Promoting Equal Opportunity: The Role of the Regulatory Agency in Racial Discrimination
| DOI | 10.1177/135822919500100105 |
| Date | 01 March 1995 |
| Published date | 01 March 1995 |
| Author | Martin MacEwen |
International Journal
of
Discrimination
and
the
Law,
1995,
Vol.
1,
pp.
39-62
1358-2291/95
$10
©
1995
A B
Academic
Publishers.
Printed in Great Britain
PROMOTING EQUAL OPPORTUNITY: THE ROLE OF
THE
REGULATORY
AGENCY
IN
RACIAL
DISCRIMINATION
MARTIN
MacEWEN
Scottish Ethnic Minorities Research Unit, Edinburgh College
of
Art,
Heriott-Watt University, Lauriston Place, Edinburgh, Scotland
ABSTRACT
The purpose
of
this article is
to
outline the variety
of
roles and functions
of
enforcement agencies established in Australasia and the UK to promote anti-
discrimination law on the grounds
of
race. Given the range
of
agencies involved
and the differing circumstances in which they are placed, firm conclusions regard-
ing their relative effectiveness are difficult to draw. However, the article attempts
to identify some common issues and approaches. These suggest the desirability for
governments and the agencies themselves
to
have a greater awareness
of
the
experience
of
other approaches and to undertake review from a strengthened com-
parative perspective.
INTRODUCTION
Anti-discrimination legislation
on
the ground
of
race is a crea-
ture
of
the post-second world war 'multicultural
era'
1 which repres-
ents an attempt to deconstruct a history
of
racism. But the concept
depends,
in
large measure,
on
an effective challenge to the primacy
of
accepted dominant norms which have formed the real
or
hypothet-
ical benchmark against which the acceptability
of
diversity (or social
deviance) is tested. Such norms are pervasive and include the way
we look, behave, talk, react, socialise and mediate, conciliate and
even judge. The law to promote racial equality, therefore, faces a sig-
nificant challenge which extends to the institutions and processes
which are established to enforce the observance
of
non-
discrimination.
In
many common law countries today, as exemplified by provi-
sion in the US, Canada, UK, Australia and New Zealand, specialist
agencies have been established for the purpose
of
promoting and/or
enforcing anti-discrimination law
on
the grounds
of
race.2 Some
of
these agencies, such as the Commission for Racial Equality and the
40
Equal Opportunities Commission in Britain have a responsibility for
one subject area but combine promotional and enforcement functions,
while others, such as the Human Rights Commission set up under the
Human Rights Act 1993 in New Zealand, encompass a broader
responsibility in attempting to police the law relating not only to race
and sex discrimination but also to religion, political opinion, family
and marital status, sexual orientation, age and disability. Other regu-
latory agencies such as the Equal Employment Opportunities Com-
mission in the United States have a responsibility confined to one
sector [employment]. In most federal jurisdictions there are regulatory
agencies at both the federal and state level (as in Quebec in Canada
and as in New South Wales and Victoria in Australia) but the exist-
ence
of
federal legislation may not be replicated at state level, as in
Tasmania, or the separate federal state provision may enable the
appointment
of
one enforcement agency in respect
of
the enforcement
of
both state and federal provision as in Western Australia in relation
to gender and race discrimination.
It
is also fairly common for government offices or departments,
advisory and regulatory to be created such as the Commonwealth
Office
of
Multicultural Affairs and the Office
of
Equal Employment
Opportunity (OEEO) in Western Australia. The principal function
of
the former is to promote good practice and to effect change through
the provision
of
advice, guidance, counselling and policy review.3
The responsibility
of
the OEEO for Western Australia is to assist
public authorities to meet their legal obligations and to evaluate the
effectiveness
of
statutory OEEO management plans.4
Perhaps a more fundamental division in the responsibilities
of
regulatory agencies relates
to
their powers
of
enforcement. Com-
monly, as with the Commission for Racial Equality and the Equal
Opportunities Commission in Britain and the Human Rights Commis-
sion in New Zealand, the agency has power to initiate complaints
and to support complainants in the pursuit
of
remedies either before
the courts or before tribunals. Exceptionally, some regulatory agen-
cies perform the function not only
of
police and prosecution but also
of
judge and jury as exemplified by the federal Human Rights and
Equal Opportunity Commission in Australia. Most regulatory agen-
cies have a conciliatory function in that they can negotiate extra judi-
cial settlements for the parties in dispute. Some
of
these agencies are
obliged to go through the process
of
conciliation before seeking a
judicial remedy while others have no such requirement. Moreover,
certain agencies, because
of
their conciliatory function, are not per-
mitted to represent complainants directly or indirectly before tribunals
or courts. In some jurisdictions there are specialist tribunals, such as
the Complainants Review Tribunal in New Zealand, which deal
exclusively with discrimination complaints while in others such as
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