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The International Prohibition Of Racist Organisations: An Australian Perspective

Author: Hannah McGlade LLB (Mur)
Issue: Volume 7, Number 1 (March 2000)

Contents

    Introduction

  1. Indigenous peoples existence, historically and contemporarily, is marked by racism, racial discrimination and violence. Importantly, this issue has generated significant interest and activity within the United Nations, as part of its overall human rights work.[1] For example, in 1971 the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, appointed a Special Rapporteur to inquire into and report upon the problem of discrimination against Indigenous populations.[2] In 1982 the Economic and Social Council created the Working Group on Indigenous Populations, who in consultation with Indigenous peoples, have developed a Draft Declaration on the Rights of Indigenous Peoples, for eventual adoption by the UN General Assembly.

  2. Of particular significance, and the focus of this essay, is the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). This Convention, which was one of the first adopted by the United Nations in 1965, has now been ratified by more than 150 states.[3] Under the Convention, States have pledged[4]

    (a) To engage in no act or practice of racial discrimination against individuals, groups of persons or institutions, and to ensure that public authorities and institutions do likewise;
    (b) Not to sponsor, defend or support racial discrimination by persons or organisations;
    (c) To review government, national and local policies and to amend or repeal laws and regulations which create or perpetuate racial discrimination;
    (d) To prohibit and put a stop to racial discrimination by persons, groups and organisations; and
    (e) To encourage integrationist or multiracial organisations and movements and other means of eliminating barriers between races, as well as to discourage anything which tends to strengthen racial division.

  3. The Committee on the Elimination of Racial Discrimination (CERD), made up of eighteen country experts acting in an independent capacity, is established under the Convention to monitor states compliance with the obligations of the ICERD. In particular, all states must submit periodic reports to CERD concerning the 'legislative, judicial, administrative and other measures' they have implemented in their jurisdictions to effect their obligations.[5] The Convention also establishes a procedure by which individuals may complain to the Committee about a state's violation of the rights set forth in the Convention.[6]

  4. One of the most controversial provisions of the Convention is Article 4. This Article, which has been described as 'central to the struggle against racial discrimination,'[7] provides the following:

    States parties condemn all propaganda and organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the uiversal Declaration on Human Rights and expressly set forth in article 5 of this Convention, inter alia;

    (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority and hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any group of persons of another colour or ethnic origin, an also the provision of any assitance to racist activities, including the financing thereof;
    (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activites, which promote and incite racial discrimination, and shall recognise participation in such organizations and activities as an offence punishable by law;
    (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

  5. Australia became a signatory to ICERD in 1966 and ratified (or made binding) the Convention in 1975 following the implementation of the Commonwealth Racial Discrimination Act (1975). Upon ratification, the Australian government declared that '... Australia is not at present in a position specifically to treat as offences all the matters covered by article 4(a) of the Convention'. This declaration, or reservation to the Convention was undoubtedly considered necessary due to the fact that the domestic legislation implementing the Convention, the Racial Discrimination Act, was concerned with the prohibition of racial discrimination rather than racial vilification. Although this legislation has been amended to prohibit racial vilification, there has been extensive analysis and argument to the effect that Australia is still failing to properly fulfil its obligation under Article 4(a).[8]

  6. In this paper I will consider instead the Australian position with respect to Article 4(b), which concerns the prohibition of organisations which 'promote and incite' racial discrimination, and the punishment of those who participate in such organisations. An analysis of the provision and its actual obligations will be given, followed by a consideration of the existence of racist organisations in Australia, including the recently formed One Nation political party, and their impact, particularly on the Indigenous Aboriginal peoples. The question of whether Australia is fulfilling it obligations, and possible use of the ICERD complaint mechanism, in the case that it is not, will also be examined.

    International Law

    Article 4(b)

  7. In 1980 the Committee appointed Special Rapporteur Mr Jose D Ingle`s to inquire into and report on the implementation of Article 4 of the Convention.[9] With respect to Article 4(b) it was stated that the provision [10]

    ...categorically requires that two things be done: ie., (i) to declare illegal and prohibit organizations and also organized and other propaganda activities; to (ii) declare participation in such organisations or activities as an offence punishable by law.

  8. In their consideration of this provision the Committee have emphasised that the language used is peremptory, and that legislative measures are required as a matter of course.[11] The provision can be contrasted with Article 2(1)(d) of the Convention which provides that:

    'Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by the circumstances, racial discrimination by any persons, group or organization'.

  9. As Committee Member Michael Banton notes in his book on the Convention, some states have attempted to argue that Article 2(1)(d) also permits them discretion in the manner in which they fulfil their obligations under Article 4(b).[12] The Committee has rejected this view, pointing out that the 'optional character of the use of legislative measures ... under article 2 paragraph 1(d) ... did not override the precise mandatory character of the provision of article 4 (b)..'. [13]

  10. The Committee has also emphasised that 'Article 4 aims at prevention rather than cure' in support of their position concerning the mandatory use of legislative. [14] Consequently, many Committee Members are of the view that Article 4(b) requires states to prohibit, ad limina (from the beginning), the establishment of organisations which promote and incite racial discrimination. [15] It has been pointed out that this understanding is influenced by the danger inherent in allowing such organisations to establish themselves with members and finances, 'until they become so powerful that later legal repression would be difficult and not in time'. [16]

  11. As noted by Theodore Meron, Members of the Committee have emphasised the need for states to prohibit organisations which in fact engage in the promotion or incitement of racial discrimination, even if they don't proclaim this as their objective.[17] According to Mahalic, though, the Committee has shown 'caution' in defining the 'precise degree of permissible conduct'.[18] This is understandable as the question of whether an organisation is promoting and inciting racial discrimination may be difficult to determine. As Natan Lerner comments, there are no difficulties in punishing acts of violence or incitement to such acts, however, 'problems arise form the use of the word 'incitement' when referring to racial discrimination.'[19] Lerner also notes that in the General Assembly debate concerning Article 4, it was argued that 'while incitement was a conscious and motivated act, promotion presented a 'lower degree' of motivation, and might occur even without any real intention or endeavour to incite'.[20] Article 4(b) can be contrasted with 4(c) which is aimed at public authorities and institutions, they are prohibited from either promoting or inciting racial discrimination. There was, though, a proposal made to use the word 'and' in Article 4(c), because it was considered that the word 'promote' by itself, could be too widely interpreted.

  12. The question of what constitutes racial discrimination is relevant here. Racial discrimination is defined in the Convention by Article 1(1) as 'any distinction, exclusion, restriction or preference' on grounds of race, which 'has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms'. Article 4(b) only refers to racial discrimination and not racial hatred, racial superiority or racial violence which are the subject of the opening paragraph of Article 4 and Article 4(a) specifically. However, these forms of discrimination (as they are described in the opening paragraph), are often interconnected with and underlie acts of racial discrimination. This was recognised in the debate concerning Article 4(b), for example, where it was argued that 'the fact of creating an atmosphere of racial hatred would inevitably lead indirectly to racial discrimination'.[21]

  13. Criminal sanctions are required by Article 4(b), which states that participation in such organisations shall be 'punishable by law'. This can be contrasted with other sections of the Convention, which may be dealt with under other branches of law, for example, administrative law, constitutional law and civil law. As Michael Banton confirms, however, this is not the case with respect to Article 4(a) and (b), and sanctions under the criminal law are necessary.[22]

    Implementation of Article 4(b)

  14. The UN Report concerning Article 4 highlights the fact that the majority of state signatories to the ICERD are not fulfilling their obligations under Article 4(b). Australia appears to be one such country. There are no laws aimed at prohibiting organisations which promote and incite racial discrimination and punishing those participating in such organisations.

  15. The Human Rights and Equal Opportunity Commission (HREOC), as part of the 1991 National Inquiry into Racist Violence, noted that there were some laws relating to associations which regulate the purpose for which corporate entities may be formed. However, they confirmed that 'These laws make no specific provision for racist violence, intimidation and harassment..'.[23] Accordingly, their effectiveness depended on the '...actual scope of the laws and on the awareness and commitment of government agencies to apply them for this purpose'.[24]

  16. Despite the lack of legal machinery in Australia, the HREOC Inquiry did not recommend enacting any legislation to prohibit racist organisations.[25] They further stated that criminal penalties for participation in such organisations to be an 'excessive and unnecessary' infringement on the right of association'.[26]

  17. The position of the HREOC, a national body established for the purpose of implementing domestically our international human rights obligations, is somewhat disconcerting. It is also in direct conflict with their call upon the Australian government to'...take steps to remove any qualification placed upon its ratification of CERD and to accept all obligations arising under it'. [27]

  18. As previously stated, many countries are not properly implementing Article 4(b). Indeed, it has been pointed out '... nearly half of the states parties to the Convention do not possess the legal machinery to declare a racist organization per se illegal'. [28] Included in such countries (in addition to Australia) are Canada, New Zealand, and the United Kingdom. These countries have all been criticised by the Committee. For example in response to the 1993 report of the UK, CERD stated that "by not prohibiting the British National Party and other groups and organizations of a racist nature, and by allowing them to pursue their activities, the State party was failing to implement Article 4 ...'.[29] Canada and New Zealand have also had debate with the CERD concerning their failure in this respect, with the Committee requesting that they 'make provision for the dissolution of such organizations, in full compliance with article 4(b) of the Convention'.[30] The USA, which only ratified the Convention in 1994, made a number of reservations to the provisions of ICERD, including Article 4, which it views as inconsistent with the constitutional protected right to free speech.[31]

  19. Australia's position with respect to Article 4(b) was clarified in the 9th periodic report to the Committee in accordance with Article 9 of the Convention.[32] In the report, the Australian government indicated its intentions to remove its reservation to Article 4(a), following the passage of legislation prohibiting racial hatred and vilification, being amendments to the Racial Discrimination Act 1975 and the Crimes Act 1914 .[33] According to the government, the proposed legislative amendments would 'adequately address Australia's obligations under article 4(b)'. However, the reasoning advanced in support of this view is poor and it is simply stated that by criminalizing the activities of the members of a racist organisation, it was 'unnecessary to ban racist organisations'. It was further stated that an interpretative declaration to this effect would be made by Australia when the reservation to article 4(a) is removed.[34]

  20. Committee member Mr Diaconu rejected this reasoning, stating that he ' ... could not go along with the argument that it would be unnecessary to ban organizations whose main function was the public promotion of racism once their activities were declared illegal'.[35] Australia's approach is similar to that of New Zealand, which has been criticised and rejected by the Committee.[36] As Mahalic argues, Article 4(b) categorically requires that states parties outlaw racist organisations as well as their activities and that they '...do not have a choice between these two tasks, but are obligated to undertake both'.[37] The authors further note that this understanding of the Committee is supported by the preparatory work of Article 4(b) in which an amendment to declare illegal and prohibit only the 'activities' of the offending organisation, rather than the organisation itself, was rejected. [38]

  21. Although Australia and many of the world's powerful countries have not enacted legislation in compliance with Article 4(b), there are states who have made legislative attempts to fulfil their obligations. This is particularly true of Germany, which has experienced both the unfortunate history of Nazism and anti-Semitism and contemporary growth of the neo-Nazi movement. The Basic Law (or Constitution) of Germany was adopted following World War II and aimed to eradicate Nazism and the possibility of future political parties with the same goals and values as the Nazi party.[39] Article 21 of the Basic Law is aimed specifically at political parties and provides that 'parties which, by reason of their aims or the behaviour of their adherents, seek to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany, shall be unconstitutional.' Associations which promote and incite racial discrimination are prohibited by Article 9 which reads 'All associations are prohibited whose purpose or whose activity run counter to the criminal laws or are directed against the constitutional order or opposed to the principle of understanding among peoples'. The Federal Constitutional Court is empowered to decide on constitutionality of such parties or associations.

  22. An example of the use of the Basic Law in this respect concerned the banning in 1952 of the Socialist Reich Party, a successor of the Nazi Party which attempted to carry on with old National Socialist traditions. [40] The Federal Constitutional Court in banning the party, considered that it was not merely the official objectives and aims of the party which were of relevance, as these could be easily disguised, but rather the behaviour of the party officials and followers, as this reflected the parties intentions most accurately.[41] The German government has banned at least seven right wing extremist groups in the 1980's, and at least one group, the National Front, as recently as 1992.[42] Also, the Office for the Protection of the Constitution annually lists parties, groups and associations which are classified as either extreme right or extreme left. There has been some criticism of the approach of the government, however, and it is argued that they do not move as energetically against the right as they did in the first few years of the existence of the FRG.[43]

  23. Israel has also had to deal with this issue following the election to Parliament of right wing extremist Meir Kahane in 1984. Kahane proposed discriminatory legislation which for example, placed residential restriction on non-Jews, prohibited intermarriage, proposed to separate students in educational institutions and other mixed institutions.[44] The Central Elections Committee decided to disqualify Kahane's party, Kach, on the grounds that 'the implementation of the party's principles would constitute a threat to the maintenance of the democratic regime in Israel and is liable to a breach of public order'. However, the Supreme Court found that the Committee had overstepped its authority and had no power to disqualify the party. Kahane and his party were disqualified subsequent to an amendment to Israel's Basic Law which prohibited candidates if incitement to racism is expressed or implied in their aims or actions. [45] The Israeli legislation does not, however, actually prohibit and declare illegal racist organisations (and/or political parties). It provides, rather, a mechanism by which such parties may be disqualified from parliamentary elections. As such, it would not be an adequate implementation of Article 4(b).

    The Australian Situation

    The National Inquiry into Racist Violence

  24. The existence of racist organisations in Australia was considered by the Human Rights and Equal Opportunity Commission in 1991 as part of their National Inquiry into Racist Violence. [46] The Inquiry was made aware of a number of extremist racist groups, in particular National Action and the Australian Nationalist Movement.[47]

  25. National Action (NA), which has been active in Australia since the early 1980's, has branches in most Australian states. It's philosophy is based on what it claims is Australian nationalism, 'Australia for Australians', and it is strongly opposed to multiculturalism. The inquiry noted that the organisation has been subject to police attention over the years, that a number of its members have criminal convictions, and that members who resort to violence are considered 'political activists'. The Inquiry heard detailed evidence of attacks against people or groups organised to oppose racism, notably carried out by the National Action group. These acts included physical and verbal attacks, death threats, rocks being thrown at windows, car tyres being slashed, swastikas and other acts of vandalism, racist mail and poster campaigns. A number of journalists and academics have also been subject to similar treatment.[48]

  26. The Australian Nationalist Movement, a splinter group of National Action, was founded in 1984 in Perth, Western Australian.[49] The movement, whose philosophy is anti-black, anti-Semitic and Anti-Asian, led a campaign of terror in Perth for some time until the arrests and imprisonment of its leader. Activities ranged from extensive racist poster campaigns and assaults on those who sought to remove the offensive material, to the bombings of Chinese restaurants, and the murder of a member suspected of being a police informant. Although the WA parliament enacted legislation prohibiting racist publications and material in response to the racist poster campaign, the organisation itself was never prohibited and declared illegal and the leaders of the association were imprisoned under general provisions of the State Criminal Code.[50]

  27. The Inquiry also discussed another well known right wing group, the League of Rights, whom they described as 'undoubtedly the most influential and effective, as well as the best organised and most substantially financed, racist organisation in Australia'.[51] This organisation, initially founded in the 1940's and established as a national organisation in the 1960's, is said to represent the 'respectable face of racism' incorporating philosophies included family values, patriotism and nationalism as well as the subtle promotion of racist ideology.[52]

  28. The approach of police to National Action and Australian Nationalist Movement was considered inadequate, and there was a general view that police had not taken complaints seriously, had denied the racial motivation of the acts, and that few of the complaints actually resulted in criminal charges.[53] By contrast, it was noted that police intelligence took a far more active approach to such groups. In fact, the peak security body, the Australian Security and Intelligence Organisation (ASIO) appeared to take such groups very seriously, stating in their 1989-90 annual report that:[54]

    The only discernible threat of politically motivated violence comes from the racist right. This has suffered serious setbacks in the past year with the arrest of a large number of leading members of the two most dangerous groups. Their capacity to recover from their setbacks is yet to be shown. However, they appear to have established themselves as fairly durable political entities and will probably persist for some time as sources of communal and politically motivated violence.

  29. The Inquiry confirmed that '... there were numerous incidents presented to the Inquiry which involved persons identifying themselves as the Klu Klux Klan (KKK).'[55] However, it was found that there was no evidence that the KKK existed at an organisational level in Australia. Nonetheless, there were in addition to the incidents apparently presented to the Inquiry itself, accounts given by Aboriginal people from Queensland, Western Australia, New South Wales and the Northern territory of acts of racist violence and intimidation seemingly carried out by the KKK. It has also recently been confirmed that a major branch of the KKK (the Imperial Klans of America) does in fact exist in Australia, and has established branches in New South Wales, Victoria and Queensland.[56] The Aboriginal and Strait Islander Commission (ATSIC) in response has called on the Government to consider urgently ways of banning the organisation.[57]

  30. The National Inquiry made a number of findings with particular respect to racist organisations. These were as follows:[58]

    Pauline Hanson and the One Nation Party

  31. In September 1996 a disendorsed Queensland Liberal candidate, Pauline Hanson, was elected to Federal parliament following a campaign which focussed on race issues, particular with respect to the Australian Aboriginal people. In her maiden speech to Parliament she claimed to be '...fed up to the back teeth with the inequalities that are being promoted by the government and paid for by the taxpayer under the assumption that Aboriginals are the most disadvantaged people in Australia'.[59] Native title, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Commission were singled out for attack. By 1997 Hanson had formed the One Nation Party with branches throughout all of Australia. Throughout the years 1996, 1997 and 1998, Hanson and the One Nation Party gained considerable and widespread national and international media attention.

  32. Shortly after her election to Parliament, Pauline Hanson published and launched a book named 'The Truth' which makes false claims of Aboriginal cannibalism. In particular, that Aboriginal women ate their babies, that tribes cannibalised their elderly members, and also claims of Aboriginal cannibalism against Chinese gold miners. Hanson informed the media that the purpose of the cannibalism claims were to 'demonstrate the savagery of Aboriginal society'.[60] One Nation party director David Ettridge, further explained that the books claims were intended to correct 'misconceptions' about Aboriginal history which are apparently relevant to Aboriginal welfare funds, 'The suggestion that we should be feeling some concern for modern day Aborigines for suffering in the past is balanced a bit by the alternative view of whether you can feel sympathy for people who eat their babies' .[61]

  33. In 1992 the Australian High Court recognised, for the first time, Aboriginal peoples proprietary interest in traditional lands. Native title, as the concept is known, had been previously recognised in all common law jurisdictions, and there was strong legal precedent and moral grounds for its recognition in Australia.[62] However, Pauline Hanson and the One Nation Party campaigned extensively on this issue, claiming that native title is an 'Aboriginal land grab' and 'scam' perpetuated against non-Aboriginal Australians. She also stated that that there is a 'war of Aboriginal greed' and that Aboriginal people will own up to 80% of Australia. [63]

  34. Many Australians now acknowledged the discriminatory and harmful government practices concerning the forcible removal of Aboriginal children from their families. This issue has been comprehensively examined by the Human Rights and Equal Opportunity Commission in their Report 'Bringing Them Home' in which it was found that:

    'Indigenous families and communities have endured gross violations of their human rights. These violations continue to affect Indigenous people's daily lives. They were an act of genocide, aimed at wiping out Indigenous families, communities and cultures ...[64]

    Pauline Hanson and One Nation dismiss this history, though, as a 'carefully constructed campaign' which is aimed at 'raising guilt and ... willingness to compensate the Aborigines'.[65]

  35. The Aboriginal and Torres Strait Islander Commission, Australia's peak Aboriginal body, has been repeatedly attacked by One Nation and Hanson who claim, without evidence or foundation, that it is a corrupt body which misappropriates funds.[66] Yet ATSIC is subject to the same accountability as any other public sector organisation, and in 1996 the organisation was subject to a investigation by the federal government which found no evidence of corruption. [67]

  36. Hanson and One Nation have also claimed that there will be 'a civil war' in Australia and that Aboriginal communities were arming themselves, 'gunrunning' and linked to well known terrorists. [68] In actual fact, it is One Nation who have courted disaffected gun owners, whose members are affiliated with private militia, and who have armed themselves with 'truckfulls' of weapons for 'when the time comes'.[69]

  37. Hanson has even questioned whether Australian would have voted 'yes' in the 1967 referendum, which was aimed at including Aboriginal people in the national census granting the Commonwealth power to make laws concerning them. She mistakenly construed the referendum as giving Aboriginal people the right to vote (which had actually been granted under State legislation shortly before this period) claiming that '... if Australians knew today what was foreshadowed for them, they would have thought twice about casting that vote ...'. [70]

  38. Pauline Hanson has consistently rejected claims that she is racist or prejudiced against Aboriginal people, claiming instead that 'no one group of Australian must be given rights over another. All Australians must be treated equally and the same'. [71] Special measures to address Aboriginal disadvantage are dismissed as 'reverse racism'. It is non-Aboriginal people, according to Hanson, who are unequal and being discriminated against.[72] And yet the statistics clearly show that Aboriginal people are not equal to non-Aboriginal Australians, as the Aboriginal and Torres Strait Islander Commission point out, [73]

  39. There can be little doubt that Aboriginal disadvantage is, as described by our Governor-General, Sir William Deane 'devastating in its extent and entrenched in its nature. It extends across the whole spectrum of human life.'[74]

  40. The response to Hanson and One Nation by the Australian Government, led by Liberal Prime Minister John Howard, has been severely criticised by Aboriginal people. Indeed, the initial reaction to Hanson was an overly sympathetic one, in which her right to 'free speech' was defended. In the month that she was elected to Parliament, the Prime Minister stated that he welcomed '... the fact that people can now talk about certain things without living in fear of being branded as a bigot or as a racist ...' [75] Subsequently, however, the Prime Minister has condemned Hanson's views as 'empty populism, cheap sloganeering and bitter and divisive recriminations', and further that she is '... wrong when she suggests that Aborigines are not disadvantaged'. [76]

  41. Pauline Hanson was not re-elected to parliament in the 1998 Federal elections, and there has been considerable decrease in the activity of the party and consequent media attention. As Dr. Nick Economau cautions, however, 'it may be premature to write One Nation off as a totally spent force'.[77] Although Hanson herself failed to secure a seat, the One Nation party polled well and secured more than 8% of the primary national vote (polling as high as 14% in Queensland).[78] One Nation Queensland senate candidate, Heather Hill, was successfully elected to the powerful Senate. And there can be no doubt the situation would have been different if not for the fact that the major parties did agree, after extensive lobbying, to place One Nation last in their voting preferences.

    Aboriginal people's experiences of racism and racial violence

  42. The National Inquiry into Racist Violence found racism and racist violence against Aboriginal people to be 'endemic' and 'widespread'.[79] Disturbingly, Aboriginal people across Australia believed that racism and racist violence directed toward them increased during the Hanson and One Nation period. To what extent this occurred is probably immeasurable and unknowable. However, the perception is a very real one.

  43. For example, in a complaint made by the Nyungah Circle of Elders in 1997 to the Human Rights and Equal Opportunity Commission concerning Pauline Hanson, it was said that, [80]

    '... racist incidents and violence has grown since Pauline Hanson started, and we have experienced an increase in racist incidents. Our children and young people are frightened to travel on public transport. Aboriginal people have made complaints to us that they have been chased down the street. There have been racist incidents in doctors surgeries and hospitals since she started.'

  44. In June 1998 the Perth Aboriginal Medical Service (PAMS) was subject to a serious bombing threat in which 17 kilograms of explosives were left on the doorstep of the organisation.[81] Later that day, the service received the following facsimile, apparently from the Western Australian division of the One Nation party,[82]

    Perhaps we should have a National Sorry Day for Aboriginal people to apologize to the rest of the Australian community, for all the muggings, robberies, home invasions, car thefts, murders, child-rapes done by Aborigines over the years. Apologize for Paris Way and all other trashed state housing. Apologize for millions of taxpayers money poured down the drain in booze etc. Apologize for terrorizing the trains and train station and making the train unusable at night. When we come to power you people will have something to be 'sorry' about if you don't learn how to behave decently.

  45. According to the Aboriginal Independent newspaper stated, the success of One Nation in the Queensland state election 'resulted in an indirect string of violent reaction against Aboriginal people'. [83] In addition to the bomb threat against the Aboriginal Medical Service they described the views of many Aboriginal people that there had been an increase in racial violence. For example, Aboriginal Christian leader Peter Walker felt that 'There is the same feeling in the air in Queensland as there was when they (non-Aboriginals) went out shooting Aboriginals early in the century ...'. [84] Aboriginal elder Joe McGuiness from the Northern Territory told the newspaper that the rise in popularity of the One Nation party had seen a return of racial hatred in Australia unprecedented since the 1960's: 'The system that we're governed under allows this sort of thing to happen here and there you see, and some of these people (one Nation supporters) could be students of Hitler, you know? We fought a war over Nazism in Germany, and this is how I see Australia at the moment'.[85]

  46. The Aboriginal Independent newspaper itself, during this same period, received correspondence from an association calling themselves the White Australian Revolutionaries (W.A.R).[86] This group claimed to be '...sick of loosing our land to the aboriginals', apparently because 'WHITE MEN BUILT THIS COUNTRY, WHITE MEN ARE THIS COUNTRY!'. Pauline Hanson is described as a 'great Australian patriot', and W.A.R declare that they are 'ready to begin the struggle she has called for'.

  47. A string of violent attacks against Aboriginal people carried out by the Klu Klux Klan in northern Queensland has been recently publicised. Families have complained of awaking to find burning crosses on their front lawns, men smashing houses with iron bars, threats to ''burn you niggers'', and youths being subject to attempted hit and runs by motor vehicles. Families have also claimed that the incidents have not been fully investigated by police, who in response have described media reports of the KKK are a 'beat up'. Research by local universities found however, that there was a 'worrying pattern of racialised vigilantism' in northern Queensland and recent revelations of the KKK itself confirm its presence in Qld. Aboriginal people in Qld have also expressed the view that this rise of physical and verbal abuse can be linked to the growth of the One Nation party's popularity. [87]

    Complaint Mechanism under the ICERD

  48. Australia is bound by the obligations of Article 4(b), it has not made any reservation to this provision and therefore must ensure that it is implemented domestically through legislative measures. As I have shown in this paper, however, this has not occurred and it appears that the government has no intention of doing so.

  49. This raises the issue of compliance with treaty obligations. There are three main ways in which this occurs.[88] Firstly, through the reporting mechanism under Article 9 which requires states to report to CERD on the 'legislative, judicial, administrative and other measures' they have implemented in their jurisdictions to effect their obligations. As we have already seen, Article 4(b) has arisen during discussion with the Australian representative, and there has been some criticism of Australia by at least one member of the Committee.[89]

  50. The second manner in which states are encouraged to comply with their Treaty obligations is through the states complaint mechanism established under Article 11 of ICERD. According to this Article 'If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee'. States are given the opportunity to negotiate the matter between themselves, failing which they have the right to refer the complaint again to the Committee for their determination. However, this procedure has never actually been invoked by any state party.[90]

  51. The third way in which a country's compliance with CERD is monitored is through the use of the individual complaint mechanism established under Article 14. This mechanism is only open to individuals where a declaration recognising the competence of the Committee has been made by the country concerned. The procedure is now available to Australian individuals (or groups of individuals) as such a declaration was made by our government in 1993. This is quite significant because although most countries have been eager to ratify the Convention, they were reluctant to recognise the competence of the Committee in this respect.[91] Consequently, the Committee has not had the opportunity to determine many complaints and the development of case law concerning the ICERD is limited.[92]

  52. As Sarah Pritchard and others point out, the Committee is not a court and it cannot deliver legally binding decisions. Instead it adopts 'opinions' concerning individual complaints and makes recommendations to states. Identified violations of the Convention are rectified by ' ... the State Party's good will, the power of publicity and the pressure of international shame'.[93]

  53. The most significant restriction upon the individuals right to lodge an Article 14 complaint is the requirement that all 'available local remedies' be exhausted.[94] Other conditions concerning a communications admissibility are: there must be a violation of a right contained in the Convention; the communication must be in writing and must not be anonymous; the communication must be made by an individual or group of individuals (and not, for example, by a non-government organisation); the author of the communication must be a 'victim' of a alleged violation of the Convention; the complaint can only concern a violation which occurred after the jurisdiction of the Committee was recognised by the state party; the communications must be submitted within 6 months of the exhaustion of local remedies.[95]

  54. Although the requirement to exhaust domestic remedies is usually onerous, this may not be so where there is no applicable legislation. This is arguably the case in Australia, which has not legislated to prohibit racist organisations. Legislation concerning the registration of political parties does not appear to offer any remedy either. For example, in 1997 the Queensland Chinese community attempted to oppose the registration of the One Nation party under the Commonwealth Electoral Act 1918.[96] They argued that political parties whose ideology and actions are prohibited by the Racial Discrimination Act 1975 and the Racial Hatred Act 1995, should not be registered. The objection was not upheld by the Electoral Commission, on the basis that the Act does not give them any discretion to deny registration to a party on this ground.

    Conclusion

  55. It appears that Article 4(b) of the ICERD is a neglected treaty provision, which is somewhat ironic considering that the Convention is said to have been drafted in response to anti-Semitism and the apartheid regime, both forms of discrimination involving racist organisations. Australia, like most state signatories, is not observing its obligations, although it is legally bound to do so. As the CERD Committee have pointed out, in their study concerning Article 4: 'It is an accepted principle that treaties should be observed in good faith by contracting parties. Pacta sunt servanda'. The Committee have also issued a General Recommendations (or opinion) emphasising the importance of Article 4, including Article 4(b) and its mandatory nature.[97]

  56. There are organisations in Australia which do promote and incite racial discrimination, some more directly and explicitly than others, against the Aboriginal people. Thus far, these organisations and their members have been largely immune from the law. It remains to be seen whether the Treaty mechanism described, in particular the individual complaint procedure, will effect any improvement on this situation.

Bibliography

ADC Briefing, 'Farewell Pauline Hanson? A brief note about One Nation and the 1988 election', Vol 2, No.5 December 1998 - January 1999.

Banton, Michael 'International Action Against Racial Discrimination',1996, Clarendon Press

Cromer, Gerald 'Racial Incitement in Israel' in 'Under the Shadow of Weimar. Democracy, Law, and Racial Incitement in Six Countries' (ed) Greenspan, L & Levitt, C, Praegar, 1993, USA Grattan,

Michelle, 'Pauline Hanson's Hijack of John Howard' in 'Two Nations, The Causes and Effects of the Rise of the One Nation Party in Australia', 1988, Bookman Press, Melbourne.

Human Rights & Equal Opportunity Commission, 'National Inquiry into Racist Violence', 1991, Commonwealth of Australia Human Rights & Equal Opportunity Commission, 'Bringing Them Home: A guide to the findings and recommendations of the National Inquiry into the separation of Aboriginal and Torres Strait Islander children from their families', 1997, Commonwealth of Australia.

Lerner, Natan 'The U.N Convention on the elimination of all forms of racial discrimination', 1980, Sijthoff & Noordhoof.

McDougall, G 'The International Convention on the Elimination of All Forms of Racial Discrimination (CERD): Toward a Meaningful International Regime', (1997) 40 Howard Law Journal 571.

Mahalic, Drew & Joan Gambee 'The Limitation Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination', Human Rights Quarterly 9 (1987) 74-101.

Meron, T 'The Meaning and Reach of the International Convention on the Elimination of All Form of Racial Discrimination', 1985 (79) The American Journal of International Law 283.

Pritchard, S Sharp, S & Rodrigues, S 'Petitioning the CERD Committee. Individual Complaints under the Racial Discrimination Convention', Australian Human Rights Centre, Human Rights Booklet No2, August 1998.

United Nations, CERD 'Positive Measures designed to eradicate all incitement to, or acts or, racial discrimination. Implementation of the ICERD Article 4', E.85.XIV.2.

United Nations Centre for Human Rights, 'The Committee on the Elimination of Racial Discrimination', Fact Sheet No. 12, 1991.

Weiss, Davis E 'Striking a Difficult Balance: Combating the Threat of Neo-Nazism in Germany While Preserving Individual Liberties', 27 Vand. J. Transnat'l L. 899,166

Wetzel, Juliane 'The Judicial Treatment of Incitement against Ethnic Groups and the Denial of National Socialist Mass Murder in the Federal Republic of Germany' in 'Under the Shadow of Weimar. Democracy, Law, and Racial Incitement in Six Countries' (ed) Greenspan, L & Levitt, C, Praegar, 1993, USA

Notes

[1] This is so despite the fact the principal organ of the United Nations, the General Assembly, is comprised of nation states, many of whom have dispossessed and discriminated against their own Indigenous peoples.

[2] This comprehensive report 'Study of the problem of discrimination against indigenous populations' E/CN.4/Sub.2/1986/7,was submitted in five volumes during the years 1981-1984.

[3] As of December 1997.

[4] United Nations Centre for Human Rights, 'The Committee on the Elimination of Racial Discrimination', Fact Sheet No. 12, 1991 at p 2.

[5] Article 9 of ICERD.

[6] Article 14 of ICERD.

[7] McDougall, G 'The International Convention on the Elimination of All Forms of Racial Discrimination (CERD): Toward a Meaningful International Regime', (1997) 40 Howard Law Journal571 at 587.

[8] See for example, The Human Rights and Equal Opportunity Commission, 'Racial Discrimination Act 1975: A Review', December 1995 at Chapter 2.

[9] United Nations, CERD 'Positive Measures designed to eradicate all incitement to, or acts or, racial discrimination. Implementation of the ICERD Article 4', E.85.XIV.2.

[10] See n9 at p25

[11] Banton, Michael 'International Action Against Racial Discrimination', 1996, Clarendon Press Oxford, at p205

[12] See n7 at p 204.

[13] See n7 at p205.

[14] See n7 at p204.

[15] Mahalic, Drew & Joan Gambee 'The Limitation Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination', Human Rights Quarterly 9 (1987) 74-101 at p 99.

[16] See n11 at p100.

[17] Meron, T 'The Meaning and Reach of the International Convention on the Elimination of All Form of Racial Discrimination', 1985 (79) The American Journal of International Law 283 at 298.

[18] See n15 at p 98.

[19] Lerner, Natan ' The U.N Convention on the elimination of all forms of racial discrimination', 1980, Sijthoff & Noordhoof, at p 49.

[20] See n19 at p50.

[21] See n19 at 52.

[22] See n7 at 205.

[23] Human Rights and Equal Opportunity Commission, 'National Inquiry into Racist Violence', 1991, Commonwealth of Australia at p 277.

[24] See n23 at p277.

[25] See n23 at p 297.

[26] See n23 at p297.

[27] See n23 at p 296.

[28] See n15 at p99.

[29] See n9 at p 206.

[30] See n5 at p 30 & 32.

[31] See n7 at 587.

[32] Ninth periodic reports of States parties due in 1992: Australia. 23/09/93 CERD/C/223/Add.1

[33] The legislation actually passed, The Racial Hatred Act of 1995, was substantially amended by the Senate, with the rejection of the criminal provisions (as required by Article 4), relating to extreme hatred and vilification.

[34] The reservation was never removed by the Australian government, and no interpretative declaration to this effect has been made by the Australian government.

[35] See n32.

[36] See n5 at p31.

[37] See n11 at p99.

[38] See n13 at p99.

[39] Weiss, Davis E 'Striking a Difficult Balance: Combating the Threat of Neo-Nazism in Germany While Preserving Individual Liberties', 27 Vand. J. Transnat'l L. 899, 166 at 192.

[40] Wetzel, Juliane 'The Judicial Treatment of Incitement against Ethnic Groups and the Denial of National Socialist Mass Murder in the Federal Republic of Germany' in 'Under the Shadow of Weimar. Democracy, Law, and Racial Incitement in Six Countries' (ed) Greenspan, L & Levitt, C, Praegar, 1993, USA at pp83-106.

[41] See n40 at p85.

[42] See n39 at p 198.

[43] See n40 at p94.

[44] Cromer, Gerald 'Racial Incitement in Israel' in 'Under the Shadow of Weimar. Democracy, Law, and Racial Incitement in Six Countries' (ed) Greenspan, L & Levitt, C, Praegar, 1993, USA at p131 -147.

[45] See n44 at p 138.

[46] Human Rights and Equal Opportunity Commission, 'National Inquiry into Racist Violence' 1991, AGPS, Canberra

[47] See n46 at p 198 - 203.

[48] See n46 at 191 -192.

[49] The history of the organisations, and its impact on the Perth multicultural community is examined in the documentary film' Supergrass', by Jan Mayman and David Bradbury.

[50] These members continue their threats from prison and claim that the association is 'alive and well': The West Australian newspaper, 'Bars can't constrain racist's florid barbs', 25 May, 1999 at p 16.

[51] See n34 at p 200-203.

[52] See n34 at p 201.

[53] See n46 at p194-195.

[54] See n46 at p 223.

[55] See n46 at 78-79.

[56] The leader of the Australian 'Klavern', Mr Peter Coleman, has been associated with the Australian Nationalist Movement and the One Nation Party: The Sydney Morning Herald newspaper , 'Web of Hate: meet Sydney's KKK' by Greg Roberts, 2 June 1999.

[57] See n56.

[58] See n34 at p 224.

[59] http://www.gwb.com.au/gwb/news/photo/phtalk.html

[60] The West Australian 'Cannibal Claim Furore', April 23 1997.

[61] The Age, 'Hanson book claims Aborigines ate their children', 22 April 1997.

[62] See for example, Brennan J 'One Land - One Nation, Mabo - Towards 2001', 199, UQP, Qld.

[63] Hanson, 'Aboriginal land grab was the object of a shameless PR campaign' at http://www.gwb.com.au/onenation/press/041297.html

[64] Human Rights & Equal Opportunity Commission, 'Bringing Them Home: A guide to the findings and recommendations of the National Inquiry into the separation of Aboriginal and Torres Strait Islander children from their families', 1997 at p 33.

[65] 'The UN Draft Declaration on the Rights of Indigenous Peoples' at http://www.gwb.com.au/onenation/press/landttle.html

[66] The West Australian, 'Hanson: I'll quit if I'm wrong on ATSIC', July 18 1998.

[67] Green Left Weekly 'One Nation is racist: the evidence Hanson can't deny', 5 August,1998.

[68] The Australian 'Hanson claims Aborigines are stockpiling weapons' 16 July 1998.

[69] Sydney Morning Herald 'We're armed and ready, says One Nation candidate' 12 June 1998.

[70] The West Australian, 'PM attacks speech over Aboriginal vote', 16 July 1998.

[71] See n59.

[72] See n59.

[73] Aboriginal and Torres Strait Islander Commission ' As a Matter of Fact' at http://www.atsic.gov.au/fact_v_myth/amof/fact99/myth2_2.htm

[74] See n73.

[75] Grattan, Michelle, 'Pauline Hanson's Hijack of John Howard' in 'Two Nations, The Causes and Effects of the Rise of the One Nation Party in Australia', 1988, Bookman Press, Melbourne, at p81.

[76] The Koori Mail, 'Howard finally condemns Hanson's views', 21 May, 1997.

[77] ADC Briefing, 'Farewell Pauline Hanson? A brief note about One Nation and the 1988 election', Vol 2, No.5 December 1998 - January 1999 at p4.

[78] This vote resulted in the flow of more that $3 million taxpayer dollars to the party.

[79] See n46 at p 119-122.

[80] Letter to the HREOC from the Nyungah Circle of Elders dated 23.4.97.

[81] The Aboriginal Independent 'Right Lunacy' June 24, 1998.

[82] The party, whose letterhead was used on the facsimile, denied any connection with it.

[83] See n81.

[84] See n81 'A Nation Fragmented' at p4.

[85] See n81 'Return of Nazism: Elder' at p4.

[86] See n81.

[87] See The Age, 'Racial violence hits far north' by Greg Roberts, 2 June 1999.

[88] See Pritchard, S Sharp, S & Rodrigues, S 'Petitioning the CERD Committee. Individual Complaints under the Racial Discrimination Convention', Australian Human Rights Centre, Human Rights Booklet No2, August 1998.

[89] See the comments of CERD member Mr Diaconu, reported at p5.

[90] See n88 at p 20.

[91] See n88. As of December 1997 only 24 of the 150 parties to CERD have made such a declaration.

[92] Since 1982, CERD has only received 8 communications, and the majority of these were considered inadmissible.

[93] See n88at p 34.

[94] However, this requirement may be waived where 'the application of the remedy is unreasonably prolonged': Article 14(7)(a).

[95] See n88 at 24-28.

[96] See letter from Queensland Chinese Community Voice to the Australian Electoral Commission dated 25 April 19.

[97] 97 CERD General Recommendation I.

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