Cause for hope or despair? Evaluating race discrimination law as an access to justice mechanism for Aboriginal and Torres Strait Islander people

Allison, Fiona (2019) Cause for hope or despair? Evaluating race discrimination law as an access to justice mechanism for Aboriginal and Torres Strait Islander people. PhD thesis, James Cook University.

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View at Publisher Website: https://doi.org/10.25903/5ebb247f12d94
 
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Abstract

This thesis explores the contribution that racial discrimination laws have made and might make to addressing race discrimination against Indigenous Australians, who still experience this problem at disproportionately high levels despite introduction over four decades ago of racial discrimination legislation in Australia. The research investigates whether this legislation has failed to make appropriate contributions to reduction of race discrimination because of problems associated with Indigenous access to justice. It demonstrates that Aboriginal and Torres Strait Islander peoples are using processes of dispute resolution in this area to a limited degree, relative to the extent to which they encounter race-based discrimination.

Informed by Indigenous methodologies, the research employs a mixed method design: utilising historical, qualitative and quantitative social science and legal approaches. This provides opportunity for distinctive analysis of the current limitations associated with Indigenous access to justice in the area of race discrimination. Also identified is whether Aboriginal and Torres Strait Islander peoples see value in enhancing Indigenous access to justice through race discrimination law and how this might be achieved.

The thesis presents evidence that indicates that access to justice is seen, including by Aboriginal and Torres Strait Islander peoples, as an important right in itself and as essential to the assertion of all other rights, encompassing the right to equality or non-discrimination. It is argued, however, that to be effective the concept of access to justice must be appropriately expanded to incorporate Indigenous perspectives on 'justice' and how this might be attained. Formal equality of access to justice can lead to discriminatory outcomes, including limitations in terms of the extent to which Indigenous people are able to draw benefit from race discrimination law. The thesis also argues that Indigenous people do not see the law as providing a complete solution to the problem of race discrimination. Key non-legal strategies are identified, including those that empower Indigenous people to respond to discrimination without recourse to the law and that place responsibility for reduction of race discrimination targeting Indigenous people upon the wider community and government.

The research makes a novel contribution to analysis of the effectiveness of race discrimination law in Australia. By prioritising Indigenous historical and contemporary perspectives throughout, it presents new perspectives on race discrimination law and access to justice for Aboriginal and Torres Strait Islander peoples.

Item ID: 63075
Item Type: Thesis (PhD)
Keywords: Indigenous Australians, Australian Aboriginal and Torres Strait Islander people, race discrimination, justice, civil justice, racial discrimination law, equality, racism
Copyright Information: Copyright © 2019 Fiona Allison.
Date Deposited: 12 May 2020 23:14
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180101 Aboriginal and Torres Strait Islander Law @ 35%
16 STUDIES IN HUMAN SOCIETY > 1699 Other Studies in Human Society > 169902 Studies of Aboriginal and Torres Strait Islander Society @ 30%
18 LAW AND LEGAL STUDIES > 1801 Law > 180102 Access to Justice @ 35%
SEO Codes: 94 LAW, POLITICS AND COMMUNITY SERVICES > 9401 Community Service (excl. Work) > 940102 Aboriginal and Torres Strait Islander Development and Welfare @ 50%
94 LAW, POLITICS AND COMMUNITY SERVICES > 9404 Justice and the Law > 940401 Civil Justice @ 50%
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