Statement to UN Committee on the Elimination of Racial Discrimination Geneva, Switzerland

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27 November 2017

Chair and committee members: thank you for the opportunity to address you.

I am pleased to join you as Australia’s Race Discrimination Commissioner and as a representative of the Australian Human Rights Commission.

Racial discrimination in multicultural Australia

Australia is a multicultural country. The people of Australia come from more than 300 ancestries, reflecting our recent history as a nation of immigration. More than 25 per cent of our population was born overseas, and about 49 per cent have at least one parent born overseas. Australia’s Aboriginal and Torres Strait Islander population is also a growing one, as befits a country home to the world’s oldest continuing culture.

For the most part, this diversity is an accepted reality in Australia; most Australians regard it as a strength of our national life. However, racism continues to be present in Australian society. The Scanlon Foundation’s Mapping Social Cohesion study found in 2016 that 20 per cent of Australians had experienced discrimination based on race, ethnicity or religion – up from 15 per cent in 2015.

The experience of some groups warrants special attention. Aboriginal and Torres Strait Islander people encounter much higher levels of racial discrimination compared to the general population, reflecting their experience of institutional and structural racism. Migrants from African countries, and other non-English speaking backgrounds, report relatively high levels of discrimination. Research also indicates there has been a rise in hostile or negative public sentiment towards Muslims.

There are, then, some clear indications that racial intolerance and racial discrimination are on the rise. It is especially concerning that, as in many other countries, extreme nationalist organisations have grown in prominence within public debates about race and immigration.

Implementation of the Convention

Australia implements the Convention primarily through the Racial Discrimination Act 1975 (Cth). The Act provides all Australians with an important and essential protection against racial discrimination. But the Act does not reflect a complete implementation of the Convention.

First, it is possible for other federal legislation to override or suspend the operation of the Racial Discrimination Act. This was the case, for example, with the legislation that brought into effect the Northern Territory Emergency Response in 2007.

Second, ‘special measures’ under the Act do not fully comply with the Committee’s General Comment No 32. This is because there is no requirement under the Act for affected groups to be consulted and participate in the design and implementation of proposed special measures.

Third, the Act does not criminalise racial hatred. The Act provides only a civil prohibition of racial hatred. The Australian Government has exercised a reservation to article 4 of the Convention.

Finally, Australia’s constitutional arrangements still allow for racially discriminatory laws to be passed. Section 25 of the Australian Constitution contemplates state governments disqualifying a group of people from voting based on race. Under section 51(xxvi), the Australian Parliament may pass laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’.

The Australian Human Rights Commission has made recommendations for the full domestic implementation of the Convention. We have opposed the passage of federal laws, which would have the effect of undermining the Racial Discrimination Act and the spirit of the Convention. And we have advocated for the removal of sections and clauses which permit racial discrimination from the Australian Constitution.

Developments since Australia’s last appearance

There have been a number of positive developments since Australia’s previous periodic review before this Committee as we highlight in our submission.
However, there is still much to do.
We have, in our submission, offered 44 recommendations to improve Australia’s compliance with the Convention. These include recommendations concerning those most vulnerable to racial discrimination: Aboriginal and Torres Strait Islander peoples, migrants, and members of culturally and linguistically diverse communities. We have also highlighted issues such as discriminatory police practices, counterterrorism, immigration detention and multicultural policy.

Three ‘priority areas’

I would like to identify three ‘priority areas’, about which the Committee may wish to consider seeking updates from the Australian Government within the next 12 months.

The first priority area concerns data collection.

There is currently no comprehensive process for collecting data about racial discrimination, racial and cultural diversity, racially motivated crimes and multiculturalism. Better data would enable better understanding of racial disparities in areas including employment, health, education, and the criminal justice system.

The second priority area concerns the Royal Commission into the Protection and Detention of Children in the Northern Territory, whose findings were released on 17 November 2017. The Royal Commission found that youth detention centres in the Northern Territory are not fit for accommodating or rehabilitating children and young people. It found that children were subjected to physical control and humiliation.

The Commission has urged that the Australian Government implement the recommendations of the Royal Commission.

The third priority area concerns discriminatory police practices.

The Federal Court Of Australia last year held that the State of Queensland, through its police service, breached the Racial Discrimination Act. The case involved conduct of police officers following the death of an Aboriginal man in police custody on Palm Island. The Court found that some or all relevant police officers:

• did not act impartially and independently in their investigations;
• failed to communicate with the Palm Island community and defuse tensions; and
• carried out arrests that were unnecessary and disproportionate.

The Court held that, if the events took place in an isolated non-Aboriginal community in Queensland, such conduct would not have occurred.

The Commission recommends that the Committee follow-up on the Australian and Queensland governments’ response to this decision. Moreover, we recommend that police be trained in cultural competency and anti-racism. We also recommend that all Australian governments to implement independent review mechanisms to monitor compliance of police practices with the Convention and the Racial Discrimination Act.

Other areas of significant concern

There are two additional areas of concern to the Commission, about which I wish to speak today.

First, the Committee will be aware of the First Nations National Constitutional Convention to discuss constitutional recognition, which was held in May 2017. Through the Uluru Statement from the Heart, the Constitution Convention proposed the establishment of a constitutionally-enshrined First Nations’ Voice to Parliament and a Makarrata Commission to supervise a process of agreement making between governments and First Nations.

The Commission expresses its significant concern about the Australian Government’s rejection of the proposal for the First Nations’ Voice to Parliament.

Second, we note the concerns of Arab and Muslim Australians that public anxiety about terrorism have heightened prejudice towards and discrimination against them. It is vital that counter-terrorism laws are subject to ongoing reviews to ensure compliance with Convention rights and essential that all Australian governments are vigilant about the risk of racial profiling.

Conclusion

It is on this note of vigilance that I conclude. Australia’s success as a multicultural society is one worthy of celebration – but it must not induce complacency. It remains of urgent importance that the Racial Discrimination Act continues to set a standard for racial equality and tolerance, that there are steps taken to strengthen Australia’s multiculturalism, and that Australian governments respond to findings of racial discrimination. On behalf of the Australian Human Rights Commission, I thank the Chair and the Committee for this opportunity, and look forward to your concluding observations.

ENDS