Discrimination and Difference: Race and Inequality in Australian Law

Abstract

The absence in Australia of any constitutionally entrenched protection against racial discrimination allows the Commonwealth Parliament to legislate contrary to internationally recognised principles of equality. The Racial Discrimination Act 1975 (Cth) (RDA), which implements into Australian law the standards of the Convention on the Elimination of all Forms of Racial Discrimination (CERD), is merely an Act of the Commonwealth Parliament which can be overridden and/or repealed by a later Act. The High Court of Australia has not embraced the international interpretation of CERD in its application of the RDA. Instead it has adopted a formalistic approach which prohibits benign and invidious discrimination alike unless the measures are seen as ‘special measures’. Further, the High Court has shown a reluctance to adopt an interpretation of the races power under the Australian Constitution which is consistent with international standards of nondiscrimination. This article argues that it is open to the High Court to ‘constitutionalise’ the principles of substantive equality through its application of the RDA and its interpretation of the races power. This would provide Indigenous Australians with protection against discriminatory Commonwealth legislation and assist them in their struggle to achieve recognition of their unique cultural differences.