58.The Special Rapporteur’s attention was particularly drawn to the situation of Aboriginal women, which the Australian Bureau of Statistics illustrates in the passage below following the survey undertaken in 1996:

“The health disadvantage of Indigenous Australians begins early in life and continues throughout the life cycle. On average, Indigenous mothers give birth at a younger age than non-Indigenous mothers. In most states and territories, their babies are about twice as likely to be of low birth weight and more than twice as likely to die at birth than are babies born to non-Indigenous mothers.

“The average age of Indigenous mothers was 24.0 years, compared to 28.6 years for non-Indigenous mothers. 23.1 per cent of Indigenous mothers were teenagers, more than four times the non-Indigenous rate (4.8 per cent); the proportion of low birth weight babies (less than 2,500 grams) of Indigenous mothers was 12.4%, more than twice the rate of non-Indigenous mothers (6.2 per cent); the foetal death rate among births to Indigenous mothers of 13.9 per 1,000 births was more than double that of 6.7 per 1,000 for non-Indigenous births.”

2. Restriction of land rights

59.The Race Discrimination and Aboriginal and Torres Strait Islander Social Justice Commissioner has made a detailed analysis of the consequences of the Native Title Amendment Act 1998. In this connection, he notes that despite decision 2 (54) of the Committee on the Elimination of Racial Discrimination adopted in August 1999, calling on Australia to suspend implementation of this Act, which is contrary to its international obligations, the Act continues to be applied. Notwithstanding that the validation provisions, the confirmation of extinguishment provisions, the primary upgrade provisions, and the restrictions concerning the right of Indigenous title holders to negotiate stipulated in the law discriminate against native title holders, states and territories continue to implement the amended Act. The Commonwealth has not entered into negotiations with Indigenous peoples and extinguishment of native title continues to be effected by the states, under the authority of the Commonwealth Government.

In particular, the validation provisions result in the loss or impairment of the rights of native title

holders in favour of the rights of non-Indigenous title holders. 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.

60.Table 2 provided by the Race Discrimination Commissioner sets out the current status of validation legislation introduced by states and territories as at 30 June 1999. Changes that have occurred since August 1999 are indicated in bold type.

Table 2

Validation legislation introduced by the states and territories

State or territory	Legislative action	Status of legislation
New South Wales	Native Title (New South Wales) Amendment Act 1998	Proclaimed on 30 September 1998
Victoria	Land Titles Validation (Amendment) Act 1998	Parts 1 and 2 received assent on 24 November 1998
Australian Capital Territory (ACT)	Native Title (Amendment) Bill 1999	The bill is before the Legislative Assembly
South Australia	Statutes Amendment (Native Title) Bill (No. 2) 1998	Now lapsed
	Native Title (South Australia) (Validation and Confirmation) Amendment Bill 1999	Introduced into Parliament which resumes 28 March 2000
	Bill validates to full extent authorized by Native Title Act
Western Australia	Titles Validation (Amendment) Act 1999	Assented to by Parliament on 5 May 1999
	Titles (Validation) and Native Title (Effect of Past Acts) Acts 1999	Received assent on 13 December 1999
	Exclusive possession intermediate period acts and public works now extinguish native title
Northern Territory	Validation of Titles and Actions Amendment Act 1998	Assented to by Parliament on 28 August 1998 and commenced on 1 October 1998
Queensland	Native Title (Queensland) State Provisions Act 1998	Assented to on 3 September 1998
Tasmania	No proposed legislation to date	N/A

(a)The confirmation provisions

61.Section 23 E of the NTA provided that states and territories may introduce legislation that deems certain classes of tenure as well as specifically scheduled tenures granted before 23 December 1996 to have either extinguished or impaired native title. Native title holders are entitled to compensation for any extinguishment of native titles as a result of these provisions.

62.Table 3 sets out the current status of confirmation legislation introduced by states and territories as at 30 June 1999. Changes that occurred subsequent to August 1999 are indicated in bold type.

Table 3

Confirmation legislation introduced by the states and territories

State or territory	Legislative action	Status of legislation
New South Wales	Native Title (New South Wales) Amendment Act 1998	Royal assent and proclaimed on 30 September 1998
Victoria	Land Titles Validation (Amendment) Act 1998	Parts 1 and 2 received assent on 24 November 1998
Australian Capital Territory (ACT)	Native Title (Amendment) Bill 1999	The bill is before the Legislative Assembly
South Australia	Statutes Amendment (Native Title) Bill (No. 2) 1998	Now lapsed
	Native Title (South Australia) (Validation and Confirmation) Amendment Act 2000	Received assent on 14 December 2000. Commenced on 22 January 2001
	Bill confirms to full extent authorized by NTA
Western Australia	Titles Validation (Amendment) Act 1999	Passed by Parliament on 5 May 1999
	Titles (Validation) and Native Title (Effect of Past Acts) Amendment Act 1999. This Act extinguished native title on all previous exclusive possession acts and all public works. It completes adoption of the schedule in the Native Title Act	Received assent on 13 December 1999
Northern Territory	Validation of Titles and Actions Amendment Act 1998	Assented to on 28 August 1998 and commenced on 1 October 1998
	Lands and Mining (Miscellaneous Amendments) Act 1998
	Statute Law Revision Act 1999
Queensland	Native Title (Queensland) State Provisions Act 1998	Assented to on 3 September 1998
Tasmania	No proposed legislation to date	N/A

63.Since August 1999, Western Australia has passed legislation confirming extinguishment on further titles. Extinguishment now includes all scheduled and other interests authorized by the amended Commonwealth NTA, with the exception of leases not still in force on 23 December 1996. These are known as historic leases. The Western Australian amendments confirm extinguishment of native title on a further 1,300 grants.

64.In the Miriuwung Gajerrong case. In this case, Justice Lee, member of the High Court, found that, at common law, native title has survived on a number of leases, some of which had been included in the Commonwealth NTA schedule as extinguished titles. On 3 March 2000 the full bench of the Federal Court handed down its decision in the appeal of the Miriuwung Gajerrong case. By a majority of two to one the appeal court overturned many of Justice Lee’s findings regarding extinguishment of native title. The full court found that some titles scheduled to the Native Title Act do in fact extinguish native title, namely, conditional purchase leases and some special purpose leases under section 152 of the Land Act 1993 (WA). The court, however, also upheld Justice Lee’s findings that other special purpose leases, including, for example, leases for canning and preserving, did not extinguish native title.  With the exception of historic leases, these leases are now deemed, by the recent Western Australian legislation, to have extinguished native title. Native title holders are left with only a right to pursue compensation for this extinguishment.

65.The Western Australian legislation also expands the extinguishment of native title on land affected by public works. At common law and prior to the amendments, public works extinguished native title from the time of the commencement of construction or establishment of the public work, and extended only to the “footprint” of the work. The amendments provide for extinguishment from the time of the grant and expand the area of extinguishment to include the adjacent land and waters.

(b)The right to negotiate provisions

66.In paragraph 7 of CERD decision 2 (54), the Committee 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. The Committee urged the

Government to suspend implementation of the 1998 amendments. Most states and territories have introduced legislation that contains provisions which restrict the ability of native title holders to negotiate over non-Indigenous land uses.

67.Table 4 sets out the current status of alternative right to negotiate legislation that the states and territories have introduced, as of 30 June 1999. Changes that occurred subsequently are indicated in bold type.

Table 4

State and territory legislation that adopts exceptions

to the right to negotiate provisions

State or territory	Legislative action	Status of legislation
New South Wales	Sections 32-39, Native Title (NSW) Amendment Act 1998 (NSW) provide that the Administrative Decisions Tribunal will hear objections arising in relation to section 24MD (6B)	Proclaimed on 30 September 1998
	Amendments to the Mining Act and Petroleum Act (Onshore) Act 1991 ensure that particular grants qualify as either approved exploration grants (sect. 26A) or approved opal gem mining (sect. 26C). These provisions do not come into force until the Commonwealth Minister has made a determination. NSW has applied for a determination in relation to section 26C, but not for section 26A.	The Commonwealth Minister was considering the application for determination at 18 January 2000
Victoria	The Land Titles Validation (Amendment) Act 1998 amends the Pipelines Act 1967 in order to comply with the requirements of section 24MD (6B)	Enacted by parliament and in force No legislation as yet
ACT	No legislation is planned	N/A
South Australia	South Australia has had a state right to negotiate in place since 1994. Amendments in the Statutes Amendments (Native Title) Bill (No. 2) modify this scheme so that it complies with Native Title Act section 43. This bill also proposes to introduce provisions consistent with section 26A of the Native Title Act. Consultation in relation to the amendment to the right to negotiate provisions is continuing.	Introduced in parliament on 10 December 1998 Consultations continue
Western Australia	The Native Title (States Provisions) Act 1999 ( WA )	Bill received assent on 10 January 2000
	Replaces the right to negotiate with a state ‑based scheme (sect. 43);	The WA Government has made an application to the Commonwealth Attorney ‑General for a determination
	Replaces the right to negotiate on pastoral leasehold land (sect. 43A);
	Complies with the requirements of section 24  MDD (6B)
Northern Territory	The following acts and regulations have been passed:	Enacted by parliament and in force
	Land Acquisition Amendment Act (No. 2) 1998
	Mining Amendment Act No. 2) 1998
	Petroleum Amendment Act 1998
	Petroleum (Submerged Lands) Amendment Act 1998
	Land and Mining Tribunal Act 1998
	Energy Pipelines Amendment Act 1998
	Validation of Titles and Actions Amendment Act 1998
	Land Acquisitions Amendment Regulations 1998
	Mining Amendment Regulations 1999 No. 14
	Petroleum Amendment Regulations 1999 No. 15
	Energy Pipelines Amendment Regulations 1998
	The Attorney-General made three determinations that the alternative provisions complied with the requirements of the Commonwealth Native Act. On 31 December 1999, the Senate disallowed those determinations. Negotiations continue.	Alternative provisions are presently inoperable due to the disallowance
Queensland	Native Title (Queensland) State Provisions Act (No. 2) 1998 introduces the following provisions:	Assented to on 27 November 1998
	Section 43 - state‑based right to negotiate;
	Section 43A - alternative right to negotiate;
	Section 26A - exploration acts, but only on pastoral leasehold land;
	Section 26B - gold or tin mining.
	The Native Title (Queensland) Provisions Amendment Act 1999 significantly amends this Act	Assented to on 29 July 1999
	The Queensland Government sought 13 determinations from the Attorney ‑General. The consultation period ends 31 January 2000. A determination that the alternative provisions comply with the requirements of the Commonwealth Act is subject to disallowance by the Senate.	Alternative provisions may become effective
Tasmania	No proposed legislation to date

( i ) New South Wales (NSW)

68.The procedures applied by the New South Wales government with regard to native title and mining vary due to a number of NSW legislative exceptions to the right to negotiate in the Commonwealth Native Title Act (NTA):

(a)The Commonwealth Minister’s determinations in February 2000 under section 26C NTA that certain land and waters in the Lightning Ridge and White Cliffs regions are “approved opal or gem mining areas”;

(b)The Commonwealth Minister’s determinations in February 2000 under section 26A NTA replacing the RTN for “low-impact” exploration acts with consultation regarding the protection of native title rights and interests and the signing of an access agreement;

(c)The Commonwealth Minister’s determinations in November 1996 under section 26 (3) of the NTA (prior to its amendment) that the grant and renewal of mineral and petroleum exploration licences and special prospecting authorities are not subject to the RTN at the time of grant, but instead are subject to a condition that the holder is precluded from prospecting on any land over which native title may exist without the prior written consent of the New South Wales Minister for Mineral Resources.

The result of this scheme is that the right to negotiate does not automatically apply to the grant or renewal of any mineral or petroleum exploration licence or prospecting permit in NSW.

(ii)Queensland

69.During 1998 and 1999 the government amended the Mineral Resources Act 1989 (Qld) and enacted the Land and Resources Tribunal Act 1999 (Qld) for the purpose of establishing alternative provisions to the right to negotiate under the NTA (the “alternative provisions”). Significant opposition was voiced to the alternative provisions, including by the Queensland Indigenous Working Group (QIWG), which argued that the alternative provisions were discriminatory and should not be allowed. QIWG objected in particular to the alternative provisions because:

(a)They relied mainly upon the 1998 amendments to the NTA and so constituted a repudiation of the compact between Indigenous and non-Indigenous Australians made in 1993

and embodied in the NTA;

(b)The effect of the alternative provisions would be to remove or reduce native title holders’ procedural rights in circumstances where opportunities for agreements had not been fully explored; and

(c)The 1998 amendments to the NTA, upon which the alternative provisions relied, had been criticized by CERD in decision 2 (54) as being inconsistent with Australia’s international treaty undertakings.

In their original form the alternative provisions would have removed native title holders’ right to negotiate all mineral exploration, including high impact exploration, even though this can cause widespread and permanent damage to land and to Indigenous peoples’ cultural heritage.

70.While Commonwealth Attorney-General Daryl Williams made 13 determinations on 31 May 2000 allowing all of the Queensland alternative provisions, only some of these were allowed by the Commonwealth Senate. In the course of the Senate debate Senator John Faulkner tabled a letter from Queensland Premier Peter Beattie to Opposition Leader Kim Beazley that contained the terms of a compromise reached between the Queensland and Commonwealth governments that informed the Opposition’s vote in the Senate. In order to make good the compromise accepted by the Commonwealth Senate, Premier Beattie tabled the Native Title Resolution Bill 2000 in the Queensland parliament on 5 September 2000. The Queensland alternative provisions, in their modified form, commenced operation on 18 September 2000. Whilst some differences remain between the New South Wales and Queensland schemes in relation to the “low impact” exploration processes, Premier Beattie substantially complied with his undertaking to amend the Queensland alternative provisions upon the enactment of the Native Title Resolution Act 2000 (Qld).

(iii) Northern Territory

71.The Northern Territory was the first government to seek approval from the Commonwealth in relation to its alternative right to negotiate regime. In considering the scheme the Attorney-General was required by the NTA to take into account submissions made by Aboriginal and Torres Strait Islander representative bodies. Despite their objections to substantial areas of the scheme, it was approved. The motion succeeded on the basis that if it were not disallowed the Northern Territory could make subsequent amendments to its legislation without referral back to the Commonwealth Parliament. Only the Commonwealth Attorney‑General would have an ongoing supervisory role over subsequent amendments. It was considered that this was insufficient to ensure that Indigenous concerns over the state regimes were adequately addressed. A further factor considered by the Senate was the failure of the Northern Territory government to obtain the consent of the land councils. Consequently, the Northern Territory “alternative provisions” never came into effect. The right to negotiate under the Native Title Act (Commonwealth) operates in the Northern Territory.

72.There are alternative procedures available within the NTA which incorporate the principle of effective participation - namely, Indigenous land use agreements. Representative bodies and many other stakeholders support the pursuit of such agreements where appropriate and where the future acts regime has been so affected by discriminatory amendments that it fails to protect native title.

(iv) Western Australia

73.Western Australia passed the Native Title (State Provision) Act 1999 which provides for a state Native Title Commission to administer:

(a)Future acts on unallocated Crown land and Aboriginal reserves under section 43;

(b)Replacement of the right to negotiate on pastoral lands with the lesser notification and consultation provisions of section 43A;

(c)A regime for the operation of section 24MD (6B).

74.The alternative provisions will have effect in the event that the Attorney-General makes the determinations regarding future mining acts. Native title matters which come within the provisions will be administered by a state tribunal. The consultation period concluded on 31 January 2000. If the Attorney-General makes the determinations, the regime will come into force unless it is disallowed by a successful motion in the Senate.

75.The Race Discrimination and Aboriginal and Torres Strait Islander Social Justice Commissioner states that in order to restore the principles of equality and non-discrimination in state and territory legislation it would be necessary to amend the Commonwealth Native Title Act so as to make it consistent with the Racial Discrimination Act 1975 (Cth).

3. Discrimination in the administration of justice

76.In connection with the administration of justice, two questions attracted the attention of the Special Rapporteur: the high percentage of Aboriginals in the criminal justice system and their deaths in prison and detention centres, and the discriminatory nature of the mandatory sentencing laws in the Northern Territory and Western Australia. The representatives of the Commonwealth Government and all other people with whom the Special Rapporteur spoke agree that the high percentage of Aboriginals and Torres Strait Islanders results from their socio‑economic marginalization and the destructuring of their society. The measures already in place to remedy this situation will only take effect in the long term.

77.The Race Discrimination and Aboriginal and Torres Strait Islander Social Justice Commissioner stated that all levels of government have failed adequately to 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 children from their families. These reports make numerous recommendations aimed at redressing the underlying causes of Indigenous over-representation in the criminal justice, juvenile justice, and care and protection systems. Many of the recommendations have not been acted upon or are actively rejected by governments. The Commissioner makes the following observations in his report for the year 2000:

“From 1988 to 1998, the Indigenous prison 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 cent per year for the decade. This is 1.7 times the average annual growth rate of the non-Indigenous population;”

“Figures for the June 1999 quarter indicate that 76 per cent of all prisoners in the Northern Territory and 34 per cent of all prisoners in Western Australia were Indigenous. The rate of imprisonment of Indigenous people in Western Australia was 21.7 times higher than that of non-Indigenous populations. 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;”

“Aborigine adults make up 17 per cent of prison inmates but only 1.6 per cent of Australia’s adult population. Indigenous children are also over-represented in the juvenile justice system, with about 40 per cent of children in ‘corrective institutions for children’ identified as Indigenous in the 1996 census.”

78.In 1987, the Royal Commission into Aboriginal Deaths in Custody found that Indigenous people are more likely to die while in custody than are non-Indigenous people and reported on the deaths of 99 Aboriginal people between 1980 and the end of 1990. The Commissioner reported that in the decade since that time 147 Indigenous people died; 17.2 per cent of all prison deaths in the 1990s have been Indigenous peoples compared to 12.1 per cent in the 1980s. The measures adopted by the governments at all levels have not yet produced concrete results.

Mandatory sentencing

79.The mandatory sentencing which was introduced in the State of Western Australia and in the Northern Territory in 1997 is tending to aggravate the already precarious social situation of Aboriginals. At first sight the relevant law is not discriminatory since it is aimed at punishing a number of offences against private property without distinctions relating to ethnic or racial origin. But in the effects of its implementation it is discriminatory since it covers the kinds of offence generally committed by persons belonging to an ethnic minority and of low economic and social condition, mainly Aboriginals. The sentence established by the law is not proportional to the offence committed and allows the judge no discretion. In brief, the sentences are as follows:

(a)Adults: first offence, 14 days’ imprisonment; second offence, 90 days’ imprisonment; third offence, 12 months;

(b)Juveniles: second offence, minimum of 28 days’ imprisonment or alternative penalty; in the case of reoffenders, a minimum of 28 days’ imprisonment.

Studies have shown that the offences generally punished under this law relate to theft. But the law has had no real effect on reducing these offences while at the same time increasing the prison population, notably in the Northern Territory (see table 5).

Table 5

Mandatory sentencing and custody rates, juveniles,

adults and women in the Northern Territory *

Exponential increase in juveniles in custody Juvenile detentions have risen by 145% since 1996/97 Remand commencements have increased by 58% since 1996/97 Juveniles are especially affected by mandatory sentencing because they tend to commit property offences 89% of the offences committed by juveniles in detention were property offences The number of Aboriginal children in custody In 1998/99, 75% of juveniles in detention were Aboriginal Women The number of women in prison in the NT increased from 50 in 1995/96 to 276 in 1998/99, an increase of 552% since the introduction of mandatory sentencing The number of Aboriginal women in prison in the NT increased from 43 in 1995/96 to 252 in 1998/99, an increase of 586% since the introduction of mandatory sentencing Adults The territory imprisons almost four times as many of its citizens as any other state or territory of Australia Between June 1996 and March 1999 adult imprisonment increased by 40% Aboriginal people make up 77% of the Northern Territory’s prison population

*Source: The figures are derived from the Northern Territory Correctional Services annual reports from 1996/97 to 1998/99.

80.Just as he was completing the drafting of his report, the Special Rapporteur was informed that, following the taking-over of government by the Labour Party in the Northern Territory and on the initiative of four Aboriginal deputies belonging to that party, the mandatory sentencing law was abolished in the territory. Stress is increasingly laid on “diversionary programmes” aimed at preventing crime and implementing alternative penalties for persons committing minor offences. The Race Discrimination Commissioner for the Northern Territory and several other social protagonists (churches, Aboriginal community associations, lawyers, human rights organizations) have made efforts to explain these programmes to the Aboriginal communities and find with them alternative solutions to imprisonment. These programmes cover the prevention of drug use, prevention of violence, measures aimed at the rehabilitation of young offenders, and conferencing (mediation between the victim and perpetrator of a crime). It is therefore to be hoped that the State of Western Australia will follow the example of the Northern Territory.

4. The blocking of the “stolen generation”

81.From the late 1800s until 1969 Australia had a policy of removing Indigenous children from the families, allegedly out of concern for their well-being. As many as 100,000 children are estimated to have been separated from their families. These are known as the “stolen generations”. Indigenous children were put into institutions run by government and churches, adopted by white families and fostered into white families as part of a policy of assimilation. Far from being saved from neglect or destitution, many were imprisoned in institutions without enough food, without enough clothes, without love. Many were regularly victims of physical, psychological and sexual abuse. Today Indigenous children and young people continue to be removed from their families at a higher rate than the general population.

82.The devastating impact of forcible removal policies was finally given proper public recognition during the Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families by the Human Rights and Equal Opportunity Commission. It documented the grief, trauma and loss of culture resulting from the policies. The report of the inquiry, Bringing Them Home, issued in 1997, concluded that the forcible removal policies were a denial of common-law rights and a serious breach of human rights. The report recommended reparations for these violations. It said they were a breach of human rights amounting to genocide. The report estimates that between 1910 and 1970, 10-30 per cent of Indigenous children were taken from their families to be raised in institutions or fostered out to white families. Bringing Them Home made a total of 83 recommendations in four major categories:

(a)Reparation or compensation to individuals, families, communities and descendants;

(b)Acknowledgement and apology as essential components of reparation and reconciliation;

(c)Provision of family reunion health, counselling and other services; and

(d)Legislative change to introduce uniform policies and practices governing child removal in contemporary Australia.

83.The Aboriginal and Torres Strait Islander Commission stated that the Commonwealth Government responded positively to only 6 of the 62 recommendations for which it had primary responsibility. It agreed to fund the expansion of family reunion services, a national network of Indigenous mental health services, and record keeping and oral history projects. ATSIC feels that the central recommendations of the report were ignored and the Government rejected the call for a national apology to the stolen generations, stating that it is impossible to evaluate by contemporary standards decisions that were taken in the past. It also questioned the use of the term “stolen generations”, since not an entire generation was affected. The Government further questioned whether the motivation for removal was racist, and stated that the treatment of separated Aboriginal children was essentially lawful and benign in intent and also reflected wider values applying to children of that era. The level of government funding ($A 63 million over four years) and the way it has been spent has been criticized by many other Indigenous organizations as well.

84.To help move the debate about providing adequate reparation forward, a reparations tribunal has been proposed, based on the views of Indigenous Australians. It would deliver reparations measures, including compensation, and would be established and funded by the federal and state governments and the churches involved in the removal policies. The proposal has been rejected by the federal, state and territory governments. And since that time they have also rejected the inquiry’s calls for a national apology and acknowledgement of the history of forcible removals in the name of assimilation. The reasons advanced by the federal Government for rejecting the recommendations concerning compensation are that the practices in question were sanctioned by the law in force at that time, that they were intended to assist the people to whom they were applied, and that the implementation of an equitable and practicable compensation system would create serious difficulties (absence of witnesses and records, in view of the length of time elapsed). The Government has therefore preferred to provide financial support for initiatives facilitating family reunion and psychological support for victims. The Government has also failed to accept the human rights evaluation of past practices by denying its genocidal nature as recognized by the Commission in its report.

85.Some members of the stolen generations have filed cases in federal court. The Gunner‑Cubillo case, which was turned down, was a test case for an estimated 700 members of the stolen generations who are prepared to take their claims to court. The Commonwealth first attempted to have the case struck out and then defended it, contending that the children were more rescued than stolen. The judge found the Commonwealth had not breached its “duty of care” with respect to the removal from their families and their subsequent mistreatment in the Northern Territory institutions.

86.One striking aspect of the policy of separation of Aboriginal children from their families is the unpaid wages of these children. The authorities sent removed children to work on farms or in factories; however, as the children were not trusted to receive their wages, these were to be held in trust for them until they reached the age of 21. ATSIC is currently researching the issue of such trust fund accounts in relation to the State of Queensland. Mr. Melrose Donley, a claimant, has been unsuccessful in getting salary paid since 1935, when he reached 21. He requested the assistance of the United Nations in this matter and reported that moneys held on behalf of members of the stolen generations may total more than $A 20 million.

87.For many Aboriginals the defensive attitude adopted by the federal Government on matters that are very painful to them cast doubt about its real desire to achieve a meaningful reconciliation with Aboriginal peoples. It is then worth recalling the words of Sir William Deane, the Governor-General of the Commonwealth of Australia, when he received the Bringing Them Home report:

“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”.

5. Difficulties in the reconciliation process

88.The majority of Australians are in favour of reconciliation between Indigenous and non‑Indigenous inhabitants, but there is disagreement between the Government and the Indigenous inhabitants on the right paths towards such an understanding. From 1991 to 2001, a Council for Aboriginal Reconciliation has worked to find ways and means of achieving reconciliation between all the component members of the Australian population. When the Council had completed its work, on 27 May 2000 it submitted to the Australian Prime Minister and Parliament a Declaration towards Reconciliation and a “Roadmap for Reconciliation”. The Declaration reads as follows:

“We, the peoples of Australia, of many origins as we are, make a commitment to go on together in a spirit of reconciliation.

“We value the unique status of Aboriginal and Torres Strait Islander peoples as the original owners and custodians of lands and waters.

“We recognize this land and its waters were settled as colonies without treaty or consent.

“Reaffirming the human rights of all Australians, we respect and recognize continuing customary laws, beliefs and traditions.

“Through understanding the spiritual relationship between the land and its first peoples, we share our future and live in harmony.

“Our nation must have the courage to own the truth, to heal the wounds of its past so that we can move on together at peace with ourselves.

“Reconciliation must live in the hearts and minds of all Australians. Many steps have been taken, many steps remain as we learn our shared histories.

“As we walk the journey of healing, one part of the nation apologizes and expresses its sorrow and sincere regret for the injustices of the past, so the other part accepts the apologies and forgives.

“We desire a future where all Australians enjoy their rights, accept their responsibilities, and have the opportunity to achieve their full potential.

“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.

“Our hope is for a united Australia that respects this land of ours; values the Aboriginal and Torres Strait Islander heritage; and provides justice and equity for all”.

89.The “Roadmap” comprises the following six main points:

(a)The Council of Australian Governments agrees to implement and monitor a national framework whereby all governments and the Aboriginal and Torres Straits Islander Commission work to overcome Aboriginal and Torres Straits Islander peoples’ disadvantage through setting programme performance benchmarks that are measurable, are agreed in partnership with Aboriginal and Torres Straits Islander peoples and communities, and are publicly reported;

(b)All parliaments and local governments pass formal motions of support for the Declaration towards Reconciliation and the Roadmap for Reconciliation, enshrine their basic principles in appropriate legislation, and determine how their key recommendations can best be implemented in their jurisdictions;

(c)The Commonwealth Parliament prepares legislation for a referendum which seeks to: recognize Aboriginal and Torres Straits Islander peoples as the first peoples of Australia in a new preamble to the Constitution; and remove section 25 of the Constitution and introduce a new section making it unlawful to adversely discriminate against people on the ground of race;

(d)Recognizing that the formal Reconciliation process over the last decade has achieved much and has helped bring Australians together, all levels of government, non‑government, business, communities and individuals commit themselves to continuing the process and sustaining it by:

Affirming the Declaration towards Reconciliation and translating the Roadmap for Reconciliation into action;

Providing resources for reconciliation activities and involving Aboriginal and Torres Straits Islander peoples in their work;

Undertaking educational and public awareness activities to help improve understanding and relations between Aboriginal and Torres Straits Islander peoples and the wider community; and

Supporting Reconciliation Australia, the foundation that has been established to maintain a national leadership focus for Reconciliation, report on progress, provide information and raise funds to promote and support Reconciliation;

(e)Each government and parliament:

Recognizes that the land and its water were settled as colonies without treaty or consent and that to advance Reconciliation it would be most desirable if there were agreement or treaties; and

Negotiates a process through which this might be achieved that protects the political, legal, cultural and economic position of Aboriginal and Torres Strait Islander peoples;

(f)The Commonwealth Parliament enacts legislation to put in place a process which will unite all Australians by way of agreement, or treaty, through which unresolved issues of Reconciliation can be resolved.

90.The federal Government refused to allow apologies to be presented by “one part” to the other part of the Australian nation as desired by the Indigenous peoples, but agreed that, on the other hand, all Australians should express deep regret for the injustices of the past. The Australian Prime Minister expressed his views as follows, but without receiving the assent of the Indigenous peoples:

“As we walk the journey of healing, Australians express their sorrow and profoundly regret the injustices of the past and recognize the continuing trauma and hurt still suffered by many Aboriginals and Torres Strait Islanders.”

91.Similarly, the Government is opposed to the signing of an agreement or treaty that would settle once and for all the question of relations between the Indigenous peoples and the Australian State, thereby completing the process of reconciliation, in conformity with recommendations 5 and 6. It has agreed to build a symbolic monument on the site of the Australian Parliament in Canberra in order to seal the Reconciliation. The Indigenous peoples, for their part, say they support the framing of a treaty and have begun consultations on this question within their communities - despite each clan’s insistence on affirming its identity or specific cultural character. The agreement is almost unanimous on the land question. The Aboriginals intend to recover their right of ownership in order to genuinely exercise their right to development, if only in the context of autonomous territories. They consider that “the reconciliation process has made clear the pressing need for Aboriginal peoples to negotiate freely the terms of their continuing relationship with Australia. There is also a pressing need for non‑Indigenous people to re-establish the foundations of a nation which can no longer justify the means by which its sovereignty was first acquired. The recognition of Indigenous peoples’ right to their land and the origins of a nation are inextricably related and that changes to one part of the relationship [imply] and require changes to the other. Developments in native title law reflect upon the ethical foundations of the nation”.

92.In its report to the Prime Minister and the Parliament, the Council for Reconciliation included a draft bill which forms a framework for the ongoing negotiation of unresolved issues between Indigenous and non-Indigenous inhabitants. Those unresolved issues are relevant to social justice and equality, land culture and heritage, self-determination and political participation and constitutional and legislative reform. The Council stressed that further action is needed to resolve such matters as deaths in custody, native title, the stolen generations, Aboriginal and Torres Strait Islander law, and the protection of Aboriginal and Torres Strait Islander cultures, heritage and languages. An unresolved issue that needs to be negotiated and agreed upon before reconciliation can be achieved is the recognition of Indigenous peoples’ right to land. The resolution of this issue with the informed consent of Indigenous people would exclude the extinguishments of native title.

B. Racial discrimination affecting other communities

1. Anti-Semitism

93.In Melbourne, the Special Rapporteur met a number of representatives of Jewish organizations, including Mr. Danny Ben‑Moshe, Executive Director of B’nai B’rith Australia and New Zealand, and Ms. Nina Bassat, President of the Executive Council of Australian Jewry, who told him that there are approximately 110,000 Jews (0.5 per cent of the population) living in Australia, mainly in New South Wales, Victoria and South Australia. Generally speaking, the Jews are well integrated in Australia, where they are active in all spheres of society. There is no anti-Semitic culture in Australia, and consequently the Jews are not exposed to systematic anti‑Semitism. The Jewish organizations cooperate with the various Australian ethnic communities and consider Australia’s ethnic diversity to be an asset which must be preserved. The Executive Council of Australian Jewry, which supports the process of reconciliation with the Indigenous peoples, is a member of the Council for Multicultural Australia. However, there are occasional manifestations of anti-Semitism resulting from repercussions of the Middle East conflict within Australian society and the activism of certain individuals and political organizations. Thus theories about the “Jewish plot to dominate the world”, the negation of the Holocaust and stereotypes relating to the economic and financial power of the Jews are propagated by certain media, the extreme right-wing party “One Nation” and organizations of the same ilk, the Citizens’ Electoral Council, the Australian League of Rights and the Adelaide Institute. In view of the fact that people of Jewish origin work as lawyers or jurists, provide support for Aboriginal land claims and oppose mandatory sentencing, the far-right organizations also accuse the Jews of supporting the Aboriginal cause in order to divide and dominate Christian Australia.

94.Anti-Semitic incidents occasionally occur in Australian cities. These take the form of physical assaults, desecration of cemeteries, attacks on and vandalizing of synagogues, Jewish institution buildings and property belonging to Jews, anti-Semitic graffiti and anti-Semitic messages by ordinary mail or e-mail. In the year 2000, 372 incidents of this type were recorded by the Executive Council of Australian Jewry in New South Wales, Victoria, Queensland, Western Australia and the Australian Capital Territory. This represents a 47 per cent increase over incidents in 1999. The community has therefore adopted its own security system to prevent possible attacks on its members and to alert the police.

95.The Jewish organization representatives also expressed concern about racist propaganda disseminated on the Internet by sites in Australia. A complaint was lodged in 1996 by the Executive Council of Australian Jewry with the Human Rights and Equal Opportunity Commission against the activities of the Adelaide Institute and its leader, Frederick Toben, who disseminate the most insidious anti-Semitic propaganda. Despite the Commission’s order to the Adelaide Institute to cease its anti-Semitic propaganda and to apologize to the complainant, this organization is continuing its activities and the Council has had to take the matter to the High Court in order to secure enforcement of the Commission’s decision. The Court is expected to issue a decision on this case in the course of 2002.

2. Anti-Arab racism and discrimination

96.The situation of Australians of Arab origin was described to the Special Rapporteur by representatives of the Australian Arabic Council, whose President, Mr. Roland Jabbour, he met in Melbourne. The community comprises about 1 million members and is diverse in nature; most of its members originate from Lebanon, but there are also members from Egypt, Palestine, Iraq and north Africa. Most of them live in New South Wales, South Australia and Victoria. Although Arabs are fairly well integrated within Australian society (several political leaders and prominent businessmen are of Arab origin), they are worried about the persistence of stereotypes concerning them which sometimes lead to racist acts and discriminatory treatment, and notably to anti-Arab discourse combined with anti-Muslim discourse in the media:

“Mainstream Australia’s recognition of and response to Arabic communities remains largely dependent upon generalized and stereotypical representations of Middle Eastern cultural practices, dress, cuisine and so on. Whilst Arabic culture is in this way appropriated within orientalized, rustic and romanticized images of the Arabic world made palatable to a mainstream Australian audience, such images fail to adequately convey the individual and collective experiences and aspirations of Arabic communities long established in Australia.

“Such images work to homogenize Arabic culture, whereby class, gender, religious, cultural, social and political differences are wholly subsumed within the generic identification of the ‘Arab’ per se.

“The other side to stereotypical representation is that Arabic communities are often equally eschewed through the kaleidoscope of perceived threat, Arab irrationality, anxieties about their mob mentality and their propensity for violence. A recent example of this is the way that the increase of violent crimes in Sydney was linked to the proliferation of Lebanese and Asian ‘ethnic gangs’ using the argument that violence is an accepted part of everyday life in their countries of origin.”

97.The Council drew particular attention to the tendency for a certain sector of the Australian press to assimilate Arabs and Muslims and terrorism, and expressed the fear that “until multiculturalism in Australia further develops the sort of framework in which diversified, viable and contemporary representations of the Arabic community can be more fully articulated

at all levels, such entrenched stereotypes will continually threaten to depoliticize and marginalize our specific political and social aspirations and will continue to have very real and negative consequences for the Arabic community, most notably in the form of racism”.

98.Members of the Arab community have reported to the Council that they have been victims of physical assaults, attacks on their private property and verbal racist insults, and have received racist messages by ordinary mail or by e-mail. Attacks on mosques have also been reported. Such incidents increased during the Gulf war and are again increasing with the exacerbation of the conflict in the Middle East. “Dirty Arab”, “Arabs deserve to die” and “Go home, Arab; we don’t want you here” are frequently heard remarks. Many incidents occur in schools and on campuses, where Arab schoolchildren and students are abused by teachers or fellow students having anti-Arab views. Veiled women or women wearing the “hijab” are often verbally abused. Such incidents are not always reported to the police or to the race discrimination commissions because the victims feel excluded from Australian society and do not expect to win their case.

99.Discrimination in employment against Muslims in general and against Arab Muslims in particular is frequent. Thus there have been cases where employers have asked Arab job-seekers to change their name if they wanted to be recruited. One Australian of Palestinian origin, an aeroplane mechanic who was born in Australia and applied for a job with an airline, had to undergo a uniquely rigorous security check before he was hired.

3. Situations relating to immigration and asylum policy

100.Although the visit did not focus on immigration and asylum issues, some of the Special Rapporteur’s interlocutors insisted on providing him with information on those issues which they think should be the subject of serious concern.

101.It has been reported that there is currently a campaign against refugees and immigrants which is orchestrated by the media and often backed by some members of the federal Government. With populist insinuations, migrants are being accused of creating unemployment and profiting from the system or invading Australia, etc. Increased discrimination in granting visas for Asian countries and for Muslims has been noted. The federal Government is increasingly opposed to family reunification, notably for persons admitted as refugees or migrants. This situation particularly affects Afghan refugees and migrants. Australia’s immigration policy took a dramatic turn when, on 3 April 2001, Mr. Shahraz Kayani, an immigrant of Pakistani origin, was driven to despair and burnt himself to death in front of the federal Parliament building in Canberra. After having been granted refugee status in 1995, Mr. Kayani became an Australian citizen in 1999 and submitted several applications for his wife and disabled daughter to join him. In 1997 and 1999, the Department of Immigration refused to grant his family members entry visas on the ground that his sick daughter would be a financial burden on Australian social security.

102.At the professional level, migrants - especially those coming from non-English-speaking countries - also have to deal with the non-recognition of their qualifications and experience. They often have to study again and pass new examinations in Australia in order to be able to

work at the appropriate level of expertise. Many migrants therefore have to work for many years in jobs inferior to their real qualifications and have to bear the financial consequences. In some professions (medicine, teaching, engineering) the barriers migrants have to face are so great that they often have to give up the profession altogether.

103.The Special Rapporteur was informed that there are over 3,000 people, including women and children, being held in DIMA detention centres. A disproportionate number of these people are adherents of the Muslim religion, mostly from the Middle East and Asia. Others are from the Pacific Islands and Africa. Some have been kept there for several years, during which time they have been prevented from communicating with the outside world. It has been alleged that punitive, cruel and degrading treatments, often in the guise of “psychiatric care”, are routine in these detention centres. Injections with chemical substances to restrain, followed by solitary confinement, are routinely used as punishments. The drugs used usually belong to the phenothiazine and butyrophenone classes of drug, which block the neurotransmitter dopamine (in the brain), causing difficulty with movement, dulled emotions, impaired concentration and memory, and Parkinsonism (tremors, stiffness). The DIMA detention centres, located at Port Hedland (Western Australia), Villawood (Sydney), Perth (Western Australia), Curtin (Western Australia), Woomera (South Australia) and Maribyrnong (Melbourne), are staffed by the United States (Florida)-based Wackenhut Corrections Corporation (WCC). WCC also provides health care to detainees and these treatments reportedly are racially discriminatory, punitive and harmful to the physical and mental health of recipients.

104.The Special Rapporteur inquired about the above allegations with several interlocutors, including the Human Rights and Equal Opportunity Commission and the Federation of Ethnic Communities’ Councils of Australia, which denied them. The Human Rights and Equal Opportunity Commission stated that “there are no objective sources which can prove these allegations. Allegations about the use of sedative injections to restrain detainees - i.e. when not indicated/required for medical reasons - were made during the early to mid-1990s and referred to in the Human Rights Commissioner’s 1998 report ‘Those who’ve come across the seas’. Recommendation 10.15 of that report was ‘The Department (meaning DIMA) should seek legal advice on the lawfulness of chemically restraining detainees’. Recommendation 10.16 proposed that, provided such use was lawful, ‘the Department should only chemically restrain a detainee in an emergency situation where it is required to save the person’s life or to prevent him or her from causing serious harm to himself or herself or others’”.

105.In response to those recommendations, the Minister for Immigration stated, in the “Government response” tabled in Parliament in mid-1999, “DIMA does not chemically restrain detainees. Under no circumstances are these medications used for punishment or to control detainees”. That position has been maintained since. Certainly the Immigration Detention Standards binding Australian Correctional Management - the private detention service-providers now operating the Australian immigration detention centres - make these stipulations.

106.The Special Rapporteur would call upon the Special Rapporteur on the human rights of migrants to look further into immigration issues in Australia and intends to share relevant information with her.

4. Significant cases of racism, racial discrimination and xenophobia

107.The Human Rights and Equal Opportunity Commission states in its report for 1999‑2000 that during the period 1998‑1999 it received 467 complaints of racial discrimination under the Racial Discrimination Act 1975. In 2000, it received only 299 complaints, a decrease of 62 per cent. But the Commission states that “the overall number of complaints received in the year 2000 is, however, not dissimilar to previous years”. It explains that “employment-related complaints represented the largest area of complaint under the Act (34 per cent), followed equally by racial hatred (19 per cent) and the provision of goods and services (19 per cent) complaints”. It should be further noted that the majority of complainants are of non‑English‑speaking background, Aboriginals or Torres Strait Islanders.

Table 6

Complaints of racial discrimination received, by area

Section of the Racial Discrimination Act	No. complaints
Right to equality before the law	15
Access to places and facilities	11
Land, housing, other accommodation	13
Provision of goods and services	74
Right to join trade unions	-
Employment	143
Advertisements	1
Education	5
Incitement to unlawful acts	4
Other sections	45
Racial hatred	75
Total*	386

* One complaint may concern multiple areas.

Table 7

Complaints received, by ethnicity of complainant

Background	No. complainants
Non-English-speaking background	164
Aboriginal and Torres Strait Islander	63
English-speaking background	57
Unknown	15
Total	299

108.One of the cases which the Commission helped resolve particularly attracted the attention of the Special Rapporteur; it concerned the complaint submitted by the Foundation for Aboriginal and Islander Research Action (FAIRA) against the State of Queensland, which is reproduced below:

“Case Summary of Race Discrimination complaint in Employment:

“(a)The complaint:

“The Foundation for Aboriginal and Islander Research Action (‘FAIRA’) lodged a complaint on behalf of 467 former Aboriginal Palm Islands residents against the State of Queensland.

“FAIRA claims that these Aboriginal residents were discriminated against on the basis of their race by the State of Queensland between 31 October 1975 (the commencement of the Act) until 1984 as they were paid wages at a lower rate than non-Indigenous people for the same work. FAIRA has submitted that the type of work performed by the complainants on Palm Island during the relevant period included domestic cleaning in homes and school dormitories, labouring, working in market gardens and community farms, working in the power house, hospital and school, etc.

“(b)Submission from the Queensland government:

“The Queensland State Cabinet approved a proposal from FAIRA to establish an administrative process to deal with the complaints received by the Commission and for any other complaints of similar circumstances (statewide) which they estimate to be around 3,500 other Indigenous persons.

“The Government had agreed to pay any person who can establish they worked for the Department in the relevant time period with a $7,000 payment, which is the same figure awarded in decision of Bligh & Ors of Queensland. Details of eligibility for the compensation were negotiated between FAIRA and State government in that the claimants would be entitled to the payment if they had worked for the Department for 24 weeks (not necessarily continuously) between 31/10/75 and 1/04/80 or 48 weeks thereafter. The distinction was drawn because a guaranteed minimum wage was paid to all departmental workers after 1/04/80. The administrative process will also involve a free dispute resolution.”

109.This case should be linked to another situation which was described to the Special Rapporteur and, while being close to that described above in connection with that of the “stolen generations”, is not similar in every respect:

“Between 1897 and 1975, the majority of Aboriginal and Torres Strait Islander workers had their wages controlled by the Queensland government in accordance with the ‘Protection Acts’.

“The scheme was quite complex and changed many times over the period. Wages were split into three components:

Compulsory savings;

Statutory deductions; and

Pocket money.

“Compulsory savings were placed in the Queensland Aborigines Account. Any spending of these monies could not be made without the consent of the Local Protector or Superintendent.

“Statutory deductions were made on wages in varying amounts depending on a person’s situation. The monies collected by way of deduction went to the Aboriginal Welfare Fund Account and were used for spending which was said to be for the ‘benefit of Aboriginal people generally’. When the Fund was frozen in 1993 it was credited with $A 7.6 million.

“Some employers had to pay parts of people’s wages directly to them as ‘pocket money’; however, the majority of workers claim never to have received this portion of the wage.”

110.The Queensland Aboriginal and Torres Strait Islander Legal Services Secretariat (QAILSS) is endeavouring to seek compensation from the Queensland government for persons who worked under the Protection Acts.

111.The Special Rapporteur was himself told about two cases of discrimination in employment which are currently being considered by the competent Australian authorities. In deference to the principle that domestic remedies must be exhausted before a case of violation of human rights can be considered, the Special Rapporteur awaits the conclusion of the ongoing proceedings.

112.A further concern expressed by a number of interlocutors related to the increase in racist insults in football stadiums, both from spectators and from opponents. These insults have been directed mainly at Aboriginal players, who have been playing for clubs in greater numbers since 1980. In the year 2000, there were 46 registered Aboriginal players in the Australian Football League. The league authorities have reacted to racial insults at grounds, in particular when in 1995 Michael Long, an Essendon player, lodged a complaint with the league for racial insults. He demanded that the league adopt rules which would allow players uttering racial insults to be fined or suspended. In June 1995, the league adopted “rule 30”, which is aimed at combating racist and religious defamation. It reads: “No player ... shall act towards or speak to another person in a manner, or engage in any other conduct, which threatens, disparages, vilifies or insults another person … on the basis of that person’s race, religion, colour, descent or national or ethnic origin”. The league has also organized anti‑racism awareness campaigns aimed at players. Although it has succeeded in changing relations between players on the pitch, the league has not yet put a stop to racist behaviour by spectators; insults of the “you black bastard”, “coon” and “nigger boy” type are often heard on the terraces.

113.Statistics relating to complaints dealt with by the human rights institutions in the various states and territories in 1999 and 2000 for various types of discrimination (sex, race, handicap) were also brought to the attention of the Special Rapporteur. Complaints relating to racial discrimination generally account for the largest proportion.

Table 8

State and Territorial Equal Opportunity/Anti‑Discrimination Commission

complaints statistics, 1999/2000

States and territories	Number of complaints of racial discrimination	Percentage of total complaints received
New South Wales	259	19
Queensland	172	13
Victoria	482	12
South Australia	35	18
Western Australia	91	21.6
Tasmania	9	4.7
Northern Territory	96	26
Australian Capital Territory		10
Total	1 066

114.In the State of Victoria, the complaints received were made under that State’s equal opportunity law enacted in 1995 and mainly related to discrimination in employment (77 per cent). The government of Victoria plans to strengthen its legislation against racial discrimination by adopting “a racial and religious vilification act which will make unlawful any verbal or physical conduct which communicates serious racial and religious intolerance. Vilification includes communications which speak ill of, malign, abuse or make derogatory comments about other people, groups or communities in terms of their racial or religious affiliations. It can include intimidation or damage to property, graffiti, expressions of hatred or contempt”.

Iii. ACTIVITIES OF CIVIL SOCIETY

115.In Australia, associations are very numerous and diversified, indeed as diversified as Australian society itself. A distinction may be drawn between ethnic organizations or associations which conform to the Australian social pattern while preserving a cultural area of their own, organizations offering a service, in particular those which encourage the integration of the various immigrant communities and contribute to the preservation of social harmony, and organizations for the promotion and protection of human rights. The Commonwealth Government and local governments provide material support for these organizations when their activities contribute to the strengthening of the Australian ideal, notably by promoting multiculturalism and democracy. The Special Rapporteur met representatives of associations belonging to each of these categories and learned a great deal about Australian society from them.

A. Activities undertaken by Aboriginal organizations

116.These are community organizations generally based on different clans or emerging from a group of persons of Aboriginal origin. Their chief function is to ensure the economic and social development of these clans and groups and to protect their interests.

117.In the State of Queensland, the Special Rapporteur visited the Yarrabah community: situated about 37 km from Cairns, it is composed of 3,400 people. Originally, it was a community set up by an Anglican missionary to save the Aboriginals from extermination. In 1986, it established a council with responsibility for development and management and with a membership of seven; only the chairman is remunerated by the State of Queensland. The community receives from the Aboriginal and Torres Strait Islander Commission (ATSIC) an annual grant of $A 18 million, which is used primarily for the construction of infrastructure, including a 10‑bed clinic and housing, and the remuneration of service‑providers. The council has also developed a project for the training of five Aboriginal police officers, who liaise with the State of Queensland police; it is also supporting the training of a young Aboriginal manager, who will be involved in project execution.

118.In Alice Springs in the Northern Territory, the Special Rapporteur visited the Tangentyere council, a body responsible for promoting the interests of the Arrente people, who own the region around Alice Springs. The council has been in existence since 1979 and is endeavouring to provide modern housing for some 1,200 people. It also engages in social activities, notably night patrols to prevent anti‑social behaviour by certain Aboriginals. This is one of the projects under the Community Development Programme (CDEP), which provides a partial solution to the problem of Aboriginal unemployment. The council has succeeded in banning the sale of alcohol in the areas inhabited by Aboriginals. It collaborates with the municipality of Alice Springs, notably for the purpose of finding jobs for Aboriginals, most of whom work on road maintenance. Another community organization which provides support for Arrentes living in the Alice Springs region is the Arrente council: it assists families in obtaining grants from the government of the Northern Territory; it provides transport between the town and the rural areas where the communities live. It has set up a public works department which carries out contracts for scrub‑clearance along roads, maintenance of footpaths, maintenance of urban pavements and parks, and the cutting and sale of wood for heating purposes. These activities also come under the CDEP.

119.Also in Alice Springs, the Central Australian Aboriginal Congress has for 25 years been engaged in the improvement of Aboriginal health: in its clinic, 10 doctors, a nurse and 9 auxiliary staff provide general and specialized medical care (dentistry, orthopaedics, ophthalmology, ear, nose and throat care for children). The Central Australian Aboriginal Legal Service provides assistance for Aboriginals taking legal action; it was set up to deal with the problem of the large numbers of Aboriginals in Australian prisons and to enable them to be better represented in a judicial system which is different from their own traditional system and uses English, which most of the accused do not understand. This service intervenes in civil and criminal cases, providing interpretation services and lawyers.

120.In the field of education, the Special Rapporteur learned about the activities of the Alice Springs Aboriginal Development Institute, which was established in 1969 and now has the status of a university institute attached to Lutro University in the State of Victoria. The Institute devotes itself to the high‑level training of Aboriginals, giving due weight to the requirements of Aboriginal culture and non‑Aboriginal values (the training schedule takes account of traditional ceremonies in which students are required to participate). It trains teachers, educators, publishers, social assistants, managers, entrepreneurs and interpreters. Some of the Institute’s courses are aimed at the personality development of Aboriginals and focus on persons suffering the effects of racial discrimination; other courses, such as the Aboriginal leadership programme, are aimed at providing political training, teaching Aboriginals to negotiate, supporting their communities and designing development projects. In the year 2000, the Institute trained 600 students. Despite its achievements, the Institute’s leaders consider that it does not receive sufficient financial support from the Northern Territory government because of its desire for autonomy and its pro‑Aboriginal approach. Thus credits have still not been granted by the government for the extension and modernization of the Institute, a project which was submitted in 1994 and approved by the federal Department of Education, Training and Youth Affairs. This project will enable the Institute to become an Aboriginal university with several departments.

121.Organizations such as the Stolen Generation Consultation Project provide legal and psychological support for victims of the child abduction policy practised by the Commonwealth Government up to 1970. The Special Rapporteur attended a meeting of this organization in Alice Springs on 2 May and heard particularly moving testimony by a number of people in their seventies who were searching for their origins.

B.Ethnic and inter‑ethnic organizations, and organizations working in

support of migrants and contributing to social harmony

122.The Cabramatta Community Centre in Fairfield, the Federation of Ethnic Communities’ Councils of Australia, Anglicare, the B’nai B’rith Anti‑Defamation Commission and the Australian Arabic Council are just a few of the organizations in these categories which help to give life to Australian multiculturalism and to preserve social harmony.

123.The Cabramatta Community Centre, situated in the city of Fairfield ‑ an ethnically diverse suburb to the west of Sydney, forms part of a support network for migrants and refugees and provides assistance in the following fields: learning English, housing, child care, health care, legal and social counselling, support for older persons, assistance with settlement, job‑seeking and youth activities. Of the city’s 181,785 inhabitants, over 50 per cent come from 130 different countries, speak over 70 languages and practise 60 religions. It is a large community‑based organization with different divisions that are managed by sub‑committees made up of members of the local community. It includes a neighbourhood centre, a migrant resource centre and a youth team. The first Indo‑Chinese refugees started to arrive in the Fairfield area in 1975. Many arrived in the country having suffered severe trauma from war, torture, starvation, family loss and separation, and speaking little or no English. The Centre’s activities started when an immigrant from Germany started teaching English to refugees in her home and developed into the Community Centre in 1981.

124.In view of its success, the Centre receives subsidies from the Department of Immigration and Multicultural Affairs, mainly for the teaching of English. The English courses for migrants form part of the Department’s Adult Migrant English Programme, each new immigrant receiving a grant for 510 hours of study of English. However, senior Centre staff consider that this length of time, which has been reduced following budgetary restrictions on programmes for migrants, is insufficient to enable a non‑English‑speaker to gain a sound command of the language and enable him to become integrated in society.

125.In cooperation with the Fairfield authorities and various associations, the Centre organizes cultural events to celebrate Harmony Day on 21 March, which corresponds to the International Day for the Elimination of Racial Discrimination adopted by the United Nations, and also the celebrations of the various communities (Chinese, Khmer and Lao New Year, Latin American community festivals, German beer festival, etc.). Other activities form bridges between the various communities and thus help them to avoid living in a closed environment, for example, through the exchange of t’ai chi and flamenco lessons between immigrants of Chinese and Spanish origin. These activities provide an opportunity for making the most of ethnic diversity and highlighting its positive aspects.

126.The Federation of Ethnic Communities’ Councils of Australia was established in 1979 as an umbrella organization for the ethnic bodies set up in the various states and territories. The Federation regards itself as the spokesperson for non‑English‑speaking Australians in order to ensure that they genuinely participate in multiculturalism. It seeks to represent the interests and concerns of ethnic Australians through: the formulation of relevant policies; representation to government; participation in public debates; consultation with industry, the professions and community organizations; organization of seminars and conferences; and community education. It monitors a wide range of issues, including social welfare, employment, language policy and immigration.

127.The Australian Arabic Council, in addition to its activities to combat racism and racial discrimination, endeavours through various cultural and information activities to promote a better knowledge and appreciation of the Arab community. Every year, the Council organizes Arabic Cultural Day, which presents Arab culture from several angles (art, literature, religion, contribution to the progress of mankind, etc.). Every year, the Council awards a prize to a journalist who has shown objectivity in his or her coverage of events relating to the Arab‑Australian community. The Council also engages in several training activities for members of the community, notably by organizing seminars on relations with the press, lectures and debates. It has also undertaken to change the stereotyped view of Arabs propagated by schools by initiating a pilot project in conjunction with the history teachers’ association in the State of Victoria; thanks to this project medieval history has been re‑evaluated, showing that Europe’s dark ages coincided with the golden age of the Arab world.

128.The contribution of the Jewish organization, the B’nai B’rith Anti‑Defamation Commission, to inter‑communal harmony has been reflected in several projects, including a mobile exhibition on intolerance entitled “Courage to Care”. The aim of this exhibition is to educate young Australians, and the general public, about racism in particular and prejudice in

general. It aims to demonstrate that everyone can make a difference. The exhibition honours the “Righteous among the Nations”, non‑Jews who saved Jews during the Holocaust at the risk of their own lives. The organization has also designed a project aimed at managing cultural diversity in the workplace; the project seeks to evaluate the policies and practices of Australian companies through the analysis of patterns such as their dedication in productive diversity for the company’s commercial gains; the reduction of prejudice and discrimination and the promotion of harmony in the workplace; the enhancement of respect for people of diverse cultures; and the provision of conditions which contribute to the material and spiritual well‑being of workers.

C. Religious organizations

129.Several religious organizations also participate in efforts to combat racial discrimination and to preserve social harmony. Several conferences on religion and diversity have been organized under the aegis of the Australian Multicultural Foundation and in cooperation with the various faith organizations in Australia (Christian, Muslim, Jewish, Buddhist) in order to bring them closer together. The first one, held in 1997 in Melbourne in the context of the World Conference on Religion and Peace Australia, was designed to provide “an opportunity to listen and learn from each other’s experiences, and to address the issues of social cohesion, tolerance and policy‑making in religiously diverse societies”. The conference made some major recommendations, including the promotion of inter‑faith dialogue and understanding and the establishment of a legal and constitutional framework that promotes respect for religious difference.

130.The second one, the Religion and Cultural Diversity Conference, was held in October 1999, in London in cooperation with the European Multicultural Foundation and its outcome contained some landmarks for the consolidation of Australian religious diversity. It was organized as a forum where discussion could be generated in a bid to promote global peace and harmony. It was agreed that a country rich in cultural and religious diversity was wealthy, despite its economic or political position. Participants also agreed on the paramount role of Governments in fostering qualities such as acceptance, respect and equality.

131.Among the organizations active in the field, mention may be made of the National Council of Churches, a Protestant organization which devotes itself, inter alia, to the rehabilitation of Aboriginals and the protection of refugees. The Protestant churches have recognized their responsibility in the destruction of Aboriginal societies and are now helping to ensure the autonomy of these peoples, notably by encouraging the emergence of an Aboriginal clergy. One officer of the National Council of Churches states that membership of the Christian faith no longer presupposes the acculturation of the Aboriginals, Aboriginal culture being respected and integrated in Christian religious practice. The Anglicare organization is a charitable institution of the Anglican Church which provides various services to immigrants, including English teaching, assistance in finding jobs and housing, social assistance, migrant counselling, support for women and supervision of young people subjected to mandatory sentencing.

IV. CONCLUSIONS AND RECOMMENDATIONS

132.The Special Rapporteur notes that substantial efforts are being made by the Australian Government to end racism and racial discrimination. The programmes aimed at improving the living conditions of the Indigenous peoples exist, even if they have not yet succeeded in producing the desired results. Recognition of ethnic diversity and the promotion of inter‑ethnic harmony undoubtedly constitute an ideal policy for consolidating the Australian nation, provided it does not waver under the influence of electoral considerations. In addition, the question of reconciliation with the Aboriginal peoples remains outstanding, because it affects the foundations of the Australian State and conflicting cultural values.

133.For the Aboriginals, despite the democratic foundations of the Australian State and its desire to incorporate all its ethnic components on an egalitarian basis, this State is a manifestation of colonization whose consequences remain to this day, notably through the limitation of their land rights, the tragedy of the abducted children, cultural clashes and highly precarious living conditions outside the wealth of the majority of Australians. In their view, the resolution of conflicts is dependent on negotiation on equal terms between Australia’s governors and those who originally possessed the continent, the eminent owners of the Australian lands, of which they have been dispossessed, particular account being taken of their indissoluble links with the land. The land question remains crucial and is the key to the Australian problem. The Commonwealth Government and the dominant political forces mainly take a forward-looking approach which, while envisaging the possibilities of remedying the consequences of past actions, wishes to reduce their effects on the building of a new nation. There is undoubtedly a medium-term character in the positions displayed by the various protagonists, and the Australian people has on many occasion succeeded in finding the catalysts for dialogue in order to restore confidence and ensure peaceful coexistence.

134.Note should be taken of Ms. Mary Kalantzis’ observations that “diversity is now the basis of [Australian] civic life. Australia has its own unique history of diversity: an immigration programme that has made this perhaps the most diverse nation in the world, and the centrality of the task of completing the settlers’ unfinished business with the Indigenous people of this nation. Yet [it] also shares with the rest of the world a shift in global political orientations. Since the end of the cold war particularly, the politics of culture, identity and nation - the politics of diversity, in other words - has taken centre stage. No nation in the world can govern unless it is able to articulate the way in which resources and well-being are guaranteed to different groups, including historically-marginalized groups”.

135.The following recommendations are therefore prompted by a desire to pave the way for a coming-together of the various protagonists:

(1)The policy of multiculturalism should be widely discussed and defined by a broad consensus. In order to reduce if not eliminate the superiority and inferiority complexes which underlie relations between the Aboriginals and the mainly English-speaking heirs of European culture, the policy should be based on recognition of the right to difference and to cultural identity, with broad communication between one culture and another. Inspiration should be

drawn from UNESCO’s declarations and programmes on cultural identity, cultural diversity and multiculturalism; thus, through education, there will be a breakthrough in the present situation, which is represented by a so-called multiculturalism policy when in fact the various communities and peoples lead parallel lives while continuing to ignore one another. The Special Rapporteur therefore recommends that the Australian Government should review its policy of multiculturalism, in order to turn it into a channel for the dynamic and harmonious transformation of national society, through education at all levels;

(2)The process of reconciliation should be given fresh impetus, taking greater account of the positions of the representatives of the Indigenous peoples;

(3)The Native Title Act should be amended in the light of the proposals already made by the Aboriginals in order to enable them to extricate themselves from the extreme poverty afflicting them in their daily lives;

(4)Since sport, and Australian football in particular, are activities which bring the various components of the Australian population together, and are a potential vehicle for tolerance and respect between individuals, the Special Rapporteur recommends that the Australian Football Association should initiate a broad campaign against racism and racial discrimination aimed at spectators. This campaign might be modelled on the “Let’s kick racism out of football” campaign initiated in the United Kingdom in 1993 by the Commission for Racial Equality and the Professional Footballers’ Association;

(5)Subsidies should be made available to the Alice Springs Aboriginal Development Institute so that the university can be built;

(6)The state and territory legislation on the recognition of qualifications should be uniform, and diplomas issued by more overseas universities should be recognized;

(7)The Australian Government should accede to the Convention on the Elimination of All Forms of Discrimination against Women;

(8)The government of the State of Queensland should accelerate compensation procedures for Aboriginals and Torres Strait Islanders whose wages have been withheld since 1897, through the implementation of the measures for the protection of these peoples;

(9)The Australian Government is urgently requested to find a humane solution to the question of the “stolen generation”, whose situation is psychologically and socially blocked and desperate;

(10)Lastly, the Special Rapporteur would like to recommend to the Australian authorities that they continue, improve and intensify the efforts already being made to combat racism and racial discrimination against the Aboriginal peoples, in particular by attacking their extreme poverty.

Appendix

PERSONS MET DURING THE MISSION

(22 April-10 May 2001)

Sydney

(23-25 April 2001)

Hon. Philip Ruddock MP, Minister for Immigration and Multicultural Affairs, Reconciliation and Aboriginal and Torres Strait Islander Affairs

Mr. Con Pagonis, Ms. Elektra Spathopoulos, Ms. Gina Andrews, DIMA

Mr. Peter Rock, National Manager, Centrelink Multicultural Services (Marrickville)

Mr. Bill Jonas, Race Discrimination and Aboriginal and Torres Straits Islander Social Justice Commissioner

Mr. Sev Ozdowski, Human Rights Commissioner, Human Rights and Equal Opportunities Commission (HREOC)

Mr. Darren Dick, Director, Social Justice Unit, HREOC

Ms. Margaret Donaldson, Director, Complaint Handling Section, HREOC

Mr. Juan Carlos Brandt, Director, United Nations Information Centre, Sydney

Ms. Margaret Reynolds, National President, United Nations Association of Australia

Mr. Aden Ridgeway, Senator for New South Wales

Ms. Linda Burney, Director-General, New South Wales Department of Aboriginal Affairs

Mr. Nigel Milan, Managing Director, Special Broadcasting Service (SBS)

Ms. Mary Dimech, Association of Non-English-Speaking-Background Women

Ms. Paula Aboo, Arab Australian Action Network

Ms. Samila Hatami and Ms. Rukhsha Sarway, The Afghan Women’s Network

Ms. Mahboba Cina, Afghan Women Group

Ms. Judy Lumsden, Manager, Australian Centre for Languages

Ms. Carole Skafte-Zauss, Marketing and Settlement Relations Manager, Australian Centre for Language

Mr. Ricci Bartels, Coordinator, Fairfield Migrant Resource Centre

Ms. Bamathy Somasejawam, Fairfield Migrant Resource Centre

Mr. Lachlan Murdock, Service for the Treatment and Rehabilitation of Torture Survivors

Ms. Xuyen Tang, Manager, Anglicare Migrant Service

Prof. Maurice Eisenbruch, University of New South Wales Medical Faculty

Dr. Mitchell Smith, New South Wales Refugee Health Services

Mr. Jorge Oroche, Service for the Treatment and Rehabilitation of Torture and Trauma Sufferers

Mr. Bill Cope, Director, Centre for Workplace, Communication and Culture

Mr. Andrew Jakubowicz, Faculty of Humanities and Social Sciences, University of Technology, Sydney

Mr. Jock Collins, School of Finance and Economics, University of Technology

Thursday Island

(26-27 April 2001)

Mr. Terry Waia, Chairperson, Torres Strait Regional Authority

Mr. Henry Garnier, Chairman, Island Coordinating Council

Mr. Pedro Stephens, Mayor, Thursday Island

Dr. Philip Mills, Director, Thursday Island Hospital

Ms. Dorothea Philip, Lena Passi Women’s Shelter

Cairns

(28-29 April 2001)

Ms. Evelyn Scott, Former Chairperson, Council for Aboriginal Reconciliation

Mr. Tony Battaglini, DIMA Cairns

Mr. Terry O’Shane, Regional Chairperson, Aboriginal and Torres Strait Islander Commission (ATSIC)

Mr. Italo Iriolo, Migrant Settlement Services

Ms. Ruth Venables, Regional Director, Anti-Discrimination Commission Queensland

Mr. Van Yee Chang, Hmong Community Representative

Ms. Deevah Melendez, Local Area Multicultural Partnership (LAMP), Cairns City Council

Ms. Judy Tierney, St. Vincent de Paul

Mr. Leon Yeatman, President, Yarrabah Community Council

Ms. Helen Biro, Centrecare

Mr. Kevin Kearney, Catholic Education

Mr. Peter Opio-Otim, Executive Director, and Mr. Edward Wymarra, Manager, Aboriginal Coordinating Council

Mr. Don Freeman, Managing Director, Tjapukai Aboriginal Cultural Park

Darwin

(29-30 April 2001)

Hon. Mike Reed, Deputy Chief Minister, Northern Territory

Superintendent Mick Van Heythuysen, Member, Council for Multicultural Australia

Mr. Tony Tucker, Director, DIMA, Northern Territory

Mr. Tony Jack, Chairperson, Indigenous Housing Authority of the Northern Territory and Mr. Garrack-Jarru, Chairperson, Aboriginal and Torres Strait Islander Commission (ATSIC) Regional Council

Mr. Tom Stodulka, Anti-Discrimination Commissioner

Mr. Norman Fry, Chief Executive Officer, Northern Land Council

Mr. Galarrwuy Yunupingu, Chairman, Northern Land Council

Mr. Michael Odur Ochieng, Ms. Mogga Dickens and Mr. Michael Rasas Eludas, representatives of the Sudanese Community

Alice Springs

(l-2 May 2001)

Ms. Fran Erlich, Mayor, Alice Springs Town Council

Mr. Daniel Forrester, Chairperson, Tangentyere Council (Aboriginal Business Enterprise)

Ms. Stephanie Bell, Acting Director, Central Australian Aboriginal Congress (Aboriginal Medical Service)

Ms. Patricia Miller, Director, Central Australian Aboriginal Legal Service

Ms. Eileen Shaw, Director, Arrente Council

Mr. David Hayes, Director, Institute for Aboriginal Development

Mr. David Ross, Director, Central Land Council, Alice Springs

Melbourne

(3-7 May 2001)

Senator Kay Patterson, Parliamentary Secretary to Minister Ruddock on Immigration and Multicultural Affairs and Parliamentary Secretary to Minister Downer on Foreign Affairs

Ms. Diane Sisely, Chief Executive, Equal Opportunities Commission Victoria

Mr. Neville Roach, Chairman, Council for Multicultural Australia

Mr. Hass Dellal, Executive Director, Australian Multicultural Foundation

Ms. Mary Kalantzis, Dean, Faculty of Education, Language and Community Services, Royal Melbourne Institute of Technology (RMIT)

Mr. Bill Cope, RMIT

Ms. Virginia Ross, Chairperson, Equal Opportunity Commission

Representatives of the Horn of Africa Women’s Group

Mr. Roland Jabbour, Chairman, Ms. Halla Marbani, Mr. Taimor Hazou, Mr. Joseph Wakim, Mr. Alexander Kouttab, Ms. Vicki Mau, members, Australian Arabic Council

Ms. Lillian Holt, Professor, University of Melbourne

Mr. Ivan Kolarik, Executive Director, National Police Ethnic Advisory

Mr. Danny Ben-Moshe, Executive Director, B’nai B’rith Australia and New Zealand, Anti‑Defamation Commission and representative of the Australian Council of Jewry

Ms. Nina Bassat, President, Executive Council of Australian Jewry

Mr. Paris Aristofle, Director, Victoria Foundation for Survivors of Torture Inc., member of the Immigration Detention Advisory Group

Mr. Daryl Williams, Attorney-General

Canberra

(8-10 May 2001)

Mr. Daryl Williams, Attorney-General

Ms. Karry Leigh, Ms. Philippa Horner, Ms. Sandra Power, Mr. Stephen Fox, Ms. Robyn Frost, Ms. Sue Sheppard, Ms. Dianne Heriot, Attorney-General’s Office

Mr. Peter Vaughan, Executive Coordinator, Mr. Bill Farmer, Secretary, Mr. John van Beurden, Assistant Secretary, Department of Reconciliation and Aboriginal and Torres Strait Islander Affairs

Mr. Peter Hughes, First Assistant Secretary, Mr. Vince Guica, Mr. Abul Rizvi, Ms. Philippa Godwin, Mr. Thu Nguyen-Hoan, Assistant Secretaries, DIMA

Justice Michael Kirby, Australian High Court

Ms. Alice Tay, President, HREOC

Mr. Joseph Elu, Chairman, Aboriginal and Torres Straits Commercial Development Corporation

Mr. Michael Curtotti, Mr. Andre Frankovits, Mr. Chris Sidot, Ms. Mary Ziesak, NGO Working Group for the World Conference on Racism

Mr. Nick Xynias, Chairperson, Federation of Ethnic Communities’ Council of Australia (FECCA)

Mr. Mick Dodson, Chair, Australian Institute of Aboriginal and Torres Strait Islander Studies, Ms. Marcia Langton, Deputy Chair

Senior officials from the Department of Prime Minister and Cabinet (Office of the Status of Women, Social Policy Branch, International Division); Attorney-General’s Department, Department of Reconciliation and Aboriginal and Torres Strait Islander Affairs

Meeting with senior executives of DIMA

Ms. Trish Keller, Principal, Narrabundah Primary School

Ms. Vivienne Blundell, Principal, Hughes Primary School

Notes