Rethinking access to racial justice
12th Nov 2020
Despite the expectation that First Nations peoples would benefit from the enactment of the Racial Discrimination Act 1975 (Cth) (RDA), they still arguably ‘continue to bear the greatest burden’ of racism in this country. Race discrimination laws have not made as strong a contribution as they might have to First Nations peoples, partly due to problems relating to access to justice.
These problems often pertain to under-utilisation of anti-discrimination legal remedies by First Nations peoples, for example:
- A very small number of First Nations people are initiating race-based complaints with anti-discrimination agencies.
- Attrition rates for complaints made by First Nations peoples are high. Commonly, anti-discrimination agencies will refuse to accept complaints on grounds that they are invalid (not within jurisdiction).
- Other complaints may not proceed to, or settle through, conciliation, with some complainants disengaging from the process.
- Of the small number of complaints that are litigated, few yield positive outcome for the complainant.
Problems of access to justice problems arising within anti-discrimination complaint mechanisms are significant. Without dismissing the importance of access to courts and tribunals, it is within the latter mechanisms that almost all disputes in this area begin and end. It is also likely to be better for complainants – and for all parties – to have capacity to satisfactorily resolve a dispute through the complaints process, rather than through litigation.
Mainstream justice systems
All individuals have a right to access justice. This is a fundamental right in and of itself and is crucial to the exercise of all other rights, including that of non-discrimination. Article 40 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) enshrines First Nations peoples’ right to access justice, defined as ‘just and fair procedures for the resolution of conflicts and disputes’ and ‘effective remedies for all infringements of their rights’.
Access to justice is generally understood as consisting of legal procedures, outcomes and substantive law. These are all mainstream constructs, meaning that they often do not accommodate or respond to First Nations-specific needs and perspectives, including those arising through culture and colonisation. This can impede fulfilment of the UNDRIP rights to access justice and to equality, for example:
- The requirement of lodging a written complaint of racial discrimination is problematic for many, and may be particularly difficult for First Nations peoples, given their lower rates of literacy and limited use in some communities of English as a first or second language.
- The lengthy time in the complaints process and/or perceptions that responses to multiple other financial, housing, health and other problems (legal or otherwise) experienced in First Nations communities require more urgent attention means that many discrimination complaints are never lodged or pursued.
- Widespread fear and distrust of the law due to 200-plus years of subjugation and dispossession of First Nations peoples by the legal system.
To increase First Nations peoples’ access to justice through the complaints system, the system needs to adapt so that it can respond to the particular strengths and experiences of First Nations peoples. While increased access to legal help is absolutely vital, First Nations community members could be upskilled to assist complainants to navigate the complaints process, for example. A First Nations Co-Commissioner role and Advisory Group could also be established in (better-resourced) anti-discrimination agencies in all jurisdictions to guide policy and practice in these agencies.
Changes to processes and remedies
The Queensland Human Rights Commission (QHRC) is presently looking at ways to improve First Nations peoples’ access to racial justice. The QHRC is hoping to develop a model to underpin an alternative way of improving First Nations peoples’ access to its complaints process, informed by the community’s needs and interests through genuine and ongoing engagement with the community.
The QHRC has also recently established an Aboriginal and Torres Strait Islander Advisory Group which focuses on assisting and advising the QHRC about its performance under the Human Rights Act 2019 (Qld) and the Anti-Discrimination Act 1991 (Qld) as these Acts relate to Aboriginal and Torres Strait Islander people.
The introduction of the Human Rights Act in Queensland last year is seen by the QHRC as a significant step in recognising the importance of human rights for the First Nations peoples of Queensland. This is stated in the preamble to the Act, which acknowledges the distinct and diverse spiritual, material and economic relationship of Aboriginal and Torres Strait Islander peoples with the lands, territories, waters, coastal seas and other natural resources, and the particular significance of the right to self-determination. Section 28 of the Act also refers to specific cultural rights for Aboriginal and Torres Strait Islander peoples. It is noted that this type of legislative reform that responds to and reflects First Nations perspectives, is an important means of enhancing First Nations peoples’ access to justice.
Probably the most significant barrier to accessing justice in the area of racial discrimination is the limited awareness in First Nations communities of the right to non-discrimination, and of the availability of legal remedies when this right is breached.
More work is needed to build First Nations knowledge of their rights with respect to race discrimination and culture. One potential strategy involves building awareness of the law among key First Nations community members and community-controlled organisations. As knowledge holders, these individuals and organisations can then inform the broader local community about their rights. This strategy might be initiated and led by communities themselves, when they are ready. It may also be done in partnership with anti-discrimination agencies, legal service providers and similar organisations.
Greater understanding of rights may lead to increased use of human rights and anti-discrimination law, but it will also, importantly, give more First Nations peoples the opportunity to assert their rights without recourse to legal processes and remedies. Though First Nations peoples are likely to want racism to stop, they may not want to engage with the law to achieve this, even when they know that they can. Some may prefer to address race discrimination more directly, where sufficiently empowered to do so. What is referred to as ‘everyday justice’ involves those experiencing racism calling it out. This can be a very positive and effective method of attaining ‘justice’ – still framed by legal rights, but without seeking legal resolution of a dispute. The empowerment required to take on racism in this way may come from strategies that recognise and strengthen the role of communities alongside increased knowledge of legal rights. Additionally, this ‘calling out’ might be done collectively, as a community of aggrieved persons, in the place of individuals lodging single complaints of race discrimination.
Though legal responses to social problems are only part of the story, it is essential, as the federal government recognised in passing the RDA, that we have in place strong legislative protection against racism, including that which is directed at protecting First Nations peoples. Enacting legislation, however, is not sufficient.
First Nations peoples are, at present, not using race discrimination laws to challenge race discrimination. To increase First Nations’ access to anti-discrimination and human rights legislation, reform of the legal system, informed by First Nations’ needs and perspectives, is essential. We must also continue to support community-led responses to racism, including those likely to increase awareness of legal rights.
This is an edited version of an article first published in the Aboriginal and Torres Strait Islander legal issues edition of Precedent. For the full article, see F Allison and J Luck, ‘Rethinking access to racial justice: Race discrimination and First Nations peoples’, Precedent, issue 159, 2020, 8–11.
Dr Fiona Allison is a Research Fellow working at the Cairns Institute, JCU, and Jumbunna, Institute for Indigenous Education and Research, UTS. Fiona’s research focuses on community development, human rights and social justice. Prior to working in academia, Fiona worked as a lawyer at Community Legal Centres in the NT and NSW and at the Australian Human Rights Commission.
Jodie Luck is an Aboriginal woman from the Gurang Gurang nation of the Bundaberg region in Queensland. Jodie has spent 30 years working in Indigenous affairs in both the public and private sectors. Jodie has worked extensively in remote and non-remote communities within Queensland and is passionate about supporting and advocating for Aboriginal and Torres Strait Islander people.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 A Ferdinand, M Kelaher and Y Paradies, Mental health impacts of racial discrimination in Victorian culturally and linguistically diverse communities: Full report (2013) Victorian Health Promotion Foundation, Melbourne VIC, 1.
 M Schwartz, F Allison and C Cunneen, The civil and family law needs of Indigenous people in Victoria, Report (2013) Cairns Institute, James Cook University (JCU), 92–3.
 F Allison, Cause for hope or despair? Evaluating race discrimination law as an access to justice mechanism for Aboriginal and Torres Strait Islander people (2020) PhD Thesis, JCU, 216.
 It is possible to commence legal action in relation to race discrimination in the Victorian Civil and Administrative Tribunal without first lodging a complaint with the Victorian Equal Opportunity Commission.
 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007).
 Allison, above note 4, 261.
 Ibid, 254.
 Ibid, 232. See also G Bodkin-Andrews and R Craven, ‘Bubalamai Bawa Gumada (healing the wounds of the heart): The search for resiliency against racism for Aboriginal Australian students’ (2014) Quality and Equity: What does Research Tell Us – Conference Proceedings, Australian Council for Educational Research, Camberwell, Victoria, 49–58.
 M Galanter, ‘Justice in many rooms: Court, private ordering and Indigenous law’, Journal of Legal Pluralism and Unofficial Law, Vol. 13(19), 1981, 1.