The Legal System’s Approach to Tackling Race Discrimination

By Dominique Allen | 07 Mar 12

This article is part of our March theme, which focuses on an ongoing challenge to Australian society: Race & Discrimination. Read our Editorial for more on this theme.

The 1960s and 70s was a time of heightened awareness and action in the Western world about the harms of racial inequality and segregation. In the United States, Dr Martin Luther King and his followers marched on Washington and demanded the right to equality promised under their Constitution (the struggles of Dr King and others like him resulted in the passage of the historic US Civil Rights Act of 1964 which formed the basis of other national race discrimination legislation); the Indigenous populations of the United States and Canada, amongst others, demanded recognition and equal rights; there was international condemnation of the oppressive apartheid regime in South Africa following such events as the Rivonia Trial and the Sharpeville massacre; and the international community agreed upon a set of non-discrimination norms in the International Convention on the Elimination of all forms of Racial Discrimination in 1965 (‘CERD’).

Australia was late to join this movement. Despite a landmark referendum in 1967 which gave the federal government power to make laws for Indigenous people and count them in the census, it wasn’t until 1975 that legislation prohibiting discrimination based on race was enacted by the federal parliament, followed by the states and territories. This article examines the limitations of Australia’s race discrimination laws and proposes measures which would enable the law to more effectively tackle race discrimination.

Laws prohibiting race discrimination have played a symbolic role by setting standards in the community.

The Racial Discrimination Act 1975 (Cth) (RDA), like its state and territory counterparts, is an ordinary Act of parliament which can be amended, revoked and suspended at will. In addition to race, the RDA prohibits discrimination based on colour, descent and national or ethnic origin. The RDA focuses on addressing the harm experienced by the individual who was subject to discrimination.

In essence, a person who has experienced race discrimination can lodge a complaint at the equal opportunity commission in their state or territory or at the Australian Human Rights Commission (AHRC). If the complaint has substance and falls within the commission’s jurisdiction, the commission will attempt to resolve the matter informally and help the parties reach a settlement. The vast majority of race discrimination complaints are settled this way, reportedly for compensation. Both the outcome and the process are confidential so that the parties can negotiate freely, but this means the community knows nothing about the nature and level of race discrimination that still exists or how it is addressed.

Very few cases proceed to court. People are reluctant to take their case to court for many reasons. The cost of litigation, particularly at the federal level, is a deterrent. Generally, litigation is a stressful process and people who have experienced race discrimination may not want to spend time in the witness stand revisiting an unpleasant period in their life. There is often little to gain from taking court action in this area. Compensation awards are low and courts are reluctant to make other orders, such as an apology or training.

Race discrimination is also notoriously difficult to prove. A person must show that they were discriminated against because of or based on their race. In effect, they have to establish a discriminatory reason for the other person’s behavior and they must do so by relying on the evidence available to them. So if a person doesn’t get a job and they believe the decision was discriminatory, although they don’t have to prove the employer’s motive, they have to prove that the reason they didn’t get the job was because of their race. This is something which is usually known only to the employer who is unlikely to have communicated this to another person, least of all the job applicant.

Similar problems arise if a person wants to prove they were discriminated against in receiving goods and services, education or accommodation – the person who experienced the discrimination must establish that the reason for the treatment was their race. As a result, there is only a small body of case law on race discrimination, particularly in the supreme courts of each state and territory or the High Court of Australia. Apart from Constitutional challenges, – such as in the cases of Koowarta and Mabo [No 1] – the High Court has never considered race discrimination legislation and it has considered special measures for Indigenous people on only one occasion in Gerhardy v Brown.

The current laws are flawed and do not offer a sufficient way of addressing discrimination or achieving racial equality.

In spite of the difficulties these laws pose for the individual complainant and the fact that they are only intended to address individual harm, laws prohibiting race discrimination have played a symbolic role by setting standards in the community, and this role should not be forgotten. Simply put, it is powerful to be able to say “there is a law against race discrimination” or “that action you propose to take is unlawful”. The law’s symbolic role has been bolstered by advocacy and educational work by the Race Discrimination Commissioner and the AHRC which has drawn attention to the ongoing discrimination and inequality experienced by Indigenous people in particular and other marginalised groups such as recent immigrants and refugees.

While race discrimination laws may have played a practical and symbolic role over the last three decades, the current laws are flawed and do not offer a sufficient way of addressing discrimination or achieving racial equality. The federal government is currently reviewing the four anti-discrimination Acts with the intention of ‘consolidating’ them into an Equality Act. The review is an opportune time to consider improvements.

The first step is to determine the goal of this legislation. Is it to address an individual instance of discrimination or do we also expect the law to eradicate discrimination more broadly? Given that the Australian legal system offers no other means of addressing racial discrimination, we can assume that the goal should be the latter but the laws are currently not designed to achieve this.

Discrimination is resolved confidentially, the cost of legal action is prohibitive and if a case is successful, the court’s order will usually only affect the individual complainant. This does not protect other similarly situated people from discrimination or prevent the same conduct from occurring again. These problems could be addressed by giving complainants access to free legal advice from Legal Aid or a similar body, requiring the equal opportunity commissions to publish de-identified information about complaints and settlements, introducing systemic remedies which target discrimination more broadly, and including a shifting burden of proof so that once a complainant has raised a case, the burden shifts to the respondent to provide a non-discriminatory reason for the behavior or treatment. The CERD Committee recommended this in its most recent review of Australia.

Investing a public body with the power and resources to tackle race discrimination would also show that the government is committed.

The obligation for addressing race discrimination rests on the individual. Unlike other government agencies like the Australian Competition and Consumer Commission and the Fair Work Ombudsman, the AHRC and its state and territory counterparts do not play a role in enforcing race discrimination laws; their role is to educate and resolve discrimination complaints informally. Comparable countries, like the United States, the United Kingdom and Ireland, gave their equivalent commissions the power to take cases in their own name or to provide financial assistance to complainants. With this power, coupled with adequate resourcing, the AHRC could test and develop the small body of case law, take cases which are in the public interest and achieve outcomes which extend beyond the individual complainant. Investing a public body with the power and resources to tackle race discrimination would also show that the government is committed to addressing discrimination and inequality.

Unlike other countries with a history of race discrimination, like the United States and South Africa, the Australian Constitution does not protect the right to racial equality; we rely entirely on race discrimination laws. Yet these laws have stagnated. As we mark the International Day for the Elimination of Racial Discrimination, we should consider ways of revitalising our race discrimination laws to meet the challenges we still face in achieving equality.

Dominique Allen is senior lecturer in the School of Law at Deakin University; she specialises in anti-discrimination, equality and human rights law.