'HREOC, the Isma- project, the law and beyond'
Australian Muslim Community Educational Day Speech
for the Australian - Middle East Council (AMEC) Public Meeting
Tom Calma Acting Race Discrimination Commissioner
Sydney 21 August 2004
I would like to begin by acknowledging and paying my respect to the Gadigal people of the Eora nation, the traditional owners and custodians of the land where we meet today.
I would also like to especially thank the Australian-Middle East Council; in particular Mr Asem Judeh for giving us the opportunity to speak at such an important meeting about some recent work the Human Rights and Equal Opportunity Commission has carried out in relation to the experiences of Arab and Muslim Australians.
First of all, just to give you some background about the Human Rights and Equal Opportunity Commission. The Commission was established in 1986 and its goal is to foster greater understanding and protection of human rights in Australia and to address the human rights concerns of a broad range of individuals and groups. We have a particular focus on race, sex, age and disability discrimination, as well as the rights of Indigenous Australians. It is an independent statutory organisation and reports to the federal Parliament through the Attorney-General.
The Commission's responsibilities include education and public awareness, handling of discrimination and human rights complaints, human rights compliance and policy and legislative development. It is responsible for administering the Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act, Age Discrimination Act and the Human Rights and Equal Opportunity Commission Act.
During 2002, the Commission heard mounting anecdotal evidence from a range of Arab and Muslim community members and organisations about a rise of anti-Arab and anti-Muslim prejudice in Australia. In March 2003, the then acting Race Discrimination Commissioner, Dr William Jonas, launched the Isma- project in response to the increasing concerns expressed by the community. These concerns were expressed against the backdrop of the September 11 2001 attacks in the US and the Bali bombings of October 2002, as well as national and local events such as the growing numbers of asylum seekers from the Middle-East and Muslim countries and the trial, conviction and sentencing of gang rapists in Sydney in 2001-2002.
As many of you know, Isma- means 'listen' in Arabic and the aim of the project was to listen to Arab and Muslim Australians to better understand the nature and impact of the prejudice that many people said they were experiencing. Another aim was to try and understand and account for the discrepancy between what we had heard about peoples' experiences, and formal complaint numbers which did not increase in any substantial way. I will later talk more about the HREOC formal complaints process. The Commission was also interested in finding out what was currently being done to address prejudice towards Arab and Muslim Australians, as well as what else Arab and Muslim Australians thought should be done in this area.
A group of experts and representatives formed the Isma- project reference group and included people from across Australia. The group included community and religious leaders, a youth representative, a state equal opportunity commissioner and representatives from areas such as police, education and media. The members played a crucial role in the project, providing the Commission with invaluable advice and feedback on the project.
One of the main aspects of the project was the extensive consultations conducted by the Commission staff across the country between April and November 2003.
A total of 69 consultations were conducted where staff of the Commission heard from over 1,400 people. We consulted with as wide a cross section as possible of Arab and Muslim Australians, as well as with other federal, state and territory government agencies and non-government agencies across the country. The most complex and difficult aspect of planning the consultations was to capture opinions that reflected the broad ethnic and religious diversity of Arab and Muslim Australians, including Arabs of diverse religious backgrounds and Muslims of diverse ethnic backgrounds and ancestries. While they share a common religion, Australian Muslims are a culturally and linguistically diverse group where less than 20% of Australian Muslims were born in Middle Eastern or Arab countries and a significant number come from Asia, Europe and Africa. So while most consultations were conducted in English, several were entirely in Arabic, and Eritrean, Dari, Farsi, Pashtu, Bosnian, Bahasa Indonesia and Albanian interpreters were also used in consultations. With permission from the consultation participants', where granted, we taped each consultation and with our notes, summaries of these consultations have been published on the Commission's website.
So, what did we hear?
What the Commission heard throughout the Isma- project is that a significant number of Arab and Muslim Australians are feeling fearful, isolated and vulnerable. We have been told that prejudice against Arab and Muslim Australians has happened and continues to happen. It takes place on the street, in shopping centres, in the media, in schools, on public transport, in government and non-government services, at airports, hospitals and so on.
We were told by participants that those who felt most at risk were readily identifiable as Arab or Muslim because of their dress, physical appearance or name, particularly Muslim women who wear the hijab. We listened to stories of women, mostly Muslim women, anxious to walk their children to school in fear of being spat on, abused or ridiculed. Listened to the stories of people who felt they had been refused employment because their name was Mohammed, their resume said they spoke Arabic or because they were wearing the hijab. We listened to the stories of young men and women who felt that they were being targeted by police and to the stories of women and girls who said they had been abused, had objects thrown at them from moving cars, sometimes causing injury. We listened to stories of school children being bullied at school, leaving them feeling less confident, angry and withdrawn. We listened to people sick of having to justify their religion or cultural background; upset by what they felt was a wave of hatred from talkback radio and a barrage of television images. We listened to the stories of seventh generation Australians being told to go back to their own country.
Many Australians simply shrugged their shoulders and turned their backs. We were told by many participants that the impacts of such inaction from bystanders were more so than the impact of the act of discrimination or abuse itself. Scared, isolated, increasingly distrustful of authority, not feeling welcome, alienated and disheartened were only some of the things that participants expressed feeling.
However, despite many negative experiences, Arab and Muslim Australians also said they had received support and help from non-Arabs and non-Muslims in the community and that it had given them an opportunity to answer questions about their cultural background and their religion. We listened to many positive examples of respect. We listened to stories of neighbours inviting a Muslim family over for a halal barbeque in a time when they needed support and of teachers demonstrating leadership in standing against any form of racism.
The second component of the project was empirical and qualitative research conducted by the researchers at the Centre for Cultural Research at the University of Western Sydney using questionnaires and follow-up interviews.
The Commission wanted to get a more comprehensive picture of the nature and extent of incidents of prejudice against Arab and Muslim Australians and the reasons why Arab and Muslim Australians do or do not complain about such incidents. The rationale for commissioning the Centre for Cultural Research to conduct this research was to give participants greater freedom to be critical of complaint processes and complaint handling agencies including HREOC.
Much of what the research found echoed the findings from the consultations.
While racial or religiously motivated incidents of assault, damage and abuse have been reported to police as well as federal, state and territory multicultural and anti-discrimination agencies, most government authorities found no significant or sustained increase in the number of incidents of discrimination or vilification formally reported by Arab or Muslim Australians. Yet anecdotally, as I mentioned earlier, many agencies, including the Commission itself, received a great deal of information from individuals and community organisations about the increasing level of prejudice, discrimination and vilification against Arab and Muslim Australians and again it was this discrepancy between the formal complaint data and anecdotal information which led the Commission to undertake the Isma- project.
Information gathered from Isma- consultations, and the surveys and interviews carried out by the University of Western Sydney indicated that Arab and Muslim Australians were more likely to report incidents of discrimination or vilification to their friends, family or local community organisations. These community organisations reported a sharp increase in calls for assistance particularly following September 11 and the Bali bombings. For example, in the first week following September 11, the Sydney-based Australian Arabic Communities Council received 50 complaints of racist incidents on its 'Racism Register'. These complaints included concerns expressed by local Arab residents over a series of letters sent to them threatening violence unless they moved out of their neighbourhoods. The Melbourne-based Australian Arabic Council recorded a 20-fold increase in reports of vilification made to their own Racism Register following September 11. The Sydney-based United Muslim Women's Association were inundated with calls from women fearful of their own and their children's safety following September 11 and the Bali bombings, and like many organisations around the country, the organisation itself received abusive and pornographic phone calls, faxes, emails and mail.
The most common reason why survey respondents said they did not report incidents of racism, abuse or violence was that they did not think complaining would result in a useful outcome. Other reasons given included a fear of victimisation, fear of backlash, not wanting to make trouble or draw attention to themselves, their family or community; lack of trust in authority; not knowing who to report to; not knowing what the laws were; the incident was not covered by law or it was not important enough.
I will be discussing the laws relevant to these issues in a little more detail shortly.
After asking participants if they had experienced discrimination or vilification and if so, what did they experience, we also asked about the strategies being used to counter anti-Arab and anti-Muslim prejudice in communities across Australia and what more could be done to help eliminate prejudice against Arab and Muslim Australians. The Commission is by no means the only agency aware of an increase in anti-Arab and anti-Muslim prejudice and committed to taking action to combat it. Government, non-government and community organisations have initiated programs and strategies to address the causes of prejudice and to support people affected. The consultations told us that things are being done.
This formed the basis of the third component of the Isma- project, which had the aim of setting out existing strategies, identifying gaps and shortcomings and making suggestions for strengthening the community and government responses in the future. An audit of strategies and initiatives was conducted and many projects and initiatives were brought to the Commission's attention through the consultation process by individual participants or host organisations and reference group members. The Commission also contacted over 100 relevant federal, state and local government agencies and non-government community organisations and had over 50 meetings with representatives from these organisations from all over the country to find out what initiatives and programs are already in existence to deal with issues of anti-Arab and anti-Muslim prejudice.
The extent of the work already being carried out across the country by community organisations and government agencies, and often by these groups working together, certainly surprised us - we have identified over 100 projects that aim to tackle these issues in a variety of ways around Australia. Projects and initiatives such as racism hotlines and registers, department of education 'racism no-way' education campaign, mosque open days and cross-cultural awareness training are all happening across the country. There have also been numerous interfaith dialogues and events, conferences, education resource kits, anti-racism forums.
So, while that's more than 100 good reasons to recognise that there is a problem, I believe it also shows the positive advances that have been made and need to continue being made in order to address these issues in a cohesive way.
While much has been done by community and government organisations, participants in the Isma- project identified a number of key areas for improvement and future action. Not surprisingly, the lack of consistency in federal, state and territory laws concerning discrimination and vilification on the basis of religion was identified as an important issue in the consultations and survey results and an area where improvement and future action is required.
So, what does the law cover?
Under both federal and all state anti-discrimination laws, it is against the law to discriminate against someone because of their race, descent or national or ethnic origin. It is also against the law under both federal and most state laws to racially vilify another person. The exception is the Northern Territory which does not have any racial vilification laws. Western Australia deals with this issue under its criminal laws and not under anti-discrimination laws, although the Western Australian government is currently considering that issue and has recently asked for public submissions as to whether that State should enact civil racial and religious vilification laws.
So, under the federal Racial Discrimination Act (the RDA) for example, which my Commission administers, if a person believes that they have been discriminated against because they are of a particular race or national or ethnic origin (such as Lebanese or Turkish, rather than religious belief), then they are likely to be covered by the grounds in the RDA and can make a complaint to the Commission.
However, the issue of religion is dealt with differently under federal and state anti-discrimination laws.
It is against the law to discriminate against someone because of their religion in the ACT, Western Australia, Queensland, the Northern Territory, Tasmania and Victoria. Therefore, a person discriminated against because of their religion has no legally enforceable rights if the alleged discrimination happened in NSW or South Australia. It is only against the law to vilify a person based on their religion in Queensland, Tasmania and Victoria but not in the ACT, NSW, South Australia, Western Australia or the Northern Territory.
Under the federal laws that the Commission administers, it is not against the law to discriminate against someone, or vilify them, solely because of their religion. However, if a person believes that they have been discriminated against on the basis of their religion in their employment or occupation, or if they believe their human rights in relation to religious belief have been breached by the Commonwealth, then under the federal Human Rights and Equal Opportunity Commission Act, a complaint can be made. However, even if the complaint is found by the Commission to be substantiated, those findings are not legally enforceable and the person or organisation that the complaint was made against can ignore them if they wish to do so.
Therefore, it is unlikely that a person who feels they have been discriminated or vilified against solely because they are of the Islamic faith, on the basis of the current case law, will be covered by the grounds in the federal Racial Discrimination Act or under the NSW Anti-Discrimination Act. As the majority of Australian Muslims live in NSW, this lack of enforceable legal protection is particularly problematic.
The Commission recognises that there are gaps in the coverage that both federal and state anti-discrimination laws provide and these gaps take on greater significance in particular times of crisis which has been evident from the Isma- project. The Commission therefore recommended in the Isma- report that federal legislation should be enacted to make religious discrimination and vilification unlawful. Informing communities about existing state or federal anti-discrimination laws and complaints processes was identified as vital. The Commission also recognises that federal and state anti-discrimination agencies like the Commission need to continue to ensure that information about the law and complaints processes is appropriate and accessible to culturally and linguistically diverse communities. Community organisations can greatly assist anti-discrimination agencies like the Commission by helping develop and deliver information that is appropriate and accessible to their communities.
In addition to improving legal protections, participants in the Isma- project identified a number of other key areas for improvement and future action. These included education; media; police; encouraging effective action within Arab and Muslim communities themselves; and fostering public support and solidarity with Arab and Muslim communities.
As a result, the Commission has made a number of recommendations that are aimed at addressing the longer-term prejudices that lead to discrimination and vilification. These recommendations were developed by the Commission in consultation with a wide range of people including reference group members, state and territory equal opportunity commissioners, as well as stakeholders to whom recommendations were directed (such as NSW police, the Ministerial Council on Employment, Education, Training and Youth Affairs, and the Australasian Police Multicultural Advisory Bureau).
- Countering anti-Arab and anti-Muslim prejudice through education programs that promote positive awareness of cultural and religious diversity among Australians at a school and public education level
- Challenging negative stereotyping by encouraging better communication between government, non-government and media organisations and Arab and Muslim communities and assisting communities to challenge negative stereotyping
- Supporting and strengthening Arab and Muslim community organisations to develop and participate in projects that address discrimination and vilification and
- Strong and effective leadership at the local, state, federal and community level.
These were all seen as essential. Government institutions, media, politicians, service providers, Arab and Muslim community organisations and individuals and the wider community need to work together to eliminate prejudice against Arab and Muslim Australians.
What has resulted from the three components of the Isma- project is this report of the consultations, a research paper authored by the researchers titled 'Living with Racism' and a strategies document outlining over 100 projects and initiatives that have been undertaken since September 11 to address anti-Arab or anti-Muslim prejudice. The Commission has also produced an audio CD in English and Arabic that describes the Isma- project and includes comments from the community consultations about the experiences and issues that participants raised. The report of the Isma- project was launched in Sydney on 16 June 2004 and subsequently in all other states and territories. Copies of all of the publications are available on the Commission's website and everything is available for you to take with you today apart from the report which we have run out of due to high demand. However, please take an order form so we can send you a copy when the reprints are available.
We hope the report has the result of pointing the way forward rather than seeking to lay blame. We hope that the implementation of the recommendations will benefit Arab and Muslim Australians as well as people of other religions. For many, the path to equality in Australia was felt to be fast becoming the road less travelled, however in times such as these, I believe we must all see education and strong leadership as being the keys to long-term change in the way that Arabs and Muslims are viewed in Australia. It certainly is for the Commission and it was for the community. Again we all have a responsibility.
There is a role for everybody, including the Commission and state anti-discrimination agencies, government institutions, media, politicians, service providers and Arab and Muslim community organisations and individuals and the wider Australian community to work together to eliminate prejudice against Arab and Muslim Australians. One of our goals is to help people to understand their rights as well as their obligation to respect the rights of others.
During the consultations participants also felt that the Arab and Muslim community itself can play a significant role in educating their own community as well as the broader community about their rights and obligations under anti-discrimination laws and about their own culture, history and religion and today's meeting is a clear example of this taking place.
As indicated earlier I would like to make a few comments about the Commission's complaint handling process.
As I noted previously, if someone feels they have experienced discrimination or vilification on the basis of race or national or ethnic origin, then a complaint can be made to the Commission or a state body, such as the NSW Anti-Discrimination Board. However, I restrict my comments here to the Commission.
A complaint must generally be made by a person who has been personally affected by the alleged unlawful discrimination. It does not cost anything to make a complaint to the Commission but your complaint needs to be put in writing. If you are not able to put your complaint in writing, the Commission can help you with this and has a complaint form to help you make a complaint. A complaint can be made in any language and the Commission can have it translated. The Commission can also arrange an interpreter in your language if this is needed. A complaint can be lodged electronically through the Commission's website, lodged personally or posted to the Commission.
The Commission has to decide if your complaint is covered by the Racial Discrimination Act. If it is, the Commission will investigate the complaint. If the Commission cannot deal with your complaint we will write to you and explain why. Investigation may include writing to the other people involved to get their side of the story, if their address is known. Then the Commission will work with both of you to try and find a solution that everyone can agree with. This is called conciliation. If conciliation does not work, you can decide whether to take your complaint further by taking your complaint to the Federal Court or the Federal Magistrates Service.
The Commission always acts in an unbiased manner and does not act for either party to the complaint. Making a complaint is a serious matter and both parties involved may feel unsure or uneasy about what lies ahead. Commission staff will work to ensure you fully understand what is involved so that you can make your own informed decisions every step of the way.
In addition to complaints of race discrimination, if you feel that your human rights in relation to religion have been breached by the Commonwealth government, then you may be able to make a complaint to the Commission under the Human Rights and Equal Opportunity Commission Act.
A person can also lodge a complaint under that Act if they feel they have suffered discrimination in employment and occupation either because they have been refused a job, dismissed from employment, denied training opportunities, denied promotion or subjected to less favourable working conditions or terms of employment because of their religion.
It is important to note however, that even if the Commission finds there has been a breach of a person's human rights or that a person has suffered discrimination in employment because of their religion, the legislation does not make this unlawful. The Commission does not have the power to order the Commonwealth or an employer to treat you fairly or pay you compensation. However, it can provide a written report to Parliament about the findings of the Commission and can make recommendations. We have also brought with us today the Commission's complaints guides which will provide you further details.
The Isma- project has provided us with a greater understanding as to why people in the community do not report incidents or make formal complaints but it has also illustrated the importance of reporting such incidents. It is vital that people do report incidents so that agencies such as the Commission are better informed of the experiences of all Australians as well as the current issues that exist. The Commission would not have known the extent of the anti-Arab and anti-Muslim prejudice that exists across Australia, for example, if not for the anecdotal evidence gathered prior to and as a direct result of the project. A complaining guest at a restaurant could equal 24 other diners who may have had the same problem but don't complain. Like a restaurant manager, complaints and formal reports would help us identify problems and then make suggestions for possible solutions. We do care and we do listen. However, we also recognise that there are limitations and weaknesses in anti-discrimination laws and not everything that is complained about will necessarily amount to unlawful discrimination and vilification under the law. But, we need to work with the existing laws and until there are law reforms, we need to seek alternative remedies of eliminating prejudice against Arab and Muslim Australians.
The Isma- project goes to the heart of a very important issue in Australia today - building strong, harmonious relationships between Australians of all racial and religious backgrounds. The past few years have been testing times in this respect and we hope that the Isma- project is an important step in this process.
29 October 2004