Date: 
Tuesday 28 April 2015

Author

Dr Tim Soutphommasane, Race Discrimination Commissioner

This year marks 40 years since the Commonwealth Parliament enacted the Racial Discrimination Act 1975 (Cth). The legislation did not enjoy an easy birth. In parliamentary debates it was met with fierce resistance from some quarters. One senator predicted that, far from eliminating racial discrimination, the law would have “the most dangerous effect” of creating “an official race relations industry with a staff of dedicated anti-racists” intent on persecuting white Australians (Senator Glen Sheil, The Senate, 15 May 1975). Another fulminated that “it is a lot of utter nonsense and rubbish to bring such a Bill before this Parliament” since “racialism in this country probably is practised less than it is in the big majority of countries” (Senator Ian Wood, The Senate, 22 May 1975).

Yet the Bill for Australia’s first Commonwealth human rights legislation would eventually pass. At a ceremony for the proclamation of the Act, Prime Minister Gough Whitlam reflected that the legislation was “a historic measure” which was concerned not only with redressing present abuses and past injustices but also setting standards for the future. It was about building, as he put it, “a climate of maturity, of goodwill, of co-operation and understanding at all levels of society” (Whitlam EG, 31 October 1975).

The Act’s history has been marked by contesting visions of the law, justice and Australian society. As demonstrated by recent debates about free speech and racial vilification – prompted by the proposed repeal of s 18C of the Act – the law has had its share of controversies. Yet the significance of the law can be overlooked.

This is in part because of Australia’s relatively quiet march towards racial equality. In the United States, civil rights legislation was enacted as the culmination of a rights struggle: one thinks of Brown v Board of Education of Topeka 347 US 483 (1954), Emmett Till, Rosa Parks, Selma and Martin Luther King Jr. A nation came to believe that it could fulfil a certain dream. By contrast, in Australia the forces behind the introduction of racial equality laws came as much from the international sphere as they did from the domestic. The Act was introduced to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination.

But in a number of respects the Act has undeniably made a significant impact in Australia. The legislation filled a gap in Australian law. Prior to the legislation’s introduction, non-violent acts of racism were typically beyond the reach of the law. The general right to be free from being discriminated against on racial grounds – indeed on any ground – has never been developed in common law. It fell to the Act to establish that right.

Former Chief Justice of the High Court, Sir Harry Gibbs, writing in the Monash University Law Review in 1982, described the legislation as providing to some extent “a bill of rights”. (1) Through s 10, the Act can override any State or Territory legislation that discriminates on the basis of race. This guarantee of equality before the law has established a national standard of racial non-discrimination, although the effect of this standard should not be overstated. There have been 26 occasions when an Australian court has considered an alleged inconsistency of a State or Territory law with the Act, but on only seven occasions have such cases succeeded (for example, in Mabo v Queensland [No 1] (1988) 166 CLR 186; 63 ALJR 84), demonstrating the unfulfilled potential of the legislation. (2)

Throughout, the legislation has retained its civil character. Contrary to popular perception, no one can be prosecuted or convicted for breaching the Act. Racial discrimination may be unlawful, but it does not constitute a criminal offence attracting penalties. When someone believes they have experienced racial discrimination, they are able to make a complaint to the Australian Human Rights Commission (AHRC) and to seek remedies. Since the legislation has been in effect, more than 6,000 complaints about racial discrimination have been successfully conciliated, with fewer than 300 reported decisions made by a court or tribunal over that time. (3) In 2013-2014, the AHRC finalised 443 complaints under the Act; of those, just 14 (3%) proceeded to court. The relatively small number of litigated cases highlights the conciliatory and educative force of the Act.

The impact of the Act has been limited by one thing: without protections against racial discrimination embedded in the Constitution, the principle of racial non-discrimination remains vulnerable to the vicissitudes of politics. The States and Territories might have their powers limited by the Act, but the Commonwealth Parliament has the power to repeal, amend or suspend the legislation. Indeed, the Parliament has suspended the operation of the Act on a number of occasions – most recently with regard to the first Northern Territory Intervention in 2007.

As Megan Davis and George Williams explain, the introduction of a constitutional prohibition on racial discrimination would “incorporate a new, significant protection into the Constitution”. It would promote greater deliberation and scrutiny of laws that may have racially discriminatory effects, acting as “a significant check upon the rushing of legislation through Parliament”. (4) The “rushing of legislation” in the absence of constitutional protection was apparent in 2007: the five legislative Bills that enabled the Northern Territory Intervention were passed by both houses barely a week after they were first introduced, with very limited parliamentary debate.

Such realities should temper any celebration of the legislation. The presence of the Act has not eradicated racial discrimination. The law has not prevented the significant rise in the incidence of racial and religious discrimination recorded in notable surveys on social cohesion.  Yet it seems unfair to expect that a single piece of legislation could, on its own, transform a political culture – particularly, if there may be other elements in that political culture that work to undermine its goals.

It should go without saying that we cannot rely on legislation – and legislation alone – to achieve social change. Yet, from the outset the Act has been concerned with social change. In his Second Reading Speech in 1975, Attorney-General, Kep Enderby (House of Representatives, 13 February 1975), explained it the following way:

"The proscribing of racial discrimination in legislative form will ... make people more aware of the evils ... of discrimination ... and make them more obvious and conspicuous. In this regard the Bill will perform an important educative role ... The fact that racial discrimination is unlawful will make it easier for people to resist social pressures that result in discrimination".

If the law does educate, it is because the law stands to express a community’s political morality. The law sets a standard for how we live together. The law reflects our aspirations for fairness and justice.

For over four decades of social change, the Racial Discrimination Act has stood firm against prejudice and bigotry. It stands as a statement from our society that it is committed to decency and justice. It stands to remind people that their country will protect them from discrimination and vilification – that their country will guarantee that freedom is not a privilege of the powerful, but something to be enjoyed by all.

While no law can ever eradicate the social evil of racism – no law can ever banish hatred, ignorance and arrogance – an instrument like the Racial Discrimination Act does make us stronger and more united. It ensures that every Australian can be free to pursue their happiness with the assurance of dignity and equality.

(1) Gibbs H, “Eleventh Wilfred Fullagar Memorial Lecture: The Constitutional Protection of Human Rights” (1982) 9(1) MULR 1.

(2) Williams G and Reynolds D, “The Racial Discrimination Act and Inconsistency with State and Federal Laws”, Paper presented at the RDA@40 Conference, Sydney, 19-20 February 2015.

(3) Gaze B, “The Racial Discrimination Act after 40 years: Advancing equality or sliding into obsolescence?”, Paper presented at the RDA@40 Conference, Sydney, 19-20 February 2015.

(4) See Markus A, “Mapping Social Cohesion: The Scanlon Foundation surveys 2014”, http://apo.org.au/node/41955.

Published in: 
Law Society of NSW Journal