Has the Racial Discrimination Act Contributed to Eliminating Racial Discrimination? Analyzing the Litigation Track Record 2000-04

Abstract

This article examines the contribution of the Racial Discrimination Act 1975 (Cth) (RDA) to the elimination of racial discrimination. While anti-discrimination law is not the whole story of equality for racial and ethnic minority groups, it is nevertheless an important tool for individuals and groups who want to take action. An analysis of complaints and litigation from 2000-04 suggests that there is reason to be seriously concerned about the lack of effectiveness of the RDA in protecting equality rights. After 30 years it has not kept pace with the modernization of equivalent laws in other countries. The RDA was passed in 1975, with high hopes that it would assist in the elimination of racial discrimination in Australia. Thirty years later, it is appropriate to examine what has and has not been achieved through using the Act and to explore some of the reasons behind any limitations. This article first outlines the broader context of the achievements of the institutions set up by the RDA, and then examines the effectiveness of the legislation as an instrument against discrimination. It is not enough to look only at case law doctrine developed by the courts under the RDA in order to assess its success. It is also necessary to look at the extent to which it is actually used to provide a remedy for racial discrimination. Thus, all litigation reported under the RDA for the period 2000-04 is analyzed to reach an assessment of it and its contribution to social change. In conclusion, the reasons why litigation has been largely unsuccessful are considered and it is argued that after 30 years, the RDA needs updating to bring it in line with developments in knowledge since it was passed and to overcome its apparent ineffectiveness.

Keywords: Racial Discrimination, equality, ethnic, minority, complaints, litigation, 2000-2004, Racial Discrimination Act, remedy

JEL Classification: K1, K10