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The Committee on
the Elimination of Racial Discrimination, established under article 8 of the
International Convention on the Elimination of All Forms of Racial
Discrimination,
Meeting on 14 August 1997,
Adopts the following:
Decision on admissibility
1. The author of the communication is Paul Barbaro, who is of Italian origin
and currently resides in Golden Grove, South Australia. He contends that he
has been a victim of racial discrimination by Australia, although he does
not invoke the provisions of the International Convention on the Elimination
of All Forms of Racial Discrimination. Australia made the declaration under
article 14, paragraph 1, of the Convention on 28 January 1993.
The Facts as Presented by the Author
2.1 On 25 June 1986, the author obtained temporary employment at the Casino
of Adelaide, South Australia; he initially worked as a bar porter, and
subsequently as an attendant. On 16 April 1987, the Liquor Licensing
Commissioner (LLC) of the South Australian Liquor Licensing Commission,
which is responsible for supervising the observance of the rules governing
the management of the Adelaide Casino, and must ensure that its operations
are subject to continued scrutiny, withdrew the author's temporary
employment licence and refused to approve his permanent employment with the
Casino. A hearing, during which the LLC questioned the author on a number of
points and discussed his concerns, was held on 30 April 1987.
2.2 In September 1993, well over six years later, the author complained to
the Australian Human Rights and Equal Opportunities Commission (HREOC),
claiming that the Liquor Licensing Commissioner's decision had been unlawful
under sections 9 and 15 of Australia's Race Discrimination Act of 1975. He
argued, inter alia, that the Liquor Licensing Commissioner had decided
against his obtaining a permanent contract because of his and his family's
Italian (Calabrian) origin, because some of his relatives were allegedly
involved in criminal activities, notably trafficking of illegal drugs, of
which he did not know anything. Mr. Barbaro contends that this attitude
effectively restricts the possibilities for employment for Italians who are
not themselves criminals but who may have relatives that are. In support of
his argument, the author refers to letters of support from Peter Duncan, M.P.,
who seriously questioned and denounced this perceived practice of "guilt by
association".
2.3 The author refers to similar cases in which the ethnic background of
applicants for employment in licensed casinos was adduced as a reason for
not approving employment. In particular, he refers to the case of Carmine
Alvaro, decided by the Supreme Court of South Australia in December 1986,
who was refused permanent employment because of his family's involvement in
the cultivation and sale of illegal drugs. In this case, the LLC had stated
that he had been advised by the police that they had received information
that one of the drug families of the area would attempt to place a "plant"
at the Casino.
2.4 The HREOC forwarded the author's complaint to the South Australian
Attorney-General's Department for comments. The latter informed the HREOC
that the "sole reason for refusing [the author's] employment was to ensure
the integrity of the Adelaide Casino and public confidence in that
institution". Reference was made in this context to a report from the
Commissioner of Police, which stated:
"Paul Barbaro has no convictions in this state. He is a member of a broad
family group which, in my opinion, can only be described as a major
organized crime group ... Eighteen members of this group have been convicted
of major drug offences ... The offences are spread across four States of
Australia. All are of Italian extraction. All are related by marriage or
direct blood lines."
2.5 There were some discrepancies between the author's and the LLC's
assertions in respect of the degree of some of the relationships, in
particular the relationships established by the marriages of the author's
siblings. The author emphasized that he had maintained a certain autonomy
from his relatives and that he did not know personally many of the people
listed in the Police Commissioner's report. He also insisted that he knew
nothing of his relatives' previous drug-related offences.
2.6 On 30 November 1994, the Racial Discrimination Commissioner of the HREOC
rejected the author's claims concerning his unlawful dismissal, having
determined that it was the author's perceived or actual relationships with
individuals who have criminal records, and not his Italian ethnic origin,
which was the basis for the LLC's decision. The Race Discrimination
Commissioner stated that "[T]he fact that [he] and [his] family members are
of Italian origin or descent is not germane" to the solution of the case.
2.7 On 7 December 1994, the author appealed for review of the Racial
Discrimination Commissioner's decision. By decision of 21 March 1995, the
President of the HREOC confirmed the decision of the Racial Discrimination
Commissioner, holding that there was no evidence that the author's ethnic
background had been a factor in the LLC's decision.
The Complaint
3. Although the author does not invoke any provision of the Convention, it
transpires from his communication that he claims a violation by the State
party of articles 1, paragraph 1, and 5 (a) and (e) (i) of the Convention.
State Party's Submission on the Admissibility of the Communication and
Author's Comments Thereon
4.1 By submission of March 1996, the State party challenges the
admissibility of the communication on several grounds. It first supplements
the facts as presented by the author. Thus, the State party notes that when
obtaining temporary employment in 1986, the author gave the Police
Commissioner for South Australia written authorization to release to the LLC
particulars of all convictions and other information that the Police
Department may have had on him. On 25 June 1986, Mr. Barbaro acknowledged in
writing that the granting of temporary employment was subject to all
enquiries made concerning his application for approval as a Casino employee
being concluded to the satisfaction of the LLC, and that temporary approval
could be withdrawn at any time.
4.2 On 30 April 1987, the author, accompanied by his lawyer and two
character witnesses, attended a hearing before the LLC, during which the LLC
explained his concern that the author had an association with an organized
crime group. The author was given an opportunity to comment on the evidence
which had been provided to the LLC by the Police Commissioner.
4.3 In relation to the author's complaint before the HREOC, the State party
notes that after the dismissal of Mr. Barbaro's complaint by the Race
Discrimination Commissioner, the author gave notice of appeal to have the
decision reviewed under section 24AA 9(1) of the Race Discrimination Act
(RDA), the President of the HREOC, Sir Ronald Wilson, a former High Court
judge, confirmed the decision in accordance with section 24AA 2(b)(i) of the
RDA, holding that there was no evidence that the author's ethnic origin
constituted a ground for the alleged discrimination.
4.4 The State party contends that the case is inadmissible as incompatible
with the provisions of the Convention, on the basis of rule 91(c) of the
Committee's rules of procedure, as the Committee is said to lack the
competence to deal with the communication. In this context, the State party
affirms that Australian law and the RDA conform with the provisions of the
Convention. The RDA was enacted by the Federal Government and implements
articles 2 and 5 of the Convention by making racial discrimination unlawful
and ensuring equality before the law (sections 9 and 10). The wording of
section 9 closely follows the wording of the definition of racial
discrimination in article 1 of the Convention. Section 15 of the RDA
implements the provisions of article 5 of the Convention in relation to
employment. Moreover, the HREOC is a national authority established in 1986
for the purpose of receiving and investigating alleged breaches of the RDA.
Members of the HREOC are statutory appointees and as such enjoy a high
degree of independence. HREOC investigated the author's case thoroughly and
found no evidence of racial discrimination.
4.5 In the light of the above, the State party argues that it would be
inappropriate for the Committee to effectively review the decision of the
HREOC. While it concedes that the issue of whether the decision of the HREOC
was arbitrary, amounted to a denial of justice or violated its obligation of
impartiality and independence, would fall within the Committee's
jurisdiction, it contends that the author did not submit any evidence to
this effect. Rather, the evidence contained in the transcript of the hearing
before the LLC and the correspondence with the HREOC indicate that the
author's claim was considered within the terms both of the RDA and the
Convention.
4.6 The State party further submits that the complaint is inadmissible on
the basis of lack of substantiation, arguing that the author did not provide
any evidence that his treatment amounted to a "distinction, exclusion,
restriction, or preference based on race, colour, descent, or national or
ethnic origin which [had] the purpose or effect of nullifying or impairing
the recognition, enjoyment, or exercise, on an equal footing, of human
rights ..." (article 1, paragraph 1, of the Convention). There is said to be
no evidence that the author's ethnic or national origin was a factor in the
decision of the LLC to refuse a permanent appointment to the author; rather,
he was concerned to fulfil his duty to ensure that the operations of the
casino were subject to constant scrutiny and to guarantee public confidence
in the casino's lawful operation and management.
4.7 Finally, the State party claims that the author failed to exhaust
available domestic remedies, as required by article 14, paragraph 7 (a), of
the Convention, and that he had two available and effective remedies which
he should have pursued in relation to his allegation of unfair dismissal.
Firstly, it would have been open to the author to challenge the decision of
the President of the HREOC in the Federal Court of Australia, pursuant to
the Administrative Decisions (Judicial Review) Act of 1977 (ADJR Act). The
State party emphasizes that the decision of the HREOC President was
reviewable under the ADJR Act: grounds for review are listed in section 5 of
the Act; they include grounds that there is no evidence or other material to
justify the taking of the decision, and that the adoption of the decision
was an improper exercise of power. The State party argues that this review
mechanism is both available and effective within the meaning of the
Committee's admissibility requirements: thus, pursuant to any application
under the ADJR Act, the Court may set aside the impugned decision, refer it
back to the first instance for further consideration subject to directions,
or declare the rights of the parties.
4.8 According to the State party, the author could also have challenged the
LLC's decision in the Supreme Court of South Australia, by seeking judicial
review under Rule 98.01 of the South Australian Supreme Court Rules. Under
Rule 98.01, the Supreme Court may grant a declaration in the nature of
certiorari or mandamus. Under Rule 98.09, the Supreme Court may award
damages on a summons for judicial review. It is submitted that an action for
judicial review pursuant to Rule 98 was an available remedy in the instant
case.
4.9 The State party concedes that the author was not obliged to exhaust
local remedies which are ineffective or objectively have no prospect of
success. It refers in this context to the decision of the Full Court of the
Supreme Court of South Australia in the case of R. v. Seckler ex parte
Alvaro ("Alvaro's case"), decided on 23 December 1986. The material facts of
that case were similar to the author's: the respondent was the LLC of South
Australia, the same person as in the author's case, and the matter at issue
was the respondent's refusal to approve the plaintiff's employment. By
majority, the Supreme Court of South Australia held that the plaintiff was
not entitled to relief. In the State party's opinion, the judicial precedent
provided by the decision in Alvaro's case did not excuse the author from
exhausting the remedy available by way of judicial review; it adds that
"unlike an established legal doctrine, a single majority judgment in a
relatively new area of law does not meet the test of obvious futility
required in order to countenance non-exhaustion of an available remedy".
4.10 Still in the same context, the State party rejects as too broad an
interpretation the argument that exhaustion of domestic remedies cannot be
required if the remedies available probably would not result in a favourable
outcome. Therefore, judicial review under Rule 98 of the Supreme Court Rules
is said to be both an available and an effective remedy, to which the author
did not resort. The State party notes that the author did not file his claim
within the six months of the grounds for review first arising (7 November
1987), as is required under Rule 98.06 of the Supreme Court Rules. Thus,
while barred from pursuing this remedy now because of the expiration of
statutory deadlines, the State party observes that failure to pursue the
remedy in a timely manner must be attributed to the author. Reference to the
jurisprudence of the Human Rights Committee is made.
5.1 In comments dated 28 April 1996, the author rebuts the State party's
arguments and dismisses them as irrelevant to the solution of his case. He
questions the credibility of the State party's arguments in the light of the
letters of support he received from a Member of Parliament, Mr. Peter
Duncan.
5.2 In the author's opinion, the Committee does have competence to deal with
the merits of his claims. He contends that the HREOC did not examine his
complaint with the requisite procedural fairness. In this context, he notes,
without giving further explanations, that the RDA allows complainants to
attend a hearing at some designated location to present arguments in support
of the complaint, and that this did not occur in his case. The result, he
surmises, led to an uninformed decision of the HREOC which was not
compatible with the provisions of the Convention.
5.3 The author notes that the President of the HREOC, Sir Ronald Wilson, who
dismissed his claim on 21 March 1995, had been a judge in the Supreme Court
of South Australia when the decision in Alvaro's case was handed down in
December 1986. He now argues that there was a conflict of interest on the
part of the President of the HREOC, who had determined the merits of a
factually comparable case in the Supreme Court of South Australia before
dealing with the author's own case. In the circumstances, the author argues
that the decision of the HREOC was tainted by bias and arbitrariness and
that the Committee has competence to deal with his case.
5.4 The author reiterates that there is sufficient evidence to show that his
case falls prima facie within the scope of application of article 1,
paragraph 1, of the Convention. He argues that "[a]s with normal practices
of institutionalized racism a clear and precise reason [for termination of
employment] was not given nor required to be given". He further contends
that it is difficult to see how the acts of State agents in his case did not
amount to a "distinction" within the meaning of the Convention, given the
terms of the Police Commissioner's report to the LLC from 1987, where it was
explicitly stated that the author was "a member of a broad family group ...
All are of Italian extraction". From this reasoning, the author asserts, it
is clear that individuals with his background are precluded from enjoying or
exercising their rights on an equal footing with other members of the
community. He also refers to a judgment in the case of Mandala and Anor v.
Dowell Lee, ((1983) All ER, 1062), where it was held that blatant and
obviously discriminatory statements are generally not required when
investigating instances of race distinctions, since direct evidence of
racial bias is often disguised.
5.5 As to the requirement of exhaustion of domestic remedies, the author
observes that the decision handed down by the President of the HREOC on 21
March 1995 and transmitted to him on 24 March 1995 failed to mention any
possible further remedies. He notes that the RDA itself is silent on the
possibility of judicial review of decisions adopted by the President of the
HREOC by the Federal Court of Australia.
5.6 Finally, the author contends that the possibility of judicial review of
the decision of the LLC to refuse him permanent employment under the rules
of the Supreme Court of South Australia is not realistically open to him. He
argues that the judgment of the Supreme Court of South Australia in Alvaro's
case does constitute a relevant precedent for the determination of his own
case, all the more so since the State party itself acknowledges that
Alvaro's case presented many similarities to the author's. If adding the
fact that the President of the HREOC who dismissed the author's appeal had
previously been involved in the determination of Alvaro's case, the author
adds, then the possibility of challenging his decision before the Supreme
Court successfully was remote.
6.1 By further submission of 22 July 1996, the State party in turn dismisses
as partial or incorrect several of the author's comments. It notes that the
author was partial in choosing quotes from the Police Commissioner's report
and that the complete quotes indicate that the operative factor in the LLC's
decision concerning Mr. Barbaro's suitability for casino employment was his
association with 18 members of his family who had been convicted of major
drug-related offences. Ethnicity was only raised by the Police Commissioner
as one factor, combined with others such as family association and the type
of offences; the author's ethnic background was relevant only in so far as
it assisted in defining this cluster of associations.
6.2 The State party concedes that in Australian employment practice,
associates of applicants for employment are generally not considered a
relevant factor in the determination of suitability for employment. In the
instant case, it was relevant because the LLC was not an employer but a
statutory officer. His statutory role was to ensure the constant scrutiny of
casino operations, a role recognized by the Supreme Court of South Australia
in Alvaro's case. In short, the LLC was entrusted with maintenance of the
internal and external integrity of the casino. Like an employer, however, he
was subject to the provisions of the RDA of 1975; in the instant case, the
State party reiterates that the fact that there were drug offenders in the
author's extended family was a proper justification for the LLC's decision.
6.3 The State party agrees in principle with the author's assertion that
obvious and blatant expressions of racial discrimination are not required
when investigating instances of race distinctions. It notes in this context
that prohibition of indirectly discriminatory acts or unintentionally
discriminatory acts is an established principle of Australian law. However,
the State party re-emphasizes that decisions in Mr. Barbaro's case rested on
grounds other than race, colour, descent or national or ethnic origin.
6.4 The State party contends that the author's comments raise new
allegations about the fairness of the procedures before the HREOC,
especially as regards his claim that he was denied due process since he was
not afforded an opportunity to attend a hearing to present his complaint.
The State party argues that the author did not exhaust domestic remedies in
this respect and that he could have filed an application for judicial review
of this allegation under the ADJR. In any event, the State party continues,
procedural fairness did not require the personal attendance of Mr. Barbaro
to present his complaint. In the case of the HREOC, the grounds for
dismissing complaints prior to conciliation are set out in section 24 (2) of
the RDA. They are:
(a) if the Race Discrimination Commissioner is satisfied that the
discriminatory act is not unlawful by reason of a provision of the RDA;
(b) if the Commissioner is of the opinion that the aggrieved person does not
desire that the inquiry be made or continued;
(c) if the complaint has been made to the Commission in relation to an act
which occurred more than 12 months prior to the filing of the claim;
(d) if the Commissioner is of the opinion that the complaint under
consideration is frivolous, vexatious, misconceived or lacking in substance.
In the author's case, the President of the HREOC dismissed the complaint on
the basis of section 24 (2) (d) of the RDA.
6.5 The State party dismisses as totally unfounded the author's argument
that the decision of the HREOC was biased because of an alleged conflict of
interest on the part of the President of the HREOC. The State party points
to the long-standing involvement of the President of the HREOC in the legal
profession and adds that for someone with the profile and the background of
the President of the HREOC, it is indeed likely that he will consider at
different times issues which are related in law or in fact. The State party
emphasizes that a previous encounter with a similar (factual or legal) issue
does not result in a conflict of interest. Further evidence of bias is
required, which the author has patently failed to provide.
6.6 As to Mr. Barbaro's contention that he was not informed of the
availability of domestic remedies after the HREOC's decision of 21 March
1995, the State party notes that neither the Convention nor the Australian
RDA of 1975 impose an obligation to indicate all available appellate
mechanisms to a complainant.
6.7 Finally, concerning the letters of support sent to the HREOC on the
author's behalf by a Member of Parliament, Mr. Peter Duncan, formerly a
parliamentary secretary to the Attorney-General, the State party recalls
that Federal Parliamentarians frequently write to the HREOC on behalf of
their constituents, advocating the rights of their constituents in their
role as democratically elected representatives. The State party contends
that this role must be distinguished from both the investigative role of the
independent HREOC and the executive role of the parliamentary secretary to
the Attorney-General. In the instant case, it was clear that the M. P. acted
on the author's behalf in his representative role. More importantly, the
purpose of the letters was to urge a thorough investigation of the author's
complaints by the HREOC. Once a final decision in the case had been taken,
Mr. Duncan did not write again.
7. During its forty-ninth session, in August 1996, the Committee considered
the communication but concluded that further information from the State
party was required before an informed decision on admissibility could be
adopted. Accordingly, the State party was requested to clarify:
(a) whether the author would have had the opportunity, in the event that
complaints under the Administrative Decisions (Judicial Review) Act and
pursuant to Rule 98.01 of the Rules of the Supreme Court of South Australia
had been dismissed, to appeal further to the Federal Court of Australia, or
whether he could have complained directly to the Federal Court of Australia;
(b) whether the State party consistently does, or does not, inform
individuals in the author's situation of the availability of judicial
remedies in their cases.
8.1 In reply, the State party notes that Mr. Barbaro would have had the
opportunity to appeal to the Federal Court of Australia and subsequently the
High Court of Australia in the event that a complaint under the ADJR Act had
been dismissed. Under section 8, the Federal Court of Australia has
jurisdiction to hear applications under the ADJR Act; applications may be
filed in respect of decisions to which the Act applies, and decisions of the
President of the HREOC fall within the definition of "decision(s) to which
this Act applies" (section 3 (1)). The author thus had the right to seek
judicial review of the President's decision before a single judge of the
Federal Court of Australia on any of the grounds listed in section 5 of the
ADJR Act relevant to his case, within 28 days of the decision of the HREOC
President. If an application before a single Federal Court judge had been
unsuccessful, the author would have had the right to seek leave to appeal to
the full Federal Court.
8.2 If unsuccessful in the full Federal Court of Australia application, the
author would have been further entitled to seek special leave to appeal to
the High Court of Australia under Order 69A of the High Court Rules;
criteria for granting special leave to appeal are listed in section 35A of
the federal Judiciary Act 1903. If special leave to appeal were granted, a
three-week period from the granting of special leave to appeal would apply
for the filing of the notice of appeal.
8.3 The State party further notes that the author would have had an
opportunity to appeal to the full court of the Supreme Court of South
Australia and thereafter the High Court of Australia if a complaint under
Rule 98.01 of the Rules of the Supreme Court of South Australia had been
dismissed by a single judge (section 50 of the Supreme Court Act, 1935
(South Australia)). Mr. Barbaro would have had to lodge an appeal within 14
days of the single judge's decision. If an appeal to the full court of South
Australia had been unsuccessful, Mr. Barbaro could have sought special leave
from the High Court of Australia to appeal against the decision of the full
court of the Supreme Court of South Australia pursuant to section 35 of the
Federal Judiciary Act, 1903.
8.4 The State party reiterates that the Convention does not impose an
obligation to indicate all available appeal mechanisms to a complainant.
There is no statutory obligation to provide individuals with information
about possible judicial remedies under federal or South Australian law; nor
is it the practice of the federal Government or the Government of South
Australia to advise individuals about possible appeal rights. There are,
however, some obligations to inform individuals of their appeal rights:
thus, under the federal Race Discrimination Act, 1975, where the Race
Discrimination Commissioner decides not to enquire into an action in respect
of which a complaint was filed, he or she must inform the complainant for
that decision, of the ratio decidendi and of the complainant's rights to
have this decision reviewed by the HREOC President (section 24 (3)). In Mr.
Barbaro's case, this obligation was met. It is, moreover, the practice of
the HREOC to advise verbally any complainant who has manifested a desire to
challenge a decision of the Commission's president of other avenues of
appeal. There is no evidence that the HREOC deviated from this practice in
the author's case.
8.5 The State party notes that Mr. Barbaro does not appear to have sought
legal advice on appeals and remedies available to him; it adds that it is
common knowledge that a system of publicly funded legal aid exists in
Australia, as well as a national network of Community Legal Centres,
including in South Australia. Both Legal Aid and Community Legal Centres
would have provided free legal advice about possible appeal mechanisms to
individuals in the author's situation. Mr. Barbaro's failure to avail
himself of such free legal advice cannot be attributed to the State party;
reference is made to the Committee's jurisprudence that it is the author's
own responsibility to exhaust domestic remedies. [FNa]
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[FNa] See decision on communication No. 5/1994 (C. P. and his son v.
Denmark), para. 6.2, in Official Records of the General Assembly, Fiftieth
Session, Supplement No. 18 (A/50/18), annex VIII.
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9.1 In his comments, the author concedes that the Race Discrimination
Commissioner informed him of his right of review of her decision under
section 24AA (1) of the Race Discrimination Act. He submits, however, that
the President of the HREOC did not inform him of the possibilities of any
avenues of appeal against his decision communicated to the author on 24
March 1995; he contends that the HREOC President, a former High Court judge,
should have informed him of possible remedies. Mr. Barbaro adds that, as a
layman, he could not have been aware of any other possible judicial remedies
against the decision of the HREOC President.
9.2 The author reaffirms that an application to the Supreme Court of South
Australia under Rule 98.01 of the Court's Rules would have been futile,
given the Supreme Court's earlier judgment in Alvaro's case.
9.3 Finally, with regard to the State party's reference to the availability
of legal advice from Community Legal Centres, Mr. Barbaro submits that "such
assistance is only available in extreme situations and ... only of the
matter involves an indictable offence".
Issues and Proceedings Before the Committee
10.1 Before considering any claims contained in a communication, the
Committee on the Elimination of Racial Discrimination must decide, pursuant
to article 14, paragraph 7 (a), of the Convention, whether or not the case
is admissible.
10.2 The State party contends that the author's claims are inadmissible on
the basis of failure to substantiate the racially discriminatory nature of
the LLC's decision of May 1987. The Committee notes that the author has made
specific allegations, notably in so far as they relate to passages in the
report of the Police Commissioner of South Australia which had been made
available to the LLC, to support his contention that his national and/or
ethnic background influenced the decision of the LLC. In the Committee's
opinion, the author has sufficiently substantiated, for purposes of
admissibility, his claims under article 5 (a) and (e) (i), read together
with article 1, paragraph 1, of the Convention.
10.3 The State party has also claimed that the author has failed to exhaust
domestic remedies which were both available and effective, since he could
have challenged the decision of the President of the HREOC under the
Administrative Decisions (Judicial Review) Act, and the decision of the LLC
pursuant to Rule 98.01 of the Rules of the Supreme Court of South Australia.
The author has replied that (a) he was not informed of the availability of
those remedies, and (b) that the precedent established by the judgment in
Alvaro's case would have made an appeal to the Supreme Court of South
Australia futile.
10.4 The Committee begins by noting that the author was legally represented
during the hearing before the LLC on 30 April 1987. It would have been
incumbent upon his legal representative to inform him of possible avenues of
appeal after the LLC's decision to terminate the author's employment. That
the author was not informed of potential judicial remedies by the judicial
authorities of South Australia did not absolve him from seeking to pursue
avenues of judicial redress; nor can the impossibility to do so now, after
expiration of statutory deadlines for the filing of appeals, be attributed
to the State party.
10.5 The Committee further does not consider that the judgment of the
Supreme Court of South Australia in Alvaro's case was necessarily
dispositive of the author's own case. Firstly, the judgment in Alvaro's case
was a majority and not a unanimous judgment. Secondly, the judgment was
delivered in respect of legal issues which were, as the State party points
out, largely uncharted. In the circumstances, the existence of one judgment,
albeit on issues similar to those in the author's case, did not absolve Mr.
Barbaro from attempting to avail himself of the remedy under Rule 98.01 of
the Supreme Court Rules. Finally, even if that recourse had failed, it would
have been open to the author to appeal to Federal court instances. In the
circumstances, the Committee concludes that the author has failed to meet
the requirements of article 14, paragraph 7 (a), of the Convention.
11. The Committee on the Elimination of Racial Discrimination therefore
decides:
(a) that the communication is inadmissible;
(b) that this decision shall be communicated to the State party and to the
author.
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