Abstract
Excerpted From: Catherine Zhou and William Ruan, Unearthing Language Rights Protections in the Racial Discrimination Act 1975 (Cth), 46 Sydney Law Review 293 (September, 2024) (160 Footnotes) (Full Document)
Language is fundamental to the construction of identities -- personal, communal, social, cultural, religious and national. Yet the languages of dominant and minority groups are enjoyed to different extents. Increasingly, more dominant languages have encroached upon the right of minority groups to sustain their languages. Assimilationist pressures prevent the use of minority languages in private and public spaces.
In this context, the Racial Discrimination Act 1975 (Cth) ('RDA’) provides a possible avenue for redress where acts or laws discriminate against linguistic minorities. The RDA gives effect to Australia's obligations assumed under the International Convention on the Elimination of All Forms of Racial Discrimination ('ICERD’) which, in its preamble, recites the purposes to secure the 'understanding of and respect for the dignity of the human person’ and to eliminate racial discrimination. However, although several litigants have argued claims based on differential enjoyment of language rights, Australian courts have generally refused to recognise that linguistic discrimination is a form of racial discrimination that falls within the RDA. The justifications for this refusal reflect misconceptions surrounding language which devalue its sociocultural importance and ignore the ongoing effects of injustice on racial and linguistic minorities. This article argues that judicial failures to recognise language protection in the RDA are founded on weak premises. By analysing these cases in turn, we contend that the RDA can defend against racial and linguistic discrimination, contributing to a conception of language which is more firmly situated in its sociological context.
The article is organised into three main parts. Part II outlines the present threat against minority languages, considering the connections between language, culture and race that have been forged by communities and imposed by colonial structures and the state. Part III considers the context of the RDA. It argues that current jurisprudence on language claims under the RDA fails to adequately theorise the role of language in racial discrimination. Instead, courts have adopted an approach which fails to recognise the use of language as a proxy for race, relegating language to an individual characteristic which has no collective effects. Claims are also barred by other justifications such as proportionality analysis, the lack of a positive right, the absence of racial reference or 'targeting’, and the ineffectiveness of deriving language rights from other rights and freedoms. We argue that each of these justifications is untenable such that the RDA has a greater capacity to uphold language rights than is evidenced by its record. Part IV considers arguments against the overbroad operation of the RDA where conferral of rights might result in the enjoyment of rights to a greater extent. It concludes that it is nonetheless appropriate to import a beneficial and remedial construction into the RDA to address historical injustices, especially when language and race are conceived in collective, contingent capacities.
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The conclusion of our analysis is that there are reasons to doubt the correctness of all the past language rights cases under the RDA. As we have seen, the reasoning used to dismiss those claims is problematic, and alternative lines of reasoning drawn from other RDA cases also betray weaknesses. To take an example, and based on our analysis above, the appeal in Hamzy should not have been dismissed on the basis of proportionality, nor on the lack of an explicit right. Reasoning based on either characterising the right in a way that renders comparison with other racial groups impossible or highlighting the lack of racial targeting in the relevant provision would also be unhelpful. The contest for these such cases should centre on whether the impact of the impugned law meets the s 10 adverse impact threshold. In Hamzy, as Basten JA identified, the limitation imposed by the law did reveal a connection to race. And restricting the ability of prisoners to speak to family members in languages other than English is (to use the test preferred by Gageler J in Maloney) inconsistent with those of minority language backgrounds being accorded equal respect and dignity. The law should have been invalidated.
Language is a means for people to express themselves and communicate with others. It is intimately bound up with a person's sense of identity and community. Respect for a person's language is therefore respect for their human dignity. However, historically, language has been instrumentalised as a discriminator through which Australian governments have marginalised minorities. Today, minority languages continue to be undermined by assimilatory laws that demand the use of English in public life and provide for no appropriate affordances. We have argued that the RDA possesses the capacity to be a tool to defend against both linguistic discrimination and legal regimes that effect assimilatory pressure. We have sought to progress toward this powerful potential of the RDA by deconstructing all the justifications which have thus far barred the success of language rights in RDA litigation. Our analysis has revealed these justifications to be limited and that there are cogent reasons for the RDA to be interpreted in a way that helps secure the dignity of linguistic minorities. Nothing less ought to be expected of a piece of legislation that was claimed to represent our 'best [efforts] to redress past injustice and build a more just and tolerant future’.
Catherine Zhou, BA/LLB (Hons) Monash; ORCID ID: (iD) https://orcid.org/0000-0001-6738-545X.
William Ruan, BSc/LLB (Hons) Monash, LLM Camb. Email:
