Moss, Irene --- "The Report of the National Inquiry into Racist Violence" [1991] AboriginalLawB 16; (1991) 1(49) Aboriginal Law Bulletin 4

• The Report Of The National Inquiry Into Racist Violence

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The Report of the National Inquiry into Racist Violence

by Irene Moss

As part of its responsibility for ensuring that Australia complies with its international human rights obligations, the Human Rights and Equal Opportunity Commission (HREOC) commenced the National Inquiry into Racist Violence in response to:

• A widespread perception in the Australian community that racist violence was increasing.
• Representations from a number of ethnic community groups concerned that racist violence against people on the basis of their ethnic identity seemed to be increasing.
• The Commission's own experience in dealing with Aborigines and the criminal justice system. The Inquiry was aware of the work being undertaken by the Royal Commission into Aboriginal Deaths in Custody, and liaised closely with that Commission to ensure that our enquiries did not overlap.

Prior to the Inquiry, people had approached the HREOC with a wide range of matters, which they considered to be racist violence. For the purpose of the Inquiry, racist violence was defined as a specific act of violence, intimidation or harassment carried out against an individual, group or organisation (or their property) on the basis of:

• Race, colour, descent, or national or ethnic origin;
• Support for non-racist policies.

The Inquiry, which commenced in 1989, has been substantial. The HREOC, with the assistance of the Office of Multicultural Affairs, held public hearings throughout Australia, received written submissions from several hundred individuals and organisations and conducted an outreach program to gather evidence on the experiences of Aborigines and people from non-English speaking backgrounds who may have been the victims of racist violence.

To explore specific aspects of racist violence in Australia the Inquiry commissioned a number of specialised research consultancies.

The evidence received ranged from accounts of personal experiences to analytical research studies of more general situations. In contrast to the approach adopted by the Royal Commission into Aboriginal Deaths in Custody, the Inquiry concentrated on the broader issues of racist violence rather than looking intensively at a small number of individual incidents.

In summary the Inquiry found that:

• Racist violence against Aboriginesand Torres Strait Islanders is endemic, nation-wide and very severe.
• There have been serious incidents of violence, harassment and intimidation against people of non-English speaking background, their property and their worship. Although this is a matter of concern to the Inquiry, the extent of racist violence on the basis of ethnic identity is not as severe as that experienced by Aboriginal people.
• Anti-racist activists have been subject to violence because of their advocacy of human rights. The evidence indicates that this is largely perpetrated by organised extremist groups.

Racist violence is an endemic problem for Aboriginal and Torres Strait Islander people throughout Australia. Evidence to the Inquiry overwhelmingly demonstrated that racist attitudes and practices (both conscious and unconscious) pervade our institutions.

Aboriginal-police relations have never been good, but they have now reached a critical point due to widespread police involvement, in acts of racist violence, intimidation and harassment. The Bicentenary drew unparalleled attention to the situation of Aboriginal and Torres Strait Islander people. We now have the Aboriginal and Torres Strait Islander Commission and a process designed to achieve national recognition of and reconciliation with Aboriginal people. However, the issue of Aboriginal-police relations remains unresolved.

Evidence presented to the Inquiry revealed, for example, that the vast majority of Aboriginal and Torres Strait Islander young people in juvenile detention centres in WA, QLD and NSW alleged that they had been subjected to violence by police officers. (see Chris Cunneen, `Aboriginal Young People and Police Violence'; (p.6) [1991] AboriginalLB 17; 2(49)pg6 )

The crisis in Aboriginal-police relations is most graphically illustrated by the so-called Redfern raid. The Inquiry found that the Redfern raid constituted a significant act of racist violence against the Aboriginal community.

People from non-English speaking backgrounds also experience racist violence. The perpetrators of racist violence against non-English speaking backgrounds are generally young, male, Anglo-Australians. On the other hand, anti-racist activists tend to be targeted by small but organised, extremist groups.

The Inquiry found that on the whole, public institutions, such as the police and the legal system and housing and educational authorities, are not responding effectively to reports of racist violence.

As a result of these findings the National Inquiry into Racist Violence has made 64 recommendations. In making these recommendations the Inquiry has sought to learn from the experiences of the various Australian jurisdictions, the United States, United Kingdom, Europe, Canada and New Zealand.

The most significant recommendations involve a package of legislative reforms to create a range of new criminal offences and civil remedies. The report indicates why current laws are inadequate to deal with the problem and why there is a need for national legislation.

The Inquiry recommends that the Federal Crimes Act be amended to create a new criminal offence of racist violence and intimidation. In addition, there should be a clearly identified offence of incitement to racist violence and racial hatred which is likely to lead to violence.

The Inquiry recommends that these be Federal offences because the Federal Government is responsible for protecting fundamental human rights such as the right to security of person and property. The establishment of a Federal offence is significant because it will require Federal authorities to investigate and, if necessary, prosecute State and Territory police if they are involved in acts of racist violence. It will also enable Federal action if incidents of racist violence are not properly investigated and prosecuted. The Inquiry is not targeting police by recommending this course of action, but is requiring that they, like everyone else, will be subject to the law.

New civil remedies are needed to address less serious forms of intimidation and harassment. The Racial Discrimination Act should be amended to prohibit racist harassment and outlaw the incitement of racist hostility.

The racist harassment provisions will cover conduct which is so abusive, threatening or intimidatory as to constitute harassment on the ground of race, colour, descent or national or ethnic origin.

The proposed new provision in the Racial Discrimination Act concerning incitement of racial hostility will deal with certain forms of racist propaganda. The Inquiry has carefully balanced the right to free speech with the fundamental rights of people from different ethnic or racial backgrounds to live free of harassment or violence.

In recommending the prohibition of incitement of racial hostility, the concern of the Inquiry was with the potential to have a deep lasting effect on the well-being of individuals or groups who have been targeted because of their race. It is important to emphasise that the proposed legislation would only outlaw certain public expressions or acts of incitement, not private opinion or legitimate debate.

In addition to the substantive reforms mentioned earlier, the Inquiry has recommended a number of procedural changes to the law:

• under both State and Federal Crimes Acts, racist motivation should be taken into account in sentencing persons convicted of crimes. Higher penalties may be imposed accordingly.
• The proposed provisions covering incitement of racial hostility and harassment would also protect members and supporters of anti-racist organisations.
• Discrimination on the basis of religion should be prohibited, under the Racial Discrimination Act, where religious belief is used as surrogate for race and ethnicity.

The Inquiry recommends major reforms in the areas of law enforcement and justice administration.

The Inquiry found that Aboriginal-police relations have reached a serious level due to the widespread involvement of police in acts of racist violence, intimidation and harassment. Although the Inquiry regrets this conclusion, the evidence is overwhelming. It is apparent that the climate of racism is so pervasive in the police forces that there is a need for fundamental changes in policing practices.

The Inquiry recommends that racist practices by police officers be rigorously investigated and treated as serious breaches of duty attracting severe penalties, including dismissal.

The Inquiry proposes that statutory codes of practice be developed for police, in relation to Aborigines and Torres Strait Islanders and people of non-English speaking backgrounds, to ensure that particular communities are not targeted for extraordinary policing measures.

Given the extent of Aboriginal complaints against police officers, the Inquiry further recommends that Ombudsman's Offices and Police Complaints Tribunals establish designated positions for Aboriginal and Torres Strait Islander people to investigate complaints and inform their communities of complaints mechanisms.

The Inquiry also calls on Federal and State police forces to promote the recruitment of persons of Aboriginal and non-English speaking backgrounds, and to provide appropriate training to all police officers in cross-cultural issues and community relations.

In formulating its recommendations to deal with racist violence, the Inquiry was struck by the lack of statistical information. The Inquiry therefore recommends uniform national procedures for the collection of statistics on racist violence, intimidation and harassment, and for publication of the incidence of racially-based crime throughout Australia. In addition, Federal and State police should be required to record all allegations and incidents of racist violence and this data should be collated and analysed by an appropriate Federal agency.

In the judicial area, the Inquiry recommends that:

• witnesses and parties to legal proceedings who are unable to understand the proceedings should be entitled to specially trained interpreters; and
• to ensure that juries more accurately reflect the ethnic diversity of the community, objections to potential jurors on the basis of ethnic or racial background should be prohibited and appropriate information and education provided to enable all members of the community to act as jurors.

Evidence to the Inquiry about racist violence, intimidation and harassment raised a number of important concerns about the roles and practices of other institutions. Reforms were recommended affecting where people live, work and learn.

The Inquiry found that many people from non-English speaking backgrounds, and Aborigines, are victims of discrimination and racist violence in their own neighbourhoods. The Inquiry recommends that public housing authorities develop and implement anti-racist policies and strategies for all housing estates, especially for those which have significant numbers of persons of Aboriginal, Islander and non-English speaking backgrounds.

The Inquiry recommends the development and implementation of an anti-racist code of practice for the private housing and rental market.

Measures to deal with racism and racist violence and harassment in the workplace are also recommended; foremost among these are that all industrial awards include provisions guaranteeing freedom from racial discrimination and racist harassment in the workplace and that such provisions be enforced by Industrial Tribunals.

The Inquiry recommends that government and non-government education authorities work with teachers, teacher unions, students, parents and community groups to develop anti-racist education policies and formal grievance procedures to deal with harassment in primary, secondary and tertiary institutions. These measures must be reinforced by curriculum initiatives on multicultural issues.

Action at a community level is also important in addressing cultural and inter-racial issues. The Inquiry has already outlined to the Federal Government, proposals for initiatives in community relations and welcomes the Community Relations Strategy announced by the Prime Minister which incorporates many of the recommendations in the report.

Many people complained to the Inquiry about alleged racism in media reporting. The media have a right and, indeed, a responsibility to report on race issues. The Inquiry recognises, however, the concerns of those who gave evidence. We are convinced of the importance of codes of practice and recommend their development, and their observance by media outlets. In addition any proposal to modify or abolish the powers and processes of the Australian Broadcasting Tribunal should take into account the need to retain an effective avenue for the handling of complaints of racism and racial vilification in the media.

The Inquiry commends initiatives taken by some media organisations to encourage the recruitment and advancement of journalists from Aboriginal and non-English speaking backgrounds and encourages all media organisations to follow this example.

The Inquiry also recognises the need for anti-discrimination bodies to provide regular opportunities for consultation and exchange of views between media representatives and community spokespeople.

In conclusion I wish to reiterate that the report of the National Inquiry into Racist Violence is a unique report. It represents the most comprehensive exposition of the incidence of racist violence, intimidation and harassment ever undertaken in Australia.