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Thursday, 26 May 1983
Page: 1053

Mr SPENDER(3.31) —The Racial Discrimination Act 1975 was brought into existence for the purposes of giving effect to the International Convention on the Elimination of All Forms of Racial Discrimination. The validity of the Racial Discrimination Act 1975 was upheld in the High Court of Australia last year when a challenge arose concerning it. It was upheld in Koowarta's case. A consequence of that decision, of course, was that if the Racial Discrimination Act 1975 evinced an intention to cover the field then, by reason of the operation of section 109 of the Constitution, other legislation would be rendered invalid. On 19 May 1983 the High Court of Australia delivered judgment in a case which had been heard by the Chief Justice and Justices Mason, Murphy, Wilson and Brennan. That was in the case of Viskauskas and Niland. In that judgment it was held that, by reason of the operation of section 109, certain provisions of the Anti-Discrimination Act 1977 of New South Wales were invalid. The particularity of those provisions is of no importance here. What is, of course, important is that the result of the decision of the High Court, which the High Court made in the interpretation of the Constitution, was that State legislation was rendered invalid or might be rendered invalid. Therefore, the present Bill which the Opposition supports has been introduced into this House.

The purpose of the Bill has been stated in the second reading speech by the Minister for Trade (Mr Bowen). He concluded his second reading speech by saying:

In New South Wales there were a large number of complaints in various stages of investigation when the Court decision was announced. The Bill has been drafted in such a way as to allow those cases to continue under the State legislation.

As it will be possible in many cases for a person to pursue a remedy under either Commonwealth or State law, provisions have been included to prevent a person from taking action under both laws in respect of the same matter and also to prevent the difficulty presented by double penalties.

The Bill is short, as indeed was the second reading speech. It will be seen that by the operation of the Bill it is intended that State and Territory laws which are compatible with the Racial Discrimination Act should remain in force and effect. Proposed new section 6A (2) provides:


(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and

(b) a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which he would, but for this sub-section, have been entitled to make a complaint under this Act,

the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under this Act in respect of that act or omission and any proceedings pending under this Act at the commencement of this section in respect of such a compalint made before that commencement are, by force of this sub-section, terminated.

Effectively what that means very simply is this: If one makes a complaint under the law of a State or Territory one is not entitled to take proceedings under the Act itself. Of course, there will be cases where, as the Minister pointed out, it will be open for a person who claims to be affected by an act which is discriminatory of him on the grounds of race to take action under either one or other of the Acts. That will be a matter for the individual to decide, although it does promote some degree of forum shopping which is unavoidable. This was pointed out by the High Court. In contrasting the two Acts-that is, the New South Wales Act and the Commonwealth Act-it said:

The consequences provided by the respective Acts for breaches of the sections, although in some respects similar, are not the same. Under the Commonwealth Act the powers to make orders against a person who has committed an act of discrimination are vested in a court, in proceedings which can only be instituted upon a certificate . . . Under the State Act, the powers are entrusted to a tribunal. Under the Commonwealth Act the court may award damages in respect of . . . loss of dignity, humiliation and injury to feelings, and no limit is provided to the amount of damages that may be awarded. Under the State Act the damages that may be awarded are 'for any loss or damage suffered by reason of the respondent's conduct'--

That is to say, the person who is the subject of the complaint-

and there is a pecuniary limit.

On the face of things the Commonwealth Act, as contrasted to the New South Wales Government, does provide a higher and wider range of remedies to persons who claim to be injured. Despite the problem of forum shopping which will no doubt arise I agree that the amendment which is proposed is a necessary and, I hope, useful one. I hope it will have the effect that it is intended to have. I believe all of us in this House oppose racial discrimination. It will probably never be eliminated but it is up to us to do whatever we can to make sure that so far as is possible by laws passed in this House racial discrimination, if not eliminated at all levels, will be made a very costly exercise for those who offend.