ࡱ> 7 pbjbjUU  7|7|>(-l    nnnt$6$6$66\H9\!=^>.<><>????!!!!!!!# &X!n?????!y 4 F(<>?!yyy?Xn?n?!y?!yyn9})nn?= 0|B$66^ !0!?(n&wTn&y  nnSocial Justice Report 2000 Introduction The past year has been one of great contrasts. On the one hand, we have experienced the apparent harmony and healing of the walk across the Sydney Harbour Bridge and similar walks in other states and on the other hand, the national outpourings of grief and anger at the death of a 15-year-old boy in custody in Don Dale Detention Centre in Darwin in February. During the year there has been the introduction of new programs such as the Indigenous Literacy and Numeracy Strategy, the Indigenous Employment Strategy and the establishment of an Indigenous Leadership Program in conjunction with the Australian Institute of Aboriginal and Torres Strait Islander Studies. Alongside this has been the refusal to overturn mandatory sentencing laws in the Northern Territory and Western Australia, and the hostile reaction to the expression of views by various United Nations human rights treaty committees under routine reporting mechanisms. The year has seen the acceptance by most state and territory Parliaments of the Council for Aboriginal Reconciliations Australian Declaration Towards Reconciliation and Roadmap towards Reconciliation, and the establishment of collaborative partnerships between ATSIC and state governments. But it has witnessed too the governments submission to a Senate inquiry stating that there is no stolen generation and the refusal to offer an official government apology or to establish alternatives to litigation to provide redress to people affected by forcible removal policies. The year has also moved between the unifying experience of the Sydney Olympic games and the continued high levels of Indigenous over-representation and deaths in custody some ten years after the Royal Commission into Aboriginal Deaths in Custody was in operation. Policy debate has also shifted between calls (similar to those in the late 1970s and late 1980s) for the negotiation of a treaty with Indigenous peoples on the one hand, and practical reconciliation on the other. The defining feature of the past year has been the focus on reconciliation. This year has been the one in which the Council for Aboriginal Reconciliation was required to put to the Australian people its views on what actions are required to achieve the Councils vision of a united Australia which respects this land of ours; values the Aboriginal and Torres Strait Islander heritage; and provides justice and equity for all. The Council had reached the stage where it was required to prepare the nation for the next stage of the road towards reconciliation. But as we reach this crucial stage in relations between Indigenous and non-Indigenous Australians, reconciliation has come to mean different things to different people. Reconciliation has been described as a peoples movement and something that, to be successful, must affect the hearts and minds of all Australians. It is seen as having reached a level of community support that it is now unstoppable. For the government it is also a term that means practical measures to achieve practical improvements in the livelihoods of Indigenous peoples an outlook that is more about giving Aboriginal people a leg up than challenging the imbalances in power in society. For many Indigenous people it has been seen as yet another opportunity like the Social Justice Package or the Makarrata or national land rights proposals for a durable resolution to the ongoing consequences of the taking of these lands and waters since 1788. Ultimately, these differing views of what reconciliation involves have a common point of departure: the appropriate role of human rights to the reconciliation process. Many of the divisions that have emerged over the past year from the refusal to overturn mandatory sentencing, the response to forcible removal policies, the reaction to the United Nations human rights treaty committees and the calls for the negotiation of a treaty have involved attempts by the federal government to downplay the significance of human rights. The government has gone out of its way to emphasise, for example, that in responding to the mandatory sentencing laws of the Northern Territory by providing that government with an additional $20 million over four years for the development of diversionary programs and an interpreter service, it has not acted because of concerns about human rights. There has been a worrying trend to de-legitimise a human rights discourse, and to promote a view of democracy as majority rule. But democracy is much more than government in accordance with the wishes of the majority. It also requires compliance with the rule of law, and with principles of basic fairness and equality. It also entails the notion of responsible government that government is there to protect the freedom of all sectors of society, including the vulnerable and those not in the majority. As Thomas Fleiner notes Democracy and freedom are Siamese twins. The one cannot exist without the other. Human rights are an essential bedrock on which democracy must be built. These are the weighty issues that are considered in this report. It is based on the theme of reconciliation and how to achieve it. One cannot underestimate the enormously difficult nature of the challenge that reconciliation raises for Australia as a nation. As Peter Russell notes: Aboriginal Reconciliation is a distinctive Australian endeavour. It reflects an awareness of the extent to which the settler population has denied Aboriginal and Torres Strait Islander participation in Australian history. While the dispossession and domination of indigenous peoples in the other English-settler countries (Canada, New Zealand and the United States) especially through the nineteenth century was not significantly less oppressive than in Australia, those countries did not so systematically, in such bald legal and constitutional terms, deny the indigenous peoples any recognition or rights. Australias settlers practices and believed in the purest form of terra nullius with the consequence that their heirs, now moved by a less racist and more liberal outlook, have the furthest to go, the widest chasm to bridge, in finding a consensual way of sharing citizenship and country with the first peoples of their land. That is the challenge of reconciliation. This report argues that the only way that this challenge will be met is by adopting an approach that recognises and protects Indigenous peoples human rights. The report commences with chapter 2, which answers the question what is the relevance to reconciliation of human rights? It sets out to address a range of concerns that have been raised during the debate on reconciliation about human rights. I address the issues of the relevance of recognising the role of the past in explaining the current conditions and experiences of Indigenous peoples; of why reconciliation does not amount to special treatment for Indigenous Australians; and explaining the two core human rights bases of reconciliation the need to recognise and embrace cultural difference, and the meaning of self-determination. Chapter 3 then examines how Australia is currently performing in recognising and protecting Indigenous rights. It focuses on the dialogue between the Commonwealth Government and the Committee on the Elimination of Racial Discrimination in March 2000. This dialogue examined Australias compliance with our obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. The dialogue considered a range of issues that must be addressed for reconciliation to be meaningful. There has been a great deal of misunderstanding about the nature of the dialogue between the government and the Committee, and so I have explicitly chosen to reproduce extensive excerpts from the dialogue in order to explain a range of issues such as why the Committee raised particular issues; the adequacy of the Governments responses; and the cogency of the analysis by the Committee. Overall, the purpose of the dialogue with human rights committees is to assist Australia to improve its compliance with the principles of the Convention. Chapter 4 of the report takes up this aim by identifying a series of crucial commitments that government must make if it is to make reconciliation a reality. These commitments range from matters concerning adequate data collection and benchmarking of progress towards redressing Indigenous disadvantage; to processes for strengthening Indigenous governance and autonomy; to measures to ensure adequate protection of Indigenous peoples human rights within our federal system of government. Ultimately, these commitments have been identified with the purposes of improving government accountability and transparency for policy making, and facilitating greater participation by Indigenous people in decisions that affect their daily lives. To this end I have included a number of recommendations to the federal government. These recommendations are intended to make governments commit to turning their rhetoric about reconciliation into action and outcomes. For too long governments at all levels have committed to overcoming Indigenous disadvantage, for example, yet have not backed up this commitment with measures by which to hold themselves accountable to the public. Chapter 5 then considers the issue of reparations for gross violations of human rights. This chapter focuses specifically on reparations for victims of forcible removals policies and seeks to explain the international law principle of reparations. It also provides models for reparations in other countries. The concern that is raised is that the response to reparations issues in Australia lags seriously behind the approaches adopted in other countries, and does very little to resolve ongoing grave injustices. The report then ends with two appendices, the first of which reproduces my submissions to the various United Nations human rights committees from earlier in the year. The second appendix reproduces the concluding observations of the Committee on the Elimination of Racial Discrimination. Looking ahead With the winding up of the Council for Aboriginal Reconciliation the responsibility for maintaining the momentum of the reconciliation process has now spread to governments, Reconciliation Australia, institutions such as the Human Rights and Equal Opportunity Commission, and the general community. It would be a tragedy to look back in ten years time and to observe that we did not take this opportunity. Already as a nation we have let valuable opportunities to improve relations between Indigenous people and the wider community slip through our fingers too often. From the perspective of the Human Rights and Equal Opportunity Commission, we will continue to support the reconciliation process. Activities to promote the achievement of reconciliation will remain a high priority in my work program. Over the next six months I shall develop a program for the Commission to commence work on the many actions that the Council for Aboriginal Reconciliation have recommended that we undertake. In particular, I note the Councils suggestion in section 10 of the Reconciliation Bill 2000 that each year my Social Justice Report include consideration of the national progress towards reconciliation from a human rights perspective. My legislative functions allow me to take up this recommendation in absence of the passage of the Reconciliation Bill 2000. Accordingly, I will consider progress in addressing the human rights dimensions of reconciliation in my report for 2001. This will inevitably include consideration of the response of the federal government to the recommendations of this report. Chapter 2: Reconciliation and human rights In May I asked the following question in relation to the reconciliation process: Will we, as a nation, take this opportunity to challenge the fundamental contradiction that lies at the heart of our society? For on the one hand we are a nation that prides itself as a defender of human rights and as a model democracy. Yet on the other hand we are a nation built on the exploitation and dispossession of Aborigines and Torres Strait Islanders. This will be how we assess the success or otherwise of the reconciliation process in years to come. The reconciliation process has the potential to be as significant, and difficult, as the process that led to the joining together of the states into one indissoluble federation in 1901. It challenges us to adapt the structures of society in ways that ensure that first nation peoples can participate fully, be welcomed and have our cultures respected. Integral to this process is an acknowledgement of the wrongs of the past and an acceptance of the need for a restructured relationship. Such a relationship must involve the full recognition and respect for the human rights of all Australians, including Indigenous peoples. This proposition will be self-evident and uncontentious to many. Yet it no doubt causes consternation for others. In this chapter I explain the challenge that reconciliation creates for Australia, and the importance of recognising the human rights of Indigenous people to this process. I argue that not only is such recognition integral for reconciliation to be lasting and meaningful, but that it also enriches our national identity as a tolerant and diverse nation. Reconciliation the challenge ahead By the time this report is publicly available, the 10-year term of the Council for Aboriginal Reconciliation will have ended. These 10 years have seen Indigenous issues become indelibly etched on the national consciousness. The wider Australian community has become aware of a history that was previously only considered orthodox by Indigenous communities. A series of events, particularly the reports of the Royal Commission into Aboriginal Deaths in Custody, the recognition of native title and the documenting of the impact of policies of the forcible removal of Indigenous children from their families, have exposed the foundational myths of our nations history. At the end of the decade, these events have successfully shaken loose the great Australian silence and left the nation at a crossroads, in a state of uncertainty. In May 1991 the report of the Royal Commission into Aboriginal Deaths in Custody revealed a complex and devastating picture of the effects on Aboriginal people of dispossession, colonisation and institutional racism. The report condemned the paternalistic, assimilationist policies of the past, stating that: The great lesson that stands out is that non-Aboriginals, who currently hold all the power in dealing with Aboriginals, have to give up the usually well-intentioned efforts to do things for or to Aboriginals, to give up the assumption that they know what is best for Aboriginals who have to be led, educated, manipulated, and re-shaped into the image of the dominant community. Instead, Aboriginals must be recognized for what they are, a people in their own right with their own culture, history and values. Partly in response to the findings of the Royal Commission, the Council for Aboriginal Reconciliation (CAR or the Council) was established in June 1991, with the objective of the transformation of Aboriginal and non-Aboriginal relations in this country. The Council was established with bipartisan support in the Parliament and was seen as the machinery to begin the long process of reconciliation. It was clearly accepted at the time that reconciliation could not be achieved during the life of the Council, which would end on 1 January 2001. The establishment of the Council was followed in 1992 by the High Courts decision in Mabo, which rejected the assertion that Australia was terra nullius (or land belonging to no-one), and found that the common law of Australia recognises rights of Indigenous people to land flowing from their continued occupation and usage. As Justice Peter Gray has noted, Mabo made this nation officially a legally pluralist one. The common law now recognises, and gives effect to, indigenous law with respect to land tenure, and possibly, with respect to other aspects of life and death as well. The Mabo decision was a turning point in the relationship between Indigenous and non-Indigenous Australians. It rejects the foundational myths of Australias settlement and condemns the brutality of the colonisation process. As Justices Deane and Gaudron commented, in relation to an early conflict between settlers and a particular Aboriginal clan, the process of colonisation saw: the conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices. In its response to the Mabo decision, the federal government accepted that Australias first nations people have suffered grievous harm, and that they have a legitimate entitlement to appropriate redress. At the time, the forms of this redress identified by the government were for legislation that regulated, and in certain instances prevented, the exercise of native title (the Native Title Act); the establishment of a land fund to provide redress to those Indigenous people unable to establish native title; and a package of social justice measures to address the dispossession of Indigenous people. Legislative amendments and clarification in subsequent judicial decisions have greatly diminished the potential scope of native title since Mabo. The quest for certainty (by both the legislature and the courts) has limited its transformative potential by more easily finding extinguishment of native title. But this by no means provides a finalisation of these issues. As Justice Peter Gray notes, the process of native title recognition is: in truth, [an] inquiry as to whether the non-Indigenous legal system has withdrawn its recognition of those entitlements, because of its creation of interests, or recognition of activities incompatible with the continuing existence of Indigenous entitlements. The entitlements continue to exist in Indigenous law, despite any extinguishment or impairment. Mabo identified the existence of a grave injustice, even if the recognition of native title has since developed in ways that may ultimately prove incapable of providing appropriate redress. In relation to the remaining aspects of the governments response to Mabo, the Indigenous Land Fund continues to operate on a moderate scale. Despite widespread consultation by the Aboriginal and Torres Strait Islander Commission (ATSIC) and CAR with Indigenous people across the country, the Social Justice Package has never materialised. Upon its election in 1996, the Howard government indicated that it would not provide an additional package of measures to address the consequences of dispossession, but would instead focus on redressing Indigenous disadvantage in the key priority areas of health, housing, education and employment. This focus, and its expression through the catchcry of practical reconciliation, is discussed below. In 1997, the Human Rights and Equal Opportunity Commission released Bringing them home, the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander 鱨վ from their Families. Much like the recognition of native title, the exposure of the public to the impact of policies of forcible removal, as documented in Bringing them home, has compelled the nation to face the history of treatment of Indigenous people. These key events have ensured that at the end of the first decade of the formal process of reconciliation, we find ourselves unable to take the easy road and ignore or forget the past. As Milan Kundera has noted, forgetting is absolute injustice and absolute solace at the same time. Such solace is no longer an option. In many respects, this has been the great advance of the past decade. As a society we have begun belatedly - to challenge the myths of settlement, which had previously operated as a self-constructing form of repression. The challenge of reconciliation is how we now respond to the reality of our shared history. In acknowledging the past will we, in the words of Justices Deane and Gaudron, retreat from injustice? The difficulty of doing so cannot be underestimated. But as I stated in the Social justice report 1999: The re-empowerment of Aborigines and Torres Strait Islanders involves challenging myths upon which the Australian nation was built. As the belated recognition of native title demonstrates, however, the task will grow increasingly more difficult until it is faced. There is no possibility that it will simply go away. As HC Coombs stated in 1979, in the context of discussing the necessity for a treaty with Indigenous Australians, what is now required from Australian society is an unprecedented tolerance for uncertainty in order to accommodate a just and fair reconciliation for all Australians. The role of the past in the reconciliation process We used to treat history as an objective knowledge of past events that were largely immune from reinterpretation; history was the past, and we could do little about it. In the more distant past, history was differently controversial, a largely factual (and relatively uninspiring) winners history. Increasingly, however, we recognize the growing elasticity of history and that it is anything but fixed. More recently, as history has become increasingly malleable, it has simultaneously become more central to our daily life. It informs our identity more intimately today, and being subject to interpretation, it has also become a space for contesting perspectives History changes who we were, not just who we are. In this sense history has become a crucial field for political struggle Having exposed foundational myths of settlement in Australia, is history of any further relevance to the process of reconciliation? I submit that it is in the following crucial ways: In explaining the present disadvantage of Indigenous people; By creating a series of false assumptions about the relationship between Indigenous and non-Indigenous people, the remnants of which are still relevant today; and In explaining the tension that exists today between the aspirations of Indigenous and non-Indigenous people concerning the legitimacy of the structures of society. Indigenous disadvantage as historically derived The historical reasons for Indigenous disadvantage can be summarised under the following main headings: Dispossession: Prior to British occupation, Aboriginal and Torres Strait Islander peoples developed a mosaic of communities and groups with rich and enduring cultures centred on an intimate relationship with the land and sea Dispossession and dispersal have destroyed much of Aboriginal and Torres Strait Islander societies [and] many Indigenous communities and individuals have little or no stake in the economic life of the nation other than what Governments may provide; Exclusion from mainstream services: Up until the late 1960s, many Indigenous Australians were excluded from mainstream services, creating a significant legacy of inequality in areas such as education, health, housing and infrastructure; Recent inclusion: In combination with exclusion from services such as education, access to welfare has unintentionally, and paradoxically, created poverty traps from which it is hard to escape; Past and inter-generational poverty: Low income has prevented the accumulation of capital and investment, leading to inter-generational poverty; Location in rural and remote areas: A higher proportion of the Indigenous population lives in rural and remote areas where there are few economic opportunities and service delivery is disproportionately expensive; and Demography: The large and multi-generational nature of Indigenous households creates dependency ratios and a higher economic burden than in non-Indigenous families. Similarly, the Indigenous populations structure is more akin to that of a developing nation, with population growth outstripping that of the general Australian population, and with a young age structure. Each of these factors has implications today for attempts to redress Indigenous disadvantage. Social research conducted by CAR in relation to the documents of reconciliation found: Many Aboriginal and Torres Strait Islander people live day after day with the awareness that they are a dispossessed people. It is shown to them in the racist way in which they perceive they are treated by many non-Indigenous people in a wide variety of circumstances, in the material poverty of their lives and the lives of their extended families and their general communities, and in the way they are discriminated against in employment, in the way they are housed and in their lack of access to health and education services as good as those available to non-Indigenous people. For many, the sense of dispossession is reinforced by their own experience of being forcibly taken from their families, or by the stories that they hear from their families of killings and other sufferings inflicted on them by those they call the invaders or the colonists. Individuals within Indigenous community, as might be expected, have reacted in many ways to this sense of dispossession. Some have brushed it aside and got on with their lives. Some have been deeply wounded, and have fought a difficult fight to overcome its effects on them. Some have been permanently damaged. None has escaped untouched, except perhaps individuals who have buried their Aboriginality: yet the fact of denial of part of their heritage itself may be seen as a price they have paid. A striking illustration of the importance of recognising the historically derived nature of Indigenous disadvantage is the Hawke governments Aboriginal Employment Development Policy (AEDP). Introduced in 1986, the program sought to move Indigenous people beyond welfare dependency towards economic independence. It had as its objective Aboriginal employment equity by the year 2000. Clearly that target has not been met. As CAR and the Centre for Aboriginal Economic Policy Research (CAEPR) have noted: The AEDP highlighted the problems of seeking statistical equity without recognising the deep-rooted structural causes of the low socio-economic status of Indigenous Australians and without basing targets on accurate demographic data applying the principle of equality and setting statistical targets must be both geographically and culturally informed Governments need to be realistic about what can be achieved, in light of the highly intractable nature of the problem, and careful in their use of statistics There is a very real danger that perceptions of continued policy and program failure can do considerable harm to the argument for proactive government programs to address Indigenous needs. False assumptions about the relationship between Indigenous and non-Indigenous Australians Since contact in 1788, the perspectives of the colonisers have prevailed over, and in some instances actively excluded, those of first nations peoples in Australian society. The result has been that the relationship between Indigenous and non-Indigenous people has been grounded in the values, beliefs and cultural assumptions of the settler society. These assumptions have manifested through laws, policies, practices and institutions based on the perceived cultural superiority of non-Indigenous structures. Two examples clearly illustrate the destructive impact of this dynamic the non-recognition of native title prior to 1992 and the forcible removal of Indigenous children from their families. The non-recognition of native title prior to 1992 depended upon the existence of the profoundly racist doctrine of terra nullius. This doctrine, as applied in the Australian context, was premised on the cultural superiority of Europeans. Justice Brennan noted in Mabo: The facts as we know them today do not fit the absence of law or barbarian theory underpinning the colonial reception of the common law of England Yet the supposedly barbarian nature of Indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land, as Lord Sumner speaking for the Privy Council said in In re Southern Rhodesia (60) (1919) AC 211, at pp 233-234: The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. As the Indigenous inhabitants of a settled colony were regarded as low in the scale of social organization, they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. Ignoring those rights and interests, the Crown's sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein, because, as Stephen C.J. said, there was no other proprietor of such lands. Similarly, as Bringing them home noted, policies of forcible removal of Aboriginal and Torres Strait Islander children from their families had at their core the belief that Indigenous culture was inferior to that of the mainstream society. Policies of merging and absorption were based on the belief, often genuinely held, that the best interests of part-Aboriginal children would be served by their removal from their families, and separation from their Indigenous identity. Assumptions of culturally superiority are still reflected in contemporary debate about the impact and appropriate response to forcible removal policies. While there is wide acknowledgement of the harm caused by these policies, a significant feature of current debate is the assertion that the intention of the policy makers (and those implementing the policies) at the time was beneficial or benign. The result is that attention has been directed to the bona fides of policy makers of the time, by asking did policy makers of the day believe that they were acting in the best interests of Indigenous children? Policy makers of the time were, of course, operating wholly within the then existing cultural norms, which gave expression to the perceived racial inferiority of Indigenous people. The crucial inquiry, therefore, is correctly stated as whether removal policies were premised on assumptions about the cultural inferiority of Indigenous people which predetermined that the best interests of the child, and of the wider society, would best be served by removing the child from their family, community and culture. The current debate about forcible removal policies has meant that we have been unable to transcend a dialogue grounded in the beliefs and assumptions that underpinned society at the time the policies were in place. It amounts to a continuation, albeit in a more diluted and subtle form, of the cultural assumptions of the past. The legitimacy of institutions in Australian society today This lack of respect for, and the failure to recognise the value of, Indigenous cultures permeates the design of the institutions of society and government. The Canadian Royal Commission into Aboriginal Peoples noted (in the Canadian context): The culture and values of the mainstream are [also] recognized in the institutions of society, but Indigenous cultures and values are not. In this way, the colonization of Aboriginal nations has become an institutionalised reality. Accordingly, the Royal Commissioners identified as fundamental to a new relationship between Indigenous and non-Indigenous people, a rejection of the principles upon which the relationship had been founded over the previous 200 years, and the need for an understanding of the place of Indigenous peoples in society and the reflection of this understanding in the institutions of society. Recognising that the cultural assumptions of the past have been integral to the building of the institutions of mainstream society today is perhaps one of the most difficult challenges for the reconciliation process. At issue is the legitimacy of these structures, for how can Indigenous people participate fully and equally through the structures of a society that does not accord respect to Indigenous values and customs? The challenge is to recognise this contradiction, and commit ourselves to building societal structures that are inclusive and accommodate Indigenous aspirations and cultures. Denying the past In the reconciliation debate it has been said that it is not relevant or fair to relate events of the past to the disadvantage and discrimination of today. This refusal to accept the relevance of the past underpins arguments that the current generation of Australians should not be held responsible for events of the past, as well as the view that a reliance on history is a way for Indigenous people to avoid accepting responsibility and taking control of their own lives. This view presents the past as disjunctive or disconnected from present circumstances. In treating the past in this way, it fails to recognise the broader, systemic nature of Indigenous disadvantage and operates to absent the government from its position of responsibility. Deborah Bird Rose has criticised this approach as it manipulates concepts of time in order to evade responsibility: Whether idealistic or complacent, the idea of disjunction can be deployed to evade responsibility. The logic is to declare the present disjunctive with the past, and then assert that all the unpleasant and demanding social facts of today really belong in the past, or to declare that the present is about to be transcended and that we will soon live in a period that is disjunctive with our now. This practice of now deflects us away from the present. It allows us to turn our backs on current social facts of pain, damage, destruction and despair that exist in the present through our own agency, but that we will only acknowledge as our past. For example, when politicians discuss the suffering by Aboriginal people today as a result of past policies of separating families, they assert that our responsibilities do not extend to the people of today because the wrongs exist only in the past. In declaring the past to be disjunctive, we declare it to be something finished and unchangeable, and therefore outside our responsibility. Rose warns that such denialism can amount to: a facile manipulation of responsibility, which I refer to as tunnel vision: what we deplore is held to be almost already in the past, and what we desire is held to be almost already achieved visions of the future enable us to sidestep present responsibility while understanding ourselves in an imaginary state of future achievement The denial of a relevant connection between the past and the present is relied upon by those who argue that there should not be a national apology for the past treatment of Indigenous people or more specifically in relation to policies of forcible removal. An apology is presented as if it is backward looking, somehow perpetuating the past when what we should be doing instead is moving forward together for the benefit of all Australians. This misunderstands the purpose of an apology. The former shadow minister for Aboriginal and Torres Strait Islander Affairs, Dr Michael Wooldridge, explained this in the parliamentary debate on the Council for Aboriginal Reconciliation Bill 1991: One of the most moving speeches that I heard in my time as Shadow Minister for Aboriginal Affairs was when Bishop Malcolm - an Anglican bishop in northern Australia, an Aboriginal man - got up at the end of the dinner and gave a very moving speech about his hopes and aspirations for the future. They were quite simple. They were not hopes and aspirations that looked to the past at all; they were hopes and aspirations for the future. He said, All that Aboriginal people want is for someone to say sorry. We cannot undo the past. We have to look to the future. The first essential step in that is just simply saying Sorry. Further, as Sir William Deane has noted: It should, I think, be apparent to all well-meaning people that true reconciliation between the Australian nation and its Indigenous peoples is not achievable in the absence of acknowledgment by the nation of the wrongfulness of the past dispossession, oppression and degradation of the Aboriginal peoples. That is not to say that individual Australians who had no part in what was done in the past should feel or acknowledge personal guilt. It is simply to assert our identity as a nation and the basic fact that national shame, as well as national pride, can and should exist in relation to past acts and omissions, at least when done or made in the name of the community or with the authority of government. Where there is no room for national pride or national shame about the past, there can be no national soul. The opposition to an apology can also be seen as an example of cross-cultural misunderstanding. Qualitative research conducted for the Council for Aboriginal Reconciliation shows that many Indigenous people believe that non-Indigenous Australians comprehensively misunderstand what Indigenous Australians mean when they talk about matters such as an apology and ownership of land. Many non-Indigenous people see an apology as about apportioning guilt and establishing some form of liability. This is not how Indigenous people value an apology: Despite their sense of loss and dispossession, many people in the Indigenous community have a generosity of spirit which is palpable. While some say that they would find it hard to forgive the non-Indigenous community for what they and their people have suffered many, perhaps the vast majority (although we cannot categorically assert this) can forgive. They say they cannot forget, but they can forgive There were four strands to the thinking of Indigenous people on (the question of an apology): First, it means acknowledging that what happened in the past did happen and that the denial of it must stop. Second, it means acknowledging that the wrongs of the past were truly wrong. Third, that this past - wrongs and all - must be taught as part of a full and true Australian history. Fourth, the matter of the word sorry: It is not about monetary compensation or damages, which are seen as white peoples constructs. It is not about todays people taking personal responsibility but about acknowledging that wrong was done and expressing sorrow about it. Indigenous people say they know that the forebears of many recent arrivals had nothing to do with what happened, and that todays descendants of early colonists cannot assume personal responsibility for what their forebears did Renewing the relationship To state that recognition of the past is essential for meaningful reconciliation does not mean that we should be constrained by it. We are not prisoners of the past, locked forever in the same historical postures, with the same attitudes, grievances, suspicions and prejudices. Similarly, it is important to recognise that throughout our intertwined history there is good and bad, enlightenment and ignorance, joy and great sadness, pride and shame. For this reason, reconciliation must be seen as a process of renewal rather than of starting again or the creation of a completely new relationship between Indigenous and non-Indigenous people. The concept of renewal was elaborated on by the Royal Commission into Aboriginal Peoples in Canada, and has formed the basis of the process of reconciliation in Canada: The concept of renewal expresses better the blend of historical sensitivity and creative initiative that should characterize future relations among Aboriginal and non-Aboriginal people in this country. It would be false and unjust to suggest that we start entirely anew, false and unjust to attempt to wipe the slate clean, ignoring both the wrongs of the past and the rights flowing from our previous relationships and interactions If the Aboriginal and non-Aboriginal people of Canada are not embarking on a journey entirely afresh, as strangers and neophytes, neither should we travel with all the accumulated baggage of the past on our shoulders, or assume that we know how to deal with all the challenges awaiting us along the road. The Canadian Royal Commission recommended that attempts to renew the relationship between Indigenous and non-Indigenous Canadians should be guided by the following four, inter-related principles. Mutual recognition. Non-Indigenous people should recognise that Indigenous people are the original inhabitants of the nation and have distinctive rights and responsibilities that flow from that status. Indigenous people should recognise that non-Indigenous Canadians are also of this land and have strong ties and affections here. Mutual recognition has three dimensions to it: equality; co-existence; and recognition of Indigenous self-government. Mutual respect. Respect for the unique position of Indigenous peoples, and more generally for the diversity of peoples and cultures which make up Canada, is central. Sharing. A relationship of sharing requires that the partners recognise each others basic rights, including self-government and rights to equality as peoples. It must also involve respect for the respective cultures and institutions of each partner. Meaningful sharing requires measures to be taken to redress Indigenous disadvantage, as a relationship built on sharing, as equals, is not possible under conditions of poverty and dependence. The sharing relationship should also take a form that enhances, rather than diminishes peoples capacity to contribute to the whole. Transfers that perpetuate a relationship of dependency, such as welfare, should not be seen as a long term solution. Mutual responsibility. Transforming the colonial relationship, which has descended into one of ward and guardian, into a relationship of true partnership. Due to the present unequal relationship, this requires the securing of mechanisms of governance and an independent economic and resource base (rather than welfare) by/for Indigenous peoples. These principles have since been adopted by the Canadian federal government as forming the ethical basis of negotiations for a renewed relationship between Canadian institutions of government and Indigenous peoples. Two key concerns have emerged from this analysis of the continued impact of the historical treatment of Indigenous people in Australia, which must be addressed if there is to be a renewal of the relationship between Indigenous and non-Indigenous Australians. The first is the lack of recognition and respect for Indigenous cultures and values. Throughout our history there has been: an alarming virulent dynamic that has persisted on the non-Aboriginal side, enabling it to reject the legitimate status of who and what the Aboriginal people are, what we represent and what rights and interests we might enjoy. Related to this dynamic is the imbalance of power between Indigenous and non-Indigenous people. Factors such as landlessness, poverty and disadvantage across a range of socio-economic indicators, render many Indigenous people unable to participate fully and effectively in Australian society. In order to build a fair and prosperous future in which we can all share we must commit to restoring Indigenous people to a position of full equality in Australian society. Human rights and reconciliation All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 1, Universal Declaration of Human Rights It is not possible to talk meaningfully about reconciliation, and the transformation of relationships between Indigenous and non-Indigenous Australians that it aims for, without reference to human rights. As the preamble to the Universal Declaration of Human Rights states, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace. The treatment of Indigenous people throughout Australias history has not respected these basic principles of humanity. The factors discussed above have violated the recognition of the inherent dignity of Indigenous Australians and of their equal and inalienable rights in Australian society. Principles of a renewed relationship - mutual respect, recognition, responsibility and sharing - are also premised on the equal enjoyment of human rights by all citizens of a society, Indigenous and non-Indigenous. For many, the proposition that reconciliation must be based on full respect for the human rights of Indigenous and non-Indigenous Australians alike will be uncontroversial and possibly even trite. But for others, it is a cause of consternation. Some fear that the recognition of Indigenous rights would be a threat to national unity by creating separate rights and giving Indigenous people a privileged position in our nations future. For some, these fears even extend to concerns about secession and threats to the territorial integrity of Australia. As a consequence it is often argued that reconciliation must provide unity and confirm the sameness of all Australians; that it must not be divisive by providing additional benefits to Indigenous people; and that it should focus on practical measures and outcomes. In this section I will argue that these fears are unwarranted and are not sustainable on the basis of human rights principles. I will address these concerns in the following groupings: The meaning of equality, and human rights justifications for embracing diversity and difference; Addressing disadvantage and practical reconciliation; and The meaning of self-determination and effective participation. The meaning of equality - embracing diversity and difference Reconciliation is unity in diversity Unity is not conformity. God created us all. We are not rubbish people. We have a law: it must be recognised Elder, Elcho Island, Northern Territory The principles of non-discrimination and equality before the law are among the most basic principles of civil society. Yet there is no clear understanding in the broader Australian community as to how these terms relate to the reconciliation process. Social research for the Council for Aboriginal Reconciliation found that there is a strong commitment across Australian society to equal treatment, but sharply differing views as to what the consequences of this commitment are. A popular view of equality is that people should be treated identically. On this view, reconciliation is about sameness and must not result in different or special treatment for either Indigenous or non-Indigenous Australians. At its extreme, this view sees different treatment for Indigenous peoples as a threat to national unity or as promoting separate rights. The federal government, in its response to the Australian declaration towards reconciliation, reflects this view. On the day the declaration was publicly released by CAR, the Prime Minister released his preferred version of the declaration. It replaced the wording we desire a future where all Australians enjoy their rights, accept their responsibilities, and have the opportunity to achieve their full potential with the wording we desire a future where all Australians enjoy equal rights, live under the same laws and share opportunities and responsibilities according to their aspirations. The Minister Assisting the Prime Minister on Reconciliation, in a press release on the same day, also noted that the government had reservations about the strategy to promote recognition of Indigenous rights over and above those enjoyed by other Australians. But this view of equality, however popular, does not reflect reality. The view that everybody should be treated the same overlooks the simple fact that throughout Australian history Indigenous people never have been. As I highlighted in the earlier parts of this chapter, Indigenous people have been treated as racially inferior to Europeans, and as a consequence have been dispossessed, marginalised and excluded from mainstream society. In later years we were allowed to participate in mainstream society if we behaved more like white people. Similarly, prior to 1967 we were not counted as Australians for the purpose of the Census. As recently as the 1960s many Indigenous people were denied the vote and basic entitlements such as welfare that were available to all other Australians. The failure to provide us with the same opportunities as the rest of society in the past means that to now insist on identical treatment will simply confirm the position of Indigenous people at the lowest rungs of Australian society. Demands for identical or sameness of treatment are tantamount to keeping us in our place. There are two factors that must be taken into account to facilitate the equal participation of Indigenous people in Australian society. First, there must be an acknowledgement of the historically derived nature of Indigenous disadvantage, and of the requirement to adopt remedial measures to provide Indigenous people with equality of opportunity. Such measures are necessary and fair so that Indigenous people can catch up. Sir William Deane has commented: there will be no true reconciliation until it can be seen that we are making real progress towards the position where the future prospects - in terms of health, education, life expectancy, living conditions and self-esteem - of an Aboriginal baby are at least within the same area of discourse as the future prospects of a non-Aboriginal baby. How can we hope to go forward as friends and equals while our childrens hands cannot touch? I discuss the human rights obligation to adopt remedial measures to redress Indigenous disadvantage further below. Second, for Indigenous people to be able to participate in Australian society as equals requires that we be able to live our lives free from assumptions by others about what is best for us. It requires providing a space for the recognition of our values, cultures and traditions so that they can co-exist with those of mainstream society. It requires respecting our difference and celebrating it within the diversity of the nation. Recognising difference in this way is not tantamount to separatism. Indeed, such recognition is entirely consistent with the promotion of the universality of human rights, which reinforces and protects cultural diversity rather than negates such diversity. As the vision statement for the World Conference on Racism, to take place in 2001, states: Instead of allowing diversity of race and culture to become a limiting factor in human exchange and development, we must refocus our understanding, discern in such diversity the potential for mutual enrichment, and realize that it is the interchange between great traditions of human spirituality that offers the best prospect for the persistence of the human spirit itself. For too long such diversity has been treated as threat rather than gift Human rights treaties to which Australia is a party support this approach. The obligation on Australia to provide equality before the law and to guarantee the exercise of rights and freedoms on a non-discriminatory basis has been interpreted as requiring that we deal with problems of discrimination in fact not just discrimination in law. Under this approach, not every difference in treatment in society will constitute discrimination, if the criteria for such differentiation can be justified as legitimate under the particular treaty. The Committee on the Elimination of Racial Discrimination has recognised that measures that seek to protect the culture and identity of Indigenous peoples may constitute legitimate differential treatment and therefore be non-discriminatory. The Committee has recognised that Indigenous peoples worldwide: Have been, and are still being, discriminated against, deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources Consequently the preservation of their culture and their historical identity has been and still is jeopardized. Due to this continued inequality the Committee has emphasised that the International Convention on the Elimination of All Forms of Racial Discrimination places obligations on nations to take all appropriate means to combat and eliminate discrimination against Indigenous peoples, and has called on nations to: recognize and respect Indigenous distinct culture, history, language and way of life as an enrichment of the States cultural identity and to promote its preservation; ensure that members of Indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on Indigenous identity; provide Indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics; ensure that members of Indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent; ensure that Indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs, to preserve and practice their languages. Recognition of the unique cultures and traditions of Indigenous Australians is integral to progressing our national cohesiveness on another level: it is about respect. Respect for other people, and of the total environment (the land, water, animals and so forth), is fundamental to Indigenous value systems. The lack of respect for Indigenous cultures by the non-Indigenous community can have a devastating effect on the self-worth and self-esteem of many Indigenous people: culture is not merely some ornamental aspect of an individuals existence that can readily be dispensed with or displayed on ceremonial occasions, but is integral to the self-concept and social functioning of individuals and the communities of which they form a part. As one Aboriginal elder stated during social research by CAR on the documents of reconciliation: Make a statement about it, that is nice What I will judge you on is how you treat me. I dont care about your statements anymore. I have had those statements all my life it is not in the talking, it is in the acting, it is how you treat me so treat me and then we start feeling like I am part of a team here. Indigenous disadvantage and practical reconciliation [T]his House reaffirms the central importance of practical measures leading to practical results that address the profound economic and social disadvantage which continues to be experienced by many Indigenous Australians. Motion of Reconciliation, House of Representatives and the Senate, 26 August 1999 Much has been said of the appalling levels of disadvantage suffered by Indigenous Australians. It has led one commentator to note that in Australian society there are the rich and the non-Indigenous poor, and then there is Indigenous Australia. Public perceptions of Indigenous disadvantage tend to revolve around two competing dynamics. There is a clear moral concern to ensure that no one, Indigenous or non-Indigenous, lives a life of such disadvantage. There should be equal opportunity to participate in Australian society. Yet on the other hand there is a growing impatience with the continuation of such disadvantage, which has proven to be more intractable than many had thought. This impatience manifests as frustration at the perceived lack of achievement, or in the suggestion that Indigenous people must somehow be at fault because of the persistence of the disadvantage (the lack of progress being blamed on waste and perceived lack of accountability of Indigenous organizations), a growing intolerance to commitments being made at the highest levels to concrete measures to redress such disadvantage, and in more extreme cases, a return to discredited views which suggest that the only way to improve the situation of Indigenous peoples is for them to assimilate into mainstream society. Social research conducted by the Council for Aboriginal Reconciliation found that such intolerance and frustration is particularly felt by those members of the community who themselves are living in poverty or struggling to keep out of poverty. They are people who also feel marginalised from society and are resentful as a result. A concern that I have previously expressed about programs which seek to redress Indigenous disadvantage is that there is insufficient understanding that Indigenous disadvantage is fundamentally an issue of human rights. Approaches to redressing such disadvantage must be conceived of within a rights framework for them to be effective. Instead, however, the focus in recent years has been around the notion of practical reconciliation, which treats the recognition of rights and the overcoming of disadvantage as unrelated and different agendas. Practical reconciliation emphasises the importance of addressing Indigenous disadvantage in key areas of health, housing, employment and education. It is uncontroversial that making progress in these areas is crucial to meaningful reconciliation. Yet what practical reconciliation also does is to conceive of these four priority areas as the real issues, with other concerns such as recognition of rights to land and culture, and self-determination being symbolic and not of practical benefit. Talk of practical reconciliation asserts moral authority to shut down debate about the importance of proceeding to address disadvantage on the basis of rights by presenting them as something that are merely desirable or aspirational, but not connected to the real issues at hand. Rights are seen as a distraction from the real task on which the government is focused. What this does is maintain the situation where Indigenous people are subject to the beneficence and good intentions of government. This does not change the unequal basis of the relationship between Indigenous and non-Indigenous people, and thereby leaves Indigenous people disempowered. Addressing this situation is what Noel Pearson means when he talks of our right to take responsibility. It is about a movement from welfare dependency to the recognition of basic rights, from dependence to autonomy, and from government assistance to power. As I stated in my report last year, in calling for a move away from welfare dependency to economic empowerment there is little acknowledgement that integral to this shift is the empowerment of Indigenous Australians through the full recognition and equal enjoyment of their human rights. An essential component of this empowerment is assuring the effective participation of Indigenous people in decisions that affect them. I discuss this requirement and the meaning of self-determination further below. For now, it is sufficient to note that there is a growing acknowledgement of the importance of the crucial role of the involvement of Indigenous communities and organizations in the design and delivery of services. As the House of Representatives Standing Committee on Family and Community Affairs noted in their recent report on Indigenous health, Health is life, there are: two major prerequisites that will need to be satisfied before there can be any significant improvement in the health and well-being of Indigenous Australians. First, the Commonwealth has to adopt a much more central and active role in the coordination, planning, delivery and monitoring of health and related services for Indigenous Australians. Secondly, the Indigenous community has to be allowed to play a far greater role in those same areas. As a consequence, the report canvasses a range of options for building the capacity for Indigenous community control, including mechanisms for adequate resourcing, the pooling of all health funding on a regional basis for allocation by the community, and the need for additional funding by the Commonwealth to achieve this. Human rights principles also provide benchmarks by which to assess the adequacy and appropriateness of the governments response to redressing disadvantage. Importantly, a human rights approach makes it explicit that redressing Indigenous disadvantage is not merely something that is desirable, but is a matter of obligation in order to guarantee a free and equal society. As I noted above, the principles of equality and non-discrimination allow for the adoption of remedial or special measures. Such different treatment is not considered discriminatory. The rationale for such measures is that historical patterns of racism entrench disadvantage and more than the prohibition of racial discrimination is required to overcome the resulting racial inequality. Special measures are therefore remedial provisions that have the objective of raising a sector of society from its position of disadvantage. Such measures do not lead to separate rights, as they are only sustainable for so long as the group remains disadvantaged. Closely linked to special measures is the obligation to progressively realize the full recognition of rights. The International Covenant on Economic, Social and Cultural Rights (ICESCR) requires that: Each State party to the present Covenant undertakes to take steps to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures. This requires that deliberate, concrete steps be taken, which are targeted as clearly as possible to the full recognition of rights on a non-discriminatory basis. It also requires that States move as expeditiously and effectively as possible to achieve equality. At all times, States must provide a minimum core level of enjoyment of rights, so that this principle of progressive realization does not become meaningless. States must demonstrate that they are making every effort to use all resources that are available to them in order to satisfy these minimum obligations as a matter of priority. I expressed concern in the Social justice report 1999 that the gross disparity between Indigenous and non-Indigenous Australians clearly indicates that the enjoyment of rights in Australia is not provided on a basis of equality or in a non-discriminatory manner. Similarly, the young age structure of the Indigenous population creates significant policy issues for redressing Indigenous disadvantage over the next twenty years with so many young people entering workforce age, there is the very real prospect that Indigenous unemployment, for example, will dramatically increase in the coming decade. This creates challenges for government in meeting its obligation to progressively realize the non-discriminatory enjoyment of rights. Further, the extent of Indigenous disadvantage raises concerns as to whether Australia is meeting its core minimum obligations by making every effort and using all available resources. What these concerns indicate is that despite the rhetoric of practical reconciliation it is difficult to see that redressing Indigenous disadvantage has been elevated to a sufficient level of priority, through the establishment of clear commitments and timeframes to do all that is necessary to achieve reductions in the level of disadvantage faced by Indigenous people. The concern I have is that while governments continue to highlight their commitment to redressing Indigenous disadvantage and quote the record high levels of expenditure in support of this, the broader community will be increasingly impatient with the lack of results. The questions that we must ask from a human rights perspective are first, is the gap between Indigenous and non-Indigenous people closing? And consequently, are we doing enough to overcome or reduce the level of disadvantage or are we merely doing enough to manage it? The Canadian Royal Commission into Aboriginal Peoples provides a striking illustration of the benefits of adopting a rights-based approach to overcoming rather than merely managing Indigenous disadvantage. Their Commissioners argued that the current approach to Indigenous disadvantage results in two forms of social cost to the nation: Social costs fall into two broad categories: costs associated with the economic marginalisation of Aboriginal people, and costs incurred as governments attempt to address social problems through remedial programs. As a group, Aboriginal people do not participate fully in the Canadian economy. They produce and earn less than an equivalent number of other Canadians. By any realistic standard, the contribution of Aboriginal people to the Canadian economy is much less than it could and should be. More than 150,000 Aboriginal adults do not know the satisfaction of earning an adequate income and being economically independent. As a result, the wealth they could potentially produce is not being realised. The value of production and the income forgone is a continuing cost that can never be recovered Half the cost of forgone production is shifted to governments and is thus borne by all Canadians. Governments collect less tax revenue than they would if Aboriginal people earned adequate incomes, and they pay out more in social assistance, other income support payments, and housing subsidies. The second category of social costs consists of the large amounts allocated to coping with social problems in other words the extra cost of government expenditures on remedial programs. If health and vitality were restored to Aboriginal communities, these expenditures could be reduced. This is the cost of the status quo. Furthermore, such cost would be borne each year and will escalate. What the Commission proposed, over five extensive volumes, is a restructuring of the relationship between Indigenous and non-Indigenous people over a twenty-year cycle. They envisaged: A period, spanning a generation, in which the foundations of a renewed relationship are put in place and the day-to-day reality experienced by Aboriginal people is transformed. Governments will have to apply substantial resources to those tasks: fundamental change will only be achieved with great effort and commitment This expenditure is justified to correct the injustices of the past and present Aboriginal people are entitled to equal social, educational and health outcomes, to a fair share of the countrys assets, and to a much greater share of opportunity than they have had so far The Commissioners argued that an extensive effort to overcome Indigenous disadvantage over a twenty year cycle would bring about fundamental change in the circumstances of Aboriginal people and lead to the progressive reduction and eventual elimination of the social costs accrued due to Indigenous disadvantage. By eliminating the cost of the status quo, the strategy will yield economic benefits that far exceed the amounts governments will spend to implement it. Governments would benefit in two ways with reduced expenditure on financial assistance and remedial programs on the one hand, and a fiscal dividend through increased Indigenous income on the other. In this sense, a long-term commitment to disadvantage reflects a good investment. The Centre for Aboriginal Economic Policy Research has applied this approach and sought to measure the cost of the status quo in relation to Indigenous unemployment in Australia. The results of their economic modelling are that: it is estimated that the current income support payments for the 'potential' Indigenous workforce (including the CDEP scheme) amount to $0.8 billion per annum in 1996 dollars. By 2001 this is estimated to increase in real terms to $1.0 billion and by 2006 to over $1.1 billion per annum. The indirect costs of long-term economic marginalisation and associated social problems are difficult to estimate but will undoubtedly increase in proportion with the growing job deficit. The imperative, therefore, is to shift the burden for meeting the basic needs of Indigenous people in the longer term from government to the people themselves. Rather than find jobs for all Indigenous people who want to work, a more reasonable goal is to establish parity in labour force status with other Australians. If Indigenous unemployment was reduced to the same level as that commensurate with the rest of the population, and assuming that this latter rate remained constant, then the savings to government in payments to the unemployed, in 1996 dollars, would be around $193 million by the year 2001 and $274 million by 2006 with much lower unemployment bills of $112 and $126 million respectively. On the credit side, the tax return of achieving parity in labour force status would approximate $177 million by 2006. However, by shifting all Indigenous people who want to work from welfare dependence to unsubsidised employment would increase tax revenue by $250 million (in 1996 dollars). Furthermore, this would enhance national production and provide large social policy returns in areas such as health They warn of the effect of continuing with the status quo: Against key indicators of economic status, it is clear that the time available for decisive action is decreasing rapidly. In terms of employment status, for example, the vital issue for Indigenous policy into the new millennium is the distinct prospect that the overall situation will deteriorate. This is primarily because of population growth, but also because of the enormous difficulties of economic catch-up in a rapidly changing and increasingly skills-based labour market. It is important to recognise that policy options for addressing projected Indigenous employment disparities are not easy to prescribe, nor are they cost neutral. To withdraw expenditure is simply to hasten deterioration with a rise in associated social and economic burden. To continue business as usual is clearly insufficient in the face of population growth. To enhance spending and program effort would clearly buck the fiscal trend but with the possibility, ultimately, of social and economic return. At the very least, in allocating spending on Indigenous economic policy there is a need to take into account the fact of relatively high population growth a key policy question, that can still be addressed from cross-sectional examination of census data, is whether the relative economic status of Indigenous people is likely to appear any better when the next census results are publicly available in 2002 and again in 2007. All other things being equal, results from the present analysis of likely future employment and income status suggest that it will not. If practical reconciliation is to achieve the desired results, this is the hard reality that it must face. In chapter 4 of this report I discuss mechanisms to ensure the commitment and accountability of governments to redressing disadvantage, as well as related issues such as Indigenous governance mechanisms and benchmarking processes. Self-determination and effective participation: within the life of the nation? And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation. Australian Declaration towards Reconciliation, Council for Aboriginal Reconciliation Without doubt the most controversial aspect of the debate on reconciliation has been over the implications of the right to self-determination. There are widely differing views on the relevance of self-determination to the reconciliation process. For Indigenous people, self-determination is viewed as essential for the full realization of all other human rights. But for the government, and many non-Indigenous people, it is considered unacceptable for reconciliation to involve recognition of Indigenous peoples self-determination. The governments reworded version of the Australian declaration towards reconciliation, for example, replaces the phrase And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation with And so, we pledge ourselves to stop injustice, overcome disadvantage and respect the right of Aboriginal and Torres Strait Islander peoples, along with all Australians, to determine their own destiny. Self-determination is viewed as a threat to national unity that, if realized, could lead to the establishment of separate rights or in the extreme view, in the secession of Indigenous people from Australia. The government also conceives of self-determination as merely an end in itself rather than a process which has at its end the goal of social and economic equality. Others argue that the right to self-determination simply does not apply to Indigenous peoples in Australia. The assertion that Indigenous people do not have a right to self-determination must be rejected outright. It is not a matter of theoretical debate whether Indigenous people have a right to self-determination, but a matter of practical reality. Recent practice by the United Nations Human Rights Committee and Committee on Economic, Social and Cultural Rights clearly envisage that self-determination is a right held by Indigenous peoples, including in Australia. Instead of denying the application of self-determination to Indigenous peoples, international debates have moved on and now focus on the content and meaning of self-determination, and particularly on whether it is limited in its application to internal situations, i.e. within the fabric of existing states. This approach has been exemplified by the Council for Aboriginal Reconciliations acknowledgement of Indigenous Australians right to self-determination within the life of the nation. There are two aspects of the right to self-determination highlighted in this section: a) Self-determination does not amount to a right of secession; and b) The importance of self-determination for the full and effective participation of Indigenous peoples in Australian society. a) Self-determination does not amount to a right to secession Article 1 of the ICCPR and ICESCR states that self-determination is the right of all peoples to freely determine their political status and freely pursue their economic, social and cultural development. In accordance with this right, All peoples may, for their own ends, freely dispose of their natural wealth and resources and there is an obligation on the State that under no circumstances will they deprive a people of its own means of subsistence. The State is obliged to promote the realization of the right to self-determination, and shall respect that right, in conformity with the Charter of the United Nations. The requirement that self-determination be realized in conformity with the Charter of the United Nations effectively guarantees that the recognition of self-determination will not form the basis of secession of Indigenous peoples in colonial countries such as Australia. As Julie Debeljak notes: There is a strong presumption against secession or independence flowing from the right of self-determination in the colonial setting. The United Nations is strenuously opposed to any attempt to disrupt territorial integrity. The principle of uti possedetis (the respect for colonial boundaries) is stated in the General Assembly Resolution on the Granting of Independence to Colonial Countries and Peoples. The United Nations General Assembly Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (1970) also states that the principle of self-determination should not: be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. As Erica Irene-Daes has commented on the Friendly Relations Declaration: The meaning of the aforesaid provisions is plain. Once an independent State has been established and recognized, its constituent peoples must try to express their aspirations through the national political system, and not through the creation of new States. This requirement continues unless the national political system becomes so exclusive and non-democratic that it no longer can be said to be representing the whole people Continued government representivity and accountability is a condition for enduring enjoyment of the right of self-determination, and for continued application of the territorial integrity and national unity principles. The United Nations human rights treaty committees have also confirmed this approach. The Committee on the Elimination of Racial Discrimination, in a general recommendation on the right to self-determination has emphasized that: In accordance with the declaration on friendly relations, none of the Committees actions shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and possessing a government representing the whole people belonging to the territory, without distinction as to race, creed or colour. In the view of the Committee, international law has not recognized a general right of peoples unilaterally to declare secession from a State. The Human Rights Committee has also confirmed that Article 27 of the ICCPR, though distinct from the right of self-determination, does not prejudice the sovereignty and territorial integrity of a State party while also acknowledging that in some manifestations the rights of individuals protected under Article 27 for example to enjoy a particular culture may consist in a way of life which is closely associated with territory and use of its resources This may particularly be true of members of Indigenous communities. The importance of Indigenous peoples relationship to land has led Asjboern Eide, the Special Rapporteur on Minorities, to distinguish between territorial autonomy and cultural autonomy when discussing the importance of self-determination. While accepting that self-determination is limited by not challenging the territorial autonomy of nations, he expresses concern that self-determination should not be so limited that it prevents the expression of cultural autonomy by particular groups, which he sees as vital to preserve cultures, and maintain group identity. Such autonomy requires a considerable degree of self-management and control over land and other natural resources and consequently will also require some degree of territorial control. On this basis, concerns that the recognition of Indigenous peoples right to self-determination will inevitably threaten the territorial integrity of Australia are misplaced, and misunderstand the meaning of self-determination that has evolved through the various processes of the United Nations structure over the past thirty years. On the same basis, the qualification expressed in the Australian declaration towards reconciliation, that self-determination is limited to within the life of the nation is unnecessary and as a matter of law, otiose. b) The importance of self-determination for the full and effective participation of Indigenous peoples in Australian society So should we be concerned by the limitation of Indigenous self-determination to within the life of the nation? In my view, yes we should. Words that expressly confine self-determination to within the life of the nation operate as a distraction that hide, and consequently may even diminish, the full scope of the transformation in relations between Indigenous and non-Indigenous people that is required in this country to turn around two hundred plus years of colonialism. As ATSIC stated in the Social Justice Package proposal, Recognition, rights and reform, self-determination should not be constrained within existing legal and political structures as such structures must be able to be changed to take account of Indigenous rights. An approach that is limited to within the life of the nation does not sufficiently acknowledge that it is necessary that societal structures be adapted to accommodate Indigenous aspirations and cultures. This is the core of the right to self-determination. It is about achieving the full and effective participation of Indigenous peoples in Australian society on equal terms not on the basis of sameness, but through the recognition of the cultural distinctiveness and diversity of Indigenous peoples. As I outlined in the first half of this chapter, the historical treatment of Indigenous people has prevented us from participating fully in Australian society and has left us trapped in a disempowered position at the bottom of society. Consequently, the recognition of the right to self-determination is a mechanism for re-empowering Indigenous peoples within society: the right of self-determination of Indigenous peoples should ordinarily be interpreted as their right to negotiate freely their status and representation in the State in which they live. This might best be described as a kind of belated State-building, through which Indigenous peoples are able to join with all the other peoples that make up the State on mutually-agreed and just terms, after many years of isolation and exclusion. This does not mean the assimilation of Indigenous individuals as citizens like all others, but the recognition and incorporation of distinct peoples in the fabric of the State, on agreed terms. This should not be something to be feared by the rest of Australian society. It is not about the creation of separate rights. It is about inclusive government, in which Indigenous people rightfully have a role in determining their priorities and destiny. As Erica-Irene Daes states, contrary to fears of secession, the right of self-determination is the right to demand full democratic partnership in society, and consequently: this means that the existing State has the duty to accommodate the aspirations of indigenous peoples through constitutional reforms designed to share power democratically. It also means that indigenous peoples have the duty to try to reach an agreement, in good faith, on sharing power within the existing State, and to exercise their right to self-determination by this means and other peaceful ways, to the extent possible. Conclusion In this chapter I have sought to provide a commentary on current debates over reconciliation, and to argue for a human rights basis for a renewed relationship between Indigenous and non-Indigenous Australians. There can be no social justice for Indigenous Australians without the full recognition of the human rights of Indigenous peoples. A point that is often forgotten about human rights standards is that in many respects they protect the rock bottom of human existence. They are basic standards of humanity. They are also more noticeable in their breach than in their observance. A rights basis for the reconciliation process does not provide additional benefits or protections to Indigenous people, or a privileged place in Australian society. On the contrary, it remedies deficiencies that have existed for much of the period of contact between Indigenous and non-Indigenous Australians. It also provides acknowledgement of the fact that, much like the celebration and acceptance of multiculturalism, we are a richer country for valuing Indigenous cultures and traditions on their own terms, and making them a feature of the fabric of our society. As Miguel Alfonso Martinez notes in his Final report of the study on treaties, agreements and other constructive arrangements between States and Indigenous populations: Humanity has contracted a debt with Indigenous peoples because of the historical misdeeds against them. Consequently they must be redressed on the basis of equity and historical justice. In the next two chapters I build on the discussion in this chapter. The next chapter examines Australias appearance before the United Nations Committee on the Elimination of Racial Discrimination in March 2000, which provides a guide to Australias human rights performance on Indigenous issues. The fourth chapter considers a series of mechanisms by which reconciliation can be implemented and made a reality, by identifying crucial commitments and processes that governments must engage in to progress reconciliation in the coming years. Chapter 3: International scrutiny of Australias Indigenous affairs policies In the past year Australias compliance with international human rights obligations has been under scrutiny by United Nations human rights treaty committees through consideration of Australias periodic reports under four treaties. Much of this attention has focused on issues relating to Aborigines and Torres Strait Islanders. This chapter focuses on the dialogue between the Australian government and the Committee on the Elimination of Racial Discrimination (the Committee or the CERD), which took place in March 2000. The dialogue concerned Australias compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention or ICERD). The Committees concluding observations on Australia were released on 24 March 2000. They expressed concern about Australias compliance across a wide range of matters relating to Indigenous issues. The government rejected the Committees comments and criticised its operation. This dialogue was a catalyst for a whole of government review of our participation in the United Nations human rights treaty system. The governments views on how Australian laws, policies and practices meet the requirements of the Convention are considered in this chapter. Also considered are whether the conclusions reached by the Committee are sustainable, and whether the governments response to the Committee was justified. In the course of this assessment a number of myths surrounding the operation of the treaty system and Australias international obligations are exposed. The CERD and the periodic reporting process The CERD was the first human rights committee established within the United Nations structure. It consists of eighteen experts of high moral standing and acknowledged impartiality. Members are nominated by States Parties to the CERD and elected through a secret ballot. Members of the Committee, or experts, do not represent their country of origin they take their places on the Committee as independent experts on racial discrimination. To ensure their independence, members serve in a personal capacity and cannot be dismissed during their term. The CERD monitors and reviews the actions of States who are parties to the Convention through four main mechanisms: the periodic reporting mechanism; requests for further information from States parties (for example, the early warning / urgent action procedure); individual communications; and state-to-state complaints. The CERDs consideration of Australia in March 2000 took place in accordance with the periodic reporting mechanism. Under Article 9 of ICERD, States Parties are required to submit a report on the legislative, judicial, administrative or other measures that they have adopted and which give effect to the provisions of the Convention. States parties are required to submit comprehensive reports to the Committee every four years, with brief updating reports at intervening two-year periods. The periodic reporting obligation is designed to assist each State party fulfil its obligations under the treaty, as well as provide a basis on which the Committee can discharge its responsibilities to monitor state parties compliance. The reporting process is not merely a procedural matter designed solely to satisfy each State Partys formal obligation to report to the appropriate international monitoring body. It has the following varied purposes: To ensure that a comprehensive review is undertaken with respect to national legislation, administrative rules and procedures, and practices in an effort to ensure the fullest possible conformity with the treaty, upon submission of the initial report by a State party. To ensure that the State party monitors the actual situation with respect to each of the rights on a regular basis and is thus aware of the extent to which the various rights are, or are not, being enjoyed by all individuals within its territory or under its jurisdiction. To provide the basis for the elaboration of clearly stated and carefully targeted policies, including the establishment of priorities which reflect the provisions of the [treaty] [and] to enable the Government to demonstrate that such principled policy-making has in fact been undertaken. To facilitate public scrutiny of government policies and to encourage the involvement of the various sectors of society in the formulation, implementation and review of the relevant policies [T]he preparation of the report, and its consideration at the national level can come to be of at least as much value as the constructive dialogue conducted at the international level between the Committee and representatives of the reporting State . To provide a basis on which the State party itself, as well as the Committee, can effectively evaluate the extent to which progress has been made towards the realization of the obligations contained in the [treaty]. To enable the State party itself to develop a better understanding of the problems and shortcomings encountered in efforts to realize the full range of rights recognised in the relevant treaty, and consequently to provide the framework within which more appropriate policies can be devised. To enable the Committee, and the States Parties as a whole, to facilitate the exchange of information among States and to develop a better understanding of the common problems faced by States and a fuller appreciation of the type of measures that might be taken to promote effective realization of each of the rights contained in the treaty. This also assists in identifying the most appropriate means by which the international community might assist States through the provision of technical assistance. Australias appearance before the Committee on the Elimination of Racial Discrimination in March 2000 Australia submitted its combined 10th, 11th and 12th periodic reports under ICERD on 20 July 1999 and the government delegation appeared before the Committee at their 56th session on 21 and 22 March 2000. The timing of this appearance was related to the ongoing scrutiny of the native title amendments by the Committee under their early warning/urgent action procedure. The Committee initiated the early warning procedure against Australia in August 1998 due to concerns about the potentially discriminatory nature of the amended Native Title Act 1993. In March 1999, the Committee released concluding observations that found the amended Native Title Act to be discriminatory and in breach of the Convention. The Australian government disagreed with the Committees conclusions, and replied that the Committee had failed to take into account the broader context of government policies relating to Indigenous people in reaching its conclusions. In particular, the government argued that: The Australian Government's overall priority in indigenous affairs is to support Aboriginal and Torres Strait Islander people to overcome a history of disadvantage within Australian society, through a combination of initiatives designed to address health and welfare needs, while encouraging economic development and self-reliance It aims to ensure that all Australians share equally in a common future which will form the basis of a lasting reconciliation. In August 1999 the Committee reaffirmed its conclusions on native title and, in recognition of the views of the Australia government regarding the broader context of addressing Indigenous issues, also decided to continue consideration of this matter, together with the tenth, eleventh and twelfth periodic reports of the State party, during its fifty-sixth session in March 2000. In the dialogue between the government and the Committee, Ms Gay McDougall acted as Country Rapporteur for the Committee and led the analysis of Australias compliance. The Honourable Phillip Ruddock MP, Minister for Immigration and Multicultural Affairs and Minister Assisting the Prime Minister on Reconciliation, led the Australian delegation. The Committee adopted its concluding observations on Australia on 24 March 2000. The Committee acknowledged the following positive aspects of Australias compliance with the Convention: The comprehensiveness of Australias reports and the constructive dialogue with the high level delegation (para 2); The fact that Australia had addressed some of the concerns raised by the Committee in their previous concluding observations on Australia in 1994 (para 3); The implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody in the period 19921998, and the development of a range of institutions, legislation, policies and programs to address racial discrimination (para 4); The significant efforts that have taken place to achieve reconciliation (para 12); The implementation of recommendations of the Bringing them home report to facilitate family reunion and improve counselling and family support services (para 13); The introduction of the Racial Hatred Act 1995 (Cth) (para 14); and The efforts made by the government to increase spending on health, housing, employment and education programmes for indigenous Australians (para 18). The Committee also expressed the following concerns of relevance to Indigenous Australians: The lack of an entrenched guarantee in Australian law against racial discrimination, which would override any subsequent legislation at the federal, state or territory levels (para 6); The failure of the Commonwealth government to ensure compliance of the states and territories with the obligations under the Convention, including by utilising its powers under section 51(xxix) of the Constitution in relation to external affairs or section 122 in relation to territories (para 7); The continuation of discriminatory practices in relation to native title, particularly the development of state regimes for future acts (para 8); The unsatisfactory response of the Government to the Committees findings of March 1999 and August 1999 that the native title amendments are racially discriminatory (para 9); Proposed or actual changes to the role and functions of the Aboriginal and Torres Strait Islander Commission and the Aboriginal and Torres Strait Islander Social Justice Commissioner which may limit their capacity to address the full range of issues relating to Indigenous peoples (para 11); The progress of reconciliation, and the apparent loss of confidence of Indigenous people in the process (para 12); The inadequate response of the government to the recommendations of Bringing them home, including the failure to provide a national apology and monetary compensation (para 13); The maintenance of a reservation to the Convention in relation to racial vilification, and the limitations of the Racial Hatred Act 1995 (Cth) (para 14); Over-representation of Indigenous people in the criminal justice system (para 15); Lack of interpreter services for Indigenous people in court processes (para 15); The discriminatory impact of mandatory sentencing laws in the Northern Territory and Western Australia on Indigenous people (para 16); and The extent of continuing discrimination and disadvantage faced by Indigenous people, and the lack of equality in Australian society that it reflects. The Committee also highlighted the obligation on the government to adopt measures to redress this situation within the shortest timeframe possible (para 18). The dialogue between Australia and the CERD March 2000 This section examines the dialogue between the Committee and the Australian government delegation in Geneva on 21 and 22 March 2000. The dialogue was wide-ranging, with every committee member contributing. Each member raised issues on which they sought further information as to how a particular law, policy or practice complied with the obligations under the Convention. This section evaluates the governments arguments and considers whether the Committee was justified in reaching the conclusions that they did. It does so under the following headings: The meaning of equality and non-discrimination under the Convention; The existence of a margin of appreciation in implementing the non-discrimination principle; Protecting human rights in a federal system; The lack of an entrenched guarantee of racial non-discrimination; Redressing Indigenous disadvantage; Indigenous people and the criminal justice systems; Mandatory sentencing; and Reconciliation (including responding to forcible removal policies). The meaning of non-discrimination and equality under the Convention In order to evaluate Australias performance under ICERD it is necessary to consider what constitutes racial discrimination for the purposes of the Convention. Racial discrimination is defined in Article 1.1 of the Convention as: any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. The Convention specifies in Article 1.4 that special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights shall not be deemed racial discrimination. The definition of racial discrimination in the Convention is integrally linked to the concept of equality before the law. It catches measures that are intended to result in inequality and measures which (with or without intent) have an unequal effect on the rights and freedoms of the individuals and groups involved. Article 5 of the Convention requires that: States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law. At the outset of the dialogue, the Country-Rapporteur sought clarification from the Australian government as to its interpretation of the principle of equality before the law: First of all, is it the view of the state party that the Convention establishes a legal duty to ensure formal equality with respect to the rights of historically disadvantaged racial and ethnic groups that still suffer from those inequalities, or is it substantive equality that is the obligation, and what are your definitions and where do you place special measures within that framework? The Australian delegation answered in the following terms: Australia regards its obligations under the Convention as requiring equality between racial groups. This equality can be achieved by formal equality and special measures, where appropriate, or by substantive equality which recognizes that differential treatment is not necessarily discriminatory if it is legitimate, recognizing legitimate difference or distinct rights. The Country-Rapporteur responded by stating that: Im also very pleased to hear your delegation confirm that it is the position of the state party that the Convention establishes an obligation to ensure substantive equality, not mere formal equality, in situations like those that prevail in Australia today. The delegation responded further to this as follows: Ms McDougall made the point that Australia had confirmed that substantive equality is required. I just wanted to make a little comment about that, and the issue about whether Australia regarded formal equality as sufficient for the purposes of the Convention. I think the Australian Government does not argue that the Convention only requires formal equality, and this point was certainly made to the Committee members when the Australian delegation appeared in March last year. I suppose that the way the Australian Government would see its obligations under the Convention is that the equality required by the Convention can be achieved in a number of ways that equality is equality between racial groups and those ways include by formal equality and special measures where appropriate, and by substantive equality which recognises differential treatment, that differential treatment is not necessarily discriminatory.  This clarification indicates that the government does not in fact accept that a substantive equality approach is required in order to meet its obligations under the Convention. Instead it indicates that the Conventions obligations can be met by a combination of measures that meet either a formal equality standard (including through the adoption of special measures), or a substantive equality standard. In its submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund inquiry into CERD and the Native Title Amendment Act 1998, the federal Attorney-Generals Department elaborated further on the meaning of non-discrimination under the Convention: At the time the CERD Convention was drafted, equality was conceptualised as sameness or identical treatment. Under this approach any distinctions in treatment are considered discriminatory The only exception to identical treatment provided under this scheme was for special measures The Department argued that since the Convention was drafted, the meaning of equality has changed in international customary law to incorporate the idea that differences in treatment are permissible in order to achieve real or substantive equality. Accordingly, this changing interpretation has meant that: The Convention is now seen by many as incorporating principles that allow differences in treatment provided they are permissible in terms of substantive equality. The government expanded this interpretation to the Human Rights Committee, when Australias periodic report under the ICCPR was considered in July 2000. Before that Committee, the Government delegation stated: Concerning Article 26 dealing with equality before the law and the prohibition of discrimination, I would note first that international law admits of both a formal and a substantive standard for assessing equality. Traditionally, racial equality was conceived of in terms of formal equality and, in that respect, the spirit of equality would lie in sameness and identical treatment, however, international law recognises that in some circumstances, positive discrimination towards certain racial groups may be necessary. This would be the case where in instances of underlying disadvantage, temporary affirmative action or special measures are allowed in order to hasten equal enjoyment of rights for all racial groups. Since that time, the interpretation of the concept of equality has broadened to include substantive equality in that Governments may treat like things alike and different things differently. However, this alternative way of defining equality does not preclude the one originally conceived of in international law. The two approaches to the issue of equality coexist in international law. I have some concerns about these explanations. On the one hand, the governments explanations accept that the obligations under ICERD and the ICCPR can be met by the provision of substantive equality (ie., different treatment if justified by the circumstances of a situation, when judged in accordance with the purposes and objectives of the Convention). This is a significant advance from the position advocated by the government during the native title debates in 1997 and 1998. Such an advance is testimony to the value of international dialogues such as those with the CERD, as the international scrutiny of Australias policies has clearly encouraged the government to explain its actions with a different frame of reference from that which it applies domestically. On the other hand, the governments explanation is unclear as to whether providing substantive equality is obligatory or discretionary. It suggests that Australias obligations under ICERD can be met by the provision of mere formal equality (ie., identical treatment, with the only differential treatment that is permissible being special measures). Substantive equality on this view is not seen as a fundamental requirement at international law, but as an optional extra. Accordingly, the government can choose to provide protective measures if it considers it legitimate to do so, and it can also choose not to. My concern is that there are circumstances in which it will be necessary for particular racial groups to be treated differently, in order to ensure that they are able to enjoy human rights in a non-discriminatory and equal manner. In interpreting the definition of racial discrimination in Article 1.1 of the Convention, the CERD has stated that: A differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of Article 1, paragraph 4 (special measures) In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent or national or ethnic origin. Accordingly, under the Convention the classification of a form of different treatment as non-discriminatory is not confined to actions that qualify as special measures. The CERD has recognized, for example, that the protection of Indigenous culture and identity constitute a legitimate, non-discriminatory differentiation of treatment. It has called on States to: recognize and respect Indigenous distinct culture, history, language and way of life as an enrichment of the States cultural identity and to promote its preservation; ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity; provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics; ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent; ensure that indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs and to preserve and practice their languages. A failure to provide positive measures of protection to Indigenous culture may in fact operate to deny Indigenous people the opportunity to equally enjoy their human rights on a non-discriminatory basis. The governments explanation of their obligation to provide equality is ambiguous, as it does not acknowledge that there may be circumstances in which such differential treatment is required. Instead, it leaves the government with a wide discretion (exercised in accordance with political concerns rather than an objective appraisal of the Conventions twin objectives of equality and non-discrimination) to determine which circumstances warrant protective measures. Similarly, contrary to the governments position, the standard of equality required at international law was not a formal equality standard at the time of the adoption of the Convention in 1965. There is authority to suggest that by that time, international law accepted a substantive equality approach. This makes any suggestion that formal equality co-exists alongside substantive equality in international law today less tenable. This is demonstrated by the consideration of the protection of minorities by the United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, in its first session in 1947. The Sub-Commission noted that the principle of equality has been informed by consideration of the twin objectives of preventing discrimination and protecting minorities: Prevention of discrimination is the prevention of any action which denies to individuals or groups of people, equality of treatment which they may wish; Protection of minorities is the protection of non-dominant groups which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics they possess and which distinguish them from the majority of the population. If a minority wishes for assimilation and is debarred, the question is one of discrimination and should be treated as such. The Permanent Court of International Justice in their advisory opinion on Minority Schools in Albania noted the connection between these objectives in 1935. The Court noted that, in order to secure for the concerned minority groups the possibility of living peaceably alongside the rest of the population while preserving their own characteristics, two things were necessary: The first was to ensure that members of racial, religious or linguistic minorities should be placed in every respect on a footing of perfect equality with the other nationals of the State. The second was to ensure for the minority elements suitable means for the preservation of their own characteristics and traditions. These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its institutions, and were consequently compelled to renounce that which constitutes the very essences of its being as a minority. Put differently, to ensure the protection of minorities requires in the first instance, a guarantee of equal treatment (or the prevention of discrimination) together with additional special protective measures to preserve the distinct characteristics of the group. Judge Tanaka, in the 1965 decision of the International Court of Justice in the South West Africa case similarly stated that: The norm of non-discrimination as a reverse side of the notion of equality before the law prohibits a State to exclude members of a minority group from participating in rights, interests and opportunities which a majority population group can enjoy. On the other hand, a minority group shall be guaranteed the exercise of their own religious and education activities. This guarantee is conferred on the members of a minority group, for the purpose of protection of their interests and not from the motive of discrimination itself. By reason of protection of the minority this protection cannot be imposed upon members of minority groups, and consequently they have to choose to accept it or not. Preventing discrimination and protecting diversity are integrally linked through the concept of equality as it is properly understood at international law. Formal equality is not sufficient to provide the full range of protection required. The existence of a margin of appreciation in implementing the non-discrimination principle A related issue, which the Country-Rapporteur raised in the dialogue with Australia, was as follows: [D]oes the state party consider the Convention to impose obligations that are absolute, or does the state party believe that there is a quote 'margin of appreciation' with respect to the obligations, the state party's obligation to enforce the provisions of our Convention? The government responded: International law does accord States a margin of appreciation in their implementation of international obligations, including non-discrimination principles. It recognises the fact that there are circumstances in which national institutions are better placed to assess needs and make difficult choices between conflicting considerations. The circumstances in which a State will be accorded a margin of appreciation will depend on the subject matter and the particular circumstances. One of the circumstances recognised is in relation to novel areas of law. Not only is native title law novel in Australia, the circumstances include its recognition where a system of land title derived from the Crown had been in existence for more than 200 years. In its submission to the Parliamentary Joint Committee on Native Title inquiry into CERD and the Native Title Amendment Act 1998, the Attorney-Generals Department elaborated the governments position as follows: The margin of appreciation is a degree of latitude allowed to individual States in their interpretation and application of treaty obligations Novel areas of law attract a wider margin of appreciation, such that a greater range of treatment will be regarded as meeting the treaty obligations A further consideration in terms of attracting a wider margin of appreciation is whether the overall effect of a scheme of law can be said to be reasonable. The Attorney-Generals Department also stated, in arguing why the native title amendments are not discriminatory, that the relevant test under international law as to whether something falls within the margin of appreciation is whether it is arbitrary [or] reasonable in the circumstances. The government relied on the notion of a margin of appreciation before both the CERD and the Human Rights Committee to argue that the native title amendments and mandatory sentencing laws are not racially discriminatory. The governments arguments that there is a margin of appreciation in relation to the non-discrimination principle must be rejected. There are three reasons why. First, the prohibition of racial discrimination is considered to be one of the least controversial examples of the class of jus cogens. Article 53 of the Vienna Convention on the Law of Treaties (1969) defines jus cogens as a peremptory norm of general international law [which is] a law accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted. There is no State discretion to deviate from the norm of non-discrimination in international law generally. Second, as Mr Ernst Willheim persuasively argued before the Parliamentary Joint Committee on Native Title, there is no margin of appreciation in relation to ICERD: The Convention is notable for its unqualified language. Unlike many other international conventions which embody loosely expressed objectives, key obligations of the Racial Discrimination Convention are expressed in absolute terms. Thus, in Article 2 States Parties undertake to pursue a policy of elimination of racial discrimination in all its forms and, to this end: Each State Party undertakes to engage in no act or practice of racial discrimination. After citing the definition of racial discrimination in Article 1.1 and the obligation to provide equality before the law in Article 5, Mr Willheim goes on to state: No exceptions are contemplated. A party cannot, for example, implement the Convention except in relation to members of a particular race or except in relation to a particular human right. Third, in my submission to the Joint Parliamentary Committee on Native Title inquiry into CERD and the Native Title Amendment Act 1998, I argue that the governments arguments about a margin of appreciation misunderstand the scope of the Committees interpretation of the meaning of racial discrimination. In particular, as noted above, the Committee has stated that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate. As I note: The purpose of [this explanation] is to rebut the argument that all differential treatment on the basis of race is discriminatory. The definition of discrimination under General Recommendation XIV allows differential treatment if its objectives and purposes are consistent with those of the Convention General Recommendation XIV is not a means by which the implementation of government policy which results in a negative disparate impact on a particular racial group can, nonetheless, be acceptable if it is reasonable in all the circumstances and adopts proportionate means. Nor does General Recommendation XIV provide a margin of appreciation to States in meeting their obligations under the Convention. Its purpose is to ensure that measures which do recognise and protect cultural identity and practices are not classified as discrimination merely because they treat people differently. Protecting human rights in a federal system Adequate protection of human rights in federal states, such as Australia, has long been a concern of the international human rights treaty committee system. It was one of the main concerns of the CERD when it last considered Australia in 1994. In its concluding observations, the Committee noted that: Although the Commonwealth government is responsible for ratifying international human rights instruments, the implementation of their provisions requires the active participation of the states and territories which have almost exclusive jurisdiction over many of the matters covered by the Convention and cannot be compelled to change their laws. As a consequence of this, and with particular reference to the treatment of Indigenous Australians, the Committee stated that: The Commonwealth Government should undertake appropriate measures to ensure the harmonious application of the provisions of the Convention at the federal and state and territory levels. The obligation to ensure compliance with the Convention at all levels of government arises in a number of provisions of the Convention. In particular, the Convention provides that the State Party: undertakes to engage in no act or practice of racial discrimination and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation (Article 2.1(a)); Shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists (Article 2.1(c)); and shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination (Article 6). The obligation to ensure national compliance has also been codified in the Vienna Convention on the Law of Treaties. Article 27 of the Convention states that A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. The Country-Rapporteur, in her introductory comments, asked the government to explain how it meets these obligations: I sense that there is a lack of competence in the Commonwealth Parliament, or perhaps it's a reluctance, to take steps to ensure the harmonious application of the provisions of the Convention, not only at the federal level, but also at the state and territorial level. Now the Committee raised this issue, I believe, when Australia's last periodic report was reviewed, the issue being that discriminatory impact of state and territory levels, laws, in matters which, at that level they have almost, you know, primary jurisdiction, like for social programs et cetera, is I think a matter of concern so I would invite your comments. The Rapporteur asked further, in relation to mandatory detention laws in the Northern Territory and Western Australia: if there is the competence in the federal, in the Commonwealth Parliament and the Federal Government to override laws passed in states and territories, and I do think you have that power in certain instances, then I would be interested in hearing why that power is not being used to override [these laws], and I understand the political difficulties in federal systems of overriding state and local jurisdiction, but in situations relating to human rights, I think it is actually an obligation to do so. In answering the Rapporteurs question, the Australian delegation repeatedly referred to the difficulties of being a federation in ensuring compliance with the Convention. In doing so, it advised Committee members that they were unlikely to understand the complexities of such systems: it's because we are a federal state, and I know that not all of you would be perhaps experienced of what a federation is and involves, but in Australia we have a number of states and territories who, like the Commonwealth make significant contributions to dealing with these issues. Several Committee members assured the Australian delegation that they were indeed familiar with federalism, and emphasised the importance of federal responsibility for compliance with the Convention: Mr Chairman we note that our Convention does not contain a federal clause, but we know what is a federal system in the United States, in Germany, in Australia, in Austria, in Switzerland and for us all these governments are responsible. They cannot stay behind sharing of competencies with local authorities. Whenever delegating competencies they should maintain the power to interfere and take measures to guarantee the implementation of the Convention. As Mrs McDougall noted, there is a flouting in the legislation in different Australian states. Some of them have legislation, some others do not have, some are dealing with some issues and not with the others. The minimum for us is our Convention, and this should be implemented and the Australian Government is responsible I would ask whether [the government] accepts that under Article 27 of the Vienna Convention on the Law of Treaties, it is responsible for the way that mandatory sentencing in the Northern Territories constitutes discrimination, in effect, in violation of the Convention's Articles 2(1)(a), (b), (c) and (d) I would like to emphasise that our Convention poses obligations for the state party and it is the state party, the Government, that is responsible for the fulfilment of obligations under all the conventions concerning human rights and the international law. And never, never, never could these responsibilities be delegated to governments of territories or local authorities, or whatsoever. This is a question of leadership... The government responded to these questions and statements by arguing that while the Committee may understand federal structures, they needed to acknowledge that there are also different types of federations. And Australia is a different type of federation because of our history. In its written response to the Committee, the government elaborated on the difficulty of ensuring compliance by the states and territories: Australia itself was originally a collection of autonomous British colonies which in 1900 decided to federate on their own terms. Ie, the colonies or States elected to retain the bulk of their powers (including eg law enforcement, health, education) and ceding only specified powers to the new federal government (such as immigration and defence). In Australia therefore, the powers of the federal government are strictly defined and limited, and the constitutional balance can only be altered with the agreement of a majority of Australians in the majority of States. The federal structure does not give the national government unlimited powers it cannot readily override the States and Territories, and even where possible would not resort to overriding legislation if there were other ways of achieving the same objective, which is why the federal government is currently exploring its options in relation to the problem of mandatory sentencing. There are two concerns about this description of the federal system which relate to Australias compliance with the Convention. First, at no time does the Australian government acknowledge that it is obligated under the Convention to ensure compliance of the states and territories. As one of the members of the Committee explained: Certainly, we have all kinds of federations in the world. Each federation has its own specificity, this is true. We have well understood the broad and detailed explanations that he has given us. But we remain unchanged in our position on this question because the question of discrimination, in our opinion, should be one of the greatest preoccupations of the federal authority. And looking at what is happening in Australia, in seeing the composition, and especially the latitude given to the different components of the federation for treating such an important problem, we are a bit concerned. And I would simply like to say that, as everyone knows, the problem of discrimination is part of, and has always been a part of, the concern of the United Nations, of the international community. And it's for this very reason that, from the very beginning, the United Nations itself has always shown its commitment to the dignity and equality of all human beings. I think that for all the states of the world today, this is a cardinal principle that is of interest to all states. And so the federal state should take this into account ... Second, this description of the Australian federal system is misleading. It emphasises the limits of the Commonwealths powers to ensure compliance and the difficulty of achieving constitutional change. Yet it fails to mention that, in addition to powers over immigration and defence, the Commonwealth does have the power to ensure compliance of the states and territories with international obligations. This is unquestionably the case under section 51(xxix) of the Constitution (in relation to external affairs); and depending on the issue, potentially under other heads of power in section 51 of the Constitution. In relation to territory laws, section 122 offers a further alternative for ensuring compliance. The Country-Rapporteur made it clear that she did not find the governments explanation convincing in this regard: Now this point about federalism, I was very interested in your comments. As you know I come from a country that has a federal system that was very much like Australia in the making. It started with independent colonies that decided to join a federation and only gave such powers to the Federal Government as those states chose. You know the question of states' rights really has been quite a perpetual issue in our country. It's one that you know we fought a civil war over. We fought a very bloody civil war in our country over whether states had the right to, and were free to, practice the abhorrent practice of slavery So in our system very much like yours, we've made it very clear that the Federal Government has certain responsibilities, and with respect particularly to human rights issues, to these very sticky issues of civil rights as we call them, race relations in the United States. It's very clear that the Federal Government can override state legislation and unless I'm mistaken I thought that that was very much the case in Australia as well. The Committees concluding observations justifiably reflect this concern: 7. The Committee reiterates its recommendation that the Commonwealth Government should undertake appropriate measures to ensure the consistent application of the provisions of the Convention, in accordance with article 27 of the Vienna Convention on the Law of Treaties, at all levels of government, including states and territories, and if necessary by calling on its power to override territory laws and using its external affairs power with regard to state laws. An entrenched guarantee of racial non-discrimination Related to how the Commonwealth government ensures compliance of the states and territories with international obligations is the issue of the level of protection against racial discrimination in Australian law. The Country-Rapporteur commended the wide range of institutional measures that exist to meet Australias obligations under the Convention: the Australian Commonwealth and the government of the states and territories have enacted, I think, an impressive array of laws at the federal, state and territorial level, of laws, have established many agencies and programs to combat racial discrimination one has to welcome this multiplicity of attempts in law and in terms of institutional structures to address these issues. However, she expressed concern at the status that the protection of racial non-discrimination has in Australian law: one of the issues that is of concern to me is that there is a lack of an entrenched guarantee against racial discrimination in Australian law We've seen that problem and discussed that problem with respect to the Native Title Act as amended. I notice, however, that on the other hand there is a power to pass legislation such as the Social Security Legislation Amendment Act, which has a special provision in it that is sort of an explicit savings clause that new legislation will, must be interpreted subject to the provisions of your Racial Discrimination Act, in other words CERD. I just want to hear whether it's the view of the state party that the overriding of the Racial Discrimination Act in any subsequent legislation amounts to a repudiation of the state party's obligations under CERD or whether you think it is as consistent as one can have it, so I'd be interested in your comments about that. In a presentation to the Committee, I explained this issue as follows: The Racial Discrimination Act (RDA) is the principle piece of domestic legislation that implements Australias obligations under CERD the RDA is an ordinary enactment of the Commonwealth Parliament. Accordingly, subsequent specific enactments of the Commonwealth Parliament will take precedence over it. Accordingly, ordinary legislation of the Commonwealth Parliament may either expressly or by implication repeal the RDA or limit its operation in specific areas. This is exactly what the amended Native Title Act (NTA) has done to Australias domestic implementation of its obligations under CERD. The amended NTA impliedly repeals the RDA in relation to native title, and thereby removes Australias commitment under CERD in this area. But this is not the only way in which the guarantee against racial discrimination has been violated in Australia. The Australian constitution contains an express power to enact special laws directed to people of a particular race. The scope of the Commonwealths power to enact legislation directed at particular racial groups was the subject of judicial scrutiny in 1998. The case concerned a law of the federal Parliament, the Hindmarsh Island Bridge Act 1997 (Cth), and whether the constitutional power under which it was enacted supported legislation which clearly disadvantaged a particular racial group. The legislation sought to withdraw the protection of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in relation to a particular site in order to facilitate the building of a bridge. The Court agreed that the legislation was detrimental to a particular racial group the Indigenous people of the area. The majority found that the parliament had the constitutional power to pass the legislation through the race power, although their Honours reasons differed. The only judge who found unequivocally that the race power did not support laws which discriminated against particular racial groups was Kirby J in dissent. It is of great concern to me that the federal Parliament may at any time introduce laws which discriminate on the basis of race. That they have done so twice in the past four years, and on both occasions in relation to Indigenous peoples, raises concerns under Articles 1, 2 and 5 of the Convention. It also raises concerns under Article 6 of the Convention, which provides that States shall assure to everyone within their jurisdiction effective protection and remedies against any acts of racial discrimination. There is no remedy against this discrimination, as the Australian legal system permits such laws. The government sought to explain this issue by suggesting that the native title amendments did not, in fact, override the guarantee of non-discrimination contained in the RDA: The 1993 Native Title Act contained a provision describing the relationship between the RDA and the Native Title Act nothing in the latter was to affect the operation of the former. The High Court said of this 1993 provision in WA v The Commonwealth in 1995 that it was difficult to see any inconsistency between the NTA and the RDA, but if there was any, the specific provisions of the NTA applied. This provision was amended in 1998 to reflect the High Courts interpretation of how the 1993 provision could operate: the RDA applies to the performance of functions and exercise of powers conferred by or authorised by the NTA (including by States and Territories under alternative regimes); and the RDA can be used to construe ambiguous terms in the NTA. Thus the current provision operates no differently to the 1993 provision. The preamble to the 1993 Native Title Act recited Parliaments intention that the Act provide significant benefits to indigenous Australians, and constituted a special measure under Article 1(4) of the Convention. Clearly this was not a repudiation of the Convention. The governments explanation is manifestly wrong. This is revealed by the governments acknowledgement in the first paragraph that the NTA would prevail over the RDA in the event of an inconsistency between the two laws. Put differently, the government admits that to the extent of any inconsistency, the NTA overrides the operation of the RDA. As noted previously, the Committee found in 1999 that the native title amendments do in fact discriminate. As a consequence, the amended NTA is inconsistent with the RDA, and does operate to displace it. The governments reasoning also fails to acknowledge that the provision in the 1993 NTA describing the relationship between the NTA and the RDA was ineffective in preventing the RDA from being displaced. To argue that the current provision operates no differently from the original provision is to say no more than that the ineffectiveness of the original provision has been preserved. It does not address the issue raised by the Committee. Significantly, the Country Rapporteur noted in her comments that the government could have made it unequivocal that the RDA would apply to the operation of the NTA, as they had done in relation to social security legislation under section 4 of the Social Security Legislation Amendment (Newly arrived residents waiting periods and other measures) Act 1997. The Committee was fully aware that the Parliament had not adopted this option. The governments arguments also fail to make clear that the provision in the amended NTA only operates to construe the meaning of ambiguous terms in the Act. It is ineffective where the NTA unambiguously discriminates against native titleholders. Several members of the Committee were clearly troubled by the governments ability to override a guarantee against racial discrimination on the one hand, and the failure of the Commonwealth to ensure compliance of the states and territories on the other. Accordingly, they asked a series of questions about potential mechanisms for entrenching a guarantee of non-discrimination through constitutional means. The government responded as follows: Some countries have entrenched certain rights in their Constitutions. Other countries, like Australia, establish rights through a range of institutions, laws and programs. Governments of both persuasions in Australia have considered a Bill of Rights. The critical issue is having the right culture / climate for protection of rights. The US has a different culture and system to Australia and many other countries. In its oral presentation, the government expanded on this as follows: we believe that institutions and conventions, and support by the public for certain values, can be very important. In fact, may even be more important than having a rule, that we can show you in writing, that nobody really takes seriously or obeys. And there are some other questions that arise from time to time. The United States has some elements in its constitution which they'd look back on now, in relation to, say, the right to bear arms. And which they'd say, well that was fine at a particular point in time in history, but now is it an appropriate freedom? Certainly in the Australian context, if we'd had it entrenched in our Constitution, we'd be saying how can we modify it? As we've sought to deal with the issue of access to firearms in our society. I mean the fact is that we have considered bills of rights, and we've rejected it. We do have a different culture, we think our culture works well. We have institutionally and within our society, a very, very strong commitment to dealing with human rights issues... There are a number of matters of concern in this answer. First, the government emphasised that it is the right culture that is important for the protection of rights. Yet the Committee was concerned that the practices of the government (in relation to native title, mandatory sentencing and so forth) indicate that Australia does not have the right culture to protect rights. Similarly, to suggest that support by the public for certain values is more important than having a rule that no one follows does not address the issue. The Committee asked about the implementation of an entrenched standard of non-discrimination from which no derogation is permitted. The point of raising the standard to this level is to require that the rule be followed in all circumstances. There can be no doubt that it is appropriate to entrench the principle of racial non-discrimination in Australian law. The Committees concluding observation on this issue justifiably reflects this concern: 6. The Committee is concerned over the absence from Australian law of any entrenched guarantee against racial discrimination that would override subsequent law of the Commonwealth, states and territories. Redressing Indigenous disadvantage The issue to which the Committee members returned time and again was the extent of Indigenous disadvantage, and the adequacy of government measures to redress this. The members of the Committee variously expressed their concerns about this issue as follows: Australia's report covers or contains a great deal of information on legislative and judicial measures intended to combat racial discrimination. In addition the document does not conceal the problems facing the indigenous populations, this sector which finds itself in a great disadvantage within Australian society, in practically all aspects affecting the quality of life, housing for instance, health, employment, and education. And comparing them with the same statistics for the rest of the population, it represents a regrettable state of affairs. The report states this openly. The indigenous population has a worse state of health, dying younger than the non-indigenous Australians. Life expectancy at birth is 15 to 20 years less than that of the non-indigenous population, and with greater likelihood of dying of infectious diseases than the non-indigenous population, as we see from paragraph 62 of the report. In all matters relating to the conditions associated with their existence, the situation is equally grave. There is no need to detail the statistics which reflect this state of affairs since there is no area in which there is equality between the Aboriginal citizens and the non-indigenous Australians Why, for so long has the Aboriginal population continued to live in such a precarious manner, in a far less stable than the rest of the population? The weight of history apparently is strong, and shows that there hasn't been much change either quantitatively or qualitatively the country rapporteur and many others, amply have pointed out the tremendous mass of information, very interesting, in the report impressively, about the laws enacted, institutions established, large sums of money allocated in order to improve the conditions and remove racial discrimination. But in spite of this, which is also informed to us in a commendable way in the report through a number of statistic figures, the result is very very meagre. Very meagre indeed. And like others here, you ask yourself how come? Why is this? What is the matter? What is wrong? The Country-Rapporteur brought this issue into sharp focus: I think we all have to welcome the increase in government resources going into what seem to be a multiplicity of programs and activities to address the social and economic disadvantage within the Aboriginal community, and I think that in some respects, in many respects, the report is very candid about the track record Now I note that you said today that there's been great improvement over a short period of time, and I'm sure there has been, but you know it's interesting to me, and again I will say this because I come from a country myself where there is a disadvantaged community and a lot of government programs et cetera, it's of serious concern the extent of the dramatic inequalities that are still being experienced by these population groups when they represent only, you know, no more than 2% of the population of a highly developed, industrialised state, and I just, it makes me wonder about things like the effectiveness of the programs, monitoring, benchmarking, what are the standards, is anybody watching this to see whether or not they really are designed to meet the disadvantages that are real in the communities, you know the real history of systemic discrimination, institutional racism? In other words how is it even with the increased level of expenditures and the many programs that you've described that I think are all quite laudable, so how is it that a country like Australia with the resources it has, has not yet been able to bring what's less than 2% of the population up to reasonable levels in terms of standards of living? Members of the Committee emphasised that while the governments efforts were impressive, the measuring stick for assessing the adequacy of the governments approach to Indigenous disadvantage was not the amount of money spent. The crucial question was whether these programs were sufficient to achieve equality and address the historical legacy: We heard that there was a raise in housing so much, there was a raising, it is good. I congratulate the Australian Government for this. But no doubt I would also prefer to have the comparison between what the Aborigines have in the field of education compared to other Australians. And, or health, etc. All these statistics should be, the comparison should be done on the basis of the different groups of the population. Not to what the Aborigines have today, and what they had a year ago. Maybe you can compare what they have today to what they used to have before they were so badly treated some time ago I and others have received a mass of information about the serious concerns that Australians and others have about the health conditions of the indigenous population We are told that more and more is being done to address this situation. That is not to say that sufficient is being done Ms January-Bardill also highlighted the flaws of the current approach to addressing disadvantage: I'd like to commend the Government for taking steps that it has done, especially in creating mechanisms and structures to address social inequalities felt by the indigenous peoples of Australia. However, I feel that this welfarist approach which throws money at problems has been very limited. And your own statistics on health-education show that there hasn't been much social upliftment. In fact people are continuing to live a fairly desperate life. And what this approach to injustice does is that it simply manages the inequalities, it doesn't really change them. And it can also create a lot of resentment within the majority population who sometimes feel that their taxes are used simply to uplift the lives of minority groups. So the question I'd like to ask, is what therefore are your critical success factors? What results do you hope to achieve from your welfare approach to social injustice? Experience has also showed in many countries that creating laws and legal frameworks as you have done, which you have been encouraged to do by our Convention, that these laws and frameworks are not, do not necessarily create results. They are simply a means to an end. What they do is to create an enabling environment which the institutions are expected to use to achieve the results that the State wants. So the question is, how are the institutions in the country, whether they are political, whether they are social, whether they are legal, or whether they are economic. What, how are they using this basket of legislation and administrative framework to achieve your goals of dealing with injustice and inequality? Specifically you know, around the Aboriginal peoples of Australia And finally, I'd like to propose to the Government that unless the original indigenous people of Australia are actively involved in the political, socio-economic and legal life of Australia the status quo will not change, and if the Government is thinking about changing the injustices within the country then they have to include Australians in the decision-making process, their indigenous Australians in the decision-making processes. A related concern was the extent of budgetary cuts to the Aboriginal and Torres Strait Islander Commission and HREOC over the past five years: When your last report, periodic report, was before this Committee we welcomed the establishment of bodies like ATSIC and the Human Relations Committee [sic], but now we see that there are some changes taking place, either already implemented or discussed, to the functioning of both institutions, that might have an adverse impact on the, you know, their ability to effectively carry out their programs. ATSIC is federally funded, indigenous organisation, very unique structure it has been sort of established as the, a representative voice of the Aboriginal community, particularly I think with respect to ability to enter into negotiations, et cetera. So when you were before us before, it seemed that the state party was putting an emphasis on moving the responsibilities and creating in ATSIC a sort of body to represent the issues and interests of the Aboriginal community. Now I understand and actually think it is quite an important thing to do mainstreaming of these responsibilities, and I think it's very important that you know all the other departments in the government have such responsibility also, but inasmuch as it's clear that there is a need for and, if you will, a legitimate or authoritative voice from the Aboriginal community to enter into consultations and negotiations with the government, I just wonder whether or not they are now being disempowered, so that they are not as able to play effectively that role. In these comments the Committee members raise a number of complex issues of significance to attempts to redress Indigenous disadvantage. They acknowledge that: Indigenous disadvantage is the result of systemic discrimination; the appropriate benchmark by which to measure progress is one of equality between Indigenous and non-Indigenous Australians; the government is obligated to take sufficient steps (or special measures) to achieve such equality; there must be adequate monitoring and evaluation of progress, including measuring effectiveness through benchmarking and standard setting; and real progress requires the effective participation of Indigenous people in decision making (including through the representative voice of ATSIC). In relation to the Convention, these issues raise concerns under Articles 2 and 5 (equality before the law and non-discrimination), and Articles 1.4 and 2.2 (the requirement to take special measures). The government responded in a number of ways. They emphasised the importance of recognising progress to date: if we cannot acknowledge that there has been some progress then the support for the efforts, which are considerable, to address these issues in the community as a whole will not be there. And so we have seen some beneficial improvements, they're outlined in the report before you, but we don't see those improvements as enough There is also clear evidence that progress is being made: rising levels of educational attainment; improvements in health and housing (eg a 90% reduction in aboriginal infant mortality since the 1970s); and the fact that 15% of the continent has been returned to aboriginal ownership and control. The government emphasised its commitment to redressing disadvantage through practical measures: Now it is impossible to undo the wrongs of the past, but the Australian Government has committed itself firmly to address what it sees as today's unacceptable level of disadvantage suffered by Australia's indigenous peoples. And the fact is that indigenous disadvantage in Australia has been long-standing and it will not be corrected overnight We believe that the practical measures that we are implementing, leading to practical results to improve the lives of our indigenous peoples can, over time, incrementally, produce better results than we have today. And we are, through the implementation, systematically, of special programs and policy initiatives, seeking to improve economic independence for our indigenous peoples to overcome inequalities which we know continue to exist in some areas, and we have targeted those areas of greatest need, particularly health, education, housing, employment, and economic development opportunities as areas in which we can move forward. They emphasised the increased funding in Indigenous-specific programs: Now despite some claims to the contrary, the fact is that government funding, total funding on indigenous support programs has increased. In this financial year the Government's indigenous-specific funding across all portfolios including health, housing, education and employment will be 2.2 billion Australian dollars that's a significant increase on the figure of 1.8 billion that is referred to in the report. So you can see that increased commitment by that simple demonstration. They also emphasised the governments policies of empowerment and responsibility / mutual obligation: Now I must stress that disadvantage will not be solved or remedied by money alone. We recognise that communities and individuals need to take some responsibility for their personal well-being as well. And they need to have the chance to claim success or to learn from failure, and we have therefore been involving and empowering Aboriginal and Torres Strait Islander people to overcome the legacy of our past, to eliminate need for welfare support, and we're improving indigenous Australians' access to health, housing, education, employment, economic wealth of our country in addition. In fact I would say that one of the tangible demonstrations of that empowerment is the very presence of such a large number of Australian indigenous people before your Committee in the audience today and making efforts to be heard in other ways, as I know they have... The government support for services remain but our aim of course is to create opportunities for indigenous Australians to be able to create their own future. They noted the complicating factor of the demographic structure and location of the Indigenous population: 70% of that population lives in regional and rural areas of Australia. It's a very rapidly growing population, growing at double the rate of the general population. And one of the factors driving that very rapid population increase is the extent of inter-marriage between indigenous and non-indigenous Australians. The children of such unions are entitled to identify or be identified as Aboriginal, if they so choose. And they acknowledged the historically derived nature of the disadvantage: Australia is far from unique in that it is still struggling to remedy the social and economic legacy of its past history. Canada and the USA also continue to experience similar difficulties in relation to their indigenous and Afro-American communities The fact that more remains to be done reflects the lingering effects of past problems: in the area of employment for example, todays adults are still suffering the legacy of educational disadvantage of 40 or 50 years ago. Similarly, the seeds of shortened Aboriginal adult life expectancy were planted in the substance abuse problems (eg tobacco) of their youth. Notable in these responses is the absence of any recognition of the importance of a rights approach to redressing disadvantage. There is no confirmation of the centrality of Indigenous participation and self-determination to achieving lasting improvements in the enjoyment of economic, social and cultural rights. As an example of this I noted in my submission to the Committee that: In 1993, the government responded to the Mabo decision by announcing that they would take action in three areas the introduction of the Native Title Act 1993 to recognise and protect native title (and validate non-Indigenous forms of land usage); the introduction of an Indigenous Land Fund to redress dispossession for Indigenous people who would be unable to establish native title due to past extinguishment of their rights; and a Social Justice Package. Broad consultations were undertaken in regard to the development of the Social Justice Package by ATSIC, the Aboriginal and Torres Strait Islander Social Justice Commissioner, and the Council for Aboriginal Reconciliation. Strategies and proposals were presented by these three bodies to the government in 1995. The proposals broadly called for the recognition of the rights of Indigenous people, as well as calling on the government to redress Indigenous disadvantage (and highlighting requirements for this to be addressed as a right, not out of welfare). In 1996, the newly elected government abandoned the Social Justice Package. Similarly, there is no reference to a commitment to adopting special measures to redress Indigenous disadvantage as expeditiously as possible, through the adoption of targeted plans. Indeed, while the government affirms the importance of performance measures and benchmarks, the only examples they are able to give of benchmarks that have been adopted are socio-economic indicators and statistics collated as part of the Commonwealths access and equity strategy. A further aspect of the governments responses that is of concern is the reference to $2.2 billion expenditure on special programs. As a study on public expenditure on services for Indigenous people noted last year: A focus on special programs for Indigenous people alone will provide a misleading picture of the distribution of public expenditure between Indigenous and non-Indigenous people. While Indigenous people benefit substantially more than other Australians from specific programs, they benefit substantially less from many, much bigger, general programs. Such a focus does not acknowledge, in relation to health for example, that Indigenous people access the large general schemes such as Medicare and the Prescribed Pharmaceutical Benefits scheme at substantially lower rates than non-Indigenous people. Nor does it identify that a large number of unemployed Indigenous people are hidden within the Community Development Employment Projects Scheme rather than accessing Jobstart allowance. Put differently, much of the expenditure through programs that are identified as special programs is in fact expenditure that would otherwise be spent through mainstream programs. It is not additional, as a characterisation as a special program implies. The Committee reached the following, justifiable, conclusions on this issue: 18. The Committee acknowledges the efforts being made to increase spending on health, housing, employment and education programmes for indigenous Australians. Serious concern remains at the extent of the continuing discrimination faced by indigenous Australians in the enjoyment of their economic, social and cultural rights. The Committee remains seriously concerned about the extent of the dramatic inequality still experienced by an indigenous population that represents only 2.1 per cent of the total population of a highly developed industrialized State. The Committee recommends that the State party ensure, within the shortest time possible, that sufficient resources are allocated to eradicate these disparities. 11. The establishment of the Aboriginal and Torres Strait Islander Commission (ATSIC) and of the Aboriginal and Torres Strait Islander Social Justice Commissioner within the Human Rights and Equal Opportunity Commission (HREOC) were welcomed by the Committee. Concern is expressed that changes introduced and under discussion regarding the functioning of both institutions may have an adverse effect on the carrying out of their functions. The Committee recommends that the State party give careful consideration to the proposed institutional changes, so that these institutions preserve their capacity to address the full range of issues regarding the indigenous community. Indigenous peoples and criminal justice systems An issue related to the levels of Indigenous disadvantage is the over-representation of Indigenous people in the criminal justice systems of the states and territories. The Committee had expressed concern on this issue in its previous consideration of Australia in 1994: 543. The situation of the Aboriginal and Torres Islander people remains a subject of concern, despite efforts aimed at remedying the injustices inherited from the past. Concern is expressed that Aboriginals continue to die in custody at a rate comparable to that which led to the appointment of the Royal Commission. 545 It is, once again, noted with concern that, according to various social indicators, Aboriginals are more deeply affected by social problems such as alcoholism, drug abuse, delinquency and incarceration than any other social group in the country. 547... The recommendations adopted by various bodies entrusted with the protection of Aboriginal rights the Royal Commission into Aboriginal Deaths in Custody, the Human Rights and Equal Opportunities Commission, and the Aboriginal and Torres Strait Islander Commission should be fully implemented by all those concerned, particularly state and territory governments. The Committee followed up these concerns during the dialogue in March: If I can go to Article 5 and questions relating to equality before the law. As you all know, the Royal Commission of Inquiry into Aboriginal Deaths in Custody found that the problem was the degree of over-representation in custody, was 29 times that of non-Aboriginals. The Royal Commission also concluded that the most significant factor in bringing indigenous community people into contact with the criminal justice system was their disadvantage and unequal position in the wider society. And they made subsequent recommendations and I note that the government has accepted 338 of the 339, and has allocated over 4 million dollars to seek to implement those recommendations. But despite that formal commitment to those recommendations and the programs put in place I think that it is still true, correct me if this is wrong, that the total number of Aboriginals in custody has increased, according to a study prepared for ATSIC by a criminologist. He says: 'claims by state and territory governments to have implemented recommendations cannot be sustained. Further state/territory governments have taken legislative actions not to envisage the Royal Commission of Inquiry, not envisaged by it, which has led to an increase in Aboriginal imprisonment.' Now the Commission recommended strategies of diversion, diversion from incarceration, but I think since that time, particularly for juveniles the level of incarceration has remained at unacceptably high and disproportionate levels. And many have pointed to the mandatory sentencing laws that are now in place in at least one state and one territory as well as the limited diversionary options that are available. The government responded to the Committee as follows: Australia acknowledges that Aboriginal people are grossly over-represented in the criminal justice system. The Royal Commission into Aboriginal Deaths in Custody identified two solutions to this problem: Reducing underlying causes of socio-economic disadvantage and Developing alternatives to detention and imprisonment. The underlying causes are being addressed exemplified in the $2.2bn in special programs for Indigenous Australians. Alternatives to detention have also been encouraged, including through doubling the Aboriginal legal aid budget, as a result of the Royal Commission. The results are beginning to show: The level of Aboriginal over-representation (relative to non-Aboriginal) has fallen in the last five years; On a per capita basis, Aboriginals are less likely to die in custody than non-Aboriginals; Indigenous people receive shorter sentences than non-Aboriginal offenders in almost all offence categories. I have already discussed above the approach to redressing Indigenous disadvantage generally. I also noted in my submission to the Committee that all levels of government have failed to adequately respond to the recommendations of the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into the Separation of Aboriginal and Torres Strait Islander 鱨վ from their families. These reports make numerous recommendations aimed at redressing the underlying causes of Indigenous over-representation in the criminal justice system, juvenile justice and care and protection systems. Many of the recommendations have not been acted upon or actively rejected by governments. The claim that the results are beginning to show in addressing Indigenous detention rates cannot be sustained. Despite the recommendations of the Royal Commission into Aboriginal Deaths in Custody, the rate at which Indigenous people come into contact with the criminal justice system has not improved in the past decade: From 1988 to 1998, the Indigenous prisoner population (across all age groups) has more than doubled. It has grown faster than non-Indigenous prisoner rates in all jurisdictions. Nationally, Indigenous prison populations have increased by an average of 6.9% per year for the decade. This is 1.7 times the average annual growth rate of the non-Indigenous prison population; Figures for the June 1999 quarter indicate that 76% of all prisoners in the Northern Territory (NT) and 34% of all prisoners in Western Australia (WA) were Indigenous. The rate of imprisonment of Indigenous people in Western Australia was 21.7 times higher than that of the non-Indigenous population. The rates in the other states for which statistics are available are also unacceptably high - 15.7 times higher in South Australia, 12.2 times higher in Victoria, 11.3 times higher in Queensland, 9.9 times higher in the Northern Territory and 5.1 times higher in Tasmania. The number of Indigenous deaths in custody in the decade since the Royal Commission has been 147, compared to 99 in the decade before the Royal Commission. 17.2% of all prison deaths in the 1990s have been Indigenous people, compared to 12.1% in the 1980s. The Committee also raised the issue of the provision of interpreters in court proceedings: I'd also like to hear you talk, we've talked about equal access to law, a little bit about interpreter services. That's been raised with me that in courts, while there is a program to guarantee interpretation services to non-English speakers, that the service is not extended to, in general, to the Aboriginal community, or that it's not available or it's not able to be used successfully, and so I would like to hear your comments there. The issue of a lack of interpreter services had been graphically illustrated to the Committee with case studies of mandatory sentencing. On the issues of interpreters the Government stated: It is important to distinguish between interpreter services for day-to-day purposes and interpreter services in the courts and criminal justice system In terms of day-to-day services, there is no universal service for either non-English speaking background Australians or aboriginal Australians In relation to the courts, there is no automatic scheme of translation or interpreter service for any group of Australians, aboriginal or non-aboriginal. It is up to the magistrate or judge in the particular case to decide the issue. However, Aboriginal Australians have access to special legal aid assistance and representation which often include any necessary assistance (noting that government funding of aboriginal legal aid has been doubled in the past decade). This answer is of concern because, in the first instance, it fails to acknowledge that the provision of court interpreters, where required, is fundamental to a fair trial and equal treatment in legal proceedings (as required under Article 5(a) of the Convention). Furthermore, it is ambiguous in that it tends to suggest that the provision of legal aid assistance and special representation is adequate to meet any need for interpretation. But the role of interpreters in court is not a partisan one. They are a service of the court, intended to ensure that all who come before the court can properly understand the proceedings and be heard. The suggestion that Aboriginal Australians have access to special legal aid assistance and representation is not relevant to the question at issue. On these issues the Committee justifiably concluded as follows. 15. The Committee notes with grave concern that the rate of incarceration of indigenous people is disproportionately high compared with the general population. Concern is also expressed that the provision of appropriate interpretation services is not always fully guaranteed to indigenous people in the criminal process. The Committee recommends that the State party increase its efforts to seek effective measures to address socio-economic marginalization, the discriminatory approach to law enforcement and the lack of sufficient diversionary programmes. Mandatory sentencing Mandatory sentencing or detention laws in the Northern Territory and Western Australia were of great concern to the Committee. In particular, mandatory sentencing illustrated concerns about: the unwillingness of the federal government to ensure compliance of the states and territories with Australias obligations under the Convention; the (lack of) effectiveness of government programs to reduce the over-representation of Indigenous people in the criminal justice system; the related problem of the lack of interpreter services in court proceedings; and the inadequate response of government to the historically derived disadvantage faced by Indigenous people. Mandatory sentencing laws clearly raise concerns in relation to Articles 2.1(a), (c) and 5(a) of the Convention. The Committee also noted that mandatory detention laws may be discriminatory in their impact, and accordingly breach the obligations in Articles 2 and 5 of the Convention. The Country-Rapporteur expressed her concern as follows. My question is this, that first of all does the state party share the view that these mandatory sentencing regimes are inconsistent with its obligations under our Convention and perhaps under others? And I also wonder, I understand that there has been a legal committee of the government that has studied and concluded that quote, 'that the weight of the evidence of the committee was that the mandatory sentencing laws have a discriminatory impact on indigenous peoples and that is contrary to the provisions of CERD', and they named Articles 2 and 5 particularly. So I would want to know whether or not the state party fully agrees with that. The issue here is one of indirect discrimination. CERD clearly incorporates this, with the definition of racial discrimination in Article 1.1 including discrimination in purpose or effect. I have consistently argued that mandatory detention provisions target crimes that are generally committed by people from lower socio-economic backgrounds. In the Northern Territory and Western Australia this necessarily means Indigenous people. The limited statistics available show that these laws have a clear disparate impact upon people of different races, and accordingly that they breach Articles 2 and 5 of the Convention. The government responded to these issues as follows: I'm not offering it to defend it because my Prime Minister has said he personally does not favour mandatory sentencing provisions [But] mandatory sentencing only occurs where there has been a breach of law, primarily in relation to property offences in the case of Western Australia, home burglary which were seen as very significant issues in those jurisdictions, so it only operates there. It requires a conviction for an offence. It also requires conviction under our law where the burden of proof is beyond reasonable doubt. It's not a low order burden of proof that operates in relation to these matters. And the fact is that under our criminal justice system, the responsibility for those questions rests with the states. Now, the Commonwealth has expressed its concern about the impact of these laws on young people in particular, and in relation to the impact on indigenous peoples. Now I think the impact can be quite variable, because convictions are required, I'd suspect that it's probably, in many cases, going to be more difficult for convictions to occur, because I think it's a natural reaction that those who are involved in the proceedings work harder to make sure that if a mandatory sentence is likely, that it is resisted, if there is any possible doubt. And one of the points that's been made to me is that while Aborigines are over-represented in our criminal justice statistics and that is something that we have been concerned about, it's something that's been addressed by Royal Commissions, it's something in which we are putting a lot of work with the states to try to redress but the fact is that mandatory sentencing is likely to produce an outcome where indigenous people, if the offences related to these matters, would be less represented in the statistics, rather than more represented. And it is certainly the case that it cannot be established that mandatory sentencing has significantly led to, or contributed to, over-representation in our criminal justice system. Now that doesn't justify it. I simply put it before you as material that has been in the public arena. We are a democracy, where these issues are discussed and debated, and debated very vigorously. The Commonwealth Attorney-General, my ministerial colleague, has written to his counterparts in both Western Australia and the Northern Territory, asking them to review their laws, particularly as they impact upon young people The Commonwealth is very conscious of looking for other ways through this issue, and we are seeking, from a committee of members of parliament, advice on further diversionary programs, and looking at the interpreter issue to see whether there are ways forward, progressively, to address these questions, which can help in alleviating some of the concerns about the mandatory sentencing question The government considers that it is better to address the problem of repeat offenders through program aimed at prevention, rehabilitation and diversion The governments main priority is to address the causes underpinning the over-representation of Indigenous people in prison. We believe were meeting our obligations under CERD. These explanations are deeply unsatisfactory. There is no evidence to support the claim that it will be more difficult to get a conviction under mandatory sentencing because of the standard of proof required. There is also no evidence that mandatory sentencing is likely to produce an outcome where indigenous people would be less represented in the statistics. A common misconception about the arguments relating to the discriminatory nature of mandatory sentencing is the suggestion that mandatory sentencing depends on it having significantly led to, or contributed to, over-representation in our criminal justice system for it to be discriminatory. There is no clear evidence that it has led to over-representation, but this is not the point. The issue is that mandatory detention is diametrically opposed to the accepted goals of the Royal Commission into Aboriginal Deaths in Custody of preventing incarceration wherever possible. It militates against efforts to reduce levels of over-representation in custody. In the dialogue with the Human Rights Committee, the government provided more expansive answers on why it considered that mandatory sentencing laws are not racially discriminatory: In relation to Articles 24 and 26 (of the ICCPR), the Government submits that mandatory detention laws do not discriminate against any group of people in ways that are prescribed by these Articles. The Government notes that these laws apply to all citizens equally, irrespective of race. This is consistent with the approach to discrimination adopted by the Committee. There is no distinction made in the legislation as to its application to various groups of people. For this reason, the Western Australian and Northern Territory legislation cannot be considered discriminatory... mandatory detention laws are laws of general application... they apply without any distinction as to race or other characteristics In the Government's view, the fact that the detention laws apply only to selected offences does not mean that the laws discriminate against indigenous people or any other group. This Committee in its general comment on non discrimination has said that not every differentiation will constitute discrimination if the criteria for such differentiation are reasonable and objective. The Northern Territory and Western Australian Governments have identified particular offences as being of significant concern to their communities. For example, Western Australia has the highest rate of home burglary in Australia and the Western Australian Government has stated that people who are the victims of home burglary suffer not only the loss of valuable possessions, but also the feeling that the sanctity of their homes has been violated. In those circumstances, the Western Australian Government has identified the offence of home burglary in particular as one that required suitable means to deter repeated offences of that sort. Similarly, the Northern Territory Government has identified that property offences are serious offences with an enormous impact on the Territory community. Thus, the Territory Government has attached mandatory detention sentences to commonly committed serious property offences. The relevant State and Territory Governments have identified the basis for the selection of particular offences as appropriate for mandatory detention in cases of repeat offending as being their seriousness in terms of community impact. This is a reasonable and legitimate objective of the criminal law. The Governments in question have determined that mandatory minimum sentences for serious property offences and home burglary are not unreasonable, unjust or non proportional when taking into account the nature of the crimes in question, their repeat nature and the level of community concern about them. This answer does not acknowledge that the prevention of discrimination clearly includes discrimination that may be unintentional, but which nevertheless still a disparate impact. It also misrepresents the circumstances in which a differentiation of treatment is reasonable and objective. As noted above in relation to the margin of appreciation argument under CERD, it does not extend to permitting invidious discrimination. But even should such a balancing exercise be allowable under the ICCPR to determine whether mandatory sentencing laws are not unreasonable, unjust or non-proportional, it is patently false to suggest that such laws, particularly those in the Northern Territory, relate only to serious property offences. Any balancing exercise that would be required would be in relation to petty or minor property offences. It is inconceivable that such harsh laws could be seen as proportionate, reasonable or just. A final concern about the governments justifications of mandatory sentencing is the stated commitment to diversionary and non-custodial options to address the underlying causes of over-representation. There is no logical connection between such a commitment and the existence of mandatory sentencing. Lord Colville, a member of the Human Rights Committee, explained this issue well in relation to the funding agreement between the Northern Territory and federal governments: I was extremely interested in hearing from Ms Leon that $A5 million per year are being devoted to diversionary programs, orders for the police to avoid bringing charges provided that somebody will comply with some other diversionary program or possibly the powers of the Magistrates, limited though they may be, to pass what I believe are conditional release orders instead of using the mandatory sentence. Now, there is a dilemma here I think for the delegation. Either these are palliatives which indicate that there is a recognition that mandatory sentencing is unfair in itself in which case my point is proved, or alternatively, there is no particular reason to spend $A5 million per year in the Northern Territories and Western Australia to provide these diversionary programs which are not available or are not funded in other parts of the Australian Territory. Now, I don't think the delegation can have it both ways, and therefore, this is another aspect of discrimination which I would bring to their attention and I would ask them to reflect upon it. The CERD justifiably expressed concern at mandatory sentencing as follows: 16. The Committee expresses its concern about the minimum mandatory sentencing schemes with regard to minor property offences enacted in Western Australia, and in particular in the Northern Territory. The mandatory sentencing schemes appear to target offences that are committed disproportionately by indigenous Australians, especially juveniles, leading to a racially discriminatory impact on their rate of incarceration. The Committee seriously questions the compatibility of these laws with the State party's obligations under the Convention and recommends to the State party to review all laws and practices in this field. Reconciliation (including responding to forcible removal policies) In its previous consideration of Australia, the Committee had expressed concern at the level of discrimination and disadvantage experienced by Indigenous people. As a consequence of this, in its concluding observations the Committee stated: 547. The Committee recommends that Australia pursue an energetic policy of recognizing Aboriginal rights and furnishing adequate compensation for the discrimination and injustice of the past. There are two articles of the Convention that are relevant to this recommendation and which make reconciliation an appropriate matter for consideration by the Committee. Article 6 requires that the States party shall assure to everyone within their jurisdiction effective protection and remedies against any acts of racial discrimination as well as the right to seek adequate and just reparation or satisfaction for any damage suffered as a result of such discrimination. Article 7 provides that States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship During the dialogue with the government, the Country-Rapporteur commented as follows: Article 7 obliges the states parties to undertake measures to combat prejudices which lead to racial discrimination and to promote understanding, tolerance and friendship among racial and ethnic groups and I think that that's where we started with the discussion that the honourable Minister gave us of the reconciliation process and its varied programs that are being put in place, the way in which it is trying to be innovative, et cetera I'm also interested in how you see this process of reconciliation. I've heard about the programs as you've described earlier, but what are the benchmarks? What actually is taking place in addition to a public education program, how will you know when reconciliation has been achieved, what are the criteria? And is it not going to have to have the full consent and agreement of the other side of the table in a negotiation with the indigenous community, because it seems to me that at the very least, you know, one of the criteria for reconciliation is that both sides, or all sides, agree that yes, we have reached that point now. And I just wonder if there's not going to be, not consultation I think that's something else but real negotiation with the indigenous community about what reconciliation means, and how to get from here to there. The government responded to these issues by first acknowledging the wrongs of the past, but also by stating that such wrongs cannot be undone: Now without any doubt one of the greatest blemishes in Australia's history has been the treatment of our indigenous peoples. I don't think you would find many Australians who would look back at our history who would say that it was always appropriate. The doctrine of terra nullius for instance denied indigenous land rights while indigenous peoples suffered injustices under many practices that past generations were involved. Now it is impossible to undo the wrongs of the past, but the Australian Government has committed itself firmly to address what it sees as today's unacceptable level of disadvantage suffered by Australia's indigenous peoples. During its consideration of the native title amendments in 1999, the Committee noted that it is problematic to suggest that we cannot undo the past. The government made a similar suggestion stated in its appearance before the Human Rights Committee in July 2000. A member of the Human Rights Committee, Mr Shinan, highlighted some of the problems with this approach during the dialogue with Australia in July 2000: I wish to refer to what was said by the Ambassador in his introduction. He said We cannot wind the clock backwards. This statement is, of course, true but to some extent it's not true. It's not true if it represents an effort to assimilate the indigenous cultures into a pattern of life which is fundamentally European, if it wants to convey the message that modernisation is here to stay, and modernisation will replace traditional forms of life and traditional cultures. To some extent, we must stop the clock in order to see what we have in the form of traditional economies and traditional ways of life, and to some extent I would say we must also wind the clock backwards in order to see where there are vital traditions of the indigenous peoples of Australia and what are the sustainable traditions, and what can be done to give them a new sound economic basis so that their sustainability in the future could be secured. The government also stated its commitment to a process of reconciliation and noted that it would take time to achieve: I would want to say very firmly that while people have talked about specific timeframes and with goodwill people have aspirations to achieve reconciliation sooner rather than later, it is a process which involves the meeting of people's hearts and minds in which you need to effect change, and it's a process that's going to be ongoing and one in which we are going to have to continue to work on over time The Parliament has committed itself to the process of reconciliation and seeks, it's welcomed the draft, and it's encouraged participation, and all of us hope we can get a document. But .the fact that we get a document, does that mean we're all going to be reconciled? Somebody has produced a document, do we put the issues aside and say look we're all together, we're reconciled? Now I suspect if I took that view and then came back to you and said look we got a document last year, we're reconciled, somebody would be asking me for measurable outcomes. I mean we realistically are saying we don't know that this document is going to bring that process to an end. We think it may have to be ongoing If we are going to influence the hearts and minds of people to be reconciled, I think the process is more important when I was in South Africa at the beginning of last year, many of the people I spoke to said well, look, you really don't have to look at the document, the document itself, because that's not really the answer, what you have to look at is the process that we have been through. The fact that people have had an opportunity to talk about these issues, to come together, to make their personal apologies, to make admissions about their involvement in the apartheid regime, and in many cases to seek a form of forgiveness for that. And that process was seen as something that had had a very significant and unifying impact on the community. And I would say that in Australia regardless of whether we get a document or not, the process that we are going through is being, is very important in the context of our national identity, in which we want to address these issues in a very positive way. The Country-Rapporteur expressed concern with this comment, by highlighting the need for the outcome of the process to be a consensual one: I was not indeed asking for there to be a document that could be produced. Rather, for me, the real test is whether or not all of the parties agree that reconciliation has been achieved, and achieved on the basis of genuine negotiations between the, essentially in this case, two parties. But I think that one would have no doubt as to when reconciliation is achieved and it's certainly not on the basis of a document, it is a process. But it's a process that will never be successful unless the aggrieved parties feel that they have negotiated an outcome that is satisfactory to them. A related issue raised by the Committee was that of the governments response to forcible removal policies: When I think about the reconciliation process I sort of go back to the issue of what's called the stolen generation The national inquiry into the separation of these families made seven or so recommendations for government response to these abuses and I'd be interested in hearing how many of those recommendations have indeed been acted on. You know, the difficulties of any people in coming to terms with racial discrimination in the past just cannot be underestimated. However, I would ask whether or not you feel that your government is showing sufficient leadership in this regard and why, and I read this in your report but I'd like to hear from this distinguished delegation why it is so difficult as a government, not as an individual but as a government, to take full responsibility for past government actions? There's been no constitutional break in this process, so the question is why would it be so difficult to fully admit and apologise for past wrongs by your government? The government referred to the Motion of Reconciliation that went through the parliament on 26 August 1999: One of the 54 recommendations [of Bringing them home] involved a formal apology by the respective Australian Parliaments, state and federal. The national Parliament adopted a statement of regret last year. As I noted in my submission to the Senate Legal and Constitutional References Committee inquiry into the stolen generation, the Motion of Reconciliation resolved by both houses of federal Parliament does not contain the necessary elements of an apology identified in recommendation 5a of Bringing them home, and is generic in the sense that it does not specifically mention forcible removal policies at all. Ultimately, the Committee justifiably expressed the following concerns about the process of reconciliation: 12. While acknowledging the significant efforts that have taken place to achieve reconciliation, concern is expressed about the apparent loss of confidence by the indigenous community in the process of reconciliation. The Committee recommends that the State party take appropriate measures to ensure that the reconciliation process is conducted on the basis of robust engagement and effective leadership, so as to lead to meaningful reconciliation, genuinely embraced by both the indigenous population and the population at large. 13. The Committee notes the conclusions of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander 鱨վ from their Families and acknowledges the measures taken to facilitate family reunion and to improve counselling and family support services for the victims. Concern is expressed that the Commonwealth Government does not support a formal national apology and that it considers inappropriate the provision of monetary compensation for those forcibly and unjustifiably separated from their families, on the grounds that such practices were sanctioned by law at the time and were intended to assist the people whom they affected. The Committee recommends that the State party consider the need to address appropriately the extraordinary harm inflicted by these racially discriminatory practices. The governments response to CERD, and the treaty review process The government responded to the concluding observations of the Committee by stating that the Committees report is an unbalanced and wide-ranging attack that intrudes unreasonably into Australias domestic affairs; that the Committee has apparently failed to grapple with our unique and complex history; and that the Committee paid scant regard to the Governments input and has relied almost exclusively on information provided by non-government organisations. Accordingly, the government rejects the comments made by the CERD. The government also stated that it is unacceptable that Australia, which is a model member of the United Nations, is being criticised in this way for its human rights record The Committees comments do not do our country justice. In relation to the mandatory sentencing/ detention laws in the Northern Territory and Western Australia, the government stated that: While it is not the Commonwealths role to defend the legislation of any particular State or Territory, the Commonwealth regards the Committees comments in relation to mandatory detention laws as inappropriate. The Commonwealth Racial Discrimination Act 1975 is a comprehensive enactment of Australias obligations under the CERD. The act prohibits all forms of racial discrimination in all Australian jurisdictions, Federal, State and Territorial and provides a legislative framework for making complaints regarding racial discrimination. It is by reference to the Racial Discrimination Act and through its complaint mechanisms that any issue regarding race discrimination in Australia should be handled. These are matters for Australian legislatures and Australian courts. I am not aware of any complaint being made under, or by reference to, the Racial Discrimination Act in relation to either the Western Australian or the Northern Territory mandatory detention laws. In interviews with the press during the week that followed the release of the Committees observations, various government Ministers also noted that: some of the issues which the Committee had considered represent intrusions into matters that are of no concern to the Committee at all. They are outside their terms of reference; the Committees comments on race relations in Australia were unbalanced and represented really a repetition of the submissions made by non-government organisations; this committee, it is an elected committee comprises representatives from a diverse range of countries, some of whose human rights records are nowhere, nothing like as good as Australias; they seem to be running a political agenda rather than making an independent assessment or an impartial assessment of what the situation is in Australia; and that you can argue about what the international obligations are given the general terms of the treaties. On the issue of mandatory sentencing it was stated that: Our approach to mandatory sentencing, at the Commonwealth level, you appreciate that I am only speaking for the Commonwealth government, not for any other, is not to focus on our international obligations. International obligations under treaties are heavily negotiated, end up being in very broad, general terms and therefore are capable of, in the different minds, applying in different situations. Sometimes even in quite contradictory situations [the] committee is fundamentally flawed because it is based on the erroneous proposition that because there is a disproportionately large number of indigenous people likely to be caught up in these laws that it is racially based. It is not racially based at all. That is the equivalent of saying that all of our criminal laws are racially based. In relation to mandatory sentencing and Australias federal system it was stated that: in a federation, youve got to have a system where if the local community elects a government and that government does something and people at the center of government, the national government, is unhappy with that then youve got to think before you intervene and overturn that local law. Can I just say the criminal laws of this countries have for decades been run by the States. The Commonwealth doesnt run the criminal law of Australia except in so far as international things intrude, but the ordinary day to day criminal law [are] all state things. Now I think to march in and try and overturn every individual state criminal law you disagree with is making a bit of a mockery of federation youve got to preserve the federal compact to the extent of acknowledging the role of the States and the territories in these matters the criminal law of this country is overwhelmingly something administered by State and territory governments. The federal government has virtually no role in the domestic criminal law of this country, except in a very, very general sense. So that really is the basis of what were saying ultimately these things have to be resolved by Australian Parliaments elected by Australians, and not by foreign committees. When asked whether the government would take note of the Committees observations, the Attorney-General responded: We are taking note. We carefully read it the moment it is issued and we form our own view on it. Thats taking note of it, but if what they say is wrong, then we are entitled to reject it This report will have no influence whatever on what the Government does on pretty well any of the issues in the report. Less than a week after the Committees observations were released, the government announced a review of Australias participation in the treaty committee system. The review announcement expressed concern at the burdensome reporting requirements under the treaties; the backlog of overdue reports and delays in consideration of these by the committees; the perception of over-reliance on NGO submissions by the committees; and the suggestion that the committees were running political agendas rather than expert objectives. In relation to the CERD it was stated that: In this context, the Government was appalled at the blatantly political and partisan approach taken by the UNs Committee on the Elimination of Racial Discrimination (CERD) when it examined Australias periodic reports in Geneva last week The Committees response was disappointing in the extreme. It largely ignored the significant progress made in Australia across the full spectrum of indigenous issues. The Committees observations are little more than a polemical attack on the Governments Indigenous policies. They are based on an uncritical acceptance of the claims of domestic political lobbies and take little account of the considered reports submitted by the Government there are serious systemic problems in this reporting process and the resources needed for them to play their role effectively are not allocated to the treaty bodies. As a result, the outcomes of the system are not always fair and accurate assessments of states performances. This was the case for Australia recently in relation to our implementation of the Convention Against Racial Discrimination. Under Article 9 of ICERD, the State Party may also make comments on the concluding observations of the Committee. Such comments must be included in the annual report of the Committee to the General Assembly. Accordingly, the government requested that the following comments be included in the CERDs annual report: The Australian Government has carefully considered the Committees concluding observations on Australias tenth, eleventh and twelfth periodic reports issued on 24 March 2000. While noting some positive commentary, the overall thrust is unduly negative. The Australian Government rejects these comments. It approached the CERD meeting in good faith and sent a high-level delegation, led by the Minister for Immigration and Multicultural Affairs and Minister Assisting the Prime Minister for Reconciliation, the Hon.PhillipRuddock MP. Australia provided extensive written and oral information in order to engage constructively with the Committee. The Australian Government is very disappointed that the Committees concluding observations ignored the progress Australia has made in addressing indigenous issues, gave undue weight to NGO submissions, and strayed from its legitimate mandate. The Australian Government is also deeply concerned about the lack of consideration the Committee accorded to its views, and to its outstanding record of commitment to international human rights obligations. Following the issue of the Committees concluding observations, the Government in March 2000 initiated a review of its engagement with UnitedNations treaty bodies, which will involve, interalia, consideration of the working procedures of CERD. The Government will announce the conclusions of the review in due course. I have a number of concerns about the governments response to the Committees concluding observations. In particular, the following comments are not sustainable and must be rejected. The Committee was unbalanced in its views, as it ignored progress made in Indigenous issues and was unduly negative As I noted at the outset of this chapter, the Committee praised a number of efforts by the Australian government to address racial discrimination in accordance with the Convention. These included a range of projects and processes relating to Indigenous issues including the level of government spending; implementation of recommendations of Bringing them home and the Royal Commission into Aboriginal Deaths in Custody; and the existence of legislation outlawing racial discrimination federally, and in all states and territories. In my assessment, the Committee did acknowledge the positives and was not unduly negative. The Committee did not make a fair and accurate assessment of Australias performance In the dialogue with the government, the Committee identified the articles of the Convention that they considered were relevant to particular issues. They also commented on the adequacy of the governments explanations of particular issues and concerns. In my assessment, provided in relation to each issue in the previous section, the conclusions reached by the Committee on each issue relating to Indigenous policy is sustainable and a fair and accurate assessment of Australias performance. A number of issues dealt with by the Committee, specifically mandatory sentencing, are domestic issues and by commenting on these issues the Committee acted outside of its mandate As I have illustrated in the previous section, each issue that the Committee commented on in its concluding observations was clearly within the mandate of the CERD. Reconciliation and stolen generations issues, for example, clearly raise issues of compliance with Articles 6 and 7 of ICERD; the extent of Indigenous disadvantage clearly raises issues under Articles 2 and 5 of the Convention; and mandatory sentencing raises issues under Articles 2(1)(a), 2(1)(c) and 5 of the Convention. The argument that certain issues are purely domestic and not properly the concern of international treaty committees is not new. As Hilary Charlesworth notes: The standard reaction to international criticism has been to question the legitimacy of an outside group or organization to comment on matters within Australia. The inviolability of Australian sovereignty is regularly given as a reason to resist international scrutiny. This type of reaction overlooks the fact that human rights issues within a nation state are now unquestionably of international concern, and have been so for over fifty years, from the signing of the UN Charter. The governments arguments regarding mandatory sentencing in many respects amount to nothing more than a reiteration of the arguments that were rejected by the Committee. This is particularly the case in relation to the arguments relating to our federal structure and the difficulty of overturning state or territory laws. In disputing the Committees concluding observations on mandatory sentencing, the government has also not fairly represented the views put by the Committee. The CERDs observations on mandatory sentencing cannot reasonably be described as expecting that the federal government will march in and try and overturn every individual state criminal law you disagree with. Mandatory sentencing laws can be differentiated from other state and territory laws that a federal government may not like, as they involve fundamental issues of compliance of Australia with human rights obligations. It is also wrong to suggest that the Committees conclusion on mandatory sentencing was flawed as it was based on the proposition that Indigenous people are over-represented in custody. As I outline in the previous section, this is not the reason why the Committee concluded that mandatory sentencing laws breach the Convention. It was inappropriate for the Committee to consider mandatory sentencing laws as any complaints about it can be dealt with under the Racial Discrimination Act 1975 (Cth) The argument that mandatory sentencing is appropriately a domestic issue that should be dealt with under the Racial Discrimination Act 1975 (Cth) (RDA) misunderstands the scope of the Act. There have been no complaints lodged with the Human Rights and Equal Opportunity Commission that allege that mandatory sentencing laws are racially discriminatory. But far from being proof that they are not discriminatory, the lack of complaints is a reflection of the fact that under section 24(2)(a) of the RDA any such complaint would be declined as not unlawful. Accordingly, there is no capacity for an individual to lodge a complaint about mandatory sentencing laws under the RDA. If mandatory detention laws are discriminatory, they are lawfully so within the domestic legal system. This is a breach of Article 6 of ICERD which requires that there be effective protection and remedies within the domestic system against any acts of racial discrimination. The Committees assessment of issues was blatantly political rather than an objective and impartial assessment As I noted in relation to the governments partial acceptance of a substantive equality approach to Articles 2 and 5 of ICERD, the standard against which the Committee makes its objective assessment is different to that which exists in domestic politics. It is the human rights standards of the Convention that are relevant. The will of the majority or the government, or the domestic political problems faced by the government in relation to a particular issue, are not relevant in determining whether particular actions are discriminatory or in breach of the Convention. This is not indicative of a blatantly political approach, but rather reflects that human rights law is counter-majoritarian in that it provides protection for individuals and minorities so that, in certain defined contexts, their interests are not always sacrificed to those in the political majority. The Committee had made this point explicitly clear to the government in relation to native title issues in 1999. In that context, the government had argued that it had struck an appropriate balance between the interests of miners, pastoralists, Indigenous people and so forth in the native title amendments. The Committee made explicit that the balance is not between domestic political interests but between the enjoyment of rights by different racial groups in society. The native title amendments did not provide an appropriate balance in this regard. International treaties are drawn in such broad, general terms that there can be legitimately different interpretations of a State Parties obligations This argument must be rejected in relation to ICERD. As I noted in the previous section, the obligations that arise in the Convention are of an explicit nature that leave little room for differing interpretations. This point is demonstrated by the governments arguments relating to a margin of appreciation, and their justification of laws that they say have a legitimate objective. As I noted above, the measuring stick under the Convention of when differential treatment is legitimate is the objectives of the Convention and not some unrelated, general notion of reasonableness. The Committees membership is drawn from countries with human rights records worse than that of Australia This argument fails to acknowledge the status of committee members as serving in their personal capacity and independent experts on issues of racial discrimination. It also fails to acknowledge the high level of knowledge of the Australian situation demonstrated by committee members during the dialogue with the government. Other governments have also misunderstood the status of committee members. This led the Committee in 1990 to adopt a general recommendation on the status of committee members in the following terms: Considering that respect for the independence of the experts is essential to secure full observance of human rights and fundamental freedoms, Recalling article 8, paragraph 1, of the International Convention on the Elimination of All Forms of Racial Discrimination, Alarmed by the tendency of the representatives of States, organizations and groups to put pressure upon experts, especially those serving as country rapporteurs, Strongly recommends that they respect unreservedly the status of its members as independent experts of acknowledged impartiality serving in their personal capacity. The Committee was unbalanced in its views, giving too much weight to the submissions of non-government organisations and not enough to those of the government This view is problematic from a number of perspectives. The Committees role is not to balance the views of the government and NGOs. It is engaging in a dialogue that takes as its frame of reference the obligations of the Convention. A lack of reliance on the governments position is not an indication of a preference for the views of NGOs, but of the inadequacy of the responses of the government, when considered against the obligations voluntarily assumed under the Convention. The concluding observations of the CERD are, as I have already noted, sustainable and are a fair and accurate assessment of Australias performance. Further, the government does not suggest that there is not an appropriate role for NGOs in the Committees evaluation of a State Parties performance. An important issue for the government is how it provides for NGO participation in the development of the periodic report. As I noted, with my fellow Commissioners, in a recent submission to a parliamentary committee: To ensure the credibility of Australias relationship with UN treaty committees, it is essential that non-government organisations and other stakeholders be given the opportunity to provide input into the preparation of those reports. Effective consultation requires that governments allow sufficient time for these organisations to provide appropriately detailed input. It also requires a commitment of resources by government to facilitate consultation with NGOs, although the level of resourcing would not be onerous Effective consultation with NGOs also means taking their views into account when it is given. This does not mean that governments are obliged to agree with or accept without question the views of these organizations. It means however that governments should take their views seriously and should give careful consideration to this material when it is received. While state reports to treaty committees are first and foremost government reports, to be accurate and well-informed they require input from those most closely involved with the issues under consideration. The fact that NGOs and others may also provide independent reports to treaty committees in no way diminishes this requirement The provision of information by NGOs is an essential mechanism by which to test the information provided to committees. It is our experience that a good report to a committee will canvas most of the concerns raised by NGOs. In HREOCs view, there is a relationship between the level of NGO participation in the preparation of a periodic report, the quality of such reports and the consideration of the views of NGOs by the human rights treaty committees: The Commission shares the Attorneys concern that committees accord state representatives ample opportunity to express their views and that appropriate weight be given to the matters put to them by governments. However, in the Commissions experience, it is difficult to identify any major instances where treaty committees have acted inappropriately in this regard. Moreover, one of the reasons why Committees need to seek input from NGOs is because state reports have on occasions lacked information of sufficient detail and accuracy to meet the Committees requirements. Clearly, the less informative the state partys report, the greater resort the Committee will need to have to material provided by NGOs. The role of the CERD and the periodic reporting obligation Earlier in the chapter I highlighted several purposes of the periodic reporting process. The governments approach to the CERDs observations is a combative one that does not accept that the Committees role is an advisory one, to assist in ensuring greater compliance with the Convention and greater recognition of human rights domestically. A member of the Human Rights Committee pinpointed the problematic nature of the governments approach as follows: Most of us have seen the reports in the newspapers that the Australian Cabinet has had some unhappiness with the work of treaty bodies. They didn't make any exception for this particular treaty body, although I don't suppose they should have too much trouble with this treaty body since they haven't appeared before us as now in some 14 years I would like to suggest that perhaps the Government of Australia, like the Governments of other countries, ought to see this Committee as it sees itself. We see our work as an important contribution to your compliance with the obligations which you voluntarily assumed; in fact, eagerly assumed. And that is true not only about the protocol, but also about the Covenant itself. So we don't see ourselves really, despite the tone of some of our questions, as sitting in judgment but as helping State Parties carry out the obligations which you voluntarily assumed, and wish to assume. Of course, that requires cooperation by the States Parties. It does not help to read, therefore, questions about the work of the treaty bodies, and even on communications it does not help to see Governments and I don't refer only to Australia somehow resist the judgments or the final views of this Committee. Therefore, I can only close by saying that we cannot help Governments comply with the obligations which you voluntarily assumed unless there is cooperation between your Government and the Committees, both in regard to the reports which you filed and we hope you will file more frequently, and the response to our views. Conclusion This chapter has raised many concerns about Australias compliance with human rights obligations in relation to Aborigines and Torres Strait Islanders. Various United Nations human rights treaty committees have expressed these concerns after conducting constructive dialogues with the Australian government, such as the one with the CERD highlighted in this chapter. While the issues considered internationally are also the focus of much attention domestically, the international dialogue adds value to domestic debates. The key feature that distinguishes the dialogue at the international level is that it is focused on the human rights dimensions of the issues at hand. At the domestic level, the human rights significance of an issue is often diluted according to economic and other interests. But the right of an accused person to be sentenced proportionally to the crime committed, for example, is a principle that a human rights committee does not easily overturn in order to assuage a popular demand for tough criminal sanctions. And such a committee cannot be easily persuaded that the right of Indigenous titleholders to equal protection of their title by the law should be compromised in order to achieve certainty for other stakeholders. Indeed balancing interests is not the concern of a human rights dialogue. Rather, the concern is whether sufficient value is placed on fundamental and universal human rights principles despite the economic and political expediencies of a country. As Kofi Annan, Secretary-General of the United Nations, recently stated: No government has the right to hide behind national sovereignty in order to violate the human rights or fundamental freedoms of its peoples. Whether a person belongs to the minority or the majority, that persons human rights and fundamental freedoms are sacred. All parties to human rights treaties are brought to account by the UN treaty committee system. In the end what is important is that through international dialogue, the human rights dimension of the issues at hand can be greater emphasised and understood by those who draft and formulate policies and legislation at the domestic level. In the next chapter I consider how the concerns raised by the CERD can be addressed, and what lessons can be extracted from the dialogue, in order that reconciliation can proceed within a human rights framework. Put differently, I will consider ways in which the international dialogue on human rights can be put into practice domestically, rather than the dialogue being seen as separate to the process of policy formulation and practice in the domestic arena. Chapter 4: Achieving meaningful reconciliation This report identifies the necessity to adopt a human rights approach to reconciliation, as well as shortcomings in Australias performance on human rights issues as they relate to Aborigines and Torres Strait Islanders. This chapter emphasises processes and mechanisms that enable reconciliation to be implemented within a human rights framework. It identifies crucial commitments and processes that governments must engage in to progress meaningful reconciliation in the coming years. In accordance with my reporting obligation under section 46C(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), I have chosen to recommend actions that should be taken to improve the level of enjoyment of human rights by Indigenous Australians. These recommendations specifically aim to increase the accountability and transparency of governments in relation to Indigenous specific policies; facilitate the effective participation of Aborigines and Torres Strait Islanders in service delivery and policy development; and ensure adequate protection of the human rights of Indigenous Australians. Reconciliation within a human rights framework The following four inter-related principles synthesise a range of human rights obligations that must be addressed for reconciliation to be meaningful. No discrimination A guarantee of equal treatment and protection for all. Equal protection extends to the recognition of distinct cultural characteristics of particular racial groups, where appropriate, and requires that temporary special measures be adopted to overcome inequalities between racial groups. Concerns about Australias compliance with this principle include the introduction of racially discriminatory laws at the national level, such as the native title amendments; the maintenance of laws at the state or territory level which have a racially discriminatory impact, such as mandatory sentencing; and the lack of equality between Indigenous and non-Indigenous people across all measures of social and economic status. Progressive realisation The commitment of sufficient resources through well-targeted programs to ensure adequate progress in the realization of rights on a non-discriminatory basis. Concerns about Australias performance in meeting this principle include the inadequate targeting and benchmarking of Indigenous disadvantage, and insufficient progress in the reduction of the inequalities faced by Indigenous peoples. Related concerns include the continuing level of Indigenous over-representation in the criminal justice system; the inadequacy of the response of governments to Bringing them home, the reports of the Royal Commission into Aboriginal Deaths in Custody and the social justice package proposals. Effective participation Ensuring that individuals and communities are adequately involved in decisions that affect their well being, including in the design and delivery of programs. Concerns in relation to this principle include the level of engagement of Indigenous people in the reconciliation process; changes in the role and functions of ATSIC which limit its ability to effectively represent Indigenous people; and the lack of effective participation of Indigenous people in the development of programs and policies relating to Indigenous people, such as in the development of the native title amendments and programs to overcome Indigenous disadvantage. Effective remedies The provision of mechanisms for redress when human rights are violated. Concerns in relation to this principle include the ability in Australian law to override the guarantee of racial non-discrimination (and the actual overriding of this principle through the native title amendments and the removal of heritage protection at Hindmarsh Island); the failure of the Commonwealth to ensure compliance of the states and territories with human rights obligations; and the failure to provide adequate reparation for the impact of forcible removal policies. This chapter focuses on broader structural issues that facilitate the implementation of a human rights framework. The issues discussed are intended to provide increased accountability of governments for compliance with these obligations, and to facilitate increased Indigenous participation. The actions discussed are not exhaustive, and are intended to complement the actions proposed in the four national strategies on reconciliation and the Roadmap to Reconciliation released by the Council for Aboriginal Reconciliation. These issues are considered under the following headings: Indigenous disadvantage and progressive realisation; Strengthening Indigenous governance; and Recognising and protecting Indigenous rights in a federal system. Indigenous disadvantage and progressive realisation The appropriate standard for measuring progress in addressing Indigenous disadvantage is one of equality between Indigenous and non-Indigenous Australians. A focus on equality highlights that Government is obligated to progressively reduce the inequalities faced by Indigenous people by targeting such disadvantage and taking appropriate steps (or special measures) to the maximum of available resources. Governments should be held accountable, in the words of Mrs January-Bardill of the Committee on the Elimination of Racial Discrimination, to doing more than simply manage the inequalities. Current funding arrangements do not meet these obligations. Despite the commitment of significant resources to redress Indigenous disadvantage, there is very little to indicate the priority that governments attach to reducing the inequalities. The 2000 budget paper on Indigenous policy notes the record amount of $2.3 billion allocated to targeted Indigenous-specific programmes and that as part of its commitment to practical reconciliation between indigenous and non-indigenous Australians, the Commonwealth government is determined to ensure improved access for indigenous Australians to key government programmes and services. At no stage does it identify the reduction of the disparities in enjoyment of rights between Indigenous and non-Indigenous people as the governments purpose. Also missing from current funding and service delivery arrangements are adequate performance targets, benchmarks and mechanisms to ensure government accountability and transparency. This is demonstrated by a number of recent reports. The House of Representatives Standing Committee on Family and Community Affairs noted in its recent report on Indigenous health that: The planning and delivery of Indigenous health services are characterised by lack of direction and poor coordination; There is no clear delineation of responsibility for service delivery among the federal, state, territory and local governments; This lack of clear delineation of responsibility shifts costs between governments and sectors; There is little coordination between health services and other programs such as education and employment, despite the inter-related nature of these issues; The result of this piecemeal funding and coordination is fragmented policies and programs across governments, which lack consistency; and The lack of effort to integrate Indigenous community involvement into the planning and delivery of services is the biggest barrier to success. The Committee also noted that a large proportion of health services for Indigenous Australians are simply reactive and tend to involve general non-specific services that are not designed to meet the special health and or cultural needs of Indigenous patients; and that funding for such services is frequently fragmented across a number of organizations in amounts that are insufficient to provide services in an efficient manner. Health services provided by all levels of government are commonly vertical and inflexible, relating to identifiable risk factors, specific activities or diseases, and it is therefore difficult for funds allocated to individual programs to be used for purposes which might better meet the holistic needs of the relevant local Indigenous community. The Committee stated that it is unlikely that the health of Indigenous Australians will improve significantly until the fragmentation of services, cost shifting and lack of agreement about responsibility for Indigenous health are resolved; and until there is clear agreement among the states and the federal government about their respective responsibilities, how they will act to meet these responsibilities and the resources to be committed by all parties. This situation persists despite the existence of framework agreements between the Commonwealth and the states for health service delivery. These agreements were negotiated in accordance with the Council of Australian Governments (COAG) 1992 National commitment to improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders (The COAG National Commitment). The Committee noted that these framework agreements have not been effective, as they have been seen as gentlemens agreements that apply in principle only and for which there is no recourse if breached. Similarly, in its draft report on the Indigenous funding inquiry, the Commonwealth Grants Commission has noted that existing funding arrangements across health, housing, infrastructure, employment, education and training do not: acknowledge and adequately address the long-term disadvantage of the Indigenous population; help build long-term capacity of Indigenous communities to plan and manage services; encourage Indigenous participation, priority setting and decision-making; and deal effectively with non-funding issues such as coordination, fragmentation and cross-functional issues. The Commission emphasises in its report that: Indigenous disadvantage has a long-term nature and government programs aimed at overcoming it must take a long-term perspective many programs are not planned or funded for a sufficiently long term. Some have been commenced with guaranteed funding for only very short periods. Towards the end of those periods, there is growing uncertainty which reduces the incentive for people to invest energy in programs and increases community anxiety about the continuity of the service, with the result that disadvantage is not overcome [I]t is also essential that the processes are based on long-term social commitments to reducing Indigenous disadvantage and involve clear commitments to the continuity of funds, so long as they meet agreed outcomes. The Commission also notes that: with the exception of some programs in the housing and infrastructure area, many Commonwealth and State government programs do not allocate funds on a needs basis. Allocation mechanisms include direct response to demand, history, submissions and formulae that may reflect population, needs, costs of service delivery or capacity to benefit. ATSIC has also noted in its report on regional autonomy that there is concern among ATSIC regional councils that: Different spheres of government have failed to meet their responsibilities to Indigenous communities, particularly in the delivery of citizenship entitlements; State and territory agencies are not under any legal obligation to take responsibility for service provision to Indigenous constituents or to address longstanding inequities; States and territories refer their obligations for Indigenous issues back to the Commonwealth, usually through ATSIC; and Commonwealth monitoring mechanisms are ineffective and consequently, are unable to influence government agencies to target redressing Indigenous disadvantage, particularly in areas where there exists deeply entrenched racism. These reports highlight the need for all Australian governments, led by the federal government, to have clearly targeted, long-term plans which identify redressing Indigenous disadvantage as a national priority and which measure progress within an equality framework; to be transparent about the outcomes sought, with adequate performance indicators and benchmarks; and to ensure ongoing and independent monitoring and evaluation of outcomes. An equality approach to overcoming Indigenous disadvantage It is insufficient to measure achievement in redressing Indigenous disadvantage according to the level of government expenditure on specialist programs for Indigenous people. Aside from creating resentment among other parts of society about special treatment, such an approach lacks comparative and evaluative components. As the Commonwealth Grants Commission notes in its Indigenous Funding Draft Report, special programs for Indigenous people are there to serve a particular purpose: In general, mainstream services provided by the Commonwealth and the States are intended to meet the needs of all Australians. We have termed these citizenship services. For example, the Medical Benefits Scheme, hospital services, schools education and public housing services are intended to meet the needs of all Australians who meet the eligibility criteria. However, for many reasons, mainstream services do not always meet the needs of specific groups, especially Indigenous people. As a result, governments have found it necessary to provide many supplementary programs to increase the access of Indigenous people to services or to meet their specific needs [Special programs are not] intended to meet the total needs of Indigenous people. They are intended to supplement rather than replace mainstream programs to help Indigenous people gain access to services. They are designed to compensate for the disadvantage and particular needs of Indigenous people which stem from where they live, degree of poverty and particular aspects of their history or culture. Specific programs are intended to supplement citizenship services in order to enable Indigenous people to enjoy their rights on an equal footing. An appropriate approach to addressing Indigenous disadvantage is one that is clearly targeted over the long-term, with short-term goals based on these targets. It is an approach that seeks to measure progress by evaluating whether the disparity between Indigenous and non-Indigenous people in the enjoyment of rights is being reduced, and according to whether programs and services enable Indigenous participation. An equality framework to addressing Indigenous disadvantage has begun to be implemented in other countries. As discussed in chapter 2, the Canadian Royal Commission into Aboriginal Peoples recommended a 20-year commitment to overcoming Indigenous disadvantage and strengthening Indigenous governance mechanisms. It argued that the social costs of simply maintaining the status quo, without taking further steps to address current disadvantage, would see government expenditures steadily increase over time with little prospect that it would ever begin to decline. The Commission argued that a 20-year commitment of programmes of renewal could lead to significant reductions in the level of annual special programs expenditure required, and would represent a good investment. The Canadian government responded to the recommendations of the Royal Commission in 1997 with Gathering strength Canadas aboriginal action plan. Gathering strength commits the Canadian government to a long term, integrated strategy to change the relationship between Indigenous and non-Indigenous Canadians. Underlying the strategy is the recognition of the imperative to address the discrepancies in living standards between aboriginal and non-aboriginal people; and the complexity and difficulties associated with this task. Gathering strength is discussed further below. Another example of an approach that adopts an equality framework is the New Zealand governments Closing the gaps policy. This policy reflects a government commitment to progressively close the gap between the social and economic status of Mori and non-Mori peoples. Integrally linked to this policy is the facilitation of Indigenous participation and capacity building. The Honourable Tariana Turia, Associate Minister of Maori Affairs, has explained the policy as follows: The closing the gaps policy provides the Government with further impetus to focus its attention on its own departments, strategies and systems, to produce positive results for Mori. The Government expects its departments to improve their contributions to make a positive difference to the health, housing, education, employment, justice, welfare and business and enterprise outcomes for Mori... this suggests departments will need to be responsive to the needs, interests and priorities of Mori. departments will have to be more rigorous in the development and implementation of their strategies, policies, programmes and services in terms of whether they work well for Mori. Closing the Gaps means there is even more reason for departments to engage with whnau, hap, iwi and Mori organisations to deliver specified services to Mori communities. However, it is a needs-focused policy through which Mori are treated as clients For Mori, the main point of the closing the gaps policy is to ensure Mori are not prevented from having the best possible chance to lead, manage and control their own development. Until now, the disparities between Mori and non-Mori have had the potential to be seen as a record of the failings of Mori people. This is neither sustainable nor appropriate. Closing the Gaps does signal, however, how much of the Governments authority, expertise and resources need to be brought to bear to make a substantial difference to socio-economic outcomes for Mori.  A central aspect of the policy is a bi-annual report by Te Puni Kkiri (the Ministry of Maori Affairs). This reporting mechanism establishes benchmarks against which to measure progress towards closing the social and economic gaps; to assist government and mainstream agencies to maintain a focus on the status of Maori in their work and decision-making; and to assist in setting priorities for policy development. The findings of the report highlight the cumulative effect of government policies and individual action. As the benchmarks measure progress at a whole-of-government level they cannot be used as a performance indicator to hold individual government departments accountable. Until the release of the first Closing the gaps report in 1998: it had been difficult to assess the overall social and economic position of Mori, or to gauge whether or not improvements had occurred across the relevant sectors The 1998 Report acted as a benchmark against which the Government could measure progress towards achieving the strategic objective for Mori development. The report used key statistical indicators to assess changes in the education, employment, economic and health status of Mori. It was based on data collected by state sector agencies, either through their administrative data collections or through regular surveys. The Closing the Gaps report pulled together historical data across each of the key sectors and provided an assessment of progress made over time. The findings of the report were not unexpected: There was no denying that Mori had experienced and continue to experience poorer educational outcomes, higher unemployment, lower income levels, lower rates of home ownership, and poorer health than non-Mori. However, up until the Closing the Gaps report, it was difficult, if not impossible, to assess whether disparities were improving or getting worse. Overall, the report findings indicated that the gaps between Mori and non-Mori education, employment, economic and health status were significant, and were either stabilised or widening. The second Closing the gaps report, released in May 2000, found that: Mori continue to experience poorer health status, lower income levels, higher unemployment, higher rates of prosecution and conviction, lower educational status and lower rates of loving in owned homes than non-Mori. The report demonstrates that disparities exist for Mori of all ages Overall, there have been few reductions in disparity since the last report, and in those areas where Mori rates have been improving, corresponding improvements in the status of non-Mori mean that gaps between Mori and non-Mori are not closing. The report also considered the causes of the disparities: the causes of disparities are the cumulative effects of events that are experienced throughout a lifetime. Historical events experienced by the Mori population, such as asset loss, land alienation, and rapid urbanisation may have played some part in contributing to the disparities evident today. However, ongoing inter-generational interactions in outcomes make it somewhat difficult to separate out cause and effect. Te Puni Kkiri is currently expanding its capability to undertake analyses into the causes of disparities. In Australia, the need to adopt a nationally coordinated, long-term, equality framework for addressing disadvantage has recently been acknowledged by the House of Representatives Standing Committee on Family and Community Affairs. In its Indigenous health report the Committee recommended that the federal Minister for Aboriginal and Torres Strait Islander Affairs be required to produce an annual report to Parliament on the progress of government actions across all portfolios to improve indigenous health and well-being. This report should provide a benchmark to monitor improvements in the disparity between Indigenous and non-Indigenous people in relation to health, education and employment status. It should not simply be a reiteration of budget figures. The purpose of the report would be to highlight achievements in addressing Indigenous disadvantage against short and long term goals, and on changing priorities as goals are met. The Committee also recommended that the states and territories adopt a similar approach, and that it become a standing item on the agenda of the Council of Australian Governments. The Committee stated that there ought to be: long term bipartisan support for the process The Indigenous community needs to be assured that this matter is a high priority for government, irrespective of which party is in government. The government had not responded to the report at the time of writing. Various state governments are in the formative stages of adopting more coordinated, long term, whole-of-government strategies to Indigenous policy development and service delivery. The Western Australian government currently reports in ways consistent with an equality framework. The Aboriginal Affairs Department (WA) reports annually on a whole of government basis on the outcome of better social, cultural and economic outcomes for Aboriginal communities. The Department uses the following performance indicators: Improvised dwellings (percentage of); Home ownership or home being purchased (percentage of); School participation rates (6-12; 13-17 years); Unemployment rate; Median income; Health measures (mortality ratio); Criminal justice (adult apprehension rate); Planning (percentage of communities with plans regarding their needs); and Environmental health factors housing; power; water; solid waste disposal; sanitation; and dust. Each indicator is reported on a regional basis, noting the disparity between indicators for Indigenous and non-Indigenous people, and shows whether there has been improvement since the previous year. The Queensland government has begun to implement a policy framework on a whole-of-government basis, with the Department of Aboriginal and Torres Strait Islander Policy and Development responsible for developing and implementing Towards a Queensland Government Aboriginal and Torres Strait Islander Ten Year Partnership. This outlines key strategic directions to be pursued in partnership with Indigenous people, including improving performance indicators and enabling community-initiated reporting on the meeting of these indicators. The Victorian government finalised the Victorian Aboriginal Justice Agreement with ATSIC and the Binjirru and Tumbukka Regional Councils in 1999. The agreement notes: Currently, there is no integrated, long-term plan or strategic framework for the provision of whole-of-government and cross-portfolio services to the Aboriginal community. This has meant strategies, programs and services are fragmented and uncoordinated the government will work with the Aboriginal community to develop a strategic framework [which] will outline responsibilities and provide linkages across the whole-of-government, and coordinate a range of proposed and existing policies and programs The strategic framework should be developed by 30 June 2000. Developing a national benchmarking framework and monitoring and evaluating progress Fundamental to the establishment of an equality framework for addressing Indigenous disadvantage in Australia is the existence of a sufficient statistical base at the national level, agreement on a national benchmarking framework and effective monitoring and evaluative mechanisms. The United Nations Development Programme, in its Human development report 2000 Human rights and human development, emphasises the importance of developing an adequate statistical basis in order to measure progress in the realization of human rights. The UNDP emphasises the importance of developing indicators for: Making better policies and monitoring progress; Identifying unintended impacts of laws, policies and practices; Identifying which actors are having an impact on the realization of rights; Revealing whether the obligations of these actors are being met; Giving early warning of potential violations, prompting preventative action; Enhancing social consensus on difficult trade-offs to be made in the face of resource constraints; and Exposing issues that have been neglected or silenced. While statistics alone cannot measure the full dimension of rights, they can open the questions behind the generalities and help reveal the broader social challenges. They can allow human rights to be more concretely relied upon in designing and evaluating policy. The UNDP has provided a framework for what the statistics should measure so that they adequately assess progress in the realization of human rights. The UNDP suggests that statistics must address the following three perspectives, simultaneously: An average perspective: What is the overall progress in the country, and how has it changed over time? A deprivation perspective: Who are the most deprived groups in society, disaggregated by income; gender; region; rural or remote location; ethnic group; or education level, for example. How have the most deprived groups progressed over time? An inequality perspective: Measuring the disparity between various groups in society, and whether these disparities have widened or narrowed over time. This statistical base must facilitate the development of benchmarks to measure whether adequate progress in addressing disadvantage is being made: Setting benchmarks enables civil society and government to reach agreement about what rate of progress would be adequate. The stronger is the basis of national dialogue, the more national commitment there will be to the benchmark. The need for democratic debate and widely available public information is clear. If benchmarks are to be a tool of accountability not just the rhetoric of empty promises they must be: Specific, time bound and verifiable. Set with the participation of the people whose rights are affected, to agree on what is an adequate rate of progress and to prevent the target from being set too low. Reassessed independently at their target date, with accountability for performance. At present, there is neither an adequate statistical base (particularly in reporting on an inequality perspective) nor an adequate national benchmarking framework in Australia. Some progress has been made in the past five years, particularly in relation to reporting on health issues. The Australian Bureau of Statistics (ABS) and the Australian Institute of Health and Welfare, for example, have begun to produce a biennial report titled The health and welfare of Australias Aboriginal and Torres Strait Islander Peoples, the next report of which is due in 2001. Similarly, the National Aboriginal and Torres Strait Islander Health Information Plan was introduced in 1997 by the ABS. The plan focuses on developing appropriate infrastructure for the collection and maintenance of Indigenous data; technical improvements required to support the collection of high quality statistics on Indigenous health; and leadership and coordination processes to progress issues and strategies across jurisdictions. There have also been recent developments in collection on Indigenous housing issues, but progress has been slow on other areas such as community services information. As the Commonwealth Grants Commission notes in its draft report of the Indigenous Funding Inquiry: Despite the 1992 (COAG) National Commitment to a planning framework which identifies needs, and establishes clear and measurable objectives, agreed outcomes and performance indicators and nationally consistent statistical reports with a policy orientation, comparable and reliable data are still difficult to obtain. There has been much activity in the areas of health, housing and education aimed at defining performance indicators and standardising data definitions and collection processes. However, improvements are occurring very slowly. Greater priority will need to be given to implementing the agreements and publishing data While identifying some developments, the Commission notes that: Progress on producing reliable data has generally been slow, suggesting insufficient commitment to the tasks, a lack of coordination and the tendency for these data tasks to be given lower priorities when resources become scarce Other data issues that must be considered in attempting to measure needs include the following. Much of the available data (such as that on hospital inmates) reflect needs that are being met, and do not include the unmet needs. As such, the data measure the wrong thing Data may not accurately reflect what was intended. For example, in the education area, there are some concerns that the processes used to measure literacy and numeracy are unsuitable for some areas and some students, and may underestimate their educational progress The use of regions as the basis of comparisons can mask variations in needs between locations within the region. Consequently, the Commission has suggested that the initiatives required by the Commonwealth, states and other service providers to improve data availability and benchmarking include: The establishment of comprehensive, objective measures of the needs of Indigenous people for each functional area; The definition of each data item and data collections using uniform processes; The preparation of clearly measurable objectives so that defined performance outcomes can be measured and evaluated at both a national and regional level; and A higher priority being given by service providers to the collection and evaluation of data. The Council for Aboriginal Reconciliation also suggests in its strategy to overcome disadvantage that: Territory, state and federal governments and ATSIC, with respect to their mainstream and Indigenous specific education, health, employment, housing, law and justice programs and services: where they do not currently exist, set national, state, territory and regional outcomes and output benchmarks that are measurable, include time-lines and are agreed in partnership with Indigenous peoples and communities; ensure that they have appropriate identifiers, administrative collections, tracking systems and integrated information systems to enable accurate and consistent output and outcome reporting for mainstream and Indigenous specific programs; and publicly and annually present an outputs and outcomes based report to their parliaments, on a whole-of-government basis, against these agreed benchmarks. The House of Representatives Standing Committee on Family and Community Affairs has also recommended in its Indigenous health report: The establishment of an independent National Council for Indigenous Health Affairs. One of the purposes of the Council would be to work with the Australian Bureau of Statistics (ABS) and other relevant portfolios to establish baseline measures, across all areas that impact on Indigenous health, and against which progress in improving the health of the Indigenous population might be measured over time. The Council should report to Parliament annually on progress in improving Indigenous health (Recommendation 5). The incorporation of the provisions of Indigenous framework agreements on health into the next Health Care Agreements negotiated with the states and territories, creating a more direct link between Commonwealth funding for Indigenous health, the national policy role of the Commonwealth, the service delivery roles of the states and territories and the role of community controlled services (Recommendation 7). The pursuit by the Commonwealth of initiatives to improve the collection of data on Indigenous health as a matter of urgency, with additional resources allocated if necessary to support the process and encourage the states and territories to resolve the issue (Recommendation 33). Funding the ABS to repeat the 1994 National Aboriginal and Torres Strait Islander Survey on a regular ongoing basis, to provide an adequate measure of changes in the level of Indigenous disadvantage over time (Recommendation 34). The ABS has also recently adopted a broad strategy for providing regular statistical information on the Indigenous population across all areas of social concern. The main focus of attention will be on the quality of data collection in the 2001 Census; as well as continuing to provide population estimates and projections; improve administrative data collections; and to continue a range of surveys obtaining information from the Indigenous community. In particular, the ABS has developed an Indigenous Survey Strategy that they will run in parallel to the Household Survey Program Review. This includes the conduct of an Indigenous General Social Survey (IGSS) in 2002 and then at 6 yearly intervals. This will be conducted in conjunction with the General Social Survey (GSS) of all Australians, which is conducted every 3 years, allowing for an inequality perspective. Unfortunately, the ABS funding does not extend to conducting the IGSS at the same intervals as the GSS; and the ABS is not intending to repeat the 1994 National Aboriginal and Torres Strait Islander Survey. Processes to implement a national commitment to overcoming Indigenous disadvantage To provide sufficient government accountability for the outcomes of Indigenous affairs policies, through greater transparency in policy formulation and scrutiny; and to integrate a human rights approach to redressing Indigenous disadvantage into the economic policy making process, the following five, integrated requirements must be addressed. Making an unqualified national commitment to redressing Indigenous disadvantage; Facilitating the collection of sufficient data to support decision-making and reporting, and developing appropriate mechanisms for the independent monitoring and evaluation of progress towards redressing Indigenous disadvantage; Adopting appropriate benchmarks to redress Indigenous disadvantage, negotiated with Indigenous peoples, state and territory governments and other service delivery agencies, with clear timeframes for achievement of both longer term and short-term goals; Providing national leadership to facilitate increased coordination between governments, reduced duplication and overlap between services; and Ensuring the full participation of Indigenous organizations and communities in the design and delivery of services. The federal government must acknowledge that a significant barrier to the full participation of Indigenous peoples in Australian society is the level of deprivation experienced by Indigenous people across all social and economic indicators, and the disparity in the enjoyment of human rights compared to the rest of the Australian community. This situation is historically derived. The government must identify overcoming Indigenous disadvantage as a national priority and clearly target the reduction of such disadvantage (from both a deprivation and inequality perspective). Agreement on this issue should be reached with the states and territories, and formalised by COAG through re-committing to the principles of the 1992 COAG National Commitment. The government should also identify overcoming Indigenous disadvantage as a key national priority for improving compliance with our international human rights treaty obligations. Accordingly, it should be prominently reflected in Australias National Action Plan on Human Rights. But simply committing to this goal is not enough. Similar commitments have been made in the past, as demonstrated by the COAG National Commitment of 1992, and service delivery framework agreements on health, housing and infrastructure concluded variously between ATSIC, state, territory and federal governments. Yet there has not been any noticeable improvement in the enjoyment of rights by Indigenous people and little progress in addressing the duplication and lack of coordination of services between governments and departments. In essence, governments have made these commitments without developing nationally consistent mechanisms by which they can be held accountable. An essential step to improve accountability is to identify the level of needs of Indigenous people (this meets what the UNDP terms an deprivation perspective) as well as the disparity in the enjoyment of rights (an inequality perspective). The Commonwealth Grants Commission is ideally placed to meet this requirement, through the conduct of regular inquiries into absolute need and Indigenous funding. The Commission is currently finalising its inquiry into the more limited issue of relative need and Indigenous funding. As they note: The issue of absolute needs was raised in all our consultations, no matter who they involved. The general theme was that given the high absolute needs, redistribution of existing levels of funding on the basis of relative Indigenous needs was of limited relevance. A focus on relative need limits the Commissions ability to report on an inequality perspective and hampers the usefulness of the inquirys outcomes for developing and improving national benchmarks. It also has the potential to skew the findings of the report in favour of addressing needs in rural and remote regions, despite the fact that the majority of Indigenous Australians reside in urban areas. Despite the limitations imposed by the scope of the inquiry, the Commissions inquiry has been an important one, vividly demonstrating the value of an independent evaluative mechanism. The draft report of the inquiry provides detailed consideration of Indigenous funding issues and identifies a range of suggestions to improve performance, including through changes to existing Commonwealth-state arrangements by introducing and/or reinforcing additional conditions on Special Purpose Payments (SPPs); moving to insert regional needs based allocation requirements into Indigenous specific SPPs; and seeking conditions on general SPPs to direct expenditure to aspects of services that are important to Indigenous people. The Commission has also worked with the Australian Bureau of Statistics (ABS) to prepare an experimental index of Indigenous socio-economic disadvantage. Having determined that it is feasible to construct such an index, the second stage of the work by the ABS will examine the feasibility of sub-dividing the index according to broad functional lines to produce a habitat index (reflecting disadvantage relating to health, housing and infrastructure) and an economic index (reflecting disadvantage relating to education, training and employment), as well as sub-dividing the index along geographical lines to produce an urban and rural/remote index. It can reasonably be expected that through conducting broader inquiries into absolute need on a regular basis, the Commission would through such collaborative work with the ABS be able to provide ever-increasing sophistication in data analysis and reporting. Crucially, it will also be able to examine in increasing detail mechanisms for allocating funding to address Indigenous disadvantage, with the following purposes: Clarifying the links between needs and funding; Identifying mechanisms for the Commonwealth to tighten the connection between funding and both the reporting and achievement of service delivery outcomes by the states and territories; and Identifying mechanisms for directly funding Indigenous organizations to deliver services on a regional basis (in accordance with the fiscal equalisation principle). The Commonwealth Grants Commission should be empowered and funded to conduct such broader inquiries, on a regular ongoing basis. Such inquiries would build on the achievements of the Commissions current inquiry, which will no doubt identify mechanisms for improving the sufficiency and quality of national data necessary to identifying Indigenous needs. At the conclusion of the Commissions current inquiry, the federal government should also request the Commission, along with ATSIC and the Australian Bureau of Statistics (ABS) to advise it on mechanisms to improve Indigenous data collection (taking into account the ABS broad strategy for improving data collection); as well as the feasibility of the ABS repeating the National Aboriginal and Torres Strait Islander Survey of 1994 on a regular basis; proposals for increased coordination and consistency of data collection at the national, state and territory level; and the cost implications of improved data collection. Proposals for improved coordination and standardisation of data collection by the federal, state, territory governments and other service providers (such as ATSIC) should be formalised by COAG through framework agreements under the 1992 COAG National Commitment. State and territory governments should also agree to report to COAG and their respective parliaments on a biennial basis as to progress in addressing Indigenous disadvantage, and the measures taken to implement the COAG National Commitment. The federal government should also initiate mechanisms for biennial reporting of progress in overcoming disadvantage to the federal Parliament, and ensure regular, parliamentary and inter-governmental scrutiny of these reports. To commence this process, the Commonwealth, state and territory governments should report to COAG, and to the public through Reconciliation Australia, by the end of 2001 indicating their support for the recommendations and actions proposed by the Council for Aboriginal Reconciliation in its four national strategies and final report to Parliament; and outline actions that they intend to take to implement these. The federal government should also coordinate negotiations between federal government departments and agencies, state and territory governments, ATSIC and service delivery agencies to develop benchmarks across all areas of service delivery, where such standards do not currently exist. Targets should be developed that reflect the long-term nature of the process, but with short-term targets that are verifiable, measurable and agreed with Indigenous communities and organizations. Given this long-term agenda, it is necessary that there be bi-partisan commitment to targets for reducing the level of disadvantage and the disparity in the enjoyment of rights. The targets should be culturally appropriate. As the Council for Aboriginal Reconciliation (CAR) has noted, there is concern that some of the targets and desired outcomes may be: based on western assumptions about disadvantage and that they have limited cultural relevance to Indigenous peoples. Where this is the case, it may be unrealistic to expect full statistical equality to be achieved with the wider community, even in the long term. However, it would be wrong to describe as disadvantage those specific statistical differences that arise directly from cultural obligations and self-determination. Issues concerning the cultural appropriateness of benchmarks are more likely to arise at the stage where the disparity in enjoyment of rights by Indigenous people has been significantly reduced from its current levels. In no way can the current lack of equality in the enjoyment of rights be seen as the result of cultural obligations or self-determination. As CAR notes, dealing with the potential for cultural bias in the setting of benchmarks (as well as to ensure regional flexibility) requires full involvement of Indigenous people in agreeing on appropriate standards. Bottom up processes for the development of benchmarks at the local and regional levels should be preferred. Strengthening Indigenous governance If programs are to be effective, Indigenous people should have the authority to make decisions about the services they receive at both the State level and at the local level. Ideally, this would be accompanied by control over the funds necessary to provide those services. While this is much easier to visualise in circumstances of discrete Indigenous communities (subject to the development of the necessary community capacity), the principle applies equally to other circumstances. Indigenous people need also to be involved in decision making for mainstream services, if these are to be effective and provided in a culturally sensitive way. Addressing disadvantage is a precondition for Indigenous people to be able to enjoy basic citizenship entitlements in Australia. The previous section has emphasised that Indigenous participation in decision-making is crucial to achieve this. But reconciliation must go beyond simply providing equality of opportunity in terms of sameness. It must provide for the acceptance, recognition and celebration of the unique, distinct societies and cultural characteristics of first Australians. Consequently, an approach such as practical reconciliation, that does not extend past the realisation of measures that allow for citizenship participation in society, is deficient. Implementing measures to overcome Indigenous disadvantage, while certainly a great challenge, requires no great innovation from an institutional or constitutional perspective and is fully consistent with the public philosophy of liberal egalitarianism. The more difficult part of the process is changing decision-making and service delivery processes to accommodate Indigenous cultural characteristics and aspirations, including through supporting and rebuilding the capacity for Indigenous self-government and autonomy. As Peter Russell notes: Autonomy is the dimension of reconciliation that requires inventiveness, imagination and moral courage on both sides. To find mutually acceptable ways of facilitating the self-determination of indigenous peoples within settler states is the greatest challenge in moving to a relationship that is truly post-colonial. Much of the challenge involves solving practical problems of institutional design and cultural adaptation There is a commonly held view that for genuine change to occur it must involve participation from the bottom up. One of the observations from the consultations ATSIC conducted on greater regional autonomy in 1999 was that '[p]eople would be able to exercise greater accountability over funds once they had some input into their deployment'. More effective accountability at the community level is a consequence of greater autonomy. This principle is recognised by the House of Representatives Standing Committee on Family and Community Affairs when they note, in relation to health services, that the key to achieving an effective regional approach is engaging the Indigenous community. Without their participation and cooperation no approach will work. Such participation is necessary to developing greater community control of services and programs, and consequently, greater responsibility and accountability for outcomes. Such participation would also provide greater responsiveness to Indigenous need, as well as for Indigenous peoples cultures and traditions to be reflected in the programs and services that intimately affect their lives on a daily basis. Through such involvement Indigenous people and communities would be able to begin moving from being, in the words of Noel Pearson, victims of passive welfare towards being re-empowered through the exercise of greater control over their lives. ATSIC note that: Ownership of, or at least partnership in, delivery of services to communities suggests a means of breaking the cycle of poor health, education, employment and housing outcomes and the subsequent anti-social behaviour and migration to larger regional centres which often results from poor service delivery. In the broader context of recent debate on social policy reform, the McClure Committees Report, Participation Support for a More Equitable Society (the McClure Report), has proposed greater use of mutual obligations and social partnerships as ways of preventing welfare dependency and increasing avenues of economic participation. However, the application of these principles is concentrated largely within a model of individualised service delivery, the implications of which for Indigenous communities remain largely undeveloped in the McClure Report. The Commonwealth Grants Commission in its Draft Report on Indigenous Funding, ATSIC in the Report on greater regional autonomy, and the House of Representatives Standing Committee on Family and Community Affairs report into Indigenous health all flag the development of mechanisms and structures for self-governance and greater regional autonomy as the next stage and natural progression from facilitating greater Indigenous participation in decision-making. The establishment of Indigenous governance structures is not a new idea, and varying degrees of Indigenous autonomy already exist through structures such as ATSIC, land councils, native title representative bodies (and emerging prescribed bodies corporate) and community-controlled organisations. The Minister for Aboriginal and Torres Strait Islander Affairs, in the governments 1998 election policy statement Beyond welfare, also provides support for the development of regional autonomy mechanisms, committing the government to: Accept[ing] the recommendations of the ATSIC Board in relation to providing greater regional autonomy [and] working with the indigenous community and ATSIC to develop appropriate regional models, and to devolve, where possible, decision making and management to the local level. Regional governance mechanisms were also central to proposals for the Social Justice Package in 1995. ATSIC note that the issues raised in their consultations on regional autonomy proposals in 1999 are markedly similar to those envisaged as being the subject of a makarrata in 1987, and as such highlight the lack of progress in achieving genuine self-determination for Indigenous peoples over the past decade or so. As ATSIC note, autonomy is not confined to local government or the provision of services. Rather, it may embrace self-governance in the broader sense of decision making to maintain identity including cultural matters, languages, customary law, definition of group membership and ownership and use of land. The ATSIC discussion paper on regional autonomy, released in 1999, lists four main reasons for consideration of why greater autonomy should be available to Indigenous peoples at the regional and local level: The cultures and traditions of Indigenous peoples are best safe-guarded in the decision-making processes possible at the local level. There is a possibility of ensuring through service delivery that services are consistent with cultural values; The taking of responsibility for decisions at the regional level is more likely to result in the development and achievement of goals; Greater regional involvement in decision-making is likely to lead to better program coordination as local decision-makers are more likely to identify duplication or a lack of services and respond more appropriately than agencies operating from a distance; The regional focus may make it easier for agreement making at that level with State/Territory and local governments and to establish partnerships with all agencies in service and other provision. Regional governance mechanisms are also better able to address the great regional variation in the circumstances of the Indigenous population. The Commonwealth Grants Commission notes that at present, funding mechanisms do not account for the fact that various Indigenous communities are differently placed in terms of capacity to self-manage. More efficient communities, with better management and infrastructure, and most able at writing submissions, are often most successful in securing funds. The Commonwealth Grants Commission stresses the need for resources and services to be directed where need is greatest, although it maintains that if a communitys measured needs are reduced by better efforts or efficiency, it should not have its share of resources reduced. A focus on Indigenous governance emphasises the need for greater coordination of services; the collective nature of the solutions required to the current problems faced by Indigenous people; and the necessity to adopt a holistic approach to addressing Indigenous need. It also allows for the renewal of Indigenous societal structures. It must be recognised, however, that Indigenous societies are not static. They have changed greatly over time, no doubt including during the period prior to contact with Europeans. The reference to renewal of Indigenous societal structures and governance mechanisms absolutely does not refer to the reconstruction of societies as they existed over two hundred years ago. Regional governance and progressing reconciliation in a human rights framework The development of governance structures and regional autonomy provides the potential for a successful meeting place to integrate the various strands of reconciliation. In particular, it is able to tie together the aims of promoting recognition of Indigenous rights, with the related aims of overcoming disadvantage and achieving economic independence. Unfortunately, during the reconciliation debate so far, there has been insufficient acknowledgement of the inter-related nature of these processes, which has been demonstrated by the failure to identify the crucial nature of recognising and building Aboriginal and Torres Strait Islander governance capacity to achieving these goals. The Council for Aboriginal Reconciliations strategy for achieving economic independence, for example, focuses on how governments and peak private sector organizations can apply affirmative action and culturally sensitive initiatives in the areas of education and training, employment, access to capital, access to markets and trades, challenges in regional and remote areas, and promoting partnerships and joint ventures. The strategy is more directed towards channelling private sector support into the development of Indigenous economic independence, in some instances with the encouragement of Government agencies, rather than developing more economically viable Indigenous governance structures. The Council for Aboriginal Reconciliations national strategy to overcome Indigenous disadvantage has as an objective Building stronger communities and equal partnerships and includes the following actions: Service providers, ATSIC, and local, Territory, State and Federal governments involve Indigenous communities and peoples as partners in the design, development, delivery and evaluation of policies, programs and services. Service providers, ATSIC, and local, Territory, State and Federal governments design and deliver their programs and services in a way that is driven by local Indigenous peoples, strengthens local communities, forges partnerships, makes links with the corporate sector and draws on the resources within the community to achieve agreed outcomes. Service providers, ATSIC, and local, Territory, State and Federal governments build the skills base of Aboriginal and Torres Strait Islander peoples so that they are able to sustain the infrastructure and deliver the services to their communities. To ensure equal partnerships, local, Territory, State and Federal governments support and fund Indigenous community organisations to participate in policy development, planning, service delivery and monitoring processes. These actions are constrained within a service delivery environment. They do not identify or give priority to building the capacity of or recognising Indigenous community structures as the basis of sustainable Indigenous communities into the future. As such, they place insufficient emphasis on the pivotal issue of maintaining distinct Indigenous identities and cultures. They are also separated from the Councils objective of providing formal recognition of the right of Aboriginal and Torres Strait Islander peoples to self-determination within the life of the nation as identified in the national strategy to recognise Aboriginal and Torres Strait Islander rights. As that strategy notes: Self-determination is much more about the process of decision-making It also reflects the kind of autonomy and decision-making that is already being exercised by communities who take responsibility for the delivery of services and programs. That is, self-determination is reflected in the recognition by governments of Aboriginal and Torres Strait Islander peoples right to exercise a sphere of authority and responsibility and the communities exercise of that right. In international law self-determination is the right of all peoples to freely determine their political status and to pursue their own economic, social and cultural development. It has its origins in the theory of self-government that a society should be able to determine for themselves how they are to be governed and to make the decisions that directly affect them. As James Anaya notes, [s]elf-government is the political dimension of continuing self-determination. Governance mechanisms illustrate the point that self-determination does not necessarily entail secession or the creation of separate states but can be articulated through the restructuring and renewal of existing relations between Indigenous organizations and Government to create arrangements to reflect and support a diversity of Indigenous circumstances. A recent study of the situation of Indigenous peoples in Australia, Canada and the United States of America considers the connection between Indigenous governance and achieving improved socio-economic conditions. The study compared health and housing conditions for Indigenous people in all three countries. It notes that, compared to Indigenous peoples in Canada and the United States, Indigenous Australians have much lower life expectancy, educational levels, home ownership rates, and higher levels of unemployment and overcrowding in housing conditions. The explanations for these disparities identified by the author include that lower rates of socio-economic status experienced by Indigenous Australians contribute to poorer health outcomes; that the direct, bilateral arrangements between the federal government and Indigenous organizations in Northern America has led to greater effectiveness of programs; and that in Northern America there exists a higher level of Indigenous governance, ownership and empowerment, at individual, community, regional and national levels. These factors led the author to acknowledge the necessity of moving from a welfare approach to a rights-based approach: There should be a shift in existing attitudes, policy and programs in Australia away from implied assumptions of dependence, towards greater community control and economic empowerment. This applies not only to the rhetoric and value-adding of existing programs, but also to the intricacies of household life and the encouragement, opportunities and power that permit day-to-day choices. The experience of Indigenous people in North America suggests that such a shift should contribute to the improved health of Indigenous Australians. The insufficient emphasis on developing Indigenous governance structures in Australia can be contrasted with policies to address the historical legacy of colonisation in other countries. The facilitation of Indigenous governance is central to the New Zealand governments Closing the gaps policy, as discussed above. Indigenous governance is also pivotal to the process of renewal currently underway in Canada. As noted in chapter 2, Gathering strength - Canadas aboriginal action plan, builds on the principles of mutual respect, mutual recognition, mutual responsibility and sharing. It expresses a vision of a shared future for aboriginal and non-aboriginal people with the following four inter-related objectives: Renewing the partnerships bringing about meaningful and lasting change in the relationship with aboriginal people; Strengthening aboriginal governance supporting aboriginal people in their efforts to create effective and accountable governments; Developing a new fiscal relationship arriving at financial arrangements with aboriginal governments and organizations which are stable, predictable and accountable and which foster self-reliance; and Supporting strong communities, people and economies focusing on improving health and public safety, investing in people and strengthening aboriginal economic development. The fourth strategy, Supporting Strong Communities, People and Economies, covers issues of effective citizenship participation similar to those referred to in CARs national strategies on overcoming disadvantage and achieving economic independence. But Gathering strength goes further than the CAR strategies and provides precedents for developing Indigenous self-government that could be adapted to the Australian context. In Developing a New Fiscal Relationship, Gathering strength gives extensive treatment to the issues of improving both fiscal relations at the federal level and intergovernmental relations with Indigenous people. The Canadian government commits to: work in a partnership with aboriginal governments and organizations to develop a new fiscal relationship which provides more stable and more predictable financing, is accountable, and which maximizes the internal generation of own-source revenue. At present, financing is to be negotiated and is [the] shared responsibility of governments and aboriginal people, and is delivered through a federal framework for transferring programs and services to First Nations in accordance with the goal of strengthening aboriginal governance. Aboriginal groups are encouraged to raise their own revenues where possible. Multi-year funding arrangements are available, enabling greater flexibility for program design and allocation of funds according to community priorities. In addition to such initiatives as the creation of funding formulas to provide a more stable and predictable flow of revenue to facilitate program and financial planning and the development of transfer arrangements to provide fair, stable and equitable transfers commensurate with responsibilities and circumstances, the Canadian government intends to develop a process for renewing funding agreements with its aboriginal partners that ensures commensurability between programs and services provided in aboriginal and non-aboriginal communities. The Canadian governments related strategy for strengthening aboriginal governance involves working closely with aboriginal peoples, and provincial and territorial governments to ensure that: aboriginal governments and institutions have the authority, accountability mechanisms and legitimacy to retain the confidence and support of their constituents and of other governments and institutions, to govern effectively. To date, 80 tables to negotiate self-government arrangements have been established, and First Nations organizations or governments are delivering more than 80 per cent of the programs funded by the Department of Indian Affairs and Northern Development (DIAND). DIAND outlines the features of a good agreement about self-government as follows: Governance  Governance structures for groups of First Nations which are legitimate and democratically accountable; Jurisdiction  Clear description of First Nations law-making powers, with application of the Charter of Rights and Freedoms and overriding laws of national importance (eg. criminal law); Fiscal arrangements  Shared responsibility for self-government through generation of own-source revenue, including taxation, and more First Nation control over spending decisions with fiscal accountability to members; Programming  Capacity for effective, affordable delivery of programs, harmonised with surrounding communities, and meeting appropriate standards; and Implementation Provides resources for transition to self-government and contains principles for future intergovernmental relations. Strengthening Aboriginal Governance also includes a commitment by the Canadian government to working with aboriginal peoples, other levels of government and other partners to improve on the existing federal policy and negotiation process with particular regard to building governance capacities. It is acknowledged that many aboriginal groups and nations require support in order to assume the full range of responsibilities associated with governance, including legislative, executive, judicial and administrative functions. Part of the Governments commitment is an initiative to explore with aboriginal people the possible establishment of government resource centres to assist aboriginal people with developing models of governance, providing guidance on community consensus building and dispute resolution, and serving as a resource on best practices. They might also play a role in helping identify skills and supporting capacity development in the areas of administrative, financial and fiscal arrangements. Other areas of capacity building include initiatives to involve aboriginal women in self-government processes; to design and implement culturally relevant and equitable community-based justice programs; and to develop professional strategies for management of land, environment and resource management. There are clearly differences between the Australian and Canadian contexts. However, the Canadian approach identifies some key objectives that are of broad relevance in the development of cooperative partnerships between Indigenous peoples and government in Australia. These include: Identifying mechanisms for Indigenous people to exercise control over their own affairs, through program and service delivery; Delineating a clear role for all levels of government, including Indigenous structures; Committing to building the financial and administrative capacity of Indigenous communities with a view to economic independence; Providing incentives to Indigenous organisations and communities to raise own-source revenue; and Recognising and protecting Indigenous rights. Supporting regional governance through agreements and partnerships The Council for Aboriginal Reconciliation proposes, in the national strategy to overcome Indigenous disadvantage, that Commonwealth/State fiscal relations with Indigenous people could be improved by governments employing mechanisms to ensure adequate funding; offering supplementary funding incentives for meeting benchmarks agreed with Indigenous organizations (such as through federal Special Purpose Payments grants); pooling funds across agencies and levels of government; developing a joint agency approach to coordination of services and programs; creating flexible funding arrangements; ensuring geographic distribution of funds; and through prioritising the allocation of funds to community controlled services. These actions are not targeted to developing governance mechanisms, although they could appropriately be adapted towards meeting the goal of developing regional governance processes. For example, in ATSICs consultations on greater regional autonomy, problems were identified about the inflexibility and short-term nature of funding arrangements to Indigenous community organisations. At present, the majority of funds received by ATSIC Regional Councils are tied  that is, already marked for expenditure in national programs such as CDEP, and Housing and Infrastructure. It was suggested that there should be more flexible funding arrangements at the regional level by adopting an outcomes approach where targets and accountability requirements are set locally. This would involve establishing priorities and deploying funds appropriately at the regional and local levels rather than relying on parameters set, often through rigid and generic program guidelines, at the national or state level. The Report on greater regional autonomy states that such an approach would be better able to respond to regional variations in needs and programs, and: If current tied funding arrangements were relaxed and an outcomes-based approach to accountability was fully implemented, Councils would be able to channel funds to deal more effectively with local issues  in particular, housing, youth and domestic violence were issues cited in this context. The availability of funding on only a short-term basis also limits the ability of Regional Councils to tackle issues that are deeply entrenched and systemic in nature. In accordance with recommendations that had been made in the Royal Commission into Aboriginal Deaths in Custody in 1991, block funding and funding over triennial periods were noted by ATSIC as means of improving planning possibilities and outcomes for communities. Related to the need to develop longer-term and more comprehensive funding strategies for targeting Indigenous disadvantage is the development of Indigenous community capacity, in terms of both financial and human resources. As the House of Representatives Standing Committee on Family and Community Affairs states in Health is life: [I]t is not simply enough to say that the community should be allowed to determine the nature of their health services, if they do not have the capacity to do so. Frequently communities rely on outside professional advice and expertise. When these people leave, services deteriorate until such time as another person can be found There needs to be a commitment to developing mechanisms which work within Indigenous autonomy, but which provide the tools to develop such autonomy, without developing a dependence. The Committee identifies the need for an agreed long-term strategy, with appropriate resources, to move to community control; processes that balance accountability requirements against developing a core of commercial and management expertise in funded organizations and communities; and for the development of mechanisms to improve the way funding bodies respond when organizations get into financial difficulties. The Commonwealth Grants Commission similarly emphasises that given the capacity to self-manage is necessary for resources to be targeted most effectively, [r]esources must be invested over time to increase that capacity before full community control will be a workable approach. Another approach to creating more flexible arrangements for addressing disadvantage that has been suggested is the pooling of funds. This involves broad-banding available funds from Commonwealth and state bodies to meet priorities set at the regional level, to result in more efficient and effective use of funds by reducing administrative burdens and better matching initiatives with local conditions. Perceived benefits of this approach include less fragmentation of funds and services to ensure that an adequate level of fundingcan be linked to an improved regional planning process, identification of long-and short-term goal for the community and the development of a partnership with mainstream services in determining how best to meet those needs with the available resources. This approach also seeks to address issues such as the wastage, inefficiencies and inappropriateness of funding available that occur through duplication and lack of coordination of services. Strategies such as the pooling of funds; increasing the flexibility of funding at the regional and local levels; developing longer term, cyclical funding options; capacity building and providing management support could all assist in the development of Indigenous governance structures. They can all be progressed through the negotiation with Indigenous people and communities of agreements and partnerships. There are several different types of agreement-making currently in operation. While few of these have been in operation long enough to assess properly, it is clear that: regional-type arrangements have the potential to move decision-making closer to the grassroots Indigenous communities and to promote further community control of service provision. One form of agreement-making is bilateral agreements between the Commonwealth and a state or territory to pool resources and joint manage projects in a particular service delivery area, such as health, housing and infrastructure. An example of this is the Bilateral Housing Agreements between ATSIC, the Aboriginal Rental Housing Program and Community Housing. Agreements are currently in place in New South Wales, Western Australia, South Australia and the Northern Territory, and also between the Queensland Government and the Torres Strait Regional Authority. Through these agreements, it is possible to achieve greater control of the Indigenous housing sector by Indigenous people and [to] improve the co-ordination of streams of resources for housing. These housing agreements have been largely successful, although the Commonwealth Grants Commission warns that it is also necessary to ensure that Indigenous people continue to have adequate access to mainstream public housing and that their needs are not diverted to the Indigenous specific programs. As a matter of equity it is also important to ensure that such agreements are not used by States to buck-pass their responsibilities for service delivery by using Commonwealth monies to top up State funds or to require Commonwealth monies to be offered as an incentive to get States to the bargaining table. A further example is the Aboriginal Coordinated Care Trials in the Northern Territory. These have been directed at developing a funding pool for health services to be used for any client need anddirected irrespective of program or institutional boundaries. These trials recognise difficulties many Indigenous communities face in accessing mainstream health services, with contributions to the pooling fund made on the basis of an estimate of the amount that would otherwise have been made available to the community through the Medicare Benefits Schedule (MBS), Pharmaceutical Benefits Schedule (PBS), State health services and Home and Community Care (HACC) services. The community is involved on an intensive basis in the consultations prior to the trial and decision-making on health services delivery during the trial. While it is too early to draw any comprehensive conclusions about the trials, Health is life suggests that a similar approach to funding primary health care services for Indigenous Australians should be introduced into all regions to support the current regional planning processes. Recommendation 8 proposes that: In conjunction with the Indigenous community over the next two years, the Commonwealth develop a revised approach to funding primary health care services for Indigenous Australians, based on: the use of funds pooling at a regional level, determined by reference to a nominal per person Medicare Benefits Sschedule[sic](MBS) /Pharmaceutical Benefits Scheme(PBS) contribution, which takes into account not only the national average costs of MBS/PBS usage by non-Indigenous Australians, but should also be weighted for the higher costs of servicing specific communities and the poorer health status of indigenous Australians; the combination of these funds with an amount from the State or Territory, representing the cost of hospitals and other health services; and the community to be supported in taking responsibility for these funds and determining the use of the funds pool in delivering services to the community which best meet the health needs of each community. The Commonwealth Grants Commission also suggests the development of state level regional structures to coordinate funding and service delivery. It suggests that such regional arrangements: could emerge as a means of linking State level decision making with local community control over service delivery matters. In some circumstances regional decision making might even develop as an alternative to State level processes. The Commission suggests the consideration of regional arrangements in which Commonwealth Indigenous specific funds would be 'allocated to State level Indigenous-controlled bodies that would include representatives of Commonwealth and state governments and, where relevant, local government'. In addition, State funds could be 'combined with the Commonwealth funds and distributed through this mechanism'. Collaborative decision-making could occur at the state level between government and Indigenous people, as well as the oversighting of additional needs to be met at the regional level. The Commission nominates the Aboriginal Housing Authority in New South Wales and the Indigenous Housing Authority in the Northern Territory 'as approximate working examples of such arrangements' for the function of housing. Defining features of these arrangements would include: a commitment in line with the 1992 National Commitment to self-management by Indigenous people in the planning, decision-making, management and evaluation of service provision; long-term collaboration between the Commonwealth and State Governments and Indigenous people to build the capacity of communities for such self-management; co-ordination of related streams of funds for each key function, possibly including pooling of relevant funds from all sources, and distribution according to regional needs; and data gathering and reporting mechanisms which enable informed decisions to be made and provide public accountability to outcomes. One of the perceived advantages of using a state-based approach is that it 'could provide a balance between the States' responsibilities and the Indigenous peoples' aspirations to control their own affairs [s]uch regional level collaborative decision-making arrangements might be established by building on the present ATSIC structure. Despite these proposed advantages, the development of state level regional structures should be considered with great caution. The distribution of state and territory funds for Indigenous service delivery is the area where there exists the least transparency and greatest cost shifting. Accordingly it is an area that requires great attention before introducing further administrative structures. The Commissions proposal is also too ambiguous and unclear as to how these new institutions might fit with ATSICs regional council and state advisory committee structures. The issue of building on the ATSIC structure to increase Indigenous peoples' control over decision-making at the regional level was the focus of ATSIC's recent Report on greater regional autonomy. This report followed from the 1997/98 Section 26 review of the operation of the Aboriginal and Torres Strait Islander Commission Act 1989, in which the need to strengthen ATSIC's regional focus and pursue greater autonomy emerged as a key area of interest. The Report on greater regional autonomy found that there was strong support to increase the power of Regional Councils, particularly through the capacity to make agreements, and some support, particularly in northern and remote areas, for the creation of independent governance structures such as regional authorities, of which the Torres Strait Islander Authority (TSRA) is an example. The Report on greater regional autonomy considers the strategic use of regional agreements, particularly in the context of regional planning. In some areas, Indigenous people have given consideration to the development of a coalition of communities and organisations  such as 'regional advisory groups', 'community working parties', and 'regional forums' or 'interfaces'  as alternatives or precursors to the establishment of a governance structure. These arrangements can play an important role in representing the needs and aspirations of communities to government and non-government agencies. The NSW Murdi Paaki Regional Council Plan and the Cape York Peninsula Partnerships Plan are two models of this type that have been put forward. Murdi Paaki Regional Council is currently developing a model involving 'a fairly sophisticated regional plan underpinned with regional agreements to target better outcomes for service delivery'. Through this model, the Regional Council aims to increase its profile and decision-making power at regional and state levels by providing an interface with government and community sectors. Central to the model is the establishment of community working parties to facilitate consultation with and participation by Indigenous communities across the region. Consultation with community working parties is to provide the major means of targeting local needs and priorities, avoiding problems of under-representation of some community groups on Council. The consent of the community working parties is also necessary for the development and implementation of any further approaches to autonomy. The model seeks to build on the existing Murdi Paaki Aboriginal Housing and Infrastructure Regional Agreement by developing a framework for coordinating programs, services and funding for Indigenous communities across the region. Agreements would be set in place with the relevant funding bodies regarding the objectives and outcomes of various programs, and funding allocations would be negotiated with, and managed by, the Regional Council. It is envisaged that the Council would ultimately become a purchaser of services, in effect directing funds and services to target needs and priorities identified by the community working parties. Murdi Paaki Regional Council perceives a broad spectrum of approaches to the issue of increasing autonomy with enhancement of the Council's regional plan through a series of agreements at one end and the establishment of a regional government at the other. The Council's perspective is 'outcome'-based, meaning that they may not progress the model to a full-scale authority if they can achieve the required results via comprehensive regional planning. Problems attaining the position the Council desires as a purchaser of services could be posed if governments and government agencies do not make adequate changes to current funding arrangements. For example, if ties on ATSIC's funding to Councils remain unchanged and only bodies such as regional authorities are able to receive direct funding from Commonwealth and state agencies. The Cape York Partnerships Plan was developed by the Aboriginal leaders and community members of Cape York Peninsula and regional organizations, and suggests the effective devolution of power to local Indigenous peoples at a community level. Noel Pearsons paper, Our right to take responsibility, provides the impetus for the plan and seeks to address the power differentials between government and Indigenous communities. Pearson posits a four-point plan for developing a real economy for Aboriginal society on Cape York Peninsula in place of the passive welfare paradigm that has plagued Indigenous governance since the 1970s. The four components of this plan are: access to the enjoyment of traditional subsistence resources; changing the nature of welfare programs to reciprocity programs; developing community economies; and engaging in the real market economy. Pearsons four-point plan is informed by the concept of mutual obligations, which has been promoted in recent debates on welfare policy reform as a potential catalyst for community capacity building through capitalising on partnerships between government, business, communities and individuals. Pearson has played an influential role in translating this concept into an Indigenous context, identifying precedents for mutual obligations in traditional Indigenous social structures in contradistinction to dependency on a right-based welfare support system. Many of the initiatives proposed under the rubric of mutual obligations by Third Way and other welfare reform commentators focus on the individuals relationship to government as the context for change, such as the recent McClure Reports key proposal of a model of individualised service delivery. The McClure Report is accordingly limited in its approach to Indigenous-specific issues, especially given the systemic nature of Indigenous disadvantage, its basis in historical exclusion, marginalisation, and now welfare dependency, and diverse circumstances of Indigenous people. While the Report recognises the severe social and economic disadvantage experienced by Indigenous people and the need to develop more culturally and locationally appropriate models for Indigenous people, these issues do not receive any sustained analysis (apart from an isolated case study on the Gwydir Valley Indigenous Employment Strategy as an example of successful collaborative partnerships). The specific difficulties faced by Indigenous people in developing effective social partnerships require further attention, particularly in reference to areas where business is non-existent (especially remote); government is embedded in community organizations; government is perceived as reneging on meeting legitimate needs-based support; individuals are embedded in networks not contingent on economic participation; communities are divided for a range of reasons. Pearsons four-point plan bases the development of effective social partnerships in the creation of a regional governance structure (specifically in the context of the Cape York Peninsula) that re-engages Indigenous social structures and economic participation with the real economy. Central to the plan is the notion of a partnership interface between Aboriginal communities and organizations in Cape York Peninsula and Commonwealth and state Governments, and ATSIC. Agreements would be made between Government agencies and Indigenous representatives in regard to provision of resources (that is, all government inputs, such as funding, services and programs). It is envisaged that the decision-making process would be characterised by a greater degree of autonomy and flexibility for the community and local groups, and that the partnership interface would be supported by state and Commonwealth legislation, particularly in its holistic and de-welfarised aspects. While this interface is not to be an independent bureaucracy, but a meeting place, a forum for planning, consultation, negotiation and decision-making, there has been some discussion by organizations on the Cape of the ultimate extension of this model into a regional authority. Some reform of current community governance structures is also advocated. The Queensland government responded to the Partnerships Plan in July 1999, by making a commitment to developing partnerships with Indigenous communities in Cape York as an alternative to current service delivery arrangements. The Queensland Cabinet endorsed such principles as improved partnership arrangements between the State Government, business leaders and Cape York communities to better address the disadvantage experienced by Cape York Indigenous people; integration and enhancement of existing planning processes between State Government, business leaders and Cape York Aboriginal communities to identify and implement trials of new operating practices; and encouragement of the Commonwealth Government to participate in the process at an appropriate stage. In October 1999, 400 Aboriginal elders and community leaders expressed support for the partnerships idea and passed a motion for continuing dialogue on the issue. A facilitation process was established at government level in December 1999, with the establishment of Director Generals Steering Group and a Cairns Based Implementation Group, both of which comprise representatives from government agencies and Indigenous organizations. Community consultations on the partnerships plan have been in train during 2000. Another potential approach is the development of regional authorities by ATSIC. A regional authority would have greater powers than an ATSIC Regional Council, such as the authority to negotiate and reach agreements with Government and other funders and service providers, and the ability to undertake functions normally performed by other services providers. Currently, the Torres Strait Regional Authority is the only regional authority in operation in Australia. It was established as an independent statutory authority in 1994 in response to the findings of the 1993 review of the operation of the ATSIC Act. It includes such features as the capacity to liase directly with both the Queensland and Commonwealth Governments in developing bilateral agreements on infrastructure, health, housing and education, and to negotiate its budget directly with the Minister. The TSRA receives block funding directly from both governments, the goal being to devolve maximum authority to the Regional Assembly to determine the priorities for the allocation of funds consistent with appropriate Commonwealth or Queensland accountability requirements. The Report on greater regional autonomy notes that ATSIC regional councils received the concept of an authority with cautious or qualified support, and that greater support was recorded from 'discrete and remote communities ... [rather] than from those in settled urban and rural centres where communities have often been dispersed'. It was also 'generally conceded that authorities were more appropriate to those in remote and northern regions, and that ... it was easier to form a regional authority over remote areas where Indigenous peoples formed a majority.' An additional consideration here is the better access experienced by those living in settled areas to mainstream services, in comparison to those in remote areas who are often reliant on a patchwork or services. Regional authorities for those in remote and northern areas in particular suggest a means of 'finding the appropriate type of social and infrastructure program to suit people whose distinct culture alienates them from the demands of some institutions in which they are governed.' A further dimension of authorities that has some appeal is their capacity to provide a vehicle for Indigenous aspirations such as those expressed by the Aboriginal Nations of Central Australia in the Kalkaringi Statement, that is, the rights of self-determination and self-government, including recognition of the role of Indigenous governance structures and the direct Commonwealth funding of Indigenous communities and organisations, and recognition of customary law. At present, the Kimberley Executive, a reference group comprising the ATSIC Zone Commissioner and Regional Council Chairs plus major Indigenous organisations across the Kimberley, and Miwatj Regional Council in East Arnhem land are participating in ATSIC funded projects for modelling regional authorities. Both are still in initial phases of consultation with Indigenous communities in the proposed regions and have acknowledged that the establishment of authorities, or other structures and approaches for progressing autonomy, will be a lengthy process. ATSIC has emphasised that there must be Indigenous ownership of the development of any forms of regional governance or their goal of ensuring Indigenous control and participation in decision-making will be seriously compromised. In part, this is a reaction to earlier suggestions following the 1997/98 Section 26 review of the Aboriginal and Torres Strait Islander Commission Act 1989 that Regional Councils be converted into a series of independent regional authorities, which would amount to a somewhat arbitrary and top-down application of autonomy that does not take the needs and circumstances of specific regions into account. Concerns have also been expressed about the potential for 'top-down', quick-fix solutions for rationalisation of services to override Indigenous aspirations for self-government. A recent example of this is the Northern Territorys Department of Local Governments proposal to improve co-ordination of service delivery to councils and outstations through reduction in the number of Municipal, Community Government and Association Councils. While the need for more effective services to communities in the Northern Territory is recognized, concerns have been raised because of the limited amount of consultation planned with the communities regarding these reforms and the stated intention of the Northern Territory Government to initiate legislation for the reforms in any case without the necessary compliance of the Councils. Implementing greater regional autonomy and Indigenous governance Greater regional autonomy and improved governance mechanisms do not necessarily mean the establishment of new structures and authorities. There is also no one size fits all model that will suit the circumstances of all Indigenous people and communities. It is essential that a range of strategies and mechanisms be considered to develop and facilitate improved governance and autonomy. Regional governance mechanisms also do not obviate the need for a strong national Indigenous voice such as ATSIC. Indeed, in consultations for the Report on greater regional autonomy it was noted that there was wide support for the retention of a representative and democratically-elected body at the national level to address government and to coordinate Indigenous advocacy. The tendency for government to over-regulate Indigenous people, by imposing burdensome and inflexible structural arrangements for organization, must also be borne in mind. The Aboriginal Councils and Associations Act 1976 (Cth), for example, has been described as a classic piece of over-regulation and there is concern that the prescribed bodies corporate provisions of the Native Title Act 1993 (Cth) are too elaborate and may create a situation where a really free and spontaneous people become people governed by legal regulation. Indigenous people should design regional governance and autonomy mechanisms that are suitable to their needs and aspirations with government providing the necessary support for such structures. All levels of government should acknowledge that facilitating Indigenous peoples efforts to achieve such autonomy and improved Indigenous governance is vital to achieving improvements in Indigenous disadvantage and the recognition of Aboriginal and Torres Strait Islander rights. Government efforts should be focused on negotiating governance arrangements with Indigenous peoples, including through the provision of appropriate support (including technical support to build capacity, long term funding arrangements and legislative backing). This is consistent with the key finding of ATSICs regional autonomy report, which recommends that there should be prioritisation of agreement-making to inform partnerships with Government and other agencies as a means of progressing autonomy from the bottom up in preference to further governance structures at this point in time. It is also consistent with the recommendations of the Social Justice Package proposals made by CAR, HREOC and ATSIC in 1995. ATSIC proposed that the Commonwealth accept the concept of regional agreements as a framework for establishing a range of formal relations and settling of outstanding social justice issues on a regional basis. Recognition, rights and reform outlines the following role for the Commonwealth government in setting the environment and facilitating arrangements for regional agreements: Underpinning the financial costs of negotiations; Leverage/incentives in respect of other negotiating parties, e.g. funding leverage on state or local government; Further empowerment of indigenous negotiating interests, e.g. control of block funding for service provision; Willingness to legislate where necessary to provide an effective basis for enforcement of agreements; Consideration of constitutional reform to make provision for and give protection to regional agreements (e.g. similar to s.105A of the Constitution); and General facilitation and support. Governments should agree to negotiate mechanisms to facilitate greater regional autonomy through the design and delivery of programs and services. Negotiations should include matters such as developing flexible funding arrangements with Indigenous organizations, including transfer of funding, block funding and arrangements for pooling funds across governments and on a regional basis; Indigenous participation in developing service delivery priorities, setting benchmarks and targets on a regional basis, and in monitoring and evaluating progress. Recognising and protecting Indigenous rights in a federal system Failures to observe or to protect human rights cannot be justified by reference to Australias internal jurisdictional arrangements. We need to develop ways to overcome the structural difficulties in protecting human rights that arise from Australias federal system of government. Actions are required to guarantee the adequate protection of Indigenous rights across all levels of government, and especially in the following key areas: Improving government accountability for human rights; and Negotiating with Indigenous peoples over unfinished business. Improving government accountability for human rights By becoming a party to several human rights treaties, successive Australian governments have confirmed to all Australians, others within our shores (whether here legally or otherwise), and to the international community that we intend to treat all people in a manner that respects their human dignity and accords with a series of minimum standards. But our system of government operates in a way that a commitment of this kind does not, of itself, guarantee compliance with these obligations. There are two main reasons for this first, international law must be incorporated into our domestic legal system for it to take effect, and second, the responsibility for particular matters is often split between different layers of government. The recent scrutiny of Australias compliance with human rights obligations has shown that we need to consider ways to improve accountability for human rights at all levels of government. The examples of native title and mandatory sentencing laws, discussed in chapter 3, reveal the problems that exist in current protection of rights in Australian law. Mandatory sentencing reveals that while the Commonwealth has the constitutional power to override state and territory laws, it is reluctant to use this power. This reluctance is based on the view that state and territory governments are democratically elected and ought to be left to make laws as they see fit. The situation concerning the native title amendments is different: the Commonwealth government actively provided states and territories with the authority to introduce racially discriminatory laws, thereby removing human rights protection that would otherwise exist. These examples suggest that adequate protection of human rights in Australia requires actions that will bind the states and territories and the Commonwealth. It is easier to introduce mechanisms that bind the states and territories. An ordinary enactment of the federal Parliament such as a legislated Bill of Rights  could incorporate Australias obligations under international human rights treaties and accordingly provide protection to human rights standards. A legislated Bill of Rights could, for example, include protections such as guarantees against arbitrary detention; requirements for proportionality in sentencing offenders and the right to a fair trial; guarantees of equality before the law and non-discrimination; prohibitions of torture or cruel, inhuman or degrading treatment; and so forth. Such protections would clearly remove the ability of the states or territories to introduce laws such as mandatory sentencing. In conjunction with section 109 of the Commonwealth Constitution, a legislated Bill of Rights would operate to invalidate state or territory laws that conflict with these minimum standards of observance and protection. Such an approach would confirm that state and territory governments have an important, indeed primary, role in setting laws. They would remain free to pass whatever laws they chose, subject to the constraint that those laws met minimum core standards. This is consistent with the purpose of a federation in which no one level of government has unfettered power to make any laws that it chooses. Other constraints are already placed on the law making capacity of states and territories (and the Commonwealth) across a range of areas. But the principle of parliamentary sovereignty means that such an approach would still not prevent the Commonwealth from introducing laws, such as the native title amendments, which either breach human rights or which allow the states and territories to breach human rights. The only way that the Commonwealth can be bound to protect rights is through constitutional mechanisms. One option is to provide constitutional protection to a Bill of Rights. While this is the preferred option, it would take a considerable amount of time to achieve the necessary support to pass at a referendum. A second option, which is more immediately achievable and provides adequate protection, is to amend the Constitution to include a guarantee of equality and non-discrimination. Such a guarantee would reflect the fact that the principles of non-discrimination and equality before the law have the status of jus cogens, or put differently, that they are standards from which no deviation is permitted at international law. It would place the commitment of government to these principles at the highest possible level, and guarantee that such commitment could never be put aside for more expedient political purposes. A third alternative is to introduce a legislated Bill of Rights so that the public are able to understand more fully, through its operation, the purpose of a Bill of Rights and its benefits. People could then become more comfortable with the concept of a Bill of Rights, thereby building support in the long term for a Referendum to constitutionally enshrine it. A legislated Bill of Rights would also provide moral authority for successive federal governments to demonstrate a commitment to human rights, by passing laws that are consistent with the provisions of the Bill of Rights. It would also more closely link Australias international obligations and domestic practice. The governments response to the dialogue with the CERD also demonstrates the need for improvements to the international accountability of the Australian government. The United Nations Development Programme (UNDP) has developed a human rights international accountability index. The UNDP note that members of the United Nations are held accountable for human rights through three routes: Acceptance of international human rights treaties, through accession or ratification; Cooperation through submission of periodic reports to committees established under these treaties and through cooperation with requests and visits by special rapporteurs of the United Nations; and Responsiveness to the views and conclusions of various United Nations treaty committees. A countrys level of international accountability can be measured through each of these routes as follows: Acceptance: Has the country ratified or acceded to all human rights treaties, and all associated individual communication mechanisms? Cooperation: Has the country submitted periodic reports in good time; provided requested information to special rapporteurs and thematic missions; and cooperated with monitoring missions and other visits? Responsiveness: Has the country responded adequately to the recommendations and final views of treaty committees in relation to periodic reports and individual communications, and the recommendations of special rapporteurs and thematic missions? When considered against this index, Australias international accountability can be seen to be less than perfect. Following the governments decision not to ratify the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) earlier this year, Australia does not have universal accession or ratification to individual communication mechanisms. The significance of this cannot be underestimated. Ratification of individual communication mechanisms demonstrates a countrys willingness to be fully accountable and open to international scrutiny. It reflects a confidence that a country has a good human rights record, by demonstrating a preparedness to be scrutinised. Australias periodic reports under all six human rights treaties have also been submitted significantly late. Much of this backlog has now been addressed, following the consideration of Australias periodic reports by four committees over the past year. Unfortunately though, it is a trend that has continued with the latest periodic report under ICERD that was due in October 2000. At the time of finalising this report, the periodic report was already late and the government had not commenced any consultations on the preparation of the report. Similarly, the governments response to the concluding observations of the various treaty committees has not been adequate. This is demonstrated in chapter 3 of this report, as well as by the fact that the Committee on the Rights of the Child recommended in 1997 that mandatory sentencing laws be repealed some four years before similar recommendations were made by the CERD and the Human Rights Committee. These issues can be dealt with quite easily. The Commonwealth government should ratify the Optional Protocol to CEDAW; and increase the priority with which it handles the periodic reporting obligation under all human rights treaties. It should also ensure, consistent with its obligations under the treaties, wide dissemination of the views of the treaty committees. It could also provide for parliamentary scrutiny of the recommendations and observations of human rights treaty committees. Negotiating with Indigenous peoples over unfinished business These government commitments help build a framework for the protection of rights into the future. They do not address historical injustices or inequalities in society today. Accordingly, they must be accompanied by efforts to overcome Indigenous disadvantage, strengthen Indigenous governance and provide recognition of Indigenous rights. There is only one way of addressing the historical violation of Indigenous peoples rights by negotiating with Indigenous peoples. I have already discussed the importance of agreement-making with Indigenous peoples with respect to service delivery and funding arrangements. Alongside these processes should be the negotiation of a framework agreement (or treaty) at the national level, and negotiation of agreements at the regional and local levels recognising Indigenous rights and dealing with unfinished business. The federal government should commit to a process of agreement-making with Indigenous peoples to address these issues. Such agreement-making should be supported through a two-stage process. The first stage is the introduction of framework agreements legislation, which recognizes the need to negotiate with Indigenous peoples about a range of matters and sets out protocols and a negotiation framework within which negotiations will take place. It should provide legislative force to agreements with Indigenous organizations on a local, regional and national level. The necessity to negotiate with Indigenous people has been identified for some time. The most extensive and notable expression of this in recent years has been the social justice package proposals put to Government in 1995 by ATSIC, CAR and the Social Justice Commissioner. Following extensive consultation with Indigenous organizations and people, ATSIC recommended the negotiation of regional agreements with Indigenous peoples and the adoption of a series of social justice principles to form the basis of relations between Government and Indigenous peoples at the local community and regional levels. These principles emphasised the importance of entering into negotiations with Indigenous peoples and recognising their distinct cultural characteristics: Principles for Indigenous social justice and the development of relations between the Commonwealth government and Aboriginal and Torres Strait Islander Peoples 1. The relationship between the Commonwealth Government and the Aboriginal and Torres Strait Islander peoples of Australia is founded in full acceptance and recognition of the fundamental rights of Aboriginal and Torres Strait Islander peoples to: recognition of indigenous peoples as the original owners of this land, and of the particular rights that are associated with that status; the enjoyment of, and protection for, the unique, rich and diverse indigenous cultures; self-determination to decide within the broad context of Australian society the priorities and the directions of their own lives, and to freely determine their own affairs; social justice and full equality of treatment, free from racism; and exercise and enjoy the full benefits and protection of international covenants. 2. In the formulation of policies and delivery of programs that affect Aboriginal and Torres Strait Islander peoples, the Commonwealth, pursuant to powers in relation to indigenous peoples overwhelmingly granted it by the people of Australia in the 1967 Referendum: shall ensure that policies, the delivery of programs and services, and the effective improvement of service quality is achieved through processes which are negotiated with and which protect the rights of indigenous peoples; recognises the diversity of the Aboriginal and Torres Strait Islander peoples; accepts the importance of empowerment for decision making and planning at the community and regional levels, and the need for Government at all levels to cooperate and negotiate with Aboriginal and Torres Strait Islander communities and organisations; requires that indigenous peoples have full access to, and equitable outcomes from participation in, all relevant mainstream programs; shall ensure processes of accountability to Aboriginal and Torres Strait Islander peoples and especially shall ensure their involvement in review and evaluation processes; requires that collaboration and coordination between Government agencies providing services to Aboriginal and Torres Strait Islander people shall be significantly improved; shall establish a genuine and productive partnership with indigenous peoples through representative bodies at local, regional, State and national levels; shall provide quantifiable data and other forms of information on the objectives and outcomes achieved, for all programs which impact on Aboriginal and Torres Strait Islander well-being; and shall ensure that the interests of indigenous peoples transcend existing conventions about the division and compartmentalisation of the functions of the various spheres of Government ATSIC recommended that these principles be enshrined in legislation. There is much similarity between ATSICs recommendations in 1995 and those of the Council for Aboriginal Reconciliation in its Final Report in 2000. The Council recommends the adoption of framework legislation that includes the negotiation by Indigenous peoples and Government of protocols to underpin negotiations on matters of unfinished business. The social justice principles form the appropriate starting point for negotiating these protocols. The Commonwealth government should legislate framework agreement legislation, providing for the negotiation of agreements at the national, regional and local level, and including provision for protocols to underpin negotiation. Negotiations based on the social justice principles should commence immediately, and the federal government should take the lead in seeking commitments to the protocols from all levels of government through the processes of COAG. Having introduced such framework legislation, and provided appropriate resources for agreement processes to be entered into, the second stage of the process is a commitment to work towards amending the Commonwealth Constitution along similar lines to the current section 105A to provide the Commonwealth with the power to make agreements with Indigenous peoples. Section 105A of the Constitution provides that the Commonwealth may make agreements with the States with respect to the public debts of the States. It further provides that the federal Parliament has power to legislate any matter contained in the agreement; that such agreements can be varied or rescinded by the parties; and that agreements, and any variations, are to bind all levels of government. This would be a long-term approach and has the benefit of protecting documents of consensus (therefore reflecting both the aspirations of Indigenous people, and being acceptable to the broader community). By approaching such reform in two stages, the mainstream society is able to come to a deeper appreciation of the need for such agreements and to have a more detailed understanding of the issues involved. Conclusion and recommendations In this chapter I have drawn together many disparate and complicated issues. The complexity is compounded by the fact that the many issues facing Indigenous people and governments are inter-related and deeply entrenched. Underlying the discussion throughout this chapter, however, is the simple message that Indigenous peoples must be able to participate in Australian society requires that their human rights be fully recognised. This requires that all efforts be made to overcome the disadvantage faced by Indigenous peoples; to facilitate Indigenous participation in such efforts and to promote Indigenous governance; to put in place stronger mechanisms to prevent future breaches of the human rights of Indigenous Australians; and to ensure increased accountability of governments for policy making, from a human rights perspective. Under section 46C(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 I am able to make recommendations as to actions that should be taken by governments to improve the recognition of the rights of Aborigines and Torres Strait Islanders. Accordingly, I have chosen to make the following recommendations, which reflect the discussion in this chapter. Given that they address issues that are of national significance I have targeted all the recommendations towards the Commonwealth government. Recommendations National commitments to overcome Aboriginal and Torres Strait Islander disadvantage 1. That the federal government adopt, on a whole of government basis, long-term policies that identify overcoming Aboriginal and Torres Strait Islander disadvantage as a national priority. That the government take steps to target the progressive reduction of such disadvantage (from both a deprivation and inequality perspective) and negotiate with the opposition parties in the Parliament for cross-party support for a long-term strategy and commitment. 2. That the federal government, through the processes of the Council of Australian Governments (COAG), seek the agreement of the states, territories and local government to identify as a national priority measures to overcome Aboriginal and Torres Strait Islander disadvantage. That such agreement be formalised by COAG renewing the 1992 COAG National commitment to improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders, after negotiation with ATSIC. 3. That the federal government, through the processes of COAG, seek the agreement of the states, territories and local government, and ATSIC, service delivery agencies and Indigenous organizations on benchmarks for Indigenous service delivery at the national, regional and local levels. 4. That the Commonwealth, states and territory governments report by 30 September 2001 to COAG and publicly through Reconciliation Australia on their responses to: The recommendations of this report; The recommendations of the Council for Aboriginal Reconciliations final report to Parliament; and The actions identified in the Council for Aboriginal Reconciliations four national strategies for reconciliation. 5. That the federal government update Australias National Action Plan on Human Rights so that it commits to addressing Aboriginal and Torres Strait Islander disadvantage (from both a deprivation and inequality perspective). To the maximum extent possible, the National Action Plan on Human Rights should identify benchmarks and targets for overcoming Aboriginal and Torres Strait Islander disadvantage, and monitoring and evaluative mechanisms. Improved data collection 6. The federal government request the Commonwealth Grants Commission, Australian Bureau of Statistics (ABS) and ATSIC to provide advice within three months of the finalisation of the Commonwealth Grants Commissions current inquiry into Indigenous funding on: Mechanisms for improving the sufficiency and quality of national data necessary to identifying Indigenous needs, on an absolute basis. This advice should consider the ABS strategy for improved data collection as outlined in Directions in Australias Aboriginal and Torres Strait Islander statistics (March 2000); The feasibility of the ABS repeating the National Aboriginal and Torres Strait Islander Survey of 1994 on a regular basis, or undertaking the Indigenous General Social Survey on a triennial basis; Proposals for increased coordination and consistency of data collection at the national, state and territory level; and Cost implications of improved data collection. 7. That the Australian Bureau of Statistics address deficiencies identified in national data collection processes relating to Aborigines and Torres Strait Islanders. 8. That the federal government coordinate the negotiation of framework agreements under the COAG National Commitment to improve coordination and standardisation of data collection between the federal, state and territory governments, ATSIC, Indigenous organisations and service delivery agencies. Monitoring and evaluation mechanisms 9. That the federal government amend the Commonwealth Grants Commission Act 1973 (Cth) to require: The Commonwealth Grants Commission to conduct a biennial inquiry into Indigenous funding (from an absolute needs perspective); and A joint committee of the federal Parliament to examine the Commissions report and, following consultation with Indigenous organizations, recommend any actions required to improve Commonwealth service delivery to Indigenous people. Adequate funding should be provided to the Commission in order to undertake the inquiry. The scope of the CGC inquiry should include mechanisms for the Commonwealth to encourage states and territories to report on and meet benchmarks; and proposals for the direct funding of Indigenous organizations (in accordance with the fiscal equalisation principle). 10. That the Commonwealth, state and territory governments agree to report to their respective parliaments and COAG on a biennial basis as to progress in addressing Aboriginal and Torres Strait Islander disadvantage, and the measures taken to meet the commitments made in the COAG National Commitment. That governments report to the biennial Reconciliation Conventions proposed by the Council for Aboriginal Reconciliation in the Reconciliation Bill 2000. Negotiating with Indigenous peoples 11. That the federal government introduce framework legislation providing legislative support for the negotiation of agreements with Indigenous peoples at the national, regional and local levels. The Council for Aboriginal Reconciliations proposed Reconciliation Bill 2000 is an appropriate legislative model. 12. That the federal government and COAG adopt the Principles for Indigenous social justice and the development of relations between the Commonwealth government and Aboriginal and Torres Strait Islander Peoples as proposed by ATSIC in Recognition, rights and reform, as forming the framework for negotiations about service delivery arrangements, regional governance and unfinished business. Protecting human rights 13. That the federal Parliament establish a joint parliamentary committee inquiry into an appropriate model for a Bill of Rights. The inquirys terms of reference should include International models for a Bill of Rights; Appropriate ways to incorporate Australias human rights obligations under all six United Nations human rights treaties to which we are a party; Any specific provisions required in a Bill of Rights to recognise and protect the unique status of Indigenous Australians; Processes for seeking constitutional endorsement of the Bill of Rights at a later stage; and The feasibility of seeking, within a four-year period, the entrenchment of a guarantee of equality before the law and non-discrimination in the Constitution. 14. That the Commonwealth government ensure universal ratification of individual communication processes under international human rights treaties by ratifying the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women.  Chapter 5: Reparations The Senate Legal and Constitutional References Committee conducted an inquiry this year into the federal governments implementation of recommendations made by the Human Rights and Equal Opportunity Commission in Bringing them home. The inquiry considered proposals for the establishment of an alternative dispute resolution tribunal for members of the stolen generations; and considered the consistency of the governments response to the recommendations with the reconciliation process and the aspirations and needs of members of the stolen generations. This chapter is an edited version of the submission I made to the inquiry and answers given to questions on notice. It focuses on the meaning of reparations in international law, and examples of the responses of other governments to gross violations of human rights. Reparations and forcible removal policies As a society we cannot simply accept without question and comment the choices made in the past, and leave it to those who suffered to get on with their lives as best they can. We must confront the consequences of those choices and do what is necessary to rectify the wrongs. Two things need to be said at the outset about reparation. First, reparation the process of making amends for harm and injustice suffered is fundamental to reconciliation. There cannot be reconciliation without reparation. The historical disadvantage, suffering and hostility that reconciliation attempts to overcome will only occur when there are genuine and concrete measures to put right the wrongs. Secondly, reparation for members of the stolen generation needs to be placed in the context of the key finding of Bringing them home, which found that policies of forcible removal, and their long term consequences, constituted gross violations of human rights. The National Inquiry had been asked by its terms of reference to consider the question of compensation for persons or communities affected by separation. The report of the Inquiry concluded that the nature of the harm suffered by members of the stolen generation could be better understood and addressed if compensation was interpreted more broadly as reparation. It recommended that reparation should consist of: Acknowledgement and apology; Guarantees against repetition; Measures of restitution; Measures of rehabilitation; and Monetary compensation. In recommending this range of remedial responses, the National Inquiry recognised that, by itself, financial compensation does not heal the individual and collective harm caused by human rights abuses. The National Inquiry supported the view, embodied in international treaties and customary law, that measures aimed at rehabilitation and atonement are appropriate and necessary responses to human rights violations. In particular, the National Inquiry endorsed the principles developed by UN Special Rapporteur van Boven in his Basic Principles and Guidelines on the Right to Reparations for Gross Violations of Human Rights (the van Boven principles). Reparation in international law: the van Boven principles and international treaties The van Boven principles are the result of a study commissioned in 1989 by the United Nations Sub Commission on the Prevention of Discrimination and Protection of Minorities, a sub group of the UN Commission on Human Rights. Professor van Boven submitted his report in 1993, with a revised version completed in 1996. The Commission described the principles as a useful basis for giving priority attention to the question of restitution, compensation and rehabilitation and has sought further development and refinement of them. In 1998 the Commission asked M Cherif Bassiouni to provide a further revision of the principles, with a view to their adoption by the UN General Assembly. In his first report, Cherif Bassiouni commended the work of van Boven, as well as of Louis Joinet, Special Rapporteur of the Sub-Commission on the question of the impunity of perpetrators of violations of human rights. Joinets set of principles on the problem of impunity also include principles relating to rights to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms. Cherif Bassiouni intends to build upon the foundation provided by van Boven and Joinet, noting that in recent years, references to the terms restitution, compensation, rehabilitation, reparations and redress relative to human rights violations have appeared in a large number of UN reports, in the Statute of the International Criminal Court and in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. His primary tasks are to harmonise treatment, resolve a certain lack of consistency in terminology, address the coverage of human rights, humanitarian law and responsibility for redress, and to work towards universally acceptable standards through broad consultative process. The continuing consideration of the van Boven principles within the UN system in no way diminishes their significance. These principles are a synthesis of well-recognised international practice, reflecting existing standards rather than creating new ones. The right to redress for human rights violations is recognised in the provisions of numerous human rights instruments. These include: Universal Declaration of Human Rights (article 8); International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (article 6); International Covenant on Civil and Political Rights (articles 2(3), and 9(5)); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (article 14(1)); Convention on the Rights of the Child (article 39); European Convention for the Protection of Human Rights and Fundamental Freedoms (articles 50, 5(5)); American Convention on Human Rights (articles 10, 63(1) 68); and African Charter on Human and Peoples Rights (article 21(2)). In summary, the provisions of international human rights treaties support the existence of a threefold obligation on parties to human rights treaties: to conduct an independent, speedy and impartial investigation as soon as there is a formal complaint of a violation of human rights, such as torture, homicide or forced disappearance; to prosecute the offenders; and to repair the damage caused, awarding the victims means of rehabilitation, and where applicable, compensation or economic indemnification. The right to reparation is also recognised in a number of texts relating to crime prevention and criminal justice. In particular, the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power provides: victims are entitled to prompt redress for the harm that they have suffered; they should be informed of their rights in seeking redress; offenders or third parties should make fair restitution to victims, their families or dependents. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights; when compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation; and victims should receive the necessary material, medical, psychological and social assistance and support. The General Recommendation on Violence Against Women, adopted in 1992 by the Committee on the Elimination of Discrimination Against Women, recommends a range of protective, preventive, rehabilitation and compensatory measures, including: appropriate protective and support services for victims para 24(b); preventive and rehabilitation measures para 24 (h); effective complaints procedures and remedies, including compensation para 24(I); rehabilitation and counselling para 24(k); accessibility of services to victims living in isolated areas para 24(o); services to ensure the safety and security of victims and rehabilitation programmes para 24(r); and effective legal measures, including compensatory provisions, preventive measures, protective measures - para 24(t). The Inter-American Court of Human Rights has affirmed that under the American Convention on Human Rights, States parties have a responsibility to investigate violations of human rights, to prosecute perpetrators and to compensate victims adequately. In accordance with article 1, States parties undertake to ensure to all persons subject to their jurisdiction the free and full exercise of the rights and freedoms recognized in the American Convention, in a comprehensive manner. In the Velasquez Rodriguez Case the Court found that the failure to guarantee the rights enumerated in the Convention itself a violation of States obligations under Article 1: This obligation [in article 1] implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the full and free enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violations of the rights recognized by the Convention and moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violations. The Court continued: The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim compensation. In the Aloeboetoe case, the Inter-American Court of Human Rights ordered specific non-pecuniary measures as part of a compensatory damages judgment. The Court first determined that the obligation to make reparation is a rule of customary law and one of the fundamental principles of current international law. As part of its reparations package, the Court ordered the reopening of a school and clinic in the victims village so that the children be offered a school where they can receive adequate education and basic medical attention. Significantly, the Court ordered the government to deposit a specified sum of compensation in two non-taxable trust funds for the beneficiaries, one on behalf of the minor children and one on behalf of the adult beneficiaries. The Court also ordered the creation of a fiduciary committee called the Foundation to administer the funds as trustee. Finally, as with the Velasquez Rodriguez compensation judgment, the Court determined to supervise compliance with the reparations order before closing the file on the case. In two more recent cases the Inter-American Court has ordered reparations to be agreed upon by the parties themselves within a specified time period, reserving the power to determine reparations if no agreement is reached. In summary, the van Boven principles cannot be rejected on the basis that they have no formal status in international law. Their validity is assured by the longstanding acceptance of the existing human rights standards synthesised by Special Rapporteur van Boven. Reparations in Australia: the Federal governments response The purpose of the Senate Legal and Constitutional References Committee inquiry into the implementation of the recommendations of Bringing them home was broadly speaking, to review how, and how well, the federal government has responded to those recommendations. The government submission to the Senate inquiry, presented by the Minister for Aboriginal and Torres Strait Islander Affairs, is an instructive summary of government policy responses to the Bringing them home recommendations, and the thinking behind those policies. In essence, the federal government has declined to embrace the reparations principle. It concedes that a measure of assistance to address current rehabilitative needs is appropriate but rejects the call for a formal apology and monetary compensation. An apology The call for formal apologies to Indigenous Australians who are members of the stolen generations became a national issue in 1997 when Bringing them home recommended that: All Australian Parliaments: officially acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal, negotiate with the Aboriginal and Torres Strait Islander Commission a form of words for official apologies to Indigenous individuals, families and communities and extend those apologies with wide and culturally appropriate publicity The federal governments initial response was to the effect that Australians of this generation should not be required to accept guilt and blame for the past actions and policies over which they had no control. This guilt and blame rhetoric has been misleading, but effective: in its submission to the Senate inquiry in March 2000, the federal government noted that a significant majority of Australians supported the proposition that Australians today were not responsible for what happened to Aboriginal people in the past, so todays government should not have to apologise for it. An apology from the federal parliament is not about the imposition of guilt and blame on individual Australians. Rather, a formal national apology parliament is a powerful symbolic expression of collective acknowledgement, regret and atonement. It demonstrates that the community as a whole recognises the injustices inflicted on some of its own people and now seeks to atone for the harm suffered. Many parliamentarians did recognise the true purpose and effect of formal apologies. By the end of 1997, seven of the nine Australian parliaments had passed motions of apology, with only the federal and Northern Territory governments declining to do so. Some might suggest that perceptible progress towards a formal national apology was made on 26 August 1999 when the Commonwealth Parliament endorsed a Motion of Reconciliation. This motion officially acknowledged the mistreatment of many indigenous Australians and expressed deep and sincere regret that indigenous Australians suffered injustices under the practices of past generations. It contained a number of relevant acknowledgements concerning the historical role of indigenous people in Australian society and the injustices they have suffered as a result of past laws and government policies. The Prime Minister described the motion as a genuine, generous and sincere attempt to recognise past errors and it was no doubt intended to contribute to the process of reconciliation between Aboriginal and Torres Strait Islanders and the wider community. However, the Prime Minister also described the motion as generic, there being no direct reference to policies and practices of forcible removal. The motion must be regarded as only one small contribution to the reconciliation process. Reconciliation cannot be imposed on one party by the other. It cannot be achieved when there is little or no consultation between the parties or when they adopt a take it or leave it approach to the terms of their reconciliation. Participation on equal terms and the full agreement of both parties are essential to genuine reconciliation. The mutually participatory nature of apologies was discussed in a report prepared for the Law Commission of Canada. The report, Apologising for Serious Wrongdoing: Social, Psychological and Legal Considerations suggests that: the party making an apology should not do so unilaterally, without engaging the recipient in the process, if the apology is to be meaningful. Making a meaningful apology requires the wrongdoer and the injured party to enter into a dialogue. Apologising for Serious Wrongdoing refers to commentary by other writers who have emphasised the importance of negotiation and consultation: An apology is not a soliloquy. Instead, an apology requires communication between a wrongdoer and a victim; no apology occurs without the involvement of each party. Ultimately the success of an apology rests on the dynamics between the two parties, not on a pat recipe. The apology is an interactive process in which a deal has to be struck that is... satisfactory to both involved parties. The members of the stolen generation must be allowed to decide whether the Motion of Reconciliation, and the Prime Ministers explanation of it, is adequate. If members of the stolen generation determine that it is not sufficient, the necessary next step will be for representatives of the stolen generation and the federal government to begin the potentially slow and painstaking process of negotiating a genuine apology that meets the reasonable needs and aspirations of both parties. Compensation Bringing them home recommended that monetary compensation should be payable for harms and losses for which it is not possible to make restitution in kind. Although the Commissions terms of reference required it to make recommendations concerning compensation, the Federal government ruled out compensation before the National Inquiry had completed its deliberations and presented its final report. The federal governments submission to the Senate inquiry confirmed its rejection of monetary compensation. In doing so, it identified a number of impediments to compensation. Among these is the difficulty in quantifying the type of loss forcibly removed children may have suffered: there is no comparable area within the common law of judicial awards of compensation and no basis for arguing a quantum of damages from first principles. Principles governing the quantification of damages at law can afford guidancebut there would be enormous difficulties applying them in cases such as these. The quantification of past and future loss can be difficult but this should not justify the refusal to consider monetary compensation. As the New South Wales Law Reform Commissioner, Professor Regina Graycar, has stated: Even the most minimal familiarity with the legal frameworks used for compensating various sorts of injuries would make it clear that the Governments argument [that there is no comparable area of compensation] is little more than a rhetorical device. What is, or is not, compensable at law is more a matter of political judgment and government policy than it is a matter of any inherent legal understanding of compensability. There are many contexts in which damages are awarded, either through common law recognition of loss or through statutory compensation schemes. In particular, courts have been called upon to assess the loss to an Indigenous accident victim of their ability to participate fully in cultural life; see for example Napaluma v Baker, Dixon v Davies, and Namala v Northern Territory. Numerous statutory compensation schemes operate in Australia. Workers compensation, criminal injuries compensation, motor accidents compensation, or sporting injuries compensation all exist because of the political judgement that in certain circumstances it is in the public good to provide compensation, irrespective of difficulties associated with liability and the quantification of loss. Vaccine compensation for people who have suffered severe disability as a result of vaccination is another instance where a political judgement can be made about compensability in the absence of legal liability. In the United Kingdom a statutory scheme provides lump sum payments to people who have suffered physical and mental disability as a result of vaccination under routine public vaccination programs. The Vaccine Damage Payments Act 1987 currently provides a blanket 40 000 pounds (insert symbol) payment to people who suffer severe damage after vaccination against common childhood diseases such as polio, diptheria, tetanus, measles and mumps. The payment is intended to assist with the present and future needs of such people, and their families, and does not prejudice their right to sue for compensation. The Act sets a high entitlement threshold it applies only to cases assessed at 80 per cent disability but applies to vaccination programs administered from the beginning of Britains National Health Service in 1948. The rationale for vaccine payments is simple. Vaccination programs are an effective public health measure but in a small number of cases there may be serious side effects. The provision of vaccine damage payments reflects a policy choice that a person who suffers vaccine damage should receive some measure of prompt assistance without having to establish legal liability. In Australia, Graycar cites the singular statutory scheme established pursuant to the Repatriation Act 1920 (Cth) for war veterans seeking compensation for injuries or illness caused by war service. From 19771985, the normal standard and burden of proof were reversed. The respondent (the Federal Government) was required to prove beyond reasonable doubt (the criminal, not civil, standard of proof) that the injury was not caused by war service in order for a veteran to be refused compensation. As Graycar argues, this unique burden and standard of proof for a statutory compensation regime embodied a political choice that supposedly reflected community values: To argue, as the Commonwealth Government has, that [compensation] is not possible as there is no framework by which to assess damages is disingenuous and ignores the many political choices that are routinely made in deciding which interest, and whose interests, we value in our community. Similarly, the refusal to consider compensation for Aboriginal people removed from their families as a result of government policy reflects a political choice about that groups lack of entitlement. Litigation The federal government stated in its submission to the Senate inquiry that, assuming the van Boven principles were applicable, their requirements would be satisfied: by the legal and constitutional rights which people affected by past separation practices enjoy. In particular, the fact that legal proceedings relating to alleged child removal polices are currently progressing in different Australian jurisdictions indicates that a proper forum is available in which reparation may be sought. In effect, the government has said that international reparation principles are honoured because Australian citizens can initiate legal proceedings against the Commonwealth. But as court cases to date show, particularly the decision of the Federal Court in Cubillo v Commonwealth litigation may only diminish the chances of achieving true reparation and reconciliation. The costs of litigation in time, money and personal pressure borne by litigants and witnesses can be prohibitive. The evidential problems of stolen generation litigation the time that has elapsed since removals occurred, the resultant loss of recollection, and the lack of records and corroborative witnesses are further, perhaps fatal, impediments to redress. There are hundreds of claims filed in Australian courts seeking redress for wrongful removal, but as Cubillo has demonstrated, the courts will be reluctant to make findings against the Commonwealth. That reluctance is based on the possibility that the passage of time and the lack or evidence may result in extensive prejudice to the Commonwealth and make a fair defence impossible. From a would-be plaintiffs perspective, this can only mean that claims will fail, or never be brought in the first place, regardless of the justice of the case. The terrible consequences of forcible removal policies may be beyond dispute in most peoples minds, but the call for redress and rehabilitation goes unanswered. Further, in the case of Western Australia, the federal governments assertion that reparation principles are satisfied by the opportunity to seek legal remedy, apparently overlooks the effect of the statute of limitations in that state (that is, the prohibition on bringing legal action after a certain length of time has elapsed). In Western Australia, members of the stolen generation cannot bring claims against the Commonwealth where their claims are outside the limitation period as, unlike other jurisdictions, no exceptions to the limitation period are allowed. Similarly, there is no capacity within the legal systems of Australia to establish liability in a court of law in relation to a number of the grounds identified in Bringing them home. Genocide is not prohibited in Australian law. Similarly, there is no redress available for laws, policies and practices prior to 1975 that were racially discriminatory. It is disingenuous to insist that legal liability is a prerequisite to considering compensation options when it is manifestly clear that victims of forcible removal policies are prevented from being able to establish such liability through court processes on some of the grounds identified in Bringing them home. International comparisons The refusal to formally apologise to members of the stolen generation for past injustices, the failure to develop comprehensive reparation programs, and advocacy of litigation as an appropriate redress mechanism are contrary to a world-wide trend. Increasingly, governments across the globe have scrutinised the practices of their predecessors and acknowledged the importance of making reparation to members of their communities who have been victims of human rights violations. The following sections of this chapter examine reparation policies adopted by Canada, New Zealand and South Africa. These government policies respond to human rights violations committed against groups within their communities. They recognise that litigation may be an inadequate instrument for the redress required. Recent Canadian experience receives particular attention, for two reasons. First, from the late 19th century Australia and Canada both adopted policies of forced assimilation of indigenous children and both now seek solutions to the problems resulting from those policies. Second, tangible and symbolic measures adopted by the Canadian government to promote reconciliation and reparation are compelling examples of what is possible given the political will. Canada i) Gathering strength responding to the Royal Commission into aboriginal peoples As discussed in chapters 2 and 4, the Canadian federal government released Gathering strength, its policy response to the five-volume report of the Royal Commission on Aboriginal Peoples (RCAP) in January 1998. The Canadian government described Gathering strength as a long-term action plan to renew the relationship with the aboriginal people of Canada and build on the principles of mutual respect, mutual recognition, mutual responsibility and sharing which were identified in the report of the RCAP. Gathering strength begins with a Statement of Reconciliation that acknowledges the mistakes and injustices of the past. It includes a Statement of Renewal that expresses a vision of a shared future for aboriginal and non-aboriginal people and outlines four objectives for action: renewing the partnerships; strengthening aboriginal governance; developing a new fiscal relationship; and supporting strong communities, people and economies. The Statement of Reconciliation contains an apology to the indigenous peoples of Canada which is reproduced in full. Learning from the past As aboriginal and non-aboriginal Canadians seek to move forward together in a process of renewal, it is essential that we deal with the legacies of the past affecting the aboriginal peoples of Canada, including the First Nations, Inuit and Mtis. Our purpose is not to rewrite history but, rather, to learn from our past and to find ways to deal with the negative impacts that certain historical decisions continue to have in our society today. The ancestors of First Nations, Inuit and Mtis peoples lived on this continent long before explorers from other continents first came to North America. For thousands of years before this country was founded, they enjoyed their own forms of government. Diverse, vibrant aboriginal nations had ways of life rooted in fundamental values concerning their relationships to the Creator, the environment, and each other, in the role of Elders as the living memory of their ancestors, and in their responsibilities as custodians of the lands, waters and resources of their homelands. The assistance and spiritual values of the aboriginal peoples who welcomed the newcomers to this continent too often have been forgotten. The contributions made by all aboriginal peoples to Canada's development, and the contributions that they continue to make to our society today, have not been properly acknowledged. The Government of Canada today, on behalf of all Canadians, acknowledges those contributions. Sadly, our history with respect to the treatment of aboriginal people is not something in which we can take pride. Attitudes of racial and cultural superiority led to a suppression of aboriginal culture and values. As a country, we are burdened by past actions that resulted in weakening the identity of aboriginal peoples, suppressing their languages and cultures, and outlawing spiritual practices. We must recognize the impact of these actions on the once self-sustaining nations that were disaggregated, disrupted, limited or even destroyed by the dispossession of traditional territory, by the relocation of aboriginal people, and by some provisions of the Indian Act. We must acknowledge that the result of these actions was the erosion of the political, economic and social systems of aboriginal people and nations. Against the backdrop of these historical legacies, it is a remarkable tribute to the strength and endurance of aboriginal people that they have maintained their historic diversity and identity. The Government of Canada today formally expresses to all aboriginal people in Canada our profound regret for past actions of the federal government which have contributed to these difficult pages in the history of our relationship together. One aspect of our relationship with aboriginal people over this period that requires particular attention is the Residential School system. This system separated many children from their families and communities and prevented them from speaking their own languages and from learning about their heritage and cultures. In the worst cases, it left legacies of personal pain and distress that continue to reverberate in aboriginal communities to this day. Tragically, some children were the victims of physical and sexual abuse. The Government of Canada acknowledges the role it played in the development and administration of these schools. Particularly to those individuals who experienced the tragedy of sexual and physical abuse at residential schools, and who have carried this burden believing that in some way they must be responsible, we wish to emphasize that what you experienced was not your fault and should never have happened. To those of you who suffered this tragedy at residential schools, we are deeply sorry. In dealing with the legacies of the Residential School system, the Government of Canada proposes to work with First Nations, Inuit and Mtis people, the Churches and other interested parties to resolve the longstanding issues that must be addressed. We need to work together on a healing strategy to assist individuals and communities in dealing with the consequences of this sad era of our history. No attempt at reconciliation with aboriginal people can be complete without reference to the sad events culminating in the death of Mtis leader Louis Riel. These events cannot be undone; however, we can and will continue to look for ways of affirming the contributions of Mtis people in Canada and of reflecting Louis Riel's proper place in Canada's history. Reconciliation is an ongoing process. In renewing our partnership, we must ensure that the mistakes which marked our past relationship are not repeated. The Government of Canada recognizes that policies that sought to assimilate aboriginal people, women and men, were not the way to build a strong country. We must instead continue to find ways in which aboriginal people can participate fully in the economic, political, cultural and social life of Canada in a manner which preserves and enhances the collective identities of aboriginal communities, and allows them to evolve and flourish in the future. Working together to achieve our shared goals will benefit all Canadians, aboriginal and non-aboriginal alike. As part of its response to the RCAP report, the Canadian government also addressed the issue of the residential school system. According to Gathering strength: Any attempt at reconciliation would be incomplete without reference to Residential Schools, and dedicated action in support of those aboriginal people who tragically suffered abuse as children while in these institutions. Concerted efforts are required to help aboriginal individuals, families and communities in the healing process. In the Statement of Reconciliation, the Government of Canada has said to the victims of sexual and physical abuse that we are deeply sorry. The Government of Canada is also committed to assisting in community healing to address the profound impacts of abuse at Residential Schools. Healing initiatives will be designed in partnership with the aboriginal leadership and victims groups, and will be delivered in the broadest possible fashion to all aboriginal people, including Mtis and off-reserve individuals and communities that have been impacted by the residential school system. The residential schools avowed purpose was the separation of indigenous children from their families, communities and culture and their assimilation into white society. For decades, widespread sexual, physical and emotional abuse occurred in these institutions. For the most part, the abuse was hidden, ignored or denied. It is estimated that approximately 100,000 indigenous children were placed in residential schools. The devastating inter-generational consequences of this system such as repeating cycles of child abuse, spousal violence and family breakdown, substance abuse, suicide, mental disorders and offending are now well recognised. A cornerstone of the Gathering strength policy is the provision of a $350 million (Canadian) fund to support community-based healing initiatives for indigenous people affected by the legacy of physical and sexual abuse in residential schools. The agency responsible for distributing this fund, the Aboriginal Healing Foundation (the Foundation), was established following wide consultation with indigenous people. Its allotted task is to develop a national plan to break the cycles of harm and abuse suffered by indigenous Canadians. The Foundation is an independent, non-profit corporation controlled and staffed by Indigenous people. It is incorporated under the federal laws of Canada and authorised to operate in all provinces and territories. Its funding agreement with the federal government requires it to have used its best efforts to commit all of the $350 million and accumulated interest over a four year period and to have distributed the entire fund within 10 years. The Foundations aim is to support projects that provide holistic and community based healing initiatives, addressing the needs of individuals, families and communities, and which complement existing programs or meet needs that are currently not supported. Four main program themes have been developed: Healing: community approaches and healing centres; Restoring balance: projects that focus on the early detection and prevention of the effects of the legacy of abuse on aboriginal people; Developing and enhancing aboriginal capacities: programs which focus on building a sustainable capacity for healing processes, so that appropriate groups and institutions within the community can meet ongoing healing needs; and Honour and history: the creation of an historical record of the residential school experience, and the need for survivors to acknowledge those students who never returned home (be it physically, mentally, emotionally or spiritually). In September 2000, two and a half years after its creation, the Chair of the Foundation, George Erasmus, reported that the Foundation now had an established track record as a funding agency promot[ing] best practices of healing. Its approach is to support small projects that rely on survivor and community participation from the outset rather than overly ambitions mega-projects designed outside the community. The effect of this approach is that all across Canada, aboriginal people are seeking creative and innovative uses of both traditional and non-aboriginal healing methods to address the intergenerational impacts of Canadas residential school system. Our funded projects, through, the partnerships and linkages they foster serve to strengthen aboriginal people everywhere. Mr Erasmus reported that 276 projects had been approved, with a further 108 projects pending and a total of over $C53 million dollars committed. Grants from the Foundation may be for a few thousand dollars or more than $1 million and are applied to a wide range of initiatives. For example, the First Nation Women of Chisasibi of Quebec applied for a grant to implement their healing project for victims of physical and sexual abuse. Their funding application emphasised the importance of viewing oppression in an historical perspective so as to enable the survivors to define the source of their affliction without blaming another culture. The project described itself as holistic and community based and tapping into the teachings of Elders using their traditional knowledge and wisdom regarding healing, culture and values as well as encouraging western psychological therapeutic methods. The project has received a grant of a little over $C192 000. The Beardys and Okemasis First Nation project, Honouring our Residential School Survivors, is designed to determine the kind of abuse that ... occurred and the extent of the personal damage that resulted [t]he violation of aboriginal youth and their dignity will be documented and this information will be used to help people heal themselves and others The project also aims to find ways to make their community a healthier and safe place for children to be nurtured through awareness workshops, youth camps and retreats. The Foundation has approved funding of more than $C340 000 for this project. The Benjamin Chee Chee Memorial Fund project received $C75 000 to develop a permanent national memorial on Parliament Hill, Ottawa to those aboriginal people who died, were abused, or suffered as a result of the residential school system in Canada. The project organisers state that the purpose of the monument will be to create an historical record of the abuse suffered by indigenous children in residential schools, and thereby contribute to the healing of survivors and provide an important aspect of prevention and a form of healing to survivors. The Nog-Da-Win-Da Min Family and Community Services project in Ontario sought funding to implement a sustainable culturally based Customary Care Program within our member First Nations for children removed from their families. The project seeks to deal with the legacy of physical and sexual abuse in residential schools by addressing the aftermath of a system that created wounded spirits within our culture. Our parents, grand parents and children have survived an era that ultimately stripped them of their natural ability to parent their children that is reflective of our culture, beliefs, practices and values. The Foundation has provided just under $C70 000 for this project. Funding has gone to traditional aboriginal and western therapy programs (such as healing circles and psychiatrists), parenting workshops, adventure retreats, recording the experiences of residential school survivors, training for Indigenous counsellors and social workers, survivor data bases, study groups for children, commemorative canoe journeys, programs for prison inmates, programs for early detection and prevention of child abuse and the compilation of traditional good life teachings. ii) Restoring Dignity: the report of the Law Commission of Canada In November 1997, in an initiative separate from the Gathering strength policy, the Canadian Justice Minister asked for independent legal advice from the Law Commission of Canada on how Canadian governments could best address the harm caused by physical and sexual abuse of children in institutions operated, funded or sponsored by government. The Law Commissions report, Restoring Dignity: Responding to Child Abuse in Canadian Institutions was released in March 2000. It deals with historical child abuse that occurred in a variety of Canadian institutions, including residential schools for indigenous children. The Law Commission states it was persuaded by the needs expressed by survivors to interpret its terms of reference broadly. It looked not only at physical and sexual abuse but other types of maltreatment such as neglect, and emotional, spiritual, psychological, racial and cultural abuse. To ignore or discount these other types of abuse would, in the Law Commissions view, take the problem of historical physical and sexual abuse of children in institutions out of the larger context in which it occurred. In relation to the residential schools system, and in words wholly applicable in the Australian context, Restoring Dignity notes that aboriginal children suffered in a unique and seriously damaging way. Their experience must be singled out for particular study because their presence in residential schools was the result of a policy of assimilation sustained for several decades by the federal government, with the cooperation of many religious organisations. Deprived of their native languages, cultural traditions and religion, many aboriginal children in residential schools were cut off from their heritage and made to feel ashamed of it. As a result, the residential school system inflicted terrible damage not just on individuals but on families, entire communities and peoples. As in Bringing them home, the perspective of survivors was central to the Law Commissions inquiry and their needs and concerns were paramount in the assessment of remedial responses. The Law Commission recognised that the needs of survivors: are as diverse and unique as survivors themselves. Nevertheless, the Commission was able to identify certain recurring themes in the manner these needs were expressed. Survivors seek: an acknowledgment of the harm done and accountability for that harm; an apology; access to therapy and to education; financial compensation; some means of memorialising the experiences of children in institutions; and a commitment to raising public awareness of institutional child abuse and preventing its recurrence. The Law Commission assessed five types or redress: Legal: criminal prosecutions and civil actions; Compensatory: such as criminal injuries compensation and ex gratia payments; Investigatory: such as public inquiries, Ombudsmans investigations, childrens advocate interventions, and truth and reconciliation commissions; Community and grassroots initiatives; and Official redress programs, negotiated directly with survivors. The Law Commission concluded that no single approach fully meets all the needs of all survivors. The Commission argued for a diversity of responses, grounded in respect, engagement and informed choice. A redress program is defined in the report as a program designed specifically to meet a wide range of needs, including financial compensation and non-monetary benefits. It does not involve legal proceedings but is always undertaken in the shadow of the formal justice system. Financial compensation is the cornerstone of most redress programs, either as a lump sum or periodic payment, and although most programs have usually been limited to sexual and/or physical abuse cases, they may include cases involving emotional and psychological abuse. Redress programs are considered less adversarial, quicker, and capable of meeting a wider range of needs. Typically they are based on government policy initiative that does not require legislation and can be as large or small, as comprehensive or limited as required by the circumstances of each program. Their underlying objective is to be more comprehensive and flexible, and less formal than existing legal processes. Restoring Dignity suggests that redress programs are the most effective official response and, in tandem with community initiatives, have the greatest capacity to meet the broadest range of survivor needs. It recommends that governments should not attempt to monopolise redress processes, but should encourage and fund community initiatives. In assessing these measures, the Law Commission also recognised that: a process for providing redress should take into account the needs of survivors, their families and communities in a manner that is fair, fiscally responsible and acceptable to the public. Restoring Dignity is a comprehensive assessment of possible remedial responses. Its commentary and recommendations are a valuable resource for those grappling with similar issues in Australia. New Zealand Settlement of indigenous rights claims under the Treaty of Waitangi In New Zealand, the Treaty of Waitangi sets the legal and political framework for the recognition of indigenous rights in New Zealand. This founding document, signed by Maori and the Crown in 1840, established British sovereignty and recognised the prior occupation and rights of Maori. Indigenous rights claims by Maori are made in the context of the Treaty (i.e. they are expressed as breaches of rights and obligations created by the Treaty, rather than abuses of human rights). However, in essence, these claims are based on international human/indigenous rights norms. They concern sovereignty, discrimination, cultural dispossession and the loss of land and resources, and relate to historical or contemporary events and policies. In the early 1990s the New Zealand government began to implement a policy of negotiated settlement of Maori Treaty claims against the Crown. The starting point for the negotiation of a claim is the Crowns acknowledgment that the Maori grievance is well founded and that the Crowns past actions or policies failed to protect Maori land, resources and culture and thereby breached its obligations under the Treaty of Waitangi. In the past five years some of the major historical land claims have been settled. The terms of settlement provide for the return of land formerly held by the claimant tribe (usually only a small portion) and cash compensation. The settlement terms are implemented through acts of parliament and include the Crowns formal apology for past abuses and wrongful acts. One of the first legislated settlements, the Waikato Raupatu Claims Settlement Act 1995, gave effect to the settlement of a claim concerning the 1863 invasion by government troops of land held by the Waikato-Tainui people and the subsequent confiscation of 1.2 million acres of the tribes land. Redress provided by the Crown included financial compensation to the tribe and the return of land, to the value of $170 million, and an apology. The apology is recorded in the following terms: The Crown expresses its profound regret and apologises unreservedly for the loss of lives because of the hostilities arising from its invasion and at the devastation of property and social life which resulted. The Crown acknowledges that the subsequent confiscations of land and resourceswere wrongful and have had a crippling effect on the welfare, economy and development of Waikato Accordingly the Crown seeks on behalf of all New Zealanders to atone for these acknowledged injustices, so far as that is now possible, and to begin the process of healing and to enter into a new age of co-operation with Waikato. The terms of this apology are unambiguous. They were not dictated by one party or the other, but were the product of negotiated agreement. Negotiation of the apologys wording would not have been possible without good faith and determination on both sides, and the process of reaching agreement became a concrete example of the new relationship the settlement legislation sought to establish. South Africa In October 1998, the South African Truth and Reconciliation Commission (TRC) published its five volume final report. The TRCs approach to reparation and rehabilitation policy is set out below: The right of victims of human rights abuse to fair and adequate compensation is well established in international law. In the past three years, South Africa has signed a number of important international instruments, which place it under an obligation to provide victims of human rights abuse with fair and adequate compensation. The provisions of these instruments, together with the rulings of those bodies established to ensure compliance with them, indicate that it is not sufficient to award token or nominal compensation to victims. The amount of reparation awarded must be sufficient to make a meaningful and substantial impact on their lives. In terms of United Nations Conventions, there is well established right of victims of human rights abuse to compensation for their losses and suffering. It is important that the reparation policy adopted by the government, based on recommendations made by the Commission is in accordance with South Africas international obligations. The reparation awarded to victims must be significant. The report then provides an overview of international law and practice in relation to reparation and compensation. It notes the: Universal Declaration of Human Rights (article 8); International Covenant on Civil and Political Rights (article 3(a)); jurisprudence of the UN Human Rights Committee established under the Optional Protocol to the ICCPR; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; jurisprudence of the UN Committee against Torture; Inter-American Convention on Human Rights; and jurisprudence of the Inter-American Court of Human Rights. The report particularly notes the decision of the Inter-American Court of Human Rights in the Velasquez Rodriguez case, and observes: If we are to transcend the past and build national unity and reconciliation, we must ensure that those whose rights have been violated are acknowledged through access to reparation and rehabilitation. While such measures can never bring back the dead, nor adequately compensate for pain and suffering, they can and must improve the quality of life of the victims of human rights violations and/or their dependants. Without adequate reparation and rehabilitation measures, there can be no healing and reconciliation, either at an individual or a community level. Comprehensive forms of reparation should also be implemented to restore the physical and mental well being of victims. The report of the TRC recommends a five-part approach to reparation, consisting of: Urgent interim reparation in the form of assistance to provide people in urgent need with access to appropriate services and facilities; Individual reparation grants in the form of an individual financial grant scheme; Symbolic reparation encompassing measures to facilitate the communal process of remembering and commemorating the pain and victories of the past (including among other measures, a national day of remembrance and reconciliation, erection of memorials and monuments, and the development of museums); Community rehabilitation programs aimed at promoting the healing and recovery of individuals and communities affected by human rights violations; and Institutional reform, including legal, administrative and institutional measures designed to prevent the recurrence of human rights abuses. The individual financial grants scheme is based on a benchmark figure of R21,700 per annum (or approximately $AUD6000 per annum). This equates to the median annual household income in South Africa in 1997. This was decided as an appropriate amount to achieve the aims of the individual reparation grant, namely, to enable access to services and to assist in establishing a dignified way of life. The TRC recommended that the annual reparation grant be paid in two payments per year. The report recommends that payments be made for a period of six years. The Reparation and Rehabilitation Committee of the TRC was guided by internationally accepted approaches to reparation and rehabilitation. The five aspects of reparation identified by the TRC are similar to those identified in Bringing them home. These five aspects are: Redress: the right to fair and adequate compensation; Restitution: the right to the re-establishment, as far as possible, of the situation that existed prior to the violation; Rehabilitation: the right to the provision of medical and psychological care and fulfilment of significant personal and community needs; Restoration of dignity: the right of the individual/community to a sense of worth; and Reassurance of non-repetition: the strategies for the creation of legislative and administrative measures that contribute to the maintenance of a stable society and the prevention of the re-occurrence of human rights violations. Conclusion This chapter has provided an overview of the principle of reparations in international law and examples from overseas jurisdictions in facing up to historical misdeeds which amount to gross violations of human rights. As I noted before the Senate Committee inquiry into the adequacy of the governments response to Bringing them home, perhaps the greatest flaw in the governments response to the report to date has been the failure to understand or acknowledge the human rights basis of the recommendations. The failure of the Commonwealth to acknowledge these principles runs contrary to a worldwide trend, and perpetuates a situation of injustice for those who continue to suffer the consequences of forcible removal policies. Appendix 1: Information concerning Australia provided by the Human Rights and Equal Opportunity Commission to United Nations Committees in 2000. The following is an extract of the information provided to these committees: Committee on the Elimination of All Forms of Racial Discrimination (CERD): additional information to Australias 10th, 11th and 12th periodic reports under CERD, March 2000; Human Rights Committee: additional information to Australias third and fourth periodic reports, for consideration during the 69th session, June 2000; and Committee on Economic, Social and Cultural Rights: information in relation to consideration of Australia, August 2000. All information was brought to the attention of the Australian government through a range of HREOC publications and submissions. The appendices give a summary of the information provided to these committees concerning the following issues: Native title; Racial Discrimination Act 1975 (Cth) and the lack of an entrenched guarantee against racial discrimination; Heritage protection; Indigenous disadvantage and special measures; Self-determination; Indigenous people in custody; Mandatory sentencing; The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander 鱨վ and Their Families, Bringing them home; Abolition of bilingual education programs in the Northern Territory; and Interpreter services in Aboriginal languages in the Northern Territory. 1. Native Title Summary of Issue Native title is the legal recognition given to the traditional laws acknowledged by, and the traditional customs observed by, Indigenous people. The High Court of Australia has also recognised the power of the State to extinguish native title. The common law is developing a construction of native title that makes it vulnerable to permanent extinguishment. This construction is referred to as a bundle of rights approach to native title. Rather than the relationship between these rights being perceived as a system of rights, native title is seen as a set of traditional practices that will only be protected by the law if they continue to be practised as they were by the original inhabitants. Amendments to the following aspects of the Native Title Act prefer non-Indigenous title to land over Indigenous title to land: The validation provisions; The confirmation provisions; The future act provisions; and The right to negotiate. In each of these instances, Indigenous interests are either extinguished or impaired in order to ensure the full enjoyment of non-Indigenous interests in land where there is any inconsistency between Indigenous and non-Indigenous interests.  Native title holders are relevantly different to other persons vested with interests in land, given their level of dispossession and disadvantage. It is fitting that native title should be given particular protection consistent with the internationally recognised rights to enjoy ones culture and not be arbitrarily deprived of property. Relevance to the ICERD Articles 1(1): A distinction based on race which has the purpose of nullifying or impairing the recognition, enjoyment or exercise of rights on an equal footing; Article 2(1)(a): States not to engage in discrimination; Article 2(1)(c): States to repeal all discriminatory laws; Article 5: Equality before the law; and Article 6: States to assure to everyone effective protection and remedies against acts of racial discrimination. The amendments to the Native Title Act and their relevance to ICERD: Decision 2(54) of the CERD noted that the validation, confirmation and primary production upgrade provisions, and restrictions and exceptions to the right to negotiate discriminate against native title holders. Since August 1999, state and territory native title legislation continues to be considered or has been enacted under the authority of the above discriminatory provisions. The Commonwealth legislations authorisation of state and territory native title regimes also denies Indigenous peoples effective protection and remedies against acts of racial discrimination that violate their human rights and fundamental freedoms, as required under Article 6. Validation provisions: Generally states and Territories have been unwilling to negotiate an alternative to blanket validation legislation. The validation of intermediate period acts deprives native title holders of procedural rights to engage in decisions about land, substituting a compensation scheme for rights removed. Confirmation provisions: All states and Territories except Tasmania have introduced confirmation legislation. Since August 1999, Western Australia has passed legislation confirming extinguishment on further titles. Right to negotiate provisions: In paragraph 7 of Decision 2(54) the CERD expressed its concern that provisions within the NTA that place restrictions concerning the right of indigenous title holders to negotiate non-indigenous land uses are discriminatory. Most states and territories have introduced legislation that contains provisions that restrict the ability of native title holders to negotiate over non-Indigenous land uses. Failure of the amended Native Title Act to incorporate the principles of equality: In order to restitute the principles of equality and non-discrimination in state legislation it would be necessary to amend the Commonwealth Native Title Act so as to make it consistent with the RDA. Lack of consultation and informed consent for the amendments: The failure of the government to enter into negotiations with native title holders to amend the Native Title Act also places Australia in breach of its obligations under the Convention. Relevance to the ICCPR Articles 1 and 27: Self-determination and the rights of minorities; and Articles 2 and 26: Non-discrimination and equality Articles 1 and 27: Self-determination and the rights of minorities The extinguishment or impairment of native title is a breach of Articles 1 and 27 of the ICCPR, which require the state to protect the culture of Indigenous peoples. The HRC has confirmed that Indigenous peoples are minorities for the purposes of Article 27 in a number of cases, such as in Kitok v Sweden (197/85), Ominayak v Canada (167/87), and the Lnsman cases (511/92 and 671/95). The HRC has also recognised the special place of land rights within Indigenous cultures, and that this does not prejudice the sovereignty and territorial integrity of a State party. The following provisions of the amended NTA and developments in the common law subordinate Indigenous interests to those of non-Indigenous interests: Future act provisions: The absolute protection of future acts on native title land means that native-title holders do not have any meaningful right to participate in the decision of whether the act will be performed. In this regard, the future acts and especially the primary production breach Articles 1 and 27 of the ICCPR; the upgrade provisions also breach Australias positive duties to protect native title under Article 1. Right to negotiate: Diminution of the right to negotiate diminishes Article 1 rights of self-determination, as interpreted by UN treaty bodies, by rolling back opportunities for Indigenous peoples to participate in the management of their land and resources. Denial of native title holders right to negotiate also amounts to denial of a minoritys exercise of cultural rights, which constitutes a breach of Article 27. Validation and confirmation provisions: The validation provisions, which retrospectively validate all land grants issued in contravention of native title rights, and the confirmation provisions, which wholly extinguish native title rights, or authorise such extinguishment, and therefore wholly deny cultural rights associated with affected land, to a breach of Article 27 rights. Lack of consultation and informed consent for the amendments: The failure to consult constitutes a breach of Article 27. In particular, General Comment 23 states, at paragraph 7: The enjoyment of [cultural] rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. Common law of native title: Article 27 of the ICCPR protects minority contemporary cultural practices as well as traditional practices. Under the bundle of rights approach, each particular native title right can be extinguished on the basis of inconsistency with the exercise of rights pursuant to an act of the Crown. Where the common law is developing in a direction contrary to Australias obligations under ICCPR it is incumbent on Australia to legislate to ensure that appropriate protection is extended to Indigenous people. Articles 2 and 26: Non-discrimination and equality Articles 2 and 26 of ICCPR require the State to protect Indigenous rights to land to the same extent that non-Indigenous interests in land are protected. The priority given to non-Indigenous interests in land over Indigenous interests in land is a breach of these Articles. The following provisions of the NTA breach these articles: Validation, confirmation and future act provisions: These provisions diminish the property rights of native title holders and increase the property rights of non-native title holders. Although property is not a protected ICCPR right, Article 26 prohibits discrimination in relation to the exercise of all human rights, including non-ICCPR rights. Right to Negotiate: Even if the right to negotiate is classified as a special measure, it cannot be said to have exhausted its purpose. There is no evidence that Indigenous people no longer suffer the effect of past discrimination on pastoral leasehold land. Such positive measures must also respect the provisions of both Articles 2(1) and 26 of the Covenant as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population. Failure of the amended Native Title Act to incorporate the principles of equality: The Racial Discrimination Act 1975 (Cth) embodies Australias domestic implementation of its obligations under CERD. It makes discrimination on the basis of race, colour, descent or national or ethnic origin unlawful. It binds both state and federal governments. The recent amendments to the NTA provided an opportunity to apply the RDA unequivocally. As amended, section 7 of the NTA does not ensure the protection of native title by the general standards of equality and non-discrimination enshrined in the RDA. Relevance to the ICESCR Article 1: Self-determination; Article 2.1: Progressive realisation of rights; Article 2.2: Native title rights to be enjoyed on a non-discriminatory basis; and Article 15: Native title and cultural rights. Article 1: Self-determination There are two bases on which the protection of native title is required in order to meet the obligation under Article 1 in relation to the right to self-determination. The first is the strong link established in international law between the right of self-determination for Indigenous peoples and control over their lands and resources. The second basis for the protection of native title encompasses political participation rights, including the right to be consulted and to give or withhold consent on an informed basis in respect of decisions that will directly affect Indigenous peoples. The right of effective participation applies to the decision to enact and amend legislation in respect of native title. The fact that traditionally Aboriginal and Torres Strait Islander people used their land as a resource for the sustenance and well being of their community is not, under the amended NTA, translated into a right to participate in the modern management of their land. Native title rights are isolated from the day-to-day lives of the communities that observe and integrate their traditions into the texture of contemporary life. In this way native title is quarantined from the broader principle of self-determination. Article 2.1: Progressive realisation of rights Article 2.1 of ICESCR requires States to take steps to achieve progressively the full realisation of the rights recognised by the Covenant. Where the common law is developing in a direction contrary to Australias obligations under ICESCR it is incumbent on Australia to legislate to ensure that appropriate protection is extended to Indigenous people. The amended NTA does not overcome the inadequate protection extended to native title by the common law. Indeed the confirmation provisions seek to confirm, and at times go beyond, the extinguishments permitted by the common law. The NTA also displaces, to the extent of any inconsistency, the only explicit protection against the discriminatory exercise of sovereign power against the Indigenous inhabitants, the Racial Discrimination Act 1975 (Commonwealth) (RDA). Significant aspects of the amended NTA are discriminatory and thus inconsistent with the RDA. Without any constitutional entrenchment of either non-discrimination norms or Indigenous rights in Australia, through a Bill of Rights, there is no domestic mechanism to ensure that the cultural and economic rights of Indigenous people are protected. Article 2.2: Native title rights to be enjoyed on a non-discriminatory basis Article 2.2 of ICESCR requires that the rights conferred by the Convention be enjoyed on a non-discriminatory basis. The CERDs March 1999 decision under its early warning and urgent action procedures in respect of Australia's compliance with its obligations under the ICERD found that the amended NTA was discriminatory in that it preferred non-Indigenous interests over Indigenous ones. The CERDs analysis supports the conclusion that there is a contravention of the non-discrimination requirements of ICESCR as reflected in Article 2.2. Article 15: Native title and cultural rights Article 15 provides for the right of everyone to take part in cultural life (15(a)). Accordingly, any diminution of native title rights is a derogation from the right of Indigenous people to take part in and enjoy their cultural life. The amendments to the NTA will make it more difficult to protect important cultural and sacred sites from mining and other developments, to undertake ceremonies, to instruct children in culture and law and to carry out traditional activities such as camping, hunting and fishing. 2. The Racial Discrimination Act 1975 (Cth) and the Lack of an Entrenched Guarantee Against Racial Discrimination Summary of issue There is no entrenched guarantee against racial discrimination in Australian law. The limits of Australias legal protection against racial discrimination are exposed in two ways: 1) The Commonwealth can override the protection of the Racial Discrimination Act (RDA) through subsequent legislation: The 1998 amendments to the Native Title Act 1993 (NTA) imply a repeal of the operation of the RDA in relation to native title. As a consequence, states and territories are freed of the constraints normally imposed by the RDA and are no longer required to act in accordance with the principles of CERD in relation to their treatment of native title across a range of matters. 2) The Commonwealth has the constitutional power to discriminate against particular racial groups: The race power of the Constitution was used in 1997 to enact the Hindmarsh Island Bridge Act 1997 (Cth). The High Court held that this law discriminates against Indigenous people, and that Parliament has the power under the Constitution to enact such a law. Relevance to the CERD Articles 1(1): A distinction based on race that has the purpose of nullifying or impairing the recognition, enjoyment or exercise of rights on an equal footing; Article 2(1)(a): States not to engage in discrimination against a particular group; Article 2(1)(c): States to repeal all laws that discriminate against a particular group; Article 5: Equality before the law; and Article 6: States to assure to everyone effective protection and remedies against acts of racial discrimination. Ability to override the RDA: As amended, Section 7 of the NTA does not ensure the protection of native title by the general standards of equality and non-discrimination enshrined in the RDA. The Committee noted in Decision 2(54) that several provisions of the amended NTA are discriminatory and in breach of Articles 2 and 5 of the Convention. Accordingly, powers unambiguously authorised by the NTA are freed from the constraints of the RDA and the standards of CERD. Scope of the race power, s51(xxvi) Constitution: The Constitution contains an express power that gives the Commonwealth power to enact legislation with respect to ... the people of any race for whom it is deemed necessary to make special laws. The High Court examined section 51(xxvi) of the Constitution (the race power) in the case of Kartinyeri v The Commonwealth [1998] HCA 22 specifically in relation to a law of the federal Parliament, the Hindmarsh Island Bridge Act 1997 (Cth), and whether the constitutional power under which it was enacted supported legislation that clearly disadvantaged a particular racial group. The legislation sought to withdraw the protection of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in relation to a particular site in order to facilitate the building of a bridge. The Court agreed that the legislation was detrimental to a particular racial group the Indigenous people of the area. The majority found that the Parliament had the constitutional power to pass the legislation, through the race power, although their Honours reasons differed. The only judge who found unequivocally that the race power did not support laws that discriminated against particular racial groups was Kirby J. In so finding His Honour had regard to international law of which he said: If there is one subject upon which the international law of fundamental rights resonates with a single voice it is the prohibition of detrimental distinctions on the basis of race. 3. Heritage Protection Summary of Issue The religious and cultural practices of Indigenous people are inextricably linked to land and water. Legislative regimes that address the preservation of Indigenous religious, cultural and ancestral areas and objects exist at the Commonwealth, state and territory tiers of government. The Commonwealth act is the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSI HP Act). The Act was passed as an interim measure to be replaced by more comprehensive legislation after two years. That legislation has not been enacted. There is no uniformity between different state and territory laws. Legislation in a number of states is incompatible and inadequate. The role of the Commonwealth through the ATSI HP Act has been essential in: directly providing heritage protection where state and territory heritage protection regimes have failed Indigenous people; and acting as a deterrent to states and territories ignoring their responsibilities under their own cultural heritage protection schemes. In November 1999, the government introduced the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (the Bill) into the Senate. The Bill was intended to replace the ATSI HP Act. The Bill fails to provide sufficient reform to protect heritage. state and territory legislation remains the primary source of heritage legislation, subject to accreditation by the Commonwealth. The standard for accreditation is inadequate. Indigenous people must exhaust all remedies at this level, however, before accessing the Commonwealth scheme. The Commonwealth will intervene only in the case of matters that affect the national interest. Major changes to the Bill are required, including reform of state and territory standards of accreditation and increased Commonwealth role in protection and preservation. In 1995/6, the Australian government commissioned a review of legislative protections for sites of religious, cultural and ancestral significance. Extensive reforms were suggested, and widely supported by Indigenous groups. The recommendations included more rigorous uniform minimum standards for state and territory schemes, extensive revision of administration at Commonwealth level. Where a state or territory legislative scheme was accredited under the Commonwealth legislation, the role of the Commonwealth would be maintained so that Indigenous people could seek heritage protection from the Commonwealth as a last resort. Access to Commonwealth heritage protection would be improved where a state or territory failed to achieve accreditation. The reforms have not been implemented. Protection remains inadequate and sites remain vulnerable to desecration and destruction. Relevance to the ICCPR Article 27: Rights of minorities; Article 18: Freedom of thought, conscience and religion; Article 17 and 23: Privacy and family; and Articles 2 and 26: Non-discrimination and equality. Article 27: Rights of minorities, including protection of cultural, religious and ancestral sites, and languages. Australian law does not provide sufficient protection to Aboriginal heritage sites as is required under Article 27. Australian law should guarantee effective Indigenous representation in resource heritage committees. Indigenous cultural and religious practices such as ceremonies, ritual maintenance of sites and cultural gatherings are always linked to geographical sites of significance. Economic development activities may result in damage to or interference with these sites or objects, and protective mechanisms are required to secure the rights to religious and cultural practices recognised in Articles 18 and 27 of the ICCPR. Article 18: Freedom of thought, conscience and religion The destruction of sites of religious significance for the purposes of economic development is not authorised under Article 18(3). Economic development activities can rarely if ever be characterised as a fundamental right or freedom of another. The failure to protect customary religious laws regarding secrecy is also inconsistent with Article 18. Articles 2 and 26: Non-discrimination and equality Where institutional protection of heritage sites and objects is inadequate, and the rights of non-Indigenous interests in development are preferred over Indigenous rights to culture and religion, Articles 2 and 26 are contravened. Articles 17 and 23: Privacy and family Failure to protect cultural heritage may violate a peoples right to privacy under Article 17 as well as their family rights under Article 23. In Hopu and Bessert v France (549/93), the authors alleged that a hotel development on the sacred burial grounds of their ancestors breached, inter alia, their rights to privacy. The HRC majority agreed, as the authors relationship with their ancestors constituted an important part of their identity. Relevance to the ICESCR Articles 1 and 2.1: Self-determination and progressive realisation of rights; Article 2.2: Providing for rights to be enjoyed on a non-discriminatory basis; and Article 15: Cultural rights. Articles 1 and 2.1: Self-determination and progressive realisation of rights Article 1 of ICESCR requires States to protect the rights of Indigenous people to pursue their economic, social and cultural development. Article 2.1 of ICESCR requires the State to take steps to progressively achieve full realisation of the rights recognised by the Covenant. Failure to protect cultural heritage and traditional economies results in insufficient compliance with this Article. Article 2.2: Providing for the rights to be enjoyed on a non-discriminatory basis Article 2.2 of ICESCR requires that the rights of the Covenant be enjoyed on a non-discriminatory basis. Inadequate protection of Indigenous heritage results in the preference of non-Indigenous interests over Indigenous. This is clear in regard to the Mirrar people at Jabiluka and delays over protection of the Boobera lagoon, a site of acknowledged importance to the Aboriginal people of rural northern New South Wales. Article 15: Cultural rights The rights of Indigenous people to participate in cultural life are not sufficiently protected or fully realised by current Australian law. Indigenous participation in cultural life requires protection of land, and protection of the relationship enjoyed by Indigenous people to specific culturally important sites. The survival of Indigenous peoples as distinct societies also depends on maintenance of their cultures and languages. Protection of Indigenous cultural and intellectual property is not sufficiently developed to provide Indigenous authors with benefits from protection of moral and material interests of scientific, literary or artistic production. Indigenous intellectual property is characterised by particular attributes. For example, ownership exists generally in perpetuity, rather than for a defined period and the rights are generally held collectively rather than individually. Australian intellectual property law grants rights based on certain criteria. These criteria operate to exclude or inadequately protect material with these characteristics. 4. Indigenous Disadvantage and Special Measures Summary of Issue Indigenous people in Australia suffer grossly disproportionate rates of disadvantage against all measures of socio-economic status. State, territory and federal governments have introduced programs and seek to identify further methods for redressing this disadvantage. The federal government launched an Indigenous Employment Program in May 1999. The program has three elements a wage assistance and cadetship program; an Indigenous Small Business Fund; and Job Network. The House of Representatives Standing Committee on Family and Community Affairs has recently concluded a wide-ranging inquiry into Indigenous health, the report of which is titled Health is life. The Senate Employment, Workplace Relations, Small Business and Education Committee also concluded an inquiry into Indigenous education. The 1999 Queensland Aboriginal and Torres Strait Islander women's task force on violence report (the Robertson report) pointed out that Indigenous Australians face enormous problems in health, education and employment, all of which exacerbate the high levels of domestic violence experienced by Indigenous communities. The Commonwealth government has acknowledged the high level of family violence in Indigenous communities as a special area of work under its Partnerships against domestic violence initiative, and has allocated $6 million for national measures to address this issue. The Commonwealth Grants Commission has been empowered to undertake an independent assessment of the relative need of Indigenous Australians for services and programs. The Council for Aboriginal Reconciliation has developed four national strategies for reconciliation, which were presented to the federal Parliament in December 2000. Determining whether government and other initiatives in fact constitute an adequate response to Indigenous disadvantage is a difficult task. A recent study of Commonwealth and state/territory expenditure on education, health, housing and employment programs found that while Indigenous people benefit substantially more than other Australians from specific programs, they benefit substantially less from many, larger, general programs. The study found that, in comparison to the levels of disadvantage experienced, the government funding and programs aimed at redressing Indigenous disadvantage are clearly not sufficient to raise Indigenous people to a position of equality within Australian society. The level of current government expenditure on health, housing, employment and education is not excessive. Health is life found that the planning and delivery of health services for Indigenous Australians is characterized by a general lack of direction and poor coordination, and recommended that the Commonwealth accept responsibility for developing, in collaboration with the states and territories, an efficient, coordinated and effective mechanism for the delivery of services and programs which impact on the health and well-being of the Indigenous population (Recommendation 1). The report of the Inquiry into Indigenous education, Katu kalpa, noted that equity for Indigenous people in most educational sectors had not been achieved and identifies raising literacy and numeracy skills of Indigenous people to the level of non-Indigenous people as an urgent national priority. Key reports which make recommendations for redressing Indigenous disadvantage, including the Royal Commission into Aboriginal Deaths in Custody, and Bringing them home, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander 鱨վ from Their Families, have not been fully implemented or have even been actively rejected. The Social Justice Package, the third component of the governments response to the Mabo decision (alongside the Native Title Act and the National Aboriginal and Torres Strait Islander Land Fund), which contained measures to redress Indigenous disadvantage, has been abandoned. There is little understanding within Australian society of the requirement and legitimacy of special measures, and greater education is required to address this deficit. Relevance to CERD Articles 1, 2 and 5: Lack of equality within Australian society; and Articles 1(4), 2(2) and 7: Requirement to adopt special measures, and the duty to promote understanding of the legitimacy of adopting such measures. Articles 1, 2 and 5: Lack of equality within Australian society The level of Indigenous disadvantage raises concerns in relation to Australias obligations under Articles 1, 2, and 5 of the Convention. Articles 1(4), 2(2) and 7: Requirement to adopt special measures, and the duty under Article 7 to promote understanding of the legitimacy of adopting such measures Australia should take special measures to ensure the adequate development and protection of Indigenous people for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. Article 7 requires the government to promote an understanding of the legitimacy of adopting special measures to redress disadvantage. Relevance to the ICCPR Articles 2 and 26: Equality and special measures; and Article 24: Rights of the child. Articles 2 and 26: Equality and special measures In General Comment 18, at paragraph 10, the HRC has supported the exercise of special measures as an essential aspect of the Covenants non-discrimination provisions, as the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination. In a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. This is one of the core obligations undertaken by States parties under Articles 2 and 26 of the ICCPR. The systemic and grossly disproportionate rate of disadvantage faced by Indigenous people requires that Australia take special measures to ensure the adequate development and protection of Indigenous people, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. Article 24: Rights of the Child The protection and non-discrimination requirements of Article 24 indicate that the Commonwealth government must ensure that appropriate programmes are established to combat the socio-economic disadvantages of Indigenous youth. Relevance to ICESCR Article 6: The right to work; Article 11: An adequate standard of living including adequate food clothing and housing; Article 12: The right to enjoy the highest attainable standard of physical and mental health; and Article 13: The right of everyone to an education. Article 6: The right to work Employment: Public expenditures on programs for the unemployed are 48% higher per unemployed Indigenous person than per non-Indigenous unemployed person. Higher levels of long-term unemployment and higher average costs of employment programs for Indigenous people explain part of this difference, as well as the reliance upon Community Development Employment Projects (CDEP). The level of disadvantage faced by Indigenous people, the difficulties of maintaining employment levels for the rapidly expanding Indigenous population entering working age and the multiple objectives of the CDEP suggest that the margin is not excessive.  Article 11: An adequate standard of living including adequate food clothing and housing Housing: Housing benefits expressed on a per capita basis indicate that non-Indigenous people receive between 9 and 21 per cent more benefits than Indigenous people. Given the greater housing needs of Indigenous people, existing policies are inequitable and inadequate and this justifies increased resources being put into programs directed specifically towards addressing their housing needs. Article 12: The right to enjoy the highest attainable standard of physical and mental health Health: Total funding per head, which includes privately and publicly funded health care, is 8% higher for Indigenous people.  Given the health status of Indigenous people, allocation of public expenditure according to need would almost certainly put more resources into health services for Indigenous people. Article 13: The right of everyone to an education Education: Public expenditure on education is 18% higher per capita for Indigenous people than for non-Indigenous in the 3-24 year age group. Equity considerations require that there be additional expenditure on the education of Indigenous Australians, and this difference per head is a very modest contribution to reducing Indigenous disadvantage. 5. Self-determination Summary of Issue Government policy does not acknowledge the applicability of the right to self-determination to Indigenous people. In November 1996 the Minister for Aboriginal and Torres Strait Islander Affairs announced that the governments Indigenous affairs policy would no longer be based on the principle of self-determination but on the concept of self-empowerment, which has no meaning in international law. The Royal Commission into Aboriginal Deaths in Custody prescribed self-determination as being necessary for Aboriginal and Torres Strait Islander peoples to overcome their previous and continuing, institutionalised disadvantage and domination. In Bringing them home, the Human Rights and Equal Opportunity Commission also recommended self-determination be implemented in relation to the well-being of Indigenous children and young people through the passage of national framework and standards legislation. The Commonwealth government has failed to implement these proposals. ATSIC, the Aboriginal and Torres Strait Islander Social Justice Commissioner, and the Council for Aboriginal Reconciliation undertook broad consultations regarding the development of the Social Justice Package, presenting strategies and proposals to the government in 1995. The proposals broadly called for the recognition of the rights of Indigenous people, for the implementation of self-determination as the basis of government policy and for governments to redress Indigenous disadvantage as a right and not out of welfare. In 1996, the newly elected government abandoned the Social Justice Package. On 17 March 2000, the Prime Minister again rejected a call for self-determination for Aboriginal peoples presented by the wording in the Draft Declaration of Reconciliation, prepared by the Council for Aboriginal Reconciliation. Relevance to ICERD General Recommendation XXI on self-determination; and General Recommendation XXIII on Indigenous peoples The governments failure to fully implement, and in some cases its rejection of, the recommendations of the Royal Commission into Aboriginal Deaths in Custody and the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander 鱨վ from their Families, and the abandonment of the Social Justice Package, are inconsistent with the Committees General Recommendation XXI on self-determination. Relevance to the ICCPR Article 1: Self-determination The governments abandonment, and in some cases rejection, of the principle of self-determination in guiding Indigenous policy constitutes a breach of Article 1 of the ICCPR. The failure to acknowledge the application of the principle of self-determination to Indigenous peoples also breaches Australias obligations under Article 1(3) of the Convention to promote the realization of the right to self-determination. Relevance to ICESCR Article 1: Self-determination The HRC has recognised the relevance of the right to self-determination to Indigenous peoples in its Concluding Comments on Australia dated 28 July 2000: With respect to Article 1 of the Covenant, the Committee takes note of the explanation given by the delegation that rather than the term self-determination the Government of the State party prefers terms such as self-management and self-empowerment to express domestically the principle of indigenous peoples exercising meaningful control over their affairs. The Committee is concerned that sufficient action has not been taken in that regard. The State party should take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and resources (Article 1, para 2). Likewise, the governments failure to acknowledge the application of the principle of self-determination to Indigenous peoples constitutes a breach of Article 1 of ICESCR, including its obligations under Article 1(3) of the Convention to promote the realization of the right to self-determination. 6. Indigenous People in Custody Summary of Issue The Indigenous prisoner population has more than doubled since 1988, and has increased by an average of 6.9% per year for the past decade. This is 1.7 times the average annual growth of the non-Indigenous prison population. Figures for the June 1999 quarter indicate that 76% of all prisoners in the Northern Territory and 34% of all prisoners in Western Australia were Indigenous. The rate of imprisonment for Indigenous people in the June 1999 quarter was 21.7 times the non-Indigenous rate in Western Australia. The rate in other states and territories is also unacceptably high 15.7 times in South Australia; 12.2 times in Victoria; 11.3 times in Queensland; 9.9 times in the Northern Territory and 5.1 times in Tasmania. The number of Indigenous deaths in custody in the decade since the Royal Commission into Aboriginal Deaths in Custody has also increased: To September 1999 there had been 147 deaths in custody, compared to the 99 in the decade preceding the Royal Commission; In the 9 months since September 1999 there have been a further 8 Indigenous deaths in custody in Western Australia alone; and 17.2% of all prison deaths in the 1990s have been of Indigenous people compared to 12.1% in the 1980s. Relevance to CERD General Recommendation XXI: Self-determination; and Articles 2 and 5: Non-discrimination and equality. General Recommendation XXI: Self-determination The Royal Commission into Aboriginal Deaths in Custody prescribed self-determination as being necessary for Aboriginal and Torres Strait Islander peoples to overcome their previous and continuing, institutionalised disadvantage and domination. The thrust of this report is that the elimination of disadvantage requires an end of domination and an empowerment of Aboriginal people; that control of their lives, of their communities must be returned to Aboriginal hands. Articles 2 and 5: Non-discrimination and equality The Royal Commission report highlighted the inequality that exists between Indigenous and non-Indigenous peoples in Australia in relation to every major socio-economic indicator. The continuing over-representation of Indigenous prisoners in Australian gaols and the high levels of Indigenous deaths in custody indicate that the underlying causes of Indigenous disadvantage have not been addressed since the publication of the Commission Report in 1991. Relevance to the ICCPR Articles 2 and 26: Non-discrimination and equality; and Article 6: Right to life. Articles 2 and 26: Non-discrimination and equality before the law The Royal Commission report identified reducing Indigenous inequality and redressing disadvantage as crucial to reducing the rate of incarceration of Indigenous people. In its Concluding Observations on Australia in March 2000, the Committee on the Elimination of Racial Discrimination recommended, at paragraph 15: that the State party increase its efforts to seek effective measures to address the socio-economic marginalization, the discriminatory approach to law enforcement, and the lack of sufficient diversionary programmes. Article 6: Right to life States parties are required to take adequate steps to protect the life of prisoners, as required by Article 6 (1) of the Covenant. Australian governments should take greater measures to combat Indigenous over-representation in prisons and to ensure that all recommendations of the Royal Commission into Aboriginal Deaths in Custody are fully implemented to ensure the highest level of protection of the lives of prisoners in State custody. Relevance to ICESCR Article 1: Self-determination; and Article 2: Non-discrimination. No levels of government have responded adequately to the recommendations of the Royal Commission into Aboriginal Deaths in Custody, or to the National Inquiry into the Separation of Aboriginal and Torres Strait Islander 鱨վ from their Families. These reports make numerous recommendations aimed to redress the underlying causes of Indigenous over-representation in the criminal justice system, juvenile justice and care and protection systems. The situation in respect of Indigenous deaths in custody and over representation in the prison system represents a major failure of social justice in Australia. These problems have been exacerbated by law and order legislative changes, such as mandatory sentencing, which despite their apparent neutrality in terms of racial effect, are generally understood to impact disproportionately on Indigenous Australians. 7. Mandatory Sentencing Summary of Issue Mandatory sentencing laws were enacted in Western Australia and the Northern Territory in 1996 and 1997 respectively, for juvenile and adult offenders. These laws require that offenders automatically go to jail for minimum prescribed periods for particular offences. Case studies of the impact of the laws demonstrate their arbitrary and discriminatory nature. Mandatory sentencing laws target particular property offences generally committed by people of lower socio-economic backgrounds. They are discriminatory in effect against Indigenous people in particular. The overriding aim of mandatory sentencing laws is incapacitation rather than rehabilitation. They do not have regard to the circumstances of juvenile offenders. Mandatory sentencing laws breach several provisions of the Convention on the Rights of the Child, and in some circumstances can result in harsher treatment for juveniles than adults who commit the same crime. There are alternatives to mandatory sentencing that are consistent with Australias obligations under the Convention. The federal government has constitutional power to override mandatory sentencing laws but has explicitly chosen not to do so, in breach of its obligations under Article 50. Relevance to the CERD Australias failure to protect human rights in areas within state or territory jurisdiction was cited by CERD as a cause for concern in its Concluding Comments on Australia in 1994. In its concluding observations on Australia of March 2000, the CERD expressed the view that: the Commonwealth Government undertake appropriate measures to ensure the consistent application of the provisions of the Convention, in accordance with Article 27 of the Vienna Convention on the Law of Treaties, at all levels of government, including states and territories, and if necessary by calling on its power to override territory laws and using its external affairs power with regard to state laws. Relevance to ICCPR Article 9: Liberty and security; Article 10: Rehabilitation; Article 14: Juvenile offenders and right to appeal a sentence; Article 24: Rights of the child; Articles 2 and 26: Non-discrimination and equality; and Article 50: Federal obligation to ensure compliance with obligations. Article 9: Liberty and Security Article 9(1) of the ICCPR provides that [n]o one shall be subject to arbitrary arrest or detention. The term arbitrary includes not only actions that are unlawful per se but also those that are unjust or unreasonable. Decisions of the HRC indicate that detention must be a proportionate means to achieve a legitimate aim, having regard to whether there are alternative means available which are less restrictive of rights. Mandatory sentencing clearly breaches Article 9(1) as it is imposed for the most trivial of offences. The punishment of imprisonment in many cases simply does not fit the crime. Article 10: Rehabilitation Mandatory sentencing regimes in Western Australia and the Northern Territory raise concerns under Article 10(3) of the Convention. Article 10(3) states, inter alia, that the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Incarceration is generally accepted as being ineffective in promoting rehabilitation. The HRC has referred to Article 10(3) in its Concluding Comments on Belgium: 19 Bearing in mind that pursuant to Article 10, paragraph 3, of the Covenant, the essential aim of incarceration should be the reformation and social rehabilitation of offenders, the Committee urges the State party to develop rehabilitation programs both for the time during imprisonment and for the period after release, when ex-offenders must be reintegrated into society if they are not to become recidivists. Article 14(4): Age and rehabilitation of juvenile offenders Article 14(4) provides that in the case of juveniles the procedure shall take account of their age and promote their rehabilitation. Mandatory detention removes the courts discretion to take these factors into account. The recent amendments to the NT regime do not redress this situation. Mandatory sentencing breaches Article 14(4) for the reasons cited above regarding Article 10(3). Article 14(5): Right to appeal a sentence Article 14(5) provides that the sentence be reviewable by a higher tribunal according to law. The HRC has interpreted the phrase according to law in Article 14.5 of the ICCPR as not intended to leave the very existence of the right to review to the discretion of the States parties. The mandatory detention laws in the Northern Territory and Western Australia do not allow for a right of appeal against the sentence, if the sentence should equate with the minimum permitted, and is therefore in breach of the ICCPR. The agreement between the Commonwealth government and the Northern Territory government for the diversion of juveniles from custody provides that police in the Northern Territory will have discretion to divert juveniles at the pre-charge stage. This agreement does not confer any greater discretion upon the courts; rather, discretion is vested in police officers to decide whether to pursue a matter through the courts, in which case mandatory sentencing will apply, or through diversionary programs. Article 24: Rights of the Child Article 24 of the ICCPR recognises the right of every child, without any discrimination, to receive from his family, society and the State the protection required by his status as a minor. This also entails the adoption of special measures to protect children. Under the Western Australian system, no inherent concession is given to juveniles apart from the possibility of detaining such people in a prescribed detention centre rather than a prison. Some concessions are given to children under the Northern Territory regime, although the NT regime is harsher than the WA regime. Under the Northern Territory mandatory sentencing regime, a juvenile can possibly be sentenced to 28 days imprisonment whereas an adult would be sentenced to 14 days imprisonment for the same crime under the NT regime. Mandatory sentencing is also inconsistent with several Articles of the Convention on the Rights of the Child (CROC), namely Article 3.1, 37(b), 40.2(b) and 40.4. Violations of these Articles of CROC constitute persuasive evidence of violations of Article 24 of the ICCPR. Articles 2 and 26: Equality and non-discrimination Where a pattern of sentencing reveals that certain groups are more likely to receive the harshest penalties, sentencing is discriminatory. Indigenous offenders more commonly commit the offences targeted for mandatory sentencing than non-Indigenous offenders. The arbitrariness of the distinction between property offences and other types of theft, the latter not being subjected to mandatory sentencing, is demonstrated by the following example. Whereas the theft of petrol from a bowser will attract a mandatory sentence, the theft of a tankful of petrol through the use of a fraudulent credit card does not. Indigenous peoples do not commonly commit the latter type of white collar crimes. Indirect discrimination is prohibited under Articles 2(1) and 26 of the Covenant. Programs that provide support for people at risk of offending are the most successful in preventing crime. Early intervention and social support programs are essential as a means of protecting against later offending. Such provisions are compatible with and are even required by CROC and Article 24 of the ICCPR. Article 50: Federal obligation to ensure compliance with obligations Under section 51(xxix) of the Constitution, the external affairs power, the Commonwealth has undoubted power to implement its international treaty obligations, including the ICCPR, and is accountable for failures of the states and territories to comply with these obligations. Accordingly, the federal government has power to override mandatory sentencing laws in Western Australia and the Northern Territory. In 1999, a private members bill seeking to override mandatory sentencing laws in relation to juvenile offenders (Human Rights (Mandatory sentencing of Juvenile Offenders) Bill 1999) was introduced to the Australian Senate. The bill passed through the upper house in March 2000. The bill has not been considered by the lower house of Parliament, and consequently has not been introduced. Relevance to the ICESCR Article 2: Non-discrimination, special measures and progressive realization of rights There is a link between the involvement of young Indigenous people in the criminal justice system and the failure of the State to meet its obligations to redress the inequality and disadvantage faced by Indigenous youth. A response by the State that mandates detention with no regard to the offenders circumstances thus is retrogressive and does not meet Australias obligations under Article 2 of the Covenant to realize progressively the economic, social and cultural rights of Indigenous Australians. 8. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander 鱨վ and Their Families, Bringing Them Home Summary of Issue The Human Rights and Equal Opportunity Commission conducted an inquiry into the forcible removal of Aboriginal and Torres Strait Islander 鱨վ from their families. The report, Bringing them home, was released in May 1997. The report identified that: Forcible removal policies saw the removal of between 1 in 3 and 1 in 10 Indigenous children, in the period 1910 to 1970; The effects of such removal were, for most victims, negative, multiple and profoundly disabling; Removal laws were racially discriminatory, and genocidal in intent; For many children removed there were breaches of fiduciary duty and duty of care, as well as criminal actions. The report adopted the van Boven principles for reparation for gross violations of human rights as the basis of recommendations for addressing the harm caused. The report also considered contemporary forms of separation, and recommended the introduction of national standards and framework legislation incorporating international human rights standards for the treatment of Indigenous children. The government responded to the report in 1997 with a $43 million package. The government has rejected recommendations for compensation and other forms of reparation. In April 2000, the government made a submission to the Senate Legal and Constitutional References Committee inquiry into the stolen generation. The government submission rejected further recommendations of the report. It claimed that: There is no stolen generation: the forcible removal of children did not amount to a gross violation of human rights and was not genocidal; The number of people forcibly removed was significantly less than Bringing them home had suggested; The methodology of the report was flawed; There is no basis for making reparations, including monetary compensation; and The van Boven principles are not binding in international law. The Commission has noted that the governments reasoning is flawed as it does not acknowledge that: the van Boven principles are a synthesis of international law and practice, which incorporate obligations across a range of international instruments; racial discrimination and genocide were standards of the day against which forcible removal policies should be evaluated; the definition of genocide in the Genocide Convention extends to situations where there are mixed motives, some of which may be perceived as beneficial, and where there is not physical killing, and without the complete destruction of the group; and forcible removal policies were racially discriminatory. The governments suggestion that the payment of monetary compensation is problematic reflects a lack of political will rather than any true impediment. Relevance to the CERD Articles 2 and 5: Non-discrimination and equality; and General Recommendations XXI and XXIII: Self determination and Indigenous peoples. Articles 2 and 5 There remains an obligation to redress this past discrimination and to provide effective remedy through competent authorities for any person whose rights or freedoms have been violated. The Commonwealth Government rejected the proposal for reparations or monetary compensation, and has adopted a watching brief in respect of ongoing litigation. Additionally, despite Australia being a signatory to the 1949 Convention on the Prevention and Punishment of the Crime of Genocide, successive governments have not enshrined this law domestically. Bringing them home recommended that the Commonwealth Government legislate to implement the Genocide Convention with full domestic effect as part of official recognition that removal policies of the past are over and will not be repeated. In response, the Commonwealth Government claimed that no genocide occurred in Australia, so therefore there was no need to implement the Convention. In October 1999, the Senate referred an Anti-Genocide Bill put forward by the Australian Democrats to the Legal and Constitutional References Committee for investigation and review by June 2000. General Recommendations XXI and XXIII Bringing them home recommended that self-determination be implemented in relation to the well-being of Indigenous children and young people through national framework legislation for juvenile justice and care and protection systems. The Commonwealth Government actively rejected these recommendations. Relevance to ICESCR Article 1: Self-determination; Article 2: Non-discrimination; and Article 11: The right to adequate housing. Bringing them home made it clear that the policies and practices underlying the removal of Aboriginal children from their families were discriminatory. In addition, the profound problems suffered by Indigenous people and communities are ongoing, and a failure to address those problems and to implement the recommendations of the Report impact on the present and future generations of Indigenous people. Bringing them home recommended self-determination for Indigenous children and young people be implemented through national framework legislation for juvenile justice and care and protection systems. The Commonwealth Government actively rejected these recommendations. The past widespread practice of unjustifiable forced removal of Indigenous children from their families, and the present situation where the Government refuses to acknowledge this history through an apology and through the possibility of providing compensation, raises issues of compliance with Australia's obligations under the Covenant, in particular in respect of Article 1, self-determination, and Article 2, non-discrimination. Article 11, the right to adequate housing is also relevant. The removal of Indigenous children, and the ongoing failure to provide an adequate response, would appear to be a violation of the sanctity and privacy of the family. 9. The Abolition of Bilingual Education Programs in the Northern Territory Summary of Issue In December 1998 the Northern Territory Government announced that it was phasing out bilingual education programs in government schools in Aboriginal communities, and replacing them with English as a Second Language programs because of the low standards of English literacy among Aboriginal students. Many Aboriginal communities who currently have bilingual education programs have stated that the decision of the Northern Territory Government was made without appropriate consultation or a genuine desire to address the systemic issues underlying the vastly disproportionate rate of Aboriginal students participation in education. The integration of Aboriginal languages into the formal education system through bilingual programs makes schooling more accessible to Aboriginal students, and also values Aboriginal educators and knowledge. Aboriginal communities state that the success of the education of their children should be measured not only by standards of English literacy, but also by respect for their rights to education, language, culture and land. Relevance to CERD Article 5: Non-discrimination Bilingual education programs recognise cultural difference in a manner that is non-discriminatory in international law. The CERD has recognized that measures that seek to protect the culture and identity of Indigenous peoples may constitute a legitimate, non-discriminatory differentiation of treatment, and fall within Article 5 of the Convention. The Committee has called upon States parties in particular to: recognize and respect Indigenous distinct culture, history, language and way of life as an enrichment of the States cultural identity and to promote its preservation; [and] d. ensure that members of Indigenous groups have equal rights in respect of effective participation and that no decisions directly relating to their rights and interests are taken without their informed consent; e. ensure that Indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages. Relevance to ICESCR Article 1: Self-determination The lack of appropriate Indigenous participation in the Northern Territory decision to abandon bilingual education also breaches Australias obligations to respect the self-determination rights of its Indigenous peoples under Article 1. For many Indigenous people, this announcement was an example of ongoing attempts to undermine their right to control their own lives, by denying the choice of mode of education for their children and threatening the viability of remaining languages. It is also inconsistent with the consistently expressed desires of Indigenous people in the Northern Territory for greater community control over educational processes. 10. Interpreter Services in Aboriginal Languages in the Northern Territory Summary of Issue There has been significant concern expressed by Indigenous people in the Northern Territory at the lack of availability of interpreter services in Aboriginal languages for services, especially health and legal services. In response, the Northern Territory Anti-Discrimination Commissioner conducted an inquiry into: whether there is a need for an interpreter service; the effect of a lack of interpreter service on access to government services for Indigenous people; the extent of disadvantage suffered by Indigenous people as a result of the lack of interpreter services in the delivery of legal and medical services; feasibility of establishing a permanent service, as well as how such a service might work (including cost, number of languages, training and access and availability due to geographical issues etc); and alternative approaches to ensure equal access to services and facilities. In July 1999 the then Northern Territory Anti-Discrimination Commissioner published her report of inquiry into the lack of interpreter services. The report found as follows: Aboriginal people represent 27% of the population in the Northern Territory, of which 74.5% speak an Indigenous language and have a poor understanding of English; Aboriginal people are not provided with interpreter services to assist with language difficulties in accessing community services, particularly health and legal services; By comparison, all other people of non-English speaking background (who comprise 8% of the Territorys population) are able to access free interpreter services in over 150 languages; Aboriginal people represent in excess of 50% of clients utilising legal and medical services and facilities in the Northern Territory. However, they are unable to properly access and utilise those services, due to cultural and language barriers which exist, which inhibits communication between themselves and service providers, resulting in extreme difficulties and problems causing inappropriate, inefficient and non-cost effective delivery of services. The consequences of this are that many Indigenous people are unable to provide their informed consent to invasive medical procedures, as well as to understand court procedures. The inquiry heard numerous horror stories of medical procedures performed without consent, as well as widespread concern from the judiciary and members of the legal profession on the need for interpreter services in legal processes. In relation to legal services it is important to recall that the Royal Commission into Aboriginal Deaths in Custody recommended (recommendation 99) that legislation in all jurisdiction should provide that the court must be satisfied that an Aboriginal defendant has the ability to fully express himself or herself in the English language. If they cannot, then the Court should not proceed until a competent interpreter is provided without cost to that person. The report also concluded that the failure to provide interpreter services was in breach of the Northern Territory Anti-Discrimination Act 1992 and the federal Racial Discrimination Act 1975. The Commissioner particularly expressed concern that both acts contain special measures provisions that could be used overcome this particular disadvantage faced by Aboriginal people. Relevance to the CERD Articles 1(4), 2 and 5 of CERD are also breached by the lack of interpreter services. The Northern Territory government is opposed to establishing an interpreter service, and the Commonwealth government sees the provision of this service as an internal matter for the Northern Territory. Relevance to the ICCPR The report also concluded that the failure to provide interpreter services contravenes Australias obligations under the ICCPR. In particular, it is in breach of the following provisions: Articles 9(2): The right of a person who is arrested to be promptly informed of the reason for arrest and of any charges to be laid; Article 14(3)(f): The right of a person charged with a criminal offence, in full equality and as a minimum guarantee, to have the free assistance of an interpreter in court; and Article 26: Equality before the law. Appendix 2: Concluding observations on Australia of the Committee on the Elimination of Racial Discrimination, 24 March 2000  HYPERLINK "http://www.unhchr.ch/tbs/doc.nsf/0aaaf27dc27a25c58025677e004bf696?OpenNavigator" \m  INCLUDEPICTURE "http://www.unhchr.ch/tbs/doc.nsf/0aaaf27dc27a25c58025677e004bf696/$NavImagemap/0.52?OpenElement&FieldElemFormat=gif" \* MERGEFORMATINET   HYPERLINK "http://www.unhchr.ch/tbs/doc.nsf/0fd3f013d5fe99608025677e004efe7b?OpenNavigator" \m  INCLUDEPICTURE "http://www.unhchr.ch/tbs/doc.nsf/0fd3f013d5fe99608025677e004efe7b/$NavImagemap/0.52?OpenElement&FieldElemFormat=gif" \* MERGEFORMATINET  Distr. GENERAL CERD/C/304/Add.101 19 April 2000 Original: ENGLISH   INCLUDEPICTURE "http://www.unhchr.ch/tbs/doc.nsf/5be0bcbc71fea322802567580057941d/$Body/0.1A60?OpenElement&FieldElemFormat=gif" \* MERGEFORMATINET Concluding Observations by the Committee on the Elimination of Racial Discrimination : Australia. 19/04/2000. CERD/C/304/Add.101. (Concluding Observations/Comments) COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION Fifty-sixth session 6-24 March 2000 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 tenth, eleventh and twelfth periodic reports of Australia, submitted as one document (CERD/C/335/Add.2), at its 1393rd, 1394th and 1395th meetings (CERD/C/SR.1393, 1394 and 1395), held on 21 and 22 March 2000. At its 1398th meeting, held on 24 March 2000, it adopted the following concluding observations. A. Introduction 2. The Committee welcomes the reports submitted by the State party and the additional oral and written information provided by the delegation, while regretting the late submission of the tenth and eleventh periodic reports. Appreciation is expressed for the comprehensiveness of the report and of the oral presentation. The Committee was encouraged by the attendance of a high-ranking delegation and expresses its appreciation for the constructive responses of its members to the questions asked. 3. The Committee acknowledges that the State party has addressed some of the concerns and recommendations of the Committee's concluding observations on the ninth periodic report (A/49/18, paras. 535-551). B. Positive aspects 4. The Committee is encouraged by the attention given by the State party to its obligations under the Convention and to the work of the Committee. 5. The Committee notes with appreciation the many measures adopted by the State party during the period under review (1992-1998) in the area of racial discrimination, including those adopted to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody. The Committee welcomes the numerous legislative measures, institutional arrangements, programmes and policies that focus on racial discrimination, as comprehensively detailed in the tenth, eleventh and twelfth reports, including the launching of a "New Agenda for Multicultural Australia" and the implementation of the "Living in Harmony" initiative. C. Concerns and recommendations 6. The Committee is concerned over the absence from Australian law of any entrenched guarantee against racial discrimination that would override subsequent law of the Commonwealth, states and territories. 7. The Committee reiterates its recommendation that the Commonwealth Government should undertake appropriate measures to ensure the consistent application of the provisions of the Convention, in accordance with article 27 of the Vienna Convention on the Law of Treaties, at all levels of government, including states and territories, and if necessary by calling on its power to override territory laws and using its external affairs power with regard to state laws. 8. The Committee notes that, after its renewed examination in August 1999 of the provisions of the Native Title Act as amended in 1998, the devolution of power to legislate on the "future acts" regime has resulted in the drafting of state and territory legislation to establish detailed "future acts" regimes which contain provisions further reducing the protection of the rights of native title claimants that is available under Commonwealth legislation. Noting that the Commonwealth Senate on 31 August 1999 rejected one such regime, the Committee recommends that similarly close scrutiny continue to be given to any other proposed state and territory legislation to ensure that protection of the rights of indigenous peoples will not be reduced further. 9. Concern is expressed at the unsatisfactory response to decisions 2 (54) (March 1999) and 2 (55) (August 1999) of the Committee and at the continuing risk of further impairment of the rights of Australia's indigenous communities. The Committee reaffirms all aspects of its decisions 2 (54) and 2 (55) and reiterates its recommendation that the State party should ensure effective participation by indigenous communities in decisions affecting their land rights, as required under article 5 (c) of the Convention and General Recommendation XXIII of the Committee, which stresses the importance of securing the "informed consent" of indigenous peoples. The Committee recommends to the State party to provide full information on this issue in the next periodic report. 10. The Committee notes that the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund is conducting an inquiry into "Consistency of the Native Title Amendment Act 1998 with Australia's international obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD)". It is hoped that the results will assist the State party to re-evaluate its response to decisions 2 (54) and 2 (55). The Committee requests the State party, in accordance with the provisions of article 9, paragraph 1, of the Convention, to transmit the report of the Joint Parliamentary Committee's inquiry to the Committee when it is tabled. 11. The establishment of the Aboriginal and Torres Strait Islander Commission (ATSIC) and of the Aboriginal and Torres Strait Islander Social Justice Commissioner within the Human Rights and Equal Opportunity Commission (HREOC) were welcomed by the Committee. Concern is expressed that changes introduced and under discussion regarding the functioning of both institutions may have an adverse effect on the carrying out of their functions. The Committee recommends that the State party give careful consideration to the proposed institutional changes, so that these institutions preserve their capacity to address the full range of issues regarding the indigenous community. 12. While acknowledging the significant efforts that have taken place to achieve reconciliation, concern is expressed about the apparent loss of confidence by the indigenous community in the process of reconciliation. The Committee recommends that the State party take appropriate measures to ensure that the reconciliation process is conducted on the basis of robust engagement and effective leadership, so as to lead to meaningful reconciliation, genuinely embraced by both the indigenous population and the population at large. 13. The Committee notes the conclusions of the "National Inquiry into the Separation of Aboriginal and Torres Strait Islander 鱨վ from their Families" and acknowledges the measures taken to facilitate family reunion and to improve counselling and family support services for the victims. Concern is expressed that the Commonwealth Government does not support a formal national apology and that it considers inappropriate the provision of monetary compensation for those forcibly and unjustifiably separated from their families, on the grounds that such practices were sanctioned by law at the time and were intended to "assist the people whom they affected". The Committee recommends that the State party consider the need to address appropriately the extraordinary harm inflicted by these racially discriminatory practices. 14. The Committee acknowledges the adoption of the Racial Hatred Act 1995 which has introduced a civil law prohibition of offensive, insulting, humiliating or intimidating behaviour based on race. The Committee recommends that the State party continue making efforts to adopt appropriate legislation with a view to giving full effect to the provisions of, and withdrawing its reservation to, article 4 (a) of the Convention. 15. The Committee notes with grave concern that the rate of incarceration of indigenous people is disproportionately high compared with the general population. Concern is also expressed that the provision of appropriate interpretation services is not always fully guaranteed to indigenous people in the criminal process. The Committee recommends that the State party increase its efforts to seek effective measures to address socio-economic marginalization, the discriminatory approach to law enforcement and the lack of sufficient diversionary programmes. 16. The Committee expresses its concern about the minimum mandatory sentencing schemes with regard to minor property offences enacted in Western Australia, and in particular in the Northern Territory. The mandatory sentencing schemes appear to target offences that are committed disproportionately by indigenous Australians, especially juveniles, leading to a racially discriminatory impact on their rate of incarceration. The Committee seriously questions the compatibility of these laws with the State party's obligations under the Convention and recommends to the State party to review all laws and practices in this field. 17. Taking note of some recent statements from the State party in relation to asylum-seekers, the Committee recommends that the State party implement faithfully the provisions of the 1951 Convention relating to the Status of Refugees, as well as the 1967 Protocol thereto, with a view to continuing its cooperation with the United Nations High Commissioner for Refugees and in accordance with the guidelines in UNHCR's "Handbook on Refugee Determination Procedures". 18. The Committee acknowledges the efforts being made to increase spending on health, housing, employment and education programmes for indigenous Australians. Serious concern remains at the extent of the continuing discrimination faced by indigenous Australians in the enjoyment of their economic, social and cultural rights. The Committee remains seriously concerned about the extent of the dramatic inequality still experienced by an indigenous population that represents only 2.1 per cent of the total population of a highly developed industrialized State. The Committee recommends that the State party ensure, within the shortest time possible, that sufficient resources are allocated to eradicate these disparities. 19. The Committee recommends that the State party's reports be made widely available to the public from the time they are submitted and that the Committee's observations on them be similarly publicized. 20. The Committee recommends that the State party's next periodic report, due on 30 October 2000, be an updating report and that it address the points raised in the present observations. PAGE  PAGE  PAGE 169  Fleiner, T, What are human rights?, The Federation Press, Sydney 1999, p36.  Russell, P, Corroboree 2000 A national defining event (2000) 15 Arena Journal 25, p27.  Jonas, W., Practical makes imperfect, The Australian, Thursday 25 May 2000.  Stanner, W.E.H., The Boyer Lectures, ABC 1968, as quoted in ODonoghue, Ending the despair (1992) 51 Australian Journal of Public Administration 212, p215.  Final Report of the Royal Commission into Aboriginal Deaths in Custody (1991) as quoted in ATSIC, Regional autonomy for Aboriginal and Torres Strait Islander Communities Discussion paper, ATSIC Canberra 1999, p9.  The Hon. R Tickner, Council for Aboriginal Reconciliation 2nd Reading Speech, House of Representatives, Hansard, 30-31 May 1991, p4498.  See further the 2nd reading debate on the Council for Aboriginal Reconciliation Bill 1991: House of Representatives, Hansard, 5 June 1991, pp 4826-4854.  Mabo v Queensland (No.2) (1992) 175 CLR 1.  Native title is also able to be recognised over water, though the full extent of this recognition remains undecided by the courts: see further, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 2000, Chapter 3, HREOC 2000 (Herein Native title report 2000); Yarmirr v Northern Territory [No.2](1998) 156 ALR 370.  Gray, P., Do the walls have ears? Indigenous title and the courts in Australia (2000) 5 AILR 1, p1.  Mabo v Queensland (No.2) (1992) 175 CLR 1, per Deane and Gaudron JJ, p109.  See for example the reasoning of the High Court in Fejo v Northern Territory (1998) 195 CLR 96 and the full Federal Court in Yarmirr v Northern Territory[No.2] (1998) 156 ALR 370 that the recognition of native title must not fracture the skeletal shell of the legal system as the basis for not recognising native title as subsisting in certain circumstances and in certain manifestations.  Gray, P., op.cit, p1.  New York Times Book Review, 6 March 1988, quoted in Turner, S., Settlement as forgetting in Neumann, K., Thomas, N., and Ericksen, H. (eds), Quicksands Foundation histories in Australia and Aotearoa New Zealand, UNSW Press, Sydney, 1999, p20.  ibid, p33.  Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1999, pp 97-98.  Quoted in Rowse, T., A spear in the foot of Senator Evans in Neumann, K, Thomas, N, and Ericksen, H (eds), op.cit, p217.  Barkin, E., The guilt of nations, Norton, New York, 2000, p x.  Council for Aboriginal Reconciliation and Centre for Aboriginal Economic Policy Research, Towards a benchmarking framework for service delivery to Indigenous Australians, Commonwealth of Australia, Canberra, 1998, p14.  Aboriginal and Torres Strait Islander Commission, Recognition, rights & reform, ATSIC, Canberra, 1995, para 1.8.  ibid.  ibid. In 1991, Jon Altman and Will Sanders argued that the rapidity of the movement from a position of exclusion from mainstream society to the dependency on welfare by the 1990s had been a major achievement, albeit the first step: Altman, J and Sanders, W, From exclusion to dependence Aborigines and the welfare state in Australia, Centre for Aboriginal Economic Policy, ANU, Canberra, 1991.  See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1999, HREOC Sydney 1999, Chapter 2; Taylor, J and Hunter, B., The job still ahead: Economic costs of continuing Indigenous employment disparity, Centre for Aboriginal Economic Policy Research, ANU, Canberra, 1998.  Saulwick & Associates, and Muller & Associates, Research into issues related to a document of reconciliation Report No.2: Indigenous qualitative research, Council for Aboriginal Reconciliation, Canberra, May 2000,  HYPERLINK "http://www.reconciliation.org.au" www.reconciliation.org.au, p6.  See further: Altman, J. (Ed), Aboriginal employment equity by the year 2000, Centre for Aboriginal Economic Policy Research, ANU 1991.  As CAEPR have noted, due to the extremely young age structure of the Indigenous population, a significantly high percentage of Indigenous people will be entering working age in the next decade. Consequently, to attempt to close the gap (in labour force status) between Indigenous and other Australians, will require an absolute and relative expansion in Indigenous employment that is without precedent.: Taylor, J and Hunter, B, op.cit, piv. See also: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1999, op.cit, Chapter 2.  CAR and CAEPR, Towards a benchmarking framework for service delivery to Indigenous Australians, op.cit, p17.  Mabo v Queensland (No.2) per Brennan J, p 39.  See further: Human Rights and Equal Opportunity Commission, Bringing them home, HREOC, Sydney, 1997, Chapter 2.  See further: Senator the Hon J. Herron, Submission to the stolen generation inquiry, Minister for Aboriginal Affairs, Canberra, March 2000.  Royal Commission into Aboriginal Peoples, Volume 1: Looking forward, looking back, Minister of Supply and Services, Ottawa, 1996, pp607-08.  Social justice report 1999, op.cit, p4.  Rose, D.B., Hard times: An Australian study in Neumann, K, Thomas, N, and Ericksen, H (eds), op.cit, p7.  ibid.  Note that on 26 August 1999 both houses of federal Parliament passed a motion of reconciliation, which in addition to identifying reconciliation as an important national priority, expressed deep and sincere regret for practices of past generations: Hansard, House of Representatives, 26 August 1999, p 9205.  Recommendation 5a of Bringing them home called for all Australian Parliaments to officially acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal. Only the Northern Territory and the Commonwealth Parliament have not done so.  Motion of reconciliation, Hansard, House of Representatives, 26 August 1999, p 9205.  See further Chapter 5 of this report.  Dr M Wooldridge, Hansard, House of Representatives, 5 June 1991, p4827.  Deane, W., Some signposts from Dagaragu, citation, p12.  Saulwick & Associates, and Muller & Associates, op.cit, p16.  ibid, p8.  Royal Commission into Aboriginal Deaths in Custody, Volume One: Looking forward, looking back, op.cit, p677.  Dodson, P., Beyond the mourning gate Dealing with unfinished business, Wentworth Lecture 2000, AIATSIS, Canberra, 12 May 2000, < HYPERLINK "http://www.aiatsis.gov.au/corporate/docs/wentworth2000.htm" www.aiatsis.gov.au/corporate/docs/wentworth2000.htm>, p6.  Royal Commission into Aboriginal Deaths in Custody, Volume One: Looking forward, looking back, op.cit, p677.  ibid, Chapter 16. In particular see pp677-691.  See for example, Minister of Indian Affairs and Northern Development, 2000 progress report on Gathering strength, Ottawa, July 2000, Available online at  HYPERLINK "http://www.inac.gc.ca" www.inac.gc.ca.  Dodson, ., Beyond the mourning gate Dealing with unfinished business, op.cit, p7.  Motion of Reconciliation, op.cit, p 9205.  This adds a further dimension to the denialism of the past discussed above. Not only is the past disjunctive from present circumstances, but the possibility of future imbalances is also harnessed to limit action in the present.  Saulwick, I. and Muller, D., op.cit, pp 24-25.  ibid, pp 8-12.  The Hon J Howard, Reconciliation documents, Press release, 11 May 2000.  The Hon P Ruddock, Government supports many aspects of the Councils roadmap, Press release, 11 May 2000.  Deane, W., Some signposts from Dagarugu, op.cit, p16.  Robinson, M., United Nations High Commissioner for Human Rights, The universality of human rights, Statement, Bonn, 11 November 1999.  World Conference against Racism, Racial Discrimination, xenophobia and related intolerance, Tolerance and diversity: A vision for the 21st century, Office of the High Commissioner for Human Rights, Geneva 2000.  This obligation arises in the following treaties: International Covenant on Civil and Political Rights, Articles 2 and 26; International Covenant on Economic, Social and Cultural Rights, Article 2; International Convention on the Elimination of All Forms of Racial Discrimination, Articles 1, 2 and 5; and Convention on the Rights of the Child, Article 2.  Human Rights Committee, General comment XVIII, Non-discrimination (1989), para 9 in United Nations, Compilation of General Comments and General Recommendations adopted by the United Nations human rights treaty bodies, UN Doc HR1/GEN/Rev.1, p26; See also Committee on the Elimination of Racial Discrimination, General Recommendation XIV on article 1, paragraph 1 of the Convention, para 2, in Committee on the Elimination of Racial Discrimination, Compilation of General Recommendations, UN Doc CERD/C/365. For a more detailed discussion of these principles see: Social justice report 1999, op.cit, pp 50-53; and Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1998, HREOC, Sydney, 1999, Chapters 2 and 3.  Committee on the Elimination of Racial Discrimination, General Recommendation XXIII Indigenous peoples, UN Doc CERD/C/51/Misc.13/Rev.4, 18 August 1997, para 3.  ibid, para 4.  Tony Anghie, quoted in Charlesworth, H., Human rights and reconciliation in international perspective in Magarey, S. (ed), Human rights and reconciliation in Australia, University of Queensland Press, St Lucia, 1999, p20.  Saulwick, I. and Muller, D., op.cit, p94.  Hunter, B., Three nations not one: Indigenous and other Australian poverty, CAEPR Working Paper 1/1999, Canberra 1999, Available online at: http://www.anu.edu.au/caepr/working/wp1.pdf  I explained why these concerns are unwarranted in my previous report: Social justice report 1999, op.cit, pp 7-14.  Saulwick, I and Muller, D, op.cit, p10.  Note that in commenting on the documents of reconciliation on their release in May 2000, the government indicated that it broadly supports the strategies for addressing disadvantage, economic empowerment and sustaining the reconciliation process, but not the strategy for the recognition of Aboriginal and Torres Strait Islander rights: The Hon P Ruddock, Government supports many aspects of the Councils Roadmap, Press release, 11 May 2000.  See the discussion of this in my previous report: Social justice report 1999, op.cit, pp 2-7.  Aboriginal and Torres Strait Islander Commission, Recognition, rights and reform, ATSIC Canberra 1995, p ix-x. See also: Aboriginal and Torres Strait Islander Social Justice Commissioner, Volume 1: Indigenous social justice: Strategies and recommendations, HREOC, Sydney, 1995, p5.  Social justice report 1999, op.cit, p6.  House of Representatives Standing Committee on Family and Community Affairs, Health is life, Parliament of Australia, Canberra, May 2000, paras 1.46-47.  ibid, para 1.76-1.77.  ICESCR, Article 2(1).  Committee on Economic, Social and Cultural Rights, General Comment 3: The nature of States Parties obligations (Article 2, para 1), 14/12/90, para 2.  ibid, para 10.  See further Social justice report 1999, op.cit, Chapter 2, and Human Rights and Equal Opportunity Commission, Submission to the Committee on Economic, Social and Cultural Rights, 3.Indigenous disadvantage, HREOC, Sydney, 2000, available at www.hreoc.gov.au/social_justice/html.  Royal Commission into Aboriginal Peoples, Volume 5: Renewal: A twenty year commitment, pp23-24.  ibid, p55.  ibid, p57.  ibid, pp57-58.  Taylor, J, and Altman, J, The job ahead Escalating economic costs of Indigenous employment disparity, ATSIC, Canberra 1997; Taylor, J, and Hunter, B, The job still ahead: Economic costs of continuing Indigenous employment disparity, ATSIC, Canberra, 1998.  Taylor, J, and Hunter, B, The job still ahead, ibid, Executive summary.  ibid.  See for example the World Health Organisation, Geneva Declaration on the health and survival of Indigenous peoples, concluded during an international consultation on the health of Indigenous peoples. The preamble states that the right of self-determination is vital to health outcomes: see Indigenous Peoples' Center for Documentation, Research and Information (doCip), doCip Update, No. 32-33 November 1999 / February 2000, doCip, Geneva 2000, www.docip.org.  The Hon J Howard, Reconciliation documents, Press release, 11 May 2000.  Rather, the vague and undefined concept of self-empowerment is preferred, and is said to engender a greater sense of responsibility and independence and to vary from self-determination in that it is a means to an end ultimately social and economic equality rather than merely an end in itself: Senator Herron, 9th Annual Joe and Enid Lyons Memorial Lecture, as quoted in Social justice report 1999, op.cit, pp19-20.  Social justice report, ibid, pp89-97.  Human Rights Committee (HRC) Concluding observations on Australia, UN Doc CCPR/CO/69/AUS, which states at para 10 that The State party should take the necessary steps in order to secure for the Indigenous inhabitants a stronger role in decision making over their traditional lands and natural resources (article 1, para 2); HRC, List of Issues: Australia, UN Doc: CCPR/C/69/L/AUS, 25/04/2000, Issue 4: What is the policy of Australia in relation to the applicability to the Indigenous peoples in Australia of the right of self-determination of all peoples?; Committee on Economic, Social and Cultural Rights (CESCR), List of Issues : Australia, UN Doc: E/C.12/Q/AUSTRAL/1, 23/05/2000, Issue 3: What are the issues relating to the rights of indigenous Australians to self-determination, and how have these issues impeded the full realization of their economic, social and cultural rights? See also: CESCR, List of issues: Canada, UN Doc: E/C.12/Q/CAN/1, 10 June 1998, Issue 23; CESCR, Concluding observations: Canada, UN Doc: E/C.12/1/Add.31, 10/12/98; HRC, Concluding observations: Canada, Un Doc: CCPR/C/79?Add.105, 7/4/99, paras 7,8; HRC, Concluding Observations: Norway, UN Doc: CCPR/C/79/Add.112, 05/11/99, paras 10 and 17, which provides (at para 17) that the Committee expects Norway to report on the Sami people's right to self-determination under Article 1 of the Covenant, including paragraph 2 of that article. The HRC has also confirmed that Indigenous peoples have a right to self-determination in the following individual communications: Lubicon Lake Band v Canada (1990) Un Doc: CCPR/C/38/D/167/1984; and Marshall (Mikmaq Tribal Society) (1991) UN Doc: CCPR/C/43/D/205/1986.  Article 1(1) of both the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). See also Article 3 Draft Declaration on the Rights of Indigenous Peoples.  ibid, Article 1(2).  ibid, Article 1(3).  Note this provision is also incorporated into the Draft Declaration on the Rights of Indigenous Peoples, Article 45 of which states that actions contrary to the Charter of the United Nations are not permitted.  Debeljak, J, Barriers to the recognition of Indigenous peoples human rights at the United Nations (2000) 26 Monash University Law Review 159, p171.  General Assembly Resolution 2625 (XXV).  Daes, E., Discrimination against Indigenous people Explanatory note concerning the draft declaration on the rights of Indigenous peoples, op.cit, para 21. Note: this explanatory note is considered by most Indigenous organizations participating in the negotiations over the Draft Declaration on the Rights of Indigenous Peoples to succinctly state the Indigenous viewpoint, and form the basis of negotiations with governments: doCip, doCip Update, No. 32-33 November 1999 / February 2000, op.cit.  Committee on the Elimination of Racial Discrimination (CERD), General Recommendation XXI, Self-determination, in CERD, Compilation of general recommendations, Un Doc CERD/C/365, para 11.  Human Rights Committee, General comment 23, the rights of minorities (article 27), 08/04/94, para 3.2.  Eide, A. and Daes, E., Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of Indigenous peoples, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para 15.  ATSIC, Recognition, rights and reform, op.cit, para 3.25.  Daes, E., Discrimination against Indigenous people Explanatory note concerning the draft declaration on the rights of Indigenous peoples, op.cit, para 26.  ibid., para 25.  Johan Galtung, quoted in Charlesworth, H., Human rights and reconciliation in international perspective, op.cit, p9.  Martinez, M., Study on treaties, agreements and other constructive arrangements between States and Indigenous populations, Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, UN Doc E/CN.4/Sub.2/1999/20, 22 June 1999, para 255.  Australia has appeared before four of the six United Nations human rights treaty committees in the year 2000. This is in relation to Australias periodic reports under the International Convention on the Elimination of All Forms of Racial Discrimination, which were considered in March 2000; under the International Covenant on Civil and Political Rights, considered in July 2000; the International Covenant on Economic, Social and Cultural Rights, considered in August 2000; and the Convention on Torture, Cruel, Inhuman and Degrading Treatment, considered in November 2000.  ICERD, Article 8(1).  The terminology of ICERD refers to States Parties, or States. States in this sense refers to nation states, ie the nation state of Australia, and not to internal states and territories within a nation.  The convention entered into force in Australia on 30 October 1975. For an overview of the Committees functions and procedures see United Nations High Commissioner for Human Rights, Fact Sheet No.12: The Committee on the Elimination of Racial Discrimination, .  ICERD, Article 9.  ibid. See further Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1999, pp 23-26.  ICERD, Article 14.  ICERD, Article 11.  Committee on Economic, Social and Cultural Rights, General comment 1 Reporting by States parties, Un Doc: E/1989/22, 24/02/1989, para 1.  Committee on Economic, Social and Cultural Rights, General comment 1 Reporting by States parties, op.cit, para 2.  ibid, para 3.  ibid, para 4. This objective is particularly relevant to the requirement under Articles 1(4) and 2(2) of ICERD to adopt special measures.  ibid, para 5. The periodic reporting process can therefore assist in the fulfilment of Article 7 of ICERD to promote understanding, tolerance and friendship among racial or ethnic groups, as well as to promote the purposes and principles of the Convention among society.  Committee on Economic, Social and Cultural Rights, General comment 1 Reporting by States parties, op.cit, para 6.  ibid, para 8.  ibid.  ibid, para 9.  See also the comments on the reporting process by the Human Rights Committee: Human Rights Committee, Consolidated guidelines for State reports under the International Covenant on Civil and Politiical Rights, UN Doc: CCPR/C/66/GUI/Rev.1 (Basic reference document), 29 September 1999; and the CERD: Committee on the Elimination of Racial Discrimination, General guidelines regarding the form and contents of reports to be submitted by States Parties, UN Doc CERD/C/70/Rev.4 (Basic Reference Document), 14/12/99.  Committee on the Elimination of Racial Discrimination, Twelfth periodic reports of States parties due in 1998 : Australia, Un Doc: CERD/C/335/Add.2. (State Party Report). The report is also available at:  HYPERLINK "http://www.austlii.edu.au/au/other/dfat/reports/CERD/" www.austlii.edu.au/au/other/dfat/reports/CERD/. The reports were submitted 5 years, 3 years and 1 year late. The combined report covers the period from 1 July 1992 to 30 June 1998.  See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1999, pp26-42.  Commonwealth of Australia, Comments of the Government of Australia on decision 2 (54) adopted by the Committee on the Elimination of Racial Discrimination, Annex VIII in Committee on the Elimination of Racial Discrimination, Report of the Committee on the Elimination of Racial Discrimination, UN Doc: A/54/18 (Sessional/Annual Report of Committee).  Committee on the Elimination of Racial Discrimination, Decision 2(55) on Australia, UN Doc: A/54/18, para 23(2), para 4.  The expert nominated for election to the Committee by the United States of America.  There is a country rapporteur for each State Party to the Convention. The Country Rapporteur leads the Committee in its consideration and questioning of the country.  Committee on the Elimination of Racial Discrimination, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, UN Doc: CERD/C/304/Add.101, 19/04/2000. The Committees decision is reproduced in full at Appendix 2, and can be downloaded at: www.faira.org.au/cerd/decisions.html.  The oral appearance is documented in two ways: the unofficial, complete transcript of the dialogue: Foundation for Islander Research Action (FAIRA), Transcript of Australias hearing before the CERD Committee 1393rd, 1394th and 1395th meetings, 21-22 March 2000, FAIRA, Brisbane 2000,  HYPERLINK "http://www.faira.org.au/cerd/" www.faira.org.au/cerd/ (Herein FAIRA, CERD Transcript 21-22 March 2000); and the official United Nations summary records: Committee on the Elimination of Racial Discrimination, Summary record 1393rd meeting, UN Doc CERD/C/SR.1393; Committee on the Elimination of Racial Discrimination, Summary record 1394th meeting, UN Doc CERD/C/SR.1394 (Transcript only available in French); Committee on the Elimination of Racial Discrimination, Summary record 1395th meeting, UN Doc CERD/C/SR.1395; Committee on the Elimination of Racial Discrimination, Summary record 1398th meeting, UN Doc CERD/C/SR.1398 (Transcript only available in French). Reference is also made to the written answers provided by the Australian delegation to the Committee. Copies of the written answers supplied by the government are available from the Secretariat of the CERD or by contacting my office.  Note: I have not considered the conclusions of the Committee in relation to native title or racial hatred legislation. In relation to native title, I have previously rejected the arguments put forward by the government to the Committee: see Native title report 1999, Chapter 2 and my submission to the Parliamentary Joint Committee on Native Title, which is an appendix to the Native title report 2000. The dialogue with the Committee on native title is also considered in my Native title report 2000. In relation to racial hatred there were no answers provided by the Australian delegation to the questions raised by the Committee on this issue.  Not only will special measures not be deemed racial discrimination, but Article 2.2 obligates States to take special measures, where the circumstances so warrant them.  International Council on human rights policy, The persistence and mutation of racism, International Council on human rights policy, Versoix, Switzerland 2000, p5.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, pp 2-3.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Does Australia regard the Convention as requiring formal or substantive equality.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1394th meeting, Part III, p12.  Note: Australias appearance in March 1999 was in relation to the early warning procedure and the native title amendments. For an analysis of the governments explanation of how it believed the native title amendments to be consistent with the Convention see: Native title report 1999, op.cit, Chapter 2; Dick, D. and Donaldson, M., The compatibility of the amended Native Title Act 1993 (Cth) with the United Nations Convention on the Elimination of All Forms of Racial Discrimination, Issues Paper 29: Land, rights, laws: Issues of native title, Native Titles Research Unit, AIATSIS, Canberra, 1999.  Ms Horner in FAIRA, CERD Transcript 21-22 March 2000, 1395th meeting, p2.  Herein Parliamentary Joint Committee on Native Title.  Attorney-Generals Department, Submission No.24, Part I, p17; quoted in Parliament of the Commonwealth of Australia, Sixteenth report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund CERD and the Native Title Amendment Act 1998, Commonwealth of Australia, Canberra, 2000, p8.  ibid.  Ms Leon in Foundation for Aboriginal Islander Action (FAIRA), Transcript of Australias appearance before the Human Rights Committee 20-21 July 2000, 21 July 2000, FAIRA, Brisbane, 2000,  HYPERLINK "http://www.faira.org.au/hrc/" www.faira.org.au/hrc/, (Herein FAIRA, Human Rights Committee Transcript), p19. Emphasis added. See also Human Rights Committee, Summary record of the 1856th meeting: Australia, UN Doc: CCPR/C/SR.1856, 28/07/2000; Human Rights Committee, Summary record of the 1858th meeting: Australia , UN Doc: CCPR/C/SR.1858, 28/07/2000.  See further: Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1998, op.cit, Chapter 3.  Note: In its submission to the Parliamentary Joint Committee on Native Title the Attorney-Generals Department stated that it is for the Parliament to decide whether substantive equality was to be provided and, if it was, what that encompassed: Quoted in Parliamentary Joint Committee on Native Title, CERD and the Native Title Amendment Act 1998, op.cit, p9.  Committee on the Elimination of Racial Discrimination, General recommendation XIV on article 1, paragraph 1 of the Convention, para 2 in Committee on the Elimination of Racial Discrimination, Compilation of General recommendations, Un Doc: CERD/C/365, 11/02/1999.  Committee on the Elimination of Racial Discrimination, General recommendation XXIII on the rights of indigenous peoples, para 4, in Committee on the Elimination of Racial Discrimination, Compilation of General recommendations, ibid.  Quoted in Pritchard, S, Special Measures in Race Discrimination Commissioner, The Racial Discrimination Act: A review, HREOC, Canberra, 1995, p186. See also Pritchard, S, Native title from the perspective of international standards (1997) 18 Australian Year Book of International Law 127, p146; and McKean, W, Equality and discrimination under international law, Oxford 1983, p182.  Minority schools in Albania (1935) PCIJ Ser A/B No.64.  ibid, p17; Quoted in Pritchard, S, Special measures, op.cit, p185. The Sub-Commission on Prevention of discrimination and protection of minorities stated in 1947, as a consequence of this understanding, that differential treatment of (minorities) is justified when it is in the interests of their contentment and the welfare of the community as a whole: UN Doc E/CN.4/52, Section V quoted in Pritchard, S, Special measures, op.cit, p186.  Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, CERD and the Native Title Amendment Act 1998: Report of the non-government members, Parliament of Australia, Canberra, 2000, pp114-15.  South West Africa Case (Second Phase) {1966} ICJ Rep 6, p305.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, p3.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Does Australia regard the Convention as requiring formal or substantive equality.  Attorney-Generals Department, Submission No.24, Part I, p17; quoted in Parliament of the Commonwealth of Australia, Sixteenth report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund CERD and the Native Title Amendment Act 1998, op.cit, pp9, 128.  ibid, p130.  In relation to native title see: ibid, pp128-132; Native title report 1999, Chapter 2; In relation to mandatory sentencing: see below.  Pritchard, S, Native title from the perspective of international standards, op.cit, p142.  Aboriginal and Torres Strait Islander Commission, Submission 10(a) to the Parliamentary Joint Committee on Native Title inquiry into CERD and the Native Title Amendment Act 1998, p8.  ibid.  Committee on the Elimination of Racial Discrimination, General Recommendation XIV, as cited above at p xr.  Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund Inquiry into CERD and the Native Title Amendment Act 1998, p13.  Committee on the Elimination of Racial Discrimination, Concluding observations on Australia, Contained within UN Doc: A/49/18, para 542.  ibid, para 547.  The obligation to ensure compliance at the state and territory level is even more explicit in the ICCPR and ICESCR. Article 50 of the ICCPR and Article 28 of ICESCR are identically worded, and state that the provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.  Australia is a party to the Convention.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, p3  ibid, p5.  Minister Ruddock in FAIRA, CERD Transcript 21-22 March 2000, 1394th meeting, Part I, p3.  Mr Diaconu in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, pp 8-9.  Mr Banton in FAIRA, CERD Transcript 21-22 March 2000, 1394th meeting, Part I, p5.  Mr Nobel, ibid, p6.  Minister Ruddock in FAIRA, CERD Transcript 21-22 March 2000, 1394th meeting, Part III, pp5-6.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: On being a federation.  Mr Fall in FAIRA, CERD Transcript 21-22 March 2000, 1395th meeting, p5.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1394th meeting, Part III, p11.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, p2.  ibid, p2.  An edited version of my submission to the CERD, which discusses this issue more fully, is contained in Appendix one of this report. The appendix also includes extracts from my submissions to the Human Rights Committee and the Committee on Economic, Social and Cultural Rights.  The High Court examined section 51(xxvi) of the Constitution (the race power) in the case of Katinyeri v The Commonwealth [1998] HCA 22. The race power gives the Commonwealth power to enact legislation ... with respect to ... the people of any race for whom it is deemed necessary to make special laws.  Aboriginal and Torres Strait Islander Social Justice Commissioner, Australias 10th, 11th and 12th periodic reports under CERD, Statement at NGO presentation to the Committee on the Elimination of Racial Discrimination, 20 March 2000, Geneva, p3.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Does the overriding of the Racial Discrimination Act amount to a repudiation of CERD?  Mr Banton, op.cit, p5; Mr Bryde in FAIRA, CERD Transcript 21-22 March 2000, 1394th meeting, Part II, p3. Note: none of the Committee raised a Bill of Rights as the specific form of constitutional entrenchment that they envisaged.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Bill of Rights (entrenching rights lack of an entrenched guarantee against racial discrimination).  Minister Ruddock in FAIRA, CERD Transcript 21-22 March 2000, 1394th meeting, Part III, p6.  Such a standard would reflect the jus cogens status of the principle of racial non-discrimination, as discussed above.  Mr Lechuga Hevia in FAIRA, CERD Transcript 21-22 March 2000, 1394th meeting, Part II, p8.  Mr Yutzis, ibid, p7.  Mr Nobel, ibid, p6.  Ms McDougall, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, p4. Emphasis added.  Mr Aboul-Nasr, CERD Transcript 21-22 March 2000, 1394th meeting, Part III, pp1-2.  Mr Banton, ibid, Part I, p4.  Ms January-Bardill, ibid, p4. Emphasis added.  Note: This is a reference to the Human Rights and Equal Opportunity Commission.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, p4.  A further obligation may also be said to arise under Article 7, as the State party is obligated to educate the community about the Convention and the obligations it creates: see further below in relation to reconciliation.  Minister Ruddock in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part I, p3.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Wealthy Australia has not solved the problems of 2% of its population.  Minister Ruddock in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part I, p3. Note: I critique the adequacy of practical reconciliation in chapter 2 of this report.  ibid.  ibid, p4. Note: I critique this concept of responsibilities in chapter 2 of this report, and the introduction of the Social Justice Report 1999.  Mr Vaughan, ibid, p11.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Wealthy Australia has not solved the problems of 2% of its population. Note: in relation to the United States and Canada, recent research indicates that socio-economic conditions for Indigenous Australians are far worse than the conditions in those countries. One of the main reasons why is economic empowerment through greater recognition of Indigenous rights, especially relating to governance issues. See: Moran, M, Housing and health in Indigenous communities in the USA, Canada and Australia: the significance of economic empowerment (2000) 7 Aboriginal and Torres Strait Islander Health Bulletin.  In this regard, note the concluding observations of July 2000 of the Human Rights Committee (UN Doc: CCPR/CO/69/AUS) which states in paragraph 9 that: with respect to article 1 of the (ICCPR), the Committee takes note of the explanation given by the delegation that rather than the term self-determination the Government prefers terms such as self-management and self-empowerment to express domestically the principles of indigenous peoples exercising meaningful control over their affairs. The Committee is concerned that sufficient action has not been taken in that regard. The State Party should take the necessary steps in order to secure for the Indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources.  My submission to the CERD, as well as those to the HRC and CESCR are included as appendix one of this report.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Benchmarking / Measuring reconciliation.  Neutze, M, Sanders, W, Jones, G, Public expenditure on services for Indigenous people Education, employment, health and housing, Discussion paper 24, The Australia Institute, Canberra, 1999, p xiii.  Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of All Forms of Racial Discrimination: Australia, UN Doc: A/49/18, paras535-551.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, p5.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Over-representation in the criminal justice system.  One of the terms of reference required the inquiry to examine contemporary forms of separation, such as contact with juvenile justice and the care and protection systems.  In relation to the Bringing them home report, the adequacy of government responses is assessed in Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 1998,  HYPERLINK http://www.hreoc.gov.au/social_justice/social_justice/index.html http://www.hreoc.gov.au/social_justice/social_justice/index.html.  Carcach, C., Grant, A. and Conroy, R., Australian corrections: The imprisonment of Indigenous people Australian Institute of Criminology (AIC), Trends and Issues in Crime and criminal justice: No. 137, AIC, Canberra, 1999, p2.  Australian Bureau of Statistics, Corrective Services, June Quarter 1999, Ref: 4512.0, pp5, 21-22.  Dalton, V., Aboriginal deaths in prison 1980 to 1998: National overview, Australian Institute of Criminology (AIC), Trends and Issues in Crime and criminal justice: No. 131, AIC, Canberra, 1999, p2. This figure is to September 1999, and includes the death of two Torres Strait Islanders.  ibid, p6.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, p5.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Interpreter services.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, p5.  Note the comments of the Senate Legal and Constitutional References Committee in their report on the Human Rights (Mandatory sentencing of juvenile offenders) Bill 1999 that the weight of evidence to the Committee was that the mandatory sentencing laws have a discriminatory impact on Indigenous people that is contrary to the provisions of CERD, in particular articles 2 and 5 and that there is no denying the fact that a series of disadvantage factors make indigenous people in particular likely to be affected by mandatory sentencing. Although this may not have been intentional, it should now be sufficiently obvious that certain groups in the community are vulnerable through being more likely to commit these crimes as a result of their poverty and other factors. Given the evidence of at least indirect discrimination, it is important for states and territories to address such discrimination: Senate Legal and Constitutional References Committee, Inquiry into the Human Rights (Mandatory sentencing of juvenile offenders) Bill 1999, Parliament of Australia, Canberra, 2000, p84, 87.  Minister Ruddock in FAIRA, CERD Transcript 21-22 March 2000, 1394th meeting, Part III, pp6-7.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Mandatory sentencing laws.  Note: the government presented a range of arguments in relation to how mandatory sentencing provisions are consistent with article 9, 10, 14 and so forth: See further Ms Leon in FAIRA, Human Rights Committee Transcript, 20 July 2000, pp27-30. These arguments are not addressed here. Note, however, the extensive and persuasive response of Lord Colville, in ibid, 21 July 2000, pp 32-42.  Ms Leon in FAIRA, Human Rights Committee Transcript, 20 July 2000, pp27-30.  ibid, 21 July 2000, pp 15-16. Emphasis added.  Lord Colville, in ibid, 21 July 2000, pp 32-42.  The Human Rights Committee also concluded that mandatory sentencing leads to the imposition of punishments disproportionate to the seriousness of the crimes committed and would seem to be inconsistent with the strategies adopted by the State Party to reduce the over-representation of indigenous persons in the criminal justice system and raises serious issues of compliance with various articles of the Covenant: UN Doc CPR/CO/69/AUS, para 17.  Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of All Forms of Racial Discrimination: Australia, op.cit, para 547.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part II, pp 6-7.  Minister Ruddock, ibid, 1393rd meeting, Part I, p5.  See: Native title report 1999, op.cit, pp 30-33.  Ambassador Luck stated that it is impossible to turn back the clock in FAIRA, Human Rights Committee transcript, 20 July 2000, p2.  Mr Shinan, ibid, 20 July 2000, p 39.  Minister Ruddock in FAIRA, CERD Transcript 21-22 March 2000, 1393rd meeting, Part I pp6-7.  ibid, 1395th meeting, Part I, p8.  Minister Ruddock in FAIRA, CERD Transcript 21-22 March 2000, 1394th meeting, Part III, p8.  Ms McDougall in FAIRA, CERD Transcript 21-22 March 2000, 1395th meeting, Part II, p6.  ibid.  Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Separated children.  Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the stolen generation inquiry, HREOC Sydney 2000, p14. The submission is available at www.hreoc.gov.au.  Attorney-General, CERD Report unbalanced, Press Release, 26 March 2000.  ibid.  ibid.  Attorney-General, Transcript of interview 11:00am, 25 March 2000, Tangney Electoral Office, Perth,  HYPERLINK "http://www.law.gov.au" www.law.gov.au, p1.  ibid.  ibid, p2.  ibid, p3.  Attorney-General, Transcript of doorstop, Parliament House Canberra, 1:15pm 23 March 2000.  Attorney-General, Transcript of interview 11:00am, 25 March 2000, Tangney Electoral Office, op.cit, p2.  Prime Minister, Transcript of interview on the Today show, 29 March 2000, p2.  ibid, p2.  Prime Minister, Transcript of interview with Philip Clark, 2BL, 28 March 2000.  ibid, p9.  Attorney-General, Transcript of interview 11:00am, 25 March 2000, Tangney Electoral Office, op.cit, p5.  Minister for Foreign Affairs, Government to review UN treaty Committees, Press Release, 30 March 2000.  ibid.  Downer, A. (the Hon), Australias hope for the United Nations in the twenty-first century, Speech 2000 National Youth Conference of the United Nations Youth Association, Melbourne, 3 July 2000.  Commonwealth of Australia, Comments of the government of Australia on the concluding observations adopted by the Committee on the Elimination of Racial Discrimination on the tenth, eleventh and twelfth periodic reports of Australia, Annex X in Committee on the Elimination of Racial Discrimination, Report of the Committee on the Elimination of Racial Discrimination, Un Doc: A/55/18. (Sessional/Annual Report of Committee), 17/10/2000.  Perhaps the most controversial conclusion of the Committee was in relation to Australias obligations under the Refugee Convention. On this issue it is notable that in the meeting in which the Committee finalised its concluding observations, there was vigorous debate among the Committee members as to whether such comments ought to be included. Ultimately they decided that the comments were related to Australias obligations under the Convention, though the official summary record of the meeting does not indicate which Articles of the Convention applied in particular: see further, Committee on the Elimination of Racial Discrimination, Summary record 1398th meeting, 24 March 2000, UN Doc: CERD/C/SR.1398. Note: the summary record is only available in French.  Charlesworth, H., Human rights and reconciliation in international perspective in Magarey, S. (ed), Human rights and reconciliation in Australia, University of Queensland Press, St Lucia, 1999, pp18-19.  See Secretary, Department of Defence v HREOC (1997) 149 ALR 309.  There remains, however, the possibility of challenging the constitutionality of mandatory sentencing legislation under section 10 of the RDA. This is different to what the Attorney was claiming, as it is not something that is done in accordance with the complaints mechanisms under the RDA.  Charlesworth, H International human rights law and Australian federalism in Opeskin, B. and Rothwell, D., International law and Australian Federalism, p283.  This point is discussed at length in chapter 2 of my Native title report 1999 and my submission to the Parliamentary Joint Committee on Native Title inquiry into CERD.  Committee on the Elimination of Racial Discrimination, General recommendation VII concerning Article 8, paragraph 1 of the Convention, in Committee on the Elimination of Racial Discrimination, Compilation of general recommendations, op.cit.  Human Rights and Equal Opportunity Commission, Submission to the Inquiry by the Joint Standing Committee on Foreign Affairs and Trade into Australias relations with the United Nations in the post-cold war environment, (Herein HREOC, Submission: Australias relations with the United Nations)  HYPERLINK "http://www.hreoc.gov.au/human_rights/un_committee/fed_review.html" www.hreoc.gov.au/human_rights/un_committee/fed_review.html, pp9-10.  ibid, pp10-11.  Mr Henkin in FAIRA, Human Rights Committee transcript, 20 July 2000, pp 42-43.  Annan, K, Human rights and intervention in the 21st century in United Nations Development Programme, Human Development Report 2000, Oxford University Press, New York 2000, p31.  The four strategies are on redressing Indigenous disadvantage; achieving economic independence; recognising Aboriginal and Torres Strait Islander rights; and sustaining the reconciliation process. The four strategies and the Roadmap to Reconciliation  which summarises their main aims are available at: www.reconciliation.org.au.  Minister for Aboriginal and Torres Strait Islander Affairs, The future together Indigenous specific measures in the 2000-01 budget, Statement by Senator the Honourable John Herron, Commonwealth of Australia, Canberra, 9 May 2000, p1.  House of Representatives Standing Committee on Family and Community Affairs, Health is life, Parliament of Australia, Canberra 2000, (Herein Health is life). paras 1.1-1.10.  ibid, paras 2.35-36.  ibid, para 1.2.  ibid, paras 1.11-12.  ibid, para 2.56.  Commonwealth Grants Commission, Indigenous Funding Inquiry Draft Report, Commonwealth of Australia, Canberra 2000, p53.  ibid, p42.  ibid, p29.  Aboriginal and Torres Strait Islander Commission, Report on greater regional autonomy, ATSIC National Policy Office, Canberra 2000, pp 11-12.  Commonwealth Grants Commission, op.cit, pp18-19.  Minister of Indian Affairs and Northern Development, Gathering strength Canadas aboriginal action plan, Ottawa 1997, www.inac.gc.ca/strength/change.html.  Aboriginal people in Canada face similar issues to those in Australia: particularly the rapid growth and young age structure of the Indigenous population.  The Hon Tariana Turia, Associate Minister of Maori Affairs, Closing the gaps & capacity building, Speech, 7 June 2000, http://www.tpk.govt.nz/press/gaps.htm.  Te Puni Kkiri, Progress toward closing the social and economic gaps between Mori and non-Mori, Government of New Zealand, May 2000,  HYPERLINK "http://www.tpk.govt.nz/reports/gaps.htm" http://www.tpk.govt.nz/reports/gaps.htm., p11.  The Hon Tariana Turia, Closing the gaps & capacity building, op.cit.  ibid.  ibid.  Te Puni Kkiri, Progress toward closing the social and economic gaps between Mori and non-Mori, op.cit.p10 See also: Minister of Maori Affairs, Closing the gaps 2000, Press Release, Auckland 2000, http://www.tpk.govt.nz/publish/gaps.htm.  ibid..  Health is life, op.cit, paras 1.60-73, Recommendation 6.  ibid, paras 1.71-72.  Aboriginal Affairs Department, Annual Report 1998-99, Perth Western Australia 1999.  ibid, pp 51-56.  NB: The quality of these statistics may not be adequate, given that statistics such as Indigenous unemployment, home ownership and median income are not available nationally on an annual basis, yet alone on a regional basis.  Department of Justice and Department of Human Services, Victorian Aboriginal justice agreement, Government of Victoria, Melbourne 1999, p19.  United Nations Development Programme, Human development report 2000 Human rights and human development, UNDP New York 2000,  HYPERLINK "http://www.undp.org/hdro/HDR2000.html" www.undp.org/hdro/HDR2000.html, p89.  ibid, p90.  ibid, p108.  The Council for Aboriginal Reconciliation has defined a benchmark as an agreed standard or target that reflects the community aspirations that either have been met or are desirable to be met: Council for Aboriginal Reconciliation, Towards a benchmarking framework for service delivery to Indigenous Australians, CAR and Centre for Aboriginal Economic Policy Research, ANU 1998, p16.  UNDP, Human development report 2000, op.cit, p99.  See further: Australian Bureau of Statistics and Australian Institute of Health and Welfare, The health and welfare of Australias Aboriginal and Torres Strait Islander peoples, ABS / AIHW, Canberra 1999, pp 172-175.  ibid, pp176-177.  Commonwealth Grants Commission, op.cit, p35.  ibid, p37.  ibid, pp38-39.  Council for Aboriginal Reconciliation, Overcoming disadvantage, CAR Canberra 2000, www.reconciliation.org,au/overcoming_disadvantage/index.htm.  Australian Bureau of Statistics, Directions in Australias Aboriginal and Torres Strait Islander statistics, ABS Canberra 2000, see paras 1-4. For the complete breakdown of surveys intended in the 2001-2011 period see Appendix one of this paper.  These estimates and projections demonstrate the difficulties faced in collecting and maintaining comparable data over a long term period. There has been, for example, a 200% increase in the official Indigenous count between the 1971 and 1996 Census a growth rate of 8% per annum. Similarly, there is an increasing trend for Indigenous people to report unions with non-Indigenous partners, meaning that statistics that focus solely on Indigenous people may not reflect fully the social reality for the majority of Indigenous Australians. See further: Taylor, J, Indigenous enumeration in the late twentieth century: Emerging issues for population analysis, CAEPR, ANU 2000.  ibid, paras 29-31.  The IGSS may be sufficient to replace the NATSIS Survey, if conducted at sufficiently regular intervals.  This requirement is discussed more fully in the next section.  A National Action Plan is lodged with the United Nations Commission on Human Rights as a statement to the rest of the world of how a country is progressing in implementing its human rights obligations in a practical sense. National Action Plans serve as an evaluation tool for a countrys vision on human rights; an instrument for evaluating a countrys performance in relation to their human rights obligations; a record of a governments performance with regard to the protection and promotion of human rights; a tool for setting human rights goals and priorities within achievable time frames, and for planning the management of resources for the promotion and protection of human rights; and as a statement of strategies and measurable targets with regard to the promotion and protection of human rights: See further, Department of Foreign Affairs and Trade, National Action plan on human rights, www.dfat.gov.au/hr/nap/natact_plan.html.  Commonwealth Grants Commission, op.cit, p xii.  ibid, p58.  The foundation established to carry on the work of the Council for Aboriginal Reconciliation.  Note that the recent COAG communiqu adopted on 3 November 2000 refers to the development of indigenous action plans, performance monitoring strategies and benchmarks by ministerial councils of COAG over the next twelve months. See further: http://www.pm.gov.au/news/media_releases/2000/media_release531.htm.  Council for Aboriginal Reconciliation, Overcoming disadvantage, op.cit.  ibid.  Commonwealth Grants Commission, op.cit, p34.  Russell, P, Corroborree 2000 A nation defining event (2000) 15 Arena Journal 25, p30.  ibid, p31.  ATSIC, Report on greater regional autonomy, op.cit, p20.  Health is life, op.cit. para 3.29.  ATSIC, Report on greater regional autonomy, op.cit, p20.  McClure, P., Participation Support for a More Equitable Society: Final Report of the Reference Group on Welfare Reform, July 2000, Department of Family and Community Services, Canberra, 2000.  Minister for Aboriginal and Torres Strait Islander Affairs, Beyond welfare, as cited in ATSIC, Regional autonomy for Aboriginal and Torres Strait Islander communities, op.cit, p7.  See ATSIC, Recognition, rights and reform: Report to Government on native title social justice measures, Canberra, ATSIC, 1995, pp55-62; Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous social justice strategies and recommendations, Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, Sydney, 1995, pp19-31.  ATSIC, Report on greater regional autonomy, op.cit, p15.  ATSIC, Regional autonomy for Aboriginal and Torres Strait Islander communities, Discussion paper, ATSIC Canberra 1999, p9.  ibid.  ibid, pp9-10.  CAR, Strategy for achieving economic independence, CAR, Canberra 2000, http://www.reconciliation.org.au/economic/pg4.htm> (24 November 2000), p5.  Council for Aboriginal Reconciliation, Overcoming disadvantage, op.cit.  Council for Aboriginal Reconciliation, Recognising Aboriginal and Torres Strait Islander rights, op.cit, p20.  ibid.  ibid, p13.  Moran, M Housing and health in Indigenous communities in the USA, Canada and Australia: The significance of economic empowerment (2000) 7 Aboriginal and Torres Strait Islander Health Bulletin 1.  ibid, p6.  ibid, p8.  Minister of Indian Affairs and Northern Development, Gathering strength Canadas Aboriginal action plan, op.cit, p2.  Department of Indian and Northern Affairs (DIAND), Aboriginal self-government: the government of Canadas approach to implementation of the inherent right and negotiation of Aboriginal self-government, Department of Indian and Northern Affairs, Ottawa, 1995, p14.  ibid, p7.  ibid, p14.  ibid.  INAC, op cit, p9.  Hanson, E., Self-Government: a fundamental change in the relationship, March 2000, Department of Indian and Northern Affairs, Ottawa, 2000, pp13-14. For a more thorough discussion of the components of this self-government policy, see Behrendt, L, The protection of Indigenous rights: contemporary Canadian comparisons, Parliament of Australia, Parliamentary research paper 27, 1999-2000,  HYPERLINK "http://www.aph.gov.au/library/pubs/rp/1999-2000rp27.htm" http://www.aph.gov.au/library/pubs/rp/1999-2000rp27.htm (19 July 2000).  INAC, op cit, p10  See Behrendt , op.cit, for an overview of the contrast between the Australian and Canadian contexts. One difference of note is that while the Canadian federal government has had responsibilities for aboriginal affairs from the beginning, the federal government in Australia was excluded from such a constitutional role until 1967.  CAR, Overcoming disadvantage, op.cit.  For further discussion see ATSIC, Report on greater regional autonomy, op cit, p13.  ibid, pp10-11.  ibid, p20.  Health is life, op cit, paras 3.42 3.44.  Commonwealth Grants Commission, op cit, p42.  ibid, p34.  ibid, p43.  Health is life, op cit, para 2.67.  Commonwealth Grants Commission, op cit, p61.  ibid, p89.  ibid.  Commonwealth Grants Commission, op cit, p42.  Health is life, op,cit, para 2.95.  Commonwealth Grants Commission, op cit, p61.  ibid, p60.  ibid.  ibid.  ibid.  ibid, p61.  ATSIC, Report on greater regional autonomy, op cit, p16.  ibid, p22.  ibid, p9.  Pearson, N, Our Right to take Responsibility, Noel Pearson and Associates, Cairns, 2000, pp42-3.  ibid, p83.  McClure, P, op.cit, p.10.  Martin, D., Community development in the context of welfare dependence, The Indigenous Welfare Economy and the CDEP Scheme: Autonomy, Dependence, Self-Determination and Mutual Obligation, CAEPR Conference, ANU, 7 - 9 November 2000 < HYPERLINK "http://www.anu.edu.au/caper/iwepapers/Altman.pdf" http://www.anu.edu.au/caper/iwepapers/Martin.pdf, > p3.  McClure, P., op.cit, p17.  Altman, J., Mutual obligation, the CDEP scheme and development: Prospects in remote Australia, The Indigenous Welfare Economy and the CDEP Scheme: Autonomy, Dependence, Self-Determination and Mutual Obligation, CAEPR Conference, ANU, 7 - 9 November 2000 < HYPERLINK "http://www.anu.edu.au/caper/iwepapers/Altman.pdf" http://www.anu.edu.au/caper/iwepapers/Altman.pdf, > p5. Altman also critiques Pearsons strategies for economic development, finding them too light on practical, culturally-informed strategies, ibid, pp5-6.  ATSIC, Report on greater regional autonomy, op cit, p22, 24.  Pearson, N, op cit, pp72-3. Another prospect for addressing the difficulties experienced by remote regions is to transform an existing institutional model, the Community Development Employment Projects (CDEP) scheme, a longstanding precedent for mutual obligations models in Australia, into a development agency; see Altman, op.cit, pp6-9.  Cape York partnerships, Cape York partnerships, Cairns, July 2000; Government of Queensland, Cape York partnerships: Some practical ideas, Department of the Premier and Cabinet, Brisbane 2000.  ATSIC, Report on greater regional autonomy, op cit, p14.  ibid, p30.  House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Torres Strait Islanders: a new deal, AGPS, Canberra, 1997, pp.xvii, xxi.  ATSIC, Report on greater regional autonomy, op cit, p16  ibid.  Fletcher, C, Aboriginal Regional Australia: the hidden dimension of community governance, Regional Australia Summit paper, Parliament House, Canberra, 27-29 October 1999, p1.  ATSIC, Report on greater regional autonomy, op cit, p17.  See ibid, pp22-7.  Department of Local Government, Local Government: the next step, Department of Local Government, Northern Territory, September 1999. For discussion, see ATSIC, Report on greater regional autonomy, op cit, pp31-2.  ATSIC, Report on greater regional autonomy, op cit, p10. The principle of self-determination remains a key element of ATSICs corporate vision. Cf. ATSIC Corporate Plan 1998-2001: We have set ourselves three broad goals over the next three years: to provide an effective voice for our communities, organisations and people: to strengthen our people and organisations; and to protect, promote and pursue our collective rights. ATSIC, ATSIC corporate plan 1998-2001, Commonwealth of Australia, Canberra,  HYPERLINK "http://www.atsic.gov.au/default_ie.asp" http://www.atsic.gov.au/default_ie.asp (30 November 2000).  Nettheim, G., Discussion paper 7: Governance bodies and Australian legislative provision for corporations and councils, Govenance structures for Indigenous Australians on and off native title lands, University of New South Wales, Sydney, 1999, para 2.14, www.austlii.edu.au/au/special/rsjproject/rsjlibrary/arccrp/dp7.html.  Burke, P, Constructing an appropriate legislative framework for PBCs, Presentation to Governance structures for Indigenous People workshop, Canberra, 31 March 2000, unpublished, p2. See also Mantziaris, C, and Martin, D, Native title corporations: A legal and anthropological analysis, Federation Press, Sydney, 2000.  ATSIC, Report on greater regional autonomy, op.cit, p36.  ATSIC, Recognition, rights and reform, op.cit, p57.  This is discussed further below in relation to recognising and protecting Indigenous rights in a federal system.  ATSIC, Recognition, rights and reform, op.cit, p57.  United Nations Development Programme, Human Development Report 2000, op.cit, p107.  ibid.  ibid.  Australia has also not ratified the Convention on the protection of the rights of all migrant workers and their families.  ATSIC, Recognition, rights and reform, op.cit, pp9-10.  The submission is available in full from the HREOC website: www.hreoc.gov.au.  Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions, Ottawa Canada 2000, p3. Also at  Human Rights and Equal Opportunity Commission, Bringing them home, HREOC Sydney 1997, Terms of Reference (c).  Recommendation 3, ibid, p282.  See E/CN.4/Sub/1996/17. See also HREOC, ibid, appendix 8, p649.  UN Docs E/CN 4/Sub 2/1997/20 and E/CN.4/Sub 2/1997/20/Rev 1.  The Committee on the Elimination of Racial Discrimination adopted General recommendation 26 on the scope of Article 6 on 24 March 2000. The recommendation states that the right to seek just and adequate reparation or satisfaction for any damage suffered as a result of (racial) discrimination is not necessarily secured solely by the punishment of the perpetrator of the discrimination; at the same time the courts and other competent authorities should consider awarding financial compensation for damage, material or moral, suffered by a victim where appropriate: Committee on the Elimination of Racial Discrimination, General Recommendation 26 Article 6 of the Convention, 24 March 2000.  Artucio, A, Impunity of perpetrators in Netherlands Institute of Human Rights, Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Maastricht, 11-15 March 1992 (SIM Special Report No 12, 1992) 182, p190.  Velasquez Rodriguez Case, Inter-American Court of Human Rights, Series C No 4, 29 July 1988, para 166. See further Mendez, J and Miguel Vivanco, J, Disappearances and the Inter-American Court: Reflections on a Litigation Experience (1990) 13 Hamline Law Review 507; Mendez, J, Position of Americas Watch, a division of Human Rights Watch, on the right of victims of gross violations of human rights to reparations and on measures to prevent such violations in Netherlands Institute of Human Rights, Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, op.cit.  Velasquez Rodriguez Case, ibid, para 174.  Inter-Am Ct H R 66, OAS/ser L/V/III.29, doc 4 (1993). See generally Padilla, D, Reparations in Aloeboetoe v. Suriname (1995) 17 Human Rights Quarterly 541; Orentlicher, D, Addressing Gross Human Rights Abuses: Punishment and Victim Compensation, in Henkin, L and Hargrove, J (eds), Human Rights: An Agenda for the Next Century , American Society of International Law, Washington DC 1994, 425, at pp450-452.  Aloeboetoe, ibid, para 43.  Padilla, op.cit, p 552.  Aloeboetoe, ibid, paras 99-108.  ibid, para 116(6).  Neira Alegria Case (19 January 1995 - disappearance of prisoners following suppression of prison riot by Peruvian military); El Amparo Case (18 January 1995 - massacre of fishermen by Venezuelan military forces); cited in Ewing, A, Establishing State Responsibility for Private Acts of Violence Against Women Under the American Convention on Human Rights (1995) 26 Columbia Human Rights Law Review 751, p792, fn 166.  This view was asserted by the federal government in its submission to the Senate Inquiry into the Stolen Generation. See Senator John Herron, Minister for Aboriginal and Torres Strait Island Affairs, Federal Government Submission to the Senate Legal and Constitutional Reference Committee, Inquiry into the Stolen Generation 2000 (hereafter Federal Government Submission, Senate Stolen Generation Inquiry), p 39  For the terms of references of the inquiry see: Hansard, Senate, 24 November 1999, pp 10493 10501. Also at  HYPERLINK "http://www.aph.gov.au/senate/committee/ADVERT/" http://www.aph.gov.au/senate/committee/ADVERT/ stolen/ htm  Minister for Aboriginal and Torres Strait Islander Affairs, Submission to the stolen generation inquiry, Commonwealth of Australia, Canberra March 2000, p2 (Herein Federal government submission).  ibid, p26.  ibid, p40.  Bringing them home, op cit, p287.  Federal Government Submission, p28  Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 1998, HREOC Sydney 1999, pp 112 114.  Alter, S., May 1999, Law Commission of Canada.  ibid, p25.  Minow, M., Between Vengeance and Forgiveness Facing History after Genocide and Mass Violence, Beacon Press, Boston, 1998, p 114-115 quoted in Alter, ibid, p25.  Lazare, A., Go Ahead, Say Youre Sorry Psychology Today 28:1 (Jan Feb 1995) 40, p42, quoted in Alter, op.cit, p26.  Bringing them home, op.cit, p303.  Federal Government Submission, op cit, p48.  Graycar, R, Compensation for the Stolen 鱨վ: Political Judgments and Community Values (1998) 4 (3)UNSW Law Journal Forum 24, p25.  (1982) 29 SASR 192.  (1982) 17 NTR 31.  Unreported, Northern Territory Supreme Court, 14 May 1996, per Kearney J.  See discussion in Repatriation Commission v OBrien (1985) 155 CLR 422; East v Repatriation Commission (1987) 16 FCR 517 at 518-524.  Graycar, op cit p26.  ibid.  Cubillo v Commonwealth [2000] FCA 1084  Available online at:  HYPERLINK http://www.inac.gc.ca/strength/change.html http://www.inac.gc.ca/strength/change.html. An update of the governments progress in implementing the plan is available at:  Report of the Royal Commission on Aboriginal Peoples, 5 volumes, 1996, Ottawa. Available on-line at:  HYPERLINK http://www.inac.gc.ca/rcap/index.html . Also available on CD ROM with back-up studies: RCAP (1997) For Seven Generations, The Report of the Royal Commission on Aboriginal Peoples (1996) including Background Reports, Public Works and Government Services (Publishing), Ottawa.  For further information on these principles see RCAP, Volume 1: Looking forward, looking back, Chapter 16.  For a summary of government policy see Minister for Indian Affairs (Jane Stewart), Speech Release of gathering Strength, 7 January 1998, www.inac.gc.ca/info/speeches/jan98/action.html.  A leader in the Northwest Rebellion who was hanged by the Canadian government.  http://www.inac.gc.ca/strength/declar.html  For background information on the residential school system see RCAP, Volume 1: Looking forward, looking back, Chapter 10, or background paper: http://www.inac.gc.ca/strength/school.html.   HYPERLINK http://www.inac.gc.ca/strength/change.html http://www.inac.gc.ca/strength/change.html.  See note 45 above.  For further information see the Foundations website at www.afh.ca  Message from AHF Chair, Healing Words, vol 2 no1, Fall 2000, p 2, online at http://webserver.ahf.ca/english/NEWSLETTER_SEPT_2000.pdf.  ibid.  The Law Commission is similar in function to the Australian Law Reform Commission.  Available online at http://lcc.gc.ca.  Executive summary, see  ibid. Note also the findings of the following consultant report prepared for the Law Commission: Alter, S., Apologising for serious wrongdoing: Social, Psychological and legal considerations, Law Commission of Canada, May 1999. The report identifies the following five elements of a meaningful apology: i) Acknowledgment of the wrong done; ii) accepting responsibility for the wrong done; iii) expression of sincere regret and profound remorse; iv) assurance that the wrong will not recur; and v) reparation through concrete measures. See also: Gannage, M., An international perspective: A review and analysis of approaches to addressing past institutional or systemic abuse in selected countries, Law Commission of Canada, 1998.  ibid, pp115-346.  ibid.  Truth and Reconciliation Commission, Final report, Volume V, Chapter 5, para 11.  ibid, para 19.  Ibid, para 21.  ibid, paras 23-32.  The maximum individual reparation grant claimable is R23 023 per annum for an individual living in a rural area with nine or more dependants.  Truth and Reconciliation Commission, Final report, Volume V, Chapter 5, para 69.  ibid, para 74.  ibid, para 37.  The Committee on the Elimination of Racial Discrimination (the CERD) has observed that the amended Act appears to create legal certainty for governments and third parties at the expense of native title holders. They also noted that the process by which the NTA amendments of 1998 were enacted did not involve the informed consent of Indigenous people or their representatives, nor were the amendments acceptable to the Indigenous people whose rights are directly affected by them. Committee on the Elimination of Racial Discrimination, On Australia, paragraphs 6 & 9. 18 March 1999, UN Doc CERD/C/54/Misc.40/Rev.2.  Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1998, HREOC, Sydney, 1999, p. 105. The HRC has confirmed that different rights for vulnerable and disadvantaged groups are permissible under the ICCPR at paragraph 10 of General Comment 18.  HRC, General Comment 23 at paragraphs 3.2 and 7.  Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, op cit, p. 62.  See Lnsman v Finland (511/92).  See HRC definition of discrimination in General Comment 18 at paragraph 7.  Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, op cit, p114.  The preamble to the Racial Discrimination Act 1975 (Cth) states that the purpose of the Act is to make provision for giving effect to the Convention (ie CERD).  The amendments were passed on 8 July 1998 and most came into effect from 30 September 1998.  See for example the 1990 case of Chief Ominayak v Canada UN Doc. A/47/40 (1992)  See generally, Australian Government Report, CCPR/C/AUS/98/3, pp. 271-276.  Hansard, Reps 9 May 1984, 2130. The original title of the Act was the Aboriginal and Torres Strait Islander Heritage (interim Protection) Act 1984. Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, Report by Elizabeth Evatt AC, 21 June 1996  HYPERLINK http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/evatt http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/evatt  Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, Report by Elizabeth Evatt AC, 21 June 1996 para 2.30.  HYPERLINK http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/evatt http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/evatt  Additional material can be obtained from Janke, T., Our culture, our future: Report on Australian Indigenous cultural and intellectual property at  HYPERLINK "http://www.icip.lawnet.com.au" www.icip.lawnet.com.au.  Senator Jocelyn Newman, Launch of new partnerships against domestic violence initiatives, Speech 7 October 1999,  See further: Commonwealth Grants Commission Amendment Bill 1999, Explanatory Memorandum, Parliament of Australia, Canberra, 1999.  Neutze, M., Sanders, W., Jones, G., Public expenditure on services for Indigenous people Education, employment, health and housing, Discussion Paper 24, The Australia Institute, Canberra, 1999, p xiii.  HRSCFCA, op cit, p1.  Senate Employment, Workplace Relations, Small Business and Education References Committee, Katu kulpa, Report on the inquiry into the effectiveness of education and training programs for Indigenous Australians, Parliament of Australia, Canberra, March 2000, pxi. The report is available on the internet at: http://www.aph.gov.au/senate/committee/eet_ctte/indiged/index.htm.  ibid, Recommendation 1.  See also General Comment 17, paras 3 & 5.  Neutze, M., Sanders, W., Jones, G., op cit, pp28-29.  ibid, pp55-56.  Deeble, J., Mathers, C., Smith, L., Goss, J., Webb, R. and Smith, V., Expenditures on health services for Aboriginal and Torres Strait Islander people, Australian Institute of Health and Welfare, Canberra, 1998.  Neutze, M, Sanders, W., Jones, G, op.cit, p38.  ibid, pp16-17.  Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1999, HREOC, Sydney, 2000, pp. 19-20.  Royal Commission into Aboriginal Deaths in Custody, National report, Volume 1, para 1.7.6.  Human Rights and Equal Opportunity Commission, Bringing them home, HREOC, Sydney, 1997, Recommendations 42, 43-53.  For further details see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1998, HREOC, Sydney, 1998. Chapter 4. Available online at: www.hreoc.gov.au.  Adequate statistics do not exist for New South Wales.  Royal Commission into Aboriginal Deaths in Custody, op cit, Volume 1, para 1.7.6.  Australian Bureau of Statistics and Centre for Aboriginal Economic Policy Research, National Aboriginal and Torres Strait Islander survey: Employment outcomes for Indigenous Australians, p86. See also the discussion of this issue in the introductory chapter and Hunter, B. and Borland, J, The effect of arrest on Indigenous employment prospects (1999) 45 Crime and Justice Bulletin, NSW Bureau of Crime Statistics and Research.  Dermit Barbato v Uruguay (84/81).  One of the terms of reference required the inquiry to examine contemporary forms of separation, such as contact with juvenile justice and the care and protection systems.  Committee on the Elimination of Racial Discrimination, Concluding observations on Australia, 19 April 1994, UN Doc A/49/18, para 542.  Un Doc: CERD/C/56/Misc.42/Rev.3, 24 March 2000, paragraph 7.  Documentary references and a summary of these debates are given in M Bossuyt, Guide to the travaux preparatoires of the international covenant on civil and political rights (Martinus Nijhoff, Dordrecht, 1987), p343.  See Van Alphen v The Netherlands (305/88), paragraph 5.8; A v Australia (560/93), paragraph 9.2.  See S. Joseph, J. Schultz, M. Castan, The international covenant on civil and political rights (OUP, Oxford, 2000), forthcoming publication.  There is also evidence that mandatory detention is of limited effect as a deterrence mechanism. See further: L. Schetzer, op.cit., pp119-120; G. Zdenkowski, Mandatory imprisonment of property offenders in the Northern Territory (1999) 22(1) University of New South Wales Law Journal 302 at pp302-303; R. Hogg, Mandatory sentencing laws and the symbolic politics of law and order (1999) 22(1) University of New South Wales Law Journal 262; N. Morgan, Capturing crims or capturing votes? The aims and effects of mandatories (1999) 22(1) University of New South Wales Law Journal 267, pp268-269.  (1998) UN doc. CCPR/C/79/Add. 99. See also Madame Chanet in Hankle v Jamaica (710/96)  Salgar de Montejo v Colombia (64/79), paragraph 10.4.  HRC, General Comment 17, at paragraph 1.  See H. Bayes, Justice is blind: Mandatory sentencing of children in Western Australia and the Northern Territory, (1999) 22(1) University of New South Wales Law Journal 286, p. 286.  Human Rights and Equal Opportunity Commission Human rights brief no.2: Sentencing juvenile offenders, p5.  Martin, G, Seminar on Mandatory Sentencing, at Indigenous Human Rights Conference, Byron Bay, February 2000.  See HRC, General Comment 18, paragraph 7.  See Aboriginal and Torres Strait Islander Social Justice Commissioner, Bringing them home, op cit, pp. 116-119, pp. 163-164.  See Aboriginal and Torres Strait Islander Social Justice Commissioner, ibid, pp. 139-140, p. 164.  The terms of reference can be found at  HYPERLINK http://www.aph.gov.au/senate/committee/advert/Antigenocide.htm http://www.aph.gov.au/senate/committee/advert/Antigenocide.htm  See Aboriginal and Torres Strait Islander Social Justice Commissioner, op.cit, pp. 109-110, p. 167  Committee on the Elimination of Racial Discrimination, General Recommendation XXIII Peoples, UN Doc CERD/C/51/Misc.13/Rev.4, 18 August 1997, para 3.  There has been government recognition of the benefits of increased community involvement and control in redressing Indigenous disadvantage: For example, the Desert schools report: An investigation of English language and literacy among young Aboriginal people in seven communities, AIATSIS, Canberra, 1996, was a Commonwealth-funded extensive study, of which principal recommendations focused on strengthening the involvement of communities in the education process.  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