HREOC Annual Report 2003-2004 : Chapter 9: Race Discrimination

Human Rights and Equal Opportunity Commission

Annual Report 2003 - 2004

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Chapter 9: Race Discrimination

Statement from the Commissioner

Over the past year increasing trends of prejudice and harassment of particular groups in our community has continued to be an area of significant concern for me. As noted in the 2002-03 annual report, I launched the Isma project in March 2003 in response to increasing concerns expressed by Arab and Muslim organisations about the rise in anti-Arab and anti-Muslim prejudice in Australia.

Between April and November 2003, over 1,400 people participated in 69 consultations around the country and told us of their experiences. We also commissioned researchers from the University of Western Sydney to survey and interview Arab and Muslim Australians in Sydney and Melbourne about their experiences. We consulted with a wide range of local, state and federal Government agencies and community groups to find out more about what was currently in place to address the concerns raised by members of the Arab and Muslim community. The information provided to the Commission as a result of these wide ranging consultations is contained in the Isma report which was launched in June 2004 and also in a CD audio report of the project available in English and Arabic.

A number of consistent themes arose during the consultations. These included feelings of fear, isolation and vulnerability by a significant number of Arab and Muslim Australians, and experiences of various forms of prejudice which increased after recent international, national and local events. Much of what we heard has led me to the view that in the current environment of fear and suspicion fostered by terrorism and the 'war on terror', our multicultural values of social equity and respect for diversity are at risk of diminishing. As one consultation participant cautioned:

the Australia which was the kind of society everyone would want to live in is slipping away from us . . . The 'fair go' motto we always believed in has been replaced with the 'fear go' . . . When fear is embraced, we all cling to what we have and society is tilted in a direction where the majority rules without the slightest regard or respect for the rest of society.

We need to confront the fears and uncertainties that have become part of our everyday lives post-September 11 and guard against prejudice and intolerance, not just towards Arab and Muslim Australians, but also against other culturally and linguistically diverse communities. Increased hostility towards particular groups can impact on other vulnerable groups - attacking the very principle of respect for diversity has an alarming ripple effect.

The Isma project goes to the heart of a very important issue in Australia today - building strong, harmonious relationships between Australians of all racial and religious backgrounds. The past few years have been testing times in this respect and I hope that the Isma project is an important step in this process.

In mid 2003, I released an updated version of Fact the Facts which has been the Commission's mostly requested publication. Facts the Facts draws on information from as wide variety of sources to correct some common myths about immigrants, refugees and Indigenous people. To accompany the updated Face the Facts, Teaching Resources and Worksheets for use in Australian Classroom were published at the same time on the Commission's website.

Respect was the theme of another school-based activity that the Commission conducted in 2003-04, where we asked students to show us what they thought 'Respect' looks like in their school, their community, or their town. I was most impressed with the thoughtful and beautifully presented images that were received from all around Australia.

During 2003-04, we continued work on a number of other matters to promote an understanding and compliance with the Racial Discrimination Act including the public space project, which is considering how the management of urban areas may impact disproportionally on Indigenous people.

I exercised my function as amicus curiae in the case of Kelly Country v Beers [2004] FMCA 336 in which allegations of racial hatred were made against the respondent as a result of his public comedy performances. I provided written and oral submissions to the Federal Magistrates Court on certain provisions of the RDA, including the exemptions to the racial hatred provisions.

We have continued to liaise with government and non-government organisations on the issue of race hate on the internet and made a submission to Commercial Television Australia recommending that the Commercial Television Industry Code of Practice be amended so that it is consistent with the RDA.

The spread of race hate and other sorts of prejudice via the internet is difficult to monitor and control. The Australian Broadcasting Authority administers a 'co-regulatory' scheme for internet content which aims to address community concerns about offensive and illegal material on the internet and relies on its members to develop and comply with Codes of Practice. It also relies on matters being brought to its attention, and that is where the community can be the watchdog and let the Commercial television and any other regulatory bodies know what is going on.

It is only by the community taking action that the spread of prejudice, discrimination and harassment can be halted. Each and every one of us has an important role to play in promoting equality in our own political, economic, social or cultural field.

Research and Policy

Isma - Listen: National consultations on eliminating prejudice against Arab and Muslim Australians

As noted in the previous Annual Report, the Commissioner launched the Isma project in March 2003 in response to increasing concerns expressed by Arab and Muslim organisations about the rise in anti-Arab and anti-Muslim prejudice in Australia. These concerns were expressed against the backdrop of the September 11, 2001, attacks in New York and the Bali bombings of October 2002, as well as national and local events such as the growing numbers of asylum seekers from the Middle-East and Muslim countries, and the trial, conviction and sentencing of gang rapists in Sydney in 2001-02.

While the number of formal complaints of racial discrimination and racial hatred received by the Commission in 2002 did not increase, the Commission heard mounting anecdotal evidence from a range of Arab and Muslim community members and organisations about a rise in anti-Arab and anti-Muslim prejudice in Australia. The Isma project was launched with a view to understanding and accounting for this discrepancy.

A group of experts and representatives formed the Isma project reference group who played a crucial role in the project providing the Commission with advice and feedback as well as contacts and referrals. The group comprised people from across Australia, including community and religious leaders, a youth representative, a state equal opportunity commissioner and representatives from the police, education and the media.

The aim of the Isma project was to explore whether Arab and Muslim Australians were experiencing discrimination and vilification post-September 11. If so, what was the nature of these experiences and what were their impacts? How were Arab and Muslim Australians responding to such experiences and why weren't they reporting them through official complaint channels?

The project involved three main components:

1. National consultations with Arab and Muslim Australians. Over 1,400 people participated in 69 consultations in all states and territories around Australia between April and November 2003. Consultations involved group discussions on the following broad questions: Have you (or the community group you represent) experienced discrimination and vilification? If so, what are those experiences? What is being done to fight anti-Arab and anti-Muslim prejudice and discrimination? What more could be done to fight anti-Arab and anti-Muslim prejudice and discrimination? Summaries of the consultations are available on the Commission's website at: www.humanrights.gov.au/racial_discrimination/isma/consultations/index.h…
2. Empirical and qualitative research conducted by the Centre for Cultural Research at the University of Western Sydney (UWS) using questionnaires and follow-up interviews to learn more about Arab and Muslim Australians' responses to racism and abuse and their experiences and understanding of complaints processes. 1,475 self-complete questionnaires were distributed in New South Wales and Victoria between August and November 2003. The 25 multiple-choice and open-ended questions asked about people's experiences and responses to racism, abuse and violence. 186 people returned questionnaires. 34 of these agreed to take part in open-ended semi-structured interviews where participants were asked to expand on survey questions. The UWS research report is available on the Commission's website at:
   www.humanrights.gov.au/racial_discrimination/isma/research/index.html
3. An audit of strategies and initiatives that seek to address anti-Arab and anti-Muslim prejudice, discrimination and vilification. The Commission contacted over 100 local, state and federal Government agencies and community groups and had over 50 meetings with representatives from these organisations to provide an overview of existing strategies and identify gaps. Information received from these organisations is available on the Commission's website at: www.humanrights.gov.au/racial_discrimination/isma/strategies/index.html

The summary report of the Isma project was launched in Sydney on 16 June 2004, and subsequently in Melbourne, Shepparton, Perth, Brisbane, Adelaide, Canberra, Alice Springs and Hobart. The report provides background information about the Isma project, the role of the Commission, the demography and history of Arab and Muslim Australians, federal and state anti-discrimination laws, and the Commission's past involvement in issues relating to discrimination and vilification of Arab and Muslim Australians and religious discrimination. The report also summarises the experiences of Arab and Muslim Australians since September 11 who participated in the Isma project and describes how they have been affected by and responded to these experiences. The report is available on the Commission's website at: www.humanrights.gov.au/racial_discrimination/isma/report/index.html

Throughout the Isma project, the Commission heard that a significant number of Arab and Muslim Australians are feeling fearful, isolated and vulnerable. The majority of consultation participants and survey respondents reported experiencing various forms of prejudice because of their race or religion, which increased after recent international, national and local events. These experiences ranged from offensive remarks about race or religion, to physical violence by strangers or people known to them. The experiences have taken place on the street, in shopping centres, in the media, in schools and universities, on public transport, in government, in police services, in non-government services, at airports, hospitals etc.

Participants felt that those most at risk were readily identifiable as Arab or Muslim because of their dress, physical appearance or name, particularly Muslim women who wear the hijab. Arab and Muslim youth felt that they were particularly at risk of harassment which has led to feelings of frustration, alienation and a loss of confidence in themselves and their trust in authority. Many newly-arrived Arab or Muslim migrants and refugees reported that their experiences of prejudice have made it harder for them to negotiate the already difficult process of settling into a new country.

Participants and survey respondents indicated that they were more likely to complain about these experiences to their families, friends or their local ethnic or religious community organisations than to police or government organisations. They said that the reluctance to complain to police or government organisations was due to: fear of victimisation; lack of trust in authority; lack of knowledge about the law and complaints processes; the perceived difficulty in making a complaint; and the perception that outcomes were unsatisfactory.

Consultation participants felt that the major underlying cause for the rise in prejudice against them was a lack of knowledge and misinformation about their history, culture and faith. They were also concerned about the absence of consistent legal protection from religious discrimination and vilification across Australia and the biased and inaccurate reporting of issues relating to Arabs and Muslims. Participants and survey respondents not only felt this bias was commonplace, but that increases in anti-Arab and anti-Muslim prejudice, discrimination and violence were linked to negative media portrayals of Arabs and Muslims.

However, despite many negative experiences, Arab and Muslim Australians also said they had received support and help from non-Arabs and non-Muslims in the community, and that it had given them an opportunity to answer questions about their cultural background and their religion.

A major goal of the Isma project was to engage members of Arab and Muslim communities, government and non-government organisations in constructive discussion about future strategies to eliminate anti-Arab and anti-Muslim prejudice and discrimination. While much has been done by community and government organisations, participants in the Isma project identified a number of key areas for improvement and future action. These included: improving legal protections; promoting positive public awareness through education; addressing stereotypes and misinformation in public debate; ensuring community safety through law enforcement; encouraging effective community action and fostering public support and solidarity with Arab and Muslim Australians. The Commission developed more specific recommendations from these broad areas following investigation of the various initiatives which were already in place at local, state and federal level across Australia.

In broad terms, the Commission expressed the view that more can be done to counter anti-Arab and anti-Muslim prejudice through education programs that promote positive awareness of cultural and religious diversity among Australians. Negative stereotyping can also be challenged by encouraging better communication between government, non-government and media organisations and Arab and Muslim communities. Supporting and strengthening Arab and Muslim community organisations to develop and participate in projects which address discrimination and vilification is also essential. Importantly, ensuring that both Arab and Muslim Australians have adequate legal protection from discrimination and vilification is also vital. Currently, there is no federal law which makes discrimination or vilification on the basis of religion unlawful, and only piecemeal coverage of religious discrimination and vilification across the states and territories. A federal law would ensure there is a national 'safety net' protecting everyone around the country from religious discrimination and vilification. The Commission expressed the view that government institutions, media, politicians, service providers and Arab and Muslim community organisations and individuals need to work together to eliminate prejudice against Arab and Muslim Australians.

The Commission has also produced an audio CD in English and Arabic which describes the Isma project, and includes comments from the community consultations about the experiences and issues that participants raised. The audio CD can be downloaded from the Commission's website at: www.humanrights.gov.au/racial_discrimination/isma/audio/index.html

All of the information relating to the Isma project is available on the Commission's website at: www.humanrights.gov.au/racial_discrimination/isma/index.html

Public space project

The regulation of public space in Australia often has a disproportionate impact on Indigenous people, including Indigenous children. The Commission has commenced a project to consider how the management of urban public areas impacts on Indigenous people.

The Commission is considering this question in relation to a number of locations around Australia, including Darwin, Adelaide, Townsville, Moree and Perth. The goal of the project is to identify the key issues relevant to this topic, including any issues of relevance to the Racial Discrimination Act 1975 (Cth) or the International Convention on the Elimination of Racial Discrimination. The Commission is also seeking information about alternative strategies to manage public spaces in ways that do not adversely impact on Indigenous people.

The steps being taken to achieve these goals include:

1. The Commission held an information-share meeting in Brisbane on 27 February 2004. This meeting was co-hosted by the Queensland Anti-Discrimination Commission. Participants at this meeting showcased important research, strategies and trials relating to Indigenous people and public space and discussed concerns about the impact of the regulation of public space in some locations.
2. HREOC President, John von Doussa QC, held consultations with relevant local and state government representatives, anti-discrimination agencies and Indigenous and community groups in Darwin, Adelaide, Townsville and Perth between March and June 2004.

As part of its consultations, the Commission visited several public areas frequented or occupied by Indigenous people, such as urban parks, camps and malls.

The Commission is currently evaluating and analysing the information gathered through the information-share meeting and the consultations.

Erace forum - Australian South Sea Islanders

The Erace forum is an internet forum for publishing Commission research on race discrimination issues and raising policy questions for public comment. It contains a bulletin board to which comments, arguments and analysis submitted by email are posted.

The Erace forum was launched on 14 October 2002. Topics discussed so far have included temporary protection visas, as well as the interpretation of the term 'ethnic origin' under the Racial Discrimination Act 1975 (Cth) and whether Muslims are likely to come within this term.

On 12 December 2003, the Commissioner published the third Erace topic concerning the experiences of Pacific Islanders trafficked into Queensland and northern New South Wales to work as indentured labourers in the sugar cane and cotton industries between 1863 and 1904.

This topic raised questions about the impact of a long history of legal, social and economic discrimination; how such a history should influence responses to disadvantages experienced by current generations; should the descendants of people directly affected be entitled to an apology for past injustices; and what special measures of support and assistance should be put in place? Comments were invited on these questions as well as any additional information about the history of South Sea Islanders and the current circumstances of the community.

Information about the Erace Forum can be found on the Commission's website at: www.humanrights.gov.au/racial_discrimination/Erace/index.html

Interim report to Special Rapporteur

In August 2003, the United Nations Special Rapporteur on Contemporary Forms of Racism,

Racial Discrimination, Xenophobia and Related Intolerance invited the Commission to submit information relevant to his examination of the situation of Arab and Muslim communities in the aftermath of 11 September with particular reference to physical assaults and attacks against their places of worship, cultural centres, businesses and properties. The Special Rapporteur was asked by the Commission on Human Rights (in resolution 2003-04 of 14 April 2003: UN Doc. E/CN.4/2003/23) to update and expand their initial study on this subject (submitted to the Commission in April 2003). In September 2003, the Race Discrimination Commissioner provided an interim report on the Isma project to the Special Rapporteur.

Education and Promotion

Cyber-racism

In 2003-04, the Commission continued to liaise with government and non-government stakeholders on the issue of race hate on the internet.

The Commission participated as a member of the reference group for NetAlert's CyberSafe Schools project. NetAlert is an education and advisory body for on-line content that was established in 1999 by the federal Government. The CyberSafe Schools project is intended to develop materials that will alert teachers to the benefits and risks of using the internet and to help students develop internet safety skills. Resource materials include a CyberSafe Schools wall chart, a schools quick reference guide and an information booklet called 'A Teacher's Guide to Internet Safety'. The project is to be conducted over a three-year period with a staged development of materials.

The Commission provided information to the project about race hate on the internet. Issues of relevance to schools include racial abuse or harassment in chat rooms or via e-mail and hate groups often present racist ideology as factual or historically-based and market youth products such as racist computer games and hate music on the internet. The Commission also provided information about the Racial Discrimination Act 1975 (Cth) (RDA) and the Commission's complaints process. Fact sheets about the RDA and the Commission's complaints process have also been posted on NetAlert's redeveloped website. The Commission also provided information to the CyberSafe Schools project regarding sexual harassment on the internet. Information regarding NetAlert's CyberSafe Schools project can be viewed at: www.netalert.net.au/01398-About-CyberSafe-Schools.asp.

In addition to these activities, the Commission's website was hyper-linked from the complaints information page of the Australian Broadcasting Authority. This was intended to make it easier for people concerned about racially offensive internet content to contact the Commission (see www.aba.gov.au/internet/complaints/complaints.htm).

In March 2004, the federal Government proposed the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill 2004. This Bill contains proposed amendments to section 85ZE of the Crimes Act 1914 (Cth) making it an offence to use the internet to carry offensive content.

The Commission's research on race hate on the internet can be viewed on the Commission's website at www.humanrights.gov.au/racial_discrimination/cyberracism/index.html.

Legislative Development

Isma recommendations

Ensuring that both Arab and Muslim Australians have adequate legal protection from discrimination and vilification is vital. Current legal protections against discrimination on the ground of religion or belief, at federal, state and territory level, lack consistency and uniformity with the result that whether someone can seek redress under anti-discrimination laws for religious discrimination or vilification depends on where the conduct complained of occurred in Australia.

The Commission is of the view that the enactment of federal legislation that makes discrimination and vilification on the basis of religion unlawful, would provide greater consistency and uniformity in this area and would assist in Australia satisfying its international obligations in this regard.

The Isma project recommended that a federal law be introduced making unlawful:

• discrimination on the ground of religion or belief. Appropriate exemptions, such as those set out in the Article 18 report relating to the inherent requirements of the job and employment by religious institutions, should be considered, and
• vilification on the ground of religion or belief. It is acknowledged that the proposed legislation must make allowances for fair speech and fair reporting to ensure a balance between the competing rights of freedom of expression and the right to be free from vilification on the basis of religion or belief. Appropriate exemptions, such as those set out in the Article 18 report, should be considered.

Submission on Commercial TV Code of Practice

In November 2003, the Commissioner made a submission to Commercial Television Australia (now named Free TV Australia) recommending that the Commercial Television Industry Code of Practice (Code of Practice) be amended so that it is consistent with the Racial Discrimination Act.

The Racial Discrimination Act prohibits behaviour that offends, insults, humiliates or intimidates another on the basis of race unless the behaviour falls within one of the exceptions provided for in section 18D of the Act. In the submission to Commercial Television Australia the Commissioner noted that the Code of Practice does not prohibit the racially offensive behaviour referred to in the Racial Discrimination Act. It was noted that it is more difficult for complainants to make a complaint to the requisite standard under the Code of Practice than under the Racial Discrimination Act. The Commissioner also indicated that the Code of Practice assesses the effect of the communication on people who are not of the victim's racial group. By contrast, the Racial Discrimination Act looks to the effect of the communication on the racial group affected (eg. the 'reasonable victim').

The Commissioner noted that because the Code of Practice is not consistent with the Racial Discrimination Act the potential for unlawful conduct exists even if a licensee has adhered to the standards of the Code. He urged that consistency with the Racial Discrimination Act would better protect the interests of licensees and others in the media sector. Consistency with federal law also ensures that the content of commercial television reflects 'current community standards' as per the stated objectives of the Code of Practice.

International activities

The Commissioner made a presentation on working with the media and communication sector at the International Race Relations Roundtable in Auckland, New Zealand on 4 February 2004. The speech outlined Commissioner Jonas' own experiences on the role of the media and communications sector, their influence on race relations, and how the relationships are managed

Speeches

A selection of public addresses made by the acting Race Discrimination Commissioner during 2003-04 is listed below. Some speeches can be accessed on the Commission's website at: www.humanrights.gov.au/speeches/race_discrim/index.html

Keynote address to AGM of Executive Council of Australian Jewry, Sydney, 1 December 2003.

Launch of report of Isma project - National consultations on eliminating prejudice against Arab and Muslim Australians, Sydney, 16 June 2004.

Launch of report of Isma project - National consultations on eliminating prejudice against Arab and Muslim Australians, Melbourne and Shepparton, 22 June 2004.

Launch of report of Isma project - National consultations on eliminating prejudice against Arab and Muslim Australians, Perth, 25 June 2004.

Launch of report of Isma project - National consultations on eliminating prejudice against Arab and Muslim Australians, Brisbane, 30 June 2004.

Achieving Change: Working with the Media and Communications Sector speech at the International Race Relations Round Table, Auckland, New Zealand, 2-5 February 2004.

Launch of Face the Facts, Newcastle City Hall, 30 July 2003.

Public Space Information-share meeting, Brisbane, 27 February 2004.

19 November 2004