Submission by the Society for Threatened Peoples on Racism in Australia

Göttingen
Introduction

 

Racism is widespread and thriving in Australia, the country’s Human Rights and Equal Opportunity Commission (HREOC) emphasized in July at a preparatory meeting for the UN World Conference against Racism. Aborigines still await reparations and compensation for historical injustices perpetrated against them. The Aboriginal and Torres Strait Islander Commission (ATSIC) testified to the 56th Session of the UN Human Rights Committee (HRC) last year that no substantial improvements were achieved for indigenous Australians during the 1990s. Although process for reconciliation between "black” and "white” Australians was started in the early 90s (with establishment at government level of the Council for Aboriginal Reconciliation), with the inauguration of the conservative government under John Howard in 1996 the process stalled badly. Especially the Native Title Amendment Acts 1998 (see chapter Native Title), the severe "mandatory sentencing” laws in Western Australia and the Northern Territory which mainly hit young Aborigines (see respective chapter) have worsened the situation worse for indigenous Australians.

 

The suppression of the indigenous people started with the English seizure of Australian land at the end of the 18th century. Land theft, massacres and kidnapping of indigenous children to "assimilate” them were government policy until recently. At least 10 to 30% of the Aborigines now alive were forcefully taken from their families (30% mainly in New South Wales and Victoria). This was done well into the 1970s. Many of these people, referred to as the Stolen Generations (see chapter below), still suffer physically and psychologically from the trauma. The refusal of the Howard government to apologize formally for the past injust policies and the factual genocide of the Aborigines, its refusal to recognize a sovereign Aboriginal identity and to guarantee the Aborigines’ claims by law have destroyed hopes for a real reconciliation between indigenous and "white” Australians. The government has ignored all international accusations in this context.

 

The federal government defines an Aborigine as a person of Aboriginal descent, defines him or herself as an Aborigine and is accepted as such by the Aboriginal community in which he or she lives. In 2001 there are estimated to be 427 000 Aborigines in Australia. They constitute just over 2% of the total population of 19 million. According to the 1996 census, more than 50% of the Aborigines live in the states New South Wales and Queensland, a further 25% in Western Australia and the Northern Territory. 72,6% live in cities of mostly fewer than 100 000 people. 40% of the Aborigines are children aged under 15 years (as opposed to 21% among "white” Australians).

 

(Sources: www.abc.net.au/message/radar/ab-16jul2001-8.htm; Report submitted by the Aboriginal and Torres Strait Islander Commission to the United Nations Human Rights Committee, June 2000 –www.atsic.gov.au/issues/international/ICCPR/; Face the Facts – www.hreoc.gov.au/racial_discrimination/face_facts/sect3.html)

 

On the social situation of Aborigines

 

The HREOC summarizes the Aborigines’ social situation as follows: "[...] Indigenous people are the most disadvantaged in the country no matter where they live, particularly with regard to health and well-being.” Recent numbers and the statistics of the 1996 census confirm this.

 

The life expectancy of Aborigines in the 2000 equalled that of non-indigenous Australians in 1900. The infant mortality rate is triple the national average. Aborigines generally die 20 years earlier than "white” Australians, the men significantly earlier than women. On average, the male Aborigine dies aged only 46. Violent deaths (such as suicide, road crashes and accidents) and the wide dispersal of diseases such as diabetes are responsible for the high death rate in the indigenous population. In some communities, 20% of adults suffer from diabetes. While nationwide five in 100,000 inhabitants have tuberculosis, the Aboriginal community of Maningrida, for example, witnesses an infection rate of 532 per 100,000 – i.e. more than 100 times the national average. The appalling health conditions of indigenous Australians are also reflected by the fact that they are twice as likely to be hospitalized as nonindigenous.

 

According to a 2000 study by the Australian Bureau of Statistics almost a third of indigenous communities live in squalid housing and have to endure frequent power cuts, poor water quality and overflowing sewage. Accommodation is often overcrowded. In 1996/1997 about 12, 000 Aborigines were registered homeless. Alcoholism is widespread, with 21% of male Aborigines drinking to a life-threatening extent, compared with 8% of non-indigenous males. The same applies for 9% of Aboriginal but only 3% of non-indigenous women.

 

Workplace Relations Minister Peter Reith reported that in 2000, 23% of indigenous Australians were unemployed, compared with a national average of 7%. Reasons for the high unemployment rate are (among others) the decline of rural industries, knowledge of English only as second or third language and poor education. Ntionwide, only 32% of indigenous students completed high school, compared with 3% of all Australian students – in some regions, such as in the Northern Territory, he numbers are drastically worse. Most Aborigines work in government or ommunity-funded jobs and are rarely employed in the private sector, stated ATSIC ommissioner Terry Whitby in 2000. In 1996, 14.9% alone were employed through ommunity Development Employment Projects (CDEP). CEDP employees, however, nly earn $10,000 (Australian) per year, whereas the poverty line is established at $12,500.

 

On the whole, it is obvious that indigenous Australians experience the lowest standards of health, education, employment and housing and are over-represented in criminal prosecutions.

 

In 1999/2000 the government made available $2.2 billion for the special needs of Aborigines. ATSIC receives about half of this funding. The spending of it is controlled – 70% is set aside to address the severest problems in the areas of health, housing, unemployment and education. Apart from the fact that ATSIC’s budget was cut by 40% in 1996, money alone is not enough to counter the effects of historic and contemporary racism.

 

(Sources: House of Representatives Standing Committee on Family and Community Affairs: Health is Life. Report of the Inquiry into Indigenous Health, Canberra, May 2000; Face the Facts – www.hreoc.gov.au/racial_discrimination/face_facts/sect3.html; Office of the Minister for Aboriginal and Torres Strait Islander Affairs: Rebutting the Myths. Some Facts about Indigenous Affairs, Canberra, 1999; Australian Broadcasting Corporation, 05.06.00; The Canberra Times, 18.04.00; ABC Indigenous News, 06.03.2001; The Age, 13.03.01; ATSIC Media Release, 02.07.00; The Age, 17.04.00; The Australian, 28.04.00)

 

Native Title

 

Background: In its 1992 Mabo4 decision, the Supreme Court overrules the so-called "terra nullius” doctrine. This doctrine had declared Australia uninhabitated when the colonists arrived, providing the basis in law for taking away the Aborigines’ land. The Mabo decision now recognizes native titles for Aborigines as still valid if they have not been nullified by a national law and if the Aborigines’ concerned have maintained their connection to the land. This decision enabled the Native Title Act (NTA) to be established in 1993. It spells out the relation between indigenous rights and acts of the crown / government. As its central aspect it introduces a "Right to Negotiate” for Aborigines in case of conflict. This element of the law is one of the main reasons for the approval of Aboriginal communities of the NTA. But The Act was undermined by the government in 1998.

 

Before that, however, in its 1996 Wik decision, the Supreme Court declared that native titles and pastoral titles (which cover 40% of the land) can coexist. This means factually that from then on, Aborigines can claim not only public land but also land privately used by leaseholders. Especially stock farmers and mining companies protested against this decision. In response to their pressure, the government pushed through the 1998 Native Title Amendment Acts. These considerably reduce the indigenous "Right to Negotiate.” Regional governments or other state institutions can now take the conduct of negotiations out of the Aborigines’ hands, in particular when controversial mining plans are concerned. It practically strips the Aborigines of their ability to intervene.

 

ATSIC rejects the following aspects of the Native Title Amendment Acts:

 

1. Validation of "intermediate period” acts: These are rights of usufruct given to mining companies by regional governments after 1994 which do not meet the 1993 NTA. They were declared invalid by the Wik decision, but the amendments subsequently recognized them;

2. Erosion of the Right to Negotiate (see above.);

3. Expansion of the rights of pastoralists at the expense of native title parties (primary production upgrade provision). Resources such as timber, minerals, etc. can be exploited by third parties without negotiating with the Aborigines; only a compensation has to be paid;

4. Statutory confirmation of extinguishment of native title. National and regional agencies can now interfere with native land without compensating title holders.

    

From the point of view of the UN Committee on the Elimination of Racial Discrimination (CERD), the 1998 Native Title Amendments Acts discriminate against Aborigines and therefore constitute a breach of the CERD foundations.

 

(Sources: Report submitted by the Aboriginal and Torres Strait Islander Commission to the United Nations Human Rights Committee, June 2000 – www.atsic.gov.au/issues/international/ICCPR/)

 

Mandatory sentencing, incarceration of Aborigines

 

In 1995 and 1996 respectively, Western Australia and the Northern Territory introduced mandatory sentencing laws for adults who repeatedly committed minor property offences. For instance, a black Australian woman in Alice Springs was threatened with a further year of imprisonment for having destroyed a pub window. Both regions amplified the laws to include youth:

Adult sentencing: In Western Australia repeated minor property offences entail at least 12 months of imprisonment. In the Northern Territory, at least 14 days of prison follow a first property offence, a second offence entails 90 days, a third 12 months. People over 17 years of age are treated as adults.

Juvenile sentencing: In Western Australia, repeat offenders aged 16-18 are imprisoned for 12 months for burglary. In the Northern Territory, 15-17-year-olds have to endure 28 days of prison after repeated minor property offences. These include a vast number of offences: Theft, burglary, trespassing, illegal guidance of a motor vehicle, receiving stolen goods, intentional property damage.

 

These laws principally concern Aborigines because minor property offences are mainly committed by socially and economically disadvantaged people. The discriminatory effect of mandatory sentencing is underlined by the fact that the laws do not touch offences such as fraud mainly committed by "white” Australians. Instead, particularly Aboriginal youth suffer the consequences of these laws. According to ATSIC and many Aboriginal organisations, mandatory sentencing violates the provisions of the Convention on the Rights of the Child (Art. 3 (1), Art. 30, Art 37 (a/b), Art. 40 (4)) and of the International Covenant on Civil and Political Rights ICCPR (Art. 9 (1), Art. 10 (3).

 

In January 2001 the Australian Bureau of Statistics identified 3,934 indigenous prisoners, equal to 19% of the total prison population - whereas Aborigines constitute only approximately 2% of the national population. The Northern Territory records the highest proportion of Aboriginal prisoners: 62%. In Western Australia, the indigenous imprisonment rate is 20 times that of non-indigenous Australians. Whereas the nonindigenous prisoner rate increased by 38% between 1985 and 1995, the rate for imprisoned Aborigines and Torres Straits Islanders increased by 61%. Almost 50% of all people arrested for disturbing the public order are Aborigines. The incarceration rate for male Aborigines today is 12 times as high as that of the rest of the population. The 20-29-year-old males are the most likely group to be arrested. Robin Sullivan, Queensland’s Children’s Commissioner, noted this July that some indigenous teenagers see going to jail as a "badge of honour.” High imprisonment rates and the breakdown of family structures had irreparably destroyed the social dynamics within communities. An increasing number of teenagers were proud that their fathers were in prison, Sullivan stated.

 

The mandatory-sentencing laws in Western Australia and the Northern Territory have been criticized at national and international levels. According to the UN Committee on the Convention on the Rights of the Child (CROC Committee), the HREOC and the Law Council of Australia, the enforcement of the laws contradicts the principle of the separation of powers: By classifying the offence and thereby co-determining the later punishment by the court, the police takes on not only executive but also executive and judicial powers. The decisions are inevitably injust because the courts are obliged to impose pre-determined punishments so that the particular circumstances of the offence cannot be considered. Empirical investigations in the USA and Western Australia did not confirm the claims of the laws’ defenders that the threat of inevitable punishments would prevent crimes. Aside from the human suffering they cause the prisoners, the numerous imprisonments strain the public budget: One prisoner costs ca. $62,000 a year.

 

Death in Custody

 

Directly linked with the mounting number of imprisonments following the mandatory sentencing laws is a rising death rate among imprisoned Aborigines. This is emphasized by the February 2000 suicide of a 15-year-old Aboriginal boy from Groote Eylandt in the Northern Territory: For his third property offence (theft and property damage at a value of $90) he was imprisoned in Darwin’s Don Dale Correctional Facilty where he killed himself by hanging.

 

According to the Australian Institute of Criminology, 22% of all deceased prisoners in 1999 were Aborigines. During the decade before the appointment of the Royal Commission into Aboriginal Deaths in Custody (1991), the rate of all Aborigines who died in jail was 12.1%.

 

In July 2001, the Aboriginal Legal Services ascertained that quite obviously fundamental recommendations of this commission have not been implemented or taken into consideration. For instance, not all potential hanging points in prisons have been removed. Had they been, the death of a 16-year-old boy in the John Oxley Detention Centre in Queensland in 1998 could have been prevented.

 

(Sources: The Australian, 14.4.00; Cunnen, Chris: Zero Tolerance Policing: Implications for Indigenous People, Institute of Criminology/Sydney University Law School, February 1999–www.atsic.gov.au/issues/zero_tolerance/ztpintro.htm; Report submitted by the Aboriginal and Torres Strait Islander Commission to the United Nations Human Rights Committee, June 2000 – www.atsic.gov.au/issues/international/ICCPR/); www.theaustralian.news.com.au/printpage/0,5942,2372987,00.html, Macdonald, Lisa: Racism Kills, jinx.sistm.unsw.edu.au/~greenlft/1996/258/258cen.htm; The Sydney Morning Herald, 16.09.2000; Bills Digest, 62, 1999-2000: www.aph.gov.au/library/pubs/bd/1999-2000/2000bd062.htm; Australian Associated Press, 17.02.01; The Age, 11.09.00; The Sydney Morning Herald, 22.01.01; www.abc.net.au/message/radar/ab-16jul2001-7.htm; www.aic.gov.au/media/20000712.html)

 

Stolen Generations

 

In 1997, the Human Rights and Equal Opportunity Commission (HREOC) published the "Bringing Them Home Report.” It documents how until the 1970s, Aboriginal children were forcibly taken away from their families to be assimilated into the "white” society. It was argued that these measures, which the report condemns as genocide, were taken to counter the alleged bad influence of the Aboriginal culture on the children and to save them from the alleged neglect by their natural parents. The number of children thus snatched away is estimated at 100,000, which means that almost all Aboriginal families have been affected by being robbed of their children. The grandmother of Olympic gold medallist Cathy Freeman is such a stolen child, for example.

 

A very high number of indigenous children are still being forcibly removed from their families. In 1997/1998, 15% were in public charge, compared to 3% non-indigenous children. At the same time, 22% of all juvenile prisoners were Aborigines. In 1997 $63 million was allocated as compensation for the injustice of family separation, but by June 1999 only a quarter of that sum had been distributed. No national fund has been established as was recommended. Nor was the genocide convention incorporated into Australian law. The government refuses to apologize in an official way. But the establishment of a "National Sorry Day” and many reconciliation marches last year indicate that ever more Australians are trying to deal with realities.

 

(Sources: Face the Facts – www.hreoc.gov.au/racial_discrimination/face_facts/sect3.html); Report submitted by the Aboriginal and Torres Strait Islander Commission to the United Nations Human Rights Committee, June 2000 – www.atsic.gov.au/issues/international/ICCPR/; The Canberra Times, 11.01.01)

 

Australia and the United Nations

 

Australia is the first democratic country that has been asked by the UN Committee on the Elimination of Racial Discrimination (CERD) to explain its policies. The concerns were caused by the amendments to the 1993 Native Title Act. The CERD imputes that the 1998 Native Title Amendments breach the obligations Australia entered by ratifying the resolutions of the Racial Discrimination Convention in 1974.

 

Resolution 2 (54) of the Committee on the Elimination of Racial Discrimination (54th session/1999): The CERD criticizes the 1998 Native Title Amendment Act: "While the original 1993 Native Title Act was a delicately balanced act between the rights of indigenous and non-indigenous title holders, the amended act appears to create legal certainty for Governments and third parties at the expense of indigenous title.” In particular, the CERD considers four provisions of the amended law to be discriminating against Aborigines (see chapter Native Title).

 

The amendments are not regarded as "special measures” according to Art. 1 (4) and 2 (2) of the Convention and are therefore in opposition to Art. 2 and 5. Furthermore, the non-participation of the indigenous communities in the formulation of the amendments is a breach of Art. 5 (c) of the Convention. The Committee demands a halt to the application of the amendments and the opening of new discussions on the native title legislation "with a view to finding solutions acceptable to the indigenous peoples and which would comply with Australia’s obligations under the Convention.”

 

Australia was also criticised in 2000.

Report of the Committee on the Elimination of Racial Discrimination (A/55/18 2000)

Concerns and Recommendations:

 

1. The national laws ought to correspond with the CERD regulations.

2. The protection of indigenous titles impaired by the 1998 amendments must not be diminished any further.

3. Pursuant to Art. 5 (c) of the Convention, the participation of indigenous communities in decisions concerning their rights and lands must be guaranteed.

4. Restrictions on the work of ATSIC and the Aboriginal and Torres Straits Islander Social Justice Commissioner are considered very critical.

5. The loss of confidence in the reconciliation process on the part of the indigenous population is deplored; a "meaningful reconciliation” is urged.

6. The government’s refusal to apologize formally and to compensate the victims of the assimilation policies (lasting until the 1970s) is criticized.

7. The abolition of the reservations towards Art.. 4 (a) of the Convention is called for.

8. The Committee is concerned about the high numbers of indigenous prisoners, considering that Aborigines constitute a comparatively low percentage of the entire population.

9. The mandatory sentencing legislation in Western Australia and the Northern Territory is seen as racially discriminatory and hence in breach of the Convention.

10. The Committee is very concerned about the discrimination of Aborigines regarding their social, cultural and economic rights.

     

Similarly, The UN Human Rights Committee asks the Australian government in its

2000 report for the following:

 

1. To include the Aborigines better in the decision-making about their land and natural resources;

2. In that sense, to reopen the negotiations on the Native Title Act;

3. To intensify the dealing with past crimes of the Australian state against Aborigines (Stolen Generations);

4. To adjust the penal codes, in particular the mandatory sentencing laws, to the international human rights commitments.

    

Reacting to the recent UN criticism on the treatment of asylum seekers and Aborigines, the Australian government announced that it would reduce its cooperation with the international organisation. Prime Minister Howard put his government’s position into the following words: "We are for having matters affecting Australia resolved in Australia by Australians through Australian institutions.”

 

Foreign Minister Downer proclaimed that Australia’s further cooperation with the Human Rights Committee depended on an "effective reform” of the latter. In addition, he accused the CERD of taking the arguments of NGOs more seriously than those of democratically elected governments. One result of this conflict between Australia and the United Nations is that Canberra refuses to ratify the agreement on the rights of the woman - even though it used to be one of its main advocates. This harms Australia’s reputation - not only with regard to the country‘s human rights stance.

 

(Sources: Oxfam Briefing: www.caa.org.au/campaigns/urgent/cerd.html; Decision 2 (54) on Australia: Australia. 18/03/99. A/54/18, para.21 (2); Report of the Committee on the Elimination of Racial Discrimination, 56/57 Session (March/July-August 2000; A/55/18); BBC, 29.8.00; The Age, 5.9.00; The Sydney Morning Herald, 30.8.00)

 

APPEAL

 

The Society for Threatened Peoples asks the Australian government

 

• To create a native title legislation pursuant to the Mabo- and Wik decisions, i.e. to abolish the 1998 Native Title Amendments,

• To abolish the mandatory sentencing laws in Western Australia and the Northern Territory by federal law,

• To allow official UN experts to travel to Australia in future without obstructions, i.e. to take back last year’s respective announcement by Foreign Minister Downer,

• To recognize the Aborigines’ sovereign cultural identity and to guarantee it by law.

   

Furthermore, the Society for Threatened Peoples asks the World Conference Against Racism to urge the European Union to suspend all trade with Australia until it has signed the EU human rights clause which has been standard in all commercial treaties since 1996.