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COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION EXAMINES AUSTRALIA’S REPORT

28 November 2017

The Committee on the Elimination of Racial Discrimination today concluded its consideration of the combined eighteenth to twentieth periodic report of Australia on its implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

Presenting the report, Lachlan Strahan, First Assistant Secretary at the Multilateral Policy Division of the Department of Foreign Affairs and Trade of Australia, noted that since its last appearance before the Committee in 2010, Australia had launched a National Anti-Racism Strategy and Multicultural Statement. Australia was a diverse nation with strong public institutions where civil or social unrest was rare. There was a high rate of inter-marriage. With xenophobia rising in some quarters, it was telling that Australia continued to accept a large number of migrants on a non-discriminatory basis. Nevertheless, indigenous Australians were often subjected to blatant racism and their socio-economic conditions continued to fall behind those of other Australians. The
Government was committed to refreshing the ‘Closing the Gap’ strategy to address indigenous disadvantage. Australia acknowledged that it was vital to address the social and cultural determinants of health. The Government was committed to changing the Constitution to recognize Aboriginal and Torres Strait Islander peoples, but it was of the view that the current recommendations of the Referendum Council would not win the majority’s support in a referendum. The Government had provided additional resources to combat the exploitation of migrant workers.

Tim Soutphommasane, Race Discrimination Commissioner of Australia, stated that even though diversity was an accepted reality in Australia, and even though most Australians regarded it as a strength of national life, racism continued to be present in Australian society. A study from 2016 showed that 20 per cent of Australians had experienced discrimination based on race, ethnicity and religion, which was 15 per cent more than 2015. Aboriginal and Torres Strait Islander people encountered much higher levels of racial discrimination compared to the general population, reflecting their experience of institutional and structural racism. Migrants from African countries and other non-English speaking backgrounds reported relatively high levels of discrimination. Research also indicated that there had been a rise in hostile or negative public sentiment towards Muslims.

In the ensuing discussion, Committee Experts welcomed the adoption of the National Anti-Racism Strategy 2012-2018, the appointment of a National Race Discrimination Commissioner, the adoption of a broad multicultural policy, and the implementation of the National Indigenous Law and Justice Framework 2009-2015, and of the National Aboriginal and Torres Strait Islander Health Plan 2013-2023. They nevertheless expressed concern that hate speech and counter-terrorism measures were fuelling racism, xenophobia, Islamophobia and ethnic-based discrimination in the country. Other issues highlighted by Experts included full incorporation of the Convention in domestic legislation, Australia’s reservation to article 4(a) of the Convention, the role of the Parliamentary Joint Committee on Human Rights, the constitutional referendum and the recognition of the rights of indigenous Australians, the recruitment process for the Australian Human Rights Commission, hate speech and hate crimes, socio-economic indicators for indigenous Australians, education for indigenous peoples, the incarceration rate of indigenous peoples, suicide rates among indigenous Australians, the use of indigenous land, preservation of indigenous languages, migration policy, exploitation of migrant workers, racism in political discourse, citizenship laws, and the definition of multiculturalism.

In concluding remarks, Verene Albertha Shepherd, Committee Expert and Country Rapporteur for Australia, thanked the delegation for the frank opening statement and responses to the Committee’s questions. She noted that peace required justice, equality, equity and the reversal of the wrongs of history. The Government of Australia needed to target the minority that did not want to embrace multiculturalism.

Dr. Strahan said that he greatly appreciated the frank and collegiate spirit of the dialogue. No one should doubt Australia’s firm commitment to fighting racism and to defending multiculturalism. Dr. Strahan added that it was true that Australia had a minority that fought against multiculturalism, noting that the enemies of diversity were the enemies of democracy.

Anastasia Crickley, Committee Chairperson, reminded that the Committee’s job was to support the State party in the implementation of the Convention in light of the global trend to marginalize minorities and indigenous peoples. She thanked the delegation and civil society from Australia for their participation in the dialogue.

The delegation of Australia included representatives of the Department of Foreign Affairs and Trade, the Department of Health, the Department of the Prime Minister and Cabinet, the Attorney-General’s Department, the Department of Immigration and Border Protection, the Department of Employment, Australia’s delegation to the OECD, and the Permanent Mission of Australia to the United Nations Office at Geneva.

The Committee will next meet in public this afternoon at 3 p.m. to start its consideration of the combined eleventh and twelfth periodic report of Slovakia (CERD/C/SVK/11-12).

Report

The combined eighteenth to twentieth periodic reports of Australia can be read here: CERD/C/AUS/18-20.

Presentation of the Report

LACHLAN STRAHAN, First Assistant Secretary at the Multilateral Policy Division of the Department of Foreign Affairs and Trade of Australia, paid respect to indigenous representatives present during the review. He noted that treaty body reporting was resource intensive and that all States benefited from peer review. The concluding observations from the Committee’s last review had influenced Australia’s policies. Australia’s campaign for membership of the Human Rights Council had been underpinned by a commitment to international accountability, scrutiny and transparency. Australia was built on mass migration, with eight million migrants settling in the country since the Second World War. Aboriginal and Torres Strait Islander peoples represented 3 per cent of the population, and their cultures and traditions were widely shared and embraced. Australia was a diverse nation with strong public institutions where civil or social unrest was rare. There was a high rate of inter-marriage, meaning an increasing number of Australians had an intercultural background. With xenophobia rising in some quarters, it was telling that Australia continued to accept a large number of migrants on a non-discriminatory basis. The Government was committed to understanding the scope of racism, providing one million dollars to research under the Challenging Racism Project, which had found that 20 per cent of Australians had experienced “race hate talk” and about five per cent had been attacked because of their race. Certain groups experienced racism more, including indigenous Australians and people of African origin. Islamophobia was also a problem. All Australian jurisdictions had legislative prohibitions against racial discrimination.

Since its last appearance before the Committee in 2010, Australia had launched a National Anti-Racism Strategy. A partnership between the Government, the Australian Human Rights Commission and non-governmental organizations, the strategy’s key objectives were to create awareness of racism and how it affected all, to prevent and reduce racism, and to empower communities and individuals to take action and seek redress. Under that strategy, the Commission led the Racism. It Stops With Me campaign, which used public awareness, education and youth engagement to prevent and reduce racism. It was vital that all parts of Australian society played their part in the fight against racism. Sports brought people together across racial, religious and cultural lines. However, some Australians had experienced racism at sporting events. Indigenous Australians were often subjected to blatant racism. Socio-economic conditions for many indigenous Australians continued to fall behind those of other Australians. An unacceptable gap persisted even though there were increasing examples of success. Some discrepancies were stark, revealing inter-generational disadvantages. Indigenous suicide rates were double those of non-indigenous Australians. Although they only constituted three per cent of the population, indigenous Australians accounted for 27 per cent of the adult prison population. The 2017 Closing the Gap report had highlighted some success, with the number of indigenous Australians staying at school until the age of 12 increasing from 45.4 per cent in 2011 to 61.5 per cent in 2016.

The Government was committed to changing the Constitution to recognize Aboriginal and Torres Strait Islander peoples. Such recognition would acknowledge shared history and reaffirm the value placed in the country’s indigenous heritage, and it would address historical exclusion, prejudice and violence. To make progress on those changes, the Prime Minister and the leader of the opposition had appointed the Referendum Council, comprised of eminent indigenous and non-indigenous members. The Council had conducted comprehensive consultations to ensure that the views of all Australians had informed its final report. The Government was confident that the recommendations of the Referendum Council and of past inquiries could build to develop constitutional amendments that would unite the nation and respect the Constitution’s values. The Government recognized that racial discrimination could lead to poor physical and mental health, which was why the Closing the Gap contained health targets to address barriers in the mainstream health system which impeded good outcomes for indigenous Australians. In May 2017, the Government had announced an additional 138 million dollars for an indigenous education package.

Australia had welcomed 850,000 refugees since the Second World War. On top of taking an additional 12,000 refugees from Syria and Iraq in 2016/17, Australia would resettle nearly 19,000 under its humanitarian program in 2018/19. The current restrictive migration policy vis-a-vis migrants arriving by sea aimed to avoid deaths at sea. Australia’s high quality settlement support services underscored the Government’s commitment to enabling migrants and new arrivals to participate fully in their new home. The Government funded the early acquisition of English language skills, active participation in the workforce and access to education. The Government had made it clear that exploiting migrant workers would not be tolerated through its policy to protect vulnerable workers. Legislation passed in September 2017 set higher penalties for serious contraventions of workplace laws and strengthened the evidence gathering powers of the Fair Work Ombudsman to ensure that exploitation was properly investigated.

TIM SOUTPHOMMASANE, Race Discrimination Commissioner of Australia, stated that even though diversity was an accepted reality in Australia, and even though most Australians regarded it as a strength of national life, racism continued to be present in Australian society. A study from 2016 showed that 20 per cent of Australians had experienced discrimination based on race, ethnicity and religion, which was 15 per cent more than 2015. Aboriginal and Torres Strait Islander people encountered much higher levels of racial discrimination compared to the general population, reflecting their experience of institutional and structural racism. Migrants from African countries and other non-English speaking backgrounds also reported relatively high levels of discrimination. Research also indicated that there had been a rise in hostile or negative public sentiment towards Muslims. Australia implemented the Convention mainly through the Racial Discrimination Act of 1975. But the Act did not reflect a complete implementation of the Convention. It was possible for other federal legislation to override or suspend the operation of the Racial Discrimination Act. Special measures under the Act did not fully comply with the Committee’s General Comment No. 32 because there was no requirement under the Act for affected groups to be consulted and participate in the design and implementation of proposed special measures. Finally, the Act did not criminalize racial hatred. Australia’s constitutional arrangement still allowed for racially discriminatory laws to be passed. Some of the priorities for the Committee could be comprehensive data collection on racial discrimination, the report of the Royal Commission on the protection and detention of children in the Northern Territory, discriminatory police practices, the Government’s rejection of the proposal for the First Nations’ Voice to Parliament, and the concerns of Arab and Muslim Australians that public anxiety about terrorism had heightened prejudice towards and discrimination against them.

Questions by Committee Experts

VERENE ALBERTHA SHEPHERD, Committee Expert and Country Rapporteur for Australia, urged the State party to update the core document and commended the consultations that the Government had held with various stakeholders in preparing the report. She welcomed the adoption of the National Anti-Racism Strategy 2012-2018, the appointment of a National Race Discrimination Commissioner, the adoption of a broad multicultural policy, the implementation of the National Indigenous Law and Justice Framework 2009-2015, and the implementation of the National Aboriginal and Torres Strait Islander Health Plan 2013-2023.
Nevertheless, Ms. Shepherd voiced concern that hate speech and counter-terrorism measures were fuelling racism, xenophobia, Islamophobia and ethnic-based discrimination in the country. Even though she commended Australia’s Multicultural Policy Statement and Multicultural Servicing Strategy 2016-2019, Ms. Shepherd noted that multiculturalism would remain an unattainable ideal until each constituent part of the Commonwealth felt included.

Turning to education, Ms. Shepherd noted that education had the potential to achieve social inclusion while respecting diversity of histories, languages and cultures. Did all students feel that their human rights were respected? Great policies were one thing, whereas follow-up and implementation and impact assessment were another. Whereas Aboriginal and Torres Strait Islander histories and cultures were a priority area in the national curriculum, this data was not required content and it fell to states and territories to determine whether and how to teach them.

Ms. Shepherd reiterated the recommendation that Australia ensure that the Convention was fully incorporated into domestic legislation. Australia should amend its Constitution to enshrine the right to equality in a complete body of laws, rather than in scattered clauses in the Constitution. She encouraged the State party to recommence talks to consolidate federal anti-discrimination legislation.

Ms. Shepherd commended the establishment of the Parliamentary Joint Committee on Human Rights, but noted that its views and concerns did not always appear to be given consideration during the legislative process, and that it was possible for a bill to be released and passed into law before conclusions of the Parliamentary Joint Committee on Human Rights had been made.

As for the Australian Human Rights Commission, what was the recruitment or selection process for its president? She reminded that the president was vilified by senior officials and undermined financially.

With respect to hate speech and hate crimes, Ms. Shepherd expressed concern that despite previous observations, the State party had maintained its reservation to article 4 of the Convention. What disaggregated data was available on the nationality and ethnicity of victims of such crimes? How did judges, prosecutors and the police consistently apply existing legal provisions which considered the motive of ethnic, racial or religious hatred or enmity an aggravating circumstance? Ms. Shepherd voiced concern about the recent reduction in the time frame for persons to make complaints about crimes of racial discrimination, and other changes made to the Australian Human Rights Commission Act.

Turning to issues concerning Australian indigenous peoples, Ms. Shepherd highlighted the increasing percentage of indigenous women in the prison population. Could the State party shed some light on the conditions of those indigenous women and the impact of their incarceration on their families? What measures had been taken to curb abuse by law enforcement officials in and outside prisons? Indigenous children were imprisoned at 25 times the rate of non-indigenous youth in 2016. The State party should consider moving up the legal age of criminal responsibility from 10 years.

Ms. Shepherd regretted the rejection of a proposal earlier in 2017 for the constitutional recognition of persons of indigenous descent. The Uluru Statement had been rejected in favour of a proposal promising a symbolic recognition of the peoples with no political implication. What was the delegation’s view on establishing a Makaratta Commission that facilitated reconciliation and truth telling as recommended by the Referendum Council and the Uluru Statement? Why had the funding for the National Congress of Australia’s First Nation Peoples been discontinued? What alternative measures had been taken to fund the Congress and indigenous peoples’ community organizations?

With respect to the use of indigenous lands, agreements were often entered into without an Aboriginal process of consent. Ms. Shepherd urged the State party to ensure that the First Nations and other indigenous peoples were able to fully exercise their right to self-determination, and to protect and preserve the lands and waters on which they resided. The Native Title Act continued to demand of indigenous peoples high standards of proof of ownership.

Turning to indigenous languages, Ms. Shepherd commended continued funding of the Government for the Indigenous Visual Art Industry Support, and indigenous languages and arts programmes. However, she urged the State party to do more to ensure the preservation of indigenous languages and associated loss of cultural identity.

As for the Declaration on the Rights of Indigenous Peoples, Ms. Shepherd noted that she had not seen an action plan or a report on achievements of the objectives of the Declaration. What were the State’s plans to compensate or offer reparations to the indigenous peoples of Australia? Was there any training on racial profiling for law enforcement officials?

On migrants, asylum seekers and refugees, Ms. Shepherd expressed concern about the harsh living conditions in offshore detention centres in Nauru and Papua New Guinea, and about the restrictions in place on family reunification of asylum seekers. She urged Australia to amend the Maritime Powers Act of 2012 to remove powers to detain asylum seekers and refugees on the high seas and transfer them to any country or a vessel of another country, as well as the turnback policy. Did the State party have information on convictions and measures to reduce instances of abuse in detention centres? Another concern was the conditions and experiences of children of detainees placed in camps.

Given recent reports of abuse and mistreatment of workers, Australia should consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Recent reports of changes to the process of applying for Australian citizenship was another concern, Ms. Shepherd concluded.

GUN KUT, Committee Expert and Rapporteur for Follow-up to Concluding Observations, reminded that Australia had been asked to submit follow-up on the Anti-Discrimination Law, the Northern Territory Emergency Response legislation, and the application of legislative provisions on aggravating circumstances of crimes. Commendably, the State party had submitted the interim report within one year. The Committee had reviewed the content of the interim report and it had asked for further information on anti-discrimination laws and review of complaints of racial discrimination. The Government had stated that it did not plan to review the burden of proof. The Committee had noted that the State party had not submitted information about ethnically and racially based motivation for crimes as aggravating circumstances. Mr. Kut also inquired about racism in political discourse and targeting of migrants by far-right groups. What specific instruments did the Government plan to use to counter those negative trends?

Experts inquired about the status of the Convention within Australian domestic law, and about the institutional and policy framework for its implementation. Since there were no regional human rights mechanisms or a national human rights charter in Australia, how could the Convention be invoked in courts? Experts expressed concern about Australia’s continued reservation to article 4(a). There was disturbing information that the Government had had a project to overhaul section 18C of the Racial Discrimination Act of 1975, which would have articulated a new official position of even more laxity towards racism. Less than five per cent of claims under the Racial Discrimination Act made it to courts and the majority of cases were dismissed. Was that information correct? Would the State party urgently reconsider its position so that the solemn engagement given by the State 42 years ago to amend its domestic laws to comply with the Convention provisions became a reality?

As for the socio-economic indicators for indigenous Australians, only one of the seven targets was on track. Successive governments had failed to fight systemic disadvantages suffered by Aboriginal and Torres Strait Islander peoples across different fields. Funding for services to Aboriginal and Torres Strait Islander peoples had been cut. What were the plans to improve the funding? What had been the impact of the Government’s policies? Had consultations been held with indigenous communities and civil society? Had there been any external independent evaluation of those policies? Was the Government working closely with indigenous peoples to address the problem of overcrowding in housing in the Northern Territory?

On the income management policy, Experts inquired about access to social benefits in the Northern Territory. What was Australia doing to eliminate discrimination in that field? Suicide rates among indigenous Australians were alarmingly high and were double those of non-indigenous Australians. What was being done to address intersectional discrimination against indigenous Australians?

With respect to constitutional reform and recognition of indigenous peoples, Experts wanted to hear a real commitment to implement that reform and hold a referendum. What was the baseline for the settlement of native title rights? The complicated system for proving land ownership (the burden of proof) was still in place. What assistance did the State party provide in that regard? What steps had the Government made in order to comply with the principle of free, prior and informed consent by indigenous communities? How did the Government implement the effective participation of indigenous peoples? What was the level of intercultural dialogue with indigenous peoples? What was the role of indigenous peoples in Australia’s plans to combat climate change?

As for Australia’s migration policy, Experts observed that Australia followed a military-led policy of offshore detention regime for all migrants arriving on boats. The authorities had put in place a very punitive approach with an explicit intention to discourage other arrivals by sea through long mandatory detention. Children were detained and their physical and mental health was endangered, whereas women suffered from violence and inadequate medical attention. How many people were detained in Papua New Guinea and Nauru at the moment? What were the criteria for legal migration?

To what extent had the peculiarities of different indigenous peoples been taken into consideration, especially in terms of their languages and style of life? What was the situation of gender equality in the workplace and what was the situation of vulnerable women?

The definition of multiculturalism used by Australia did not seem to be in line with the prevailing understanding. What did the State party mean by “social cohesion”? The lack of recognition of indigenous peoples as Australians was anachronistic. What did the Government propose in the idea of the constitutional amendment?

Would the State party be willing to erase reference to terrorism in its declaration on multiculturalism? Would it be willing to invest more in community-based services, particularly those for minorities? It was important to realize that those indigenous children who had been taken away from their families (the “lost generation”) had lost their identity. What was the future for indigenous peoples in Australia?

Experts reminded that Australia’s reservation to article 4(a) of the Convention was not compatible with the State party’s obligations under the Vienna Convention on the Law of Treaties.

In order for reconciliation to be successful in Australia, there was a need for a constitutional referendum that would recognize the rights of indigenous Australians, Experts noted. Were there any legal obstacles to the implementation of the Convention in Australia? Was there institutional reticence?

The Northern Territory had no legislation that specifically created criminal or civil prohibitions against racial hatred, which meant that victims of racial discrimination in the Northern Territory suffered double prejudice.

Replies by the Delegation

LACHLAN STRAHAN, First Assistant Secretary at the Multilateral Policy Division of the Department of Foreign Affairs and Trade of Australia, explained that Australia’s definition of multiculturalism was modern and in no way anachronistic. Multiculturalism was based on respect, dignity and equal opportunity, and about allowing Australians to express their own cultural and religious identity within the context of a united society based on shared values. The reference to security in the statement on multiculturalism was very appropriate; it was important that social cohesion was maintained. Social cohesion meant that the Australian society was peaceful, inclusive and tolerant. Harmonious communities did not happen by chance. Terrorist groups were enemies of diversity and inclusion.

Turning to political discourse in Australia, Dr. Strahan explained that, unfortunately, some Australians said repulsive things about racial issues, but the majority rejected such ugly discourse. Thankfully, far-right parties remained small and splintered even though sometimes they could be very loud. Racist language was called out. Political leaders and courts were willing to take the right kind of action to defend diversity and tolerance in Australia.

The Australian Bureau of Statistics collected some relevant data at the State level, but police forces were careful not to jump to conclusions regarding ethnically or racially motivated crimes. Training for police forces included courses on community diversity, human rights, radicalization, prejudice motivated crimes, cultural and religious needs, and on Aboriginal and Torres Strait Islander peoples.

The income management policy had been first introduced in 2007 as part of the Northern Territory emergency response. A new model of that policy had been implemented in 2010, designed to assist at risk groups, such as people with limited money management skills, risky behaviour and unemployed persons. Money could not be spent on alcohol, drugs, pornography and gambling. The scheme was in line with the Racial Discrimination Act 1975 (Cth). Six evaluations of the scheme had concluded that the lives of people had improved thanks to the policy. A drastic reduction in alcohol and drugs consumption had been observed. The Government was currently testing cashless debit cards in two regions in South Australia and Western Australia, Dr. Strahan clarified.

BOBBI CAMPBELL, First Assistant Secretary, Indigenous Health Division, Department of Health, said that the Government continued to invest in the Indigenous Health Policy. Some of the results included decreased child mortality rates, kidney disease deaths, respiratory disease deaths, and higher immunization rates for indigenous children. The Government had not managed to close the gap in life expectancy, and noted that more work needed to be done on social determinants in order to accelerate progress on the Closing the Gap life expectancy target. Suicides among indigenous peoples were indeed of great concern for the Government. Suicide prevention strategies were key and the Government had extended funding for online and telephone counselling and early prevention services that were culturally sensitive.

ANNE-MARIE ROBERTS, First Assistant Secretary, Regional Network Division, Department of the Prime Minister and Cabinet, said that the Government had agreed to work with Aboriginal and Torres Strait Islander peoples’ organizations on a refreshed agenda. The Government had introduced the Indigenous Advancement Strategy. More indigenous providers were providing services for indigenous communities and more were active in service design. An increase of some 24 per cent had been registered in expenditure for indigenous services. The Community Development Programme supported workers in remote areas to develop their employment skills. It was designed around specific labour market circumstances in remote areas, and it supported some 33,000 persons. The Community Development Programme was in compliance with the Racial Discrimination Act.

As of 30 June 2016, indigenous women accounted for 34 per cent of the female prison population. In December 2016, the Australian Government had asked that the overrepresentation of indigenous people in prisons be investigated. Indigenous women’s experiences should be front and centre in policy making discussions. The Government was committed to provide better housing outcomes for indigenous communities. The strategy was on track to deliver targets by 2018 with respect to remote indigenous households. The Indigenous Visual Arts Support Programme assisted indigenous peoples to express and promote their cultural heritage. In July 2015 the Government had launched the Indigenous Procurement Policy to stimulate indigenous entrepreneurship. The policy had been deemed successful.

AUTUMN O’KEEFFE, Acting Assistant Secretary, Civil Law Unit, Attorney-General’s Department, said Australia supported the United Nations Declaration on the Rights of Indigenous Peoples. The Australia law recognized the great importance of indigenous lands and water. Thirty-five per cent of the landmass of Australia was covered by a determination of native title. The Government worked closely with indigenous representatives to ensure that the native titles system protected indigenous lands. Connection with lands had to be maintained from generation to generation, but people did not need to settle it continuously. The majority of native title determinations were made with the consent of parties rather than through litigation. The Government had held extensive consultation with indigenous peoples in the context of the Carmichael coalmine project in Queensland.

Turning to the issue of migration, the delegation explained that the operation Sovereign Borders aimed to counter dangerous sea journey, and prevent unauthorised boat ventures to Australia and further loss of life at sea. Australia’s tough stance on people smuggling had decreased criminal activities. Under the fast-track process, all migrants received decisions on their asylum requests. They could receive safe haven visas and temporary protection visas, and benefit from a range of services. The Government had granted 9,135 temporary protection and safe haven visas.

Persons intercepted at sea would not be settled in Australia because the Government wanted to send a clear message to people smugglers. Nevertheless, the Government was committed to its international obligations not to send back people to countries where they faced immediate danger. Papua New Guinea had closed the Manus processing centre. People from that processing centre had at their disposal reasonable settlement options. The Governments of Papua New Guinea and Australia would facilitate voluntary returns. The Government of Australia did not exercise control over the maritime arrivals in Nauru and Papua New Guinea, but it did assist those governments to set up robust migration processing policies.

The Australian Citizenship Act stipulated that a person was Australian if they were born in Australia and one of her or his parents was an Australian citizen or Permanent Resident at the time of birth. The Act also contained provisions for the granting of citizenship by descent. Applicants needed to meet a range of legislative requirements. Each citizenship application was assessed individually and on its own merits.

Foreign workers had the same workplace rights as other workers in Australia. The Government worked in partnership to address the exploitation of migrant workers. A law enforcement task force investigated the exploitation of migrant workers. The role of the Fair Work Ombudsman was to monitor certain visas arrangements, to ensure fair labour conditions, and to address exploitation of migrant workers. It was unlawful for employers to take adverse actions against prospective employees on the basis of race and ethnicity. The ratification of the convention No. 169 on indigenous peoples and the convention No. 143 on migrant workers of the International Labour Organization were not under active consideration of the Australian Government at the time. The provisions of the International Labour Organization’s convention No. 189 on domestic workers were already covered in domestic law.

The Australian Government would not propose a human rights charter at the federal level. As for the Parliamentary Joint Committee on Human Rights, its role was to examine the compliance of domestic legislation that came before the federal parliament with the seven core human rights treaties to which Australia was party. With respect to Australia’s reservation to article 4(a) of the Convention, it was consistent with the Vienna Convention on the Law of Treaties. Most State and territory governments had legislation criminalizing incitement to hatred on the basis of race. Amendments to section 18C of the Racial Discrimination Act had not received the support of the Parliament. As for the time period for lodging complaints of racial discrimination, it did constitute a hard time limit. The Australian Human Rights Commission was sufficiently resourced and the Government considered its role very important.

Questions by Experts

VERENE ALBERTHA SHEPHERD, Committee Expert and Country Rapporteur for Australia, voiced disappointment by the delegation’s statement that the State party did not plan to ratify International Labour Organization’s conventions or to adopt a federal human rights charter, and to remove reservation to article 4(a) of the Convention. Could the State party explain what level of funding was given for multiculturalism? Who decided what kind of allocations would be made for indigenous services?

Turning to children in detention, Ms. Shepherd noted that children had to be diverted from the justice system. The problem was not unique to one state or facility with respect to abuse of children in institutional care. What would Australia do to implement the recommendations of the Royal Commission? Would anyone be held responsible for the abuse of children in institutional care?

Ms. Shepherd emphasised the importance of collecting data in shedding light on racially and ethnically motivated crimes. She also expressed concern about offshore processing centres for migrants, and about the delegation’s focus on people smugglers rather than on people in trouble. Australian leaders should take immediate action to protect migrants in the offshore processing centres.

Turning to Australia’s reservation to article 4(a) of the Convention, Experts disagreed with the explanation provided by the delegation. That was a unique situation for the Committee. Did Australia’s non-discriminatory policy extend to citizenship? The English qualification test seemed to be discriminatory, Experts noted.

Did Australia collect data on the ethnic and racial composition of its population? When and how would targets for improving indigenous socio-economic indicators be on track? How was underfunding for indigenous services explained? Homelessness rates among indigenous peoples in the Northern Territory did not seem to be improving.

Why had Australia not moved from mandatory to voluntary income management? It seemed that the Community Development Programme displaced jobs and contained some discriminatory provisions. What was the data on indigenous peoples with disabilities? How did Australia offer to migrants in offshore processing centres safety and protection?

There seemed to be substantial problems with free, prior and informed consent of indigenous peoples. The terra nullis principle denied land ownership of indigenous peoples. The baseline for the calculation of indigenous lands had to be the full territory occupied by Aboriginal peoples. Should the native titles system not be seen within the framework of self-determination of indigenous peoples?

Would Australia establish national targets to eliminate the overrepresentation of indigenous children in out-of-home care and invest in their culturally appropriate home care? There were reports that the police and social officials in eastern Australia did not receive training on racial discrimination.

What did the Government do in order to protect indigenous peoples from substance abuse? How and at what level did the dialogue with indigenous communities take place?

Replies by the Delegation

LACHLAN STRAHAN, First Assistant Secretary at the Multilateral Policy Division of the Department of Foreign Affairs and Trade of Australia, noted that Australia was fully committed to upholding its international obligation, but it would not ratify the International Labour Organization’s conventions. All states and territories had programmes for the diversion of juveniles from the justice system, Dr. Strahan noted. Such programmes included opportunities in participating in activities related to offending behaviour and to address the harm caused by their offending.

The review of the juvenile justice system in Victoria had identified areas for improvement, such as early prevention, comprehensive assessment, enhanced sentence oversight, and strengthened transition support. Across Australia, out-of-home care for all children, including indigenous children, was viewed as an intervention of last resort. The Government was currently considering the results of a study on the overrepresentation of indigenous children in institutional care, Dr. Strahan explained.

He said that the last census did collect data on birthplace, religion, ancestry and languages spoken at home. The most common birthplace was England, followed by China and India. Turning to income management, Dr. Strahan explained that welfare recipients were placed under income management. Some 21 per cent of the recipients were not indigenous, so the policy was not discriminatory.

The delegation stated that the Australian Government intended to ratify the Optional Protocol to the Convention against Torture, which would include monitoring of youth detention facilities in order to prevent torture and ill-treatment. The national police did not tolerate discriminatory behaviour and it had at its disposal an array of mechanisms for punishing offending behaviour of police officers, such as racial profiling.

There were fewer job opportunities in remote areas which was why the Community Development Programme activities were designed in a more flexible manner. States and territories governments would look into setting up targets for reducing the representation of indigenous children in out-of-home care. Suicide prevention was an important aspect of the efforts to address that phenomenon among indigenous communities.

The amended citizenship legislation was in the hands of politicians. Turning to the situation in the Manus island processing centre for migrants, the delegation explained that service providers ensured that migrants received adequate services. There was no good reason why migrants would not move to new facilities.
The Government of Australia absolutely rejected the terra nullis principle, and it had adopted the Native Title Act in order to determine indigenous land ownership. There was dialogue with indigenous peoples at the local and national levels through various mechanisms.

On violence against indigenous women, Australia had a national action plan to reduce violence against women and their children. One of the priorities included Aboriginal and Torres Strait Islander women.

Concluding Remarks

VERENE ALBERTHA SHEPHERD, Committee Expert and Country Rapporteur for Australia, thanked the delegation for the frank opening statement and responses to Committee’s questions. She appreciated the opportunity to interact with representatives of indigenous peoples and civil society from Australia. Ms. Shepherd noted that peace required justice, equality, equity and the reversal of the wrongs of history. The Government of Australia needed to target the minority that did not want to embrace multiculturalism.

LACHLAN STRAHAN, First Assistant Secretary at the Multilateral Policy Division of the Department of Foreign Affairs and Trade of Australia, said he greatly appreciated the frank and collegiate spirit of the dialogue. No one should doubt Australia’s firm commitment to fighting racism and to defending multiculturalism. Australia had been fighting back efforts by some other nation States to exclude civil society from United Nations’ proceedings. Australia believed that civil society played a constructive role in enhancing international scrutiny and accountability, and saw the Australian Human Rights Commission as a critical partner in its shared objective of eliminating racism. It was true that Australia had a minority that fought against multiculturalism. The enemies of diversity were the enemies of democracy.

ANASTASIA CRICKLEY, Committee Chairperson, reminded that the Committee’s job was to support the State party in the implementation of the Convention in light of the global trend to marginalize minorities and indigenous peoples. She thanked the delegation and civil society from Australia for their participation in the dialogue.



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CERD/17/35E