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.

The introduction of these mechanisms recognises that racial discrimination is a pervasive social problem and that the onus of redressing inequality should be on those who have the greatest power to achieve social change, rather than on those who are most at fault. In comparison to the jurisdictions studied, 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.

Burden of proof

Another potential direction for legislative reform in Australia is alleviating the burden that plaintiffs have in establishing that the differential treatment that they have been subjected to is “based on” or “by reason of” race.

It has been recognised by a number of commentators that placing the burden of proof entirely on the complainant raises particular difficulties for a complainant in discrimination proceedings. Gaze has noted that:

Proving the reason for an action or decision that exists in another person’s mind, where all the evidence is controlled by the other person and they are not required to give any reason, is very difficult.

In all the jurisdictions studied, except Australia, there is a shift in the allocation of the burden of proof once the complainant has established a prima facie case of racial discrimination.

The Background Paper shows that only in Australia does the entire evidentiary and persuasive burden remain with the plaintiff at every stage of the case. In the US and Canada, the evidentiary burden falls on the defendant. They must “articulate a legitimate explanation” for the less favourable treatment shown by the plaintiff.

In the UK and EU the persuasive burden also shifts once a prima facie case has been established. The defendant must then prove, on the balance of probabilities that discrimination did not occur.

The difficultly for the plaintiff in Australia is compounded by the high standard of evidence required by the court, which has been historically reluctant to find that a respondent has discriminated on the basis of race without clear and cogent evidence (based on the Briginshaw principle). While other jurisdictions also require a similar higher standard of evidence to prove the most serious or damaging of civil claims, this principle is rarely invoked - outside of Australia - with respect to allegations of racial discrimination.

As a result of these two factors - the burden of proof remaining with the plaintiff at every stage of a case and the high standard of proof for racial discrimination matters - there have been very few successful cases in which direct racial discrimination has been proved under Australian federal law.

Standing

A third area that the study points to as requiring consideration is in determining who has standing to initiate a complaint or commence proceedings for racial discrimination.

In all jurisdictions except Australia, there is some capability for the relevant human rights body to initiate complaints in response to more systemic discrimination or legally complex issues.

Most jurisdictions (excluding the UK) also allow other parties to bring a complaint on behalf of the person affected. In Australia, a person or trade union representing the affected person may bring a complaint before the Commission, but only the affected person has standing to bring an action before the court.

Racial and religious vilification

Approaches to racial vilification vary substantially between jurisdictions, from the US, where the dissemination of racial hatred is constitutionally protected, to the UK, EU and Canada, where it is a criminal offence. Australia currently has civil, but not criminal, laws prohibiting racial vilification.

Religious vilification is prohibited in many of the examined jurisdictions. In Canada, it is treated identically to racial vilification, while in the UK and EU it receives a lesser degree of protection. In Australia, religious vilification is prohibited by some state laws, but there is no corresponding federal offence.

Most jurisdictions (US, UK, and Canada) have laws which recognise the particular harm caused by racially-motivated hate crime; establishing separate offences for racially motivated crime or making it an aggravating factor when sentencing existing offences. There is no federal equivalent to these kind of laws in Australia.

In some jurisdictions (the EU, UK and Canada) there is also an offence of racial harassment which takes into account the cumulative effect of multiple acts of racial vilification and abuse.

Conclusion

The RDA came into effect 33 years ago. It was Australia’s first federal law dealing with human rights and implemented a basic principle of international law: the principle prohibiting discrimination against people on the basis of their race, colour, or national or ethnic origin.

The RDA declared unambiguously to the Australian people that racism and discrimination were no longer acceptable in our society. Since 1975, thousands of individuals and organisations have used the RDA to address racism, either by making complaints of discrimination, or by negotiating policy changes based on the broader principles of racial equality. The legislation has also made possible important developments in the area of Indigenous land rights, culminating in the recognition of native title in 1993.

While these are important achievements, there is still a long way to go before people from all backgrounds are able to participate fully in the life of our nation. For this reason it is important that the RDA continues to be reviewed against the goals it seeks to achieve - a nation where all people are equal and protected from discrimination.