Article 2 of the Convention on the Elimination of All Forms of Racial Discrimination, ratified by Australia, provides:

"2. States Parties condemn racial discrimination and undertake immediately to pursue by all appropriate means a policy of eliminating racial discrimination in all its forms and promoting understanding among all races."

The United Nations Human Rights Committee (UNHRC) in 2021 made the following recommendation for the implementation of Article 2. This followed a marked increase in racist incidents around the world, especially at major sporting events.

"29. All member States to implement legal measures prohibiting any incitement to abuse or violence against people of African descent including through the media, the internet and social media after having undertaken a public education campaign for at least three (3) months prior to such measures becoming operative; and to encourage the development and implementation of methods of self-monitoring by the media through codes of conduct for media organizations in order to eliminate the use of racially discriminatory or biased language."

The UNHRC was set up under the Convention to monitor the Convention's implementation. The Commonwealth Parliament immediately enacts the Racial Discrimination (Media Regulation) Act 2022 (Cth) without any public education campaign. Section 5, alone purporting to implement Recommendation 29, provides as follows:

"5. It is unlawful for any person in any communication, whether in speech, writing, or non- verbal conduct, to make reference to persons of African, Aboriginal or Torres Strait Islander descent as being in any way racially inferior to other races, whether or not the communication incites violence against such persons. The penalty for unlawful conduct pursuant to this section is imprisonment for a maximum term of 3 years."

The definition section of the Act makes it applicable only to persons employed by media organisations (whether in print, broadcasting or online) or who otherwise use these mediums to make an unlawful communication. The remainder of the Act provides for its administration by the Commonwealth Racial Discrimination Commissioner.

Is s 5 valid? Why? Would your answer differ if Art 2 was a draft recommendation of the UNHRC?