Last Updated 17 August 2021
The Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) implements Australia’s obligations under the United Nations International Convention on the Elimination of all Forms of Racial Discrimination (the Race Convention) (contained in the schedule of the Act).
The Racial Discrimination Act establishes a right to equality before the law and makes it unlawful throughout Australia to discriminate against any person on the grounds of race, particularly in employment, accommodation, access to public places and the provision of goods and services, and it establishes a Race Discrimination Commissioner who is a part of the Australian Human Rights Commission (AHRC) (s 19 Australian Human Rights Commission Act 1986 (Cth) (AHRC Act)).
The AHRC is given the following functions by s 20 of the Racial Discrimination Act to:
- promote an understanding and acceptance of the Act
- develop and conduct research and educational programs to combat racial discrimination
- propagate the purpose and principles of the Race Convention
- prepare and publish guidelines on avoiding discrimination
- intervene in court proceedings that involve racial discrimination issues
- inquire into and make determinations on matters referred by the minister or Race Discrimination Commissioner.
What is racial discrimination?
The Racial Discrimination Act defines racial discrimination as any act involving a distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin (s 9 Racial Discrimination Act). This definition is based on Article I of the Race Convention.
It is unlawful to discriminate on the basis of any of these matters. It is also unlawful to discriminate on the grounds of a characteristic assumed to belong to a particular race or to treat a person less favourably on the basis of the race of a person with whom they live or mix.
Section 9 of the Racial Discrimination Act makes direct and indirect discrimination unlawful. When a person discriminates on the grounds of race, but that is only part of the reason for the action, it is still unlawful, even if the discriminator’s reason was not the dominant or substantial reason (s 18 Racial Discrimination Act). There must be a connection between the discrimination and the race, colour, descent, or national or ethnic origin of the complainant (s 18C Racial Discrimination Act).
Areas of racial discrimination
The Racial Discrimination Act establishes a right to equality before the law (s 10). This means that Commonwealth and state laws cannot treat people differently because of a particular race, colour or national or ethnic origin. It also means that a law cannot apply so a person enjoys a right to a more limited extent because of a particular race, colour, or national or ethnic origin.
The Racial Discrimination Act makes it unlawful to practice racial discrimination regarding:
- the access to, or use of, public places and facilities (s 11)
- land, housing or other accommodation (s 12)
- the provision of goods and services (s 13)
- the right to join trade unions (s 14)
- employment (s 15)
- advertising (s 16).
The exceptions to the prohibition of racial discrimination are expressly set out in s 8 of the Racial Discrimination Act. The exceptions include cases when charitable benefits are conferred on persons of a particular race or ethnic group by will or deeds, or where affirmative action measures are taken to secure the necessary and adequate advancement of a racial or ethnic group by will or deeds. ‘Charitable’ is interpreted according to the law in the relevant state or territory. A registered charity means an entity that is registered under the Australian Charities and Not-for-profits Commission Act 2012 (Cth).
Racial discrimination by governments
Governments themselves sometimes practise racial discrimination. Complaints of discrimination may be made against both the Commonwealth and the Queensland governments (s 6 Racial Discrimination Act). This does not extend to make the Crown liable to be prosecuted for an offence.
Racial discrimination by media
News media frequently act in a discriminatory manner towards people or groups on the grounds of their race.
However, the way in which news reports are written or spoken can make it difficult to take action under the Racial Discrimination Act, if those media reports are couched in general terms and refer to ethnic groups not to individuals. However, action may sometimes be possible against the media because the Racial Discrimination Act makes it unlawful to incite, assist or promote the doing of an act that is unlawful (s 17 Racial Discrimination Act).
Other unlawful acts
Under the Racial Discrimination Act, it is also an offence for a person or company to:
- hinder, obstruct, molest or interfere with a person exercising or performing any of the powers or functions (s 27(1))
- victimise any person who has tried to exercise their rights under the Racial Discrimination Act or has helped others to do so (s 27(2)).
A penalty of up to $22 200 may be imposed for contravention of the Racial Discrimination Act by a body corporate, or $5550 or three months imprisonment for a natural person.
It is unlawful to encourage, assist or support a person in committing an act that is unlawful, including provision of financial assistance to a person (s 17(b) Racial Discrimination Act).
Affirmative action taken to advance the position of disadvantaged groups is not prohibited. Article 2 of the Race Convention provides that affirmative action is not discrimination for the purpose of this area of law.