Eliminating Racism: Valuing Diversity Conference
The Human Rights and Equal Opportunity Commission: Responses to Racism and Strategies for Building Diversity
Presented by Margaret Donaldson, Director of the Race Discrimination Unit, HREOC, on behalf of the National Race Discrimination Commissioner, Tom Calma.
21 March 2007
Good morning distinguished guests and forum participants. I speak today on behalf of the National Race Discrimination Commissioner who sends his apologies for not being able to attend in person today. Thank you for the opportunity to talk to you today about the issues that shape the work of the Human Rights and Equal Opportunity Commission (HREOC). Before commencing I would like to acknowledge the traditional owners of the country were we meet today.
It is an understatement to say that the world we live in now has changed radically in the last few decades. Globalisation, technology, mass migration and Diaspora communities, just to mention a few developments, attest to a world in a state of continuous flux. Our world is changing so rapidly and infinitely that our very ability as societies and individuals to reflect and act is becoming increasingly impaired.
Consequently, diversity has become a way, or more accurately, the way of being in this world. Diversity today is everywhere; many of us live it, appreciate it and some of us ignore it or worse, try to stamp it out of existence. Diversity, multiculturalism and difference are the most recognizable manifestations of our changing worlds. And answering their demands is an issue of utmost urgency.
It took Australia almost two centuries to begin, at an institutional and legal level, to reflect upon racism and act to undo the legacy of colonialism. We can say that both our mandate as the Human Rights and Equal Opportunity Commission and particularly our legislation the Race Discrimination Act 1975 are attributed, to a large extent, to this rising awareness of past injustices and the desire to right past wrongs.
But today we seem to be caught off guard. The speed, flux, scale and scope of current changes present us with many urgent challenges that demand instant responses, in two seconds not in two centuries. Either we act now or never. No one can today afford the luxury of saying I wasn’t there, I haven’t heard or I did not know.
But the sheer complexity and rapidity of our current situation offers those who want to avoid answering the urgent questions of our time, a leeway. If the grim facts of suffering today do not fit your agenda and interests, wait till tomorrow. A war somewhere, a crime here or a celebrity divorce there will ensure that our urgent problems are buried under the weight of countless drifting events. In such an environment as Etienne Balibar says "On the one hand, racism no longer really exists and on the other, never has there been more racism"
So what should be done? Or how should we proceed to address racism today. In my view our preliminary diagnosis must emanate from the ethos of our legal frameworks and from the mandate bestowed on us by civil society and the history of struggle against all forms of injustice. The starting point here is not the simple balancing act between uniformity or diversity. Rather the starting point should be equality and its actualization under the new circumstances. Needless to say that should be done with adequate qualifications and safeguards. Our task in this case becomes ‘How should the recognition of difference take place? ‘What commonalities and collective identity should remain within equality and ‘What differences should be protected and recognized within equality?
The challenge is in opening the door of equality to difference in a way that allows the recognition of differences that ensure equal enjoyment of human rights while ensuring that the door is not open to allowing differences or differential treatment that inhibits the enjoyment of human rights i.e. racism and prejudice.
These questions have directed the jurisprudence of racial equality in Australia which has developed to a large extent around the claims brought by Indigenous people. Their strategy of legal activism has tested the relationship between equality and difference in seeking the recognition of Indigenous specific rights.
In our case at HREOC the Racial Discrimination Act has been used as an instrument to progress the cause of Indigenous rights, particularly in relation to Indigenous land rights. In order to rectify some of the wrongs of the past the Australian Courts came to accept that equality for Indigenous people includes the recognition of certain distinct rights, pertaining to their culture and their status as a people.
The mechanism in the RDA that has been used to achieve this is the special measures provision, s8. As many commentators have pointed out, it is rather a stretch to fit the substantive rights that Indigenous people are seeking into the special measure category, especially when one looks at the definition of special measures in Article 1(4) of ICERD, and adopted directly by the RDA. Special measures are measures taken ‘ for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure for such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms ……, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights of different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’ While this last proviso, that special measures are not to support ‘separate’ rights and are essentially temporary in nature, seems to render them unsuitable in the struggle for Indigenous rights, particularly the right to self determination, the courts have interpreted this in a way that enabled the recognition of certain distinct rights for Indigenous people, for instance in the protection afforded native title through the Native Title Act.
As we are aware little has been achieved in Australia to grant Indigenous people recognition of their distinct rights. In my view this is partly due to the failure of the legal framework, including the RDA, to promote a substantive notion of equality. That is, a notion of equality that can take account of and incorporate within it, its seeming opposite, the notion of difference.
The situation gets further complicated in the attempts by migrant and refugee communities to gain equality. On the one hand it is very important to them that they have access to the cultural and collective resources of their own communities as they chart a new life in new territories. On the other hand cultural boundaries are impeding their access to employment and education opportunities: opportunities that in most cases brought them to Australia in the first place.
It is important that these discriminatory cultural boundaries, that enable particular cultural groups to dominate over others, are broken down. This is best done not by expanding upon and refining the way in which equality might incorporate differences through the special measures provisions or other statutory mechanisms, but rather by ensuring that differences and the differential treatment of particular cultural groups are fully identified and declared unlawful. For instance, identifying and ensuring the RDA addresses, differential treatment that has become so pervasive that it appears neutral or normal while it in fact supports the domination of particular cultural groups over others. This may involve exploring more fully and giving greater effect to the indirect discrimination provisions of the RDA, in particular s9(1A) which targets institutional racism.
Faced with the limited application of the RDA in the current circumstances, HREOC and the Race Discrimination Commissioner moved to identify strategies to proactively respond to social diversity. As many of you are aware, an essential part of our role in promoting and monitoring compliance with the federal Racial Discrimination Act, involves promoting research and education programs to combat racism in all its forms.
For example, late last year in partnership with the University of Sydney we brought together a range of local and international academics, government officials, community workers to reflect on the mutation of racism and share new understanding about anti-racism strategies. In the conference the New Zealand Race Relations Commissioner Joris de Bres likened the legal instruments at his disposal to a ‘toothless tiger’, nonetheless he provided some interesting examples about how you can make a difference even with a toothless tiger.
Another example. We’ve just completed a nation-wide audit of the existing strategies that have been adopted by selected sporting organisations, codes, government and non-government sports’ agencies and human right institutions to combat racism and prejudice within sport. Included in this audit are strategies that utilise sporting events and/or sportspeople to convey a message of cultural inclusion and non-discrimination directed to sporting spectators and the broader viewing public. Based on the audit, we have devised recommendations about how to further combat racism and encourage inclusiveness in sport.
Furthermore, education is a major area where we are endeavouring to make a difference. Our publications Voices of Australia and Face the Facts are the most requested publications at the Commission with all 15,000 publications being distributed over a three month period, to schools and other educational institutions. For each of these resources there is a curriculum-linked educational module.
HREOC will also be undertaking a range of projects in the coming years to improve relationships in the community between Muslim and non-Muslim Australians. These will build on the work already undertaken in the Unlocking Doors forums and the Living Spirit forum in Victoria last year. These community based consultations sought to identify strategies to address racial and religious discrimination against Muslim Australians. The report on these consultations will be on our website shortly.
I could talk more about the projects we have developed and are developing in the coming years, but the gist of what I want to say is that, yes our legal framework has yet to catch up with the challenges of diversity, we need to invest time, intellectual labour and good intention to reinvigorate the debate about the jurisprudence of racial equality in Australia. In the interim however, we have at our disposal other resources, processes and strategies to, at least, alleviate some of the negative impacts of racism and keep the most virulent forms of racism at bay.
Summary of Publications Projects and Submissions by HREOC 2006
The Race Discrimination Commissioner has produced and disseminated a range of materials aimed at promoting understanding about human rights and racism. Face the Facts is a booklet aimed largely at the media, school students and the community. This booklet provides factual information to address a number of common misconceptions relating to Indigenous people, migrants and refugees in Australia. Face the Facts is regularly updated. The most recent edition of Face the Facts was launched on 28 October 2005 in Sydney. In 2006, to enhance the utility of Face the Facts the Commission developed a curriculum- linked education module to be used nationally.
To celebrate the 30 year anniversary of the Racial Discrimination Act (1975), the Race Discrimination Commissioner has produced a magazine and CD entitled Voices of Australia – 30 years of the Racial Discrimination Act 1975-2005. This is a collection of real-life stories about Australians living together. It also includes a history of the Racial Discrimination Act, a timeline of Australia’s race relations and a Plain English Guide to the Racial Discrimination Act. The magazine and CD were launched by the Federal Attorney-General in Canberra Parliament House on 31 October 2005. In late 2006 the commission developed a curriculum linked educational module to promote the usage of Voices as an educational resource.
Voices of Australia and Face the Facts are the most requested publications at the Commission with all 15,000 publications being distributed over a three month period, mostly by request to schools and other educational institutions.
Summary of Projects, Publications and Submissions from HREOC 2006
Racism against Arab and Muslim Australians:
In 2003-2004 the Race Discrimination Commissioner commenced a project aimed at eliminating prejudice against Arab and Muslim Australians, entitled Ismaع - National consultations on eliminating prejudice against Arab and Muslim Australians. The report makes a number of recommendations to address concerns raised by Arab and Muslim Australians throughout the consultations, including a recommendation for national laws prohibiting discrimination on the basis of religion or belief. Following the report, the Commission has continued to be involved in work to address anti-Arab and anti-Muslim prejudice, including the following projects:
Engaging Muslim Community and Police Project: In 2006 following from consultations with key stakeholders and Muslim community members involving over 80 meetings and 15 workshops, the Unlocking Doors forums were held on 7 September in Melbourne and on 18 September. Over 100 people attended each forum, including uniformed and non-uniformed police, Muslim community members and their representatives, young people, Muslim women, and government representatives. The project aimed to work with, and develop resources for law enforcement agencies to better enable them to assist victims of racial or religious hatred. In addition, the project aimed to strengthen Muslim communities’ relationship with law enforcement agencies, and inform community members of the legal avenues and services available to them as victims of racial and or religious hatred and discrimination including state and federal anti-discrimination laws and complaints processes.
Muslim Women and Human Rights Forum: In partnership with community and state agencies, HREOC co-hosted The Muslim Women’s Forum on Human Rights, entitled Living Spirit: Muslim Women and Human Rights Project – the right to participate in social change held on 21 September 2006 in Victoria. The Forum encouraged Muslim and non-Muslim women to discuss the human rights issues facing Muslim women and explore legal and community strategies for dealing with discrimination and vilification.
The Race Discrimination Commissioner has also submitted a number of new policy proposals for implementation in 2005-09 in relation to racial and religious discrimination against Muslim people. These proposals build on some of the findings of Ismaع .
New Racisms: New Anti-RacismsConference: The commission co-hosted a Conference entitled New Racisms: New Anti-Racisms with Sydney University on 3-4 November 2006. The aim of the conference was to link the work being done on racism at a theoretical level with the work being done within the broader community at an institutional and organisational level to combat racism. The aim of the conference was to develop new strategies to address the new forms of racisms operating at the global, national and local level.
Sport and Racism project: The Commission has just completed a nation-wide audit of the existing strategies that have been adopted by selected sporting organisations, codes, government and non-government sports’ agencies and human right institutions to combat racism and prejudice within sport. Included in this audit are strategies that utilise sporting events and/or sportspeople to convey a message of cultural inclusion and non-discrimination directed to sporting spectators and the broader viewing public. Based on the audit, we have devised recommendations about how to further combat racism and encourage inclusiveness in sport.
Australian Citizenship Submission: In late 2006 the Race Discrimination Commissioner sent a submission to the Department of Immigration and Multicultural Affairs (now called the Department of Immigration and Citizenship) in response to the government’s discussion paper Australian Citizenship: Much more than just a ceremony, September 2006.
Review of the Federal Government’s multicultural policy: On 22 August 2005 the Race Discrimination Commissioner sent a submission to the Federal Government in relation to the government’s review of its multicultural policy. This is on the HREOC website.
Committee on the Elimination of Racial Discrimination consideration of Australia’s 13th and 14th periodic reports: On 10 January 2005, the Commission provided a written submission to the Secretariat of the Committee on the Elimination of Racial Discrimination (CERD), the Attorney-General and the Minister for Foreign Affairs, in relation to Australia’s combined 13th and 14th periodic report. The submission contains information about the role of the Commission as it relates to: the Convention; the Racial Discrimination Act and its operation in the reporting period; racial vilification; education on human rights and combating prejudice; the proposed restructuring of the Commission; the consultations on eliminating prejudice against Arab and Muslim Australians; and government services for migrant and refugee settlement. It also contains information on issues relevant to the role of the Social Justice Commissioner, such as native title and social justice towards Indigenous peoples of Australia.
During 2005-06, the Commission received 259 complaints under the Racial Discrimination Act (this includes complaints lodged under the racial hatred provisions). Employment, the provision of services and racial hatred were the main areas of complaint.