Chris Sidoti

National Spokesperson

Human Rights Council of Australia

NSW State Conference

Local Government

Community Services Association

14 November 2002

The significance of discrimination

Discrimination is the practical expression of prejudice. Prejudice, that is, beliefs and attitudes that rank some people as inferior to others or as inherently different from others, produces discriminatory actions. The two are intimately and inextricably connected. So a conference that examines prejudice must include discrimination.

Discrimination is defined as “any distinction, exclusion, restriction or preference based on [a proscribed ground] which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.[1] Proscribed grounds in international law include race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.[2] The list in international law is not a closed list. It is stated as “including” those grounds specifically enumerated, not as being restricted to them. Disability, sexual orientation and age are generally accepted as other grounds of prohibited discrimination.[3] In Australia federal and state laws proscribe a long list of grounds of prohibited discrimination: sex, marital status and pregnancy;[4] race, colour, descent and national or ethnic origin;[5] disability;[6] religion, political opinion, national extradition, social origin, age, medical record, criminal record, sexual preference, trade union activity and nationality.[7]

Not all distinctions are unacceptable. The bases of distinction singled out for proscription are those that go to the essential attributes of a person, that collectively constitute a person’s identity. Many of the attributes are unchangeable (or virtually unchangeable) features of the person: ethnicity, skin colour, gender, national and social origin, sexual orientation, disability. Other attributes, though changeable, are so fundamental to a person’s identity that to change them would do great damage to that identity. They concern what the person believes and thinks, his or her views in relation to religion and political ideology. They protect what is in each person’s head and heart, perhaps the last holdouts of inviolable personal privacy.

This connection between personal identity and the proscribed grounds of discrimination is what makes discrimination so utterly unacceptable. It is not merely that a person is treated differently. It is that the basis for the detrimental treatment is the very nature of that person as a human being – who he or she is. It is not a matter of mere personal dislike. It is that the person suffering the discrimination is considered fundamentally different from, fundamentally inferior to the person imposing the discrimination. Discrimination involves one person’s rejection of another person as a full human being who is equal in dignity and rights to all other human beings. That is what makes discrimination a great evil.

Discrimination and refugees

Asylum seekers and refugees in Australia experience discrimination in law and practice. They can experience discrimination on several of the proscribed grounds, most significantly race or ethnic origin, religion and status. The meanings of race, ethnic origin and religion are clear enough. Status is a more general term. There is no detailed international definition of its meaning. Rather, international authorities have considered the issue on a case by case basis and have identified certain situations as falling within the scope of “other status”.[8] “Other status” would include both the status of refugee under the Refugee Convention and a particular immigration status (or lack of immigration status).

The nature of the discrimination experienced by refugees in Australia mirrors that of others who experience discrimination. It can occur in any area of public life, including employment, access to accommodation and access to other goods, services and facilities. It can involve harassment, vilification and at times actual violence. The most recent refugee arrivals in Australia have been predominantly from Afghanistan and Iraq and they have been predominantly Muslim. They have experienced discrimination on these bases along with other Muslim and Middle Eastern residents of Australia. The NSW Police Commissioner recently reported a great increase of attacks on Muslim or Middle Eastern residents of the state since the Bali bombing on 12 October. The attacks have included harassment, vilification and assaults in public places, particularly on women wearing a veil. They have also included stones thrown through the windows of the homes and shops of Muslims.

Refugees have been especially at risk of these kinds of attacks not only because of an unfair reaction to the bombing but also because of the persistent demonisation of refugees by senior government leaders over many years. Boat people have been accused of queue jumping, being criminals, presenting health risks, attempting to deceive and mislead immigration officials. After terrorist attacks in the United States on 11 September 2001, the then Defence Minister even suggested that they could be terrorists threatening Australia’s national security. This claim was well publicised at the time. Less well publicised was an appearance before a Senate committee by the Director General of the Australia Security and Intelligence Organisation, Dennis Richardson, in June this year. The Director General was asked how many security checks of boat people ASIO had conducted and what the results of those checks were. He replied that from 1 July 2000 until the date he appeared in June 2002 ASIO had checked 5986 boat people of whom not a single one presented a security risk.

The government attitude towards these asylum seekers is reflected in laws that are themselves discriminatory. The laws may be indirectly discriminatory on the basis of ethnicity and religion but they are certainly directly discriminatory on the ground of status, that is, status as a refugee who came to Australia without prior documentation to seek protection. Those who come here on valid visas, even if only a 24 hour transit visa, and then seek protection are permitted to remain free until their status is determined. Those who come across the seas without prior approval by Australian immigration authorities must be detained indefinitely, without prospect of court review or release, until their status is determined and they are either accepted or deported. Since changes to the law in 1999 and 2001, boat people accepted as genuine refugees are entitled to no more than a succession of temporary residence permits, not to permanent settlement. Refugees who come here through official programs for re-settlement, by contrast, having being carefully selected by immigration officials, come as permanent residents and potential citizens. So boat people suffer discrimination on the basis of their status, contrary to human rights commitments. They are also penalised on the basis of the manner of their entry into Australia’s jurisdiction, contrary to the requirements of the Refugee Convention. As temporary protection visa holders they are denied access to many settlement services and supports and, most importantly of all, denied family reunion

What local government must do: the legal obligation

What are the responsibilities of local government in this situation? In general terms they are the same as its responsibilities in any area in which discrimination is prohibited. Its first responsibility is a legal obligation to obey the law. State and federal anti-discrimination laws apply to local government in this state. Local government councils must not discriminate on any proscribed ground under those laws in any area of public life. That is the simple answer. They must not discriminate on any of the proscribed grounds in relation to employment or access to Council services and facilities.

Councils, as part of our governmental structure, should be model employers that respect the rights of their employees regardless of an employee’s ethnic or cultural background and religious and political beliefs. In the last week or two, one council, the North Sydney City Council, passed this test with flying colours. One of its staff, a Muslim immigrant, was the subject of critical media reporting when at a public meeting he expressed unpopular views on the relationship between Muslims and the broader community in Australia. The Council was identified in the media as his employer. In the emotional atmosphere of the last month some argued that the Council should “do something” about this employee. But instead the Council stood by him, disagreeing with his views but supporting his right to free speech within the law.

Of course, what happens if a council does discriminate on a proscribed basis is another matter entirely. Anti-discrimination laws play important roles in addressing and reducing incidents of discrimination but unfortunately they are not the most effective laws we have. Few of those who experience discrimination actually take a complaint to one of the anti-discrimination bodies established by those laws. Even fewer recently arrived immigrants and refugees become complainants. Holders of temporary protection visas are among the least likely to complain. Their immigration status is provisional and can be not renewed or even revoked before it expires. They are afraid to do anything that will draw attention to themselves or their families in case it leads to loss of their visa.

Those who do complain encounter great difficulty. First, they might look long and hard for any effective remedy. The NSW Act does not cover discrimination based on religion or status and the relevant federal Act, while including these grounds of discrimination, does not provide a right to a judicial hearing with compensation, only the possibility of a report to parliament.

If they complain of discrimination on the basis of race they will struggle to establish their case. Australian courts and tribunals have had far greater difficulty in identifying situations of race discrimination than situations of sex and disability discrimination. Some years ago, a review of experience after twenty years of the Racial Discrimination Act 1975 (Cth) indicated that of those discrimination cases that went to hearing 54% of sex discrimination cases were found to be substantiated but only 29% of race discrimination cases.[9] Only 17 cases in those twenty years resulted in an award of damages. It seemed that judicial and quasi-judicial decision-makers had difficulty in recognising and accepting the significance of gestures, implications and nuances that reveal race discrimination. There seems to have been little change since then.

There has also been little change since that review in the nature of the remedies provided when discrimination has been proved. Those who succeed in their actions are likely to receive barely token damages. Under the Anti-Discrimination Act 1977 (NSW) a ceiling of $40,000 is fixed on compensation orders but awards rarely come anywhere near that limit. Under federal race, sex and disability discrimination laws there is no limit on compensation but again compensation tends to be minimal. Of the 17 cases that resulted in an award of damages in the first twenty years of the Racial Discrimination Act 1975 (Cth), the award exceeded $20,000 in only two. In ten the award was less than $2000. But only one of the 44 sex discrimination cases in which damages were awarded resulted in an award of under $2000.[10] Compensation in conciliated cases tended to be significantly more than in cases that went to full hearing but again the level of compensation was comparatively small. The Human Rights and Equal Opportunity Commission undertook a comparison of conciliated results in three recent years, 1998, 1999 and 2001. It found that the median settlement amount in conciliated complaints of race discrimination varied from $1410 to $9000, in sex discrimination complaints from $5000 to $5500 and in disability discrimination complaints from $1500 to $3000.[11]

These kinds of results from conciliation and from judicial hearings make a mockery of the legislation. Of course it is difficult to estimate what an appropriate level of compensation for an act of discrimination should be. But the same difficulty confronts courts in other types of cases every day and they generally arrive at far higher verdicts. The comparison between the levels of damages in discrimination cases and those in defamation cases presents a stunning contrast. It seems that a person’s reputation is far more highly valued than the person’s very identity as a human being. That, I remind you, is what discrimination is – an attack on the integrity of a person’s very identity.

I have been waiting for a long time to see compensation in discrimination cases reach more realistic and more appropriate levels but it seems I have been waiting in vain. When so few people who are native born in Australia and familiar with our system bother to vindicate their rights under anti-discrimination laws, we should not be surprised that very very few refugees do, even though the extent of the violation of their rights is so much greater than that of the rights of most others.

Councils therefore have little to fear from anti-discrimination laws as they are drafted and applied at present. However, that does not and should not lead them to ignore their legal obligations. It simply means that they should do so out of commitment to human rights and to human beings rather than fear of the consequences of breach.

What local government must do: the moral obligation

The moral obligation, therefore, is far more important than the legal obligation and calls for a far more generous, far more compassionate and far more responsible response. Councils have obligations to the residents of their areas, both citizens and non-citizens, whether born in Australia or born overseas. And they have responsibilities to their own communities, responsibilities of leadership. Many councils have accepted and acted upon these broader responsibilities in a number of significant ways in the interests of refugees and asylum seekers.

First, some councils have sought to shape opinions and attitudes, not simply react to them. Australians have a natural cynicism towards all levels of government but they take their governments seriously and they respond to the leadership governments offer. When governments deliver negative messages, people respond. So when senior political leaders misrepresent, vilify and demonise refugees and asylum seekers, popular attitudes reflect those views. And where positive leadership is offered, people respond positively. An excellent example of that can be seen in the support given by the Sydney City Council and the South Sydney City Council for gay and lesbian community initiatives, such as community services and social events like the Mardi Gras and the Gay Games. Local councils have contributed to greater acceptance of gays and lesbians in the broader community and greater respect for their rights.

Many councils have shown similar leadership in relation to refugees. In Young the local council has been very public in supporting refugees who have settled in town and are contributing to the local community. Some Sydney councils have placed large banners across their main roads saying that the council supports refugees and asylum seekers, a small gesture that challenges prejudice. Councils can influence attitudes and opinions – if they are prepared to show leadership.

Second, councils can provide services that address the needs of refugees in their areas. Refugees are often isolated. They are often traumatized, not only because of the treatment they received before fleeing persecution but because of the treatment they received after arriving in Australia. They may need specialist counselling. They may need places to socialise with other members of their own community and with members of the broader community. Their children may need opportunities for play, sport and recreation and places to meet and mix with other children. Sometimes they may need food and clothing. Church, charitable and other non government organisations have responded to these needs and many councils have too. In areas of western Sydney councils have offered new community services to support the large refugee populations. In eastern and northern areas of Melbourne councils have been particularly active in helping refugees on temporary protection visas, in spite of the determination of the federal government to abandon them with as few supports and services as possible.

Third, beyond providing practical services councils can also advocate on behalf of refugees. Local government is the level of government closest to refugees. It is best able to see, understand and analyse their situations. This requires a good research capacity and social policy skills among council staff or at least the willingness to buy those skills for the particular task. The Brisbane City Council has been especially active in advocating on behalf of refugees. It has published material about their situations and paced its political weight on their side. In Melbourne the Darebin City Council has supported researchers from Deakin University and the Victorian Arab Australian Association who have brought to public attention the sufferings of refugees on temporary protection visas. For refugees this kind of advocacy by councils is more than mere support. It is recognition and affirmation of their humanity by an official governmental authority in a context in which Australia’s federal government has denied it.

Conclusion

I have spoken specifically today about discrimination affecting refugees and what councils can and should do to address it. My comments, however, apply equally to what councils can and should do in relation to all forms of unjust discrimination. Councils have responsibilities and they have opportunities. There is much they can do. There are responsibilities and opportunities to offer leadership to change public attitudes and prejudices that underpin discrimination. There are responsibilities and opportunities to provide services to those who need them desperately. And there are responsibilities and opportunities to advocate with and on behalf of those who suffer injustice. You have legal obligations. But far more important than that, you have moral obligations.

Discrimination denies the humanity of the person against whom it is practised. It attacks the very identity of the person. Few tasks are of higher priority and greater urgency than eliminating discrimination. The good news for local government is that you have important parts to play in that task.

[1] See Convention on the Elimination of All Forms of Racial Discrimination article 1.1 and Convention on the Elimination of All Forms of Discrimination Against Women article 1.

[2] International Covenant on Civil and Political Rights article 2.1 and International Covenant on Economic, Social and Cultural Rights article 2.2. The Convention on the Elimination of All Forms of Racial Discrimination article 1.1 adds descent and ethnic origin and the Convention on the Elimination of All Forms of Discrimination Against Women article 1 adds marital status

[3] On sexual orientation see the decision of the Human Rights Committee established under the International Covenant on Civil and Political Rights in Toonen v Australia.

[4] Sex Discrimination Act 1984 (Cth); Anti-Discrimination Act 1977 (NSW).

[5] Racial Discrimination Act 1975 (Cth); Anti-Discrimination Act 1977 (NSW). The NSW Act also includes ethno-religious origin

[6] Disability Discrimination Act 1992 (Cth); Anti-Discrimination Act 1977 (NSW).

[7] Human Rights and Equal Opportunity Commission Act 1986 (Cth) and Regulations; Anti-Discrimination Act 1977 (NSW). The NSW Act includes homosexuality instead of sexual preference and includes ethno-religious origin but not religious belief. It also includes transgender status and carer responsibilities.

[8] S Joseph, J Schultz and M Castan The International Covenant on Civil and Political Rights: Cases, materials and commentary OUP NY 2000 paragraph 23.22.

[9] Chris Sidoti “Remedies” in Race Discrimination Commissioner Racial Discrimination Act 1975: a review Human Rights and Equal Opportunity Commission 1995 p 279.

[11] Human Rights and Equal Opportunity Commission Review of changes to the administration of federal anti-discrimination law 2000 p 14.