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Wednesday, 21 November 1973
Page: 1975


Senator MURPHY (New South WalesAttorneyGeneral and Minister for Customs and Excise) -I move:

That the Bill be now read a second time.

This Bill proposes that racial discrimination should be made unlawful in Australia. It proclaims the equality and essential dignity of all human beings which is the foundation of all instruments relating to human rights. The Bill is the first of a number of measures the Government proposes to introduce to guarantee those rights in Australia. The Charter of the United Nations is based upon these classic principles and it has been one of the great achievements of the United Nations that these concepts have been developed in a series of comprehensive international instruments.

The first and perhaps the greatest of these international instruments was the Universal Declaration of Human Rights and it is in a spirit of commemoration of the 25th anniversary of this Declaration, which will occur on 10 December 1973, that this legislation is being brought forward. The Universal Declaration proclaims in its first Article that all human beings are born free and equal in dignity and rights and Article 2 provides that everyone is entitled to all the rights and freedoms set out in the Declaration, without distinction of any kind, including discrimination on grounds of race, colour or national origin.

The International Convention on the Elimination of All Forms of Racial Discrimination was adopted by the United Nations in 1965. This Convention recognises that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous and without any justification. Seventy-five countries have become parties to the Convention and this Bill will give approval to the ratification by Australia of the Convention.

The United Nations has placed high priority on the advancement of measures for the elimination of racial discrimination in its human rights program. A good deal of attention was given to various aspects of discrimination at the 1968 Teheran Conference on Human Rights held during the International Year for Human Rights. The Proclamation of Teheran observed that the implementation of the principle of nondiscrimination, embodied in the United Nations Charter, the Universal Declaration and other international instruments, constituted a most urgent task of mankind. Subsequently, the General Assembly of the United Nations approved a program for the observance of 1 97 1 as the International Year for Action to Combat Racism and Racial Discrimination. The vigorous action initiated by the United Nations in 1971 was followed up in November 1972 by a resolution of the General Assembly in which it was decided to launch a Decade for Action to Combat Racism and Racial Discrimination and to inaugurate these activities on 10 December 1973.

Initiative was taken in 1971 by the United Nations Association of Australia which set up a Committee to Combat Racism and Racial Discrimination. This Committee and its constituent member organisations conducted an extensive program, including the holding of seminars, the issue of pamphlets and other publications and the sponsorship with the United Nations Association of a 3 volume collection of studies, under the editorship of Mr F. S. Stevens entitled Racism- The Australian Experience'. The Committee also made representations to the Australian and State governments for the establishment of Race Relations Boards to administer legislation which would prohibit discrimination on grounds of race in respect of the provision or sale of goods, facilities or services, employment and conditions of employment, membership of trade unions and similar organisations, the purchase, sale or rental of housing accommodation, and the availability of business premises. The enactment of the Bill which is now presented to Parliament will fulfil these ideals.

The volumes edited by Mr F. S. Stevens constitute a valuable contribution to the study of racial discrimination in Australia. In his introduction to the second volume, Mr Stevens asserts that from the broadest construction of the term 'racist', down to the inter-personal relationships between Aboriginals and Europeans in Australian society, it is difficult to deny that prejudice exists and that this prejudice, over the years, has been erected into a functional system. He observes that the external manifestations of prejudice might be witnessed daily through the country. He also observes that the relative situation and standing of the indigenous community also demonstrates that Australians of European origin are prepared to employ a different standard of social, political, economic and legal behaviour which applies to individuals of different genetic origin from that which they would apply to people 'of their own kind'.

The volumes on Australian racism disclose various aspects of discrimination in Australia. Discrimination has had its effects on migrant groups in our community and there has been evidence of support in Australia for white racist regimes of South Africa. Perhaps the most blatant example of racial discrimination in Australia is that which affects Aboriginals. Discrimation has existed in respect of Aboriginals over a wide field. There are still remnants of legislative provisions of the paternalistic type based implicitly on the alleged superiority of the white race in which it is assumed that Aboriginals are unable to manage their own personal affairs and property. Discrimination affects Aborigines so far as it concerns the administration of the criminal law and the enjoyment of civil, political, social and economic rights.

The fact that proportionately more Aborigines than whites are sentenced to imprisonment or denied bail in Australia has been amply demonstrated in the writings of Dr Elizabeth Eggleston. Aborigines are the poorest of the poor in our community. It is clear that past wrongs must be put right so far as the Aboriginal population is concerned and that special measures must be provided.

The view is sometimes put that equality is an overriding value and all discrimination, whether for or against a group is necessarily bad. In evidence before the Senate Standing Committee on Constitutional and Legal Affairs in August 1972, Professor Wootten, now Mr Justice Wootten, provided a forceful answer to this concept. He said:

This argument seeks to perpetuate the effects of past handicaps to the advantage of those who did not suffer them. For the past 180 years Aboriginals have suffered enormous handicaps in Australian society by comparison with whites, commencing with violent dispossession from their land and destruction of their social fabric, and continuing through various forms of legal, social and economic discrimination. It would be the height of hypocrisy for white Australians now to say to Aborigines that from here on the race must be on equal terms, without taking into account the 180 years start which white Australians have given themselves. This is particularly unfair when one considers how much power, prestige, affluence and education in the white community has been built on the exploitation of land from which whites ousted blacks'.

The International Convention on the Elimination of All Forms of Racial Discrimination does, in fact, recognise the need to take special and concrete measures to ensure the adequate development of certain racial groups for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms, and the Bill gives recognition to this need.

The basic scheme of the Bill is to condemn racial discrimination as being unlawful and to provide machinery for investigation and conciliation as well as legal sanctions. The proscribing of acts of racial discrimination will have an important persuasive and educative effect. The fact that racial discrimination is unlawful will make it easier for people to resist social pressures that result in discrimination.

The concept of conciliation in the settlement of differences between racial groups is one that has wide acceptance. It has gained acceptance in the race relations legislation of the United Kingdom and New Zealand and it is also widely recognised in North America. An agreement between the parties to a dispute can often have advantages not available in a judicial decree in that it can deal more comprehensively with future relationships. Moreover, positive and lasting solutions to the problems created by racial tensions are often best achieved by the conciliation process.

I now turn to a brief description of the broad framework of the Bill. The Bill is divided into 7 parts, the first dealing with preliminary matters, the second with the prohibition of racial discrimination, the third with investigations and civil proceedings, the fourth with offences, the fifth with the Race Relations Council, the sixth dealing with administrative provisions and the seventh with miscellaneous matters.

Part I provides, in relation to the application of the legislation, that the Act is to bind Australia and each State and is to extend to every external Territory, except Papua New Guinea. Again the view has been taken that, in view of the steps being taken by Papua New Guinea towards independence, it will probably be a matter for that country to make a decision on accession to the Convention.

Part II of the Bill deals with the prohibition of racial discrimination. Clause 8 makes it unlawful for a person to do any act involving a distinction, exclusion, restriction or perference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or other field of public life. This provision follows closely the definition 'racial discrimination' in the Convention. The purpose of clause 9 is to guarantee equality before the law without discrimination as to race in the enjoyment of rights and this clause will supersede laws of Australia or of the States that discriminate on grounds of race in relation to the enjoyment of rights.

Clauses 10 to 15 deal in greater detail with discrimination in the enjoyment of rights. Clause 10 deals with discrimination so far as it concerns access to places and facilities, clause 1 1 with discrimination in the provision of land, housing and other accommodation and clause 12 with discrimination in the provision of goods and services. The purpose of clause 13 is to make invalid the provisions of the rules of a trade union that prevent a person from joining the union by reason of his race, and the clause also makes it unlawful to prevent a person from joining a trade union because of his race. Clause 14 deals with the important aspect of discrimination in employment and clause 15 deals with the display of advertisements that indicate an intention to do an act that is unlawful by reason of the legislation.

A sub-clause is contained in clause 9 the purpose of which is to supersede the provisions of Queensland laws that authorise the management of the property, including personal earnings, of an Aboriginal or Torres Strait Islander without his consent and which prevent an Aboriginal or Torres Strait Islander from terminating the management of his property. This provision gives effect to an undertaking that has been made by the Government that these provisions will be superseded by legislation of the Australian Parliament.

I should point out that there are a number of other features of the Queensland legislation relating to Aboriginals and Torres Strait Islanders that are not in terms discriminatory on grounds of race or that form part of legislation intended to be beneficial but which are nevertheless unsatisfactory from a civil liberties viewpoint. I have arranged for discussions to be held with the relevant authorities so that the nature of appropriate alternative provisions can be determined.

As I have already indicated, the Bill provides that the Act does not apply to special measures, including laws, that confer rights and benefits on Aboriginals and Torres Strait Islanders. This is achieved in clause 7. Clause 7 also exempts from the operation of the Act charitable instruments conferring benefits on the persons of a particular race. There are also exemptions in clause 8 in respect of employment on work involving national security and employment on a foreign ship or aircraft where this is arranged outside Australia.

Clause 16 makes provision for the vicarious liability of principals and employers and clause 17 ensures that the Bill will apply in situations where an act is done by reason of race, notwithstanding that this was not the dominant reason.

Part III provides that there shall be an Australian Race Relations Commissioner. It will be the function of the Commissioner to investigate an alleged infringement of the Act, either on his own initiative or where a complaint is made to him. The Commissioner will have a discretion not to investigate in certain circumstances such as where in his opinion a complaint is frivolous or not made in good faith.

The Commissioner is to use his best endeavours to seek an assurance against a repetition of an unlawful act and to secure a settlement. Where he is unable to secure a settlement, the Commissioner may commence civil proceedings in the Australian Industrial Court. Where a court is satisfied that an infringement of the Act has occurred, it is to make a declaration to that effect and it may grant a number of remedies including an injunction, an order cancelling a contract and damages in respect of the loss suffered by an aggrieved person and the loss of dignity, humiliation and injury to the feelings of an aggrieved person. Any damages so recovered are to be paid by the Commissioner to the aggrieved person.

An aggrieved person may also commence proceedings for a remedy under the Act independently of the Commissioner, but the Commissioner will have power to apply to the court for a stay of proceedings if he considers that such proceedings would adversely effect the performance of his functions. The Act also makes provision for the establishment of Conciliation Committees which will have power to achieve a settlement between the parties to a dispute.

Part IV of the Bill creates a number of offences. It will be an offence to refuse a person access to places and facilities on grounds of race. There are also offences relating to incitement of racial disharmony, the dissemination of ideas based on racial superiority or hatred with intent to promote hostility or ill will and the incitement of acts of racial discrimination. In addition, an act of violence to a person of a different race will be an offence under the Act.

A Race Relations Council is established in Part V of the Bill. It will be the function of the Council to make recommendations to the AttorneyGeneral and the Commissioner on matters relating to the observance and implementation of the Convention.

Part VI of the Bill deals with the administrative provisions and provides for the appointment of an Australian Race Relations Commissioner and his staff. The Commissioner is to be a corporation sole. As it will be a function of the Commissioner to take action against infringements of the Act by Australian or State officials, the Bill provides for the appointment of staff that will be independent of the Australian Public Service. Part VI also provides that the Race Relations Council is to consist of such members, not being less than ten or more than twenty, as the AttorneyGeneral appoints.

Part VII deals with miscellaneous matters. Clause 57 deals with the burden of proof in civil proceedings under the Act. It provides that, if in civil proceedings under the Act it is established that an act was done by the defendant, the burden lies on the defendant of proving that the act was not done for discriminatory reasons. This provision is included as it applies in circumstances where the reason for the doing of a discriminatory act alleged to have been done on grounds of race lies peculiarly within the knowledge of the defendant. Part VII also provides that proceedings are to be taken in the Superior Court of Australia when that Court is established.

This Bill is a first, but essential, step in providing measures for the elimination of racial discrimination in Australia and for the guarantee of rights without discrimination on grounds of race. To be effective, however, anti-discrimination laws cannot operate in a vacuum. They must be accompanied by positive governmental programs designed to bridge the gaps that result in racial tensions. They must also be accompanied by the support of the community. I hope that this Bill will not only provide the machinery to deal with acts of discrimination but also will promote public awareness of this problem which will be so important in achieving the objectives of this legislation. Honourable senators may notice that there are a number of provisions in this Bill which are identical with those in the Human Rights Bill 1973 which has been introduced. Depending on the fate of these measures it may be convenient if at some stage the administrative machinery of the two were merged.

In conclusion I would emphasise that the purpose of the Bill is to carry out the International Convention on the Elimination of All Forms of Racial Discrimination. A great deal of work has been done in the preparation-of the Bill but it has not been possible to discuss it with all interested groups. The Government will welcome any proposals and comments on the Bill, whether from inside or outside either House of Parliament and during the Committee stages. I commend the Bill to the Senate.

Debate (on motion by Senator Greenwood) adjourned.







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