Race Discrimination Commissioner The Racial Discrimination Act A REVIEW December 1995 © Commonwealth of Australia 1995 ISBN 0 642 24407 3 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Australian Government Publishing Service. Requests and inquiries concerning reproduction rights should be directed to the Manager, Commonwealth Information Services, Australian Government Publishing Service, GPO Box 84, Canberra ACT 2601. CONTENTS Foreword vii 1 Background to the Review 1 The Racial Discrimination Act 2 The Review This Publication 14 THE RDA IN CONTEXT 2 International Influences on Domestic Race Relations 19 Convention on the Elimination of All Forms of Racial Discrimination 20 Continuing International Influences 26 Implementing International Standards: The Draft Model Law 30 3 How Does The Racial Discrimination Act Operate? 33 Overview 33 The Dispute Resolution Framework 35 Enforcement Of Determinations 44 4 Redrafting The Act: Are there any Constitutional Limitations? 47 Introduction 47 The External Affairs Power 48 Implications for Legislative Reform of the Racial Discrimination Act 52 Conclusion 53 Part II of The Racial Discrimination Act 55 Introduction 55 The Proscriptions 56 Definition Of Discrimination 60 The Non - Discrimination Principle 63 Which Rights must be Infringed for the RDA To Apply? 68 Statutory Discretions 71 Definition of "Racial" Discrimination 72 Conclusion 78 PAPERS 6 Revisiting Race 81 Margaret Thornton The Law And Indirect Racial Discrimination: Of Square Pegs, Round Holes, Babies And Bathwater? 101 Phillip Tahmindjis 8 Fighting Racial Hatred 129 Saku Akmeemana and Melinda Jones 9 Special Measures 183 Sarah Pritchard Special Measures — A Response 233 Garth Nettheim 10 Racial Discrimination, Collective Rights And Group Rights 243 Natan Lerner 11 A Question Of Identity: The Intersection of Race and Other Grounds of Discrimination 261 Hilary Astor 12 Remedies 273 Chris Sidoti 13 Access to the Racial Discrimination Act 287 Greta Bird 14 Further Issues Relating to the Operation of the Legislation 299 Lodging Complaints 299 The Complaints Process 304 Compliance 307 Interaction with other Pieces of legislation 310 15 Where To From Here? 323 How to make a Submission or Comment 324 APPENDICES A Racial Discrimination Act 1975 325 International Convention on the Elimination of All Forms of Racial Discrimination 377 Model Law Against Racial Discrimination 393 Bibliography 403 List Of Cases 423 Acronyms 425 FOREWORD The Commonwealth Attorney-General, the Hon. Michael Lavarch, launched the review of the Racial Discrimination Act (RDA) on 7 August 1995. Along with a number of academics, practitioners and experts in the field of anti-discrimination law, Mr Lavarch addressed a seminar held by the Race Discrimination Unit of the Human Rights and Equal Opportunity Commission in conjunction with the Human Rights Centre at the University of New South Wales to discuss future legislative directions for combatting racial discrimination in Australia. The papers presented at the seminar are the core of this publication. Why review the RDA now? Enacted in 1975, in response to Australia's international obligations under the Convention for the Elimination of All Forms of Racial Discrimination the RDA has been operating for 20 years providing, among other things, individual redress for complaints of racial discrimination. There have been a number of individual success stories and some landmark court cases. However, as the first piece of anti-discrimination legislation enacted by the Commonwealth, the RDA is showing its age. In the Act's 20th anniversary year and in this International Year for Tolerance it is timely and necessary to review the legislation in the context of modern Australian society, a society quite different to that of 1975. This review focuses on the practical problems in the operation of the Act and its broader conceptual deficiencies in light of developments in both international and domestic law. Key questions are addressed to determine how the Act can better reflect contemporary social justice thinking. We know that few complaints have been lodged under the Act's indirect discrimination provision, and its transformative potential remains unrealised. How do we utilise the RDA to tackle systemic race discrimination more effectively and what role can 'special measures' play in this process? It is important to grasp the complexities of racial discrimination, such as where issues of race and gender intersect. Is it possible to balance both the human rights of individuals and the collective rights of distinct communities? Should the RDA encompass the notion of self-determination for indigenous Australians? If so, how? I recognise the limits inherent in the legal system in altering racist behaviour and the entrenched attitudes that underlie systemic discrimination. However, the law does have a vital role to play in delegitimising racial discrimination and ensuring an avenue for redress. This publication contributes to the academic literature on the RDA and racial discrimination in Australia. It also forms the basis for further discussion on the VII Act's future. Community groups for whom the RDA should be a tool of empowerment must have their say on the appropriateness of legislative reform and remedies. Consultations are therefore planned for early 1996 to inform the next stage of the review process. Ultimately, we plan to produce a list of proposed policy and legislative amendments aimed at creating a more effective and accessible means of challenging racial discrimination in contemporary Australia. In preparing this publication, I am very grateful to Melinda Jones and George Zdenkowski of the Human Rights Centre for their efforts in co-hosting the RDA Review Seminar at the University of NSW and for their additional editorial assistance. The seminar was the focal point of the initial phase of the review, providing an important forum for the development of a more interactive relationship between the Commission and those who are experienced in the workings of race-related public policy and anti-discrimination law throughout Australia. I am indebted to all of the participants at that event for their invaluable insights, and particular thanks go to the speakers whose papers make up the bulk of this publication. We are lucky to have the benefit of a collection of such eminent academics and practitioners as Margaret Thornton, Phillip Tahmindjis, Sarah Pritchard, Garth Nettheim, Natan Lerner, Hilary Astor, Chris Sidoti and Greta Bird. I would also like to acknowledge the contribution of Mick Dodson and the staff of the Aboriginal and Torres Strait Islander Social Justice Unit to the seminar and the ongoing review process, as well as acknowledging Kate Eastman, Melinda Jones, Deborah Nance and Sarah Pritchard who each provided additional and much appreciated comments on various sections of the background papers. My thanks of course also go to the indefatigable staff of the Race Discrimination Unit. All have been involved but I am particularly grateful to Saku Akmeemana and Teya Dusseldorp who have been responsible for drawing together the seminar proceedings, writing the additional background papers and raising issues for further consideration. My thanks also to Ian Hazeldine and Tina McCormack for providing research and other assistance. ■ ZITA ANTONIOS Race Discrimination Commissioner December 1995 viii CHAPTER 1 BACKGROUND TO THE REVIEW The Racial Discrimination Act 1975 (Cth) (RDA) was the first piece of anti-discrimination legislation enacted by the Commonwealth Parliament. Prior to the passage of the RDA, the common law provided few effective remedies against discrimination based on race or any other grounds.1 In the last twenty years, all states and territories except Tasmania have enacted comprehensive anti-discrimination legislation which, among other things, renders racial discrimination unlawful.2 While these pieces of legislation do not proscribe all forms of discrimination, they attempt to ensure that people are not disadvantaged economically, socially or politically because of invidious distinctions based on race. There are undoubtedly limits to the redress that law can provide. Nonetheless, the legislation has had tremendous normative and symbolic significance and a considerable influence in moderating behaviour. This review has been prompted by the fact that, while ad hoc amendments have been made to the RDA, a comprehensive review of the effectiveness of the Act has not been undertaken. It is necessary to evaluate the adequacy of the Act in meeting the needs of those for whom it should be a tool of empowerment. This chapter will briefly survey the history of the RDA and some of the major amendments that have been made to the Act. It also outlines the background, scope, and methodology of the Review. 1. Further, the Australian Constitution provides few explicit guarantees of fundamental human rights or freedoms, and the only reference to racial minorities was inserted with the intention of restricting their rights, not with enhancing them: Joske, Australian Federal Government, Butterworths, 1967, p 225. See Chapter 4. 2. The first statute in Australia to specifically deal with racial discrimination, or indeed discrimination against any group, was the Prohibition of Discrimination Act 1966 in South Australia. This statute was limited in its scope and was eventually repealed and replaced