Addressing Racism in Australia: Accentuating the Positive and Eliminating the Negative (But don’t forget about Mr In-Between)
Paper by Tom Calma, Federal Race Discrimination Commissioner, presented at the Metropolis Conference 2007 by Margaret Donaldson, Director Race Discrimination Unit,
Human Rights and equal Opportunity Commission.
Thank you to the conference and panel convenors for this opportunity to contribute, on behalf of the Federal Race Discrimination Commissioner, to this truly international conversation on how our national institutions are responding to racism.
Let me begin by acknowledging that the first and founding act of racism in Australia was the appropriation, without consent, of Indigenous land in the establishment of what was then the colony of NSW. The land on which Melbourne was founded was owned by the Wurundjeri people and I thank them for welcoming the participants of this conference to their ancestral lands, despite the appalling injustices they have incurred. I hope that one day your kindness and generosity will bear fruit in the form of a fair and just agreement between your people and the non-Indigenous inhabitants of this land.
For indeed, while the path connecting the foundation stone of racism in colonial Australia to the situation of Indigenous people today has taken many turns and at times appears overgrown, forgotten or denied, it nonetheless continues. It is this same trail of racism that lands Indigenous people on the margins of contemporary Australia. And it is our ability to address this racism, to get off this path, that provides the first yardstick for measuring the effectiveness of our institutional response to racism in Australia.
A second yardstick is the ability of our institutions to respond to the struggle, by successive waves of migrants, refugees and their offspring, to become equal citizens of Australia and to gain equal access to the social, economic and cultural capital of their new home.
In relation to this latter struggle it is particularly important that we continue to compare national responses to racism in forums like the present one. As we have heard at this conference, all countries are affected by the rapid increase in the movement of people, commodities and ideas at the global level and the consequent increase in cultural, ethnic and religious diversity within their societies. All countries are therefore working to develop ways of managing the social impact of these trends. Addressing racism is essential to this task.
Our starting point in this is the notion of equality and its actualisation under the new circumstances, in this case the question of equality reconceptualised around the questions: ‘How should the recognition of difference take place? What commonalities and collective identities should remain within equality? What differential treatment should be recognised and what should be rejected consistently with a notion of equality?’
In order to structure our response to these questions I would like now to discuss two approaches to the task of addressing racism and the mechanisms available in Australia in relation to each. The first approach is through proscription; making racism unlawful. The second is through promotion: making equality desirable. Both are essential elements to an institutional response to racism, or as the song goes ‘we need to both a-ccentuate the positive and e-liminate the negative, and don’t mess with Mr in-between’. I will actually be saying something about the dangers of messing with ‘Mr in-between’ later in the paper.
What has Australia done to eliminate the negative? Primarily, it has legislated to make racism unlawful through the Racial Discrimination Act ( RDA). This legislation operates to
- First, make all acts that treat people differently on the basis of their race unlawful where such differential treatment has the effect of impairing a persons enjoyment of human rights. (s9 and 9(1A) RDA)
Three comments on this legal mechanism:
Significantly ‘all acts’ are covered, not just those related to employment or housing etc.
The law also prohibits racism based on norms that appear neutral and universal where in fact they favour a particular group and discriminate against others. In other words it makes systemic discrimination (or indirect discrimination) unlawful.
There is a very high onus on the victims of racism in proving to a court that racial discrimination has occurred. This is presenting a significant barrier to obtaining a just result through the legal system.
- Second, the RDA prohibits laws that have the effect of benefiting or disadvantaging a group based on their race.
- Third the RDA makes racial vilification or racial hatred unlawful. There are some important qualifications to this which seek to balance the right to freedom of speech, against the right to live free from racial abuse and vilification.
There is no constitutional entrenchment of the principle of non-discrimination in Australia, nor is there a Bill of Rights. This leaves the protection against racial discrimination through the RDA vulnerable to amendment and dilution by the Federal government.
Turning then to the second approach, what mechanisms exist to accentuate the positive and promote racial equality?
The short answer is ‘not much’. While the government’s policy framework for multiculturalism was reviewed in 2005 there has been no substantial policy development emanating from this process. The documents underpinning the policy expired in 2006. While particular projects are continuing and government funds are being distributed under various programs, such as the Harmony program, these are not held together by any policy commitment to equality.
The Race Discrimination Commissioner recently released a position paper on Multiculturalism which outlines the policy principles essential to promoting equality consistently with Australia’s human rights obligations. He advocated that the current policy vacuum needs to be filled with principles and practical measures for promoting equality including a firm commitment to equal opportunities, especially in the areas of employment education, health, housing. I recommend you download the entire document from the HREOC website at www.humanrights.gov.au In summary the Commissioner argues:
- Multiculturalism is a sound policy framework consistent with human rights principles in its efforts to promote understanding, respect and friendship among racial and ethnic groups in Australia and to combat prejudices that lead to racial discrimination.
- Multiculturalism is a set of norms or principles in which the human rights of all are respected, protected and promoted. In particular it resonates with a notion of equality which enables all Australians to participate fully in the social, cultural, economic and political life in Australia irrespective of race, religion, colour, descent or national or ethnic origin.
- Finally, multiculturalism, both as policy and ideal, supports the ideals of a democratic society in which every person is free and equal in dignity and rights.
At the legislative level there are also very few mechanisms for promoting equality in Australia. The Public Service Act 1999 imposes some positive obligations on federal government agencies, requiring each agency to establish a workplace diversity program.1 However these are nowhere near as extensive as the statutory duty on public authorities in the UK to promote equality in carrying out all aspects of their work.
It is clear that much work needs to be done in Australia at both a policy, legal and community level to develop mechanisms to ‘accentuate the positive’ by promoting racial equality in Australia.
Now let me introduce you to ‘Mr in-between’. As indicated there are strong legislative mechanisms in Australia to eliminate racism by preventing acts and laws which treat racial groups differently. The difficulty is that some acts and laws which treat racial groups differently may do so for the purpose of promoting equality rather than for discriminatory purposes. It would be unfortunate if the mechanisms for eliminating the negative and proscribing racism may, at the same time, have a dampening effect on our capacity to promote 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 difference or differential treatment that inhibits the enjoyment of human rights i.e. treatment that is racist or prejudicial.
How has Australia met this challenge? This situation is dealt with currently through the category of a ‘special measure’, defined in s8 of 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.’ Under the RDA a special measure will not constitute an unlawful act of discrimination.
The 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. However, 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.
On the other hand, one needs to be mindful that there is a danger in opening up the legislative gate that presently ensures that racial discrimination is declared unlawful. A recent decision in the Federal Court, the matter of Bropho v Western Australia has shown worrying signs that the prohibition on differential treatment in s9 RDA may be relaxed to allow acts that are ‘proportional or justifiable’, without properly defining these terms or limiting their application.
Indeed this line of argument was one adopted by Australia when it was called to account for the amendments to the Native Title legislation before the CERD Committee in 1998. Australia argued that the amendments to the Native Title legislation were compatible with a substantive notion of equality, which allowed differential treatment of racial groups so long as the treatment was justifiable and proportional. The removal of the right to negotiate on pastoral leases, the express extinguishment of native title vis-à-vis many other titles to land, and the upgrading of pastoral leases without negotiation, to name just a few, were, in the government’s view, forms of differential treatment based on race that could be justified as substantial equality provisions.
While it could be argued that these claims by the government were disingenuous, the point still remains that opening the door of equality to differential treatment is a dangerous business.
The situation gets further complicated in 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 for them 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, we have just released a report on our Unlocking Doors project following extensive consultations with the Muslim community and police in NSW and Victoria. The report outlines issues and practical strategies to address the discrimination currently being experience by the Muslim community in Australia. 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.
Another example. We’ve recently launched 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, The Bringing Them Home Report, Voices of Australia magazine and Face the Facts are the most requested publications at the Commission and for each of these resources there is a curriculum-linked educational module to ensure the message gets out to young people.
But perhaps the most important issue today in relation to racism and legislations, policies and programs is the need to move from the limited role in protecting against discrimination to a more proactive role in advancing and promoting equality. A blueprint for this at the policy level is outlined in the Commission’s position paper on Multiculturalism as indicated above.
I could talk more about the projects we have developed and are developing to promote equality, 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, and 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 Recent 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.
Multiculturalism: A Position Paper by the Race Discrimination Commissioner
In August 2007 the Race Discrimination Commissioner released a position paper outlining a human rights approach to Multiculturalism. The paper shows how mmulticulturalism in Australia provides a policy and a guiding ethos for a dignified, equitable and just process of integration.
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 completed and is about to launch on its website 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.
HREOC submitted there that there was inadequate justification for overturning the current system and that there had been inadequate consideration of the negative impact of introducing a citizenship test on particular groups of people within our society.
HREOC also made a submission to the Legal and Constitutional Affairs Committee in its Inquiry into the Australian Citizenship Amendments (Citizenship Testing) Bill 2007.
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.
 Public Service Act 1999 s 18