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Cultural Competencies Conference

Race Race Discrimination

“What does Australia need to do for cultural competence to flourish?”

 Speech by Tom Calma, national Race Discrimination Commissioner and Aboriginal and Torres Strait Islander Social Justice Commissioner

To the Cultural Competencies Conference

8 September 2006


I wish to acknowledge the Gadigal peoples of the Aeora nation, the traditional owners of Sydney and to thanks you all present today.

I also want to thank the organisers for inviting me to speak on the topic what does Australia need to do for cultural competence to flourish? Your invitation has given me an opportunity to think about cultural competence as it is developed within an organisation; and also the way it relates to the notion of equality.  It is this latter train of thought that I want to expand upon today:  first, how an understanding of cultural competence contributes to an understanding of the right to equality; and second, how an understanding of, and commitment to, the right to equality underpins the achievement of cultural competence in any organisation and is essential to such competence flourishing at the national level.

In both my roles as Social Justice Commissioner and national Race Discrimination Commissioner I am often called upon to speak about the human right to equality.  That, after all, is the principle that underlies the racial discrimination act and the principle that I am charged with promoting under that act.  On these many occasions I inform my audience about some of the important concepts that give definition and clarity to this right as well as the issues that give rise to debates about how far we should and do go in enforcing the right to equality in Australia.  For instance I talk about things like the difference between formal and substantive equality, or the difference between individual and systemic racism.  I may also talk about special measures under the racial discrimination act and whether treating people differently in order to protect people’s culture is really a special measure or whether it is simply giving equal respect to the range of cultural practices that exist within Australia.

These are important issues and I will be looking at some of them more closely later in my presentation.  What I want to say about the presentations that I often give and that focus on these types of issues is that they place equality within a rights dialogue.  They are about defining the right to equality and promoting it as a fundamental right of all citizens within Australia.

What I have noticed from my reading on cultural competence is that it approaches equality from a different angle.  It gives equality a level of tangibility and utility that isn’t apparent within the rights dialogue.  It also gives a sense that progress can be made towards achieving equality and that such progress can be measured.  A sense that individuals within an organisation can learn to approach their job in a culturally competent way and that organisations themselves can promote values and standards within their workplace:  that is, a sense of what equality looks like within the framework of the goals and objectives of a particular organisation.

Through the work on cultural competency, equality is more than a set of ideals that we aspire to in our relationships with each other; more too than a set of normative standards that can be legally enforced.  It is also a set of skills, capabilities and knowledge that individuals and organisations can acquire and apply.  With this purpose and utility comes a methodology that enables organisations to integrate equality into the value system of the particular organisation.  Mechanisms for instance for developing best practice in providing services to an ethnically diverse clientele:  performance indicators that assess the cultural competency of an employee.  There are many amongst you today more qualified than I to talk about these methodologies, competencies and practices and how they can be applied at the institutional and individual level.

My contribution to this discussion today is to make the point that in order for cultural competence to flourish within a nation, beyond a particular organisation or institution, there needs to be an understanding of how cultural competence as a set of organisational objectives and practices relates to the universal and inalienable right to equality.  With this understanding must come a re commitment at the national level to equality as a right.  Not just because of its utility in providing guidance on how to properly service a culturally diverse client base or how to provide cohesion to a diverse workplace.  These are important but there must also be a commitment to equality as an end in itself:  because that is what we want Australia to be and to stand for.  Because that is how we want to live our lives and how we want our children to live their lives.    Knowing and believing that beyond our apparent and immediate differences we are all fundamentally equal.

The most important tool for promoting the right to equality within Australia is through our federal anti-discrimination laws, in particular the RDA and the Disability Discrimination Act.  I want now to look at the notion of cultural competence from the perspective of the legal rights that are enforced through this legislation.  In particular I want to look at a few legal decisions about the notion of indirect discrimination.

I am not convinced that in its more than 30 years of operation the racial discrimination act has been anywhere near fully explored or exploited in promoting cultural competency within organisations or as a means of informing policy making at the national level.

There seems to be a widespread tendency to think of unlawful discrimination only in terms of direct, prejudice based discrimination:  for example, refusing to lease a house when the applicant turns out to be black. 

Commonly, advocates talk about broader issues in terms of “systemic” discrimination – which sounds sophisticated, but unfortunately can carry with it the implication that this is a form of discrimination which no person or organisation can be held accountable for.

Before telling ourselves that the law is irrelevant because it doesn’t address systemic discrimination, I’d like to suggest some discussion of whether the law, and in particular whether the Racial Discrimination Act, is really as limited as perceived in its possible application to issues of cultural competence.

In particular I want to talk about the implications of indirect discrimination under the RDA.  I want to suggest that these implications have not received enough consideration, and that recent decisions on related issues and using similar provisions under the Disability Discrimination Act, support the need for another look.

Put up power point with section 9(1)

Section 9(1) of the Racial Discrimination Act 1975 contains a very sweeping general prohibition of Racial Discrimination; before other sections go on to make unlawful discrimination in various specific areas of life.  It says:

  • (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Human rights for this purpose are defined by reference to the rights referred to in the International Convention on the Elimination of all Forms of Racial Discrimination. 

Note that the section refers to distinctions etc which have the “purpose or effect” of nullifying or impairing the exercise of human rights and freedoms. 

Clearly, this section and the provision in the convention on which it is based were meant to capture not just direct discrimination, motivated by race-based prejudices or mistaken views, but also indirect discrimination, where a decision not directly based on race nonetheless has a discriminatory effect. 

Despite this, concerns arose during the first half of the life of the RDA to question whether it might not cover, or might not adequately cover, indirect discrimination.   In 1990, section 9 was supplemented with a section 1a as follows:

Put up power point of section 9(1a)

Where:

(a) A person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) The other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

The act of requiring such compliance is to be treated, for the purposes of this part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

Let me say first that whatever the merits of this additional provision, clearly it qualifies even less as a model of plain language drafting than the original section 9(1). 

It was intended, though, to  make sure that the RDA did cover some of the more systemic types of discrimination which might not be regarded as sufficiently well caught by the terms  “distinction, exclusion,  restriction or preference”.

Disability discrimination decisions, such as that of the high court in waters v public transport corporation have stated that a condition or requirement can be found from a practical situation rather than an explicit rule.   In that case the court upheld a finding that having trams with entrances only by stairs imposed a condition or requirement of being able to climb stairs.

More recently, amendments to the indirect discrimination section of the sex discrimination act have sought to emphasise this point further by adding the words “or practice” to the words “condition or requirement” – but even without these additional words it seems clear enough that the idea of a condition or requirement in the racial discrimination act and the disability discrimination act should be interpreted broadly.

Where there have been more problems though is in the provision that to find indirect discrimination there needs to be a finding that a person “does not or cannot comply with” the condition or requirement. 

Not all discrimination involves complete exclusion.  Sometimes it is a matter of still being able to participate, but at a disadvantage – still being included in employment or education but having less opportunity to succeed to the fullest extent possible; or being able to use places or services but with less convenience,  or safety,  or dignity. 

This is why the convention on the elimination of all forms of racial discrimination refers to “impairing” the exercise of human rights as well as to “nullifying”. 

In its origins, in American court decisions on racial discrimination, indirect discrimination law was not meant to be a highly technical subject.  The idea was to cut through the formalities of a situation and look at whether in fact a disadvantaged group was being subjected to further disadvantage. 

However in several decisions under the DDA we were starting to see a restrictive approach applied to the issue of whether a person was “able to comply” with a condition or requirement.

In Hinchcliffe  v  The University of Sydney, a young woman who has a vision impairment complained that lack of provision of course materials to her in an accessible format discriminated against her, because she had to spend hours scanning print into electronic form, time which other students could spend studying or working part time or doing other things that university students do.   The Federal Magistrates’ Court found that since she had been able to find time to scan the materials, she had not been unable to comply with the condition or requirement. 

Hurst v Education Queensland was a case involving a deaf child, Tiahna Hurst, who had developed sign language skills in Auslan (Australian sign language), but was required to be taught in English (including signed English) without the assistance of an Auslan teacher, or an Auslan interpreter.  A single judge of the Federal Court found that although this requirement was not reasonable in the circumstances of the case, the child’s claim of indirect discrimination had to fail because it was not a requirement or condition with which she was "not able to comply".  In arriving at that conclusion, his honour observed that the evidence showed that the child was able to "cope" with her work at school without Auslan. 

His honour found that Tiahna was in the average range across all her skill areas, and maintained parity with her peers.  He found that there was no evidence to suggest that she could not be educated in English, including signed English.  However, what his honour did not address was whether, by being so educated, she would be disadvantaged in her own education. 

In an important decision in July this year the full Federal Court reversed this result.  They referred to the judgment of Justices Dawson and Toohey in Waters v Public Transport Corporation, where their honours presented the concepts of direct and indirect discrimination more simply as follows: 

“ …in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable."

The full court held that the test was not whether the student was able to “cope” with a condition or requirement but whether she suffered serious disadvantage because of the requirement or condition. 

It is important to emphasise, as the full Court did, that this was not a test case establishing that Auslan interpreting or teaching is always required.  Still less does it establish any universal rule that use of community languages and other aspects of cultural competence are always required in every setting of service provision or other areas under the racial discrimination act. 

At the same time, I think this decision does suggest two important questions to ask in any service provision setting:

  • Is there a lack of cultural competence which is unreasonable in the circumstances? 

and

  • Does this lead to serious disadvantage?

It seems to me that, without promising magic or immediate solutions, attention to the Racial Discrimination Act could add another dimension to discussions of cultural competence. 

It reminds us that an understanding of the right to equality underpins the achievement of cultural competence in any particular organisation.  And that having legally enforceable rights prohibiting both individual and systemic discrimination, helps to establish standards that guide our relationship with each other in our day to day lives.

However, for these standards to flourish and for cultural competence to really take off in Australia we need more than laws, we need a commitment to cultural equality by our national and state leaders and governments.  This commitment must be expressed through government policies including policies on the treatment of refugees and newly arrived immigrants; policies addressing the disparity between Indigenous and non-Indigenous people in their respective enjoyment of economic, social and cultural rights, and the policies on adequate settlement services.  The commitment to equality must also be reflected in our political leaders contribution to public debates about cultural and religious diversity within Australian society.  Picking out particular groups for negative stereotyping, be they Muslim Australians or Indigenous Australians, may be popular but it does not reflect the type of commitment necessary to ensure equality becomes a way of life in Australia.

Let me conclude by presenting a definition of cultural competence that I recently came across and citing an example to highlight a practical, non legislative approach to cultural competence.

Cultural competence is defined as a set of congruent behaviours, attitudes, and policies that come together in a system, agency, or among professionals and enables that system, agency, or those professionals to work effectively in cross–cultural situations.

Further, cultural competence is the willingness and ability of a system to value the importance of culture in the delivery of services to all segments of the population.  It is the use of a systems perspective which values differences and is responsive to diversity at all levels of an organization, i.e., policy, governance, administrative, workforce, provider, and consumer / client.

I would like to relate to you a story of how an Indigenous person (of Australia) practiced cultural competence and achieved outstanding results.  The case is the Inala Health Service in Brisbane.  This Queensland government health service is located in an area of reasonably high Indigenous population however; in the mid nineties few Indigenous people were using the service.  Dr Noel Haman, an Indigenous doctor on commencing in the service asked Indigenous patients why not many Indigenous people were utilising the service.  Their response was basically that the non Indigenous doctors did not understand them, rushed appointments and could not explain diagnosis and treatments in a language that could be readily understood.  Dr Hayman engaged an Indigenous health worker onto staff and made the patients welcome by communicating in a language and style that they could relate too.  He spent time interacting with patients and word soon got around that there was an Indigenous Doctor and health worker in the clinic and the health service is now working to full capacity with the majority of patients being Indigenous people.  This example I hope will demonstrate that while legislative remedies are essential, much can be achieved by a commonsense approach to listening and responding in a culturally sensitive manner.

Thank you