The role of NHRIs in promoting equality and non-discrimination

The role of NHRIs in promoting equality and non-discrimination, with a focus on Africans and people of African descent

Regional Meeting for Asia and the Pacific region on the International Decade for People of African Descent

President Emeritus Professor Rosalind Croucher AM

Introduction and context

I would like to thank the High Commissioner for Human Rights, Volker Türk, for his opening statement.

I also thank the other panel speakers, Chinsung Chung, Barbara G. Reynolds, Sara Lou Arriola, and Professor Mimmie Claudine Watts, for their insights and contributions to this discussion.

In this panel I will provide the perspective of a national human rights institution and provide examples from Australia under the concept of ‘recognition’

Acknowledgment of Country

Before I begin, I would like to firstly acknowledge the Traditional Custodians of the land that I’m joining you from, the Gadigal …. I acknowledge their connection to land, waters and community and pay my respects to their Elders past, present, and acknowledge their emerging leaders. May I also extend that respect to any Aboriginal and Torres Strait Islander people in attendance today. This land always was and always will be Aboriginal Land. We are so grateful to all the Aboriginal and Torres Strait Islander knowledge holders who have generously provided input to the work the Commission has conducted over the years. I acknowledge the long history and leadership of First Nations Peoples in anti- racism efforts and the pursuit of equity for all.

I would also like to express my gratitude for the legacies and leadership of African peoples and people of African descent in anti-racism efforts around the world. I extend respects to people of African descent in attendance, and acknowledge the ongoing impacts of colonisation, slavery and other harms which continue to be felt today.

The role of the NHRI

The core function of National Human Rights Institutions (NHRIs) is to promote and monitor their population’s access and enjoyment of human rights, and to advance this both domestically and on a global scale.

Racial discrimination continues to pervade societies and systems around the world, contributing to entrenched racial disparities and significantly impacting fundamental human rights. As such, combatting racism must be a key part of the work of NHRIs, and they should leverage their unique role in advising government and related bodies to do so.

To be internationally recognised, NHRIs must comply with the standards and responsibilities set out in the Paris Principles, endorsed by the UN General Assembly in 1993. With particular relevance to today’s conversation, Principle 1(g) requires NHRIs “To publicize human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness, especially through information and education.”

This is a core focus of Australian Human Rights Commission, and I will outline our relevant work shortly.

The Australian Human Rights Commission’s role as an NHRI

The Australian Human Rights Commission, as Australia’s NHRI, is compliant with the Paris Principles and has additional responsibilities outlined in the Australian Human Rights Commission Act 1986 (Cth) which establishes the Commission.

These include, amongst other things:

• inquire into any act or practice that may be inconsistent with or contrary to any human right,
• promote an understanding and acceptance, and the public discussion, of human rights in Australia,
• advocate to government and others for human rights to be considered in laws and policy making
• undertake research into human rights and discrimination issues in Australia
• monitoring and scrutinising Australia’s performance in meeting its international human rights commitments.

The Australian Human Rights Commission is also required to promote an understanding of and compliance with the Racial Discrimination Act 1975 (Cth), which promotes equality between people of different backgrounds, and protects people from unfair treatment or vilification on the basis of their race, colour, descent, or national or ethnic origin. It is Australia’s domestic implementation of the International Conversion of the Elimination of all forms of Racial Discrimination.

Combatting racial discrimination and promoting racial equality is therefore a key function of the Australian Human Rights Commission, and we have a dedicated Race Discrimination team led by a Race Discrimination Commissioner. Across our anti-racism work, we aim to centre the experiences of negatively racialised individuals and communities, and amplify community solutions.

The Australian context for people of African descent

In Australia, the 2021 census shows that 414,378 (1.6%) of Australians identified as being of African ancestry, noting that these figures may be an underrepresentation given that race data is not consistently and adequately collected. I will elaborate on this shortly.

The Working Group of Experts on People of African Descent published a report in September 2023, which found that in Australia, people of African descent experience significant structural racism across areas including employment, education, health and the legal system. This, along with experiences of interpersonal racism in everyday life, compounds the discrimination and harms that people of African descent face, and impacts their enjoyment of economic, social, cultural, civil and political rights. This leads to racial disparities, which are also evident in many other countries.

The Working Group’s report was informed by the findings of the Commission’s scoping consultations to progress a National Anti-Racism Framework. These consultations identified issues experienced by African communities and people of African descent in Australia, and priority responses.

The Australian Human Rights Commission’s anti-racism work

The National Anti-Racism Framework: Background and relevant issues

The development of a National Anti-Racism Framework is currently a core project of the Commission. The Framework will aim to support the commitment of government, civil society, businesses and the community to tackle racism and promote racial equality across Australia.

The Commission released a proposal for the Framework in March 2021, in response to ongoing community calls for national action and heightened experiences of racial discrimination and inequity during the pandemic.

The Commission then consulted with peak and community organisations, experts, service providers, human rights agencies, and government at all levels, to inform the scope and vision for the Framework through a community-led approach.

From March 2021 to April 2022, we conducted 100 consultations with over 300 organisations, held 10 community consultations across the country, received input from organisations that hosted their own consultations, and received 164 public submissions – more than a third of which were from individuals. I am grateful for the many community organisations, who generously aided us in getting the call out far and wide and in making the process as accessible as it could be with the resources we had at the time.

The consultations for the Framework raised several issues specific to African Australians and those of African descent. These were published in the Framework’s recent Scoping Report, and relate to media representation, harmful public narratives, racialised policing, lack of comprehensive data, and challenges across education, employment and access to services.

Similar issues specific to African Australians and those of African descent have been raised in consultations for previous projects of the Commission, including In our own words - African Australians: A review of human rights and social inclusion issues,published in 2010, and the more recent consultations for the Racism. It Stops With Me campaign and the Sharing the Stories of Australian Muslims project.

The work of the Commission has found that:

• Media representation – media reporting about African Australian communities is often biased and prejudicial. This is amplified in situations where there is an intersection with religion, particularly in African Australian Muslim communities. Social media is also an unsafe space for African Australians.
• Leadership narratives – political and leader statements can be deficits- based and perpetuate stereotypes and prejudices. They are also often intertwined with media narratives, with negative portrayals similarly amplified when it intersects with religion.
• Policing – young African Australians, particularly young men, experience disproportionate levels of policing and disproportionate policing responses when they interact with the police.
• Data - Lack of comprehensive, national data on the prevalence and impacts of racism was highlighted as an important means of raising awareness about the extent of racism experienced by communities and individuals, as well as securing the appropriate resources and funding to address racism. It was a main priority for many to establish effective and ethical mechanisms for data collection, management, and reporting, which would protect communities from unethical processes that often result in deficit understandings of negatively racialised and First Nations communities
• Employment – Young African Australians face specific challenges in securing and keeping employment as race-based bias is evident. During COVID-19 this cohort experienced higher levels of unemployment because of the nature of the work many of them do (which is often insecure work, and in industries adversely affected by the pandemic). African Australian women also faced similar challenges with employment during COVID-19.
• Education - Young African Australians experience race-based harm in educational settings.
• Access to services – Inadequate settlement services for new arrivals was flagged as a serious concern, particularly for people arriving from conflict or refugee contexts

The Commission’s scoping consultations for the Framework also identified community priorities to respond to these issues. These included the need to:

• urgently address racism at a national level, including systemic racism and particularly in the criminal justice system
• increase racial literacy in Australia through public education and awareness-raising
• take an intersectional approach to understanding racism and anti-racism action
• build more culturally safe workplaces and education institutions
• improve legal protection frameworks with timely and meaningful remedies for discrimination, adequate redress and less barriers to access

Continuing this work through the National Anti-Racism Strategy

As part of the October 2022-23 Federal Budget, $7.5 million over 4 years was provided to the Australian Human Rights Commission to develop a National Anti-Racism Strategy to tackle racism and promote racial equality in Australia.

The Strategy includes two streams of work, which are the continued development of the National Anti-Racism Framework, and an updated anti- racism public awareness campaign.

1. The development of the National Anti-Racism Framework

Our continued development of the Framework involves:

• identifying the necessary measures that form part of a comprehensive response to racism and its prevention, including national policy frameworks on multiculturalism, reconciliation and social inclusion;
• building capacity for partnerships across society to address racism, acknowledging that it will require action from across the community, business, and government sectors;
• ensuring accountability mechanisms to measure progress over time in reducing the incidence of racism; and
• promoting community understanding of racism and acceptance of anti- racism initiatives.

To progress the Framework development, the Commission is currently undertaking research and consultation with experts in the key priority areas raised in the initial scoping for the Framework.

In addition, we are progressing community-level consultations on the development of the Framework with First Nations and multicultural communities. FECCA, the national peak body representing Australians from culturally and linguistically diverse backgrounds, has been commissioned to engage with multicultural communities across the nation. These will include further comprehensive consultation with African communities and people of African descent, to ensure that their concerns and priorities are reflected in the Framework.

The Commission is also currently mapping existing government programs and polices relevant to anti-racism at the national, state, territory and local levels, to identify gaps and opportunities to enhance and promote existing initiatives.

Later this year, we will be reporting back to the Australian Government on what principles, themes, priorities, strategies and solutions should inform the National Anti-Racism framework.

2. Update of our anti-racism public awareness campaign

The second stream of work under the Strategy is an update of the ‘Racism. It Stops with Me’ campaign, which seeks to raise public awareness, deliver public education and build community capacity to combat racism and discriminatory

attitudes. As stated earlier, public awareness, education and information to combat racial discrimination is a core responsibility of all NHRIs.

In July 2022, we relaunched a new iteration of our previous Racism. It Stops With Me campaign, informed by extensive consultations with community members and best practice. This was launched through a Community Service Announcement which was promoted on national television, social media, and through our community partners and supporters. The campaign has its own updated website that provides information to support further learning, including resources discussing how racism manifests in everyday life and ways to take action against it.

The continued update of our public awareness and anti-racism campaign includes:

• creating new campaign content that expands the campaign’s concept,
• encouraging Australians to reflect on the impact of racism in society
• creating new resources to assist individuals and organisations to identify and address misinformation and disinformation
• creating resources to support individual and collective action on key areas, including: racism in sports, racism and discrimination in the workplace and building racial literacy in schools
• using social media and campaign channels to amplify the voices of those with lived experiences of racism, including those from First Nations and migrant, refugee and faith-based communities that are negatively racialised, and working with negatively racialised communities to understand how the campaign can support those who experience racism including through amplifying community anti-racism work.

Overview of changes to indefinite detention

The Working Group of Experts on People of African Descent report noted that in Australia people of African descent are over-represented in immigration and indefinite detention. Detention was lengthy, at times surpassing 10 years.

Serious acts of harm and violence were reported in these facilities, inclusive of excessive force and receiving high doses of psychotropic medication (presumably forcibly).

The report noted that the lengthy detention of asylum seekers constitutes a breach of ICERD - Australia’s system of indefinite detention, particularly as it affects people of African descent, is liable to produce cases of arbitrary and indefinite detention. Indefinite detention was authorised under the Migration Act and ignored due process guarantees, including having no legal requirement to forewarn people about visa cancellations as a result of criminal offence.

Fortunately, in November last year, Australia’s High Court ruled indefinite immigration to be unlawful, overturning a 20-year precedent. The Commission was granted leave by the High Court to appear in this case as an amicus curiae and to make submissions as a ‘friend of the court’.

The majority of justices concluded that sections of the Migration Act, which had previously been interpreted to allow for indefinite detention, were beyond legislative power. This ruling overturned the Al-Kateb case, which had authorised the indefinite detention of non-citizens lacking a valid visa, even in cases where deportation was impossible.

Lawyers argued that his detention violated constitutional limits on detention, and that detention was not being used for its intended purpose but rather seemed to function as a punitive measure against refugees and migrants.

 Concluding remarks

Combatting racism must be an integral part of every NHRI’s work to promote, educate and advocate for the equal rights of its nation’s people.

These efforts require holistic approaches across legal, institutional and policy frameworks, and targeting the systemic roots of discrimination through anti- racism education and awareness-raising.

The unique experiences of Africans and those of African descent are critical in this process, as NHRIs including the Australian Human Rights Commission continue to strive for an environment in which all people are enabled to thrive.