Indigenous Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Indigenous Law Bulletin |
|
Australia is a racist country. It has a racist history which continues to impact on the lives of Aboriginal people. Evidence of racism in Australia against Aboriginal people is extensive.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is the primary international instrument which requires nation states to promote human rights and prohibit racial discrimination. The Convention was signed by Australia in 1966 and ratified (and made binding) in 1975. The Convention was then implemented at a domestic level by the enactment of the Commonwealth Racial Discrimination Act 1975 (Cth) (`the RDA'). The legislation is administered by the Human Rights and Equal Opportunity Commission (HREOC), which is primarily required to undertake conciliation between parties on receipt of a complaint. If conciliation is unsuccessful, the complaint may be referred for determination. Determinations made by the Commission may be appealed to the Federal court.[1] The United Nations Committee to Eliminate Racial Discrimination (CERD) may also hear complaints from individuals who believe that their rights under the ICERD have been violated.[2]
A review of the RDA was initiated by the Commonwealth Attorney-General in 1995, 20 years after the commencement of the Act[3]
HREOC has indicated that the final report of the review, containing recommendations for reform, may be released in mid-1997.
With respect to Aboriginal people, the review has highlighted the following:
Why is racial discrimination so difficult to prove? Justice Einfeld, the first President of the Commission, believed that `there is no onus of proof on complainants', and that a strict burden of proof was not appropriate in view of the purpose and function of the legislation.[7] This approach, however, has not been followed by the Commission, and it now seems settled that the plaintiff is under a burden to prove, on the balance of probabilities (the same standard as in civil law), that they have been racially discriminated against.[8]
Evidence of racial discrimination may be direct or circumstantial. Direct evidence of racial discrimination may be established where the discriminator makes a direct or explicit reference to race. For example, if an employer were to say, `No, I wouldn't give you the job because you're Aboriginal [or an Abo, boong or nigger] and can't be trusted not to go walkabout', then that would be direct evidence of racial discrimination. Racism may also be established by circumstantial evidence, so although the explicit reason for a decision was not racial, this may be inferred on the basis of circumstantial evidence, such as racist incidents surrounding the complaint.[9]
The more problematic issue concerns unconscious racism. In the court system, for example, Justice Fullagar of the Victorian Supreme Court in Department of Health v Arumugam,[10] held that in order to establish racial discrimination, the act of the discriminator must be a conscious one: `A finding that a person discriminated is stigmatising, and should be made only if the person deliberately behaved in a way contrary to the Act'. The following year the High Court in Australian Iron and Steel v Banovic[11] disapproved of this approach, commenting that discrimination need not be conscious. The High Court approach is in accord with the philosophy underlying a conciliation-based (as opposed to prosecution-based) model of conflict resolution. As Professor Thornton explains, the conciliation model is premised on the basis `that discriminators should be treated gently, as their conduct invariably arises out of unconscious racism ... rather than from a conscious animus'.[12]
Some Commissioners hearing racial discrimination cases do appear to accept that unconscious discrimination may suffice for the purposes of the Act.[13] As just noted, there is a stigma attached to a racial discrimination finding, and this may partly explain the reluctance of Commissioners to make determinations in favour of complainants. However, there are very few cases in this area of the law and the question as to what will constitute unconscious racism remains to be seen. I am not optimistic. One case which comes to mind here is Steven Mead v Southern Districts Football League.[14]In this case, the Aboriginal complainant had been suspended by the League from playing football for one season because of an assault on another player. This was believed to be a severe penalty in relation to those imposed on non-Aborigines and appealed against by the complainant and a local Nyungar organisation. On appeal, the complainant submitted a statutory declaration with an apology and further explanation that the assault was in response to him being spat at and abused as a `black cunt'. On re-hearing the complaint, the League referred to the incident as `unprovoked' and increased the suspension to 18 months. Sir Ronald Wilson, President of the Commission, heard the complaint and found Steven Mead `was not accorded equal treatment' and that it was `unusual and ... extraordinary' for the League to increase the penalty on re-hearing. Sir Ronald Wilson did not, however, consider this to constitute racial discrimination. He did not believe that the `honourable' members of the League `were affected, either consciously or unconsciously by a racist bias'.
Why was the President so confident that no biases were at work in the minds of these respondents? I'm sure that they were not questioned about the attitudes they have towards Nyungar people.[15] If unequal and extraordinary treatment such as that measured out to complainants like Steven Mead is insufficient to prove unconscious racism, then what will? Underlying this decision and others of its kind[16] appears to be a presumption that Australia is not a racist country. This is contrary to the experience of Aboriginal people, and the evidence established by HREOC itself, such as in the 1991 National Inquiry into Racist Violence which found that racism and racist violence against Aboriginal people is `endemic' and `widespread'.[17]
Patricia Williams, an American critical race theorist, provides the following scenario, which would be familiar to many Aboriginal people.[18]
Cain: Abel's part of town is tough turf.
Abel: It upsets me when you say that; you have never been to my part of town. As a matter of fact, my part of town is a leading supplier of milk and honey.
Cain: The news that I'm upsetting you is too upsetting for me to handle. You were wrong to tell me of your upset because now I'm terribly upset.
The burden on Abel, and by analogy, Aboriginal people, is thus twofold. We must not only raise the issue, but are also responsible for its impact. The real issue is deflected and the perpetrator escapes accountability.[19] Concern over upsetting others' feelings gets put above the need to protect one's own. Patricia Monture, a First Nations Canadian lawyer, explains that `Racism is turned against the "victim" in this kind of labelling process' creating an `unnatural inversion'. Racism is a bad, distancing word which we need to reclaim.[20]
Monture also writes that `combating racism in law is, and can only be, a partial solution until the parameters of law are redefined in a way that is inclusive of our experience'.[21] The Commissioners determining cases of racial discrimination are not Aboriginal people, and their decisions show that they do not have our understanding and experience of racism. This is particularly true of the current President, Sir Ronald Wilson, who, as a High Court judge in Mabo v Queensland [No. 1][22] did not believe that the wholesale extinguishment of native title in Queensland by the Queensland government was contrary to the Racial Discrimination Act 1975 (Cth). Sir Ronald has more recently, as Chairperson of the Inquiry into the Removal of Children, made a public apology for his involvement with Sister Kate's Children's Home, stating that he did not know at the time that the theft/removal of Aboriginal children from their families was wrong.[23]
The Review has also highlighted a significant and disturbing disparity between the Sex Discrimination Act 1984 (Cth) (`the SDA') and the RDA. Chris Sidoti, the Human Rights Commissioner, noted that it is clearly harder to establish racial discrimination than sex discrimination, that `more than half of the SDA complaints going to hearing, around about 54% are found substantiated at hearing. But less than one third of racial discrimination complaints going to hearing (29%) are found substantiated at hearing'. The Commissioner also stated that damages awarded under the RDA for successful complaints were very low, and that `race discrimination seems to be considered more trivial than the other forms of discrimination'.[24]
How can this difference be explained? Is it simply that white Australian women (who are the typical complainants under the SDA[25]) have stronger complaints, that their discrimination is more obvious and serious? The question of bias on the part of the Commissioners hearing the cases in favour of white women needs to be addressed. I think it is important to note here the critique frequently made by Aboriginal women of the white feminist movement, primarily on its failure to acknowledge the importance of racial oppression to Aboriginal men and women. Roberta Sykes in the 1970s, and more recently Larissa Behrendt,[26] write of mainstream feminist theory which positions the power struggle as one between women (and, by inclusion, black women) and men, thereby ignoring the relevance of racial oppression. A more accurate depiction of the power struggle is as follows:
White Australia
White Men
White Women
Black Australia
Black Men
Black Women
When an Aboriginal woman experiences discrimination, she experiences discrimination because she is an Aboriginal woman, not just `Aboriginal' or `woman' or `Aboriginal' plus `woman'. Rather, it is `the particular intersection of race and sex (and class and sexuality) that shapes a complainant's experience of discrimination, and a particular privilege of Anglo-Australian women to be able to ignore their race'.[27] The anti-discrimination mechanisms require, however, that a complaint must be made of sex discrimination under the SDA, or racial discrimination under the RDA, or that two complaints must be brought under both of the Acts together. Aboriginal women, unlike white women, are therefore required to `fragment' or `divide' the experience of discrimination.[28] Research also indicates that agencies have had much difficulty in dealing with the small minority of cases before them involving race and sex discrimination. Women in such cases were either referred elsewhere, subjected to onerous burdens, or had their complaints declined as `lacking in substance'.[29]
Racial Discrimination Act 1975: A Review has highlighted the fact that Aboriginal people, men and women, face substantial difficulties in making complaints of racial discrimination, and dealing with racism, through HREOC and the RDA. The extent to which the forthcoming recommendations for reform will address these issues remains to be seen. The book findings with respect to Aboriginal people raise the issue of whether Australia is properly fulfiling its obligations under the Convention on the Elimination of All Forms of Racial Discrimination. Aboriginal people know that Australia is a racist country, and we have a right to mechanisms which offer real and effective redress against discrimination.
[1] Federal legislation in response to the Brandy v HREOC ((1995) [1995] HCA 10; 127 ALR 1) decision will establish a Human Rights Registry within the Federal Court of Australia.
[2] The CERD Committee will not hear a complaint unless it is satisfied that individuals have exhausted all domestic remedies available to them. Individuals are also unable to make complaints to CERD in relation to race vilification, as the Australian government has not removed its reservation to Article 4(a) of the ICERD.
[3] See Racial Discrimination Act 1975: A Review, Race Discrimination Commissioner, Commonwealth of Australia, 1995 (reviewed by Catherine Riordan in Vol 3, 85 Aboriginal Law Bulletin 33).
[4] Racial Discrimination Act 1975: A Review, Race Discrimination Commissioner, Commonwealth of Australia, 1995, p 279.
[5] Ibid, p 279.
[6] Ibid, p 90. This may be explained by the view in Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, Melbourne, 1990) that members of the Commission `may be less likely to accept that discrimination was committed by members of their own social class' (at p 181).
[7] Bennett v Everitt (1988) EOC 92-244.
[8] See Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147.
[9] In Lynne Parker v Devenish Primary School No. H93/034 Commissioner Castan QC accepted this but also found that there was no circumstantial evidence of race discrimination despite the fact that the complainant testified to racist acts after the complaint had been made.
[10] [1988] VicRp 42; (1988) VR 319.
[11] [1989] HCA 56; (1989) 168 CLR 165.
[12] Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia, Oxford University Press, Melbourne, 1990, pp 37-38.
[13] See for example J Basten QC in Mamdouh Mourid Seif Elmaraazey v University of NSW No. H95/61 and President Wilson in Steven Mead v Southern Districts Football League Inc No. H91/45.
[14] No. H91/45.
[15] And I wonder just how different their views would have been from, for example, those expressed in a 1968 survey of Western Australian attitudes, where stereotypes such as `wasteful with money', `dirty and slovenly', `drunken', were most commonly ascribed to: see R Taft, `Attitudes of West Australians Towards Aborigines', Attitudes and Social Conditions: Aborigines in Australian Society, ANU Press, Canberra, 1970. And I wonder just how different their views would have been from, for example, those expressed in a 1968 survey of Western Australian attitudes, where stereotypes such as `wasteful with money', `dirty and slovenly', `drunken', were most commonly ascribed to: see R Taft, `Attitudes of West Australians Towards Aborigines', Attitudes and Social Conditions: Aborigines in Australian Society, ANU Press, Canberra, 1970.
[16] See Calita Murray v Ann Forward and Merit Protection No. H92/53 where the Tribunal President went so far as to require from the complainant not only proof of the discrimination but also of systemic racism.
[17] Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in Australia, AGPS, Canberra, 1991, pp 387-389.
[18] P Williams, ` Spirit Murdering the Messenger: The Discourse of Fingerpointing as the Laws Response to Racism', in Reading Racism and the Criminal Justice System, David Baker (ed), Canadian Scholars Press Inc, Toronto, Canada, 1994, pp 153-154.
[19] P Williams, ` Spirit Murdering the Messenger: The Discourse of Fingerpointing as the Laws Response to Racism', in Reading Racism and the Criminal Justice System, David Baker (ed), Canadian Scholars Press Inc, Toronto, Canada, 1994, pp 153-154.
[20] P Monture, `Reflecting on Flint Woman', Canadian Perspectives on Legal Theory, Richard Devlin (ed), Emond Montgomery Publications Ltd, Toronto, Canada ,1991, p 360.
[21] Id at 359.
[22] Id at 359.
[23] The 7.30 Report, ABC TV,
1 May 1997.
[24] See p 279 of Racial Discrimination Act 1975: A Review.
[25] See R Hunter and A Leonard, The Outcomes of Conciliation in Sex Discrimination Cases, The University of Melbourne Centre for Employment and Labour Relations Law, Working Paper No. 8, 1995, p 3.
[26] L Behrendt, `Aboriginal Women and the White Lies of the Feminist Movement', The Australian Feminist Law Journal, Vol 1, 1993.
[27] R Hunter and A Leonard, The Outcomes of Conciliation in Sex Discrimination Cases, The University of Melbourne Centre for Employment and Labour Relations Law, Working Paper No. 8, 1995.
[28] See Nitya Duclos, `Disappearing Women: Racial Minority Women in Human Rights Cases', Canadian Journal of Women and the Law, Vol 6, No. 1, 1993; Hilary Astor, `A Question of Identity: The Intersection of Race and Other Grounds of Discrimination', Racial Discrimination Act 1975: A Review, Race Discrimination Commissioner, Commonwealth of Australia, 1995.
[29] R Hunter and A Leonard, The Outcomes of Conciliation in Sex Discrimination Cases, The University of Melbourne Centre for Employment and Labour Relations Law, Working Paper No. 8, 1995, p 3.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/1997/72.html