CCPR/CO/69/AUS
28 July 2000
HUMAN RIGHTS COMMITTEE
Sixty-ninth session
CONSIDERATION OF REPORTS SUBMITTED UNDER ARTICLE 40
CONCLUDING OBSERVATIONS OF THE HUMAN RIGHTS COMMITTEE
AUSTRALIA
1. The Committee examined the third and fourth periodic reports of
Australia
(CCPR/C/AUS/99/3 and 4) at its 1955th, 1957th and 1958th meetings, held
on
20 and 21 July 2000. At its 1967th meeting on 28 July 2000, the
Committee
adopted the following concluding observations.
Introduction
2. The Committee appreciates the quality of the reports of
Australia, which
conformed with the Committee's guidelines for the preparation of State
party
reports and provided a comprehensive view of such measures as have been
adopted by Australia to implement the Covenant in all parts of the
country.
The Committee also appreciated the extensive additional oral and written
information provided by the State party delegation during the
examination of
the report. Furthermore, the Committee expresses appreciation for the
answers to its oral and written questions and for the publication and
wide
dissemination of the report by the State party.
3. The Committee regrets the long delay in the submission of the
third
report, which was received by the Committee ten years after the
examination
of the second periodic report of the State party.
4. The Committee expresses its appreciation for the contribution of
non-governmental organisations and statutory agencies to its work in
considering the State party�s reports.
Positive aspects
5. The Committee welcomes the accession of the State party to the
Optional
Protocol to the Covenant in 1991, thereby recognizing the competence of
the
Committee to consider communications from individuals within its
territory
and subject to its jurisdiction. It welcomes the action taken by the
State
party to implement the views of the Committee in the case of
communication
488/1992 (Toonen vs. Australia) by enacting the necessary legislation at
the
federal level.
6. The Committee welcomes the enactment of anti-discrimination
legislation
in all jurisdictions of the State party, including legislation to assist
disabled persons.
7. The Committee welcomes the establishment of the Aboriginal and
Torres
Strait Islander Social Justice Commissioner in 1993.
8. The Committee notes with satisfaction that the status of women
in
Australian society has improved considerably during the reporting
period,
particularly in public service, in the general workforce, and in
academic
enrollment, although further equality has yet to be achieved in many
sectors. The Committee welcomes the initiatives to make available to
women
facilities to ensure their equal access to legal services, including in
rural areas, and the strengthening of the Sex Discrimination Act, 1984.
Principal subjects of concern and recommendations
9. 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 natural resources (article 1, para 2).
10. The Committee is concerned, despite positive developments
towards
recognising the land rights of the Aboriginals and Torres Strait
Islanders
through judicial decisions (Mabo 1992, Wik 1996) and enactment of the
Native
Title Act of 1993, as well as actual demarcation of considerable areas
of
land, that in many areas native title rights and interests remain
unresolved
and that the Native Title Amendments of 1998 in some respects limits the
rights of indigenous persons and communities, in particular in the field
of
effective participation in all matters affecting land ownership and use,
and
affects their interests in native title lands, particularly pastoral
lands.
The Committee recommends that the State party take further steps in
order to
secure the rights of its indigenous population under article 27 of the
Covenant. The high level of the exclusion and poverty facing indigenous
persons is indicative of the urgent nature of these concerns. In
particular,
the Committee recommends that the necessary steps should be taken to
restore
and protect the titles and interests of indigenous persons in their
native
lands, including by considering amending anew the Native Title Act,
taking
into account these concerns.
11. The Committee expresses its concern that securing continuation
and
sustainability of traditional forms of economy of indigenous minorities
(hunting, fishing and gathering), and protection of sites of religious
or
cultural significance for such minorities, that must be protected under
article 27, are not always a major factor in determining land use.
The Committee recommends that in the finalization of the pending Bill
intended to replace the Aboriginal and Torres Strait Islander Heritage
Protection Act (1984), the State party should give sufficient weight to
the
above values.
12. While noting the efforts of by the State party to address the
tragedies
resulting from the previous policy of removing indigenous children from
their families, the Committee remains concerned about the continuing
effects
of this policy.
The Committee recommends that the State party intensify these efforts so
that the victims themselves and their families will consider that they
have
been afforded a proper remedy. (articles 2, 17 and 24).
13. The Committee is concerned that in the absence of a
constitutional Bill
of Rights, or a constitutional provision giving effect to the Covenant,
there remain lacunae in the protection of Covenant rights in the
Australian
legal system. There are still areas in which the domestic legal system
does
not provide an effective remedy to persons whose rights under the
Covenant
have been violated.
The State party should take measures to give effect to all Covenant
rights
and freedoms and to ensure that all persons whose Covenant rights and
freedoms have been violated shall have an effective remedy (article 2).
14. While noting the explanation by the delegation that political
negotiations between the Commonwealth Government and the governments of
states and territories take place in cases in which the latter have
adopted
legislation or policies that may involve a violation of Covenant
rights,
the Committee stresses that such negotiations cannot relieve the State
party
of its obligation that Covenant rights will be respected and ensured in
all
parts of its territory without any limitations or exceptions (article
50).
The Committee considers that political arrangements between the
Commonwealth
Government and the governments of states or territories may not condone
restrictions on Covenant rights that are not permitted under the
Covenant.
15. The Committee is concerned by the government bill in which it
would be
stated, contrary to a judicial decision, that ratification of human
rights
treaties does not create legitimate expectations that government
officials
will use their discretion in a manner that is consistent with those
treaties.
The Committee considers that enactment of such a bill would be
incompatible
with the State party�s obligations under article 2 of the Covenant and
urges
the government to withdraw the bill.
16. The Committee is concerned over the approach of the State party
to the
Committee�s Views in the Communication No. 560/1993 (A. v.
Australia).
Rejecting the Committee�s interpretation of the Covenant when it does
not
correspond with the interpretation presented by the State party in its
submissions to the Committee undermines the State party�s recognition of
the
Committee�s competence under the Optional Protocol to consider
communications.
The Committee recommends that the State party reconsider its
interpretation
with a view to achieving full implementation of the Committee�s views.
17. Legislation regarding mandatory imprisonment in Western
Australia and
the Northern Territory, which leads in many cases to imposition of
punishments that are 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, raises serious issues of compliance with
various articles in the Covenant.
The State party is urged to reassess the legislation regarding mandatory
imprisonment so as to ensure that all Covenant rights are respected.
18. The Committee notes the recent review within Parliament of the
State
party�s refugee and humanitarian immigration policies and that the
Minister
for Immigration and Multicultural Affairs has issued guidelines for
referral
to him of cases in which questions regarding the State party�s
compliance
with the Covenant may arise.
The Committee is of the opinion that the duty to comply with Covenant
obligations should be secured in domestic law. It recommends that
persons
who claim that their rights have been violated should have an effective
remedy under that law.
19. The Committee considers that the mandatory detention under the
Migration
Act of �unlawful non-citizens�, including asylum seekers, raises
questions
of compliance with article 9, paragraph 1, of the Covenant, which
provides
that no person shall be subjected to arbitrary detention. The
Committee is
concerned at the State party�s policy, in this context of mandatory
detention, of not informing the detainees of their right to seek legal
advice and of not allowing access of non-governmental human rights
organizations to the detainees in order to inform them of this right.
The Committee urges the State party to reconsider its policy of
mandatory
detention of �unlawful non-citizens� with a view to instituting
alternative
mechanisms of maintaining an orderly immigration process. The Committee
recommends that the State party inform all detainees of their legal
rights,
including their right to seek legal counsel.
20. The Committee requests the fifth periodic report to be submitted
by 31
July 2005. It requests that the present concluding observations and the
next
periodic report be widely disseminated among the public, including civil
society and non-governmental organisations operating in the State party.
.
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