The failure of Australian legislation on indirect discrimination to detect the systemic racism which prevents Aboriginal people from fully participating in the workforce

Government figures put the current indigenous unemployment rate at around 23%, 3 times the unemployment rate for other Australians. This thesis aims to assess whether Australian indirect discrimination legislation can provide a remedy for one of the causes of indigenous unemployment - the systemic discrimination which can result from the mere operation of established procedures of recruitment and hiring. The impact of those practices on indigenous people is examined in the context of an analysis of anti-discrimination legislation and cases from all Australian jurisdictions from the time of the passing of the Racial Discrimination Act by the Commonwealth in 1975 to the present. The thesis finds a number of reasons why the legislation fails to provide equality of opportunity for indigenous people seeking to enter the workforce. In nearly all jurisdictions it is obscurely drafted, used mainly by educated middle class white women, and provides remedies which tend to be compensatory damages rather than change to recruitment policy. White dominance of the legal process has produced legislative and judicial definitions of "race" and "Aboriginality" which focus on biology rather than cultural difference. In the commissions and tribunals complaints of racial discrimination are often rejected on the grounds of being "vexatious" or "frivolous", not reaching the required standard of proof, or not showing a causal connection between race and the conduct complained of. In all jurisdictions the cornerstone of liability is whether a particular employment term, condition or practice is reasonable. The thesis evaluates the approaches taken by appellate courts, including the High Court, and concludes that there is a trend towards an interpretation of reasonableness which favours employer arguments such as economic rationalism, the maintenance of good industrial relations, managerial prerogative to hire and fire, and the protection of majority rights. The thesis recommends that separate, clearly drafted legislation should be passed to address indigenous disadvantage and that indigenous people should be involved in all stages of the process.

Disrupting the new orthodoxy : emergency intervention and Indigenous social policy

This article develops a critical analysis of the ideological framework that informed the Australian Federal government’s 2007 intervention into Northern Territory Indigenous communities (ostensibly to address the problem of child sexual abuse). Continued by recently elected Prime Minister, Kevin Rudd, the NT ‘emergency response’ has aroused considerable public debate and scholarly inquiry. In addressing what amounts to a broad bi-partisan approach to Indigenous issues we highlight the way in which Indigenous communities are problematised and therefore subject to interventionist regimes that override differentiated Indigenous voices and intensify an internalised sense of rage occasioned by disempowering interventionist projects. We further argue that in rushing through the emergency legislation and suspending parts of the Racial Discrimination Act, the Howard and Rudd governments have in various ways perpetuated racialised and neo-colonial forms of intervention that override the rights of Indigenous people. Such policy approaches require critical understanding on the part of professions involved most directly in community practice, particularly when it comes to mounting effective opposition campaigns. The article offers a contribution to this end.

Special Measures in Indigenous Welfare Reform: Examining the Cape York Trial

The Cape York Welfare Reform (‘CYWR’) trial was due to expire at the end of 2011. In October 2011, the Queensland Government voted to extend the trial until the end of 2013. In November 2011, the Federal Minister for Indigenous Affairs announced changes to the Social Security (Administration) Act 1999 (Cth) that will extend another similar welfare reform, the School Enrolment and Attendance through Welfare Reform Measure (‘SEAM’), throughout other parts of Australia. This article examines the CYWR with reference to the Racial Discrimination Act 1975 (Cth) (‘RDA’), using the data available in the publications from the Family Responsibilities Commission (‘FRC’).It finds no clear evidence that the reforms have been effective in improving social conditions thus far and, as such, serious concerns as to whether the CYWR breaches the RDA.

The judgments of Justice Lionel Murphy

Member of High Court Bench; includes references to Aboriginal voting rights; protection of Aboriginal sites in Franklin Dam Case; authors statements from cases - Onus v Alcoa of Australia Ltd, Portland; Neal v Queen, Yarrabah, Koowarta v BjelkePeterson, and Racial Discrimination Act 1975, Archer River; Queen v Toohey (Kenbi, Cox Peninsula); Coe v Commonwealth; Veen v Queen.

Editorials: A different kind of treatment

Health professionals' duty of care includes combating racism in society as well as in health care settings. The Australian Government's proposed changes to the Racial Discrimination Act 1975 and the repeal of section 18C has transfixed national debates on legally defining racial discrimination.1 Under these changes, racial discrimination would no longer include acts that “offend, insult, humiliate or intimidate” a person based on the person's race, colour or national or ethnic origin and instead be limited to acts that “incite hatred” or “cause fear of physical harm”.2 These proposed changes have been framed in the context of enabling “free speech”, yet, evidence presented in this issue of the Journal shows that they have potential to cause harm. In this issue, Kelaher and colleagues highlight the prevalence of racism as experienced by Indigenous Australians and its deleterious effects on mental health.3 Alarmingly, almost every Aboriginal Victorian participating in this study reported an experience of racism in the preceding 12 months, which included jokes, stereotypes, verbal abuse and exclusionary practices. The experiences of racism reported here neither incited hatred nor caused fear of physical harm, yet resulted in harm such as psychological distress, especially when meted out in our health care system. These findings are a stark reminder that racism is indeed an important health issue, and as health professionals, our duty of care extends to contributing to these broader policy discussions...

Andrew Bolt isn't a racist, but ...

The Coalition's push to make changes to the Racial Discrimination Act was in part a response to a court ruling that Andrew Bolt had breached the Act over his comments about Aboriginal Australians. Here, Chelsea Bond revisits the newspaper columnist's treatment of Aboriginality, explaining that race is more than skin deep.

Travelling bones: The repatriation of Indigenous ancestral remains

In the album Journey, Archie Roach -- the Australian Indigenous singer-songwriter hailing from Mooroopna in Victoria - has a melancholy song called ‘Travell’n Bones.' It is about the repatriation of Indigenous ancestral remains to their rightful home. This Chapter considers the legal, ethical, and cultural conflicts over Australian indigenous remains being held in museums, in Australia, the United Kingdom, the European Union, and the United States. James Nason comments: ‘The explosion of legal and extra legal attention on issues of cultural property and heritage was born of the frustration and anger of indigenous peoples whose rights and perspectives about cultural property and heritage issues had been largely absent and essentially unwanted by the museum of community.' Part I focuses upon disputes in Australia involving the repatriation of Indigenous Australian remains. In Bropho v HREOC, there was controversy over a cartoon, mocking the repatriation of the remains of Yagan, an Indigenous warrior, to Western Australia. There was a discussion about the operation of the Racial Discrimination Act 1975 (Cth), and the exemptions available from the operation of the regime. Part II considers the efforts by The Te Papa Tongarewa - the Museum of New Zealand - to repatriate Maori and Moriori ancestral remains to New Zealand, and to iwi communities of origin. The conclusion considers the relevance of the United Nations Declaration on the Rights of Indigenous Persons 2007, and issues raised by ventures such as the Genographic Project.

Educational accountability tests, social and legal inclusion approaches to discrimination for students with disability : a national case study from Australia

The UN Convention on the Rights of Persons with Disability (CRPD) promotes equal and full participation by children in education. Equity of educational access for all students, including students with disability, free from discrimination, is the first stated national goal of Australian education (MCEETYA 2008). Australian federal disability discrimination law, the Disability Discrimination Act 1992 (DDA), follows the Convention, with the federal Disability Standards for Education 2005 (DSE) enacting specific requirements for education. This article discusses equity of processes for inclusion of students with disability in Australian educational accountability testing, including international tests in which many countries participate. The conclusion drawn is that equitable inclusion of students with disability in current Australian educational accountability testing in not occurring from a social perspective and is not in principle compliant with law. However, given the reluctance of courts to intervene in education matters and the uncertainty of an outcome in any court consideration, the discussion shows that equitable inclusion in accountability systems is available through policy change rather than expensive, and possibly unsuccessful, legal challenges.

Indigenous Intellectual Property: A Handbook of Contemporary Research

Taking an interdisciplinary approach unmatched by any other book on this topic, this thoughtful Handbook considers the international struggle to provide for proper and just protection of Indigenous intellectual property (IP). In light of the United Nations Declaration on the Rights of Indigenous Peoples 2007, expert contributors assess the legal and policy controversies over Indigenous knowledge in the fields of international law, copyright law, trademark law, patent law, trade secrets law, and cultural heritage. The overarching discussion examines national developments in Indigenous IP in the United States, Canada, South Africa, the European Union, Australia, New Zealand, and Indonesia. The Handbook provides a comprehensive overview of the historical origins of conflict over Indigenous knowledge, and examines new challenges to Indigenous IP from emerging developments in information technology, biotechnology, and climate change. Practitioners and scholars in the field of IP will learn a great deal from this Handbook about the issues and challenges that surround just protection of a variety of forms of IP for Indigenous communities. Preface The Legacy of David Unaipon Matthew Rimmer Introduction: Mapping Indigenous Intellectual Property Matthew Rimmer PART I INTERNATIONAL LAW 1. The United Nations Declaration on the Rights of Indigenous Peoples: A Human Rights Framework for Indigenous Intellectual Property Mauro Barelli 2. The WTO, The TRIPS Agreement and Traditional Knowledge Tania Voon 3. The World Intellectual Property Organization and Traditional Knowledge Sara Bannerman 4. The World Indigenous Network: Rio+20, Intellectual Property, Indigenous Knowledge, and Sustainable Development Matthew Rimmer PART II COPYRIGHT LAW AND RELATED RIGHTS 5. Government Man, Government Painting? David Malangi and the 1966 One-Dollar Note Stephen Gray 6. What Wandjuk Wanted Martin Hardie 7. Avatar Dreaming: Indigenous Cultural Protocols and Making Films Using Indigenous Content Terri Janke 8. The Australian Resale Royalty for Visual Artists: Indigenous Art and Social Justice Robert Dearn and Matthew Rimmer PART III TRADE MARK LAW AND RELATED RIGHTS 9. Indigenous Cultural Expression and Registered Designs Maree Sainsbury 10. The Indian Arts and Crafts Act: The Limits of Trademark Analogies Rebecca Tushnet 11. Protection of Traditional Cultural Expressions within the New Zealand Intellectual Property Framework: A Case Study of the Ka Mate Haka Sarah Rosanowski 12 Geographical Indications and Indigenous Intellectual Property William van Caenegem PART IV PATENT LAW AND RELATED RIGHTS 13. Pressuring ‘Suspect Orthodoxy’: Traditional Knowledge and the Patent System Chidi Oguamanam, 14. The Nagoya Protocol: Unfinished Business Remains Unfinished Achmad Gusman Siswandi 15. Legislating on Biopiracy in Europe: Too Little, too Late? Angela Daly 16. Intellectual Property, Indigenous Knowledge, and Climate Change Matthew Rimmer PART V PRIVACY LAW AND IDENTITY RIGHTS 17. Confidential Information and Anthropology: Indigenous Knowledge and the Digital Economy Sarah Holcombe 18. Indigenous Cultural Heritage in Australia: The Control of Living Heritages Judith Bannister 19. Dignity, Trust and Identity: Private Spheres and Indigenous Intellectual Property Bruce Baer Arnold 20. Racial Discrimination Laws as a Means of Protecting Collective Reputation and Identity David Rolph PART VI INDIGENOUS INTELLECTUAL PROPERTY: REGIONAL PERSPECTIVES 21. Diluted Control: A Critical Analysis of the WAI262 Report on Maori Traditional Knowledge and Culture Fleur Adcock 22. Traditional Knowledge Governance Challenges in Canada Jeremy de Beer and Daniel Dylan 23. Intellectual Property protection of Traditional Knowledge and Access to Knowledge in South Africa Caroline Ncube 24. Traditional Knowledge Sovereignty: The Fundamental Role of Customary Law in Protection of Traditional Knowledge Brendan Tobin Index

Systemic racism: the hidden barrier to educational success for Indigenous school students

Explanations for poor educational experiences and results for Australian Indigenous school students have, to a great extent, focused on intended or conscious acts or omissions. This paper adopts an analysis based on the legislation prohibiting indirect racial discrimination. Using the elements of the legislation and case law it argues that apparently benign and race-neutral policies and practices may unwittingly be having an adverse impact on Indigenous students' education. These practices or policies include the building blocks of learning, a Eurocentric school culture. Standard English as the language of assessment, legislation to limit schools' legal liability, and teachers' promotions.

Way-Finding in the Built Environment

The Way-fi nding in the Built Environment project is a worldwide review identifying those way-fi nding systems and technologies that could be used to make it easier and safer for people with a sensory impairment (and in particular a vision impairment) to fi nd their way around buildings and large public spaces. The project makes recommendations on how these technologies and systems may be incorporated, by law or otherwise, into Australia’s building and construction practice. Way-fi nding aims to ensure that people with a sensory impairment know where they are in a building or an environment, where their desired location is, and how to get there from their present location. It is unlawful to discriminate against people with a disability under the Disability Discrimination Act 1992.

Inclusive Education Statement - policy analysis

This study analyses the Inclusive Education Statement – 2005, Education Queensland. (Appendix 1). The Statement was a product of the Queensland State Government response to Federal Legislation. The Federal Disability Discrimination Act (DDA), 1992 and the subsequent Standards for Education 2005, sought to eliminate discrimination against people with disabilities. Under Section 22 of the Act, it became unlawful for an educational authority to discriminate against a person on the grounds of the person’s disability.