Indigenous Law Bulletin
by the Federal Race Discrimination Commissioner
AGPS, Canberra, 1996
Reviewed by Catherine Riordan
This is the fourth report in the State of the Nation series, and it focuses on the complaints mechanisms in the Racial Discrimination Act 1975 (Cth) ('the RDA') and how they are used by people of non-English speaking backgrounds.
Zita Antonios, the Race Discrimination Commissioner, states that feedback from the review of the RDA indicates that many people are experiencing discrimination, and that some do not lodge complaints because they are not aware of the RDA, or do not understand its operation. Ms Antonios also notes that in the light of the current 'race debate', a simple, clear explanation of the RDA would benefit the community as a whole.
This report does not deal with issues affecting Aboriginal people and Torres Strait Islanders. Although complaints made by Indigenous Australians are investigated and conciliated under the RDA, these are reported by the Aboriginal and Torres Strait Islander Social Justice Commissioner. It is, however, useful for anyone who deals with the RDA on a regular basis, especially for people who advise those who may wish to make complaints.
The report outlines the background to the RDA and the UN Convention (the Convention on the Elimination of All Forms of Racial Discrimination) which it is based on. It clearly sets out the provisions of the Act relating to direct and indirect discrimination, giving examples of each.
This report also outlines in some detail the complaints process which people go through when they make a complaint about race discrimination under the RDA. It clearly explains such issues as standing (who is an aggrieved person), the way to make complaints, the investigation process, and the conciliation and hearing processes.
Perhaps most usefully, the book gives a number of case studies which provide examples of 'good news stories' showing the successful use of the provisions of the RDA. The report also gives examples of a number of declined complaints, which help to illustrate cases where the Commissioner decides it is not appropriate to take action. These case studies provide a sobering reminder that racism is alive and well in Australia today. It is heartening, however, to read that substantial financial penalties can be agreed to after conciliation or imposed following a hearing.
The report also provides an overview of complaints received and of trends in those complaints. It makes the point that legislation such as the RDA (and, by implication, other discrimination legislation in Australia), has a limited ability to deal with systemic problems due to its focus on complaints by individuals.
This is an ongoing problem with human rights and anti-discrimination law. If conciliation-based dispute resolution procedures are used, problems can often be solved quickly, informally and confidentially; but as there is no precedent value in decisions made after conciliation, the complaints process can be treated less seriously by respondents, and there is little deterrent value for potential respondents in decisions which are not publicised. On the other hand, the report notes anecdotal evidence which suggests that if courts were the first port of call, many complainants would not use the complaints mechanisms at all.
It is interesting to note that between 1991 to 1996, complaints made by Aboriginal people and Torres Strait Islanders and people from English-speaking backgrounds remained relatively constant, but complaints made by people from non-English speaking backgrounds rose dramatically. Averaged over the five year period, 196 complaints of racial discrimination were received each year. The report suggests that this relatively low number could be attributed to several causes:
The report also notes that reforms suggested in community consultations as part of a review of the RDA include:
This report is useful both for the information it provides on the activities and goals of HREOC in the race discrimination field, and for its clear and easily understood definitions of terms. It provides a simple and accessible guide to the complaint handling process and the outcomes possible under that process.
 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.