THE HON MARK DREYFUS KC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
2022 Kep Enderby Memorial Lecture
Thursday, 3 November 2022
INTRODUCTION
Good afternoon everyone.
I will start by acknowledging the Ngunnawal and Ngambri people as the Traditional Custodians of the lands from which I deliver this lecture today, and I pay my respects to their elders, past and present.
I would like to thank Commissioner Tan for the invitation to present the Kep Enderby Lecture for 2022. Kep Enderby’s career was marked by a commitment to human rights and the law. A lawyer, Commonwealth Attorney-General, and later a judge he made a lasting contribution to Australia’s anti-discrimination framework.
STRENGTHENING ANTI-DISCRIMINATION PROTECTIONS SINCE 1948
It was a Labor government that established the foundations of the anti-discrimination framework underpinned by international human rights law. The Albanese Government will build on that proud tradition of strengthening anti-discrimination law.
The establishment of the anti-discrimination framework as we know it can be traced back to 1948, when Labor Minister for External Affairs Dr Herbert Vere Evatt, also known as Doc Evatt, oversaw the adoption of the Universal Declaration of Human Rights as President of the United Nations General Assembly.
Australia’s role in drafting the Declaration demonstrated and affirmed our commitment to protecting and promoting human rights both domestically and abroad. Subsequent Labor Governments have built upon this bedrock, and shaped the human rights protections we know and enjoy today.
In 1975, the Racial Discrimination Act was enacted. This Act protects an individual’s right to be free from discrimination on the grounds of race, colour, descent or national or ethnic origin in any field of public life. The Act fulfils Australia’s obligations under the International Convention on the Elimination of all forms of Racial Discrimination.
It was the Whitlam Government – specifically the Hon. Kep Enderby, in his role as Attorney-General – who introduced, and ultimately passed, the Racial Discrimination Act.
In the second reading speech for the Racial Discrimination Act, he stated:
The proscribing of racial discrimination in legislative form will require legal sanctions. These will also make people more aware of the evils, the undesirable and unsociable consequences of discrimination—the hurtful consequences of discrimination—and make them more obvious and conspicuous.
The protections in the Racial Discrimination Act to this day provide remedies to victims of racial discrimination and racial hatred.
Subsequent Labor governments continued to develop and strengthen Australia’s human rights framework with the introduction in 1984 of the Sex Discrimination Act. The Disability Discrimination Act followed shortly thereafter in 1992. These important human rights initiatives by Labor governments have provided protection from discrimination and, equally as important, they have changed attitudes in the community. The Howard Government, supported by the Labor Opposition, introduced the Age Discrimination Act in 2004.
The Australian Human Rights Commission plays a crucial role in educating the public about human rights and the protections enshrined in our law. Our understanding of human rights is continually evolving, and with it so must our law.
The Keating Government understood the necessity for human rights law to evolve and in 1995 introduced the Racial Hatred Act. This important Act added to the protections in the Racial Discrimination Act against racial vilification in the form of section 18C. For almost 30 years this provision has protected Australians against the poisonous effects of racist hate speech. Over the same period of time, 18C’s companion provision, section 18D, has operated to provide extensive protections for freedom of speech.
Section 18C of the Racial Discrimination Act makes it unlawful to do an act otherwise than in private that is reasonably likely to offend, insult, humiliate or intimidate people because of their race, colour or national or ethnic origins. The protection in section 18C has continued to serve Australians well.
Despite the important protections provided by section 18C, the provision been repeatedly attacked by Coalition governments since 2014.
As I said in 2016:
“Labor will oppose any attempts by this government to water down the legal protections against race hate speech.”
As Senator Patrick Dodson said in November 2016 during Senate debate on proposed 18C amendments, “words do matter”.
Labor succeeded in preventing any changes to section 18C.
Australia is home to people who can proudly claim ancestry from our oldest continuous cultures, and people who identify with more than 270 cultures who have come to this land and greatly enriched us all.
Combatting hate speech helps all Australians feel protected and at home in this country.
EXPERIENCES OF RACISM
Unfortunately, as Commissioner Tan has previously noted, there has been a documented resurgence in discriminatory attitudes in our communities.
There was a 14 per cent increase in complaints made under the Racial Discrimination Act 1975 prior to the pandemic from 2017 and 2019. During the pandemic, between 2018 and 2021, there was a significant 57 per cent increase in complaints.
We continue to hear allegations of race-based misconduct across sporting codes and within workplaces and in other aspects of public life. The Government condemns racism without reservation.
Like so many Australians, to me, this issue is deeply personal.
My father, his brother, and their parents, were forced to flee from Nazi Germany for the simple reason that they were Jewish.
My great-grandparents could not be convinced to leave. They died in the Holocaust.
My family’s story, as well as the broader history of the Jewish people, informs my work as Attorney-General today.
It is a history, personal and cultural, that ensures that I have undying gratitude to this nation and to its generous people for taking in my father, his brother and my grandparents in their time of desperate need.
It is a history that makes me appreciative of the wonderful diversity of this nation and the need to continually protect that diversity. It reinforces the need to uphold and, where possible, to strengthen the fundamental human rights in which that diversity flourishes.
Australia’s continued success as a multicultural nation must include an ongoing commitment to addressing racism. The Government takes this obligation very seriously.
RESTORING INTEGRITY TO OUR ANTI-DISCRIMINATION FRAMEWORK
The first step towards bringing our anti-discrimination protections in line with community expectations is to recognise that the integrity of this framework is dependent upon the proper functioning of, and support for, an independent Australian Human Rights Commission.
The Albanese Government strongly supports the work of the Commission and appreciates its vital role in Australia’s human rights agenda – both internationally and domestically.
That is why the Government increased the Commission’s ongoing funding in the October 2022-23 Budget and we have begun work to restore integrity to the process of appointments.
Our commitment is that all future appointments to the Australian Human Rights Commission be made via a merit-based and transparent process that fully complies with the Paris Principles.
This isn’t just a matter of process. It has serious implications for Australia’s international standing on issues of human rights.
In March 2022, the Global Alliance of National Human Rights Institutions’ Sub-Committee on Accreditation deferred the Commission’s re-accreditation until October 2023, on the basis that the selection and appointment process for commissioners did not fully comply with the Paris Principles.
Specifically, the Sub-Committee was concerned about three direct appointments that were made to the Commission without going through a selection process.
If Australia’s National Human Rights Institution is downgraded to ‘B’-status, it would limit the ability of the Commission to independently engage with international forums, such as the UN Human Rights Council, which limits participation to ‘A’-status institutions.
To address the Sub-Committee’s concerns, in July this year I introduced the Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill into the Parliament. Last week it passed into law.
These amendments will implement a merit-based and publicly advertised process for appointments to the Commission. This is a critical part of this Government’s agenda to restore integrity to our public institutions and it was the first legislation I introduced. This will support the Commission’s re-accreditation as an ‘A’-status National Human Rights Institution, which is essential to its institutional independence, legitimacy and international credibility.
But this is only the start of the Albanese Government’s human rights reform agenda. There is more that can and must be done.
INDIGENOUS JUSTICE
Reconciliation Australia states in its latest State of Reconciliation report that we are at a tipping point, and as a nation we need to move from a space of ‘safe’ to ‘brave’ on issues affecting Aboriginal and Torres Strait Islander peoples. This bravery is needed on all issues relating to racism and inclusion in Australia.
The Government committed during the last election to implementing the Uluru Statement from the Heart in full, including recognising First Nations people in the Constitution by enshrining an Aboriginal and Torres Strait Islander Voice to Parliament.
The Voice will be an advisory body to Parliament and the Government that will have a practical impact for Aboriginal and Torres Strait Islander people by giving them a direct say in laws, policies and programs which affect their day-to-day lives.
Putting the Aboriginal and Torres Strait Islander Voice in our Constitution is a very important step towards achieving true reconciliation with Indigenous Australians, and closing the gap. It sends a clear and unequivocal message of respect for our Indigenous culture and heritage by ensuring our First Nations people are heard and that they are given a direct say in matters that affect them.
The Government has already begun work on the Voice referendum, and we are committed to delivering it in partnership with the Australian community.
A successful referendum requires as much support as possible, at the heart of which lies support from First Nations people. We are working in consultation with Aboriginal and Torres Strait Islander people, and the Australian community more broadly, in the lead up to the referendum. This engagement with Indigenous and non-Indigenous Australians will be broad, it will be based on respect, and it will be focused on building consensus.
This is only the beginning of remedying the injustices faced by Indigenous Australians. The Commonwealth Government has committed a record $81.5 million to expanding justice reinvestment initiatives across the country, to be designed and delivered in full partnership with First Nations people.
This Government wants to see fundamental and long-term change in the underlying social factors that contribute to crime and incarceration, and I will continue to champion the resolution of youth justice and detention issues with my state and territory counterparts through the Standing Council of Attorneys-General.
Importantly, these efforts will build on the Commonwealth’s commitments to justice for First Nations people and achievement of Outcome 11 of the National Agreement on Closing the Gap to reduce the disproportionate rates of detention of First Nations youth.
ANTI-RACISM STRATEGY
I said in my First Speech to the Australian Parliament in 2008, “tolerance lies at the heart of our Australian multiculturalism”. And, of course, tolerance can go a long way to preventing division and conflict.
With the benefit of time and reflection I have come to believe that we must do more than ‘tolerating’ our differences.
I feel that it is in the open-hearted acceptance and genuine appreciation of difference, rather than the mere tolerance of it, that the foundations of a truly multicultural and diverse society must rest. From this position we will not just tolerate people from other cultures and religions but actively seek to understand, accept and welcome people.
We can also do more than creating a framework for complaints and conciliation of claims of racism or racial hatred.
Labor joins the Australian Human Rights Commission, Amnesty International, FECCA and other peak bodies in acknowledging that a national anti-racism strategy is sorely needed.
The Albanese Government announced before the election that it would commit $7.5 million to fund the Australian Human Rights Commission to complete its National Anti Racism Framework and implement a comprehensive national anti-racism strategy.
This commitment was delivered with the funding announced in the Budget last month.
I want to acknowledge here the role of the Race Discrimination Commissioner and of the staff of the Commission to date, on the early stages of a national anti-racism framework and of course the recently relaunched Racism. It Stops with Me campaign. Your hard work has prepared the groundwork for the next phases.
The anti-racism strategy will develop a shared understanding of racial equality to build support for an inclusive national narrative in which the rights of all people are protected and promoted, regardless of race, ethnicity or cultural background.
The strategy will include two major streams of work.
Firstly, a National Anti-Racism Framework will be established, intended to support the commitment of government, civil society and business and the community to tackle racism and promote racial equality in Australia.
The second aspect of the strategy is a national public awareness and educative campaign under the existing Racism. It Stops with Me banner.
The Albanese Government is funding Australia’s independent and accredited Human Rights Commission to deliver this strategy. We know that the Commission is best placed to deliver a high impact and wide-reaching anti-racism campaign, levering existing tools, experiences and community networks developed through its recent anti-racism work.
CONCLUSION
Racism has a significant economic, social and national impact on Australia and the Government is committed to combatting racism and its impacts.
We are committed to maintaining the integrity of our anti-discrimination framework, and ensuring it continues to meet the needs of the Australian community today. This is in keeping with the legacy handed down and expanded upon by Australian Labor governments of generations past.
We look forward to working alongside you, and all of our fellow Australians to author this next essential chapter.
Thank you.
ENDS
