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Elements of a global alliance against racism

Race Race Discrimination

Elements of a global alliance
against racism: The roles and responsibilities of human rights treaty
bodies, national human rights institutions and other relevant institutions

Panel intervention by Dr William
Jonas AM, Race Discrimination Commissioner and Aboriginal and Torres Strait
Islander Social Justice Commissioner,
Human Rights and Equal Opportunity Commission of Australia

3 September 2001

I would like to begin
by paying tribute to Mrs Mary Robinson, who in her time as High Commissioner
for Human Rights has placed great emphasis and importance on the role
of national human rights institutions. It is largely due to her efforts
and support that national institutions have such a strong voice at this
World Conference, and why we are talking today about our role in a global
alliance against racism.

I want to emphasise
the scope of the role that national human rights institutions should play
in a global alliance against racism. There have been significant advances
in the recognition of the role of national institutions recently but there
is still a long way to go.

In the Bayefsky review
of the UN human rights treaty system, the role of national institutions
is discussed solely under the heading of 'national follow up partners'.
The report notes the important role of national institutions in the effective
implementation of human rights and states that 'International institutions
should play a secondary role in the protection of human rights standards'
.[1]

I agree fully with
this proposition but I don't think that the review fully reflects the
potential of national institutions to contribute significantly to the
strengthening of the human rights system.

The National Institutions'
Statement to this World Conference notes in part, "National institutions
shall act as a channel between action at the international level - through
international treaty bodies, particularly the CERD, … and action
at the national level to combat racism" (para 2).

Last year Australia
appeared before four of the six treaty committees for consideration of
periodic reports. My Commission participated extensively in these processes,
through the making of submissions to each committee and providing informal
briefings to the committees ahead of their consideration of the reports.
We also conducted a number of follow up activities, including making the
concluding observations 'programmatically relevant' to use Professor Bayefsky's
language.

I want to put to
you three propositions based on the Commission's experiences last year
about improving the alliance of treaty committees and national institutions.

First, national
institutions have a vital role to play in the early warning and prevention
of breaches of human rights standards
. Some of you may know about
the early warning / urgent action procedures of the CERD. Australia was
placed under these in 1998, due to concerns about racially discriminatory
land practices in relation to Indigenous peoples. My Commission had warned
the government that its proposed legislation was racially discriminatory
on several occasions in the two and a half years prior to the CERD finding
that the Native Title Act amendments were racially discriminatory in March
1999.

Similarly, we had
warned the government about other discriminatory practices relating to
Indigenous peoples - most notably the failure to overturn discriminatory
legislation in one territory of Australia which removed judicial discretion
in the sentencing of offenders for petty property crimes - again, several
years ahead of the findings by the CERD, the CAT and the Human Rights
Committee in 2000 to the same effect.

What this suggests
to me is that national institutions could have a larger role to play in
bringing matters of serious concern to the attention of treaty committees
at an early stage in order to avoid or prevent the continuation of serious
violations of human rights. This is potentially a significant tool for
addressing systemic and institutional forms of racial discrimination,
which are not amenable to individual communication processes.

Second, national
institutions have a vital role to play in the consideration of periodic
reports.
While treaty committees clearly recognise the distinct role
of national institutions, particularly compared to NGOs, my proposition
is that this should be further recognised by treaty committees and formalised
to the greatest extent possible.

This would allow
for much greater transparency of the process, and would dramatically increase
the quality of the dialogue between the State party and the committee.
For example, when considering the native title situation in Australia,
the CERD had at its disposal information from my commission, and other
bodies such as the peak Indigenous organisation ATSIC, which explained
the intricacies of the Australian legal system - such as how the native
title amendments had operated to override Australia's domestic incorporation
of its obligations under ICERD. The Committee were able to use this information
to ask detailed questions which went beyond the generalised answers of
the government on this point. This is of course a problem faced in relation
to many if not most periodic reports.

I propose that treaty
committees should ensure a greater role for national institutions in the
processes leading up to the consideration of periodic reports, such as
in the development of a pre-sessional list of issues, inviting submissions
from national institutions and in allocating sufficient time for independent
briefings by national institutions ahead of the consideration of reports.
Such matters should become standard practice for committees and be formalised
through the rules of procedure of the committees where possible.

Finally, national
institutions have a vital role to play in the domestic implementation
of concluding observations of treaty committees and making them programmatically
relevant.
Each year I report to the federal parliament on the enjoyment
of human rights by Indigenous peoples. My latest report provides a detailed
analysis of the government's appearance before CERD and considers the
most appropriate mechanisms for implementing the recommendations in the
concluding observations. I am sure many other National institutions focus
their work in a similar manner, and where they don't have capacity to,
States parties should empower national institutions to undertake such
analysis in order to bridge what Professor Bayesfsky calls the 'inexcusable…
gap between universal right and remedy' that has emerged in the international
human rights system and which requires, with urgency, an effective global
alliance against racism.

Thank you.

1. Bayefsky, A, The United Nations Human
Rights Treaty System: Universality at the crossroads, April 2001, p90.

Last
updated 19 September 2002