Forty Years of the Racial Discrimination Act

Whitlam Gough , ‘Proclamation of the Racial Discrimination Act’, 31 October 1975.

Markus Andrew , ‘Mapping Social Cohesion: The Scanlon Foundation Surveys 2014’, 23 <http://apo.org.au/node/41955>.

Booth Alison Leigh Andrew Varganova Elena , ‘Does Racial and Ethnic Discrimination Vary across Minority Groups? Evidence from a Field Experiment’ (July 2010), CEPR Discussion Paper No DP7913 <http://ssrn.com/abstract=1640989>.

Australian Government, ‘Closing the Gap: Prime Minister's Report 2015’ <https://www.dpmc.gov.au/sites/default/files/publications/Closing_the_Gap_2015_Report.pdf>.

This is not to deny that anti-Muslim sentiment exists, as demonstrated by some extremist groups. Such groups, however, enjoy only marginal public support. For example, when anti-Muslim activists organised ‘Reclaim Australia’ rallies in April 2015, they were able to muster only small numbers in most of the capital cities.

Rice Simon , ‘Why free speech comes at a price: Reflections on race, civility and the law’ (Inaugural Research Seminar, Deakin University School of Law in association with Sladen Legal, 31 July 2014) 5.

Spigelman James , ‘The Common Law Bill of Rights’, University of Queensland, Brisbane, 10 March 2008, 25 <http://papers.ssrn.com/so13/papers.cfm?abstract_id=1806775f>.

Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 227–228 ( Mason J ), 242 ( Murphy J ), 258 ( Brennan J ), 212–214 ( Stephen J ).

Commonwealth v Tasmania (1983) 158 CLR 1.

Gibbs Harry , ‘The Constitutional Protection of Human Rights’ (1982) 9 Monash University Law Review 1.

‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’ Australian Constitution s 109.

Williams George Reynolds Daniel , ‘The Racial Discrimination Act and Inconsistency with State and Federal Laws’ (Paper presented to the ‘RDA@40’ Conference on 40 Years of the Racial Discrimination Act, Australian Human Rights Commission, Sydney, 19 February 2015).

Gaze Beth , ‘Has the Racial Discrimination Act Contributed to Eliminating Racial Discrimination? Analysing the Litigation Track Record 2000–2004’ (2005) 11(1) Australian Journal of Human Rights 6.

Ibid.

Ibid.

See Thornton Margaret , ‘The Liberal Promise: Anti-Discrimination Legislation in Australia’ (Oxford University Press, 1990).

Ibid 84.

Gaze , above n 13; Markus , above n 2.

Enderby Kep , ‘Second reading speech: Racial Discrimination Bill 1975’, 2.

Whitlam Gough , ‘Proclamation of the Racial Discrimination Act’, above n 1, 1.

Keating Paul , ‘Speech by the Prime Minister, the Hon PJ Keating MP, 20th Anniversary of the Racial Discrimination Act’, Melbourne, 9 June 1995 <http://pmtranscripts.dpmc.gov.au/browse.php?did=9625>.

Gaze Beth , ‘The Racial Discrimination Act after 40 years: Advancing equality or sliding into obsolescence?’, (Paper presented to ‘RDA@40’ Conference on 40 Years of the Racial Discrimination Act, Australian Human Rights Commission, Sydney, 20 February 2015). These reported decisions include decisions between 1975 and January 2015 in the Human Rights and Equal Opportunity Commission (‘HREOC’), the Federal Circuit Court/Federal Magistrates Court, the Federal Court of Australia, the Full Court of the Federal Court of Australia and the High Court of Australia.

Antonios Zita , The Racial Discrimination Act: A Review (AGPS, 1995) 38.

For a critique of the private nature of dispute resolution under the legislation, however, see Thornton Margaret , ‘Revisiting Race’, in Antonios , above n 23, 81–100.

These examples are drawn from the Australian Human Rights Commission's Conciliation Register, <www.humanrights.gov.au/complaints/conciliation-register>.

Bull v Kuch (1993) EOC 92–518.

Carr v Boree Aboriginal Corp [2003] FMCA 408. For further examples of successful cases argued under the RDA from 2000–2014, see Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767; Qantas Airways Ltd v Gama (2008) 167 FCR 537; Baird v Queensland (2006) 156 FCR 451; House v Queanbeyan Community Radio Station [2008] FMCA 897; Caves v Lewi Chan (No 2) [2010] FMCA 817; Trapman v Sydney Water Corporation [2011] FMCA 398. These cases are mentioned in Gaze , above n 22.

See Australian Human Rights Commission Act 1986 (Cth) s 46PO(4).

Bonfield Arthur , ‘The Role of Legislation in Eliminating Racial Discrimination’, cited in Commonwealth of Australia, Senate, ‘Second reading speech: Racial Discrimination Bill’ (Fred Chaney), 22 May 1975, 3.

Rice , above n 6, 8.

See Hobart Hebrew Congregation v Scully (unreported, HREOC, Commissioner Cavanough QC, 21 September 2000); Jones v Scully (2002) 120 FCR 243; Eatock v Bolt (2011) 197 FCR 261.

Toben v Jones (2003) 129 FCR 515, 525 [20] ( Carr J ).

HREOC, Report of National Inquiry into Racist Violence in Australia (1991), 168, <www.humanrights.gov.au/publications/racist-violence-1991>.

Ibid 301–302.

Johnston Elliott , Royal Commission into Aboriginal Deaths in Custody, National Report Volume 4 (1991), para 28.3.50, recommendation 213 http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vo14/>.

Ibid, para 28.3.34.

Australian Law Reform Commission, Multiculturalism and the Law: Report No 57 (1992) 132–33, <www.alrc.gov.au/report-57>.

Gelber Katharine McNamara Luke , ‘What are the effects of civil hate speech laws? Lessons from Australia’ (forthcoming).

Rice Simon , ‘Basic instinct, and the heroic project of anti-discrimination law’ (Roma Mitchell Oration 2013, Adelaide Festival of Ideas, 19 October 2013) 10.

For more information about the National Anti-Racism Strategy, including the ‘Racism. It Stops with Me’ campaign, see <http://itstopswithme.humanrights.gov.au>.

Section 25 of the Australian Constitution entertains the possibility that persons of particular races can be disqualified from voting at state elections. Section 51 (xxvi), the so-called race power, confers on the Commonwealth Parliament the power to make laws with respect to ‘the people of any race, for whom it is deemed necessary to make special laws’.