State of the World's Minorities and Indigenous Peoples 2014 - Australia

Since the colonization of Australia began in the eighteenth century, its Aboriginal and Torres Strait Islander communities have suffered generations of violence and marginalization. Indigenous Australians remain in situations of extreme disadvantage compared to non-indigenous Australians across a range of human rights indicators. Serious over-representation of indigenous people in the prison system is an issue of ongoing concern; according to Amnesty International, indigenous youth make up 59 per cent of those in juvenile detention nationwide, while the indigenous community constitutes only 2 per cent of the population as a whole. Health outcomes are also considerably lower for Aborigines and Torres Strait Islanders than their non-indigenous counterparts.

Nevertheless, there have been signs of progress. In 2013 the Australian government unanimously passed legislation recognizing the Aboriginal and Torres Strait Islander communities as the first inhabitants of Australia. This historic piece of legislation, the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, is the first law to officially recognize the status of indigenous peoples in Australia and directly refute in legislative terms the doctrine of terra nullius ('empty land') upon which Australia was founded – a legal fiction which long enabled the denial of indigenous rights. The Act is an interim step on the path towards a possible referendum for constitutional change and provides that a review of support for a referendum to amend the Constitution be undertaken within 12 months of it coming into force.

The year 2013 also saw the first analysis of the results of the 2011 Australian census. The Aboriginal and Torres Islander population of Australia was estimated to be 670,000, or 3 per cent of the total Australian population. This was an increase from the data from 2006, with the new figures indicating that the estimated size of the indigenous population was 30 per cent larger than the previous estimate. It has been suggested that the reason for this significant increase is due to improved data collection in collaboration with indigenous communities, as well as a greater willingness of Aborigines and Torres Strait Islanders to identify their status and heritage.

The government has undertaken some initiatives to reduce social disparities for its indigenous population, such as the 2008 Closing the Gap programme, which set specific targets to address indigenous disadvantage across a range of indicators including life expectancy, child mortality, education and employment. The 2013 annual government report indicated that the target for a 95 per cent enrolment rate in early childhood education for indigenous children would be met. Furthermore, the report noted that the target for under-five mortality was also on track to be met, with significant progress made to halve the gap between indigenous and non-indigenous under-five mortality by 2018. However, improvement is still necessary for a number of other indicators, including literacy, employment and life expectancy.

Minorities and migration

Australia's history has been strongly shaped by migration, beginning with the arrival of British settlers 200 years ago, but more recently expanding, since the end of the Second World War, to encompass widespread migration from southern Europe, in particular Greece, Italy and Yugoslavia. Over the past two decades immigration to Australia has further diversified, with substantial migration from Asia further changing the population composition.

According to the 2011 census, 46 per cent of the population is comprised of first- or second-generation Australians. A 2013 study on social cohesion, however, indicated that despite its decidedly multi-ethnic society, there has been a marked increase in reported experience of discrimination, especially among Australian minority groups of non-English speaking backgrounds.

One significant development is the ongoing hostility both in rhetoric and official policy towards refugees and asylum seekers. The issue of asylum seekers arriving by boat continued to monopolize Australian politics in 2013, including leading up to and in the aftermath of the federal elections. Indeed, following a number of boat arrivals and numerous maritime tragedies involving loss of life at sea, 2013 saw the adoption of new legislative and policy arrangements which have made it even more difficult for people arriving by boat to seek asylum in Australia.

These included the Regional Resettlement Arrangement brokered with the Papua New Guinea (PNG) government. Known as the 'PNG Solution', it stipulated that asylum seekers arriving in Australia by boat after July 2013 will be sent to the remote Papua New Guinea island of Manus for offshore processing. Furthermore, the agreement stipulated that even those found to have a refugee claim would be denied settlement in Australia, instead being resettled in Papua New Guinea. The new government, elected in September 2013 under the leadership of Tony Abbott, has maintained this arrangement and introduced a highly prescriptive 'code of conduct' for asylum seekers living in the community on bridging visas that, if breached, may result in reduced payments, visa cancellation, detention or transfer to an offshore processing centre.

The asylum detention facility on Manus Island has been heavily criticized by human rights groups. Following unrest in February 2014 which left one man dead, a Papua New Guinea court-led enquiry has been instituted into conditions at the detention centre.

It is significant to note that all sides of Australian politics appear to be locked in a cycle of increasing anti-asylum seeker rhetoric, using inflammatory and pejorative terms such as 'boat people', 'illegals' and 'queue jumpers'. Such negative discourse at the highest level and across the political spectrum has, according to opinion polls, generated significant anti-asylum seeker sentiments within the broader public. In a poll published in January 2014, 60 per cent wanted the government to be even tougher on asylum seekers.

This anti-asylum seeker discourse may also be reinforcing discrimination against refugee and minority communities in Australia. For example, in a recent survey of more than 350 South Sudanese refugees, all with a legal right to Australian citizenship, every respondent reported being discriminated against. Three-quarters mentioned an incident, especially concerning employment, even before being asked. It is important to consider how this anti-asylum seeker discourse and rhetoric may undermine Australia's multiculturalism. Although direct reasons for trends in discrimination are hard to pinpoint, recent studies reveal higher rates of discrimination reported by minorities and migrant communities, as well as lower levels of social cohesion.

Australia and hate speech

In this context, the potential for discriminatory language and violence against indigenous and minority groups in the country appears to have been heightened. The year 2013 saw a significant increase in the number of complaints made by members of the Australian public about ethnic discrimination, with the Australian Human Rights Commission reporting a remarkable 59 per cent rise in the number of complaints of racist hatred in 2012-13 compared to the previous year. Cyber-racism accounted for 41 per cent of these incidents, up from only 17 per cent of racist hatred complaints in the previous year.

Australian federal legislation currently makes it unlawful to say something that is reasonably likely to 'offend, insult, humiliate or intimidate' another person or group because of their ethnicity. The Racial Hatred Act (1995) amends the Racial Discrimination Act (1975) and allows people to complain about publicly offensive or abusive behaviour based on racism. The law contains an objective test: for speech to be considered unlawful, it must be proven reasonably likely to have caused harm. Furthermore, as the aim of the law is to stop incitement of hatred, it will apply only to things said or done in public, and not to private statements. The courts have also played an important role in further defining what constitutes vilification in Australia, asserting that to be unlawful, the relevant language must be 'profound and serious' and go beyond 'mere personal hurt, harm or fear'. Regarding freedom of expression, the courts have long recognized that the freedom can be limited by laws that are reasonably appropriate and adapted to serving a legitimate end in a manner that is compatible with a democracy. One such limitation is vilification.

One challenge to the effective implementation of the Act, however, is the inconsistency in the application of hate speech law within the country. While all Australian States and the Australian Capital Territory have anti-racism legislation that operates in ways similar to the federal Racial Discrimination Act, their approaches to vilification and other conduct based on hate are not uniform, with some providing civil remedies only while others provide both civil relief and criminal penalties.

For instance, the Northern Territory has no anti-vilification provisions at all and effectively relies on federal legislation. In 2007, however, the federal government introduced the controversial Northern Territory National Emergency Response (NTER) legislation; the Racial Discrimination Act was suspended with regard to steps taken under the new laws in the Northern Territory. NTER measures included income management; compulsory leases on land; bans on alcohol and pornography; and the setting aside of customary law in sentencing and bail procedures.

The NTER package was purportedly to protect Aboriginal children from abuse, although the initiative was strongly criticized as discriminatory. The NTER legislation was subsequently replaced in 2012 with a new legislative scheme known as the Stronger Futures in the Northern Territory Act. Some measures were extended beyond the Northern Territory. Although the Stronger Futures Act did not suspend the operation of the Racial Discrimination Act, the Parliamentary Joint Committee on Human Rights expressed concern in 2013 about whether the new Act complies with Australia's human rights obligations and the lack of full involvement of affected Aboriginal communities.

In New South Wales (NSW), too, a legislative inquiry was conducted in 2013 into the effectiveness of its anti-vilification law as it has so far not resulted in a successful prosecution. The final report recommended that the NSW government undertake a range of reforms, including police training and a review of current penalties, to strengthen its provisions.

Two high-profile incidents in 2013 involving racist slurs in sport put the issue of hate speech back on the national agenda. Although both people apologized promptly for their remarks, and the media outlet in one of the cases swiftly condemned the language and suspended the broadcaster, the cases highlighted the ongoing issue of racism against indigenous people in sport. One of the targeted sportsmen, Adam Goodes, was later named Australian of the Year for his leadership and advocacy in the fight against racism both on the sporting field and within society more broadly.

Furthermore, despite a strong legislative framework, one high-profile legal case in 2011 reopened the issue of the adequacy of the Australian anti-vilification legislation. A prominent right-wing journalist wrongly alleged that a group of Australians were falsely claiming indigenous identity to gain access to benefits. The people in question were in fact indigenous, and the courts held that the failure of the journalist to adequately check his facts meant that he had published the article without good faith, and it was thus considered vilification.

The case sparked national attention, and following the 2013 elections, the newly appointed Attorney General proposed to repeal section 18C of the Racial Discrimination Act on vilification and narrow its definition, in a move he claimed would encourage open debate without fear of prosecution. Moreover, it is also notable that the Liberal government appointed a new Human Rights Commissioner, who has promised to 'refocus' the Human Rights Commission on defending free speech rather than concentrating on anti-discrimination work. The appointee formerly worked as policy director for a conservative think tank that specifically called for the abolition of the Human Rights Commission.

Numerous community-based organizations representing different minority and indigenous community groups have spoken out against the proposed reforms. Nevertheless, the government is pushing forward with its proposal, with a draft law to be tabled in parliament in 2014. It thus appears that with the new Liberal government, Australia may be shifting the balance between freedom from hate and freedom of expression, with potentially troubling implications for the protection of minority and indigenous communities.

One positive initiative of the former federal government during 2013 to tackle violence and discrimination was its launch of the nationwide campaign, 'Racism, it stops with me.' After holding extensive consultations in 2012, the three-year campaign, which has been continued by the new government and is being implemented by the Australian Human Rights Commission, focuses on public awareness, education, resources and youth engagement. The campaign will not only provide a central coordination point for anti-racism activities across the country but will also engage organizations and individuals to develop anti-racism strategies, and develop tools and materials to promote anti-racism messages.

Another important development in Victoria in 2013 was the launch of an inquiry by state police into ethnic discrimination as a result of the settlement of a federal discrimination case initiated by 17 young male African Australians against the state police force for ethnic profiling. After reaching a settlement on the eve of what promised to be an eight-week trial, the Victoria police agreed to invite the general public to take part in an inquiry that would examine its policy on police checks and its cross-cultural training system. On 30 December 2013, the results of the inquiry were published in a report, Equality Is Not the Same, and a three-year action plan launched to address community concerns about discriminatory policing and ethnic profiling in the police force.