Print friendly version

Australian legislation and international law

International law relating to racism and discrimination

• International conventions and declarations
• Universal Declaration of Human Rights
• International Convention on the Elimination of All Forms of Racial Discrimination

Countering racism and eliminating racial discrimination continue to be at the forefront of the work of the United Nations. Through the work of the United Nations, international laws have been developed which require countries to work towards the elimination of all forms of racial discrimination. These international laws, called treaties or conventions, apply throughout the world. A treaty or convention operates like a contract. When a country, such as Australia, becomes a party to a convention, it is bound to act in accordance with the rules contained in that convention. Australia is a party to a number of anti-racism conventions, which impose obligations on Australia in regard to racism and racial discrimination in schools and other contexts.

In addition to international treaties and conventions, there are several international declarations, which express the international community's aspirations to eliminate racial discrimination. The declarations are statements of principles, which are developed through the United Nations or other international bodies such as the United Nations Education, Social and Cultural Organisation (UNESCO). These international declarations differ from treaties because they do not always impose binding international legal obligations. However, these declarations are morally binding and have much influence over countries in setting acceptable standards of human rights protections.

International conventions and declarations

Australia is a party to the following conventions:

Note: The dates in brackets indicate the year each convention or declaration was proclaimed and or adopted by the UN. This may differ from the year in which they came into force in Australia.

• International Labour Organisation Discrimination (Employment and Occupation) Convention (No. 111) (1958) obliges Australia to ensure that workers are not discriminated against in employment.
• UNESCO Convention Against Discrimination in Education (1960) prohibits discrimination in education on the basis of race and other factors, and obliges Australia to apply policies which promote equality of opportunity and treatment.
• International Convention on the Elimination of All Forms of Racial Discrimination (1965) obliges Australia to eliminate racial discrimination and promote understanding among all races, including in education and training.
• International Covenant on Economic, Social and Cultural Rights (1966) guarantees rights in relation to an individual's economic and social circumstances and their right to participate in the nation's cultural life. Article 13 obliges Australia to recognise that education is a right irrespective of race and that education shall strengthen respect for human rights and fundamental freedoms. Further, that education shall enable all people to participate effectively in a free society, and promote understanding, tolerance and friendship among racial, ethnic and religious groups.
• International Covenant on Civil and Political Rights (1966) obliges Australia to respect a range of rights dealing with government and civic life such as the right to life, the right to vote and the right to equality before the law. These standards inform the rights component of civics education. Importantly, Article 26 states that persons are equal before the law. Further, that the law should prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on the ground of race.
• Convention on the Rights of the Child (1989) obliges Australia to ensure a child's right to education irrespective of race.
• First Optional Protocol to the International Covenant on Civil and Political Rights (1991) allows individuals to lodge complaints with the United Nations Human Rights Committee for alleged breaches of the International Covenant on Civil and Political Rights, when all Australian remedies have been exhausted.

The Declarations which relate to these issues include:

• Declaration of the Rights of the Child (1959) which like the Convention on the Rights of the Child note the importance of ensuring non-discrimination in education.
• Declaration on the Elimination of All Forms of Racial Discrimination (1963) advocates the elimination of racial discrimination in all areas of public life including education.
• Declaration on the Promotion among Youth of the Ideals of Peace, Mutual Respect and Understanding between Peoples (1965) advocates that young people shall be brought up in the knowledge of the dignity and equality of all men, without distinction as to race, colour, ethnic origins or beliefs, and in respect for fundamental human rights and for the right of peoples to self-determination.
• UNESCO Recommendation concerning Education for International Understanding, Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms (1974) deals with the importance of promoting racial tolerance in education.
• UNESCO Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War (1978) deals with the role of the mass media in countering racism in the media.
• UNESCO Declaration on Race and Racial Prejudice (1978) deals with the rights of people to maintain and develop distinct cultural identities.
• Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981) deals with the elimination of discrimination and the protection of the rights of people's religious beliefs.
• Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1992) deals with the elimination of discrimination and the protection of the rights of people of certain minority groups.

The United Nations is currently working on a declaration with respect to the rights of Indigenous peoples.

Universal Declaration of Human Rights

The first significant international human rights instrument developed by the United Nations was the Universal Declaration of Human Rights (UDHR). The UDHR was adopted by the General Assembly of the United Nations, with Australia's support, in the aftermath of the Second World War in 1948. The UDHR recognises that if people are to be treated with dignity, they require economic rights, social rights including education, and the rights to cultural and political participation and civil liberty. Article 2 asserts that everyone is entitled to these rights "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

As a United Nations declaration, the UDHR does not create binding legal obligations on the member states of the United Nations. It is referred to as an aspirational statement because it describes the human condition to which civilised nations should aspire. Since 1948, the UDHR has been the source of the later legally binding international human rights conventions. The UDHR has great moral force and is sometimes referred to as the "blueprint" document for human rights.

International Convention of the Elimination of All Forms of Racial Discrimination

The International Convention on the Elimination of All Forms of Racial Discrimination was one of the first human rights treaties to be adopted by the United Nations (UN). The Convention is widely supported with more than 150 countries having ratified it. Australia ratified the Convention on 30 September 1975.

When a State, such as Australia, ratifies the Convention, it undertakes:

• not to engage in any act or practice of racial discrimination against individuals, groups of persons or institutions, and to ensure that public authorities and institutions do likewise
• not to sponsor, defend or support racial discrimination by any persons or organisations
• to review government, national and local policies, and amend or repeal laws and regulation which create or perpetuate racial discrimination
• to prohibit and put a stop to racial discrimination by persons, groups and organisations
• to prohibit organisations and propaganda that promote racial superiority, racial hatred, racial violence or racial discrimination (Australia however, has submitted a reservation to this requirement and is not fully bound by it)
• to ensure effective protection and remedies for victims of racial discrimination
• to take special measures, as necessary, to ensure that disadvantaged racial groups have full and equal access to human rights and fundamental freedoms, and
• to combat prejudices that lead to racial discrimination, and eliminate the barriers between races, through the use of education and information, and by encouraging integrationist or multiracial organisations and movements.

Under the Convention, racial discrimination occurs when a person or group is treated differently because of their race, colour, descent, national origin or ethnic origin and this treatment impairs, or is intended to impair their human rights and fundamental freedoms. The human rights and fundamental freedoms are set out in Article 5 of the Convention and include the following rights:

Civil and political rights in particular:

• equal treatment before the courts;
• protection by the Government against violence or bodily harm;
• right to participation in elections and to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;
• freedom of movement and residence;
• right to own property alone as well as in association with others;
• right to freedom of thought, conscience, religion opinion and expression and of peaceful assembly and association.

Economic, social and cultural rights, in particular rights to:

• work
• housing
• public health, medical care, social security and social services
• education and training;
• equal participation in cultural activities;
• access to any place or service intended for use by the general public.

The Convention indicates that there is a type of act, called a ‘special measure’, which is not discriminatory, even though it involves treating particular racial, ethnic or national groups or individuals differently. Special measures are initiatives intended to ensure the adequate advancement of certain racial groups who require support to be able to enjoy their human rights and fundamental freedoms in full equality. Special measures are not only permitted by the Convention, they are also required when necessary.

The Committee on the Elimination of Racial Discrimination (CERD) monitors State compliance with the Convention. The CERD is composed of 18 independent experts who are elected for four years by the State parties to the Convention. Each State party may nominate a citizen for any vacancy. Although they are nationals of State parties, the Committee members serve in a personal capacity. They do not represent their country in any sense and take an oath of impartiality upon taking office. The CERD meets twice each year at the United Nations in Geneva.