Aboriginal Justice Advisory Council
NSW Aboriginal Justice Plan
Submission of the Anti-Discrimination Board of NSW
November 2002
Contents
1. Introduction
2. Deficiencies in the current systems of redressing discrimination in NSW
2.1 Inadequacy of individual complaints-based systems: Access to redress under the ADA is complainant driven, and this is inappropriate for Indigenous people and other marginalised groups
2.2 Limited powers of the President: The President lacks the power to either initiate complaints or intervene in cases before the ADT
2.3 Limitations of the ADA to challenge other legislation: Examples of pieces of legislation which have a discriminatory impact on Indigenous people
2.3.1 Some examples of Acts which have discriminatory impacts
2.3.2 Why the ADA does not address all discrimination in legislation
2.4 Irrelevant criminal record
2.5 ADA does not apply to the full range of police service activities: Police not found to be providing services within the meaning of the ADA
3. Options for promoting systemic change
3.1 Enhanced flexibility in service delivery: adaptation of the current Flexible Service Delivery for People With Disabilities Model
3.2 Positive Duty: Statutory responsibility to be proactive in eliminating discrimination in service provision
3.3 Indigenous Australians impact statements
4. Conclusion
1. Introduction
The Anti-Discrimination Act 1977 (NSW) [the Act or ADA] makes it unlawful to discriminate on a range of grounds in a variety of areas of public life.
The Act includes the following grounds: race, sex (including pregnancy), marital status, disability, homosexuality, transgender status and carer responsibilities. With some variations, the Act applies to the following areas of public life: employment, education, goods and services, accommodation, registered clubs and sport.
Unlawful discrimination can be direct or indirect. Direct discrimination involves treating a person less favourably because of a particular characteristic than in the same or similar circumstance you would treat a person who did not have that characteristic.
Indirect discrimination involves the imposition of a condition or requirement, which has a disproportionately negative impact on a group of persons, where the condition is not reasonable having regard to all the circumstances, and where the person aggrieved cannot comply.
The NSW Aboriginal Justice Plan Discussion Paper describes the general levels of disadvantage experienced by Indigenous Australians. The paper notes that on all the major indicators, such as health, housing, education, employment and contact with the justice system, Indigenous Australians are disadvantaged as compared with non-Indigenous Australians.
Levels of disadvantage in areas such as health, housing, education and employment combine to contribute significantly to the disproportionately high level of interaction between Indigenous Australians and the criminal justice system. A disproportionately high number of Indigenous Australians have a low socio-economic status, which increases their chance of involvement in the criminal justice system. The Royal Commission into Aboriginal Deaths in Custody identified that the over-representation of Indigenous Australians in the criminal justice system could not be redressed without reducing the underlying causes of socio-economic disadvantage.
The Board submits that discrimination causes reduced levels of health, poorer housing, and reduced access to education and employment experienced by Indigenous Australians. The high incidence of incarceration and contact with the justice system cannot be redressed without promoting access for Indigenous Australians to employment, education, housing and health, and improved access to these entitlements cannot occur without addressing discrimination. A justice plan which addresses only the criminal justice system misses the root causes of the system’s unfair impact on Indigenous Australians.
Unacceptably high incidences of discrimination are experienced by Indigenous Australians. In its March 2000 report on Australia’s performance in combating discrimination against its Indigenous citizens, the United Nations Committee on the Elimination of Racial Discrimination commented:
“Serious concern remains at the extent of the continuing discrimination faced by Indigenous Australians in the enjoyment of their economic, social and cultural rights. The Committee remains seriously concerned about the extent of the dramatic inequality still experienced by an Indigenous population that represents only 2.1% of the total population of a highly industrialised state.”
In 2000/2001[1] the ADB received complaints from 119 Indigenous people (this constituted 10.6% of the year’s complaints, whereas Indigenous Australians constitute only 1.9% of the total population of NSW). Most of these complaints are related to race discrimination and racial vilification (76.5%, as compared with 19.5% of overall complaints).
31.9% of complaints by Indigenous Australians related to discrimination in employment. 43% of complaints related to discrimination in the area of goods and services and 8.4% of complaints were about accommodation.
These statistics are not the full picture but rather reflect only the tip of the iceberg. A recent report by the Public Interest Advocacy Centre (PIAC) and the Wirringa Baiya Aboriginal Women’s Legal Centre (WBLC)[2] suggests that many more Indigenous Australians experience discrimination than lodge complaints with any of the available complaints bureaux. This report details the experiences of 67 Indigenous women in NSW. Almost all the Indigenous women reported experiencing discrimination, and in three out of four focus groups the women reported that discrimination was a common occurrence. Women reported experiences of discrimination in accessing goods and services, accommodation and employment, discrimination at the hands of clubs and pubs, by the police and in education. Many women responded to these experiences with withdrawal and avoidance and some responded by directly confronting the perpetrators, however very few actually lodged formal complaints. None of the 67 women had lodged complaints with the Human Rights and Equal Opportunity Commission (HREOC), the Industrial Relations Commission or the Ombudsman. Only five of the women had lodged complaints with the Board.
The PIAC/WBLC report also went further to conduct qualitative interviews with seven Indigenous women who had lodged complaints with the Board. This submission deals in a later section with the limitations of the individual complaints system, however it is useful to note at this point that the report observed all the women were concerned with the delays inherent in the ADB system.
The Board also facilitates an Indigenous consultation forum, which provides input from Indigenous Australians to the operations of the Board. The forum also operates as an important means of obtaining information about Indigenous Australians’ experiences of discrimination and their views on the effectiveness of current anti-discrimination remedies. The forum confirms the PIAC/WBLA report’s conclusion that discrimination is under-reported to the Board and other complaints institutions.
The Board’s own statistics[3] also show that the complaints least likely to be settled by the Board are those relating to race discrimination (25% settlement rate) and racial vilification (25% settlement rate). 40% of complaints lodged with the Board and which fall within the Board’s jurisdiction are not proceeded with. While there may be many reasons why a complainant may not proceed with his/her complaint, a significant delay on the part of the Board will be a factor for many.
Strategies to reduce the involvement of Indigenous Australians in the criminal justice system must combine steps to make anti-discrimination remedies more accessible and more effective as well as proactive measures to eliminate discrimination and make employment, education, housing, health, and other services more accessible. The strategies must not only respond to the individual incidents of discrimination, but also promote systemic change.
For its own part, the Board is taking steps to improve its services to Indigenous Australians with its Indigenous team being expanded through the addition of a new management position to oversee the Board’s Indigenous program. It is anticipated that the outcomes of this expansion will be faster resolution of complaints and an enhanced education program. Expanded education programs will increase awareness of legal remedies and, presumably, result in increased numbers of complaints to the Board from Indigenous Australians. The Board will monitor the situation closely to determine whether this raised awareness results in such an increase in the volume of complaints that significant delays in complaint handling still occur. The Board continues to seek government support for enhanced funds for our overburdened complaints systems.
In 2001/2002 the Board met all of its Business Plan targets relating to finalisation rates for allocated complaints. In reality however, there are still unacceptably lengthy delays between receipt and allocation of complaints: presently this delay is around 12 months for the Sydney office (slightly less for Wollongong and slightly more for Newcastle). Ideally, all complaints could be allocated upon receipt.
2. Deficiencies in the current systems of redressing discrimination in NSW
2.1 Inadequacy of individual complaints-based systems: Access to redress under the ADA is complainant driven, and this is inappropriate for Indigenous people and other marginalised groups
Anti-discrimination laws, both Commonwealth and State, place a strong emphasis on individual complaints systems, which places significant emotional and financial burdens on individuals to enforce their rights. Individual complaints are made all the more difficult given that those who experience discrimination are often members of marginalised groups in our community such as Indigenous people, transgender people, gay men and lesbians, people living with HIV/AIDS, people who inject drugs and sex workers. These groups often have little awareness of the existence of anti-discrimination laws, let alone how to utilise theses laws for their benefit.
Individuals who have been categorically discriminated against over their lifetimes will sometimes have difficulty in naming the treatment as discrimination because, given the regularity of the experience, it is somehow normalised. The Indigenous experience is founded upon a history of colonisation and discriminatory government policies, and this has had an effect of normalising discrimination against Indigenous people today.
The individual experience of discrimination rarely fits neatly within the defined parameters of anti-discrimination laws and processes. For people to be able to use the complaints mechanisms available, they must be able to name their experience as one of discrimination, understand their rights under anti-discrimination laws and have sufficient information and resources to utilise anti-discrimination laws as a means of addressing discrimination they experience. Those most likely to need the mechanisms for redress are often least likely to have the information, support and resources to do so.
For Indigenous communities there is often a lack of awareness of their legal rights. Even if they know about their rights this is often meaningless without emotional and financial support to assist them through the legal process. There are cultural barriers also: it is uncommon for Indigenous people to complain to authorities or speak out against actions or behaviour. They have been kept powerless, marginalised, and disenfranchised for generations and so simply affording them rights does not empower them to access those rights. Furthermore, literacy and education levels are lower within Indigenous communities as compared with non-Indigenous communities, and this impedes the ability of many Indigenous Australians to participate in the legal system. The fact that complaints are to be made in writing represents yet another hurdle in relation to an already difficult avenue of redress.
Generally, the more vulnerable a community is to discrimination the more difficult it can be for members of that community to take legal action to redress that discrimination. This is often because of fears of victimisation or because the very disadvantage suffered makes people less likely to be able to access complainant driven remedies. In some instances these factors also lead to people withdrawing their complaints. The Combined Community Legal Centres Group (NSW) has argued that the emphasis on individual complaint mechanisms is problematic for the following reasons:
1. those who are most marginalised, and most in need of protection from the law, are the least likely to trust or have contact with complaint bodies;
2. individuals who lodge complaints are among the least likely in the community to be able to comply with the procedures necessary to establish their case;
3. the nature of the discriminatory conduct may mean that individuals affected are less likely to complain, due to concerns that publicity regarding the incident will expose them to further discrimination or harassment;
4. individuals are more likely to be affected by significant delays in complaints handling;
5. there is often a significant imbalance of power between complainants and respondents, particularly in relation to the capacity of the parties to bear the costs involved, often leads to unsatisfactory settlements at conciliation. Complainants are less likely to have the financial resources to proceed to hearing;
6. conciliated settlements do not produce binding precedents;
7. “burn out” by complainants because of the demands of the process; and the inability of a system based on individual complaints to deal with systemic discriminatory practices.[4]
2.2 Limited powers of the President: The President lacks the power to either initiate complaints or intervene in cases before the ADT
A limitation of the ADA is the inability of the President to initiate a complaint into possible discrimination on his or her own motion. If vested with this power, the President would be empowered to make complaints and thereby launch Board investigations into matters involving those vulnerable groups (like young people, women from Non-English Speaking Backgrounds, and Indigenous people in rural areas) who are less likely to be able or willing to complain, either through lack of knowledge or for fear of victimisation.
The President is also restricted in his or her ability to contribute to the outcomes of matters being heard by the ADT. The President has no power to intervene in those proceedings and may only be present if the Tribunal requests that an officer of the ADB assist the Tribunal.[5] This is in contrast to other anti-discrimination jurisdictions in Australia where either powers of intervention exist and/or where powers are conferred enabling the President to represent complainants in the relevant Tribunal.[6]
2.3 Limitations of the ADA to challenge other legislation: Examples of pieces of legislation which have a discriminatory impact on Indigenous people
2.3.1 Some examples of Acts which have discriminatory impacts
There are a number of Acts in force in NSW which have a discriminatory impact on Indigenous Australians, or where the potential for such impact has been clearly established.
Example One[7]:
The Children (Protection and Parental Responsibility) Act 1997 replaced the Children (Parental Responsibility) Act 1994 which was enacted to confront a rising juvenile crime problem caused by lack of parental supervision. However, it focuses on under 16 year olds who are not over-represented in crime statistics. The NSW Bureau of Crimes Statistics and Research show that the group of people most likely to offend are aged between 20 and 29 years.