40 years of the Racial Discrimination Act

In the wake of the Charlie Hebdo murders in Paris, Race Discrimination Commissioner Dr Tim Soutphommasane looks at the role of Australia’s anti-discrimination legislation – and why society still needs section 18C.

This year marks the 40th anniversary of the Racial Discrimination Act 1975 (Cth) (RDA). The RDA was the first human rights and anti-discrimination law enacted by the federal parliament, and an important redress of Australia’s treatment of Indigenous people. It was also an important development in the repudiation of White Australia and the advent of multiculturalism.

As recently described by Noel Pearson, the Act is akin to the Civil Rights Act 1964 in the United States. Its significance has been profound, but not always recognised. On the occasion of the anniversary, it is worth revisiting the Act’s history and impact.

As the first Commonwealth legislation concerning human rights and discrimination, the Act set a precedent. All states and territories now have anti-discrimination legislation. The Commonwealth parliament has also enacted legislation concerning sex discrimination, disability discrimination, and age discrimination.

The High Court case of Koowarta v Bjelke-Petersen, which concerned the Act, was also the first instance when the courts endorsed the view that domestic laws could be considered valid exercises of the external affairs power in the Constitution. The judgment in that case would provide authority for the development of the external affairs power in subsequent cases such as the celebrated Tasmanian Dams case.

The role of the Act in underpinning native title would be confirmed in the 1988 High Court judgment in Mabo v State of Queensland (No 1). There, the majority of the High Court held that Queensland legislation that sought to extinguish native title in the Murray Islands of the Torres Strait was constitutionally invalid, because it was inconsistent with the Act. The judgment meant that no state law could validly extinguish or acquire native title rights in a way that discriminated on the basis of race. In Mabo (No. 2), the High Court recognised native title at common law and rejected the doctrine of terra nullius.

More generally, over its 40-year history, the RDA has provided Australians with a legal remedy for racial discrimination. Prior to the Act, there was little in the common law that dealt directly with discrimination. In making it unlawful to discriminate on racial grounds – in the provision of goods and services, employment, access to public places, housing and accommodation, and in advertising – the RDA has ensured that people have a means of holding others to account when they have been denied equal opportunity.

In 1995, the scope of the legislation was expanded to include racial vilification. Responding to rising concern about racial violence and community harmony, parliament introduced into the Act provisions dealing with racial vilification. A new section 18C made it unlawful to do a public act that was reasonably likely to offend, insult, humiliate or intimidate someone because of their race, colour, ethnicity or national origin. This section was accompanied by the free speech exemptions (section 18D) for a number of defined acts concerning the public interest.

There has, of course, been much recent debate about these provisions. In 2014, the Abbott Government proposed a bill that would repeal section 18C of the Act and related provisions, arguing it placed excessive restrictions on freedom of expression. The effort was abandoned in the face of enormous public opposition and criticism. Multicultural and Aboriginal and Torres Strait Islander communities, legal and human rights experts, psychologists and public health professionals, and the community at large, were united in their support for current laws against racial vilification. (See for example submissions published on the Human Rights Law Centre website in response to the exposure draft on proposed changes to the Act: hrlc.org.au/ proposed-changes-to-racial-vilification-laws-key-submissions/ (viewed 14 May 2014)).

The recent murders of Charlie Hedbo journalists in Paris by Islamist terrorists has prompted some to call for the isue to be revisted (though this was quickly ruled out by both Prime Minister Tony Abbott and Deputy Prime Minister Warren Truss).

The Abbott Government made the right decision in not proceeding with a repeal of section 18C. It is true, of course, that freedom of expression is one of the cornerstones of a liberal democracy. It is a fundamental human right. Yet, like all rights and freedoms, speech is not absolute. As it has been said, one person’s freedom ends where another’s freedom begins.

This is true of speech involving racial vilification. A few years ago, the Australian Human Rights Commission conducted a consultation involving a survey of Australians’ perceptions and experiences of racism. It was commonplace for respondents to reflect on how sad and angry the experience of racism made them feel, and how racism diminished their sense of worth. As one respondent said: “[I]t makes me feel like I am a lesser human being”.

In any case, the current legislation strikes a balance between freedom of speech and freedom from racial vilification. Courts have interpreted section 18C as applying only to acts that cause “profound and serious effects” as opposed to “mere slights” (Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, 356-357 [16]).

The exemptions in section 18D of the Act protect anything that is said or done in an artistic work or in the course of fair reporting or fair comment on a matter of public interest, provided it is done reasonably and in good faith. The law’s focus on conciliation also means that only a very small percentage of complaints about racial vilification proceed to the Federal Circuit Court or the Federal Court of Australia.

The prohibition of racial vilification has had an important impact in shaping our public culture. This reflects one function of the law: it exists to reflect our values and to express our aspirations. In a multicultural society, it is only right that we have public statements of our commitment to civility and tolerance. To be sure, the law on its own can never eradicate racial discrimination. This task requires education, public programs, and leadership at all levels of society. But having the law provides assurance to everyone that they will be treated equally and fairly, regardless of their background.

Yet what is the right balance in legislating for social change and in empowering civil society? To what extent, exactly, has the RDA made an impact in eliminating racial discrimination? What are some of the emerging challenges in combating racial discrimination and promoting cultural harmony? Some of these questions will be tackled on the 40th anniversary of the RDA at a conference in Sydney (19-20 February). Speakers include Professor George Williams AO, Professor Sarah Joseph, Dr Sarah Pritchard SC, and Kate Eastman SC.