We are having the wrong debate about the Racial Discrimination Act. Rather than moving to water it down, we should be investigating how the Act might be strengthened in order to reduce the public health burden of racism.
This argument is made below by Deakin University academics, Dr Naomi Priest, a Senior Research Fellow in the Centre for Citizenship and Globalisation, and Dr Dominique Allen, a Senior Lecturer in the School of Law.
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Why changing the Racial Discrimination Act is a public health issue
Dr Naomi Priest and Dr Dominique Allen write:
Several incidents of racist abuse on public transport and towards prominent sports stars, a Federal Court finding that a high profile journalist breached racial vilification laws, and two new human rights commissioners with different views about freedom of speech have focused our attention on federal racial vilification laws.
The Commonwealth Attorney-General, George Brandis, has had them in his sight for some time and is currently considering how to amend them.
The provision at the centre of this debate is s 18C of the Racial Discrimination Act 1975 (Cth), which makes it unlawful to perform an act which is reasonably likely to “offend, insult, humiliate or intimidate” another person or a group of people because of their race, colour or national or ethnic origin. This is not absolute – s 18D provides that something said or done “reasonably and in good faith” will not be unlawful (see Chapter 10 of this book).
The debate centres around whether laws prohibiting racial vilification are a justifiable limit on free speech. In the midst of all this it is important not to lose sight of the broader context – there is community support for addressing racism and, as the response to instances of racial abuse on public transport shows, the community won’t tolerate this kind of behaviour.
The racial vilification provisions are one part of a landmark law dealing with race discrimination. The Racial Discrimination Act was enacted in 1975 (racial vilification wasn’t added until 1994 following recommendations in, among others, the Royal Commission into Aboriginal Deaths in Custody – see recommendation 213 here).
The Act prohibits race discrimination and gives people who have been discriminated against, whether in the workplace, education or in accessing goods and services, the opportunity to obtain redress by lodging a complaint with the Australian Human Rights Commission.
While the Act has been effective in eradicating blatant instances of discrimination, such as people not being hired or being denied access to services because of their race, the law could be improved.
How to do this is the conversation we should be having, particularly because of the detrimental impact racism has on health and wellbeing for individuals, communities and society as a whole.
Most Australians agree that something should be done to minimise or fight racism in Australia (see references here). There is general consensus that negative treatment of individuals or groups because of their racial, ethnic, cultural or religious background is unacceptable.
A worsening public health concern
Despite this, recent representative survey data suggests that racism is on the rise in Australia, with 19% of adults reporting experiences of racism at least once a year. Some 10% of Australians report holding particularly racist attitudes and about 25% that they are uncomfortable with cultural diversity. Racism also affects Australian children and young people, with 70% of secondary school students across four states reporting experiences of racism in 2009.
However, discourses of denial that racism exists continue across individual, institutional and political levels.
Individuals are quick to protect themselves from accusations of racism as in the oft cited caveat “I’m not racist, but…”. This is demonstrated by the recent media debate regarding whether Marcia Langton called Andrew Bolt ‘racist’ on Q&A. Within this current furore, being also called ‘a fool’ doesn’t appear nearly so important as being potentially called ‘racist’.
Similarly organisations and institutions, including government and the media, also engage in strategies of denial of racism that ultimately serve to protect existing power structures and white privilege in society.
Debate about what does and does not constitute racism continues in the popular media and at a political level, as well as in the everyday conversations and contexts of Australian adults and school students, their parents and teachers, as shown by some of our own recent research (as well as this paper under review: Priest N et al,“You’re not born racist are you” Race, Ethnicity and Education.)
Ignorance has never been an adequate or full defence for poor behaviour.
However, there does appear to be an ongoing need for greater understanding across all levels of Australian society about what racism is, the multiple ways in which it can be expressed, and its harmful effects on individuals, communities and society as a whole.
In particular, a full consideration of the harmful effects of racism seems to be largely missing from current debate about s 18C.
It is well established in international epidemiological evidence that racism is harmful to health, including both physical and mental health outcomes, as well as health behaviours and resources needed to access health (see here and here).
This is the case for adults, but also for children and adolescents; for those directly experiencing racism themselves, as well as vicarious experiences such as witnessing a family member or member of one’s racial/ethnic group experience racism.
Maternal experiences of racism during pregnancy have been linked with poor birth outcomes in their children, and carer experiences of racism have been associated with poor child health and cognitive outcomes irrespective of whether the child witnesses it or not.
Such harmful health effects of racism are not constrained to the more extreme forms of racism such as physical violence.
Verbal racial abuse and vilification are also harmful to health. This includes overt and direct incidents such as those profiled recently on public transport or in sporting venues, or more subtle comments and micro-aggressions within everyday interactions and conversations.
Much harder to capture and measure, but also harmful, are covert forms of racism such as excluding or ignoring someone because of their racial/ethnic background or paying them additional or differential attention as per recent examples of racial profiling within the criminal justice system.
Multiple responses required
Clearly racism is a complex phenomenon operating at multiple levels and expressed in a wide range of explicit and implicit forms.
As with any complex problem, a complex solution is required to tackle racism. Best practice in anti-racism requires multi-level, mutually reinforcing strategies across contexts and settings.
The law is clearly an important part of anti-racism. The Racial Discrimination Act must be improved so that it can effectively tackle persistent discrimination.
Currently the Act places a high burden on the person who experienced discrimination. They are required to name the behaviour as unlawful race discrimination, locate someone who is at fault, and make a legal claim. To pursue their claim, they must navigate the complex and highly procedural federal court system, which they will probably need a lawyer for but they will probably not be eligible for Legal Aid funding. If they lose, they may have to pay the other side’s legal costs.
It is little wonder that most discrimination claims are settled confidentially, so the prevalence of race discrimination in Australia remains hidden (see here, here). One option would be to place the obligation for addressing race discrimination on organisations as they are best placed to foresee the impact of their policies and procedures and to do something about negative impacts before discrimination occurs (see here, section 149).
The Australian Human Rights Commission’s work in this field must also be supported. Providing legal information, facilitating the resolution of race discrimination complaints and pointing the national spotlight on these issues must be done by an independent, adequately funded expert agency.
Notwithstanding the need to counter racism within human rights and legal frameworks, anti-racism is also an important public health issue that needs to be given greater attention.
This includes both ensuring those experiencing racism’s harmful effects receive the appropriate services and support they require, but also to prevent racism as a critical determinant of health from occurring in the first place.
Free speech is a fundamental democratic right that must be protected. So is the right to non-discrimination.
Despite what some politicians or sections of the popular media would have us believe, evidence suggests most Australians want them both to be protected (see here and here).
The best way to balance these two rights is the conversation we should be having.
• Dr Naomi Priest is a Senior Research Fellow in the Centre for Citizenship and Globalisation, Deakin University. Dr Dominique Allen is a Senior Lecturer in the School of Law, Deakin University.
