CERD/C/62/D/26/2002
page 4
that term caused to Aboriginal people”. He argues further that it is not necessary to repeat
Mr. Brown’s nickname in order to honour him, for other stadia named after well-known athletes
utilize their ordinary names, rather than their nicknames.
3.3
He argues that under article 2, paragraph 1 (c), in particular, any State party to the
Convention has an obligation to amend laws having the effect of perpetuating racial
discrimination. He contends that use of words such as the offending term in a very public way
provides the term with formal sanction or approval. Words convey ideas and power, and
influence thoughts and beliefs. They may perpetuate racism and reinforce prejudices leading to
racial discrimination. The lawfulness (in terms of domestic law) of the use of this term also runs
counter to the objectives of article 7, which indicates that States parties undertake to combat
prejudices leading to racial discrimination.
3.4
The petitioner further argues that section 18 (1) (b) of the Act, requiring the offensive
conduct to be “because of” a racial attribute is narrower than the associative terms “based on”
found in the definition of racial discrimination in article 1 of the Convention. He characterizes
that the dismissal of his complaint, inter alia on the grounds that the offensive term was not
“because of” a racial attribute, was “technical”.
3.5
By way of remedy, the petitioner seeks the removal of the offending term from the sign
and an apology, as well as changes to Australian law to provide an effective remedy against
racially-offensive signs, such as the one in question.
The State party’s submissions on admissibility and merits
4.1
By submission of 26 November 2002, the State party disputed both the admissibility and
merits of the petition.
4.2
As to admissibility, the State party, while conceding that domestic remedies have been
exhausted, considers the petition incompatible with the provisions of the Convention and/or
insufficiently substantiated. Concerning incompatibility, the State party refers to jurisprudence
of the Human Rights Committee that it will not review the interpretation of domestic law, absent
bad faith or abuse of power,4 and invites the Committee on the Elimination of Racial
Discrimination to take the same approach. The State party notes that its courts and authorities
considered the petitioner’s complaints expeditiously and according to laws enacted in order to
give effect to its obligations under the Convention. The courts, at first instance and appeal, held
that the petitioner’s complaints had not been made out. Accordingly, the State party submits it
would be inappropriate for the Committee to review the judgements of the Federal Court and to
substitute its own views. As to the specific claim under paragraph 1 (c) that the State party
should amend the Racial Discrimination Act (being a law having the effect of perpetuating racial
discrimination), the State party argues that this claim is incompatible with the Convention, as the
Committee has no jurisdiction to review the laws of Australia in the abstract. It invites the
Committee to follow the jurisprudence of the Human Rights Committee to this effect.5