Indigenous

Nowhere to Run, Nowhere to Hide

By Tony Morison - Industrial Officer, ACTU

Australia's treatment of its indigenous people is a problem that won't go away.

"The Governments of Australia- Federal and State- will not exert themselves on behalf of the natives until they realize that public opinion in England is determined. When the homeland recognizes those struggling to improve our good name among the nations we shall begin to move more quickly.

The League of Nations knows that things happen today in Australia that could not under a mandate. I look forward to the day when as a nation we can hold up our head amongst the nations on the race problem."

So wrote, in the language of the time, humanitarian and Adelaide surgeon Charles Duguid in 1937 to the Anti-Slavery Society in Britain . This was a reoccurring theme for those who had sought to right the wrongs committed against the indigenous owners of the continent, now known as Australia, since 1788. Sixty-two years on from Dugiud's plea, 211 years from Phillip's arrival, again we look to the international community for the whisper in our hearts to be the roar of our conscious voice.

April 1999 saw the Howard Government's fear of international scrutiny become so great that it has refused to formally welcome members of the United Nations Committee on the Elimination of Racial Discrimination (CERD) to Australia to gain first-hand information on the state of indigenous people and Government policy.

The background to that refusal is a far cry from the sense of confidence and maturity many non-indigenous Australians felt with the decision by the highest court in Australia in (Mabo v Queensland no. 2) and the subsequent introduction by the Federal Government of the Native Title Act 1993. The Mabo decision, as it came to be called, did not give all to the indigenous community. It was a decision, as described by eminent historian Henry Reynolds, that (while it) "demolished the concept of terra nullius in respect of property, it preserved it in relation to sovereignty". Likewise, the Native Title Act 1993 was a balance of competing interests and rights.

Please explain

In August 1998, CERD activated its Early Warning procedures relating to the Convention on the Elimination of all Forms of Racial Discrimination. Having first signed the Convention in 1966, Australia became the first Western country to be subjected to the early warning. In essence, the committee issued Australia a 'please explain' on apparent breaches of our international obligations in the area of native title rights and indigenous policy.

If Mabo and the legislative response to it were a source of confidence and hope, the response to the later High Court Wik decision was a source of shame and despair.

The response to the Wik decision, Prime Minister Howard's '10 Point Plan', led to the Federal Government amending the original Native Title Act 1993. It was these new amendments which, more than anything else, cause the committee to issue the August 1998 'please explain', and its damning initial decision on 18 March 1999.

As stated in that decision Australia responded to the please explain:

"1. .................The Committee welcomes the full and thorough reply of the Commonwealth of Australia to this request for information......dialogue with the (Australian government) delegation...(and) ......response to additional questions (regarding Australia's submission)". (My additions in brackets)

The following extract from the CERD decision succinctly describes the path of our response as a nation to Mabo and Wik and where we lie today.

"5. ...........................The Committee also welcomed the decision of the High Court of Australia in the case of Mabo v. Queensland, noting that in recognizing the survival of indigenous title to land where such title had not otherwise been validly extinguished, the High Court case constituted a significant development in the recognition of Indigenous rights under the Convention. The Committee welcomed, further, the Native Title Act of 1993, which provided a framework for the continued recognition of indigenous land rights following the precedent established in the Mabo case.

6. The Committee, having considered a series of new amendments to the Native Title Act, as adopted in 1998, expresses concern over the compatibility of the Native Title Act, as currently amended, with the State Party's international obligations under the Convention. While the original Native Title Act recognizes and seeks to protect indigenous title, provisions that extinguish or impair the exercise of indigenous title rights and interests pervade the amended Act. While the original 1993 Native Title Act was delicately balanced between the rights of indigenous and non-indigenous title holders, the amended Act appears to create legal certainty for governments and third parties at the expense of indigenous title.

7. The Committee notes, in particular, four specific provisions that discriminate against indigenous title-holders under the newly amended Act. These include: the Act's "validation" provisions; the "confirmation of extinguishment" provisions; the primary production upgrade provisions; and restrictions concerning the right of indigenous title holders to negotiate non-indigenous land uses.

8. These provisions raise concerns that the amended Act appears to wind back the protections of indigenous title offered in the Mabo decision of the High Court of Australia and the 1993 Native Title Act."

The committee also expressed concern about the "lack of effective participation by indigenous communities in the formulation of the amendments", and called for the suspension of the implementation of the 1998 amendments.

'Butt-out'

The Australian Government's response to the CERD decision was unacceptable and extremely disturbing. From Attorney-General Daryl Williams who said "the report is an insult to Australia", and from the Prime Minister the populist argument "Australian laws are made by Australian parliaments elected by the Australian people, not by UN committees". These expressions of outrage and indignation are hollow against the continued appalling status of indigenous people evident by statistics on health, education, incarceration, housing and employment.

The government's reaction was to shoot the messenger by appealing to the hysterics of national myopia against the dictatorial, ignorant, international outsider. A similar position was taken in the same week about ILO criticism of Australia's industrial relations laws which breach our international obligations and commitments.

If not by agreed international standards, then by which standards are we as a nation to be measured? Surely not by John Howard's, or Richard Court's, or One Nation's, or any other political prescription. Forums such as the UN and the ILO must remain the standard bearers.

Can we comprehend leaving nation states to determine, without a measuring stick, their obligations to their citizens, and to the international community? Where would that have left the victims of the apartheid regime in South Africa, and those suffering continued brutal oppression in East Timor?

The underlying rationale ascribes to the nation state a level of responsibility little different to that of the individual citizen. It brings with it the current pervasive rhetoric of individualism, an individual's so-claimed freedom to choose and right to determine. Such a diminution of nation state responsibility must not go unchallenged.

We, the Australian nation state, have been placed on notice by a United Nations committee as the result of the introduction of racially discriminatory legislation.

What next?

The Committee is due to meet again in August when it will further review the issue, leading to consideration by the General Assembly of the United Nations later in the year. Committee members were intending to visit Australia to further inform them of the situation, but government has declined to formally invite them, as required by protocol. If the Australian Government is confident about its position on race and indigenous policy why would it not welcome the visit with open, confident arms?

In a world of ever-increasing globalisation, international standards are more essential, not less. To not continue to insist on their necessity is to allow the likes of Howard and others to move the goal posts on to another, smaller, more closed minded field - and another, and another, until standards for indigenous rights, human rights, workers' rights, become the exclusive domain of national governments.

As there wasn't in South Africa, likewise in Australia, when it comes to racially discriminatory legislation, there should be no place to run, and no place to hide.

Individuals and organisations are encouraged to write to the Committee (which is due to meet again in August this year) expressing concern regarding the Native Title Amendment Act, and in support of the Committee's function and 18 March 1999 decision:

Secretariat of the Committee on the Elimination of Racial Discrimination; Office of the High Commissioner for

Human Rights:

United Nations Office at Geneva (P>W>

8-14 Avenue de la Paix

1211 Geneva 10 SWITZERLAND

Facsimile No, 0015-41-22-917-9022

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