Dr Jennifer Nielsen - Challenging racism: breaching the formality of anti-discrimination jurisprudence - 15 March

Though we never actually see ‘race’, our ‘ideas about race’ attribute social meaning (Hollinsworth 2006) so that the experience of ‘race’ can be real and lethal (Pettman, 1992). Legal protections, such as the Racial Discrimination Act 1975 (Cth), offer individuals redress through a formally equal entitlement to be protected from (some) forms of racial harm.
However, our experiences of ‘race’ are not uniform. For instance, consultations that informed the Australian Human Rights Commission’s 2012 National Anti-Racism Strategy indicated the regularity and severity of racist incidents against Aboriginal and Torres Strait Islander peoples and those from a non-white ‘migrant’ background (June 2012), while the ‘white’ experience of race tends to be shaped by ‘normativity rather than marginality, and privilege rather than disadvantage’ (Frankenberg, 1993; see also Watson, 2005; Moreton-Robinson, 2012). But as Australian anti-discrimination jurisprudence reads the RDA and other comparable laws as creating formally equal entitlements, it fails to account for the complexity of racial experience; thus, the jurisprudence works from a limited understanding of the harms produced by racism and racial hatred.
This paper explores these concerns, which are illustrated by McLeod v Power (2003), a complaint made by a white prison guard (McLeod) against an Aboriginal woman (Power) under the RDA’s racial hatred provisions. Though the complaint was rightly (in my view) dismissed, I remain troubled by the Magistrates’ reasoning and finding that Ms Power’s use of the term ‘white’ to describe Mr McLeod did not refer to a racial identity. Though he acknowledged that the incident between Ms Power and Mr McLeod was ‘essentially infused by considerations of race and colour’ (at [69]), the Magistrate’s analysis explored only some of the racial characteristics of these ‘considerations’, and thus elided the complexity of racial experience contained within Ms Power’s and Mr McLeod’s exchange.