Moss, Irene --- "Combating Racism via the Human Rights and Equal Opportunity Commission" [1987] AboriginalLawB 56; (1987) 1(29) Aboriginal Law Bulletin 4

• Combating Racism Via The Human Rights And Equal Opportunity Commission
• Complaint Handling
• Intrinsic Barriers
• Extrinsic Barriers
• Tha Maynard Decision
• Public Inquiries
• The Goondiwindi/ Toomelah And Boggabilla Inquiry
• Interventions
• Community Education

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Combating Racism via the Human Rights and Equal Opportunity Commission

by Irene Moss

The Centre for Migrant & Intercultural Studies in conjunction with the Aboriginal Research Centre, Monash University, held a Seminar on the Racial Discrimination Act on 30 October 1987. The participants of the Seminar endorsed a number of important resolutions, including an urgent call on the Victorian Government to pass legislation to prohibit and outlaw all forms of racial defamation and public incitement to racial hatred.

At the Seminar, Irene Moss, Race Discrimination Commissioner of the Human Rights & Equal Opportunity Commission, delivered a paper which focussed on the Commission's priorities in combating racism and racial discrimination. The following article is an edited version of the Commissioner's speech, which has been significantly reduced due to space restrictions.

Dr Martin Luther King once said:

"it may be true that legislation cannot make a man love me (and for 'man' I would also read 'woman'), but it can keep him from lynching me."

In Australia today surely we can ask - can legislation affect attitudes?

I believe the answer is 'yes', but only if the appropriate legislation is coupled with political commitment and planned constructive educational programs.

I will not here go into detailed explanation of the Racial Discrimination Act.

Although the Human Rights and Equal Opportunity Commission (The Commission) established by the Human Rights and Equal Opportunity Commission Act 1986 has overall responsibility for implementing the Racial Discrimination Act 1975, the Race Discrimination Commissioner exercises certain statutory powers of inquiry, conciliation and settlement of Racial Discrimination complaints on behalf of the Commission. The 1986 amendments to the Racial Discrimination Act 1975 did not significantly alter the definition provisions but did substantially alter complaint handling procedures and remedies.

A major change involved eliminating the need for a certificate to be made and issued by the Commissioner (where no conciliated settlement had occurred) before the complainant could institute civil proceedings.

Of the six states in Australia, four have state equal opportunity or anti-discrimination legislation and bodies to administer its operation. Cooperative arrangements with the states are renegotiated from time to time between the Federal Government and the Governments of the four relevant states whereby complaints of discrimination under federal legislation arising in those states are to be handled by the state bodies on behalf of the Commission. In the two states that are without suitable legislation and the Northern Territory, the Commission has established its own regional offices ...

Let me outline the priorities in which the Human Rights and Equal Opportunity Commission involves itself.

Complaint Handling

There would be very little doubt that combating racism through complaint handling on its own, is a piecemeal, band-aid approach. Other strategies must be combined with complaint handling to achieve the desired goals.

I would add at this point that the legislation allows for representative complaints, which if successfully conciliated would achieve far greater results than the settling of an individual complaint.

In all its 12 years of operation, more than 6,000 complaints have been received under the Racial Discrimination Act 1975 (RDA).

The inquiry procedure under the RDA has undergone considerable change as a result of the amendments to that act of December 1986. The current procedure consists of a complaint being referred to the Race Discrimination Commissioner (The Commissioner), who may inquire into the complaint and endeavour, by conciliation, to effect a settlement of the matter ...

Since the amendments of 1986, the Commissioner also has greater powers with which to gather evidence relevant to a complaint, and may, like the former Commissioner For Community Relations whom s/he now replaces, direct persons if necessary to attend a compulsory conference. If the conference fails to produce a settlement between the parties, instead of a certificate being prepared by the Commissioner entitling the complainant to institute civil proceedings, the Commissioner may now prepare a report on the matter and refer it to the Commission. The Commission may then conduct its own inquiry and either dismiss the complaint, or find the complaint substantiated and make a determination.

A determination may include declarations of several types, such as a declaration relating to the conduct of the parties, a declaration as to action to be taken to redress any damage, a declaration that damages be paid to the complainant by way of compensation for any loss or damage suffered due to the discriminatory conduct. In the event that a determination is not complied with, the complainant, or the Commission, may institute a proceeding in the Federal Court of Australia for an order to enforce the determination.

There has been only one matter to date under this new procedure for which the Commission has held an inquiry and made a determination. This was in the matter of Anthony Laurence Maynard v. Michael Neilson and Allan Bruce Cerny (1-2 June 1987 and 15 September 1987). The Commission determined that damages by way of compensation of $5,000 be paid to an Aborigine (Mr Maynard) by a publican (Mr Neilson) for unlawful racial discrimination under the Racial Discrimination Act 1975 in Mr Neilson's refusing to serve drinks to Mr Maynard at a hotel bar in Tasmania. The Commission found that the refusal of services was prompted by Mr Maynard's association with other Aborigines and Mr Neilson's subsequent stereotyping of Mr Maynard as an unacceptable customer, and that the dominant reason for the refusal was because the men were Aborigines.

Under the former complaint procedure 33 Certificates enabling the complainant to institute court proceedings were issued between 1975 and July 1986. None to date have led to an effective determination by the courts. Although the new procedure may ultimately put the complainant to the inconvenience of a federal court hearing, which could involve a hearing De Nova (where the respondent refuses to comply with the determinations of the Commission), it provides the complainant with a less cumbersome procedure and a more effective remedy.

Now that is not to say that lodging and if necessary running a complaint alleging race discrimination, has now been made easy.

In fact, what I want to do is to give you a non-exhaustive indication of barriers complainants may experience that deter them from complaining. I have called them intrinsic and extrinsic barriers.

Intrinsic Barriers

Intrinsic barriers are those which have essentially been created by the very nature of the legislation and judicial decisions:

• There now exists in some states of Australia both state and federal legislation to choose from, when making a complaint. If a complainant chooses state legislation and the Tribunal later finds that there is no jurisdiction to hear the complaint this problem may not be able to be rectified. Federal legislation prohibits a second bite at the cherry.
• Constitutional issues may also arise as was the case in Dao and Nguyen v. Australia Post and Metwally v. University of Wollongong. Often race discrimination complaints are defended on constitutional or jurisdictional grounds and not on the facts or merits of the case.
• Tribunal and Commission proceedings can be quite legalistic and adversarial and complainants do feel alienated by this fact.
• There are also arguments which have not yet been determined judicially regarding whether S.9 of the Racial Discrimination Act covers indirect discrimination.
• The case of Maynard provided that if racial discrimination had taken place it must be the dominant reason for the act.
• Arumugam v Department of Health indicated that the intention required to racially discriminate must be a conscious intention. This is contrary to prior decisions in the area which stated that showing intent was not necessary.
• Complaints are required by the legislation to be in writing and this may well provide great difficulty for those Australians who are illiterate, or for non-English speakers who are not well versed in English.
• Determination made by the Commission are not binding unless enforced by the federal court. This even extends to interim determinations made via S.24A of the Racial Discrimination Act.
• There are particular problems relevant to proving race discrimination complaints. Evidence can be quite circumstantial and inferences may need to be drawn to prove discriminatory behaviour.
• Discriminatory behaviour as a result, is often covert rather than overt. Few people these days are prepared to indicate that a job had been refused or a service denied because of the applicant's/ customer's race.

Extrinsic Barriers

• Time can be one of the biggest barriers to pursuing a complaint. Many complainants just give up when they realise that their complaint is not going to be resolved quickly.
• Some cultural characteristics perhaps deter non-English speaking persons from complaining.
• Some complainants may have real fears about actually writing allegations down.
• Fear of reprisal for complaining also exists, not only for the complainants themselves but for their families or colleagues who might give evidence.[*]
• Aboriginal people may experience barriers of geographical isolation, lack of knowledge about State/Federal discrimination bodies and language bars, illiteracy and of course the power imbalance. However, complaints made by Aborigines are mostly service and accommodation based. Employment complaints made by Aborigines are notable because of their rarity.
• Further the concept of complaining to the bureaucracy for traditional Aboriginal communities may be quite alien and here perhaps the whole concept of "individual complaints" is an alien one. There may also be a history of government unreliability and broken promises, which would further deter complaints.
• If legal aid is not available, cost is always a huge problem, and many a good complaint has fallen by the wayside because of this.

All of these barriers paint a hard picture but the story is not too different in other legal areas, and indeed is a commentary of the whole legal system in general.

Complaint handling as a remedy should still be available as an option.

The publicity given to an adjudicated complaint can often be the most effective tool for change.

Tha Maynard Decision

The Tasmanian press highlighted the decision and gave it prominence as a landmark case. I believe it served a purpose of educating Tasmanians and many parts of the mainland that legislation existed to prohibit refusal of service on the ground of race. It will, I am quite sure, have a significant effect on practices of many publicans, the publicity in this case having more effect than the issuing of thousands of leaflets to inform people about the legislation.

My observation, having worked in the area for approximately ten years, is that an issue carefully picked, and a complaint carefully timed, well planned, and well argued may be more effective than any other method in educating people and changing behaviour.

Public Inquiries

The Goondiwindi/ Toomelah and Boggabilla Inquiry

One measure which I believe could be utilised more to achieve the Commission's objectives is the public inquiry.

The recent Goondiwindi/ Toomelah and Boggabilla Inquiry, looking into the economic, social and material needs of those border towns of Queensland and NSW, was actually held pursuant to the Human Rights and Equal Opportunity Act. This Act was preferred to the Racial Discrimination Act as it allowed for a broader scope. Section 11 encompasses, amongst other things the function of inquiries into acts or practices which are believed to be contrary to human rights. An inquiry under the Racial Discrimination Act would require a degree of specificity of an actual act or acts of racial discrimination which an inquiry of this nature may not directly reveal.

The Goondiwindi Inquiry has had as its focus the disparity between the living standards of the Aborigines of Toomelah and the predominantly non-Aboriginal people of the two nearby towns. The initial report which I supervised revealed what was probably fairly predictable-the Aboriginal community suffered from a chronic shortage of water, poor sewerage, overcrowded domestic accommodation, poor health and an under serviced health facility, poor access to secondary education, and 80% to 100% unemployment.

At the inquiry itself evidence was presented to the effect that more than 30 government bodies are involved in the provision of services to the community. It was alleged that the problems and the impediments to any improvement in living standards include the failure of such government bodies to acknowledge their responsibilities; very poor departmental co-ordination; and minimal attempts to implement long-term programs.

The inquiry also considered the provision of services in one of the nearby fully serviced towns which offered a hospital, secondary education, retail outlets, employment and recreation. Evidence was given that suggested racism has hampered the effective access by Aborigines to these nearby services.

It is intended by the Commission that an interim report on the matter be made public in November 1987 aimed at addressing the immediate and pressing needs of the Aboriginal community. It is anticipated that the final report will examine the current provision and control of services and make recommendations accordingly. As the Commission is a permanent body, it is able to monitor and follow up such reports and recommendations.

Since the announcement of the inquiry, there has in fact been a flurry of activity. The water problem has since been attended to, and a secondary school at Boggabilla has been announced...

The Commission has also just recently announced an inquiry into homeless children. The inquiry will look into Australia's responsibility under the declaration of the rights of the child. Amongst other issues it will be looking into Aboriginal and ethnic homeless youths.

The inquiry mode, the Commission believes, has several advantages. It is a broad brush or macro approach, as opposed to microcosm of complaint handling which looks at the finer detail-if you like. Inquiries can look at the larger issues, the institutionally entrenched problems, the system-the structure.

The inquiry mode also has a large community education value. The publicity that usually results from and surrounds the inquiry can be a huge consciousness-raising exercise, a necessary thing for an essentially apathetic nation.

Understanding the truth is always the first step to eliminating prejudice.

Interventions

In addition to its inquiry function, the Commission's function (believed to be unique in the world) of intervention in private legal proceedings that involve human rights issues will permit the attention of the courts to be drawn to any relevant and significant issues arising by reason of Australia's international human rights obligations which may otherwise not be put before me, or put fully or adequately. The aim is to seek the development and expansion of the common law so as to embrace the principles of international human rights instruments and jurisprudence.

The Commission has thus far intervened in one matter concerning human rights and racial discrimination issues. The matter involved a challenge by a Moslem group to a refusal by a local government council in New South Wales (Tarumi Pty Limited v. Bankstown City Council 10/4/1987).

The court granted the Commission leave to intervene and leave to present submissions and cross-examine on a limited basis. It was made clear however that the court did not have the power to make the Commission a party to the proceedings.

The court was invited to suggest judicial guidelines concerning the Human Rights and Equal Opportunity Act 1986, and the Racial Discrimination Act 1975, in its general application to planning laws in New South Wales. The court declined, considering its true function in the proceedings to be to determine whether development consent should be granted or withheld.

The court found in favour of the applicant and granted consent for the erection of a primary school subject to certain conditions. The Commission's intervention served important purposes both as a legal precedent and in attracting public attention to discriminatory practices and breaches of human rights.

The Commission is now proceeding to discuss with judges and courts, the legal profession and law faculties throughout Australia, the appropriate criteria that might guide such intervention and the attitudes to such intervention that should be adopted by state parties to litigation where human rights issues arise.

At present our draft criteria involve the following points of consideration, drafted by the Commission's President, Justice Einfeld ...

Community Education

The Commission has also begun work on selective community education programs aimed at promoting human rights in Australia.

• A pilot schools program introducing human rights concepts into teacher training and the school curricula of two Australian states.
• A national community education campaign on racism in the workplace.
• A national human rights congress in September 1987.
• A program directed to enhance the enjoyment of the rights of women of non-English speaking backgrounds.
• A national human rights week scheduled for December 1987 to mark International Human Rights day and the 39th anniversary of the Universal Declaration of Human Rights.
• I believe of particular importance, is the schools program. A scheme adopted from the work of the old human rights commission, this time around it will focus on teacher training, rather than creating new material in the area.

In conclusion, I would like to make a point of observation.

30%-40% of our complaints are lodged by Aboriginal people. Those complaints mainly concern the refusal of basic services - services in shops, pubs, restaurants, etc., and accommodation.

There are very few employment complaints.

This illustrates the monotonous but predictable situation - Aborigines are still coming to grips with obtaining the basic rights of life -service without discrimination, a house to live in, water to bathe, etc. Whilst other minority groups - the non-English speaking backgrounds (N.E.S.B.s), women, etc. are gradually moving up that pyramid of life and again that is reflected in the subject matter of the complaints - e.g. employment, conditions, promotions, dismissals, etc., those subject matters are certainly not reflected in the Aboriginal complaints.

I have given a quick overview of the difficulties for a complainant in lodging a complaint and following through with it.

An Aboriginal person, having suffered an individual injustice and who pursues a complaint to the end is a courageous and tenacious man or woman. It is difficult for one person.

Some thought should be given to greater use of representative complaints similar to the US class actions; another 'tool' in effecting larger structural changes.

Note: A follow-up meeting based on the resolutions from the Seminar, was held on 27 November at the Aboriginal Research Centre, Monash University. If you are interested in supporting the Centre's activities in combating racism, contact Ms Eve Fesl's office on [phone].

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[*] (Further 'extrinsic barriers' to complaining are mentioned in the Commissioner's observations relating to Aboriginal people ... Editor)