UN: mandatory sentencing 'racially discriminatory'
By Nick Everett
A United Nations committee has severely criticised mandatory sentencing regimes in the Northern Territory and Western Australia, describing them as "racially discriminatory", and called for federal government intervention to overturn them.
The March 24 report, issued from the UN Committee on the Elimination of all forms of Racial Discrimination (CERD) meeting in Geneva, Switzerland, also said it feared "further impairment of the rights of Australia's indigenous communities" at the hands of the present government.
The federal government had gone to considerable lengths to prevent a negative outcome, sending Philip Ruddock, the minister for immigration and advisor to the prime minister on reconciliation, and a team of senior bureaucrats to Geneva for two days of hearings.
The CERD, an 18-member UN committee established to oversee the International Convention on the Elimination of All Forms of Racial Discrimination, to which Australia is a signatory, subjected Ruddock to a barrage of questions.
Referring to the "astonishing" high rates of incarceration of Aborigines, especially juveniles, Gay McDougall, a Washington-based lawyer and human rights monitor, asked Ruddock: "Does [the government] hold the view that these mandatory sentencing laws are consistent with its obligations under the treaty? Is there the confidence in the parliament and the federal government to override these laws passed by the states and territories, and why is that power not being used? I think in terms of human rights these is an obligation [to override the laws]."
Other committee members questioned Ruddock about the stolen generations, native title laws, uranium mining on traditional Aboriginal lands, deaths in custody and the government's policy towards the Aboriginal and Torres Straits Islander Commission (ATSIC).
On May 21, the CERD heard from indigenous leaders, including ATSIC Commissioner Bill Jonas, who told the committee that the government's attitude to mandatory sentencing and native title "demonstrate a genuine lack of equality for indigenous people within Australia [and], in terms of the convention, expose serious deficiencies in Australia's compliance".
The CERD's report comes only a week after it was revealed that aggressive behind-the-scenes lobbying by the federal government had forced a watering down of a UN Human Rights Commission report, which had originally been highly critical of mandatory sentencing.
The national coordinator of Australians for Native Title and Reconciliation, Dave Cooper, who has made two previous submissions to CERD on the federal government's attitude to indigenous issues, told Green Left Weekly that there was "substantial evidence" that federal government officials had contacted CERD committee members individually, outside of formal channels, in an attempt to get the committee to stop monitoring Australia's record.
Speaking on May 21, the International Day for the Elimination of Racial Discrimination, Cooper said, "The commonwealth government should be taking the lead in the international fight against racial discrimination. Instead it is busy justifying its discriminatory native title legislation in front of CERD in Geneva, and failing to act on the scandal of mandatory sentencing at home."
The federal government has defied CERD recommendations before. In March 1999, the committee found that the 1998 Native Title Amendment Act discriminated against indigenous title-holders and breaches Australia's obligations under the treaty. CERD called on the commonwealth government to suspend implementation of the legislation and commence discussion with indigenous representatives about acceptable solutions which would comply with Australia's obligations under the convention.
Federal attorney-general Daryl Williams responded to CERD's findings on March 19, 1999, by declaring the decision "an insult to Australia and all Australians", and suggesting that members of the committee were ignorant and biased.
In August, CERD met again to consider what progress Australia had made on the recommendations and put the government "on notice" — making it the first Western signatory to be called before the committee to explain itself.
Cooper said that now the committee has handed down its report, "the Australian government will be required to revisit legislation on these issues, or risk an international outcry in the lead-up to the Sydney Olympics ... Australia should and must continue to be monitored."