Australian Human Rights Commission Submission to the UN Committee On The Elimination Of Racial Discrimination, 30 October 2017 George Williams and Daniel Reynolds, ‘The Racial Discrimination Act and Inconsistency under the Australian Constitution’ (2015) 36 Adelaide Law Review 241, 249–250. See also New South Wales v Commonwealth (2006) 229 CLR 1, 151 [307] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) (‘Work Choices Case’). 12 Northern Territory National Emergency Response Act 2007 (Cth), s 132(2) provided that: ‘The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975’. Another example was the Native Title Amendment Act 1998 (Cth), which introduced a new s 7 into the Native Title Act 1993 (Cth) (NTA), which provides that the NTA is intended to be read and construed subject to the provisions of the RDA only to the extent of any ambiguous terms in the NTA. 13 UN Committee on the Elimination of Racial Discrimination, General Recommendation No 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of Racial Discrimination, 75th sess, (24 September 2009) UN Doc CERD/C/GC/32. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fGC %2f32&Lang=en (viewed 23 October 2017). 14 UN Committee on the Elimination of Racial Discrimination, General Recommendation No 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of Racial Discrimination, 75th sess, (24 September 2009) UN Doc CERD/C/GC/32, [18], [22]. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fGC %2f32&Lang=en (viewed 23 October 2017). Special measures in Australia also fall short of the Committee’s recommendations in [16], [17] and [34]. 15 Australian Human Rights Commission, Information concerning Australia and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Shadow Report to the CERD Committee (8 July 2010) 17–20 [61]–[64]. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fN GO%2fAUS%2f77%2f8048&Lang=en (viewed 23 October 2017). 16 The reservation provides: ‘The Government of Australia … declares 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. Acts of the kind there mentioned are punishable only to the extent provided by the existing criminal law dealing with such matters as the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4(a).’ 17 UN Human Rights Council, Report of the Working Group on the Universal Periodic Review, Australia, Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, 35th sess, Agenda item 6, UN Doc A/HRC/31/14/Add.1 (29 February 2016) [7]. 18 The Commonwealth v Tasmania (‘The Tasmanian Dam Case’) (1983) 158 CLR 1. 19 Australian Constitution, s 51(xxvi). 20 Kartinyeri v Commonwealth (1998) 152 ALR 540. 21 In 2012, the Expert Panel on Constitutional Recognition of Indigenous Australians relevantly recommended that ss 25 and 51(xxvi) be repealed and that provisions on the constitutional recognition of Aboriginal and Torres Strait Islander peoples and a prohibition of racial discrimination be introduced. See Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution — Report of the Expert Panel (2012) xviii (Recommendations 3–5). At https://www.pmc.gov.au/sites/default/files/publications/RecognisingAboriginal-and-Torres-Strait-Islander-Peoples-in-the-constitution-report-of-the-expert-panel_0.pdf (viewed 23 October 2017). In 2015, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples offered similar recommendations. See Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) xiii (Recommendations 3–5). At https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Constitutional_Recognition_of_Ab original_and_Torres_Strait_Islander_Peoples/Constitutional_Recognition/Final_Report (viewed 23 October 2017). 22 Referendum Council, Final Report of the Referendum Council (30 June 2017) 2 (Recommendation 1). At https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Fin al_Report.pdf (viewed 23 October 2017). 23 Referendum Council, Final Report of the Referendum Council, 5, 12–13, 23–24. At https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Fin al_Report.pdf (viewed 23 October 2017). 46 11