CERD/C/62/D/26/2002 page 7 Territory level that proscribes racial hatred and vilification, as implementing its obligations under these paragraphs. As to paragraph (a) it recalls its reservation, and, as to paragraph (c), that the Trust is not a public authority or institution. 4.13 As to the petitioner’s claim, under article 5, that he is unable to enjoy functions at the sports ground, the State party refers to the jurisprudence of the European Court of Human Rights in assessing discrimination. Under that approach, there must be a clear inequality of treatment in enjoyment of the relevant right, as compared to others in an analogous position. If there is such inequality between similarly situated persons, there must be reasonable and objective justification as well as proportionality of the means applied to achieve a particular aim.15 The State party observes that sections 9 (making racial discrimination unlawful)16 and 10 (ensuring equality before the law) of the Act were enacted to implement articles 2 and 5 of the Convention, and section 9 closely follows the definition of racial discrimination in article 1 of the Convention. 4.14 The State party notes that the Federal Court (upheld on appeal) interpreted the phrase “based on” section 9 (1), upon which the author relied, as not “requiring a causal relationship between the act complained of and race etc., but [that it] should rather be read as meaning ‘by reference to’, i.e., as capable of being satisfied by a less direct relationship than that of cause and effect”. Turning to the petitioner’s case in terms of section 9 (1), the Court did not consider that the trustees’ decision to retain the sign was an act “based on” race. This was so for the decision was not “an act that involved treating members of the Aboriginal race differently, let alone less favourably, from other members of the community”, as the offending term was simply part of the customary identifier of a well-known person which had long ceased to have any inappropriate connotation. 4.15 The Court considered that, even if the decision was based or motivated on race, these racial considerations “were taken into account to satisfy the trustees that maintenance of the sign would not give offence to Aboriginal persons generally, as distinct from offence to [the petitioner] personally”. Thus, the Court concluded, in finding that there was no racial discrimination, that: “[I]t cannot be said that the act, even if based on race, involved any distinction etc. having either the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom of the kind referred to in section”. The State party therefore submits that, as found by the Federal Court, the petitioner has failed to establish that he was treated by the trustees any differently from, or less favourably than, any other person in a similar position, and therefore no racial discrimination has been established. 4.16 In terms of the specific paragraphs of article 5 invoked by the petitioner (paras. (d) (i), (d) (ix), (e) (vi) and (f)), the State party submits that as he failed to establish a racially based distinction in the circumstances of his case, no question of discrimination arises in respect of his freedom of movement, freedom of assembly or association, right to equal participation in cultural activities, or right of access to any public place or service, respectively. As to paragraph (e) (vi), the State party refers to the Committee’s jurisprudence that it is beyond its mandate to ensure that this right is established, but rather to monitor its implementation once the right is granted on equal terms.17