The UN committee on the elimination of all forms of racial discrimination (the committee) has given Australia another serve in its latest report on Australia’s progress in implementing the Convention on the Elimination of Racial Discrimination (CERD).   States who ratify this treaty agree to abide by its articles. Regular reporting to the CERD Committee, a body of 18 independent (honorary) experts drawn from states that have ratified the convention is part of the deal. So too is abiding by the recommendations of the committee. Australia’s past behaviour in the latter respect could only be called recalcitrant.

In reaching its conclusions, the committee affords the reporting state the opportunity to respond to questions about matters of concern. These are developed from consideration of reports from bodies such as the Australian Human Rights Commission, NGOs concerned with human rights and international law, reports from UN expert mechanisms such as the Special Rapporteurs on Housing and Indigenous Rights respectively — both of whom visited Australia during the reporting period — and the substance of individual complaints that the committee has investigated.

It was to be expected that Australia would attract the committee’s criticism because  despite having been intimately involved in setting up the UN and developing the Universal Declaration on Human Rights, this land of the “fair go” has not cast aside the racist relics of its origins. They are embedded in the Constitution. They are evidenced in the law, policy and practice of state and federal governments.  They are part of the national psyche and emerge as popular pejoratives for members of ethnic or religious minorities, or as violence.

The committee has urged the Australian government to:

“take measures to ensure that the Racial Discrimination Act prevails over all other legislation which may be discriminatory on the grounds set out in the Convention [and] draft and adopt comprehensive legislation providing entrenched protection against racial discrimination.”

These are the committee’s single most important recommendations. It’s not a small thing to amend the Constitution and provide entrenched protection against discrimination on the grounds of race, colour, descent, or national or ethnic origin — but it’s something that should be done.

Why? Because:

  • Pacta sunt servanda — we’ve ratified the treaty and should abide by it.
  • There’s no excuse, ever, for treating people with less respect and dignity than we would want for ourselves, our children and our friends because of unjustifiable beliefs in racial superiority or cultural chauvinism.
  • Discrimination undermines the feeling of shared humanity that any society needs build up trust and to ensure that all members can have their essential interests, in other words, their human rights, met.
  • A legal framework for giving effect to the Convention would provide individuals with a mechanism for challenging discriminatory law and for seeking redress for past wrongs — this is a matter of justice.
  • A fair and inclusive society is the best protection against political drift that can end in crimes against humanity.

Of course, the Committee has asked the Australian government to particular reform law and policy that contravenes the Convention, such as the Northern Territory intervention, which is still not compliant, still misinterprets “special measures” and still restricts access to the protections of the Racial Discrimination Act. Of course, the committee has criticised, inter alia, the system of lesser administrative justice for asylum seekers entering the excised zone and the policy that can result in their arbitrary detention.

Stopping the harm done by particular violations of the Convention is important, but the committee’s recommendations for structural reform, particularly constitutional reform and entrenchment of the prohibition against discrimination, are fundamental. They need to be on the to-do list for the new parliament, along with the committee’s recommendations that Australia move to Constitutional recognition of its first peoples, and consider development of a treaty with them.

Under the new system of Universal Periodic Review, Australia will be reviewed by the UN Human Rights Council — in effect by its peers — for its compliance with CERD  and other human rights treaties to which it is party. Its first review under this system will happen early next year.  Let’s hope that by then there’ll be a program for implementing all the committee’s recommendations.

Robyn Seth-Purdie, public policy and governance consultant, who has worked for a human rights organisation.