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Brooklyn Journal of International Law

Jillian Rudge

Abstract

Australia’s Racial Discrimination Act (RDA) is a federal statute prohibiting behavior that offends, insults, humiliates, or intimidates people based on their race, nationality, ethnicity, or immigration status. It appropriately limits the right to freedom of expression where the exercise of that right encroaches on other, equally fundamental rights to equality and freedom from discrimination. The RDA is one of Australia’s few human rights laws focused on fighting racism. It is especially important for protecting the rights of minorities since Australia lacks a constitutional or federal bill of rights. Unfortunately, in 2014 and 2015, conservative politicians called for a repulsion of key RDA provisions in the interest of promoting freer speech. Had this proposal been successful, Australia would have reinforced its “right” to be bigoted, while depriving its racial minorities of their only legal recourse for Australia’s pervasive racism. This Note argues that shrinking Australia’s human rights framework would most acutely impact Aboriginal and Torres Strait Islander peoples, the traditional custodians of Australia, who have been marginalized and subjugated by social, institutional, and systemic racism since the time of British colonization. The RDA controversy illustrates the need for Australia to augment, rather than shrink, its human rights framework so it can better meet its human rights obligations toward Australian minorities. Improving and expanding the RDA, and introducing a federal or constitutional bill of rights, will allow Australia to adequately protect the human rights to equality and freedom from discrimination, in balance with the “right” to be bigoted.

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