Skip to main content

What role does the law play in eliminating racism?

Race Race Discrimination

This year marks the 40th anniversary of the Racial Discrimination Act. The legislation was the first piece of federal human rights and discrimination legislation passed by the Commonwealth parliament.  It came into force in October 1975 and in my remarks today I want to revisit some of the history behind its enactment and put into some historical context our legislative protections against racial discrimination. 

We can often take for granted our progress as a society.  We can think that it was a very natural thing for Australia to repudiate racial discrimination and to have in place laws which guarantee the equality of persons before the law.  But this is something we should not by any means take for granted. 

The Racial Discrimination Act: a brief history
Earlier today I was reflecting on speaking here at an institute named after one of our former prime ministers, John Curtin. I found one remark of his during the Second World War, where he said, ‘This country shall remain forever the home of the descendents of those people who came here in peace in order to establish in the South Seas an outpost of the British race.’  A reminder of just how central notions of British race patriotism were to Australian national identity; it certainly animated the movement behind the federation of the colonies and the formation of the White Australia policy. We should remember that the Commonwealth parliament made as its first two legislative acts the passage of bills designed to restrict immigration of non-Europeans and to restrict immigration from the South Pacific.

The Racial Discrimination Act was introduced at the tail-end of the White Australian policy.  The White Australian policy was completely dismantled by 1973.  It had, of course, enjoyed de facto forms of dismantling under Harold Holt and others, but it was only until the government of Gough Whitlam that the White Australia policy was declared dead and buried.  The Racial Discrimination Act was part of this transition: from an Australia defined by notions of White Australia to an Australia which embraced and celebrated its diversity and indeed its multiculturalism. 

The legislation did not enjoy an easy birth.  When it was subject to debate in the parliament, it took a number of attempts for it to become law.  Lionel Murphy attempted to do so in 1973 and in 1974 on two occasions and the bills lapsed.  It fell to Lionel Murphy’s successor, the late Kep Enderby, to introduce the legislation again.  And when the parliament debated the legislation there was a great deal of resistance.

In the second reading debates, one senator predicted that far from eliminating racial discrimination, the Racial Discrimination 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.  Another senator said, ‘It is a lot of utter nonsense and rubbish to bring such a bill before this parliament, since racialism in this country is practised less than it is in the big majority of countries.’  Yet another senator 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.  So right from the outset the Act has been a subject of political contest. 

The then Attorney-General Enderby responded robustly to such criticisms: ‘Do not blame legislation like this that has appeared around the world for the rising tide of racial anger that exists.  The legislation has been in response to that rising tide of racial anger.  My God, racial relations in the United States of America have been transformed and transformed for the better as a result of legislation in that country.  I can remember my boyhood days when films portrayed Negroes as monkeys.  Those days are gone and Negroes now stand in large measure with a certain dignity.  With great respect, Mr. Speaker, I ask honourable members opposite not to talk that nonsense.’ 

We see in those parliamentary debates how the experience of the United States provided a reference point for what was happening here.  Part of the reason why the history of the Racial Discrimination Act remains largely unknown is that we never had the same intense debate that occurred in the United States, where the Civil Rights Act represented the culmination of a rights struggle.  One thinks of moments like Selma, or of the national outrage that was prompted by the murder of Emmett Till in Mississippi, or of Martin Luther King’s speech in Washington, which asked a nation whether it had a dream to fulfil. 

If we compare that to the Australian experience we find nothing equivalent.  The Racial Discrimination Act was introduced to provide a domestic expression of Australia’s international legal obligations. To be sure, there was rising consciousness about racial injustice and inequality. Look no further than the Freedom Ride that was initiated by Charlie Perkins.  That exposed for the first time to many the reality of racial segregation that did exist in fact in many Australian towns.  We know as well that the referendum in 1967 also raised awareness of racial injustice. But we cannot say with any confidence that there was anything equivalent to what happened in America. 

Operation and achievements of the Act
Let me reflect a little on what the Act provides. Consider the following three scenarios. 

Scenario One. There’s a worker in a factory of Sri Lankan origin who is subject to constant harassment by his co-workers.  He’s never given the better shifts during the weeks, he has not enjoyed promotion and his other colleagues appear to enjoy better conditions. 

Scenario Two. An Aboriginal man approaches a boarding house and asks for accommodation.  The manager of the boarding house responds that unfortunately it’s management policy not to accept Aboriginal people. 

Scenario Three. A woman of Asian background surfs the internet and discovers a website which directs racial hatred at people of Asian background.  The website instructs people to lay out Asians physically when they confront them, or to abuse them verbally when they have the chance. 

Those three scenarios are neither imaginary nor hypothetical – these are actual examples of complaints that have been brought forward to the Australian Human Rights Commission under the Racial Discrimination Act.  And in each of those cases the complaint resulted in a redress.  In the case of that worker of Sri Lankan background, the worker resigned, but was paid damages, given an apology by the employer, also given a reference by the employer.  In the case of the Aboriginal man rejected by the boarding house, he also received an apology and damages.  In the case of the woman of Asian background confronted with that material on the internet, the complaint resulted in that page being taken down from the internet.  These remedies were only possible because of legislation like the Racial Discrimination Act.  Prior to the Racial Discrimination Act being in place there was effectively very little that each of those three people could have done, while being subject to racial discrimination or racial vilification. 

This is a good place for us to start in reflecting on what has been achieved by the legislation in its 40 years.  At the most basic level, the law provides individuals with protection against discrimination and vilification.  Since 1975 the Act has been used to conciliate about 6,000 complaints concerning racial discrimination.  In that time there have been fewer than 300 reported decisions made by a tribunal or a court. 

I highlight this to illustrate the civil and educative function of the law.  Quite often people think of anti-discrimination laws as involving prosecutions or convictions.  This is certainly not the case with the federal Racial Discrimination Act.  In fact, very few cases ever reach court.  To give you a sense of how the law currently operates, last financial year the Commission received 440-odd complaints. Only about three percent of those complaints ended up in proceedings before a court; that’s 14 cases. 

What has also been achieved under the Racial Discrimination Act is something systemic.  As I said, this was the first piece of human rights and discrimination legislation passed at the federal level.  Since 1975 there have been pieces of legislation passed with respect to sex discrimination, disability discrimination and age discrimination at the federal level.  In assessing what this law has achieved, we must place it into the broader context of human rights. 

The law has also had profound effects in ensuring that domestic laws can be understood as valid exercises of a certain constitutional power in Australia, namely the external affairs power of the Constitution.  This is largely the result of the celebrated Koowarta case in the early 1980s, which would also foreshadow the role the RDA would play in securing native title rights for Aboriginal people.  Indeed, Section 10 of the Racial Discrimination Act, which guarantees equality before the law, has been described by some commentators as serving as a kind of bill of rights when it comes to overriding state and territorial legislation which involves discrimination on racial grounds. 

There’s one other achievement of the Racial Discrimination Act that warrants our attention. That is its impact in transforming social attitudes on race, which really goes to my topic: What role does the law play in eliminating racism?  It’s said that the law can never legislate for morality.  But yet, the law can play a fundamental role in shifting our notions of morality.  With legislation like this we have an expression from our parliament that our society does not tolerate, does not accept, racial discrimination and vilification.  We have a statement that everyone is entitled to equal treatment and dignity in public life.  It’s hard to measure in tangible terms the effects of such a statement, but I do believe that they have influence on the atmospherics of our society.  Certainly that’s what communities who use the Racial Discrimination Act tell us when it comes to their experience or their understanding of the law.  The very fact that there is a law to which they can point when they are subject to discrimination or vilification provides immense strength and assurance.  It may be, for example, that the law is never actually used, that a formal complaint is never actually made, but the very fact that someone can point to this law has immeasurable power in transforming people’s attitudes. 

Sections 18C and 18D
There’s one particular area where attitudes have been shaped most effectively by the Racial Discrimination Act, and that concerns racial abuse and harassment in public places.  This is something prohibited under the legislation in Part IIA of the Act – namely in section 18C, which makes it unlawful to offend, insult, humiliate or intimidate a person or group of people because of their race, colour, ethnic origin or national origin.  This was a provision introduced in 1995 in response to a number of major reports and enquiries which had recommended that the law include greater protections for racial vilification.  The Royal Commission into Aboriginal Deaths in Custody, the Australian Law Reform Commission’s Report into Multiculturalism in the Law, the National Inquiry into Racist Violence conducted by the then Race Discrimination Commissioner, Irene Moss – each of these reports and enquiries pointed to this gap in the law. As things stood prior to 1995, discrimination in employment, in goods and services, in housing and accommodation, was prohibited. But conduct in public involving denigration, involving vilification, was not covered by the legislation. 

We have in recent times had an intense debate about Section 18C.  There were proposals put forward to amend the Act, effectively to repeal Section 18C and have in its place a protection against racial vilification of a very different order (confined to the incitement of third parties to racial hatred and the physical intimidation of people because of their race). 

Debates about race can quite often divide our societies.  But it was remarkable in the past year or so that we had a great deal of consensus and unanimity on matters of race.  There was an opinion poll conducted in April last year, for example, which found that 88 percent of Australians believed that the law should remain in its current form, making it unlawful to offend, insult and humiliate someone on racial grounds.  Other research conducted by UTS and UWS academics in Sydney found similar levels of support, close to 80 percent support for the current legislation. 

What I take out of the debate is this; people understand that freedom of expression can never be an absolute freedom.  Yes, you may have a right to express yourself.  But every person also has a right to be free from the effects of bigotry. Because when bigotry is given expression and is imposed on another person in public, it wounds someone’s dignity, it harms their health and it undermines our society’s commitment to equality, decency and respect.  It is only right that our laws reflect our community’s commitment to civility and tolerance.  It is only right that our laws say something about the multicultural character of our society.  This should be one of the sources of pride for contemporary Australia: to have a society that has welcomed people from all parts of the world without distinction as to their colour, that has done so without social division or fragmentation.  In my view, we’re only able to do that because we send the right signals as a society.  We say it is not alright to vent your bigotry without also being held to account if you do. 

Future challenges
Let me now reflect on some of the challenges that now exist in combating racial discrimination.  We have significant obstacles to the maintenance of our community harmony at the moment.  We saw some of this reflected in the recent Reclaim Australia rallies that took place across the country.  To be sure, the rallies were attended only by a relatively small number of people. But the rallies brought to the fore some ugly and extremist elements that had been emboldened to come out from underground and to publically vent their messages of hatred and division.  For a long time, neo-Nazi and extremist elements were content to operate without public attention.  What we are seeing today is that such extremist elements now have the wherewithal and the willingness to come out in public. 

What is troubling too is that some members of our society seem to be singled out by extremist elements, particularly Australians of Muslim background. It is disappointing to have Australians’ freedom of religion challenged in such a way – to have, for example, an entire community being subject to the brush of prejudice at large.  We see this in the language that characterises the anti-halal movement that has been developing in recent times, through suggestions that Australians are paying a halal tax to subsidise acts of terrorism.  There’s no evidence that I’ve seen which demonstrates that halal certification is connected to Islamist terrorism.  We have laws against conduct that aids in terrorism.  There's nothing in the laws that we have which offers an exemption to halal certification companies. 

We know as well that the vast majority of Australian Muslim communities have loudly denounced and repudiated acts of extremism and terrorism.  Whenever I speak to communities with significant Muslim populations, one of the issues that is raised with me is that of radicalisation.  I see the concern from community leaders about this.  To suggest that there is a lax attitude on this issue only serves to feed the more extremist elements in our society who are looking for an excuse to vent their prejudice. 

I should say too that on the front of community harmony the challenge is by no means confined to anti-Muslim sentiment and feeling.  We’ve also detected in recent times an alarming rise in anti-Semitism, again linked to those extremist elements.  Not long ago leaflets were circulated in Eastern Sydney which targeted Jewish families and communities.  The Australian Jewish community, which monitors incidents of anti-Semitism, report a 70 percent rise in anti-Semitic incidents during the past 12 months. 

There are two other challenges I want to touch on.  There’s still a challenge in transforming social attitudes.  Yes, instruments like the Racial Discrimination Act have prompted people to think twice and to change their behaviour, but there is still a great deal of low level prejudice that bubbles along in our society.  There is sometimes unwillingness even to comprehend the challenge of combating racism.  I’ll give you an example.  On the day of the semi final that Australia played against India in the World Cup, on breakfast TV on Channel 9 Karl Stefanovic in a banterous exchange with an Indian cricketing supporter asked him, ‘If you’re all at the cricket today, who is manning the 7-Elevens across the country?’, to which the interviewee responded with admirable wit.  The respondent said, ‘Well, Karl, I guess you’ve got to ask as well, you know, whether Centrelink’s gonna be empty today across the country!’ Karl Stefanovic had no response – and was left speechless! 

I was talking about this episode not long ago with someone, and to my mind we all laughed at that because Karl got as good as he was dishing out.  But someone did ask me, aren’t we also complicit in a form of racism if we are laughing at that Indian man’s comments about Centrelink?  Doesn’t that legitimise racist sentiments towards white Australians?  Fair question, perhaps.  Only I never even imagined that you would interpret such banter in that way.  For me, people are laughing because the person with the power in that situation was being put in their place.  It had nothing to do with the content of the remark of the person responding; it was a riposte that we all wish we could give when we are placed in such a situation.  But I tell you this story just to highlight how difficult it may be to instigate conversations around race. 

There's also the question of unconscious bias that may exist in our everyday lives.  It can happen without our knowledge, but it can also feed prejudice and discrimination when it happens.  We see this in particular in the setting of employment, in the workplace.  There is a good deal of evidence that suggests that discrimination does exist in still significant form.  A study by the ANU in 2010, for example, involved the sending of some 4000 identical resumes, which were differentiated only by the names of the applicants.  This research found that if you had a Middle Eastern sounding name or if you had an Asian sounding name, you had to apply more than 60 percent more times in order to be invited to interview when compared to someone bearing an Anglo Saxon name.  That illustrates there’s still some way to go. 

Finally, a third challenge exists in the form of the Constitution.  Protections against racial discrimination will only ever be incomplete until we have constitutional guarantees against racial discrimination.  But even now in 21st century Australia, we still have provisions which empower the Commonwealth to discriminate on the basis of race, which allow for states to disqualify people from voting in elections because of their race. It is simply unacceptable that our supreme law gives sanction to such forms of discrimination.  There is, of course, a conversation and debate happening around the constitutional recognition of Aboriginal and Torres Strait Islander people.  It is only right that we recognise Aboriginal and Torres Strait Islander people as the original custodians of this land, recognise the historical connection with Australia.  And while we’re at it, we have an opportunity too to expunge those racially discriminatory provisions from the constitution, and to enshrine a guarantee of non-discrimination in our constitution.  Australia is one of the very few liberal democratic countries that does not offer such a guarantee.  It’s time that we rectify that.

Let me conclude with some reflections on education and legislation.  As I said, there are limits to what legislation can achieve.  Earlier this year I convened a conference in Sydney about the legislation, at which the Governor-General, Sir Peter Cosgrove, spoke.  He cited a quotation of Martin Luther King’s in his speech.  It was the first time I’d heard it.  But Dr. King once said, ‘It may be true that morality cannot be legislated, but behaviour can be regulated.  The law may not change the heart, but it can restrain the heartless.’  It’s an apt reminder of the challenges we face in combating racial discrimination.  For however much we may celebrate the existence of a law which prohibits racial discrimination, the work of changing social attitudes can only occur with policies and programs and through the education of our fellow citizens.  We must educate not only in the classroom, but also on our sporting fields, at work, and perhaps most importantly through the conversations all of us have with our family, with our friends and with others.


Dr Tim Soutphommasane, Race Discrimination Commissioner