Racial Discrimination

The Racial Discrimination Act 1975 (Cth) prohibits racial discrimination in certain areas of public life, and provides for equality before the law on the ground of race. It applies throughout Australia. It is part of Australia’s fulfilment of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. The Australian Human Rights Commission provides a full discussion of the Racial Discrimination Act.

Offensive behaviour because of race

The Act makes offensive behaviour based on race, colour or national or ethnic origin unlawful. The Act covers any public acts that are reasonably likely to offend, insult, humiliate or intimidate a person or group of people because of their race, colour, or national or ethnic origin.

Generally speaking, it must have been possible for someone other than those directly involved in the act to have seen, heard or read it in order for it to be a public act. The following examples could therefore be against the law:

• racist speeches made in public;
• racist statements or remarks in a newspaper or journal, on the radio or TV – as long as they are not a fair report of someone else’s act of racial vilification;
• people wearing racist symbols (such as badges), or clothing with racist slogans, in public;
• racist gestures made in public;
• racist publications – although works of literature and scientific and academic works would generally be exempt;
• racist graffiti, posters or stickers in a public place.

What is racial discrimination?

The Racial Discrimination Act makes it illegal to do any act (in any of the areas below) which involves ‘distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin’ (s9(1)).

The areas in which it is illegal to discriminate are:

• equal access to the law (s10);
• access to or use of public places and facilities (s11);
• land, housing or other accommodation (s12);
• provision of goods or services (s13);
• the right to join trade unions (s14);
• employment (s15);
• advertisements (s16); and
• incitement to do unlawful acts) (s17).

Section 18B of the Racial Discrimination Act provides that where there are two or more reasons for doing an act, and one of those reasons is a discriminatory reason, it will be taken that the reason for doing the act is the discriminatory reason.

An important provision under the Act is that legislation enacted by the Commonwealth or states must not discriminate against any particular group on the basis of race (s10).

Section 27 of the Act sets out offences relating to the Act’s administration. Section 27 protects people wanting to make, or who have made complaints under the Act. Under section 27, a person cannot:

• refuse to employ another person,
• dismiss or threaten to dismiss another person;
• prejudice, or threaten to prejudice another person;
• intimidate, coerce, or impose a penalty upon another person

because that person has made, or intends to make a complaint under the Act, or assist someone who has made, or is about to make, a complaint (s27(2)). Complaint procedures take place under the AHRC Act.

Direct and Indirect Discrimination

Direction discrimination is defined in section 9(1) as distinguishing, excluding, restricting or exercising a preference on the basis of race, colour, descent or national or ethnic origin, where the effect is to nullify or impair recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Examples of this are racial segregation in restaurants or bars, or a job advertisement saying ‘only whites need apply’.

Indirect discrimination is defined at section 9(1A) and has a more complex definition under the RDA. It has three elements, two in addition to the basic definition of discrimination in section 9(1) of direct discrimination. To be indirect discrimination:

• a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
• the other person does not or cannot comply with the term, condition or requirement; and
• the requirement to comply has the purpose or effect of race discrimination.

Examples of this in the context of the RDA would be: minimum height requirements for a job for no apparent reason, which may exclude people from an Asian background, or where workplace health and safety information in a workplace is printed exclusively in English.

Positive discrimination/special measures

It is not discriminatory under the Act to take special measures to assist certain racial or ethnic groups or individuals to achieve equality.

There is also an exception to the Act for provisions made under a will or deed which allows for special treatment for one particular racial group (s8(2)).

Vicarious Liability

Under the RDA, organisation may be vicariously liable for racially offensive acts done by their employees or agents (s18E). This means that if, for example, a person goes to a supermarket and is racially abused by one of the employees working at the supermarket, they can make a complaint against both the employee and the supermarket.

An organisation is not vicariously liable if they can show that they have taken all reasonable steps to prevent the employee or agent from doing the act.

Offences under the Act – civil and criminal

While the RDA defines certain acts as unlawful, these acts do not lead to criminal prosecution. For example, in Gama v Qantas Airways Ltd (No. 2) [2006] FMCA 1767, the court found that making racial slurs was an act of racial discrimination under section 9 of the RDA. The Federal Circuit Court ordered damages be paid to the plaintiff. This is a civil remedy.

So, while a person can make a complaint against another person or body for actions that are racially discriminatory, and have the right to take their complaint to the AHRC, the specific offences punishable by under the RDA are limited to acts set out in Part IV, section 27:

• hindering, obstructing, molesting or interfering with a person exercising or performing any of the powers or functions referred to in this act;
• refusing to employ another person; or
• dismissing, threatening to dismiss another person from employment; or
• prejudicing or threatening to prejudice a person in employment; or
• intimidating, coercing, or imposing a pecuniary or other penalty on a person because the person: has made or proposes to make a complaint to the AHRC; or
  assists a person or intends to assist a person in making a complaint: or
  has attended or proposes to attend a conference under the RDA or the AHRC

A person found guilty of any of these offences is subject to fines or imprisonment.

Exceptions and Exemptions

Exceptions to discriminatory measure under the RDA are very limited under the Act. These exceptions are:

• section 8(1) – special measures;
• section 8(2) – instrument conferring charitable benefit;
• sections 9(3) and 15(4) – employment on a ship or aircraft if the person was engaged for that employment outside Australia;
• sections 12(3) and 15(5) – accommodation and employment in a private dwelling house or flat. Special measures are a form of positive discrimination aimed at furthering aims of equality and non-discrimination. In regard to accommodation or employment in a private dwelling house or flat, the RDA allows for a person to exercise their own discretion as to whom they want to share their accommodation or who they are comfortable employing in their private dwelling house or flat.

In relation to exemptions to the offensive conduct provision in section 18C of the Act, the exemptions aim to strike a balance between freedom of speech, and the right of people not to be humiliated, offended, insulted or intimidated because of their race.

The exemptions to the offensive conduct provision are contained in section 18D, which provides that the offensive conduct will not be unlawful it is said or done reasonably and in good faith:

• in artistic works, such as performances or exhibitions;
• in the course of any statement made for a genuine academic, artistic or scientific purpose, or other genuine purpose in the public interest;
• in fair and accurate reporting of matters in the public interest; and
• fair comments of matters of public interest, if the comment is a genuine belief held by the person making the complaint.

Making a Complaint

See AHRC Complaint Process.