers Frank Coningham, Geoffrey Skelton and Ian Henke with research assistance from the University of Lausanne, the Sorbonne (Paris), the Humbolt University (Berlin), Trinity College Dublin, University of La Sapienza (Rome), the Comlutenso de Madrid, Universities of Oxford and Cambridge, University of Ghent (Belgium) and major American universities of Stanford, Cornell, Berkley and Harvard.

Australia-The Concealed Colony was tabled in the UN explaining that Australia was not a Legal Nation by comparison to other countries and that Australia was only classified as an Independent State by virtue of the fact that it is a Signatory to the UN charter and the Treaty of Versailles.

Since all law throughout the world law is about absolutism and certainty not ambiguity, it is a requirement of the UN to ensure that its Member States are in fact bone fide. Failure to do so is negligence and against the principles of the UN.

Aboriginal Nations and Peoples have never accepted British rule in Australia and this is evidenced by the violent discourse in Australia since British invasion in 1788.

Whilst British Crown has consistently requested, both as a prerogative exercise and written as an instruction to Governors and governments, Aborigines were to be treated as British subjects and afforded the protection of British law this did not usurp our Peoples’ sovereignty.

It is important to have cognisance of the fact that being treated as British subjects and afforded protection of British law in no way compromises the continuing sovereignty of Aboriginal Nations and Peoples in Australia.

Another aspect of the continuing sovereignty of Aboriginal Peoples is the fact that Australian governments recognise it. This is evidenced by the fact that when dealing with Aboriginal people all policies and regimes have been directed towards Aboriginal People as a distinct race where special measures have been adopted. Furthermore past Legislation at State and Commonwealth levels have been, at the first instance, about protecting a race of People from the vigilante ‘Settlers’ who sought to clear the land of Aboriginal Inhabitants.

These laws make Australia the only Country in the world where laws were put in place to protect one race of people from another.

In order to afford protection for Aboriginal People it was necessary to set up government Mission Stations where the authorities, not only attempted to “smooth the dying pillow for a dying race” as it was first thought, but the same Mission Stations, both church and government, became prison institutions where the people had no right of freedom of movement or freedom of association and their personal and social welfare was totally dependent upon government appropriated aid.

The most unfortunate thing about these institutions was once you and your family were committed there was never a release date. It wasn’t until much pressure came to bear from foreign countries, who through various UN Committees sought to be informed on the welfare and well-being of Australia’s Aboriginal Inhabitants, that change began. One such country was Ghana in the 1940s.

It is important for the UN and other countries to know that, in respect of Aboriginal Cultural Heritage. There now exists within Australia laws in every State and territory that vest ownership of our cultural heritage to white bureaucrats and Ministers of the Parliaments.

Land title

In Australia the government has interfered with due process and natural justice through the creation of the Native Title Act 1993 and its Amendments through which the government imposed its will upon the independent arbiters of law by interfering with the common law process when determining Aboriginal Peoples’ continuing association with land. Instead of now dealing with the common law rights of Aboriginal Peoples with respect to their Traditional Lands, the government codified and established criteria on how Aboriginal people are expected to prove their continuing association with Country.

By doing this the courts are required to rule on peoples’ access where by Traditional Owners have to demonstrate the exercise of their Customary Practices while living in modern Australia, and all the while knowing that 60% of the Aboriginal population were rounded by Australian Government authorities and removed from their lands under Government Policies. The fact that our people, in many areas, had no right of freedom of movement made it impossible for Aboriginal Peoples of the southeast states to ever have sufficient customary association with their country and all lands were granted to non-Aboriginal farmers and other landholders. The majority of Aboriginal People who were removed under Government Legislation have not had the ability to return to their homelands since the removal of mission control in 1969 for New South Wales and Queensland in 1977.

In modern Australia we continue to have Government Policies that suppress any ability of Aboriginal People to be self-determining. This can be established by an independent study of all laws relating to Aboriginal advancement within Australia.

It goes without saying that the Northern Territory National Emergency Response is a Martial Law type of rule that governs Aboriginal People in a way that dictates all forms of development, social interaction and economic progress for Aboriginal People in the Northern Territory. Similarly, other States do not fare much better as statistics show that approx 70% of the Aboriginal population is 100% welfare dependent. In this regard Aboriginal People have little ability to work their way out of the impoverished conditions they find themselves in, added to the fact that royalties are controlled by the Australian Government not the people.

Education and vocational training

The Australian Government is constantly promoting the theme of education and employment, but these are very ambitious objectives when one looks at the current state of educational programs in this country. The Australian history Curriculum within the schools does not include government policies towards Aboriginal People and the subsequent effect the policies had on our people, such as Government Mission and Station life. The Australian Education Curriculum does not include why the Government chose to remove children under the ‘Stolen Generation’ regime, nor do they explain why Aboriginal people were imprisoned onto Government and Church Mission Stations. They certainly do not include any topics which deal with the violent confrontations with the free ‘settlers’ and the British militia during the colonial times, whereas massacres are becoming well documented in various recent publications.

In relation to the low achievement rate of Aboriginal People in the Education System, the Australian Government continues to ignore the fact that many Aboriginal People are rejecting the Education System, because it has little or no relevance to their current status in life. This is reflected in low school attendance, absenteeism and the high juvenile crime rate. This converts to civil disobedience in the community where Aboriginal People see themselves as outsiders and not belonging.

Ethnocide

Fly-in observations of the Aboriginal situation in Australia cannot do justice to the deeply rooted problems that Aboriginal Nations and Peoples confront daily. In order to understand the dilemmas of Aboriginal People it is absolutely imperative that complete and in-depth studies are conducted on the entrenched racism that is so deeply rooted in the psyche of Australian politics. This racism is reflected in all policies directed at Aboriginal Peoples’ advancement, which is completely underpinned by the governments’ objective for the eventual total assimilation of Aboriginal People. This can only mean ethnocide. Ethnocide is a notion that even the UN refuses to acknowledge. But in order to do justice for Aboriginal People, the main thing the UN can do for us is to make Ethnocide a crime equal to Genocide and ratified by every Nation throughout the world to prevent Australia from refusing to become a party to that convention. There can be no excuse for Ethnocide, just as there is no excuse in law for murder and Genocide.

Treaty negotiations

Attached is an earlier paper entitled: That Word – Treaty. It is important to understand how in Aboriginal society one nation cannot speak for another, whilst it is a practice used in Australia to break up Aboriginal unity.

This is confirmed when we trace back to a letter from the then Minister for Aboriginal Affairs, Mr Baume, written to the National Aboriginal Conference (NAC) in July 1981 that Aboriginal people cannot be permitted to develop like American Indians with self determination This is the reason why the treaty process was shut down.

Australia does acknowledge, however, that it has never gained the Sovereignty of Aboriginal Peoples and their Nations and in the Mabo case the High Court concedes that the question of Aboriginal Sovereignty belongs to another jurisdiction, i.e. the International Court of Justice.

Nevertheless, the Indigenous Affairs Minister, Jenny Macklin, says she is open to a push for recognition of Indigenous Australians in the Constitution, but she has ruled out a treaty.

“This process is about recognising indigenous people within the Australian Constitution. It is not about a treaty,” she told The Australian. [see http://www.wgar.info

This is despite the fact that in August 2010 the Committee for the Elimination of Racial Discrimination (CERD) recommended treaty negotiations:

15. … Drawing the attention of the State party to the Committee’s general recommendation 23 (1997) on the rights of indigenous peoples, the Committee reiterates its recommendation that the State party increase efforts to ensure a meaningful reconciliation with Indigenous peoples and that any measures to amend the Australian Constitution include the recognition of Aboriginal and Torres Strait Islanders as First Nations Peoples. In this regard, the Committee recommends that the State party consider the negotiation of a treaty agreement to build a constructive and sustained relationship with Indigenous peoples. The Committee also recommends that the State party provide the National Congress of Australia’s First Peoples with the adequate resources to become fully operational by January 2011 and support its development.

​[Emphasis added -CERD/C/AUS/CO/15-17/CRP.1]

The Federal Government’s proposal to recognise Aboriginal People in the Constitution must not usurp our continuing Sovereignty. The only resolution of the Constitutional issue is by way of negotiated Sovereign Treaties under the supervision of the international community.
The Aboriginal Tent Embassy, on behalf of Aboriginal Sovereign Nations, officially declared our existing Sovereignty in 1992. This notice was first handed to the then Minister for Aboriginal Affairs, Mr. Robert Tickner, on the 28 January 1992.

If Australia is a Democracy then the Government must ensure Democratic Principles when dealing with Aboriginal Peoples.

In 1973 a body of Aboriginal People under the ‘Whitlam’ Government consulted nationally with Aboriginal Peoples. This was known as the ‘National Aboriginal Consultative Committee, NACC, which evolved into the National Aboriginal Conference (N.A.C.).

Elders and people worked out that if you want proper representation there are 46 linguistic groups that cover the 500 Aboriginal Nations.

‘National Aboriginal Consultative Committee’ was elected by Aboriginal people in which 48 000 Aboriginal people voted. On the first ever Aboriginal Electoral Roll, which was developed in six months, there were around 68 000 Aboriginal People, which meant about 70% of the Aboriginal population voted. The NACC received $1 million for this as opposed to the current National Congress of Australia’s First Peoples’ 2000 membership of which only 600 voted despite receiving $29 million dollars over 3 years.

This recent Congress clearly has no clear representation of the holistic Aboriginal Community and is just as unrepresentative as the handpicked “Expert Panel on Constitutional Recognition of Indigenous Australians” chosen by Government.

It is worth noting that those persons who are seeking to be elected for the ‘National Congress of Australia’s First Peoples’ are vetted first by an ethics committee and then have to be approved of by the Minister of Aboriginal affairs.

So much for democratic principles: Aboriginal People do not even get a chance to choose their own representatives.

The government’s hand-picked Indigenous people on this” Expert Panel on Constitutional Recognition of Indigenous Australians” must publicly acknowledge that they do not represent the various Aboriginal Nations across this country. Having said this they must personally accept all responsibilities for any deceptive language that complies with the usurpation of Aboriginal Sovereignty. They would be better served to ensure the Australian Government bona fides of statehood and make moves to have treaties negotiated with Aboriginal Nations in a move to ensure Australia becomes a republic in the future.
The second attachment is Aboriginal Sovereignty, Justice, the Law and Land by Kevin Gilbert (1933-1993) which elucidates the veracity of Aboriginal Nations and Peoples claim to continuing sovereignty in Australia.

No effective law against Genocide
Finally, we wish to draw your attention to the fact that Australia has still not fully imported the Genocide Convention into domestic law. Parts of the Genocide Convention were imported into domestic law by way of the International Criminal Court Consequential Amendments Act 2002, but only the Attorney-General can begin a genocide case and if he/she refuses there is no right of appeal and no reasons need to be given. [268.121 – 268.122]. This is contrary to the intent of the long-standing Genocide Convention, which Australia was the third country to sign.
We are requesting that the UN Human Rights Commission strongly recommends that the Australian government imports fully the Genocide Convention into domestic law.

Michael Anderson 24 May 2011
0427 292 492
ngurampaa@bigpond.com

Attachments:

Anderson, Michael, 2010, That Word – Treaty

Gilbert Kevin, 1987, Aboriginal Sovereignty, Justice the Law and Land

Advance unedited version Committee on the Elimination of Racial Discrimination

CERD/C/AUS/CO/15-17

Distr.: General
27 August 2010

Original: English

Advance unedited version
Committee on the Elimination of Racial Discrimination
Seventy-seventh session
2 –27 August 2010
​Consideration of reports submitted by States parties under article 9 of the convention

​Concluding observations of the Committee on the Elimination of Racial Discrimination

​Australia

1.​The Committee considered the fifteenth to seventeenth periodic report of Australia (CERD/C/AUS/15-17), submitted in one document, at its 2024th and 2025th meetings (CERD/C/SR.2024 and CERD/C/SR.2025), held on 10 and 11 August 2010. At its 2043rd meeting (CERD/C/SR.2043), held on 24 August 2010, it adopted the following concluding observations.
​A. ​Introduction

2.​While welcoming the submission of the combined fifteenth to seventeenth periodic report by the State party the Committee notes that the report was not in complete conformity with its reporting guidelines. The Committee expresses its appreciation to the State party for the presentations made by the delegation, both orally and in writing, which provided further insights into the implementation of the Convention.
​B.​Positive aspects

3.​The Committee welcomes the State party’s expression of support, in April 2009, to the United Nations Declaration on the Rights of Indigenous Peoples, as a first step in building a sustained and constructive partnership with Indigenous peoples.
4.​The Committee notes with satisfaction the National Apology for past negative Government policies issued by the State party on 13 February 2008 to Indigenous peoples and in particular the Stolen Generations, as a first step towards genuine reconciliation and reparations to be made in recognition of the history of gross violations of human rights.
5.​The Committee welcomes the ratification by the State party of the International Convention on the Rights of Persons with Disabilities and the related Optional Protocol, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, and the standing invitation extended to all thematic special procedures, noting, in particular, the visits of the Special Rapporteur on the situation of the human rights and fundamental freedoms of Indigenous peoples as well as the Special Rapporteur on the right to health in 2009.
6.​The Committee welcomes the Government’s commitment to address Indigenous disadvantage as set out in the six “Closing the Gap” targets.
7.​The Committee notes with interest the extensive National Human Rights Consultation between December 2008 and September 2009 showing an overwhelming support for the protection of human rights.
8.​The Committee welcomes the contributions of the Australian Human Rights Commission to the Committee’s work, as well as the active engagement and contributions from non-governmental organizations.
​C.​Concerns and recommendations

9.​The Committee regrets that insufficient information regarding the concrete measures for the implementation of its previous concluding observations (CERD/C/AUS/CO/14 (2005), CERD/C/304/ADD.101 (2000)) was provided by the State Party. It also regrets that many of the concerns previously addressed to it by the Committee persist and have not resulted in structural change.
​The State Party is encouraged to comply with all recommendations and decisions addressed to it by the Committee and to take all necessary steps to ensure that national legal provisions further the effective implementation of the Convention. The Committee also recommends that the State party consider the establishment of a domestic implementation mechanism for the International Convention on the Elimination of All Forms of Racial Discrimination across the federal system.
10.​The Committee is concerned by the absence of any entrenched protection against racial discrimination in the federal Constitution and that sections 25 and 51 (xxvi) of the Constitution in themselves raise issues of racial discrimination. It notes with interest the recommendations from the National Human Rights Consultation Report and findings of a significant degree of community support for a federal Human Rights Act to thoroughly address the gaps in the existing model of human rights protection. The Committee also notes information provided on the State party’s plans to review all federal anti-discrimination laws, with the intention of their harmonization under the Human Rights Framework. (arts. 1 and 2)
​The Committee urges the State party to ensure that the review of all federal anti-discrimination laws considers the gaps in legal and constitutional protections against discrimination and that consequent harmonization does not weaken the Racial Discrimination Act. It recommends that the State party take measures to ensure that the Racial Discrimination Act prevails over all other legislation which may be discriminatory on the grounds set out in the Convention. The Committee also recommends that the State party draft and adopt comprehensive legislation providing entrenched protection against racial discrimination.
11.​While taking account of the State party’s commitment to the Australian Human Rights Commission (AHRC), the Committee regrets the absence of a full-time Race Discrimination Commissioner since 1999 and notes with concern the challenges the Human Rights Commission faces regarding limited powers, capacity, and funding (art. 2).
​The Committee urges the State party to support the proper performance of the AHRC, through adequate financing and staffing, including through the appointment of a full-time Race Discrimination Commissioner. It also recommends that the State party consider expanding the powers, functions and funding of the AHRC.
12.​The Committee is concerned that the collection of biometric data for Australian visa applications in ten countries, as part of national security measures, may constitute racial profiling and may contribute to increased stigmatization of certain groups (art. 2).
​While acknowledging the State party’s national security concerns, the Committee underlines the obligation of the State party to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin. The Committee draws the State party’s attention to its Statement on Racial Discrimination and Measures to Combat Terrorism (8 March 20002) and recommends that it undertake sensitisation campaigns against stereotypes associating certain groups with terrorism.
13.​The Committee notes with concern the absence of a legal framework regulating the obligation of Australian corporations at home and overseas whose activities, notably in the extractive sector, when carried out on the traditional territories of Indigenous peoples, have had a negative impact on Indigenous peoples’ rights to land, health, living environment and livelihoods (arts. 2, 4, 5).
​In light of the Committee’s general recommendation 23 (1997) on the rights of indigenous peoples, the Committee encourages the State party to take appropriate legislative or administrative measures to prevent acts of Australian corporations which negatively impact on the enjoyment of rights of indigenous peoples domestically and overseas and to regulate the extra-territorial activities of Australian corporations abroad. The Committee also encourages the State party to fulfil its commitments under the different international initiatives it supports to advance responsible corporate citizenship.
14.​Noting with interest the changing demographics of the State party in recent decades, the Committee regrets that its multicultural policy (Multicultural Australia United in Diversity (2003-2006)) expired in 2006. It notes with concern reports highlighting ongoing issues of discrimination and inequity in access to and delivery of services experienced by members of certain minority communities including African communities, people of Asian, Middle Eastern and Muslim background, and in particular Muslim women (arts. 1, 2, 5).
​The Committee encourages the State party to develop and implement an updated comprehensive multicultural policy that reflects its increasingly ethnically and culturally diverse society. The Committee requests the State party to include in its next periodic report information on its approach to multiculturalism and diversity in national policy. It recommends that the State party strengthen the race and cultural dimensions of its Social Inclusion Agenda, in particular by ensuring adequate resources for the development of strategies that respond to the specific needs of the diverse communities of the State party.
15.​The Committee notes with appreciation the acknowledgement by the State party that Aboriginal and Torres Straits Islanders occupy a special place in its society as the first peoples of Australia and also welcomes the establishment of the National Congress of Australia’s First Peoples but is concerned this is only an advisory body representing member organizations and individuals and may not be fully representative of Australia’s First Peoples. The Committee regrets the limited progress towards Constitutional acknowledgement of Australia’s Indigenous peoples, and slow implementation of the principle of Indigenous peoples’ exercising meaningful control over their affairs (arts. 1, 2, 5, 6).
​Drawing the attention of the State party to the Committee’s general recommendation 23 (1997) on the rights of indigenous peoples, the Committee reiterates its recommendation that the State party increase efforts to ensure a meaningful reconciliation with Indigenous peoples and that any measures to amend the Australian Constitution include the recognition of Aboriginal and Torres Strait Islanders as First Nations Peoples. In this regard, the Committee recommends that the State party consider the negotiation of a treaty agreement to build a constructive and sustained relationship with Indigenous peoples. The Committee also recommends that the State party provide the National Congress of Australia’s First Peoples with the adequate resources to become fully operational by January 2011 and support its development.
16.​The Committee expresses its concern that the package of legislation under the Northern Territory Emergency Response (NTER) continues to discriminate on the basis of race as well as the use of so called “special measures” by the State party. The Committee regrets the discriminatory impact this intervention has had on affected communities including restrictions on Aboriginal rights to land, property, social security, adequate standards of living, cultural development, work, and remedies (arts. 1, 2, and 5).
​The Committee takes notes the State party will complete the reinstatement of the Racial Discrimination Act in December 2010, but is concerned by the continuing difficulties in using the Act to challenge and provide remedies for racially discriminatory NTER measures. It also urges the State party to guarantee that all special measures in Australian law, in particular those regarding the NTER, are in accordance with the Committee’s general recommendation No. 32 on Special Measures (2009). It encourages the State party to strengthen its efforts to implement the NTER Review Board recommendations, namely that: it continue to address the unacceptably high level of disadvantage and social dislocation being experienced by Aboriginal Australians living in remote communities throughout the Northern Territory; that it reset the relationship with Aboriginal people based on genuine consultation, engagement and partnership; and that Government actions affecting the Aboriginal communities respect Australia’s human rights obligations and conform with the Racial Discrimination Act.
17.​The Committee reiterates its concern about the State party’s reservations to article 4 (a) of the Convention. It notes that acts of racial hatred are not criminalized throughout the State party, pursuant to article 4 of the Convention, and also that the Northern Territory still has not enacted legislation prohibiting incitement to racial hatred (art. 4).
​In light of the Committee’s general recommendations No. 7 (1985) and No. 15 (1993), according to which article 4 is of mandatory nature, the Committee recommends the State party to remedy the absence of legislation to give full effect to the provisions against racial discrimination under article 4 and withdraw its reservation to article 4 (a) relating to criminalizing the dissemination of racist ideas, incitement to racial hatred or discrimination, and the provision of any assistance to racist activities. The Committee reiterates its request for information on complaints, prosecutions and sentences regarding acts of racial hatred or incitement to racial hatred in States and Territories with legislation specifying such offenses.
18.​Reiterating in full its concern about the Native Title Act 1993 and its amendments, the Committee regrets the persisting high standards of proof required for recognition of the relationship between Indigenous peoples and their traditional lands, and the fact that in spite of large investment of time and resources by Indigenous peoples, many are unable to obtain recognition of their relationship to land (art. 5).
​The Committee urges the State party to provide more information on this issue, and take the necessary measures to review the requirement of such a high standard of proof. The Committee is interested in receiving data on the extent to which the legislative reforms to the Native Title Act in 2009 will achieve “better native title claim settlements in a timely manner”. It also recommends that the State party enhance adequate mechanisms for effective consultation with Indigenous peoples around all policies affecting their lives and resources.
19.​While welcoming recent initiatives taken by the State party in order to increase access to justice by Indigenous Australians, the Committee is concerned that the recent funding increase for Aboriginal legal aid may be inadequate to address the continued limited access by Indigenous peoples to legal specialist and interpretation services in a sustainable manner (art. 5, 6).
​The Committee encourages the State party to increase funding for Aboriginal legal aid in real terms, as a reflection of its recognition of the essential role that professional and culturally appropriate Indigenous legal and interpretive services play within the criminal justice system. Moreover, it recommends that the State party strengthen training for law enforcement personnel and the legal profession in this regard.
20.​While welcoming the endorsement of National Indigenous Law and Justice Framework by all Australian Governments, the Committee reiterates its concern about the disproportionate incarceration rates and the persisting problems leading to deaths in custody of a considerable number of Indigenous Australians over the years. The Committee expresses concern in particular about the growing imprisonment rates of Indigenous women as well as the substandard conditions in many prisons (art. 5, 6).
​Taking into account the Committee’s general recommendation 31 (2006) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, the Committee recommends that the State party dedicate sufficient resources to address the social and economic factors underpinning Indigenous contact with the criminal justice system. It encourages the State party to adopt a justice reinvestment strategy, continuing and increasing the use of Indigenous courts and conciliation mechanisms, diversionary and prevention programs and restorative justice strategies. and that, in consultation with Indigenous communities, it take immediate steps to review the recommendations of the Royal Commission into Aboriginal Deaths in Custody, identifying those which remain relevant with a view to their implementation. The Committee also recommends that the State party implement the measures outlined in the National Indigenous Law and Justice Framework. The Committee encourages the State party to ensure the provision of adequate health care to prisoners.
21.​The Committee welcomes the new national approach to preserve Indigenous languages but is concerned that no additional financial resources have been committed by the State party nor received by the Maintenance of Indigenous Languages and Records program for this new approach. The Committee is also highly concerned by the recent abolition of bilingual education funding by the Northern Territory Government in light of the precarious condition of many Indigenous languages, and the lack of adequate opportunities for children to receive instruction in or of their language (art. 2, 5).
​The Committee encourages the State party to allocate adequate resources for the new national approach to preserve Indigenous languages. It recommends that the State party, in consultation with Indigenous communities, hold a national inquiry into the issue of bilingual education for Indigenous peoples. The Committee also recommends that the State party adopt all necessary measures to preserve native languages and develop and carry out programmes to revitalize indigenous languages and bilingual and intercultural education for Indigenous peoples respecting cultural identity and history. In line with the UNESCO Convention against Discrimination in Education, to which Australia is a party, the Committee encourages the State party to consider providing adequate opportunities for national minorities to the use and teaching of their own language.
22.​While recognizing the steps taken by the State party to address socio-economic disadvantages of Indigenous people, the Committee reiterates its serious concern about the continued discrimination faced by Indigenous Australians in the enjoyment of their economic, social and cultural rights (art. 5).
​The Committee reiterates its recommendation that the State party ensure that resources allocated to eradicate socio-economic disparities are sufficient and sustainable. It recommends that all initiatives and programmes in this regard ensure the cultural appropriateness of public service delivery and that they seek to reduce Indigenous socio-economic disadvantage while advancing Indigenous self-empowerment.
23.​The Committee is concerned by information related to the personal security of international students, and in particular, the series of racially motivated assaults of Indian students, including one death, in the state of Victoria. It regrets the failure by the Government and police (both at a state and federal level) to address the racial motivation of these acts, as well as the lack of available national data on the prevalence of migrants as victims of crime (arts. 2, 4, and 5).
​The Committee recommends that the State party further intensify its efforts to combat racially motivated violence, including by requiring law enforcement authorities to collect data on the nationality and ethnicity of victims of such crimes and ensuring that judges, prosecutors and the police consistently apply existing legal provisions which consider the motive of ethnic, racial or religious hatred or enmity an aggravating circumstance. It recommends that the State party provide updated statistical data on the number and nature of reported hate crimes, prosecutions, convictions and sentences imposed on perpetrators, disaggregated by age, gender and national or ethnic origin of victims.
24.​The Committee is concerned that “Excised Offshore Places” such as the immigration detention facilities on Christmas Island are removed from the operation of Australia’s migration legislation and that asylum seekers arriving by boat or intercepted before reaching the mainland without a valid visa are subject to differential processing arrangements and denied the full protections of the application and review procedures available on the mainland. The Committee is also concerned by the continued suspension of the processing of refugee status assessment procedures for applicants from certain countries, notably for Afghan asylum seekers, which lacks a legislative basis and is inconsistent with article 5 of the Convention. It regrets that the Australian High Court has found that it is lawful for a stateless person to be detained indefinitely. Finally, the Committee is concerned that children are still kept in detention-like conditions in various remote areas and at times, separate from their parents (art. 1, 2, 5).
​Recalling its general recommendation No. 30 (2004) on discrimination against non-citizens, the Committee reiterates its view that States parties ensure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin. It recommends that the State party:
​(a)​review its mandatory detention regime of asylum seekers with a view to finding an alternative to detention, ensuring that the detention of asylum seekers is always a measure of last resort and is limited by statute to the shortest time reasonably necessary, and that all forms of arbitrary detention be avoided;
​(b)​expedite the removal of the suspension on processing visa applications from asylum seekers from Afghanistan and that it take the necessary measures to ensure standardized asylum assessment and review procedures and equal entitlement to public services by all asylum seekers, regardless of country of origin or mode of entry;
​(c)​develop appropriate reception arrangements, in particular for children;
​(d)​ensure in its domestic law, in accordance with article 5 (b), that the principle of non-refoulement is respected when proceeding with return of asylum-seekers to countries;
​(e)​accompany any changes in the processing of asylum claims with adequate protection standards for those asylum seekers whose protection is suspended.
​(f)​continue its cooperation with UNHCR in regard to the above.
25.​The Committee regrets that no steps have been taken by the State party with regard to the Committee’s previous recommendation that the State party envisage reversing the burden of proof in civil proceedings involving racial discrimination to alleviate the difficulties faced by complainants in establishing the burden of proof (arts. 4 and 5).
​The Committee recommends that as part of its harmonisation of federal anti-discrimination laws, the Racial Discrimination Act be amended, as far as civil proceedings are concerned, to require the complainant to prove prima facie discrimination, at which point the burden shifts to the respondent to prove no discrimination existed.
26.​While noting with interest the range of compensation payment schemes that have been implemented or recommended for implementation in the State party, the Committee regrets the absence of appropriate compensation payment schemes for Stolen Generations and Stolen Wages, which is inconsistent with article 6 of the Convention (art. 6).
​The Committee reiterates its recommendation to the State party to address appropriately and through a national mechanism past racially discriminatory practices including through the provision of adequate compensation to all involved.
27.​The Committee reiterates that education plays a crucial role in promoting human rights and combating racism and notes with interest the national curriculum initiative for schools. However, it is concerned that the historical position, importance and contributions to Australian society of Indigenous peoples and those of other groups protected under the Convention may not be properly reflected in the proposed curriculum (art. 5, 7).
​The Committee recommends that the State party take the necessary measures to ensure that the national curriculum conveys an accurate message regarding the contribution of all groups protected under the Convention to Australian society and reflects the principle of full participation and equality. In light of article 7 of the Convention, it also recommends that the State party include human rights education in the national curriculum. The Committee also encourages the State party to ensure that an anti-racism strategy be established under the new Human Rights Framework and that an education program for all Australians, as per the recommendations of the Human Rights Consultation Report, with particular reference to combating discrimination, prejudice and racism be adopted.
28.​Bearing in mind the indivisibility of all human rights, the Committee encourages the State party to consider ratifying those international human rights treaties which it has not yet ratified, in particular treaties the provisions of which have a direct bearing on the subject of racial discrimination, such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), the Optional Protocol to the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment; and ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries.
29.​In light of its general recommendation No. 33 (2009) on follow-up to the Durban Review Conference, the Committee recommends that the State party give effect to the Durban Declaration and Programme of Action, adopted in September 2001 by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, taking into account the Outcome Document of the Durban Review Conference, held in Geneva in April 2009, when implementing the Convention in its domestic legal order. The Committee requests that the State party include in its next periodic report specific information on action plans and other measures taken to implement the Durban Declaration and Programme of Action at the national level.
30.​The Committee recommends that the State party continue consulting and expanding its dialogue with organizations of civil society working in the area of human rights protection, in particular in combating racial discrimination, in connection with the preparation of the next periodic report.
31.​The Committee recommends that the State party’s reports be made readily available and accessible to the public at the time of their submission, and that the observations of the Committee with respect to these reports be similarly publicized in the official and other commonly used languages, as appropriate.
32.​In accordance with article 9, paragraph 1, of the Convention and rule 65 of its amended rules of procedure, the Committee requests the State party to provide information, within one year of the adoption of the present conclusions, on its follow-up to the recommendations contained in paragraphs 11, 16, 23 above.
33.​The Committee also wishes to draw the attention of the State party to the particular importance of recommendations 18, 22 and 26 and request the State party to provide detailed information in its next periodic report on concrete measures taken to implement these recommendations.
34.​The Committee recommends that the State party submit its 18th and 19th periodic reports in a single document, due on 30 October 2012 taking into account the guidelines for the CERD-specific document adopted by the Committee during its seventy-first session (CERD/C/2007/1), and that it address all points raised in the present concluding observations. The Committee also urges the State party to observe the page limit of 40 pages for treaty-specific reports and 60-80 pages for the common core document (see harmonized guidelines for reporting contained in document HRI/GEN.2/Rev.6, para. 19).
​
GE.10-44333

JOINT STATEMENT by the Indigenous Peoples Organisations of Australia attending the eighth session of the Permanent Forum on Indigenous Issues New York, 18 to 29 May 2009

On 24 May 2009 the Minister for Indigenous Affairs announced the Australian Government is taking steps towards compulsory acquisition of the Alice Springs town camps ‘to give children in the camps a better chance at a safe, healthy and happy life’. The Minister described the conditions in the camps as appalling, referring to acute overcrowding, sub-standard housing, alcohol abuse, despair, hopelessness and horrific crimes. The Minister announced intentions to implement a comprehensive plan to transform the town camps and provide intensive support services.

We the Indigenous Peoples Organisations of Australia attending the eighth session of the United Nations Permanent Forum on Indigenous Issues decide as follows:

We strongly oppose the proposal by the Government of Australia to compulsory acquire leases over Aboriginal and Torres Strait Islander lands or territories without their free, prior and informed consent.

We call upon the Government of Australia to comply with its international obligations to respect the rights of the Indigenous Peoples of Australia by ensuring that the representatives of the Aboriginal people in the region of Alice Springs are able to make an informed decision regarding the provision of adequate housing and services for their populations.

Specifically, we urge the Australian Government to re-open negotiations with Tangentyere Council, in concert with other relevant representative Aboriginal organizations, and facilitated by the Australian Human Rights Commission, with a view to concluding as soon as possible an agreement for urgent funding for suitable housing to meet the needs of the Aboriginal people of the region.

We ask the Australian Government to withdraw their decision to compulsory acquire the lands held by the Tangentyere Council.

In regards to the international obligations of the Australian Government we note the following paragraphs regarding the rights of Indigenous Peoples and relevant recommendations by the human rights mechanisms of the United Nations and international human rights treaty bodies.

The Declaration on the Rights of Indigenous Peoples was adopted two years ago by an overwhelming vote of the UN General Assembly. Australia was one of only four governments to vote against the adoption of this universal Declaration but on 3 April 2009 the Government announced its support for the Declaration.

‘Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.’
(Article 23, UN Declaration on the Rights of Indigenous Peoples)

In May 2007, following a visit to Australia during 31 July to 15 August 2006, the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, recommended to the United Nations in Paras 98 and 135 of his report that Aboriginal people should be given control to the greatest extent possible of our affairs and expressed his particular concern that removal of Aboriginal people as decision makers over the use and access of the land in the Northern Territory would undermine the right of self-determination. He advised that such action ‘may call into question Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights, including its provisions on self-determination’ .

‘Australian governments must urgently address the humanitarian tragedy of the lack of housing and basic services for the indigenous peoples of Australia, living on indigenous lands and elsewhere. To this end, the Special Rapporteur encourages relevant government staff to visit and reside in indigenous communities, including town camps, and rural and remote communities, in order to better comprehend the reality and the challenges faced by the populations and communities in these locations.’
(Para 133, Report on Mission to Australia, Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, UN Document A/HRC/4/18/Add. 2, 11 May 2007)

On 13 March 2009, the Committee on the Elimination of Racial Discrimination (CERD) wrote to the Australian Government expressing its concern that the Racial Discrimination Act was suspended in the Northern Territory and calling for a report to the Committee by 31 July 2009 on the progress made in redesigning its (the Government’s) approach in the Northern Territory in consultation with the Aboriginal communities.

‘… In order to continue a constructive dialogue with your Government, the Committee requests the State party to submit further details and information on the following issues no later than 31 July 2009 progress on the drafting of the redesigned measures, in direct consultation with the communities and individuals affected by the NTER, bearing in mind their proposed introduction to the Parliament in September 2009 [and] progress on the lifting of the suspension of the Racial Discrimination Act. The Committee welcomes the government’s commitment to building a new relationship with Indigenous Australians based on mutual respect, mutual resolve and responsibility.’

On 2 April 2009, the Committee on Human Rights released its findings on Australia’s obligations under the International Covenant on Civil and Political Rights.

The Committee expressed its concern with the Northern Territory Emergency Response measures and particular concern about the negative impact of the measures on the enjoyment of the rights of indigenous peoples and at the fact that they suspend the operation of the Racial Discrimination Act 1975 and were adopted without adequate consultation with the indigenous peoples.

‘The State party should increase its efforts for an effective consultation with indigenous peoples in decision-making in all areas having an impact on their rights … The State party should redesign NTER measures in direct consultation with the indigenous peoples concerned, in order to ensure that they are consistent with the Racial Discrimination Act 1995 and the Covenant.’
(Concluding observations on Australia, Human Rights Committee, UN Document CCPR/C/AUS/CO/ 5, 2 April 2009)

On 22 May 2009, the Committee on Economic, Social and Cultural Rights, in examining Australia’s periodic report under the International Covenant on Economic, Social and Cultural Rights, expressed its concern that some of the Northern Territory Intervention measures are inconsistent with the Covenant rights, in particular with the principle of non-discrimination, and have a negative impact on the realisation of the rights of indigenous peoples and noted ‘with regret’ that measures were adopted without sufficient and adequate consultation with the indigenous peoples concerned

‘The Committee recommends that the State party take effective measures, in line with the Committee’s general comment No.4 (1991) on the right to adequate housing (art. 11, para. 1, of the Covenant), to address homelessness in its territory. The State party should implement the recommendations of the Special Rapporteur on the Right to Adequate Housing contained in the report of his mission to Australia… The Committee calls on the State party to take immediate steps to improve the health situation of indigenous people, in particular women and children, including by implementing a human rights framework that ensures access to the social determinants of health such as housing, safe drinking water, electricity and effective sanitation systems.’
(Concluding observations on Australia, Committee on Economic, Social and Cultural Rights, UN Document E/C.12/AUS/CO/ 4, 22 May 2009)

We also appreciate that the Australian Government has presented to this session of the Permanent Forum on Indigenous Issues a joint statement with our delegations expressing a desire that Australia meet its human rights obligations, and we recognise that a critical factor in achieving this goal is the degree to which Aboriginal and Torres Strait Islander peoples can set the agenda, and affect policy and service delivery.

Our delegations are encouraged by the Australian Government’s decision to support the UN Declaration on the Rights of Indigenous Peoples.

Therefore, in conclusion to this statement, we support the view that the Government of Australia should establish and implement in conjunction with the Aboriginal and Torres Strait Islander peoples a fair, independent, impartial, open and transparent process to adjudicate the rights of the Aboriginal people in relation to our lands. This provision is stipulated in Article 27 of the Declaration on the Rights of Indigenous Peoples.

We strongly recommend that the Australian Government provide, as a matter of priority and urgency, extensive human rights training on how human rights apply to Aboriginal and Torres Strait Islander peoples in the areas of non-discrimination and civil, political, economic, social and cultural rights. The training should target all sectors of society, but particularly it should target State officials having a direct role in engagement of the Aboriginal and Torres Strait Islander peoples and the judiciary.