Yesterday our PM graciously took all credit for the decision to stop the repeal of Section 18 (c) of the Racial Discrimination Act of 1975. He’s yet to offer an explanation as to how his leadership of the LNP hadn’t entitled him to overrule it’s serious consideration in the previous eight months, however I’m confident that’s coming. I look forward to seeing which cabinet member gets thrown under the bus ‘Hell’s Kitchen’ style in the next elimination episode.
Our Human Rights Commissioner Tim Wilson tweeted how disappointed he was that it will still be illegal to intimidate and offend people with racist slurs. Apparently it’s not compatible with free speech. I’ll tell you what Tim. If it was really legal to speak completely freely you, and a goodly sized portion of the current LNP cabinet members might have some very “hurt feelings” at the expense of my (dwindling and quite frankly baseless) reputation as a lady.
The United Nations has long been aware of the potential conflict between the text of the Universal Declaration of Human Rights of 1948, and the “right to be a bigot”. It was after all one of the reservations registered by the United States of America when it ratified the International Convention on the Elimination of All Forms of Racial Discrimination, and the good people at the UN have been savvy enough to closely examine any potential conflicts with the Declaration and it’s various instruments, and produce guidelines in order to assuage any confusion. You can download the recommendations here.
Australia signed the International Convention on the Elimination of All Forms of Racial Discrimination on 13th October 1966, and ratified it on 30th September 1975. The full text of the Convention can be found here.
Australia did lodge what is called a ‘reservation’ (which by the rules of the convention was lodged at the time of ratification – ie: 1975) which stated:
“The Government of Australia … declares that Australia is not at present in a position specifically to treat as offences all the matters covered by article 4 (a) of the Convention. Acts of the kind there mentioned are punishable only to the extent provided by the existing criminal law dealing with such matters as the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4 (a).”
The Racial Discrimination Act was passed into Australian law in June 1975 however, and in conjunction with subsequent adjustments to the law dispensed with the need for the reservation to 4 (a), that being;
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:
(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;”
The Australian Human Rights Commission website attempts to imply that Australia is not bound by the Convention because of this reservation. Given the political position of our Human Rights ‘Freedom’ Commissioner Tim Wilson, an ex Liberal Party member and current director of the Institute of Public Affairs, who has been widely touted as the source of the proposed repeal of Section 18 c) of the Racial Discrimination Act, I suspect this is a tactic used to discourage people from exercising their rights.
On 28th January 1993 Australia declared their recognition of the competence of the Committee on the Elimination of Racial Discrimination in accordance with article 14 of the Convention;
“The Government of Australia hereby declares that it recognises, for and on behalf of Australia, the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by Australia of any of the rights set forth in the aforesaid Convention.”
This places individual citizens affected by racism and racist policy in Australia in an enviable position as this means we are able to make submissions directly to the United Nations Human Rights Council provided it meets the following criteria:
• It is not manifestly politically motivated and its object is consistent with the Charter of the United Nations, the Universal Declaration of Human Rights and other applicable instruments in the field of human rights law;
• It gives a factual description of the alleged violations, including the rights which are alleged to be violated;
• Its language is not abusive. However, such a communication may be considered if it meets the other criteria for admissibility after deletion of the abusive language;
• It is submitted by a person or a group of persons claiming to be the victims of violations of human rights and fundamental freedoms, or by any person or group of persons, including non governmental organizations, acting in good faith in accordance with the principles of human rights, not resorting to politically motivated stands contrary to the provisions of the Charter of the United Nations and claiming to have direct and reliable knowledge of the violations concerned. Nonetheless, reliably attested communications shall not be inadmissible solely because the knowledge of the individual authors is second-hand, provided that they are accompanied by clear evidence;
• It is not exclusively based on reports disseminated by mass media;
• It does not refer to a case that appears to reveal a consistent pattern of gross and reliably attested violations of human rights already being dealt with by a special procedure, a treaty body or other United Nations or similar regional complaints procedure in the field of human rights;
• Domestic remedies have been exhausted, unless it appears that such remedies would be ineffective or unreasonably prolonged.
The 85th Session of CERD – International Convention on the Elimination of All Forms of Racial Discrimination is taking place from 11th – 29th August 2014, with further sessions scheduled at the beginning and midyear thereafter.
I believe the criteria for complaint would be met in several contentious areas of current federal and state policy, for instance the proposed amendments to the Aboriginal Heritage Act in Western Australia, and the Northern Territory Intervention. I would urge all affected peoples, and authorised third parties to fill out the official complaint procedure form and forward it to the UN Human Rights Council.
Communications intended for handling under the Human Rights Council complaint procedure may be addressed to:
Complaint Procedure Unit
Human Rights Council Branch
Office of the United Nations High Commissioner for Human Rights
United Nations Office at Geneva
CH-1211 Geneva 10, Switzerland
Fax: (41 22) 917 90 11