Racial equality re-examined

Australia is one of the most diverse nations on earth. Australians speak some 364 languages, of which 170 are Indigenous languages. Between 1996 and 1998, 52 per cent of marriages in Australia were “mixed” in the sense that they involved people from different countries of origin. Forty-three per cent of Australians have one or both parents who were born overseas.

As the Australian Race Discrimination Commissioner, I am concerned that Australia remains responsive to this growing diversity. An important element of any such response must include the provision of a strong legislative framework that gives legal redress to racial discrimination and vilification and promotes equality in all aspects of our life.

The Federal Racial Discrimination Act 1975 (RDA) was implemented in 1975. Significant amendments were made to it in 1995, making racial hatred an unlawful act. Other than these amendments there has been no substantial change to the legislation since its enactment 33 years ago.

For these reasons it is timely that we undertake a comprehensive review of the RDA to establish whether it is still effective and useful in contemporary Australian society.

My background paper, An International Comparison of the Racial Discrimination Act 1975, is the first in a series of publications designed to enable a thorough examination and evaluation of the RDA. The paper examines the RDA in the context of contemporary race discrimination legislation in UK, USA, Canada and the European Union.

By looking at the way in which other similarly placed nations have responded legislatively to the problems of racial discrimination and inequality, we are presented with a series of alternative models against which the current Australian legislation may be compared.

The background paper examines racial discrimination legislation in all the jurisdictions in relation to seven characteristics: standing to initiate a complaint/proceedings; elements of discrimination; grounds of discrimination; special measures; racial vilification; positive duties, and the burden of proving discrimination. The paper provides a comprehensive range of options and directions for legislative reform in Australia. I will now discuss some of the more significant areas in which the legislative protection provided by the RDA appears to be lagging.

Promoting equality

All of the jurisdictions studied display a shift away from laws which merely prohibit discrimination and racial vilification, towards those which also place a positive duty on particular sectors of society to promote racial equality. These new, positive duties have been described as “fourth generation” race discrimination laws, which look beyond the remedial model of compensating individual victims of discrimination and move toward systemic mechanisms for preventing discrimination from occurring.

For instance, the obligation to pro-actively eliminate discrimination and promote equality of opportunity has been imposed on a number of different entities, including the public sector (in all jurisdictions, to varying extents), government contractors (Canada and the US) and some private sector organisations (Canada).

While in most jurisdictions this duty is limited to the area of employment, in the UK this duty is applicable to all functions of public bodies.

In Canada and the UK (and, to some extent, in the US) these positive duties are monitored by human rights bodies and may be enforced by bringing an action before a court or tribunal.

In comparison to the international schemes, positive duties in Australia are limited in scope, applying only to employment in the federal public sector, and are not backed-up by effective enforcement mechanisms.