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Discrimination against people based on their race, colour, ethnicity, or nationality is a significant issue in the promotion and enforcement of fundamental human rights.

Official Emblem for International Anti-Apartheid Year

Emblem for International Anti-Apartheid Year (1977), United Nations Photo, under CC BY-NC-ND 2.0 Licence

Themes and Challenges

compliance and non-compliance with international law
development of human rights and ethical standards
effectiveness and the enforcement human rights
state sovereignty and the enforcement of human rights
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Racial discrimination at its most extreme is the destruction of a group of people because of their race. Other forms of racial discrimination can involve persons of a certain race not having equal access to political, economic, social or cultural rights and freedoms.

The legal definition of racial discrimination under international and Australian law states that where a person's rights are taken away or limited because of their race, colour of their skin, national or ethnic origin that racial discrimination has occurred.

Legal Responses to Racial Discrimination

The Universal Declaration
of Human Rights 1948
(UDHR)
The Convention on the Prevention and Punishment of the Crime of Genocide 1948
"The Genocide Convention"
The International Convention on the Elimination of All forms of Racial Discrimination (CERD)
The Racial Discrimination Act 1975 (Cth)
(The RDA)

Click the buttons above for information about these legal responses.


Genocide is the intent to destroy members of a group based on their national, ethnic, racial or religious background.

The Genocide Convention of 1948 defined the crime of genocide. Since then, genocide has become a universal principle of international law because it has been so widely accepted by the international community. Although there has been wide acceptance, it was not until 1998 that there was a successfully prosecution of a case of genocide by an international tribunal (see ICTR).

There have been many events where genocide may have occurred throughout history and there is often discussion about whether or not genocide, as it is legally defined, occurred at a particular time and place. While there are many events where nation-states and other groups will argue whether genocide has occurred, the most practical view to take on the legal question of whether human rights can be enforced is to discuss instances where a court or tribunal has or can actually prosecute individuals for this crime.

The following case studies provide an overview of events relating to genocide since 1915:


The Armenian Genocide

The forced relocation and killing of Armenians from 1915 to 1923 in modern day Turkey is seen by many as a genocide, however whether it is genocide or not remains controversial.

The following excerpt from Hansard in the House of Lords in 1915 provides one insight into the information available to the British at the time about what was occurring in Turkey:

The Earl of Cromer: "My Lords, the Questions down in my name, of which there are three, require but very few words of explanation. During the last few days the country has been shocked by renewed accounts of Armenian massacres which appear to have begun again on even a greater scale than those which horrified the whole civilised world a few years ago. In one newspaper I read that the number of 995 victims amounted to as many as 800,000. The figure appears incredible, and, I should hope, is very much exaggerated. What I want to ask His Majesv's Government is whether they have any reliable information and can tell us what has actually occurred.

...

Viscount Bryce: I am sorry to say that such information as has reached me from many quarters goes to show that the figure of 800,000 which the noble Earl thought incredible as a possible total for those who have been destroyed since May last is, unfortunately, quite a possible number. That is because the proceedings taken have been so absolutely premeditated and systematic. The massacres are the result of a policy which, as far as can be ascertained, has been entertained for some considerable time by the gang who are now in possession of the Government of the Turkish Empire.

House of Lords Debates 6 October 1915 vol 19 cc994-1004

This article from the Guardian provides a summary of historical scholarship that supports that what occurred was genocide:

"It is widely accepted that 1 million to 1.5 million Armenians died in the ensuing years until 1922, though there are no indisputable figures."

- Ian Black, 'The Armenian Genocide - the Guardian Briefing',
The Guardian, 17/04/2015.

The debate over what happened to the Armenians in Turkey is controversial. The Turkish Government denies that a genocide took place, however, many historians argue that genocide did occur, and nation-states such as Russia and France recognise these events were genocide. Other nation-states such as Australia, the United Kingdom and the United States recognise that something tragic occurred but stop short of recognising it as genocide.

The Australian Government acknowledges the devastating effects which the tragic events at the end of the Ottoman Empire have had on later generations and on their identity, heritage and culture. We do not, however, recognise these events as ‘genocide’.

- Australian Foreign Minister, Julie Bishop,
in a letter the Australian Turkish Advocacy Alliance in 2014,
cited in Colin Tatz's article in the Conversation.


The Holocaust

After the conclusion of the Second World War in 1945, a International Military Tribunal was convened and some of those involved in the Holocaust were prosecuted in the Nuremberg Trials. The Holocaust led directly to the creation of the Genocide Convention, although the Convention was not used to prosecute those involved in the Holocaust.

The Nazi Government of Germany between 1933 and 1945 implemented a ideology of white supremacy that led to the genocide of people from many different backgrounds. Nazi ideology identified any person who was not of Germanic descent as being sub-human. In particular the Nazis focused on exterminating the Jews in Europe. Jewish people, regardless of their background, or national identity were seen to be racially inferior by the Nazis.

The Holocaust involved the systematic extermination of many different groups based on their race by the Nazi Government in Germany. The Nazis created a system of camps, many of which existed for the sole purpose of exterminating people brought there by firing squad, gas chamber, or other means.

The United States Holocaust Memorial Museum provides the following statistics for deaths during the Holocaust:

  • Jews: up to 6 million
  • Soviet Civilians: around 3 million (including 1.3 Soviet Jewish civilians, who are included in the 6 million figure for Jews)
  • Non-Jewish Polish civilians: around 1.8 million
  • Serb civilians: 312,000
  • People with disabilities living in institutions: up to 250,000
  • Roma (Gypsies): 196,000 to 220,000
  • Jehovah’s Witnesses: Around 1900
  • Repeat criminal offenders and “asocials”: at least 70,000
  • Homosexuals: hundreds, possibly thousands (possibly also counted in part under the 70,000 repeat offenders and asocials)

The International Criminal Tribunal for the Former Yugoslavia

In 1993 the International Criminal Tribunal for the Former Yugoslavia was established, by the United Nations Security Council, to prosecute perpetrators of crimes committed during wars in the Balkans between 1991 and 2001. It was the first international tribunal of its kind created since the Nuremberg trials of the Nazis.

The ICTY's website had a page which details the cases it has run. It has issued 161 indictments, and has concluded proceedings for 154 persons accused of a range of crimes as of November 2016. Check the ICTY's Key Figures of the Cases page for the latest statistics.

One of the most notorious events during the many conflicts in the Former-Yugoslavia was the Srebrenica Massacre where more than 7000 Bosnian-Muslim boys were killed by the Bosnian-Serb military forces in 1995.

“The prosecution proved that genocide was committed in Srebrenica and that General Radislav Krstić, among others, was personally responsible for that.”

Olga Kavran, Deputy Coordinator, ICTY Outreach Programme, see the ICTY's website.

The following are also useful resources for looking at the work of the ICTY:


The International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda (ICTR) was established in 1994 by the United Nations Security Council to prosecute persons for genocide and other violations of international law committed in Rwanda during the 1994 civil war. Conflict in Rwanda erupted when the President of Rwanda's plane was shot down triggering 100 days of violence by Hutu extremists where between 800,000 and 1,000,000 Tutsi civilians and moderate Hutus were killed.

The work of the ICTR commenced in 1995 and 93 individuals have been indicted, and 62 sentenced. The ICTR's website states:

For the first time in history, an international tribunal - the ICTR - delivered verdicts against persons responsible for committing genocide. The ICTR was also the first institution to recognise rape as a means of perpetrating genocide.

The ICTR's website provides a list of cases heard by the tribunal. Reading the indictment followed by the judgement will provide a way to understand the progression of the case through the ICTR.

The Wikipedia article 'List of people indicted in the International Criminal Tribunal for Rwanda' provides metadata about the cases and the number of charges for genocide, crimes against humanity, kinds of charges brought by the ICTR.


United Nations Mechanism for International Criminal Tribunals

The work of the ICTR concluded on the 31 December 2015 and the ICTY intends to close at the end of 2017. The UN Mechanism for International Criminal Tribunals (MICT) will continue the work of the ICTY and ICTR assuming the responsibility of tracking and prosecuting fugitives, detention facilities for those senteneced by the tribunals, handling appeals to decisions, retrials, trials for contempt and perjury. The MICT is also responsible for maintaining the archives of the ICTY and ICTR, and assisting courts in Rwanda and the former Yugoslavia to investiagate, prosecute and conduct trials.

A recent arrest of a fugitive indicted by the ICTR may be an interesting place to start looking at the work of the MICT. See the MICT's press release regarding the arrest of Ladislas Ntaganzwa.

MICT also has a Facebook page calling for information about fugitives from the Rwandan Genocide which is an interesting discussion point in terms of promoting/enforcing human rights.

See further details on the MICT's website.


Checks and balances in the Australian Constitution are essential to the rule of law and protection of human rights in Australia.

While all aspects of the separation of powers between the parliament, executive and judiciary, are important, separate and independent judiciary is in ensuring that the parliament and executive are acting according to the law, and that human rights are enforced.

The following story about the Separation of Powers in the United State is useful for understanding how important the separation of powers and respect for the rule of law is for the enforcement of human rights.

Brown v Board of Education Topeka [1954] (USA)
Separation of Powers in Australia

See the Institute's Separation of Powers poster for more detail on the concept:

separation of powers poster

The Division of Powers and a Charter of Rights

The division of powers is a concept that describes how the power to make laws is divided between the Commonwealth Government and the State and Territory governments around Australia. Section 51 of the Australian Constitution places limits on the power of the Parliament to make laws, and Section 109 places a limit on the power of States to make laws that conflict with Commonwealth law. Section 109 also ensures that an individual is not at the whim of inconsistent laws of the States and Commonwealth on the same subject.

While the Federal Executive has the power to sign and ratify international agreements under Section 61 of the Australian Constitution, the process of an international agreement having effect under Australian law requires an Act of Parliament to be passed.

The way in which the High Court has interpreted the external affairs power in a number of cases such as the Tasmanian Dams Case and Koowarta v Bjelke-Petersen [1982] HCA 27, means that the Commonwealth has been able to assert its authority to ensure compliance with Australia's international human rights obligations.

Division of Powers and the Federal, State and Territory Governments

The following poster provides a summary of division of powers in Australia:


Ms Maloney was an Indigenous woman who argued that a law of the State of Queensland was racially discriminatory toward Indigenous Australians living on Palm Island.

The Legal Responses

The ability for the Maloney case to be heard in the High Court can be traced to back to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). CERD is a UN convention which Australia signed in 1966 and ratified in 1975. CERD forms the basis of the Racial Discrimination Act 1975 (Cth) - the RDA. The RDA is one of the primary ways that Australia demonstrates that it is complying with CERD.

CERD aims to promote ideas of racial equality while providing a legal framework for how to deal with issues of racial discrimination using legal processes.

The Australian Government is required to report on its implementation of CERD every three years to the UN Human Rights Committee about its efforts to comply with CERD and combat racial discrimination.

How did CERD become law in Australia?

The legal process for Australia to sign, ratify or accede to an international agreement/treaty is the following:

  1. Signature - agreement in principle, but not legally bound by the treaty.
  2. Ratification - a binding agreement that Australia will implement the treaty. In the case of a multi-lateral United Nations agreement an instrument of ratification prepared by the Australian Department of Foreign Affairs and Trade is deposited with the UN Secretary-General after being approved by the Governor-General in Council.
  3. Implementation - the Parliament implements the agreement as an Act of Parliament
    Example: the Racial Discrimination Act 1975 (Cth) implements CERD.

The Racial Discrimination Act 1975 (Cth)

The RDA deals with specific matters relating to racial discrimination - one of the most controversial is Section 18C of the RDA which makes it unlawful to offend, insult, humiliate or intimidate a person because of their race, colour or national or ethnic origin.

Section 10(1) of the RDA states that all people are entitled to equality before the law regardless of their race, colour or national or ethnic origin. If a law removes a right or limits the extent of it for a particular race, Section 10 can be invoked to strike down that law as being racially discriminatory.

Section 8 of the RDA references CERD and provides exceptions to section 10. These exceptions are called “special measures” and are actions that may be discriminatory, but are taken to assist a specific racial or ethnic group to secure them full and equal enjoyment of human rights and fundamental freedoms.

The UN Committee on the Elimination of Racial Discrimination's recommendation about special measures is that they should be temporary, not permanent.

D) Conditions for the Adoption and Implementation of Special Measures
16. Special measures should be appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary. The measures should be designed and implemented on the basis of need, grounded in a realistic appraisal of the current situation of the individuals and communities concerned.

Committee on the Elimination of Racial Discrimination, 'General Recommendation No.32, the meaning and scope of special measures in ICERD', August 2009.


Alcohol Restrictions on Palm Island

Palm Island is a group of islands off the coast of Townsville in Queensland. Historically, Palm Island was a place where Indigenous people from many different locations in Queensland were sent due to misbehaviour up until the 1960s. Over 90% of the population on Palm Island are Indigenous Australians.

In the 1980s, official statistics showed that Palm Island had murder and assault rates that were six times the Australian norm and among the highest in the world. Controversially, the Guinness Book of World Records in 1999 named Palm Island as the most violent place on earth outside a combat zone, although this claim was based on less reliable material.

Numerous government and media reports have pointed to the fact that Palm Island has a range of social problems which stem from the disadvantage experienced by Indigenous people, and significant issues with alcohol abuse. Domestic violence, theft, sexual assault and violence in public have been linked to the consumption of alcohol.

In 2006, an alcohol management plan was implemented on Palm Island. Section 168B of the Liquor Act 1992 (Q) allows for a restricted area to be declared for the purposes of possession of alcohol. Palm Island's alcohol management plan at the time of the Maloney Case restricted the possession of alcohol for all people on Palm Island to a case of mid-strength beer. This meant that a person in possession of wine or spirits, or a large quantity of beer, could be charged with an offence.

The "sly grog trade" on Palm Island is an ongoing issue which the Townsville Police deal with - which involves people smuggling quantities and types of alcohol that are prohibited from Townsville to Palm Island, see:

Maloney v the Queen [2013] HCA 28

Case citation: Joan Monica Maloney v The Queen [2013] HCA 28
High Court Judgment Summary | High Court Case Page | Full Judgment on the High Court website

Background to the Case

In 2008 Ms Maloney’s car was searched by police who found two bottles of spirits in the boot. She was charged with possessing more than the allowed quantity of alcohol in a restricted area and was fined $150.

Ms Maloney took her case to courts in Queensland and then to the High Court of Australia to have s168B of the Liquor Act 1992 (Q) stuck down by the Court as being racially discriminatory according to Section 10 of the RDA.

Ms Maloney, represented by the Queensland Aboriginal and Torres Strait Islander Legal Service, claimed that the laws restricting alcohol were invalid because:

  • they did not provide for equality before the law according the Section 10
  • discriminated against her because of her Indigenous background
  • the alcohol management plan did not have the consent of the local community.

The High Court's Decision

A majority of the High Court agreed with Ms Maloney and found that restrictions on the possession of alcohol on Palm Island were racially discriminatory under Section 10 of the Racial Discrimination Act because Indigenous Australians on Palm Island did not enjoy the same rights as other Australians in this regard.

However the High Court also found that the laws allowing the restrictions were valid and should remain because they were a special measure designed to protect the safety and security of people on Palm Island.

The Effect of the Case

Ms Maloney did not succeed in having the law struck down. However, this case shows that an individual can challenge a law to the highest court in the land - which is an important check on the power of the Parliament.

This case also shows the High Court applying the law and finding that the right to safety and security is more important than equal treatment in terms of access to alcohol.

Far from settling the argument about alcohol restrictions, the Maloney Case is an indication of the tension between the issue of ensuring safety and security to assist the Indigenous Community on Palm Island can resolve long standing issues, and the desires of Indigenous Australians who feel that such restrictions undermine their independence and their rights and freedoms as a community.

Perspectives

Indigenous Communities with alcohol restrictions throughout Australia are split in their opinion about this issue.

Some Communities were concerned that if Palm Island’s restrictions were declared invalid by the High Court that restrictions in other places in Queensland, the Northern Territory and Western Australia could have also been made invalid. Many Communities are supportive of the restrictions.

However, many individuals, such as Ms Maloney see the restrictions as an unfair limit to their freedoms and decide how to live their life.

While the decision of the High Court is final, careful consideration of the perspectives of those for and against alcohol restrictions, as outlined in the table below, are important for Federal, State and Territory Governments in considering whether they will reform their laws to ensure the right balance between restrictions, rights and freedoms of Indigenous Communities.

An article in the Townsville Bulletin on 14 January 2016 stated that the Queensland Government is in the process of conducting a major review into alcohol restrictions in Queensland. The review was set to expand the types of alcohol allowed on Palm Island, but not increase the quantity. The article also reports that Queensland Government figures show the rate of criminal offences involving harming another person on Palm Island is 17 times the state average.

An article in the Townsville Bulletin on 3 May 2016 noted that following a boatload of alcohol being smuggled to Palm Island that there had been a number of alcohol related incidents and arrests. The Mayor of Palm Island, Alf Lacey, called for alcohol restrictions to be relaxed.