Disability Royal Commission: Race Discrimination Commissioner

Introduction

Thank you for the opportunity to appear today and provide this statement.

I acknowledge the traditional custodians of the land we gather on, the Bunurong Boon Wurrung and Wurundjeri Woi Wurrung peoples of the Eastern Kulin Nation. I pay my respects to their Elders past and present and acknowledge their connection to land, waters, and community. I extend that respect to the Aboriginal and Torres Strait Islander people present.

As requested, I will focus on specific matters relating to people with disability of culturally and linguistically diverse backgrounds.

Role, function and purpose of the Race Discrimination Commissioner under the Racial Discrimination Act 1975 (Cth)

The Racial Discrimination Act 1975 (Cth), the RDA, gives effect to obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.

The legislation makes it unlawful to discriminate against a person because of race, colour, descent, national or ethnic origin, or immigrant status.

This legal protection from racial discrimination extends across many areas of public life, including employment, education, getting or using services, renting or buying a house or unit, and accessing public places. The RDA also makes racial hatred unlawful.

Section 20 of the legislation establishes the statutory role of the Race Discrimination Commissioner, and its functions within the Australian Human Rights Commission (AHRC).

These functions include the promotion of an understanding and acceptance of, and compliance with, the RDA, as well as the development and conduct of research and educational programs for the purpose of combatting racial discrimination and prejudices that lead to racial discrimination, and promoting understanding, tolerance and friendship among racial and ethnic groups.

In undertaking these functions, I work with governments, business, community partners, education providers, the media and workplaces to help individuals and organisations understand their rights and meet their legal responsibilities.

My current strategic priorities include leading a national anti-racism framework project and the ‘Racism. It Stops With Me’ national public awareness and education campaign.

The National Anti-Racism Framework including principles, strategies and methodologies.

Racism is a significant social, economic, and national security threat to Australia.

The AHRC called for a national anti-racism framework in March 2021 in response to heightened racism in Australia and across the globe in recent years, including racism arising within the context of the COVID-19 pandemic.

A Concept Paper proposed guiding principles, outcomes and strategies to start a national conversation about the vision and scope of a framework.[1]

A anti-racism framework is intended to be a collective project, steered by a human rights-based approach.

The guiding principles for a human rights-based approach are participation, accountability, non-discrimination and equality, empowerment and legality.[2]

A framework will be a long-term, central reference point to guide actions on anti-racism across all sectors and aims to develop, through national discussions about anti-racism and anti-racist strategies, a coordinated, shared vision to tackle racism, promote racial equality, ensure access to rights, and foster a cohesive sense of belonging for all Australians.

From March 2021 to April 2022, the AHRC undertook initial scoping consultations with peak and community organisations, experts, service providers, human rights agencies, and all levels of government, to guide the vision and scope of a framework.

From October 2021 to February 2022, the AHRC received submissions on a framework from individuals, organisations, peak bodies, experts, and researchers.

Across consultations and submissions, several themes were consistently identified as key priorities including:

• First Nations sovereignty and truth telling
• definitions of racism and anti-racism
• intersectionality
• the importance of prevalence, severity and impact data
• education and awareness raising
• cultural safety in workplaces and service provision
• enhanced access to rights and awareness raising around legislative protections and complaints mechanisms
• independent oversight mechanisms
• media standards and regulation
• community engagement and accountability, including via evaluation and measured indicators.

The AHRC will release the scoping findings in late 2022.

In keeping with a human rights-based approach, the AHRC intends the next stage of developing a framework to be community-centric, through nationwide consultations ensuring anti-racism efforts reflect community priorities, and draw on community strengths, knowledge, and expertise.

How and why the ‘Racism. It Stops With Me’ campaign was developed to change community attitudes towards people of culturally and linguistically diverse backgrounds and foster diversity and inclusion in Australia.

Since 2012, the RISWM campaign has helped people and organisations learn about the nature and impact of racism, providing tools to stand against it and act for positive change.

In early 2021, the AHRC initiated a refresh of the campaign, to provide supporters with the tools to engage in current conversations and challenge racism in their workplaces, communities, and schools.

This involved designing and developing a new:

• public awareness campaign and accompanying educational resources
• website
• Workplace Cultural Diversity Tool

Launched in July 2022, the new iteration of the campaign urges Australians to reflect on racism and act against it. It aims to support Australians, particularly those without lived experience of racism, to understand how racism shapes society, and the need for action to address it.

The new website provides resources to support education about and action against racism, featuring in-depth information about racism in a range of settings referenced in the advertising campaign, including institutional and systemic racism.

The Workplace Cultural Diversity Tool is a free, confidential self-assessment tool for organisations seeking to strengthen their structural approach to cultural diversity and anti-racism in the workplace.

Community and stakeholder views were an important part of the refresh and consultation strategy implemented by the AHRC.

Two Expert Advisory Groups advised on the development of the public awareness campaign and the Workplace Cultural Diversity Tool made up of experienced academics, practitioners, and advocates from a range of industries and cultural backgrounds, each with expertise in anti-racism or the promotion of cultural diversity and inclusion.

Ensuring cultural safety, respect and inclusion for people with disability of culturally and linguistically diverse backgrounds when engaging with support services in Australia

Across the framework project and the campaign refresh, a common theme was how there is a lack of broad public awareness of how experiences of living with disability can intersect with and compound experiences of racism.

In consultations the AHRC also heard about the need for stronger representation of people from culturally and linguistically diverse communities with disabilities in public anti-racism campaigns.

The AHRC heard from people with disability of culturally and linguistically diverse backgrounds about the challenges they face in accessing and engaging with support services in Australia.

From the outset, inequalities compromise access to support services, operating at a structural level where interlocking, historically entrenched systems of power work to limit access to, and create culturally unsafe, service delivery.

Intersectionality does not merely involve the confluence of race and disability, but also other social categories such as sexuality, religion, and migrant, refugee and asylum-seeker backgrounds. These categories, when combined, create novel challenges for equitable access.

Evidence already presented to this Royal Commission and outlined in its Issues Paper acknowledges and demonstrates this.[3]

While migrants and refugees, for example, encounter a range of difficulties in accessing support services, such as inadequate culturally specific communication resulting in a lack of awareness of available government supports,[4] economic difficulties,[5] and a lack of safe transport options,[6] these take on new forms when encountered by culturally and linguistically diverse people with disability.  

In the context of the pandemic where many services pivoted to online delivery, these barriers are amplified, dovetailing with a lack of digital equipment, internet and tech literacy.[7]

Inclusion in support services requires an intersectional approach.

Even when people with disability of culturally and linguistically diverse backgrounds can access support services, a lack of intersectional understanding pervades service delivery.

During framework consultations, those from migrant, refugee and faith-based communities described to the AHRC how the disability sector is very European, and how they experienced dissonance and discrimination because of a lack of cultural safety in service delivery.

Ensuring cultural safety, respect and inclusion for culturally and linguistically diverse people with disability is paramount. Culturally safe service provision recognises how practitioners’ cultural, professional, and institutional positionality informs interactions and service provision. When service providers are culturally safe, they create environments that are accessible, respond to the needs of communities, and draw on their strengths.[8]

Developing culturally safe services requires support for community-controlled service provision, community empowerment and trauma-informed and healing approaches to service delivery, and anti-racist competencies to underpin service delivery. A culturally safe approach also requires accountability.

Sustaining culturally safe services is an ongoing process, built upon continuous reflection and meaningful relationships. It must always be aimed at the empowerment, healing, and self-determination of communities.

Approach taken to address issues of intersectionality, in particular for people with disability of culturally and linguistically diverse backgrounds, including using Australian discrimination laws, to make complaints and seek remedies

Responding meaningfully to the experiences and priorities of those from migrant, refugee and faith-based communities requires an intersectional approach.

Foregrounding intersectional experiences of race and racism as they manifest interpersonally, institutionally and systemically is a guiding theme for my work on a national anti-racism framework and the campaign.

In its initial report about a framework, the AHRC will emphasise intersectionality as a guiding principle of an effective anti-racism approach to policy making. Consultations and submissions reflected an array of intersectional experiences across personal, social, cultural, economic, and political contexts.

The principle of intersectionality will guide the progress of the project. As a framework promotes a national, coordinated vision of anti-racism, an intersectional approach will seek to address how racism presents itself in individual and context-specific ways.

Taking an intersectional approach will be crucial to progressing anti-racism in the areas of cultural safety and improved legal protections against racism.

Similarly, intersectionality was identified as key to raising public awareness in the RISWM campaign, which sought to represent and articulate intersectional experiences for negatively racialised people.

For this reason, the campaign prioritised ambassadors and talent with diverse experiences of racism and discrimination, including ambassadors with disability from culturally and linguistically diverse communities. These ambassadors spoke to their experiences of multiple forms of discrimination and the strength drawn from their communities to overcome structural barriers.

The campaign acknowledges that active anti-racism will look and operate differently in different circumstances providing tools and resources that can be adapted by individuals and organisations in their own lives and contexts.

An understanding of intersectionality supported the campaign’s shifted focus from interpersonal racism to institutional and systemic racism, where entrenched patterns and structures of power overlap and interlock to perpetuate intersectional harms.

Those who participated in the framework project identified the inadequacy of legal remedies to meaningfully address discrimination and barriers to accessing legal protections to the AHRC. 

A need for timely and meaningful remedies was highlighted and the lack of adequate redress through current legal mechanisms for the issue of systemic racism was raised.

Project participants shared that most people who encounter racism do not report it and highlighted barriers to accessing existing legal protections. The key barriers to reporting racism can be broadly categorised into external and internal barriers.

External barriers include fear of consequences of reporting, such as:

• retaliation by the offender or exacerbating an already vulnerable situation or relationship
• lack of trust in official agencies, such as possible discrimination by the police[9] or likelihood of having their cases dismissed or ignored and
• accessibility issues.[10]

External barriers are interlinked with internal barriers, which include internalising negative experiences of reporting or racist incidents into hopelessness or normalisation of hate, and lack of awareness of one’s rights and reporting avenues.[11]

The importance of increasing the safety and accessibility of reporting mechanisms was stressed in consultations. Third-party community initiatives were highlighted as examples of safe, accessible, and independent platforms where individuals and communities feel comfortable sharing and documenting experiences, even where a resolution was not possible.

Participants emphasised the need for any reporting mechanism to be anonymous and independent from any institutions, so individuals are offered protection from potential retaliation.

Beyond reporting mechanisms, communities raised further solutions to address reporting barriers, particularly the lack of awareness of rights in those who make and respond to incident reports.

They include:

• creating awareness campaigns about relevant rights and reporting avenues
• providing response teams with training about specific communities’ needs
• improving operational responses to reports of discrimination and hate
• conducting genuine community engagement, centring community input and participation and
• ensuring the mechanism is community-led, culturally safe, and trauma-informed.[12]

Across the framework project, the AHRC heard about the need for effective legal protections and complaint handling systems that acknowledge intersectionality and address intersectional concerns embedded within formal structures.

With respect to people with disability of culturally and linguistically diverse backgrounds using Australian discrimination laws to make complaints and seek remedies the AHRC’s, Free and Equal: An Australian conversation on human rights reform agenda for federal discrimination laws provides valuable guidance.

The Free and Equal project has found that current discrimination laws are outmoded, do not provide effective remediation for discrimination, are inaccessible and need significant reform to support 21st century Australia’s needs.[13] It proposed four reform areas - building a preventative culture, modernising the regulatory framework, enhancing access to justice, and improving the practical operation of laws.[14]

The reform agenda includes the principle that federal discrimination law should be intersectional. This principle asserts protections for different attributes must be able to work together easily, recognising, for example, that having different tests for different attributes creates complexity, and having to litigate discrimination in relation to each attribute separately is burdensome and less effective. This complexity creates challenges for the community to understand their rights and responsibilities under discrimination laws.[15]

Part 3 of the Disability Discrimination Act permits public authorities, employers, educational institutions, and providers of goods, services and facilities to develop action plans concerning ways in which they will act to achieve the objects of the legislation.[16]

In its reform agenda, the AHRC notes that action plans should be a measure available across all discrimination laws as part of a suite of voluntary measures and a strategy in addressing issues of intersectionality, where inequalities may raise issues across more than one of the federal discrimination acts.[17]

When considering improving the practical operation of laws, the AHRC outlines reforms for managing intersectionality in law and practice and posits further reform options.[18] 

This work will be a touchstone in the AHRC’s approach to reshaping human rights and their promotion and protection in Australia.

It will guide my work on a framework, including as it relates to the making of complaints and available remedies.

Thank you.

[1] Australian Human Rights Commission, Concept Paper for a National Anti-Racism Framework, March 2021 <https://humanrights.gov.au/our-work/race-discrimination/projects/national-anti-racism-framework>

[2] Australian Human Rights Commission, Human Rights Based Approaches (Webpage) <https://humanrights.gov.au/our-work/rights-and-freedoms/human-rights-based-approaches#:~:text=A%20human%20rights%20based%20approach,barriers%20to%20realising%20their%20rights>.

[3] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Overview of responses to the experiences of culturally and linguistically diverse people with disability (Issues Paper, November 2021) 6-9, 10 <https://disability.royalcommission.gov.au/system/files/2022-03/Overview%20of%20responses%20to%20the%20Culturally%20and%20linguistically%20diverse%20people%20with%20disability%20Issues%20paper.pdf>.

[4] Gender Equity Victoria, Left Behind: Migrant and Refugee Women’s Experience of COVID-19 (Report, 2021) 4 <https://www.genvic.org.au/wp-content/uploads/2021/10/LeftBehindWOMHEnReport61021FINAL.pdf>.

[5] Enqi Weng, Fethi Mansouri and Matteo Vergani, ‘The impact of the COVID-19 pandemic on delivery of services to CALD communities in Australia’ (2020) 2(2)  Alfred Deakin Institute for Citizenship and Globalisation, Deakin University Melbourne 1, 2 <https://apo.org.au/sites/default/files/resource-files/2021-08/apo-nid313720.pdf>.

[6] Gender Equity Victoria, Left Behind: Migrant and Refugee Women’s Experience of COVID-19 (Report, 2021) 15 <https://www.genvic.org.au/wp-content/uploads/2021/10/LeftBehindWOMHEnReport61021FINAL.pdf>.

[7] Tania Miletic, Mental Health and Wellbeing for Victoria’s Multicultural Communities under COVID-19 (Issue Brief, The Ethnic Communities’ Council of Victoria, 2020) 2 <https://eccv.org.au/wp-content/uploads/2020/07/ECCV-Issue-Brief_Mental-Health_072020.pdf>.

[8] Leticia Funston, ‘Aboriginal and Torres Strait Islander worldviews and cultural safety transforming sexual assault service provision for children and young people’ (2013) 10(9) International journal of environmental research and public health 3818, 3830–1.

[9] Stanford Law School Policy Lab. Exploring Alternative Approaches to Hate Crimes. June 2021. p4, 11.

[10] Matteo Vergani and Carolina Navarro. Barriers to Reporting Hate Crime and Hate Incidents in Victoria: A mixed-methods study. June 2020. p12.

[11] Ibid.

[12] Ibid pp 23-27.

[13] Australian Human Rights Commission (Position Paper, December 2021) Free and Equal: a reform agenda for federal discrimination laws, 16 <https://humanrights.gov.au/our-work/rights-and-freedoms/publications/free-and-equal-reform-agenda-federal-discrimination-laws>

[14] Ibid p.12.

[15] Ibid p.25

[16] Ibid p.122

[17] Ibid p.120

[18] Ibid p.301