Statement: “One Nation intends to abolish multiculturalism and the Racial Discrimination Act of 1975 based on the United Nations Convention on Elimination of All Forms of Racial Discrimination as it is unconstitutional.”
The Racial Discrimination Act is not unconstitutional and is valid in all respects
- Whether legislation is valid is determined by whether the Commonwealth had the legislative power under section 51 of the Constitution of Australia to legislate the subject matter of the Act.
- Section 51(xxix) of the Constitution grants the Commonwealth power to legislate with respect to “external affairs”. In general, the relation of Australia with all countries outside Australia are matters which fall within the subject of external affairs. This includes preservation of relations with other international persons, including the United Nations.
- In Koowarta v Bjelke-Petersen and Ors (1982), majority of the High Court held that the Racial Discrimination Act 1975, particularly section 9 (which is the key general provision that racial discrimination is unlawful), was valid with respect to external affairs within s 51(xxix) of the Constitution. Essentially, it was held by the majority that the external affairs power enabled the Parliament to legislate for the purpose of implementing a treaty by carrying out the obligations to enact a law that Australia assumed by the treaty.
- Australia became a signatory through its own independent choice and ratified the Convention on 30 September 1975. Under the Convention, where signatures are subject to ratification, acceptance or approval, the signature does not establish the consent to be bound. However, it is a means of authentication and expresses a willingness of the signatory state to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty. Ratification defines the international act whereby a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act.
- Historically, Australia has consistently shown a strong commitment to human rights, as recorded in “Australia’s Approach to International Treaties on Human Rights” by Dominique F J J De Stoop – (http://www.austlii.edu.au/au/journals/AUYrBkIntLaw/1973/4.pdf). Previously the Government had shown restraint in committing Australia to international obligations until the Government was first satisfied that the relevant laws and practices are in accord with the requirements of the treaty. It was subsequently indicated that the Government was prepared to not wait for all the State to bring their laws and practices in line with the requirements of some treaties before ratifying. Where States did not cooperate, the Government was prepared to introduce legislation in the Australian Parliament to overcome existing defects in law and practice – this was the case for the introduction of the Human Rights Bill and the Racial Discrimination Bill on 21 November 1973