Australian Human Rights Commission Submission to the UN Committee On The Elimination Of Racial Discrimination, 30 October 2017 nature and could validly support the passage of adverse racially discriminatory laws.20 22. There have been calls for the repeal of s 25 and the reform or repeal of the ‘races power’ as a means of removing the potential for discrimination on the basis of race from the Constitution.21 23. Recently, the Australian Government appointed a Referendum Council to identify how best to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution. In that context, the Referendum Council recommended the monitoring of the use of the ‘races power’.22 It did not otherwise recommend the repeal or amendment of the ‘races power’ or s 25, noting that it ‘does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples’.23 The Commission directs attention to section 5.3 below regarding constitutional recognition of Aboriginal and Torres Strait Islander peoples. 24. To our knowledge, the Australian Government has not articulated a position on constitutional reform of s 25 and the ‘races power’. In relation to these constitutional issues, the Commission has previously suggested the: i. removal of s 25, and ii. insertion of a provision guaranteeing, for all Australians, equality before the law and freedom from discrimination, with such a protection drafted in a way that would guide the operation of the ‘races power’ to ensure that ‘special laws’ for the people of a particular race could not be made if they were (adversely) discriminatory.24 25. The scrutiny provided for by the PJCHR, while a welcome extension of existing parliamentary rights review mechanisms, is not a substitute for full incorporation of CERD into domestic law through mechanisms such as a national human rights Act. The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (Special Rapporteur on racial discrimination), the Special Rapporteur on rights of indigenous peoples and the Special Rapporteur on human rights of migrants have each recently recommended that Australia adopt some form of comprehensive federal human rights Act, such as a bill or charter of rights. 25 26. The Commission considers that full incorporation of CERD requires a comprehensive protection against any racially discriminatory federal laws. Recommendation 3: That the Australian Government:  fully incorporate CERD into Australian law  ensure that federal laws do not undermine the protections in the Racial Discrimination Act 1975 (Cth), and  explore options to remove any potential for racially discriminatory laws to be passed under the Australian Constitution. The Commission notes that this is a separate issue to developing with 8