46 Years On, Is the Racial Discrimination Act Working?

 

I would like to acknowledge the Ngunnawal and Ngambri peoples whose land I write on, and pay my respects to all Aboriginal or Torres Strait Islander readers of this piece. My following perspectives are a product of the lessons taught to me by First Nations educators—the sovereigns of this land. 

 

I am a non-Indigenous Australian of mixed Melanesian and Jewish heritage. I am in the final year of studying a Bachelor of Politics, Philosophy and Economics with a minor in Indigenous studies at the Australian National University. These fields of study have encouraged me to scrutinise local and global inequalities. Alongside this, they have also endowed me a healthy dose of skepticism regarding Australia’s mainstream histories, heroes, and commemorations. 

 

On October 30, 1975, Australia’s Racial Discrimination Act (RDA) was born. To put this into context, 1975 marked the year that the Vietnam War came to a close, Steven Spielberg’s cinematic icon Jaws was released, and Australians were experiencing only their second year of freedom from the White Australia Policy. Put differently, if the RDA was a person, they could be fairly deemed middle-aged, and we might expect that something of a ‘midlife crisis’ awaits them in the near future. Who could blame them? A lot can change over the course of a half-century. Yet, the RDA has undergone just one amendment since 1975, begging the question: is it time for a review? 

 

Let’s rewind a little bit. What actually is the Racial Discrimination Act, and what does it do? First proposed by the Whitlam Government in 1973, the RDA was presented as a beacon of hope for the racially fragmented Australia that emerged from the wreckage of the White Australia Policy era. It was to be an answer for generations of lawful discrimination against Aboriginal and Torres Strait Islander Australians; dispossession, displacement, cultural dislocation and denial of Commonwealth citizenship, among others. Initially, the RDA failed to pass the Senate, rejected by the Coalition as “a serious threat to an individual’s privacy and freedom”. Nonetheless, the Whitlam Government did eventually triumph. The RDA was passed in 1974, narrowly coming into effect the following year just days before the Whitlam Government’s dismissal. 

 

The RDA is a triumph of the Indigenous civil rights movement of the 1960s-early 1970s, the climax of which is largely pinned to the Aboriginal Tent Embassy protests of 1972. The Embassy—started by four Aboriginal activists Billy Craigie, Tony Coorey, Michael Anderson and Bert Williams—was crucial in implanting Indigenous policy issues into the Whitlam Government’s agenda. 

 

Although the RDA was a landmark piece of federal legislation, it came a near decade after the first State anti-discrimination law, South Australia’s Prohibition of Discrimination Act (SA). Ever our progressive state down South, South Australians were forbidden from discriminating on the basis of “race or colour” in food, drink and accommodation services, employment termination and property and land sales. Yet the burden of proof required the same standard for that of criminal convictions—beyond a reasonable doubt. Complainants’ cases had to be strong enough so as to remove any reasonable doubt from their jury’s minds. So imagine you’re trying to prove you were sacked because of your skin colour. All your boss needs to do is invent another (legal) reason for termination. You get gaslit, the jury has reason to doubt you, and you’re left both disillusioned and unemployed. Sounds archaic, right? Not quite. 

 

Today, the RDA allows Australians to report instances of racial harassment and abuse occurring anywhere from public transport to social media to the Australian Human Rights Commission (AHRC). We’ve come to view racial discrimination laws as part and parcel of our multicultural liberal democracy, particularly considering that an estimated one in five Australians experience racism each year. However, burden of proof challenges persist. Less than 5% of complaints lodged under the RDA make it to court, where a majority are dismissed. In 2019-20, Aboriginal and Torres Strait Islander peoples, who make up 3.3% of Australia’s population, filed 17% of racial discrimination complaints. All of these were either abandoned, dismissed, or conciliated by the AHRC. 

 

Meanwhile, racial discrimination is on the rise. A Monash University study found that the percentage of Indigenous Australians having reported experiencing at least one instance of major discrimination ballooned from 28.6% to 52.1% between 2019-2021. Safe to say, the RDA’s not actually working for everyone. 

 

Fiona Allison, research fellow at the Jumbunna Institute for Indigenous Education and Research, has pointed out that it might not be the RDA that’s the problem, but rather it’s implementation. There is a lacuna of affordable legal assistance available to Indigenous Australians hoping to pursue racial discrimination complaints. Even specified Aboriginal and Torres Strait Islander Legal Services (ATSILs) are in large part oriented towards matters of criminal law. As a result, many Indigenous survivors of racial discrimination are left without an understanding of their legal rights, let alone the support to pursue any greivances. Compounding these challenges are biases inherent in Australia’s legal system, a product of systemic exclusion of Indigenous voices from legislative decision-making.  

 

Even if we are to embrace the RDA, there’s no denying that the Australian Constitution does not prevent Australia’s Parliament from enacting discriminatory laws against Aboriginal and Torres Strait Islander peoples. Australia’s Government even maintains the power to suspend the RDA. Since 1975, this has occurred twice, in both instances denying legal protection to the same one group—First Nations Australians. The first took place in 1998 with respect to native title. The next suspension occurred in 2007 to enable the draconian measures of the Northern Territory Intervention. Through suspending Part II of the RDA, the Government was able to target the Indigenous communities in the Northern Territory with paternalistic policies such as bans on alcohol exchange and consumption; pornography bans; and the instigation of income management, amongst others. So is the RDA healing our nation’s racial inequality? Or is it a legislative bandaid taped over intergenerational wounds? 

 

Is it Time to Amend? 

 

The legislative contradictions mentioned above do little to instill faith in the RDA. On the contrary, they expose amending the Act as a matter of urgency. The RDA was first updated in 1995 following three major national inquiries; the Royal Commission into Aboriginal Deaths in Custody, the National Inquiry into Racist Violence and the Australian Law Reform. Each of these played a unique part in publicly unveiling the widespread nature of racial vilification in Australia, which was outlawed by the 1995 amendment. The amendment did, however, leave exemption space from this prohibition for statements made in ‘reasonably and good faith’ in artistic, scientific and academic environments. Later, in 2016, the RDA was a source of renewed attention as Australia’s Liberal-National Coalition made moves to remove its inclusion of the words “insult” and “offend”.  Arguments in favour of this were that they stifled free speech, a concept that Prime Minister at the time Malcolm Turnbull regarded as “at the very core of our party”. Attorney General George Brandis even vocalised his support by arguing that “people do have a right to be bigots”. This idea was condemned by race discrimination commissioner Tim Soutphommasane. Eventually, the Racial Discrimination Amendment Bill 2016 lapsed with the change in Government in 2019. 

 

46 years on, it’s clear that the RDA is not a panacea for racial discrimination. That said, we must celebrate the First Nations Australians who fought to bring it into existence. I’d argue we can honour their efforts best by reflecting deeply about how the RDA could be better. In 2015, discrimination law expert Beth Gaze reported for the Australian Human Rights Commission that reform to the RDA was long overdue. Let’s heed her call so that in 2025, half a century from the RDA’s proclamation, we can celebrate an Act that is informed by First Nations insights, reflects our evolving national identity, and that we can be proud of.