Lofgren, Neil --- "Complaints Procedures under Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination" [1994] AboriginalLawB 14; (1994) 3(67) Aboriginal Law Bulletin 11

Complaints Procedures under Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination

by Neil Lofgren

On 28 January 1993,1 Australia lodged a declaration with the United Nations accepting the optional complaint procedures under Article 14(1) of the International Convention on the Elimination of All Forms of Racial Discrimination [1975] ATS 40 (hereafter the 'Convention'). This declaration recognised the competence of the Committee on the Elimination of Racial Discrimination (CERD) to receive and consider communications from individuals or groups of individuals within the jurisdiction of Australia who claim to have had their rights as set out in the Convention violated.

Eighteen of the 137 States that have ratified the Convention have made a declaration under Article 14(1) (these are Algeria, Australia, Bulgaria, Costa Rica, Denmark, Ecuador, France, Hungary, Iceland, Italy, the Netherlands, Norway, Peru, the Russian Federation, Senegal, Sweden, Ukraine and Uraguay).2 No communications can be received by CERD in respect of a State which has not recognised the competence of CERD under the Article.

CERD is established under Article 8 of the Convention, and has 18 independent members, who are elected to a four year term by State Parties to the Convention. CERD meets twice each year and considers also periodic reports on the legislative, judicial, administrative and other measures adopted by State Parties (Article 9(1)). CERD reports annually to the General Assembly of the United Nations on its activities, and may make suggestions and general recommendations based on reports and information received from State Parties.

Under Article 14(2) of the Convention, Australia has the option of establishing or indicating a national body to receive and consider petitions from individuals or groups of individuals who have exhausted all available domestic remedies. At this stage no national body has been established or nominated to consider complaints from those who have had their rights as set out in the Convention violated. This means that a complainant may directly communicate with CERD within six months of exhausting all domestic remedies.

Rights specified in the Convention

The communication must mention the violation of a right specified in the Convention (Article 14(1)). The Convention appears as a schedule attached to the Racial Discrimination Act 1975 (Cth), and guarantees a range of civil, political, economic, social and cultural rights which include:

• the right to equal treatment before tribunals administering justice (Article 5(a));
• the right to security of person, and protection against violence or bodily harm, whether inflicted by Government officials, individuals, groups or institutions (Article 5(b));
• political rights based upon universal and equal suffrage, and the right to take part in Government and its conduct, and equal access to public service (Article 5(c));
• the right to freedom of movement and residence within Australia (Article 5(d)(i));
• the right to leave and return to Australia (Article 5(d)(ii));
• the right to nationality (Article 5(d)(iii));
• the right to marriage and choice of spouse (Article 5(d)(iv));
• the right to own property alone as well as in association with others (Article 5(d)(v));
• the right to inherit (Article 5(d)(vi));
• the right to freedom of thought, conscience and religion (Article 5(d)(vii));
• the right to freedom of opinion and expression (Article 5(d)(viii));
• the right to work, to free choice of employment, to just and favourable conditions of work, and to protection against unemployment, to equal pay for equal work, and to just and favourable remuneration (Article 5(e)(i));
• the right to form and join trade unions (Article 5(e)(u));
• the right to housing (Article 5(e)(iii));
• the right to public health, medical care, social security and social services (Article 5(e)(iv));
• the right to education and training (Article 5(e)(v));
• the right to equal participation in cultural activities (Article 5(e)(vi)); and
• the right to access to any place or service intended for the use of the general public, such as transport, hotels, restaurants, cafes, theatres, and parks (Article 5(f)).

The Convention also imposes on Australia an obligation to ensure that all those within the jurisdiction of Australian law have effective protection and remedies provided through competent tribunals and other institutions against acts of racial discrimination which violate their human rights and fundamental freedoms contrary to the Convention (Article 6). This obligation extends to just and adequate reparations or satisfaction from these tribunals for any damage suffered as a result of racial discrimination. Other Articles in the Convention mention a range of obligations, including outlawing racial segregation and apartheid (Article 3), and the combating of prejudice and the promotion of understanding and tolerance (Article 7).

The alleged violation must also have occurred after 28 January 1993, which is the date that Australia recognised the competence of CERD to receive and consider communications. Violations which occurred before this date, but are continuing, can form the basis of a communication.3

Australia's reservations to the Convention

Australia has made a reservation to Article 4(a) of the Convention, which requires legislation to make racial vilification and other racist activities unlawful. This reservation means that a complainant cannot lodge a complaint with CERD for Australia's failure to bring its obligations under this Article into statutory effect.

The reservation stated that Australia was not in a position to treat as offences all of the matters covered by this Article, and that the acts referred to were currently punishable to the extent to which the criminal law dealt with the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts to pervert the course of justice.4 The reservation further mentioned that it was the intention of the Australian Government to seek legislation implementing the terms of the Article at the first suitable moment.

No Commonwealth racial vilification legislation has yet been implemented, and such inaction is contrary to Recommendation 3 of the Human Rights and Equal Opportunity Commission's (HREOC) 1991 Report of the National Inquiry into Racist Violence in Australia, as well as Recommendation 213 of the Royal Commission Into Aboriginal Deaths In Custody, which both recommended the implementation of legislation proscribing racial vilification.5

Information to include in the communication

While there is no specific form to be filled out to communicate with CERD, under its Rules of Procedure6 the communication must include the name, address, age and occupation of the complainant (Rule 84(1)(a)), the name of the State Party against which the communication is directed (Rule 84(1)(b)), and the object of the communication (Rule 84(1)(c)). The communication must also mention the provision or provisions under the Convention which have been violated (Rule 84(1)(d)), the facts of the claim (Rule 84(1)(e)), and the steps taken by the complainant to exhaust domestic remedies, including pertinent documents (Rule 84(1)(f)), and finally the extent to which the same complaint is being examined under other procedures for international investigation or settlement (Rule 84(1)(g)). Complainants may wish to base their communication on the model form used to communicate to the United Nations Hunan Rights Committee under the complaint procedures set out in the First Optional Protocol to the International Covenant on Civil and Political Rights [19911 ATS 39.7

The communication procedure

The communication must not be anonymous (Article 14(6)(a)), and may be made by either an individual or group who claim to be victims of a violation of their rights as set out in the Convention (Article 14(1)). Rule 91(b) provides that as a general rule, the communication must be submitted by the individual personally, or their relatives or designated representatives. In exceptional circumstances CERD will consider a communication on behalf of another individual, when it appears that the victim is unable to submit the communication personally, and the author justifies action on their behalf (Rule 91(b)). Under Rule 91 (a) CERD can only consider communications from those within the jurisdiction of a State which has recognised the competence of CERD under Article 14(1). Consequently, the complainants must be within the jurisdiction of Australian law (Article 14(1)), which means that CERD may also receive complaints from refugees in Australia, whose rights under the Convention have been violated.

CERD will refer a confidential copy of the complaint to the Australian Government (Article 14(6)(a) and Rule 94(1)). CERD will not divulge the identity of the individual or groups of individuals concerned, unless their express consent has been given. Australia must forward a written explanation clarifying the matter and the remedy, if any, to CERD within three months (Article 14(6)(6) and Rule 92(2)). CERD will then consider the communication in the light of all information made available to it by the Australian Government and the complainant, providing that the complainant has exhausted all domestic remedies (Article 14(7)(a)).

CERD has a two stage process for considering the merits of a communication. If CERD decides that a communication is inadmissible, the complainant may lodge a written request seeking a review by CERD at a later date (Rule 93(2)). This written request must contain documentary evidence demonstrating that the reasons for inadmissibility under Article 14(7)(a) are no longer applicable. CERD will also forward a copy of any explanations submitted by the Australian Government to the complainant (Rule 94(4)), who may submit any additional written information or observations in reply. CERD may also invite the complainant (or their representative), and a representative of the Australian Government to address CERD members in person (Rule 94(5)).

The exhaustion of domestic remedies

Amongst the broad range of remedies which may need to be examined before communicating with CERD are the parliaments, the judiciary, anti-discrimination tribunals established under Commonwealth and State jurisdiction, the Ombudsmen, industrial tribunals, the Administrative Appeals Tribunal and similar institutions, the Commonwealth Constitution, and the common laws In some cases the domestic remedies may have already been exhausted (as in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168), whilst in others there may be no remedies to exhaust, and this absence of domestic remedies will need to be clearly explained in the communication. The absence of domestic remedies, in itself, may also violate Article 6 of the Convention, which imposes an obligation on Australia to have effective protection and remedies through competent national and State tribunals and institutions. Rule 91(f) states that except in duly verified exceptional circumstances, the communication must be submitted within six months after all available domestic remedies have been exhausted. It should be noted though that the complainants need not exhaust domestic remedies if the remedies are unnecessarily prolonged (Article 14(7)(a)).

Enforcing the Convention

While Australia has been obliged to promote and observe the rights set out in the Convention since it entered into force in Australia on 30 October 1975, only certain Articles of the Convention have been incorporated into the Racial Discrimination Act 1975 (Cth) (RDA), and associated State anti-discrimination legislation.

Under Australian common law, an international treaty to which Australia is a party does not give rise to rights under municipal law in the absence of legislation carrying this treaty into effect (Sintsek v Macphee [1982] HCA 7; (1982) 148 CLR 636, Stephen J at 642; Dietrich v The Queen [1992] HCA 57; (1992) 109 ALR 385). Consequently, the rights and obligations mentioned in the Convention are only domestically enforceable to the extent to which legislation directly refers to them. For example, the RDA only refers to the rights set out in Article 5 of the Convention, and makes racial discrimination unlawful (s9) and guarantees equality before the law (s10). Because the Act does not mention other Articles in the Convention, these other rights and obligations are not domestically enforceable in Australian courts unless referred to in other legislation or provided for by the common law.

CERD's remedies

CERD has the option under Rule 94(3) of informing Australia that, in view of the urgency of the matter, interim measures must be taken to avoid irreparable damage to the victim or victims of the alleged violation. CERD also has the right to issue a press communique about its activities to the media (Rule 97). CERD will put forward its final suggestions and recommendations, if any, to the complainant and the Australian Government (Article 7(b) and Rule 95), and a summary of the communication and recommendations will appear in CERD's annual report (Article 8). It should be noted that CERD's recommendations are not binding on Australia, but should any violation of the Convention be found, Australia would be under considerable international and domestic pressure to alter its laws or practices to conform with CERD's views.9

CERD’s jurisprudence

CERD started taking communications under Article 14 of the Convention during its 30th session in 1984. Since this time, CERD has adopted opinions on three communications and declared a fourth admissible for consideration at its next session.10

In its opinion in Denba Talibe Diop v France (Communication No.2/1989),11 which dealt with the right to work, housing, and education set out in Article 5(e) of the Convention, CERD was of the opinion that these rights were programmatic in character, and thus subject to progressive implementation. CERD was also of the opinion that it was not within its mandate to see that these rights were established, and the communication, as far as it was based upon Article 5(e), was not well founded. The implication of this decision may be that CERD will not consider a communication based upon a breach of programme obligations. However, no decisions have been made on this specific point, so a test communication based upon a failure to satisfy programme obligations may be warranted.

In L.K. v The Netherlands (Communication No.4/1991),12 the complainant was assigned a council house, and was harassed by his new neighbours who didn't want 'foreigners' in their neighbourhood. CERD considered that the inadequate response, by the police and judicial proceedings, to these racial incidents did not afford the complainant effective protection and remedies within the meaning of Article 6 of the Convention. The combined implication of these decisions is that CERD may provide international review of the failure to ensure compliance by Australia with at least the non-programmatic civil and political rights under the Convention.

In this context, the lack of action by Australia to adopt the recommendations of the Australian Law Reform Commission’s 1986 Report on the Recognition of Aboriginal Customary Law13 may violate Australia's obligation to guarantee the rights of Aboriginal and Torres Strait Islander people under the Convention in relation to criminal law and procedure (Article 5(a)); traditional punishment (Article 5(b)); the recognition of traditional marriages and customary adoptions (Articles 5(d)(v) and 5(d)(vi)); and the distribution of property (Article 5(d)(vi)). CERD may also provide an avenue for bringing international attention to the gross racial discrimination and violence reported in HREOC's 1991 Report of the National Inquiry into Racist Violence.14

The need for training and information programmes

Recommendation 333 of the Final Report of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) suggested that Australia become a party to the First Optional Protocol to the International Covenant on Civil and Political Rights [19911 ATS 39, (ICCPR) and the optional complaint procedures provided under Article 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1989] ATS 21. The Commonwealth has fully complied with this recommendation, and funded an Optional Protocol Unit within the Commonwealth Attorney-General's Department to prepare Commonwealth responses to individual complaints made under these procedures. However, no funding has been allocated to inform and educate people about their options using the procedures set out in these Conventions, or to assist complainants in preparing a commnmication.15

Given the role of the Aboriginal and Torres Strait Islander Social Justice Commission, under s46C of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), to report on the enjoyment and exercise of the human rights of Aboriginal and Torres Strait Islander people, this may be a matter for the Commission to address by recommending appropriate Commonwealth funding for training and education programmes, so that Aboriginal and Torres Strait Islander people can fully exercise their human rights under these international human rights instruments.

Conclusion

Now is the time to critically assess the implementation of each of the recommendations of the Report on the Recognition of Aboriginal Customary Law, the RCIADIC's Final Report, and the Report of the National Inquiry into Racist Violence in relation to Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination and the rights of Aboriginal and Torres Strait Islander people. These Reports officially acknowledge that Aboriginal and Torres Strait Islander people experience considerable disadvantage in the enjoyment of their human rights as set out in a number of international human rights instruments.

Communication to CERD about the violation of the rights contained in the Convention may be more appropriate than pursuing the procedures set out in the First Optional Protocol to the ICCPR, given the latter's focus on general civil and political rights, rather than the ongoing racial discrimination experienced by Aboriginal and Torres Strait Islander people. Direct communication to international fora such as CERD and the other United Nations Committees, regardless of accessibility, is no substitute for a domestically enforceable Bill of Rights; however it does provide Aboriginal and Torres Strait Islander people with an opportunity to draw international attention to the continuing violation of their human rights.

*Neil Lofgren wishes to thank Associate Professor Phillip Tahmindjis for his helpful comments on earlier drafts of this paper.

Endnotes:

1. Declaration by Australia Recognising the Competence of the Conrnrittee on the Elimination of Racial Discrimination, United Nations Document C.N.47.1993.TREATIES-2 (Depository Notification), B April 1993.

2. Official Records of the General Assembly, Forty-Eighth Session, Supplement No.18, United Nations Document, (A/48/18), p107.

3. See comments in relation to the Human Rights Cmmninee in Eastman, K., "Human Rights Remedies - A Guide", (1992), 12 (4) ALI, pp169-172 at 170.

4. Centre for Human Rights, Hunts,, Rights: Status of Intentional instruments, New York, United Nations, 1987, p99.

5. HREOC, Racist Violence: Report of the National Inquiry into Racist Violence in Australia, ALPS, Canberra, 1991, p389; and RCIADIC National Report - Overview mid Remmniendalions, ALPS, Canberm,1991, p78.

6. The Rules of Procedure of the Committee on the Elimination of Racial Discrimination, United Nations Document, CERD/C/35/Rev.2.

7. See the model communication in Appendix III of McGoldrick, D., The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, 1st Ed., Clarendon Press, Oxford, 1991; see also Chinkin, C., "Using the Optional Protocol: The Practical Issues", AboriginalLB 3/64, p6.

8. See Thompson, P., 'Using the Optional Protocol: The Practical Issues", published in Centre for Comparative Constitutional Studies, Intenmtioralising Human Rights: Australia's Accession to the First Optional Protocol, University of Melbourne law School, 1992, p30.

9. See comments in relation to the Human Rights Committee in Charlesworth, H., "Human Rights and Public Interest Advocacy", (1994) 19 (1) ALI, pp8-10 at 9.

10. Official Records of the General Assembly, Forty-Eighth Session, Supplement No.18, United Nations Document, (A/48/18), ,107.

11. Opinion of the Committee on the Elimination of Racial Discrimination, Dernba Talibe Drop v France, Communication No.2/1989, Adopted 18 March 1991, Thirty-ninth Session, published in Official Records of the General Assenbly, Forty-sixth Session, Supplement No.18, (A/46/18), annex viii.

12. Opinion of the Committee on the Elimination of Racial Discrimination, L.K. v The Netherlands, Communication No.4/1991, Adopted 16 March 1993, Forty-second Session, published in Official Records of the General Assembly, Forty-eighth Session, Supplement No.18, (A/48/18), annex iv.

13. Australian Law Reform Commission, Tie Recognition of Aboriginal Customary Laws, Report No.31, ACTS, Canberra, 1986.

14. See chapter 5 of HREOC, Racist Violence: Report of the National Inquiry into Racist Violence in Australia, ACPS, Canberra, 1991.

15. See the status of Recommendation 333 in the Irnplernentation of Commonwealth Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody: First Annual Report 1992-93, Volume 2, AGPS, Canberra, 1994, p430.