Mr Tony Spiers
Member, Aboriginal Sovereign Union
Native Title and the Crime of Apartheid
This paper is based on a "shadow" report titled "Australia,
the Most Important Question" submitted on 20 March 2000
to the UN,s Committee to Eliminate Racial Discrimination. This
shadow report was focussed on Article 3 in Australia,s Report
examined by the Committee in March. Article 3 in CERD deals with
segregation and apartheid. On 24 March, CERD posted its Concerns
and Recommendations. At the top of the list of 13 Concerns, and
for the very first time, they listed the need for constitutional
change the concern being the lack of an entrenched guarantee
to protect people from further acts of racial discrimination
by the Commonwealth parliament.
This paper presents a radical re-assessment of the 1967 referendum,
the Mabo judgement, the Native Title Act 1993, and the Native
Title Amendment Act
1998 by examining them against the International Convention on
the Suppression and Punishment of the Crime of Apartheid. It
comes to the conclusion that the so-called "validation of
past acts" and "intermediate period acts" by these
two statutes are all caught by the definition of apartheid in
the Convention and, as such, are crimes against humanity.
The paper explains how the 1992 Mabo judgement, while recognising
the existence of Native Title for the first time, nevertheless
makes a subtle common law policy decision on race that has perpetuated
the practice of apartheid by the Commonwealth and all States.
The so-called "Citizens Rights for Aborigines" Referendum
of 1967 and the
Commonwealth power it expanded is shown as the constitutional
underpinning for these international crimes.
Solutions are proposed.
Tony Spiers is a member of the Aboriginal Sovereign Union, which
was recently granted official NGO status by the UN. He has been
actively interested in the issue of indigenous sovereignty since1987,
and Human Rights since 1992. He is a graduate of UTS, with a
degree in Adult Education.
30 min paper