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Legal Information Access Centre (LIAC) - Hot Topics |
In March 1999, the Committee on the Elimination of Racial Discrimination found that the Federal Parliament’s amendments to the Native Title Act 1993 (Cth) breach Australia’s human rights obligations under the United Nations Convention on the Elimination of All Forms of Racial Discrimination.
In 1965, the International Convention on the Elimination of All Forms of Racial Discrimination was adopted by the United Nations General Assembly.1 In the following year, the General Assembly adopted two human rights treaties, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Australia is a party to these and other human rights treaties, including the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women.
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HOT TIP The United Nations Committee on the Elimination of Racial Discrimination (CERD) is the UN treaty body which monitors compliance State parties with the human rights standards set out in the International Convention on the Elimination of All Forms of Racial Discrimination. It was the first human rights committee established within the UN, and its membership consists of eighteen experts from different countries. |
The process of entering into a treaty consists of a number of stages.2 First, the State must sign the treaty, indicating its intention to become a party to the treaty. Second, State must ratify the treaty. In Australia, ratification requires ‘approval of the Federal Executive Council, that by action of the Governor General in Council... Ratification is completed by a formal exchange or deposit of the instrument of ratification with the Secretary-General of the UN in New York.’3
In order to become law within Australia, Parliament must pass legislation which gives effect to the treaty. For example, the Racial Discrimination Act 1975 (Cth) gives effect to the International Convention on the Elimination of All Forms of Racial Discrimination. The constitutional power which gives Parliament power to pass laws which give effect to international treaties is conferred by s. 51(xxix) (the external affairs power).
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HOT TIP A treaty is a voluntary agreement made between State parties. International human rights law does not have the same kinds of enforcement mechanisms that exist in domestic law, which is why treaty obligations have to be legislated into the laws of the State. The ‘penalties’ for noncompliance might, in an extreme case, include resolutions critical of the conduct by the UN General Assembly, the breaking of diplomatic relations and the imposition of trade sanctions and boycotts. |
In August 1998 the CERD Committee requested information from the Australian government, under its early warning and urgent action procedure. This procedure is a part of the Committee’s role in monitoring compliance of State parties with the treaty. The early warning and urgent action procedures of the Committee were developed in 1993, in recognition of the importance of economic, social, humanitarian and ecological issues in maintaining stability within a nation. The procedures provide for
...each treaty body to undertake an urgent examination of all possible measures that it might take, within its competence, both to prevent human rights violations from occurring and to monitor more closely emergency situations of all kinds arising within the jurisdiction of the States parties.4
Australia is the first western nation to be called to answer under these procedures. Other countries being considered at the same time as Australia were the Czech Republic, the Congo, Rwanda, Sudan and Yugoslavia.5
The Committee requested the Australian government appear before it at its 54th session in March 1999, to provide information on the following issues:
To assist its consideration of Australia’s compliance, Committee received information from the Australian government, ATSIC, Australians for Native Title and Reconciliation, the National Indigenous Working Group and the Acting Aboriginal and Torres Strait Islander Justice Commissioner. The UN Special Country Rapporteur, Ms Gay McDougall, provided the Committee with a report on native title, providing clarification and explanations the complex issues and amendments to the Native Title 1993.6
The Committee considered the issues in the context Australia’s obligations under the Convention for the Elimination of All Forms of Racial Discrimination, particularly in relation to compliance with Articles 2 of the Convention.
In summary, the Committee considered that Australia failed to meet its obligations with regard to the principles of equality and effective participation by Indigenous people in decisions affecting them set out in Articles and 5 of the Convention.
Article 2 places positive obligations on States not discriminate, and to prevent others within its jurisdiction from discriminating. In interpreting these requirements, the CERD Committee has recognised that racially discriminatory practices are often systemic and in effect. Consequently, to meet these obligations, must ensure that the effects of past discrimination continued into the future, and must redress the inequality of minority groups. They must also recognise and give equal respect to the different cultural such groups.7
In its decision on Australia, the Committee recognised within the broad range of discriminatory practices have long been directed at Australia’s Aboriginal Torres Strait Islander people, the effects of racially discriminatory land practices have endured an acute impairment of the rights of Australia’s indigenous communities.
The Committee further recognizes that the land of indigenous people are unique and encompass traditional and cultural identification of the indigenous people with their land and that has generally recognized.8
The Committee identified four significant sets of provisions of the amended Native Title Act 1993 discriminatory impact on the rights of native title claimants.
The second concern of the Committee was Australia’s compliance with the requirement of effective participation by Indigenous people in decisions affecting them. This principle provides that: members of the indigenous people have equal rights in respect of effective participation in public life, and no decisions directly relating to their rights and interests are taken without their informed consent.9 The Committee concluded that Australia failed to meet its obligation under the Convention and called on Australia to suspend the implementation of the 1998 amendments and to re-open discussions with Indigenous representatives with a view to finding solutions which would comply with Australia’s obligations and be acceptable to Indigenous people.10
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HOT TIP STATE PARTY |
The federal Attorney-General stated that the government disagreed with the Committee’s findings. Consequently, the government has not acted on the Committee’s recommendations.11
The Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund has recently concluded an inquiry focusing on the sustainability of the CERD Committee’s decision on the weight of informed opinion. Its findings have been reported.
At the fifty-sixth session of the Committee, in March this year, the Committee expressed concern about the Australian government’s ‘unsatisfactory response’ to the Committee’s 1999 decisions and reaffirmed all aspects of these decisions.12
Australia’s compliance with international human rights standards will be considered again when the Human Rights Committee considers Australia’s compliance with the International Covenant on Civil and Political Rights (ICCPR) in July and consideration of Australia’s compliance with the International Covenant of Social, Economic and Cultural Rights occurs in August 2000.
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HOT TIP State parties cannot be forced to comply with the findings of international treaty bodies, but their findings should be used to inform government policy, providing it with a sound foundation for its compliance with international human rights standards. |