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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 20 March 2003,
Adopts the following:
Opinion
1. The petitioner, Stephen Hagan, is an Australian national, born in 1960,
with origins in the Kooma and Kullilli Tribes of South Western Queensland.
He alleges to be a victim of a violation by Australia of articles 2, in
particular, paragraph 1 (c); 4; 5, paragraphs d (i) and (ix), e (vi) and f;
6 and 7 of the International Convention on the Elimination of All Forms of
Racial Discrimination. He is represented by counsel.
The Facts as Presented
2.1 In 1960, the grandstand of an important sporting ground in Toowoomba,
Queensland, where the author lives, was named the "E.S. 'Nigger' Brown
Stand", in honour of a well-known sporting and civic personality, Mr. E.S.
Brown. The word "nigger" ("the offending term") appears on a large sign on
the stand. Mr. Brown, who was also a member of the body overseeing the
sports ground and who died in 1972, was of white Anglo-Saxon extraction who
acquired the offending term as his nickname, either "because of his fair
skin and blond hair or because he had a penchant for using 'Nigger Brown'
shoe polish". The offending term is also repeated orally in public
announcements relating to facilities at the ground and in match
commentaries.
2.2 On 23 June 1999, the petitioner requested the trustees of the sports
ground to remove the offending term, which he found objectionable and
offensive. After considering the views of numerous members of the community
who had no objection to the use of the offending term on the stand, the
trustees advised the petitioner by letter of 10 July 1999 that no further
action would be taken. On 29 July 1999, a public meeting chaired by a
prominent member of the local indigenous community, and attended by a
cross-section of the local Aboriginal community, the mayor and the chair of
the sports ground trust, passed a resolution "That the name 'E.S. Nigger
Brown' remain on the stand in honour of a great sportsman and that in the
interest of the spirit of reconciliation, racially derogative or offensive
terms will not be used or displayed in future". [FN1]
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[FN1] It is not clear whether the petitioner attended this meeting.
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2.3 On 11 May 2000, the petitioner brought a federal court action, on the
basis that the trustees' failure to remove the offending term violated
sections 9 (1) [FN2] and 18 C (1) [FN3] of the federal Racial Discrimination
Act 1975 ("the Act"). He sought removal of the offending term from the
grandstand and an apology from the trustees. On 10 November 2000, the
Federal Court dismissed the petitioner's application. The Court considered
that the petitioner had not demonstrated that the decision was an act
"reasonably likely in all the circumstances to offend, insult, humiliate or
intimidate an indigenous Australian or indigenous Australians generally".
Nor was the decision an act, in the words of the statutory language, "done
because of the race ... of the people of the group". Finally, the Court
considered that the Act did not protect the "personal sensitivities of
individuals", as it considered to be the case here, but rather "render[ed]
acts against individuals unlawful only where those acts involve treating the
individual differently and less advantageously than other persons who do not
share the membership of the complainant's racial, national or ethnic group".
On 23 February 2002, the Full Court of the Federal Court rejected the
petitioner's appeal. On 19 March 2002, the High Court of Australia refused
the petitioner's application for special leave to appeal.
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[FN2] Section 9 of the Racial Discrimination Act 1975 (Commonwealth)
provides:
RACIAL DISCRIMINATION TO BE UNLAWFUL
(1) "It is unlawful for a person to do any act involving a distinction,
exclusion, restriction or preference based on race, colour, descent or
national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of
any human right or fundamental freedom in the political, economic, social,
cultural or any other field of public life."
[FN3] Section 18 C of the Racial Discrimination Act provides:
OFFENSIVE BEHAVIOUR BECAUSE OF RACE, COLOUR, OR NATIONAL OR ETHNIC ORIGIN
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) The act is reasonably likely, in all the circumstances, to offend,
insult, humiliate or intimidate another person or a group of people; and
(b) The act is done because of the race, colour or national or ethnic origin
of the other person or of some or all of the people in the group.
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2.4 The petitioner also pursued a complaint to the Human Rights and Equal
Opportunities Commission (HREOC), which could not be pursued further because
of a subsequent restriction by law of the Commission's jurisdiction to
investigate certain individual complaints.
The Complaint
3.1 The petitioner contends that the use of the offending term on the
grandstand and orally in connection therewith violates articles 2, in
particular, paragraph 1 (c); 4; 5, paragraphs d (i) and (ix), e (vi) and f;
6 and 7 of the Convention. He contends that the term is "the most racially
offensive, or one of the most racially offensive, words in the English
language". Accordingly, he and his family are offended by its use at the
ground and are unable to attend functions at what is the area's most
important football venue. He argues that whatever may have been the position
in 1960, contemporary display and use of the offending term is "extremely
offensive, especially to the Aboriginal people, and falls within the
definition of racial discrimination in Article 1" of the Convention.
3.2 He clarifies that he has no objection to honouring Mr. Brown or naming a
football stand in his honour, but that at the time the nickname "Nigger" was
applied to Mr. Brown, non-Aboriginal Australians "either were not aware of
or were insensitive to the hurt and offence 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, [FN4] 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. [FN5]
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[FN4] Maroufidou v. Sweden Case No. 58/1979, Views adopted on 9 April 1981.
[FN5] MacIsaac v. Canada Case No. 55/1979, Views adopted on 25 July 1980:
"[The Committee's] task is not to decide in the abstract whether or not a
provision of national law is compatible with the Covenant, but only to
consider whether there is or has been a violation of the Covenant in the
particular case submitted to it."
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4.3 In view of the thorough consideration and rejection of the complaint
before domestic instances, the State party also argues that the petition is
insufficiently substantiated, for purposes of admissibility.
4.4 On the merits, the State party disputes that the facts disclose a
violation of any articles of the Convention invoked. As to the claim under
article 2, the State party submits that these obligations are of general
principle and programmatic in character, and therefore accessory to other
articles of the Convention. Accordingly, in the same way that the Human
Rights Committee only finds a violation of article 2 of the International
Covenant on Civil and Political Rights [FN6] after finding a separate
substantive violation of the Covenant, a violation of article 2 of the
Convention could only arise after a violation of the other substantive
articles (which is denied in its submissions under articles 4 to 7 below).
[FN7] Even if the Committee considers that article 2 can be directly
breached, the State party submits that it has satisfied its obligations: it
condemns racial discrimination, has enacted legislation and policy to make
its practice by any person or body unlawful as well as to eliminate all
forms of racial discrimination and actively promote racial equality, and has
provided effective mechanisms of redress.
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[FN6] Article 2 of the Covenant sets out the right to an effective remedy
for violations of the Covenant.
[FN7] Paras. 4.7 to 4.9, infra.
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4.5 In terms of the specific paragraphs of article 2, as to paragraph 1 (a),
the State party cites academic commentary to the effect that this provision
does not deal with private acts of discrimination (which are referred to in
subparagraphs (b) and (d)). [FN8] As the Toowomba Sports Ground Trust is a
private body rather than a public authority or government agent, its acts
fall outside the scope of paragraph 1 (a). As to paragraph 1 (b), the State
party relies on commentary that this provision is intended to prevent any
actor engaged in racial discrimination from receiving State support. [FN9]
The State party submits that neither the establishment of the Sports Ground
Trust, its continued existence, nor its response to the communication can be
taken as any State sponsorship, defence or support of any racial
discrimination committed by the Trust (which is denied).
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[FN8] Lerner, N.: The UN Convention on the Elimination of All Forms of
Racial Discrimination. The Netherlands, Sijthoff Noordhoff Publishers, 1980,
at 37.
[FN9] Ibid.
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4.6 As to paragraph 1 (c), the State party refers to its submissions below
that no racial discrimination has been suffered. [FN10] That the
petitioner's complaint under the Racial Discrimination Act was unsuccessful
does not detract from the effectiveness of that legislation, nor does it
suggest that the Act creates or perpetuates racial discrimination. As to
paragraph 1 (d), the State party again refers to its submissions that no
racial discrimination has occurred, and to its general remarks above on
article 2. [FN11] As to paragraph 1 (e), the State party refers to
commentary that this provision is "broadly and vaguely worded", leaving
undefined "[w]hat 'integrationist' movements are, and what 'strengthens'
racial division". [FN12] The State party recalls that Australia is a
multicultural society, and that its laws and policies are designed to
eliminate direct and indirect racial discrimination and actively to promote
racial equality. It refers to its periodic reports to the Committee for
in-depth description of these laws and policies. As to paragraph 2, the
State party submits that the petitioner has failed to indicate how the
circumstances of his case warrant the implementation of "special measures".
Alternatively, it refers to its submissions that no discrimination has taken
place for the conclusion that no need for "special measures" arises.
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[FN10] Paras. 4.19 to 4.15, infra.
[FN11] Para. 4.4, supra.
[FN12] Op.cit., at 38.
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4.7 As to the petitioner's claim under article 4, the State party invokes
its reservation to this article. [FN13] The State party recalls that
pursuant to its obligations under this article, it enacted Part II A of the
Racial Discrimination Act, including section 18 C, under which the
petitioner filed his claim. It further argues, based on the jurisprudence of
the Human Rights Committee, [FN14] that States parties must be accorded a
certain "margin of appreciation" in implementing their Convention
obligations.
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[FN13] 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)."
[FN14] Hertzberg et al. v. Finland Case No. 61/1979, Views adopted on 2
April 1982.
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4.8 The State party argues that the use of the term "because of" in section
18 of the Act, requiring a causal relationship between offensive conduct and
the race, colour or national or ethnic origin of the "targeted group", is an
appropriate manner to implement the obligation to prohibit the intentionally
racist acts described in article 4. This is consistent with the Convention
and avoids uncertainty. Accordingly, the State party argues that to use
"based on" in section 18 of the Act would not give appropriate effect to
article 4 of the Convention as implemented in Australian law.
4.9 The State party contends that the petitioner's complaint was not
dismissed on technical grounds, but for lack of substance. The Federal
Court, rejecting the contention that any use of the offending term must
necessarily be racially offensive, concluded that in the context in which
the offending term was used and the community perceptions of the sign on the
stand, the decision of the Trust to leave the sign intact did not breach
section 18 C of the Act. The State party invites the Committee to adopt the
approach of the Federal Court and take into consideration the context in
which the word is used in determining issues under article 4.
4.10 The State party refers to the following contextual elements: (i) the
fact that the offending term is displayed as "an integral part of the name
of a person who is clearly being honoured by having his name publicly
attached to the stand", (ii) the Federal Court's finding that "[e]ven if the
nickname 'Nigger' was originally bestowed long ago on Mr. Brown in
circumstances in which it then had a racial or even a racist connotation,
the evidence indicates that for many decades before the author's complaint,
its use as part of the customary identifier of Mr. Brown had ceased to have
any such connotation", (iii) the consulations with local indigenous persons,
(iv) the evidence of a former Aboriginal rugby league personality in the
area for whom the name was unproblematic and "simply part of history", and
(v) the absence of any complaint (until the petitioner's) over 40 years of
display at a ground often frequented by many indigenous persons despite
increased sensitivities and willingness to speak out in recent years.
4.11 In the light of the above, the State party contends that the Federal
Court's conclusion (upheld on appeal) that the trustees' refusal, conveyed
only after "in good faith [having] taken care to avoid offending the members
of a racial group" and which "is not, on an objective view, likely to offend
members of that group", was not an "act done because of the race of" any
person. While accepting that the petitioner subjectively felt offended, the
Committee should apply an objective test similar to that of the Federal
Court in finding that there was no suggestion that the trustees were
attempting to justify, promote or incite racial discrimination, contrary to
article 4 of the Convention.
4.12 In terms of the specific paragraphs (a) to (c) of article 4, the State
party argues that the petitioner has supplied no evidence as to how it may
have violated any of these obligations, including that it may be abetting
racist activities. It points to Part II A of the Act, which makes unlawful
offensive behaviour based on racial hatred, and to further legislation at
both State and
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. [FN15] The
State party observes that sections 9 (making racial discrimination unlawful)
[FN16] 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.
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[FN15] Airey v. Ireland (A 32 para. 30 (1980)), Dudgeon v. United Kingdom (A
45 para. 67 (1981)), Van der Mussele v. Belgium (A 70 para. 46 (1983)), The
Belgian Linguistic Case (Merits) (A para. 6 (1968)).
[FN16] For full text of the provision, see footnote 2, supra.
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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. [FN17]
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[FN17] Demba Talibe Diop v. France Case No. 2/1989, Opinion of 18 March
1991.
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4.17 On article 6, the State party notes that States possess a wide margin
of discretion in fulfilling their obligation under article 6. [FN18] It
submits that its domestic law, which provides for the filing and
determination of complaints of racial discrimination and the award of
remedies, including monetary compensation for successful complaints,
appropriately implements the obligation under article 6. The State party
emphasizes that the dismissal of the petitioner's complaint by the Federal
Court is no reflection on the effectiveness of the Act's remedies against
racial discrimination, or of the remedies available when complaints are
successful.
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[FN18] Valencia Rodriguez, L.: "The International Convention on the
Elimination of All Forms of Racial Discrimination" in Manual on Human Rights
Reporting Under Six Major International Instruments, New York, United
Nations, 1997, at 289.
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4.18 In any event, the State party submits that article 6, providing for
remedies, is accessory in nature and can only be found to have been violated
once a separate violation of the specific rights in the Convention has been
established. [FN19] As no other violation of the Convention has been
established (under arts. 2, 4, 5 or 7), nor can there be a consequent
violation of article 6.
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[FN19] See para. 4.4 and footnote 4, supra.
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4.19 As to the claim under article 7, the State party notes that the Act
came into effect the day after the Convention entered into force for the
State party. Moreover, federal, State and Territory governments have, over
the years, adopted a wide array of measures to combat effectively racial
prejudice and promote racial harmony, which are detailed in the State
party's periodic reports. That the petitioner was unsuccessful before the
domestic courts does not detract from the immediacy or effectiveness of
measures taken by the State party's governments to combat racial prejudice
and to promote racial harmony.
The Petitioner's Comments
5.1 By submission of 20 December 2002, the petitioner responded to the State
party's observations. He confirms that he is not asking the Committee to
review decisions of the domestic courts, but rather to assess compliance
with the Convention of the public display and repeated use in announcements
of the offending term. It is apparent from the outcome of the domestic
proceedings that the State party's domestic law is cast in overly
restrictive terms and does not give full effect to Convention obligations.
Nor does the petitioner ask the Committee to review the State party's law in
abstracto; rather, he complains of a specific breach of the Convention and
the State party's failure to provide a corresponding remedy.
5.2 The petitioner considers that subjective views of individuals referred
to by the State party who were not offended by the term in question is of no
relevance, as the question is whether the offence was felt by the petitioner
and his family. In any event, a considerable number of other persons shared
the petitioner's views on the stand, namely the Toowoomba Day Committee, the
Toowoomba Multicultural Association, over 80 people participating in a
"practical reconciliation" walk and 300 persons who signed a petition.
Affidavits to this effect were submitted to the Federal Court, but were not
admitted as evidence on technical grounds. [FN20] The petitioner invites the
Committee to take notice of these views. In any event, the petitioner
requests the Committee to conclude that the offending term is objectively
offensive, whatever the subjective views of various individuals.
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[FN20] This evidence is supplied to the Committee.
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5.3 As to the inferences to be drawn from the failure of his domestic
proceedings, the petitioner argues that this failure derived from the State
party's legislation being so narrowly drawn that it is exceedingly difficult
to prove discrimination, and thus it did not give full effect to the
Convention. This failure shows that the State party's law does not provide
effective protection against racial discrimination. He emphasizes that he
does not approach the Committee arguing a violation of domestic legislation,
but rather of the Convention itself.
5.4 As to the State party's specific arguments under article 2, the
petitioner observes that the State party has taken no steps to have the
offending sign removed, despite the controversy surrounding it for years.
This is said to be in violation of the duty, under article 2, to eliminate
and bring to an end all forms of racial discrimination. The petitioner
rejects the characterization of the Sports Ground Trust as a "private body".
He points out that trustees are appointed and can be removed by the
Minister, and that their function is to manage land for public (community)
purposes. Indeed, the State party's legislation provides that any liability
of the trustees attaches to the State. [FN21] It is therefore a public
authority or institution for Convention purposes.
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[FN21] Section 92 Lands Act 1994 (Queensland).
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5.5 As to the State party's specific arguments under article 4, the
petitioner objects to the reference to its reservation. He contends that the
reservation is "probably invalid" as incompatible with the object and
purpose of the Convention. Even if valid, he points out that the reservation
is temporally limited as it refers to the State party's intention "at the
first possible moment, to seek from Parliament legislation implementing the
terms of Article 4 (a)". Given that the State party contends that the Part
II A of the Act implements its obligations under the article, the
reservation must now have lapsed.
5.6 The petitioner points out that he is not objecting to use of the
offending term in the distant past, but rather its contemporary use and
display. He points out that it is not necessary to repeat the offensive
nickname in order to honour Mr. Brown, and it is not common in the State
party for stands to feature the nicknames of famous sportspeople in addition
to their proper names.
5.7 As to the State party's specific arguments under article 5, the
petitioner contends that he has established a racially-based distinction on
the basis that the offending term is racially offensive and derogatory, and
that white Australians are not affected as the petitioner and his family
have been. The inability as a consequence of the petitioner and his family
to attend the ground impaired their rights under article 5, including their
right to equal participation in cultural activities. As to the State party's
specific arguments under article 5, the author observes that the State party
failed to identify any measure of "teaching, education, culture and
information" directed at combating the trustees' discriminatory conduct, or
at promoting reconciliation amongst the many persons offended by the sign.
Issues and Proceedings Before the Committee
Consideration of Admissibility
6.1 Before considering any claims contained in a petition, the Committee on
the Elimination of Racial Discrimination must, in accordance with rule 91 of
its rules of procedure, decide whether or not it is admissible under the
Convention.
6.2 The Committee notes that the State party concedes that domestic remedies
have been exhausted. As to the State party's arguments that the petition
falls outside the scope of the Convention and/or is insufficiently
substantiated, the Committee considers that the petitioner has sufficiently
substantiated, for purposes of admissibility, that his individual claim may
fall within the scope of application of the provisions of the Convention.
Given the complexity of the arguments of both fact and law, the Committee
deems it more appropriate to determine the precise scope of the relevant
provisions of the Convention at the merits stage of the petition.
6.3 In the absence of any further objections to the admissibility of the
communication, the Committee declares the petition admissible and proceeds
to its examination of the merits.
Consideration of the Merits
7.1 Acting under article 14, paragraph 7 (a), of the International
Convention on the Elimination of All Forms of Racial Discrimination, the
Committee has considered the information submitted by the petitioner and the
State party.
7.2 The Committee has taken due account of the context within which the sign
bearing the offending term was originally erected in 1960, in particular the
fact that the offending term, as a nickname probably with reference to a
shoeshine brand, was not designed to demean or diminish its bearer, Mr.
Brown, who was neither black nor of aboriginal descent. Furthermore, for
significant periods neither Mr. Brown (for 12 years until his death) nor the
wider public (for 39 years until the petitioner's complaint) objected to the
presence of the sign.
7.3 Nevertheless, the Committee considers that that use and maintenance of
the offending term can at the present time be considered offensive and
insulting, even if for an extended period it may not have necessarily been
so regarded. The Committee considers, in fact, that the Convention, as a
living instrument, must be interpreted and applied taking into the
circumstances of contemporary society. In this context, the Committee
considers it to be its duty to recall the increased sensitivities in respect
of words such as the offending term appertaining today.
8. The Committee therefore notes with satisfaction the resolution adopted at
the Toowoomba public meeting of 29 July 1999 to the effect that, in the
interest of reconciliation, racially derogatory or offensive terms will not
be used or displayed in the future. At the same time, the Committee
considers that the memory of a distinguished sportsperson may be honoured in
ways other than by maintaining and displaying a public sign considered to be
racially offensive. The Committee recommends that the State party take the
necessary measures to secure the removal of the offending term from the sign
in question, and to inform the Committee of such action it takes in this
respect.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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