A Brave Act: Opening remarks to the RDA@40 conference
There’s nothing like a good birthday celebration. Throughout this year, the Australian Human Rights Commission will be observing the 40th anniversary of the Racial Discrimination Act.
A year-long celebration may sound a bit excessive. But finding a precise anniversary date for a piece of legislation is complicated.
Is the pivotal date that of when a bill passes in the Parliament? Is it when an Act received its assent? Or is it the date when an Act comes into force?
With this week’s conference, we are getting in on the act early. There is also some symmetry in us gathering here this week to reflect on matters of race.
Fifty years ago, a group of students from Sydney University, led by Charles Perkins, embarked on a freedom ride through country NSW, bringing racial prejudice to national attention.
It was also almost exactly 40 years ago, on 13 February 1975, that the late Kep Enderby, Attorney-General during the Whitlam Government, introduced the Racial Discrimination Bill in the House of Representatives. The Bill would pass in the Parliament in June 1975, receiving its assent on 11 June. The Act came into force on 31 October 1975.
We will, of course, be marking those moments in June and October. But we begin here this week.
We are delighted to have at this conference over the next two days some of Australia’s leading authorities on human rights, public law and multiculturalism. Our speakers will explore the historical significance and impact of the Racial Discrimination Act – and also consider some of the emerging challenges in combatting racial discrimination.
Clearly, this exercise isn’t simply a celebratory one. It’s also intended to be educative and critical.
This is only appropriate. The Racial Discrimination Act has – as I’ve noted – been the subject of much public commentary and political contest.
It is worth debating things with the benefit of some perspective.
In his eulogy for Gough Whitlam late last year, Noel Pearson described the Racial Discrimination Act as akin to the Civil Rights Act in the US. And rightly so. The Act was ground-breaking: it was Australia’s first federal human rights legislation. It was the law that secured for all Australians, whatever their racial background, equality before the law.
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: Brown v Board of Education, Emmett Till, Rosa Parks, Martin Luther King Jr. A nation came to believe that it could fulfil a certain dream.
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 Racial Discrimination Act was introduced to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination.
Insofar as there was local urgency to racial equality, this didn’t become clear during the 1960s. But by the 1970s, the conditions for change were met.
Following the freedom ride of 1965, there was the 1967 referendum, the protests against the touring Springboks in 1971, the formal demise of the White Australia policy in 1973. Australia was becoming a multicultural society – not only in social composition but the endorsement of cultural diversity in public policy.
The Racial Discrimination Act introduced something new to Australian law and society.
It represented an attempt to legislate for human dignity. More precisely, the law broadcasts our society’s disapproval of the indignity of discrimination.
The law ensures one fundamental thing. Prior to the Racial Discrimination Act, there were few effective remedies against racial discrimination.
This is the practical effect of having the Racial Discrimination Act in place:
It means that people cannot lawfully discriminate on race, colour, descent, ethnicity or national origin. It means that equal opportunity is guaranteed across a range of activities in society. It means that people can hold others to account when they have experienced racial discrimination and acts of racial hatred.
The Racial Discrimination Act does this, but it is not about punishing racism. Rather, the Act is about protecting people against prejudice.
Contrary to some public commentary, the legislation does not mean that people can be prosecuted and convicted under the law. Nor does it enable media outlets to be ‘shut down’ if they publish or broadcast racially offensive material. The legislation is more modest than this. It works not through coercion but through conciliation.
Over the almost forty years the Racial Discrimination Act has been in operation, more than 6 000 complaints have been resolved. Only a small number of complaints under the Act reach the courts: last year, it was only 3 per cent of complaints finalised by the Commission.
And the law is not only just about remedies. Its impact has been systemic.
As the first Commonwealth legislation concerning human rights and discrimination, the Racial Discrimination Act set a precedent. In the time that has elapsed since 1975, all states and territories have enacted anti-discrimination legislation. During that time, the Commonwealth Parliament has enacted legislation concerning sex discrimination, disability discrimination and age discrimination.
Through the courts, the Racial Discrimination Act has also shaped our public law.
The High Court case of Koowarta v Bjelke-Petersen was the first instance the courts recognised that domestic laws could be considered valid exercises of the external affairs power in the Constitution.[[i]] The Koowarta case was to foreshadow the Racial Discrimination Act’s importance as an instrument in securing land rights for Indigenous people.
From the outset, the Act has also been concerned with social change.
In his second reading speech of the Racial Discrimination Bill in 1975, Kep Enderby 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.
Over four decades, 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 the equal dignity of its members.
It stands to remind people that their country will protect them from discrimination and vilification.
Speaking on the 20th anniversary of the Act, then Prime Minister Paul Keating observed that the Racial Discrimination Act was ‘a very brave piece of legislation’.
And it was very brave. The Act’s inception was met with stiff resistance.
In the second reading debates in 1975, one senator predicted that, far from eliminating racial discrimination, the Bill 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.[[ii]]
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’.[[iii]]
Yet another argued that there was ‘a tendency for laws of this character to exacerbate the tensions which they were expressly designed to avoid’, and to ‘be used as a source of provocation, a focal point for professional agitators who wanted to stir up trouble’.[[iv]]
Throughout its life, the Act has had its share of political contest.
This has, of course, been true of section 18C of the Act. This is a section which must surely lay claim to being the most cited provision of Australian legislation in public debate, if not also the most misunderstood.
Yet while many debates about race can divide people, the debate we have had during the past year has seen a different result.
We have seen an emphatic affirmation of our commitment to racial tolerance. Just as we value freedom of speech, so we value freedom from racial vilification. Just as a law exists to reflect our standards, so it sets the standards to which we aspire. A mature society doesn’t diminish itself by giving licence to hatred and bigotry.
No law, of course, is a panacea. While the Racial Discrimination Act has made a significant impact, it hasn’t eradicated racism.
Yet no law could ever eliminate a social evil all on its own. We should be careful not to judge legislation against an impossible standard.
At the same time, we should not be afraid to be critical – and to seek improvement. It is in this spirit that this conference is convened, and in which I hope our conversations during the next two days will be conducted.
But I can’t stress enough the importance of legislation like the Racial Discrimination Act. Today, we are faced with many potent sources of social friction and cultural division; we can afford no complacency. It is instruments like the Racial Discrimination Act that make us stronger and more united – ensuring that every Australian can enjoy the assurance that they will be treated equally and with dignity.
[[i]] Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
[[ii]] G Sheil, ‘Second reading speech: Racial Discrimination Bill 1975’, Speech, The Senate, 15 May 1975, p. 1.
[[iii]] I Wood, ‘Second reading speech: Racial Discrimination Bill 1975’, Speech, The Senate, 22 May 1975, p. 1.
[[iv]] I Greenwood, ‘Second reading speech: Racial Discrimination Bill 1975’, Speech, The Senate, 15 May 1975, p. 4.