Riordan, Catherine --- "Book Review - Racial Discrimination Act 1975: A Review" [1996] AboriginalLawB 76; (1996) 3(85) Aboriginal Law Bulletin 33

• Book Review-Racial Discrimination Act 1975: A Review
• The Past Twenty Years
• Part I
• Part II
• Conclusion

---

Book Review - Racial Discrimination Act 1975: A Review

by the Race Discrimination Commissioner

Australian Government Publishing Service

Reviewed by Catherine Riordan[1]

It is now over twenty years since the passage of the Racial Discrimination Act 1975 (Cth) ('the RDA') through the Federal Parliament. This was the first major piece of anti-discrimination legislation to be made law in Australia at the Federal level. In the last two decades, it has been followed by the Sex Discrimination Act 1984 (Cth), the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the Privacy Act 1988 (Cth) and the Disability Discrimination Act 1992 (Cth). The RDA has been at the heart of at least two ground-breaking High Court decisions, Koowarta v Bjelke-Petersen ((1982) [1982] HCA 27; 153 CLR 168) and Mabo v Queensland [No. 2] ((1992) [1992] HCA 23; 175 CLR 1), as well as the vehicle by which over 10,000 complaints of racial discrimination have been made.

The past twenty years

Despite its success in these areas, the RDA is beginning to show its age. Although it has been amended periodically, more recent pieces of anti-discrimination legislation are more representative of best practice in this area. In addition, there are practical problems with the operation of the Act, such as the indirect discrimination provisions, which are rarely utilised, and the RDA's consequent ineffectiveness against structural discrimination.

Since the enactment of the RDA, domestic and international discourse on human rights has advanced considerably and there are now new issues to consider, such as the balance between the rights of individuals and the collective rights of communities, and whether the Act should reflect the idea of self-determination for Indigenous peoples. In response to this, and to mark the twentieth anniversary of the RDA, the Federal Government is conducting a major review of the Act The review is intended to examine both the 'big picture' issues such as those outlined above, and to examine in detail the substantive provisions of the Act.

This volume has been released both to stimulate public debate about the review, and to publish the proceedings of a conference to mark the 20th anniversary of the RDA, which was held at the University of New South Wales in August 1995. The review of the Act is still in progress, and the public consultations on the review are almost complete (those for New South Wales will take place from the end of October until mid-November 1996). After this, the submissions received by the Human Rights and Equal Opportunity Commission will be collated, and it is expected that the report to the Government will be completed by mid-1997.

The book itself is divided into two parts. The first section looks at the RDA in its legal and political context. It sets out the background to the Act, both within Australia and overseas, outlines the provisions of the Act, and details how it works in practice. The second section contains the papers from the RDA Review Seminar held at the Human Rights Centre at the University of New South Wales in late 1995.

Part I

The first section outlines how the development of the right to be free from discrimination on the basis of race has been influenced by the events of this century, such as the Holocaust, the civil rights struggle in the United States, and the after-effects of slavery and colonialism. It sets out the background to the International Convention on the Elimination of All Forms of Racial Discrimination (the CERD), and notes that it is one of the most widely-adopted conventions of its kind, with over three-quarters of United Nations member nations having ratified it by June 1995. Australians who believe that their rights under the CERD have been infringed may complain to the United Nations Committee on the Elimination of Racial Discrimination.

The book also notes the increasing influence of international conventions on domestic law generally, and uses Justice Kirby's judgment in the Jago case (Jago v District Court of New South Wales (1988) 12 NSWLR 558 at 569), and the Mabo [No. 2] case (cited above) as examples.

The section on the Constitutional limitations to reforming the Act outlines the history of the interpretation of the external affairs power by the High Court since the enactment of the RDA. It concludes that there are now few Constitutional limitations on the Commonwealth's power to implement international conventions. The book contends that now that the Constitutional validity of the RDA is no longer in doubt, the Act should be amended (and perhaps broadened in scope) to better implement the CERD.

It notes that the RDA has an exceptionally broad reach in Constitutional terms, binding the Crown in right of the Commonwealth and of the States, and covering discriminatory executive action by Federal or State Governments. Interestingly, it is argued that despite extensive international jurisprudence, Australian courts have so far failed to recognise that the principles of equality and non-discrimination do not require equal treatment. The extensive body of case law which has developed around the equality guarantees contained in the Canadian Charter of Rights and Freedoms could be instructive in this respect.

Part II

The papers contained in the second part of the book take a more theoretical approach to the current state of race discrimination law in this country. Margaret Thornton's paper notes the limitations both of the current conciliation process in resolving complaints of racial discrimination (particularly the requirements of confidentiality), as well as the problems inherent in the public hearing process, which she contends favours corporate respondents.

Philip Tahmindjis examines the elements which need to be established under Australian law to found a case of indirect racial discrimination. He contrasts the Australian approach to indirect discrimination, which has largely been contained in statutes and narrowly interpreted by courts, with that in the United States of America, Canada and New Zealand/Aotearoa, where indirect discrimination law has been developed by the courts through a purposive approach to legislation. He also notes the dearth of reported cases in this field in Australia, despite recent indications that the instances of indirect racial discrimination here may be enormous, and proposes strategies for change.

Sarah Pritchard analyses the 'special measures' provision in the RDA, and contrasts the international developments in this area with the Australian situation. Garth Nettheim expresses similar concerns about the limitations of 'special measures', and suggests that these may not be the most appropriate vehicle for recognition of the distinctive rights of Indigenous Australians, because of limitations in the way these can operate.

Chris Sidoti looks in more detail at the problems experienced by people in bringing complaints under the RDA, and the remedies which the RDA currently offers, as well as the difficulties which have been experienced in enforcing decisions under the RDA, particularly since the Brandy v HREOC decision ((1995) [1995] HCA 10; 127 ALR 1).

Other issues such as racial vilification, the intersection of race and gender, and access and equity are discussed in detail in further essays by Natan Lerner, Melinda Jones and Saku Akmeemana, Hilary Astor, and Greta Bird. The appendices to the book also contain the text of the RDA, the CERD, and the Model Law Against Racial Discrimination, which was drafted when the CERD was signed.

Conclusion

In her foreword to this book, Ms Zita Antonios, the Race Discrimination Commissioner, states that

'I recognise the limits inherent in the legal system in altering racist behaviour and the entrenched attitudes that underlie systemic discrimination. However, the law does have a vital role to play in delegitimising racial discrimination and ensuring an avenue for redress'.

It is refreshing to see such an accurate appraisal of both the limitations and the possibilities of anti-discrimination legislation. The process of changing public attitudes and values which is necessary to fully implement such legislation is a lengthy and slow one, which is far from complete in Australia. This has become increasingly apparent since the Federal election in March of this year, with the new Prime Minister heralding the death of 'political correctness', and applauding the new climate of 'free speech' in this country.

In addition, legislation such as the RDA, which is complaint-driven, relies on members of the public to bring appropriate complaints to further the development of the case law and to bring about changes to the practices of Governments and companies. Greta Bird's paper on access and equity issues sets out the barriers to people bringing complaints very well.

This book is a well-researched and written guide to the current state of race discrimination law in Australia. It is useful because it gives both a guide to the practical operation of the Racial Discrimination Act 1975 (and some of its shortcomings), and a more detailed, scholarly analysis of issues arising from the legislation and the case law. It would be helpful both to students and to human rights practitioners, and provides a strong intellectual foundation for the review of the Act. The review of the Act is, as stated above, ongoing, and submissions will be. received by the Human Rights and Equal Opportunity Commission until the end of November 1996.

---

[1] The views expressed in this review are solely those of the writer and do not purport to reflect the views of the Office of the Legal Services Commissioner of New South Wales.