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Kep Enderby Memorial Lecture - Introductory Remarks

Race Race Discrimination



Introductory Remarks by Tim Soutphommasane, Race Discrimination Commissioner

Kep Enderby Memorial Lecture

Sydney, 6pm, 22 October 2015

In a little over a week's time, the 31st of October will mark 40 years to the day that the Racial Discrimination Act came into effect. Tonight we honour the memory of the man who introduced this legislation.

Kep Enderby was Attorney-General in the Whitlam Government for only nine months. Yet he was responsible for driving some of that Government's most significant reforms: the creation of no-fault divorce in family law; the decriminalisation of abortion and homosexuality in the territories; and, of course, the introduction of the Racial Discrimination Act.

During the past four decades, the Act has been the foundation of racial equality and multiculturalism. It is the law that protects all Australians from racial discrimination, the law that prohibits people from inflicting bigotry onto others.

Debates and developments during the past two years have underlined the significance of the Act. There have been attempts, of course, to repeal section 18C of the Act. But in response we have seen widespread community support for the legislation. The attempted repeal of section 18C was rightly abandoned.

There remain some who call for section 18C to be amended, though earlier this week the Prime Minister confirmed that the federal government would not revisit the issue of section 18C. This was a welcome demonstration of leadership. Legislation exists, after all, to express our values as a society. Sections 18C and 18D of the Act represent our commitment to mutual respect and harmony. They say to all Australians that we should prize not only freedom of speech but also freedom from vilification.

Even so, the Racial Discrimination Act remains the subject of debate. It has always been the subject of debate.

As many of you would know, the legislation did not enjoy an easy birth. Kep Enderby's predecessor as Attorney-General Lionel Murphy made three attempts to introduce a bill prohibiting racial discrimination. On the fourth attempt, there remained many critics in the Parliament who tested its passage.

If we return to some of the debates from 1975, we hear a voice determined to ensure that such sceptics would not prevail. Kep Enderby rejected as nonsense the suggestion that the Act would worsen racial tensions. Rather, it was vital that there be legislation that would ‘express the feelings of a civilised society’ and ‘express the sense of outrage that a civilised society feels about discrimination of this sort where it exists’. Anticipating that the bill, if passed, would end up being challenged in the High Court, Enderby would also say, ‘I hope that it survives there too because it is very badly needed in Australia’.

Well, the bill did pass. The Act did find its way to the High Court. The Act did survive.

Indeed, the Act has survived as an instrument for the protection of dignity. It has endured as a statement of civility.

The humane spirit of the legislation in many ways mirrors the spirit of the Attorney who was responsible for its enactment in 1975.

Keppel Earl Enderby QC was born in 1926 in Dubbo. After serving as a pilot in the Royal Australian Air Force in 1944-45, he moved to Sydney to study law. He was admitted to the NSW Bar in 1950 and, after a sting living in England, returned to Australia in 1955 and was a lecturer in law at the Australian National University.

In 1970 Kep was elected to the House of Representatives as the Member for the ACT, which became the seat of Canberra. During the Whitlam Government, he served as Minister for the Capital Territory, Minister for the Northern Territory, Minister for Manufacturing Industry and Minister for Supply, before being appointed Attorney-General in 1975. Following his career in politics, Kep served as a judge on the Supreme Court of NSW between 1982-92.

By all accounts, Kep was a man of many talents. He was a champion amateur golfer but also a driving force behind the founding of the NSW Council for Civil Liberties in the 1960s. He was a passionate practitioner of the language of Esperanto, and rose to become president – or, rather, prezidanta – of the World Esperanto Association.

Tonight, we are honoured to have with us Kep's wife, Dorothy, and his son, Keir. Dorothy, Keir — it is wonderful that you are able to join us today.

I never had the good fortune of meeting Kep, but I do want to share with you the one conversation we had. It was around this time last year and we spoke briefly on the telephone. I had wanted to visit him, but he wasn't well enough to receive visitors. When I introduced myself to him as the Race Discrimination Commissioner, he responded in a soft voice, ‘What have I done?’ I laughed and assured him that he was not in any trouble.

We proceeded to have a conversation about the Act and I told him that this year would mark its fortieth anniversary. What struck me in that conversation last year was the modesty and generosity of the man. Kep said that if there were to be credit attributed for the Act, it should go not to him but to his colleague Al Grassby (who served as Immigration Minister in the Whitlam Government and was the first statutory officer appointed under the Racial Discrimination Act in 1975).

Kep was engaging here in more than just a little self-deprecation. Because there is little doubt about the role that Kep Enderby played in the introduction of the Racial Discrimination Act.

Tonight’s lecture is recognition of that role — and recognition of Kep's important contribution to human rights and Australian multiculturalism. Every year, a leading figure will be invited to deliver the Kep Enderby Memorial Lecture to advance public understanding and debate about racism and the Racial Discrimination Act.

This year, we are privileged to have as our inaugural lecturer, the Honourable Robert French AC, Chief Justice of the High Court of Australia. There are few better qualified than the Chief Justice to give a learned perspective on 40 years of the Racial Discrimination Act.

In his lecture this evening, the Chief Justice will reflect on the place of the Act in Australia's legal and social history, and the role that legislation plays in changing people's attitudes on matters of race.

Robert French has been Chief Justice of the High Court of Australia since 2008. Prior to this appointment, he was a judge of the Federal Court of Australian Human Rights Commission, having been appointed to that office in 1986. As a judge, he has sat on cases involving the Racial Discrimination Act, including the well-known case of Bropho v Human Rights and Equal Opportunity in the Full Court of the Federal Court.

Among other things, Chief Justice French was President of the National Native Title Tribunal from 1994 to 1998, has served as an additional member of the Supreme Court of the ACT and the Supreme Court of Fiji, and has served as deputy president of the Australian Competition Tribunal and as a part-time member of the Australian Law Reform Commission.

Chief Justice, thank you for being with us tonight. It gives me great pleasure to invite you to deliver the inaugural Kep Enderby Memorial Lecture.

Dr Tim Soutphommasane, Race Discrimination Commissioner