Australian Human Rights Commission Submission to the UN Committee On The Elimination Of Racial Discrimination, 30 October 2017 Domestic incorporation (CERD article 2; CO 9, 10 & 17) (a) Incorporation of CERD 19. Australia implements CERD primarily through the RDA and the work of the Commission.9 There are also anti-discrimination laws at state and territory level relating to racial discrimination.10 20. The Commission notes the following gaps that remain in Australia’s domestic incorporation of CERD: i. The federal Parliament may by express words, or by implication, amend any existing federal legislation through the making of subsequent legislation. The federal Parliament can therefore amend or repeal the RDA as it sees fit.11 Accordingly, the RDA does not offer comprehensive protection against racially discriminatory laws passed by the federal Parliament. The most recent example of a federal law that overrode the RDA protections was the legislation that brought into effect the Northern Territory Emergency Response (also referred to as the ‘Northern Territory Intervention’).12 ii. Judicial interpretation of what constitutes ‘special measures’ under s 8 of the RDA does not fully comply with the Committee’s General Recommendation No 32.13 For example, there is no requirement that affected groups be consulted and participate in the design and implementation of proposed special measures. There is also no requirement for the objective of special measures to alleviate present disparities in the enjoyment of human rights, protect groups and individuals from discrimination or prevent further imbalances.14 The Committee is aware of successive governments’ reliance on special measures to implement racially discriminatory measures as part of the NT Intervention.15 iii. Australia made a reservation to CERD in relation to the criminalisation of racial hatred (article 4).16 The Government has recently maintained that it will not presently consider withdrawal of this reservation.17 21. The Commission notes that Australia’s constitutional arrangements do not fully protect against racial discrimination. In particular: i. Section 25 of the Australian Constitution contemplates the ability of Australian state governments to disqualify a group of people from voting based on race. ii. Under Australia’s Constitution, the federal Parliament is permitted to make laws under enumerated ‘heads of power’ in s 51. Under s 51(xxix), the ‘external affairs power’, the federal Parliament may pass legislation that implements international treaty obligations.18 However, under s 51(xxvi), the ‘races power’, the federal Parliament may pass laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’.19 Judicial interpretation of the ‘races power’ suggests that it is not limited to matters that are beneficial in 7