Dr Jennifer Nielsen is a Senior Lecturer at Southern Cross University in the School of Law and Justice. Her primary research focus is anti-discrimination law and race discrimination; her work applies critical race and whiteness studies to expose the normative standards inherent in mainstream Australian law that privilege ‘white’ interests in preference to those of Australian Aboriginal peoples, and other ‘non-white’ groups. She has experience at range of levels in academia, including as Head of School at SCU from 2009 to 2011, and is admitted to practice in New South Wales and Victoria. She is active in the community justice sector, and is the current Chairperson of the Committee of Management, Northern Rivers Community Legal Centre.
Challenging racism: breaching the formality of anti-discrimination jurisprudence
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.
