Strategies to address discrimination and build a more inclusive country with tolerance and respect for all Australians

By John von Doussa QC

President, Human Rights and Equal Opportunity Commission

Australian Red Cross National Conference 2006

Sydney, 25 November 2006


INTRODUCTION

I would like to acknowledge the Gadigal people of the Eora people, the traditional owners of the land on which we meet today, and pay my respects to their elders.

The topic I have been asked to speak about today is strategies to address discrimination and build a more inclusive country with tolerance and respect for all Australians.

 

ACKNOWLEDGING THAT DISCRIMINATION IS A PROBLEM

The first step in addressing discrimination is to acknowledge the gravity of the problem. The harsh reality is that despite Australia’s image of itself as a fair and tolerant society, discriminatory attitudes still infect workplaces, public attitudes, law and policies.

As Australia’s national human rights institution, the Human Rights and Equal Opportunity Commission (HREOC) has a watching brief on the protection of human rights in Australia. The concept of human rights is based on a common recognition of the importance of fair treatment for all and the belief that people should be able to live free of violence, discrimination and abuse.

HREOC is charged with promoting public understanding and acceptance of human rights. We also have statutory obligations to investigate and attempt to conciliate complaints of unlawful discrimination under the federal anti-discrimination laws.

While many Australians like to think that the spirit of a ‘fair go’ is embedded in Australian culture, history tells a different story. The White Australia policy reflects the deep vein of racism that pervaded public administration for a large part of the last century. Ten years after HREOC’s Bringing them home report (which dealt with the forced removal of Aboriginal children from their families) only the Tasmanian Government has had the moral courage to introduce a compensation package for members of that stolen generation.

It is true that there are many aspects of Australia’s history that we can be justifiably proud of. Yet at the same time as we venerate the stability and success of our democracy, the bravery of our war veterans, and the triumphs of our sporting heroes we must also acknowledge the shameful blights on Australia’s human record. Recognising past injustices is vital to understand the reasons why discrimination persists today, and can help in preventing it in the future.

Today the entrenched deprivation and discrimination still facing Indigenous Australians is a matter of national shame. The existence of significant disparities between the health status of Indigenous and non-Indigenous Australians is acknowledged by all governments and recognised as unacceptable. The United Nations Special Rapporteur on adequate housing has found that ‘Indigenous peoples experience substantial discrimination in Australia in accessing adequate housing and the private housing market’.[1] And while the findings and recommendations of the 1991 Royal Commission into Aboriginal Deaths in Custody should be old news, the tragic death of Mulrunji on Palm Island illustrates that there are still systematic problems in the policing of Indigenous communities.

The fear of difference and its unknown potential has always had a corrosive effect on community relations in Australia. Throughout the 19th and 20th century, successive waves of migrants have been viewed in turn with suspicion and hostility. Today, the threat of terrorism has been accompanied by a rising tide of suspicion and intolerance directed at Australia’s Arab and Muslim communities. Indeed, in some pockets of public opinion there is a virulent strain of anti-Muslim prejudice fuelled by the erroneous belief that all Muslims are, by their faith, terrorists or terrorist sympathisers. Such prejudices and stereotypes must be dispelled.

In Australia feminists have fought many battles: for suffrage, for equal pay, for freedom from violence. Yet despite the victories, the battles for equality are not over. Today is both White Ribbon Day and the United Nations International Day for Elimination of Violence Against Women. The International Violence Against Women Survey shows that 34 per cent of Australian women who have a current or former intimate partner reported experiencing at least one form of violence during their lifetime. 

If women cannot expect to be safe in their own homes and communities, how can they expect equality in society? Violence against women is not a women’s issue, or a men’s issue: it’s everyone’s issue. White Ribbon Day is an opportunity for men – including White Ribbon Day Ambassadors like myself – to condemn all violence against women.

Gender inequality is still a serious issue in the workplace even though the Sex Discrimination Act has been in force in Australia for 21 years. The average weekly earnings for full-time women workers are only 84.4% of their male equivalents. Women are still grossly underrepresented in political life, in executive management, and on the benches of Australian courts. [2]

Many of the disparities between the wages and working conditions of men and women start to open up when women have children. Instead of being a cause for celebration, for women, pregnancy often comes with financial penalties. Despite the best efforts of Pru Goward, as Sex Discrimination Commissioner, the battle for paid maternity leave is still to be won. Pregnancy discrimination in the workplace remains a frequent cause for complaint to HREOC.

STRATEGIES TO ADDRESS DISCRIMINATION

I have taken the time to set out examples of discrimination in contemporary Australian society because I think too often our desire to look at ourselves through rose tinted glasses allows us to abrogate our responsibility to address the situation of those for whom the principles of equal treatment and equal opportunity are not yet realities.

Once we have acknowledged the problems, we start talking about how to fix them. Discriminatory attitudes are often deeply embedded and hard to shake. Overcoming prejudice requires education, community engagement and dialogue, leadership and, laws and policies which reflect – and promote – the principle of non-discrimination.

Education

When we talk about strategies to address discrimination, we must talk about education. It must be the essential central plank to every strategy. The assumption that Australians are inherently fair is as dangerous as the assumption that children are inherently good. The way we treat others reflects the way we have been taught to treat others. Misinformation and ignorance are the staple ingredients of stereotypes and prejudices.

A vital part of the HREOC’s work is conducting projects that disseminate information to counter stereotypes and encourage human rights compliant behaviour. HREOC’s ‘Face the Facts’ publications dispel myths about refugees and Indigenous people and our ‘Voices of Australia’ resources encourages greater understanding between people of different racial backgrounds, cultures and religions through the sharing of their experiences.

HREOC encourages employers to create a discrimination and harassment free environment through our 'Good practice, good business’ guide, while employees can obtain information about their rights under discrimination law on our 'Work out your rights' pamphlets. All these publications are readily available on the HREOC website at www.humanrights.gov.au .

While I do not intend to test your good will by detailing all of HREOC’s educational activities, I do want to touch on two subjects that are currently concerning HREOC: discrimination against Arab and Muslim Australians and discrimination against same sex couples.

Muslim projects

In today’s tense and sometimes hostile environment, experiences of discrimination can alienate and isolate members of minority groups, and it has done in the Muslim community. This marginalisation can lead to radicalisation

Currently, fears and stereotypes about Arab and Muslim Australians are having a corrosive impact on community relations in Australia.

In 2004, after spending a year conducting very extensive consultations with Arab and Muslim Australians, HREOC published the Isma report. The report revealed a disturbing level of discrimination, vilification and violence against these groups. Participants recounted experiences ranging from offensive remarks about race or religion, to physical violence, including Muslim women having their hijabs pulled off.

What the Isma report also found was that in many cases those interviewed did not report instances of vilification or violence to police or other government authorities. The report recommended that in order to reduce the risk of further marginalisation of Arab and Muslim communities strategies should be developed:

  • to build better relationships between communities and law enforcement agencies; and
  • to educate communities members about the legal remedies for discrimination.

In response, the Commission has recently undertaken two projects funded by the Department of Immigration and Multicultural Affairs (DIMA): the Unlocking Doors: Muslim communities and police tackling racial and religious discrimination and abuse Project and the Living Spirit: Muslim women and human rights Project.

The Unlocking Doors Project aimed to facilitate dialogue between Muslim communities and Police in order to build on the capacity of Police to respond to incidents of racial or religious abuse and the Living Spirit Project aimed at increasing an understanding among Muslim women about human rights principles and the domestic framework for promoting equality in Australia. These projects will be continued and expanded over the next few years.

Besides their educational value, these projects assist those who are suffering discrimination to engage directly with the wider community. Engagement helps leads to inclusiveness.

There is an event happening at this moment elsewhere in Sydney which exemplifies the importance of community engagement in addressing discrimination. It is a one day conference titled 'All Eyez on Youth' - part of the solution, not the problem'. The conference is open to young people of all backgrounds to give them an opportunity to have their say, and get involved in issues that directly affect them. Participants , including Muslim, African, Pacific Island and Indigenous young people, are taking part in interactive workshops on human rights and responsibilities (with a focus on racial and religious discrimination), youth and the police, and youth and the media.

Community engagement depends on community interaction – in education, in employment and in sport. Sport is an integral part of Australia’s identity; a kind of social glue, which binds communities and individuals together. Sport can break down barriers in ways that other areas of society can struggle to match, by encouraging participation, integration and diversity.

As AFL Chief Executive Andrew Demetriou said:

"To many people football is a fantastic introduction to life in this country. People may not share the same language, same beliefs or same heritage, but they can join together and certainly share the same passion for a football club".

The broad appeal of sport is obvious. As the AFL 2006 ‘Welcome to the AFL’ Ambassador and former Hawthorn player Angelo Lekkas, a Greek-Australian who grew up in Melbourne observed:

"What crystallized for me the broad appeal of Aussie Rules was a beautiful picture in the paper recently of a group of young Muslim Australian women making their way to the footy with team scarves over their hijabs – if pictures could tell a thousand words, well that one conveyed so much more”.

Many sporting organistions are taking a leadership role in tackling racism and encouraging participation from a diverse range of communities. The importance of these actions in helping to build a more inclusive and respectful society is immeasurable.

Same Sex Inquiry

One powerful educational tool that HREOC uses to draw public attention to discrimination issues is to hold a public inquiry. This year the Commission launched a National Inquiry into the discrimination faced by same sex couples in relation to financial and work-related entitlements.

The Inquiry is conducting an audit of State, Territory and Commonwealth laws that exclude gay and lesbian couples from financial and work-related benefits available to heterosexual couples.[3]

The right to non-discrimination and the right to equality before the law are fundamental principles of international human rights law.  

Yet many Australian laws clearly deny certain rights to gay and lesbian couples and their children. For example, laws relating to social security, superannuation, tax, Medicare, the Pharmaceutical Benefits Scheme, workplace entitlements, aged care, immigration and family law treat same-sex couples differently to opposite sex couples.

The submissions HREOC has received illustrate how laws treat gay and lesbian couples as second class citizens, not deserving of the same rights as heterosexual couples. As one person put it:

“The inequalities embedded in current legislation are obvious and are inexcusable. "Understanding, tolerance and inclusion" are said to be values of the Australian community. Current legislation tells another story”. [4]

One purpose of the inquiry is to create public awareness and understanding of the discrimination that faces same-sex couples face in the daily administration of their affairs. But ultimately we don’t just want people to understand the discrimination that they face, we want the government to fix it.

In 2007, HREOC will make recommendations to Parliament for amendments to the discriminatory laws.

Public Leadership and legislative action

This brings me to other steps in addressing discrimination – political will and legislative action. HREOC’s community consultations and monitoring reveal disturbing levels of discrimination directed at some minority groups in Australia. In the current climate of fear and insecurity, political and community leaders have a vital role to play in speaking out against discrimination and promoting the principles of multiculturalism and social inclusion.

Positive public statements can be extraordinarily powerful and send a vital symbolic message to the community that discrimination is never acceptable.

Yet political leaders must be careful that initiatives which aim to improve social cohesion do not inadvertently further marginalise certain groups. In this context, HREOC questions the utility of the Australian Government’s proposal to introduce a citizenship test featuring a formal test on language and ‘Australian values’. Although the stated objective of citizenship test is to promote social cohesion, HREOC is concerned that the proposal will have exactly the opposite effect.

A formal test on ‘Australian values’ may send a message to the broader Australian community that certain migrant groups and refugees do not respect or understand the Australian way of life. This would have the potential to reinforce negative stereotypes. The idea of testing ‘Australian values’ also ignores the fact that values like tolerance, mutual respect and fairness are not peculiar to Australia but are shared by many people around the world.

HREOC believes that the best way to develop a commitment to Australian values and way of life is through positive, day to day interactions within the community, through education, community activities, sport and employment.

All these strategies need to be directed to two audiences: the discriminators and those suffering the discrimination. The strategies need to be tailored to suit each group. At the most general level, for those who are discriminating the strategies should be aimed at dispelling prejudices and changing attitudes. For those discriminated against the strategies should be aimed at empowerment to enable them to more fully participate as equals in the wider community.

However, public statements, education and engagement in some circumstance are not enough. Sometimes people need legal protection from discrimination.

Federal anti-discrimination laws go a long way towards providing legal remedies for discrimination on the basis of sex, race, colour, descent or ethnic origin, disability, age, marital status, family responsibilities and pregnancy. Yet there are gaps in the protection.

Under federal discrimination law there are no binding remedies for discrimination on the grounds of religion, political opinion, criminal record, nationality, sexual preference and trade union activity. HREOC continues to advocate that there should be legal remedies for discrimination on these grounds.

Improving human rights protection

One of the important questions that HREOC’s same sex Inquiry raises is how did laws which have a clearly discriminatory effect on the day to day lives of many Australians get passed in the first place?  

The fact that a raft of discriminatory legislation has travelled through parliamentary processes without any discussion of how it might discriminate against same-sex couples tells us that we need to find a better way to test the human rights compatibility of proposed legislation.

While no one can question the value of parliamentary committees scrutinising new Bills, this process is subject to fundamental limitations. The parliamentary committee process occurs after the legislation has been drafted, the policy objectives formulated and, more often than not, after politicians have publicly committed to the Bill’s implementation.  There is no explicit requirement for the committees to investigate the human rights compatibility of the proposed bill.  Perhaps most importantly, the government is under no obligation to implement – or even respond to – committees’ recommendations.

Under the recent Victorian Charter of Rights and Responsibilities Act 2006 the Victorian Government must pay attention to the human rights impact of new laws and policies:

  • submissions to Cabinet about new laws or policies must be accompanied by a Human Rights Impact Statement;
  • new Bills must be accompanied by a human rights compatibility statement;
  • a parliamentary scrutiny committee must independently assess the human rights compatibility of new Bills; and
  • Parliament must justify its actions if it decides to pass laws which are inconsistent with human rights principles.

These provisions represent an important step forward for human rights because they integrate human rights principles into the daily decision making of the legislature and the executive. They provide a blue print for a “Guide to Good Governance” that law makers should follow.

We hear many arguments against a Bill of Rights in this country: a Bill could entrench rights that become outdated, like the US right to bear arms; a Bill would vest law making power in an unelected judiciary. But these types of arguments offer no reason against a ‘Guide to Good Governance’, and I suspect that if this was explained to the electors, there would be strong support for it.

Addressing Discrimination is everybody’s responsibility

In the final analysis addressing discrimination is not just the responsibility of law makers, or indeed human rights organisations. Addressing discrimination is everyone’s responsibility. All of us must take responsibility for addressing discrimination.

To foster a human rights culture we need education, political and community leadership and legislative action. The final ingredient is community engagement. We need to engage – through education, though political debate, through community dialogue – in a national conversation about protecting human rights.

The Human Rights and Equal Opportunity Commission and Australian Red Cross have this year jointly conducted two very successful projects: the Rights in Perspective Art Competition and the Human Writes Essay Competition. These competitions are another way of encourage young people in Australia to engage with human rights issues. In the big picture, it’s a small step, but the big picture is full of small steps.

At a basic level we all need to have the courage to speak out against discrimination even when it’s socially unpopular or politically unpalatable to do so. Because ultimately, it is only by addressing discrimination than can we create a truly inclusive and respectful society.


[1] United Nations Special Rapporteur on adequate housing, Miloon Kothari Preliminary observations Canberra 15 August 2006, 7.

[2] The Equal Opportunity for Women in the Workplace census in 2004 showed that in the top 200 listed companies women held only 10.2 per cent of executive management positions.

[3] So far we have received over 360 submissions to this inquiry. Still more people have attended the public forums and hearings HREOC has held across Australia.

[4] James Duncan, Submission 288.

Address

Australia