Marking 50 years of the Racial Discrimination Act : The fight to embed equality in Australian law

Abstract

The year 2025 marks the 50th anniversary of the Racial Discrimination Act 1975 (Cth) (RDA), Australia’s first federal anti-discrimination law. While now regarded as a foundational part of Australia’s human rights framework, the RDA was the product of a protracted and contested legislative process. Its passage required confronting legal uncertainty, and ideological division over race, rights, and the role of international law. This article revisits that journey, focusing on the Whitlam government’s efforts to implement the International Convention on the Elimination of All Forms of Racial Discrimination, and the broader vision of democratic reform it pursued. It examines how the RDA was shaped through compromise and perseverance, by reflecting on the debates that surrounded its passage. The history of the RDA shows principled legal reform is both possible and essential for a more just and inclusive society.

In 2025, Australia has marked 50 years since the passage of the Racial Discrimination Act 1975 (Cth) (RDA), a landmark statute that enshrined racial equality into Commonwealth law for the first time. While the limitations of the RDA have been rightly criticised since its passing, ¹ and the Act has been subject to significant controversy, ² the Act’s legacy lies in both its symbolic and practical impact. The RDA stands as a transformative achievement: one that gave practical effect to Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination ³ (ICERD) and has become ‘a well-established part of Australia’s national human rights architecture’. ⁴

As Williams and Reynolds note, ‘the RDA marks a key legal and political turning point’. ⁵ Its constitutional foundation was tested and upheld in landmark cases such as Koowarta v Bjelke-Petersen, ⁶ where the High Court confirmed the Commonwealth’s ability to legislate for human rights under the external affairs power, and Mabo v Queensland (No 1), ⁷ where the RDA was central in striking down racially discriminatory state legislation and paved the way for the recognition of native title. ⁸

The passing of the RDA was not inevitable. Its passage was hard won, the result of repeated legislative attempts, persistent advocacy, and a willingness to confront entrenched resistance both within Parliament and across sections of the Australian public. This anniversary invites reflection not only on the RDA’s historical significance but also on the broader question of what it takes to achieve substantive human rights reform in Australia. In the decades since its passage, the RDA has become a central part of Australia’s human rights framework.

Efforts to enact a comprehensive national Human Rights Act have continued to face similar forms of resistance to those that confronted the RDA in the 1970s. In 2024, the Parliamentary Joint Committee on Human Rights recommended the introduction of a federal Human Rights Act, ⁹ after decades of advocacy calling for greater human rights protection in Australian law. ¹⁰ The proposal has reignited long-standing debates about the role of rights protections in Australia’s legal system. The story of the RDA reminds us that rights-based legislation is always politically contested, but not impossible.

Drawing on parliamentary records and archival material, this article revisits the legislative journey of the RDA and considers how the struggles that defined its creation can inspire the possibilities of human rights reform in Australia today.

The international frame: ICERD and the external affairs power

The ICERD has been described as ‘the most comprehensive and unambiguous codification in treaty form of the idea of the equality of races.’ ¹¹ It was the first of the nine core United Nations human rights treaties and emerged in response to widespread global concern over state-sanctioned racism. ¹² ICERD declared racial equality a matter of international legal obligation, not merely domestic policy. Its adoption reflected a growing post-war consensus that racial hierarchies were incompatible with human dignity and international peace. ¹³

Paul Hasluck, then Minister for External Affairs in the Holt Liberal-Country Party coalition government, signed the ICERD on behalf of Australia on 13 October 1966, assuming that Australia would eventually ratify the treaty because it was thought that ‘it could be very difficult from the international standpoint, not to go ahead with ratification’. ¹⁴ However, Australia delayed ratifying ICERD or implementing its obligations for nearly a decade. Between 1966 and 1972, successive Coalition governments were hesitant to invoke the external affairs power in s 51(xxix) of the Constitution to legislate on human rights, ¹⁵ particularly where it might override state laws. ¹⁶ This hesitation stemmed from concerns about constitutional limits on enforcing international obligations across states, political resistance to assuming federal responsibility for state-level discrimination, potential funding implications, and a broader unwillingness to pursue the structural and cultural reforms required to realise ICERD’s principles. ¹⁷ The political sensitivity surrounding race-related issues should also not be underestimated. In the wake of the White Australia policy, discriminatory attitudes remained widespread, ¹⁸ and governments were reluctant to introduce anti-racism legislation that might provoke political backlash. ¹⁹

In contrast, Gough Whitlam’s election in 1972 signalled a shift in Australia’s orientation towards international law and human rights. ²⁰ Whitlam, an internationalist, ²¹ committed to ratifying the ICERD and introducing anti-discrimination legislation. Between 1973 and 1975, four attempts were made to introduce a Bill to Parliament for an Act to implement the ICERD in Australia. The RDA was the final product of the fourth and successful attempt to do so.

The legislative journey: Contest, compromise and delay

The Racial Discrimination Bill 1973 (1973 Bill), introduced on 21 November 1973, marked the first substantive attempt by the Commonwealth to enshrine protections against racial discrimination in federal law. Prior to formally introducing the 1973 Bill, then Attorney-General Lionel Murphy prefaced that the Whitlam Labor government intended the Bill to be ‘far reaching legislation’ that would ‘put paid to the kind of discrimination which is still able to be exercised in this community and which should not be tolerated’. ²² In his Second Reading speech, Murphy described the 1973 Bill as a national declaration of moral and legal principle, stating that it aimed to make racial discrimination unlawful and to affirm the equality and inherent dignity of all people. ²³

This first Racial Discrimination Bill was introduced alongside Australia’s first federal Human Rights Bill, reflecting the Whitlam government’s broader vision to embed international human rights principles in domestic law. Whitlam described the package of Bills as being designed to ‘extend and safeguard the rights and freedoms of every Australian in accordance with international standards’. ²⁴ Murphy likewise promoted them to the public as providing the legitimate basis of a legislative Bill of Rights for Australia, and potentially a constitutional Bill of Rights. ²⁵

The perceived controversial nature of legislating individual rights led to a mixed initial reaction. While most community concern surrounded the contents of the Human Rights Bill, the prospect of an RDA was also met with some scepticism as to the likelihood of its effectiveness, the potential for legal loopholes and whether it would be more than just a ‘token measure’ on the road to ending racism. ²⁶

Ultimately the promise of this landmark reform was thwarted not by ideological defeat but by procedural misfortune. As the 1973 parliamentary session came to an end, the 1973 Bill had not been debated and, with the prorogation of Parliament in early 1974, it lapsed. Nevertheless, the 1973 Bill laid the intellectual and legal groundwork for subsequent iterations, making clear the government’s intent to legislate for racial equality.

The Whitlam government responded to the procedural setback by reintroducing the legislation twice more, refining its provisions in light of evolving legal, political and community feedback. The second iteration of the Bill, introduced in April 1974 (April 1974 Bill), largely retained the structure of its predecessor but incorporated several improvements, including explicit protections against discrimination on the grounds of immigrant status and revisions to the powers and responsibilities of the proposed Race Relations Commissioner. ²⁷ Murphy emphasised a shift towards conciliation and education, rather than compulsory enforcement, as the preferred means of addressing racial grievances. ²⁸ He also outlined jurisdictional amendments that would allow the newly proposed Superior Court of Australia to hear matters arising under the Act. ²⁹ Despite these enhancements, the April 1974 Bill was not debated before Parliament was dissolved ahead of a double dissolution election in May 1974.

The legislation was reintroduced again as the Racial Discrimination Bill 1974 in October of the same year (October 1974 Bill), with only minor amendments focused on strengthening the Commissioner’s role in fostering education and public awareness to combat racism. ³⁰ Murphy reiterated that, while the framework remained consistent, the October 1974 Bill reinforced the civil nature of its enforcement mechanisms and further underlined the inadequacy of common law in addressing racial discrimination. ³¹ Yet once again, progress stalled. The October 1974 Bill was ultimately withdrawn from the Senate in February 1975, a casualty of the era’s legislative turbulence.

The 1975 Bill and the final legislative push

The Racial Discrimination Bill 1975 (Bill) represented the fourth and final attempt by the Commonwealth to introduce comprehensive federal legislation addressing racial discrimination. Introduced in the House of Representatives by Attorney-General Kep Enderby, the Bill was largely identical to the October 1974 version, which had been withdrawn. ³²

In presenting the legislation, Enderby stressed its urgency and the importance of meeting Australia’s international obligations under ICERD. He also emphasised that legal prohibition alone was not enough to combat racial discrimination and emphasised that the elimination of racial discrimination in Australia needed to be achieved ‘in fact as well as in theory’. ³³ He highlighted the Bill’s dual purpose: to prohibit racial discrimination through legal remedies and to educate the public to foster lasting societal change. The educative function sought to recognise that public awareness, research, and engagement were also essential to address the harmful effects of discrimination and to empower individuals to resist social pressures that perpetuate it. ³⁴

The balance of the Bill’s educative, conciliatory and legal functions was a key theme of the debate in the House of Representatives and the Senate, and heavily influenced the amendments proposed by the Opposition, many of which ultimately succeeded. The House debate also revealed the persistent tension between a desire to safeguard individual liberties while at the same time ensuring effective enforcement mechanisms.

Labor members of Parliament strongly supported the Bill, viewing it as both overdue and essential. They emphasised its potential to establish enforceable rights, promote social tolerance, and address systemic discrimination, particularly against Indigenous Australians. ³⁵ Clayton referenced comparable legislation in the United Kingdom, Canada and New Zealand to support the Bill’s approach, ³⁶ while Cohen, stressed its importance in tackling entrenched inequalities and fostering a more inclusive civic culture. ³⁷ Cohen suggested that, while it might not be possible to legislate the hatred and prejudice out of the hearts and minds of individuals

a legislative framework that makes it illegal to commit acts of racism creates a community atmosphere that will have both a short term and a long term benefit. ³⁸

The Liberal-Country Party Coalition adopted a more ambivalent stance in the House. While affirming its opposition to racism and support for a national anti-discrimination regime, they raised concerns about the Bill’s constitutional basis, its potential impact on democratic institutions, and the powers granted to the Commissioner for Community Relations. ³⁹ It was argued by the Opposition that the preventative or deterrent role of the legislation ‘should not be over emphasised’, ⁴⁰ and instead amendments made that further prioritised the educative provisions.

Some in the Opposition argued provocatively that the Bill must be ‘substantially’ amended because it denied the operation of the rule of law and conferred powers which would lead to unacceptable intrusions upon individual rights and privacy. ⁴¹ Provisions of the Bill were described as having the potential to be ‘repressive’ and ‘destroy freedom of speech’ or ‘stifle freedom of thought’. ⁴² Although the government firmly rejected this view, it shaped much of the Opposition’s criticism.

John Howard, who was a key opponent of the Bill and later faced criticism as Prime Minister for exploiting racial and cultural divisions, ⁴³ also objected to what he saw as the Bill’s punitive approach. He supported a series of amendments aimed at prioritising conciliation over litigation. ⁴⁴ The Opposition prefaced that their proposed amendments were not designed to condone racism, but instead intended to dismantle the dangers of the legislation creating a circumstance where the rights of individuals ‘are of no consequence but where the rights of the state are supreme’. ⁴⁵

Significant amendments were therefore proposed and debated at the Committee stage in the House. Some amendments, including a motion to ensure non-citizens were covered under the RDA, and a motion to include that it would be unlawful for a trade union representative to prevent another person offering employment based on race were accepted without debate. ⁴⁶ Others, such as those aimed at diluting or removing clauses concerning vicarious liability, evidentiary powers of the Commissioner, and penalties for the publication and distribution of racial material, were rejected by the government in the House but later succeeded in the Senate. ⁴⁷

When the Bill moved to the Senate in April 1975, it encountered stronger opposition. While Labor Senators continued to support the Bill, several Senators – Liberal, National Country Party and even an independent – launched emotive and, at times, overtly racist critiques. Senators Sheil, Wood and Bunton characterised the Bill as authoritarian, divisive and unnecessary. Sheil went so far as to claim that immigration itself was the source of Australia’s racial tensions, warning that the Bill would ‘create more discrimination, not less.’ ⁴⁸ Wood dismissed the Bill as an attempt to put Australians in a ‘straitjacket’ of legislation, ⁴⁹ and Senator Greenwood questioned whether racism was even a problem in Australia stating that ‘we in Australia have been singularly free of racial discrimination’. ⁵⁰ Bunton echoed this sentiment suggesting that the question the Senate must consider was:

Has racial discrimination in Australia reached a point at which legislation is necessary? I give the answer in the negative. ⁵¹

As Joseph points out, some Liberal Senators even debated whether racism, if it existed in Australia at all, was bad. ⁵²

However, these views were not shared across the entire Liberal-Country Party Coalition, with several Liberal Senators rejecting such arguments. ⁵³ Similar to the approach of Liberal-Country Party Members in the House, the more moderate Opposition Senators expressed support for the Bill’s general premise but argued again for amendments that would ensure it did not encroach on traditional civil liberties, ⁵⁴ or create a ‘racial industry.’ ⁵⁵ Greenwood, among others, expressed doubt that legislation could change human conduct and voiced concern about whether the legislation might instead be used as a source of provocation. ⁵⁶ Chaney echoed similar concerns, but also noted that the Bill should ultimately be supported (with amendment) because, even if community attitudes could not be changed immediately, the legislation could still ‘prevent overt acts of discrimination which are harmful to individuals’. ⁵⁷ Indigenous Liberal Senator, Neville Bonner, admitted having mixed feelings about the Bill but made clear that racial prejudice and discrimination were very much present in Australian society. ⁵⁸

In progressing the Bill to the Committee stage, the Opposition presented a clearly united front that it would not pass unless the substantial amendments they sought were successful. Cormack had set the tone to this effect, stating during debate that he would

argue to the limit of my capacity … that some of the more wrongly drafted elements should be thoroughly amended. ⁵⁹

As a starting point, concerns were raised about clause 7, which gave the Bill the effect of ratifying the ICERD. Flagging again the issue of the external affairs power, Greenwood argued that he did not believe the Constitution could have the effect of ratifying the Convention and instead the power to make laws about racial discrimination ‘seems to rest with the States’. ⁶⁰ However fellow Liberal Senator for Victoria, Missen, disagreed, suggesting that the ICERD ratification would stand up under the external affairs power. ⁶¹ Ultimately the clause was agreed to without amendment.

Clause 29 of the Bill made it a criminal offence to incite acts of racial discrimination, punishable by a fine. A new clause 16A was proposed that would make discrimination unlawful but attract only a civil rather than criminal penalty. ⁶² The government opposed the change suggesting that it did not consider it ‘illogical or inconsistent’ to propose that it is ‘more evil to incite to racial discrimination than to practise acts of racial discrimination’. ⁶³ However, the Opposition was successful with clause 16A agreed to and clause 29 removed.

The Opposition opposed clause 17, which dealt with vicarious liability, arguing it reversed the onus of proof and undermined established legal principles. Intended to cover cases like an employee refusing service due to an employer’s discriminatory policy, the government saw it as essential to the Bill’s effectiveness. However, it was removed following a vote.

The powers granted to the Commissioner for Community Relations, held at the time by Al Grassby, were the subject of significant debate. ⁶⁴ In particular, the Commissioner’s evidentiary powers, which allowed a court at the Commissioner’s request to call a person to give evidence in relation to a matter under investigation, were challenged. The Opposition sought successfully to remove this provision, arguing that it was an ‘objectionable intrusion upon individual rights’, ⁶⁵ and an attempt to give an administrative body semi-judicial authority. ⁶⁶ The government noted it believed elimination of this clause would have the effect of ‘emasculating the Bill’ and that compulsory evidence gathering powers were a necessary safeguard to ensure the success of the legislation. ⁶⁷

The power of the Commissioner to initiate legal proceedings in a court under clause 20(b) was also removed. As raised in debate, the Opposition argued that the powers of the Commissioner were too great and in their view the Commissioner’s prime function should be conciliation and should not include the option to institute a court proceeding should conciliation fail. ⁶⁸ The government’s view was that similar powers existed in comparable legislation of other countries and it was not as sinister as the Opposition made out. ⁶⁹ The Opposition was successful and the paragraph was removed.

Also of note was the removal of clause 28, which imposed a criminal penalty for the publication, distribution or public expression of words intended to promote racial hostility. The Opposition viewed this clause as significantly impacting freedom of expression. Greenwood suggested that such a prohibition was more suited to a totalitarian state and that the clause should be struck out because it was

an infringement of freedom of expression which ought not to be seen in a Bill of this character which is directed towards improving human relations. ⁷⁰

Although the government viewed the proposed amendments to the Bill with ‘a total lack of enthusiasm,’ Enderby acknowledged their necessity in securing the Bill’s passage and stressed that the RDA’s core objectives remained intact. ⁷¹ The RDA, as passed, retained the principles of legal protection, conciliation and education, albeit in a more restrained form than originally envisioned.

The significance of the RDA and the legacy of Whitlam’s vision

Despite its compromises, the passage of the RDA in June 1975 was a landmark achievement. Its importance lay not only in its legal provisions but in what it represented. As Senator John Button noted, its strength was not in its ability to instantly transform attitudes, but in its potential to nudge Australia towards a more tolerant and equal society. ⁷² The Act was neither the sweeping reform some had hoped for, nor the overreach others had feared. It was a pragmatic yet significant foundation for a federal human rights framework in a multicultural democracy. Even Gough Whitlam acknowledged the difficulty of the task stating:

It is of course extraordinarily difficult to define racial discrimination and outlaw it by legislative means. Social attitudes and mental habits do not readily lend themselves to codification and statutory prohibitions. ⁷³

The RDA has enabled individuals and communities to challenge racism, has shaped public understanding of rights, and has embedded anti-discrimination principles into Australian federal law. At the same time, its limitations caused by the amendment process reveal the vulnerability of statutory rights in the absence of constitutional protection. The RDA was a bold beginning, but more is needed to ensure enduring safeguards.

Still, the story of the RDA is a source of both inspiration and instruction. It shows that meaningful legal change requires courage, persistence and a willingness to confront opposition, but also takes compromise. It is interesting to note that although the first version of the Racial Discrimination Bill was introduced in 1973, together with Australia’s first federal Human Rights Bill, only the Racial Discrimination Act was passed. More than 50 years later, Australia still has no Human Rights Act at the federal level. As momentum builds for national reform, the RDA stands as a powerful reminder that progress is possible, and that law can play a vital role in human rights protection. The legacy of the RDA challenges us to imagine what bold, rights-based leadership could achieve today.