Legal and Non-Legal Responses (HSC SSCE Legal Studies): Revision Notes
Legal and Non-Legal Responses
Introduction
Migrants face significant barriers when accessing the legal system in Australia. Limited knowledge of legal rights and court processes, fear of police, and financial constraints often prevent migrants from pursuing their rights through formal legal channels. These barriers can allow criminal actions and civil injustices against migrants to occur without penalty. However, Australia has developed both legal and non-legal responses to protect migrants and address disadvantage.
The barriers faced by migrants in accessing justice are interconnected and mutually reinforcing. For example, limited knowledge of rights can compound financial constraints, as migrants may not know where to seek affordable legal assistance. Understanding these barriers is essential for evaluating the effectiveness of legal and non-legal responses.
Legal responses
Legal responses to migrants include state and federal legislation as well as international treaties. These provide a framework for protecting migrants from discrimination and ensuring their basic human rights are upheld.
Commonwealth legislation
Racial Discrimination Act 1975 (Cth)
This Act prohibits any behaviour that discriminates against a person because of their race. To successfully claim under this Act, a person must prove they have been treated differently or unequally because of their race, colour or ethnic origin.
The Act distinguishes between two types of discrimination, which have different standards of proof:
- Direct discrimination: Treating someone less favourably explicitly because of their race (easier to prove)
- Indirect discrimination: Applying a rule or requirement that appears neutral but disadvantages people of particular races (harder to prove)
Understanding this distinction is crucial because indirect discrimination is often more difficult to establish in legal proceedings, even though it can be equally harmful to migrants.
Racial Hatred Act 1995 (Cth)
This Act amended the Racial Discrimination Act 1975 to outlaw any act done because of a person's or group's race, colour or national or ethnic origin that is likely to:
- Offend
- Insult
- Humiliate
- Intimidate
Australian Human Rights Act 1986 (Cth)
This Act established the Australian Human Rights Commission (AHRC) (originally called the Human Rights and Equal Opportunity Commission or HREOC). The Act:
- Sets out how individuals can make complaints to the Commission
- Defines unlawful discrimination as acts, omissions or practices that are unlawful under federal Acts prohibiting discrimination based on race, sex, age or disability
- Provides legal redress for discriminatory conduct
How the complaints process works:
- Migrants who believe they have suffered discrimination contact the Commission
- If sufficient evidence exists, the Race Discrimination Commissioner investigates
- The Commissioner cannot force people to stop discriminatory behaviour
- The Commissioner can only make recommendations and mediate disputes
- If mediation fails, the matter is referred to the Federal Court
- The Federal Court makes a legally binding decision and can award compensation
This process highlights both the accessibility of the system (easy initial complaint) and its limitations (lack of enforcement power at the Commission level).
NSW legislation
Anti-Discrimination Act 1977 (NSW)
This Act prohibits direct and indirect discrimination in four key areas:
- Employment (e.g., no person should be denied promotion because of race)
- Provision of goods and services
- Education
- Entry to or membership of a registered club
How the complaints process works:
- A migrant who feels they have suffered discrimination contacts the Anti-Discrimination Board
- The Board investigates the claim
- The Board organises mediation between the two parties
- If the claim is serious and proven, compensation will be awarded
International treaties
International law protects the basic human rights of all people and offers protection to migrants. This is particularly important because ethnic minorities often lack the political power to assert their rights domestically. Australia is party to several international treaties, including:
International Covenant on Civil and Political Rights (1966) (ICCPR)
- Asserts the right to vote
- Protects freedom of expression
- Guarantees the right to a fair trial
International Covenant on Economic, Social and Cultural Rights (1976) (ICESCR)
- Protects basic needs including shelter, education and employment
- Ensures people can live a dignified existence
Convention on the Elimination of All Forms of Discrimination Against Women (1979) (CEDAW)
- Protects women's rights
- Relevant to female migrants
Convention Relating to the Status of Refugees (1951)
- Protects the rights of refugees
- Sets out the definition of a refugee
Convention on the Elimination of All Forms of Racial Discrimination (1965) (CERD)
- Gives special protection to ethnic minorities, including migrants
- Has its own supervisory committee to hear complaints
How international complaints work:
UN committees (such as the Human Rights Committee or CERD committee) can hear complaints about human rights abuses. However, there are significant limitations:
- Individuals can only lodge complaints if Australia has acceded to the optional protocol for that treaty
- All domestic avenues must be exhausted first (potentially including the High Court)
- Decisions of UN committees are not enforceable in Australia
- However, they carry considerable persuasive force
Australia acceded to:
- The First Optional Protocol to the ICCPR in 1991
- The complaints process under CERD in 1993
- The Optional Protocol to CEDAW
The requirement to exhaust all domestic remedies means that international complaints are often a last resort and can take many years to resolve.
Non-legal responses
Non-legal responses involve government initiatives, community organisations, and support services that help migrants adapt to Australian society and access their rights.
Government action
Federal, state and local governments have implemented various measures to assist migrants, including:
Information and communication:
- Printing important information in many different languages
- Providing multilingual information on the internet
- Offering interpreter services where possible
- Providing a telephone interpreter service
Education and recognition:
- Providing special English classes for children and adults (though many are now run by volunteers due to funding cuts)
- Providing for recognition of overseas qualifications
Policy development:
- Developing multicultural policies and principles
- Providing settlement programs to assist newly arrived migrants
These government actions address the information barrier that migrants face. By providing multilingual resources and interpreter services, governments help ensure that migrants can access essential services and understand their rights, even if they are not yet proficient in English.
Australian Human Rights Commission (AHRC)
The AHRC is a national government body that plays a crucial role in protecting migrants' rights. Its key functions include:
Education and awareness:
- Running educational programs for government and business sectors
- Conducting public awareness programs for the general community
- Promoting the message that human rights are essential and discrimination must be eliminated
- Educating the public about human rights
Investigation and resolution:
- Investigating complaints about human rights breaches under anti-discrimination legislation
- Attempting to resolve complaints through mediation
National Inquiry into Children in Immigration Detention (2002)
The AHRC conducted a significant inquiry examining whether Australian laws on detaining children complied with international obligations, particularly the Convention on the Rights of the Child (1989). The inquiry:
- Visited all immigration detention centres in Australia
- Received over 340 submissions
- Held public hearings across multiple states
- Heard testimony from experts with experience dealing with children in detention
- Ran confidential focus groups with former detainee children
The inquiry's report, "A Last Resort?" (released May 2004), found Australia's immigration detention policy failed on multiple levels:
- Protection of children's mental health
- Provision of adequate health care and education
- Protection of unaccompanied children
- Protection of children with disabilities
These findings demonstrated a significant gap between Australia's international obligations under the Convention on the Rights of the Child and its actual treatment of detained migrant children.
Key recommendations centred on seven principles:
- Children can only be detained as a last resort and for the shortest appropriate time
- The best interests of the child must be a primary consideration
- Unaccompanied children must receive special assistance
- Children have the right to family unity
- Children must be treated with humanity and respect
- Children have the right to development and recovery from past trauma
- Asylum-seeking children must receive appropriate assistance
These principles reflect international human rights standards and emphasise child welfare over administrative convenience.
The Howard government was slow to respond, and it was not until July 2005 that all children were released from detention centres. However, this issue remains controversial - at the end of June 2015, there were still 215 children detained in immigration centres.
Legal assistance
Pursuing legal rights is expensive for everyone, but migrants face particular challenges in accessing legal assistance.
Limitations:
- Very little legal or financial assistance is available specifically for migrants, prospective migrants and asylum seekers
- The NSW Refugee Advice and Casework Service closed in 1996 due to lack of funding
- The Immigration Advice and Application Assistance Scheme provides advice during the application process but cannot assist with appeals
These limitations mean that many migrants cannot afford to pursue valid legal claims, even when strong evidence of discrimination or rights violations exists.
Available options:
Legal Aid NSW:
- Migrants who meet eligibility criteria can apply for legal aid
- Eligibility includes a means test (based on income)
- May also include a merits test (whether the case is likely to succeed)
- Can represent persons who claim they have experienced racial discrimination
LawAccess NSW:
- Provides telephone information, referral and advice
- Explains how to apply for legal aid
Community legal centres:
- Offer legal advice and assistance in some matters
- Provide pro bono legal services in some cases
Supporting multiculturalism
The Australian government has established various bodies and initiatives to promote multiculturalism, though the focus and funding have fluctuated over time.
Historical development:
Australian Institute of Multicultural Affairs (AIMA) (1979):
- Established by Commonwealth Parliament
- Aimed to raise awareness of cultural diversity
- Promoted social cohesion, understanding and tolerance
- Replaced by the Office of Multicultural Affairs in 1986
Office of Multicultural Affairs (1986):
- Part of the Department of the Prime Minister
- Gave multiculturalism national prominence
- Has since closed
National Agenda for a Multicultural Australia (1989):
- Statement of policies and goals
- Supported by all political parties
- Introduced measures to recognise cultural diversity including:
- Expansion of SBS television services
- Establishment of the National Office of Overseas Skills Recognition
Australian Multicultural Advisory Council (AMAC) (1994-1999):
- Tasked with recommending multicultural policies
- Released "Australian Multiculturalism for a New Century: Towards Inclusiveness"
- Ceased operations in 1999
A New Agenda for Multicultural Australia (1999):
- Federal government's response to AMAC's report
- Led to establishment of the Council for Multicultural Australia
Council for Multicultural Australia (2000):
- Established to implement the New Agenda
- Given a three-year timeframe
- Superseded by the Australian Multicultural Council (overseen by the Minister for Social Services)
Current challenges:
- The idea of multiculturalism has lost some force over the years
- Government spending cuts in areas such as English language classes
- Some argue that legislation lacks sufficiently severe penalties for racist behaviour
- Australia's multicultural policy has been limited in its effectiveness
The shifting political landscape and changing priorities have affected the consistency and funding of multicultural initiatives, demonstrating that non-legal responses can be vulnerable to policy changes.
Use of interpreters
Translating and Interpreting Service (TIS)
The TIS is provided by the Department of Immigration and Border Protection (DIBP) and operates 24 hours a day. It offers:
Free services:
- Telephone interpreting
- Document translation
- Face-to-face translation for certain organisations (e.g., medical practices, trade unions)
Fee-based services:
- Three-way interpreting service (English-speaking party, non-English-speaking party, and TIS interpreter)
- Can be conducted face-to-face or by telephone
The TIS is one of the most accessible and practical non-legal responses for migrants. By operating 24/7 and providing free telephone interpreting, it helps overcome the language barrier that prevents many migrants from accessing essential services and exercising their legal rights.
Group action
Migrants often need to form groups to effectively advocate for their rights and force action. However, this approach faces significant challenges:
How it works:
- Migrants form groups to organise demonstrations against unfair actions
- Groups can seek help from non-government bodies like Amnesty International
- These organisations lobby governments and the United Nations on behalf of migrants
Challenges:
- Some cultural groups have very small numbers in Australia
- Communities may be separated by large distances
- Difficult to create effective protests with small numbers
- National and international organisations have many competing demands on their time and financial resources
These challenges mean that group action is often more effective for larger, more established migrant communities than for smaller or newly arrived groups.
Other organisations
Non-government bodies provide crucial support networks for new migrants:
Migrant resource centres:
- Run by sponsored community groups
- Supply information and assistance to new migrants
Charitable organisations:
- St Vincent de Paul
- The Salvation Army
- Provide emergency shelter, food and clothing
Church and community groups:
- Offer support networks
- Assist with settlement and integration
Remember!
Key points to remember:
- Legal responses include the Racial Discrimination Act 1975 (Cth), Racial Hatred Act 1995 (Cth), Anti-Discrimination Act 1977 (NSW), and international treaties such as ICCPR, ICESCR, CEDAW, Convention on Refugees, and CERD
- Direct discrimination is easier to prove than indirect discrimination because it involves explicit unequal treatment based on race
- The Australian Human Rights Commission (AHRC) investigates complaints, mediates disputes, and educates the public, but cannot force people to stop discriminatory behaviour
- Non-legal responses include government services (multilingual information, interpreters, English classes, settlement programs), multiculturalism initiatives, legal assistance, and support from community organisations
- The Translating and Interpreting Service (TIS) operates 24 hours a day and provides free telephone interpreting and document translation services
- Administrative review of migration decisions is available through the Administrative Appeals Tribunal (AAT), which conducts merits reviews and can change decisions if appropriate
- Appeals from the AAT can only be made to the Federal Circuit Court on matters of law, not on the facts of the case
- Despite legal protections, migrants face significant barriers to accessing justice, including limited knowledge of rights, fear of police, financial constraints, and language barriers
Key terms:
- Direct discrimination: Treating someone less favourably explicitly because of their race, colour or ethnic origin
- Indirect discrimination: Applying a rule or requirement that appears neutral but disadvantages people of particular races
- Racial discrimination: Any behaviour that discriminates against a person because of their race
- Merits review: A tribunal looks afresh at the facts of a case, considers whether the final decision was correct, and can change the decision if appropriate
- Unlawful discrimination: Acts, omissions or practices that are unlawful under federal Acts prohibiting discrimination based on race, sex, age or disability
Exam technique:
When asked to evaluate the effectiveness of legal and non-legal responses to migrant disadvantage:
- Consider both successes (e.g., establishment of anti-discrimination laws, AHRC, merits review system) and limitations (e.g., limited enforcement powers, funding cuts, high cost of legal representation)
- Use specific examples such as the National Inquiry into Children in Immigration Detention or the evolution of the administrative review system
- Consider the perspective of different stakeholders (migrants, government, community organisations)
- Make a balanced judgment about overall effectiveness, acknowledging improvements while recognising ongoing challenges