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A Brief Guide to the Federal Racial Discrimination Act 1975

This Guide is only applicable for those staff employed in UCL Australia

A Brief Guide to the Federal Racial Discrimination Act 1975
(adapted from the Australian Human Rights Commission)
http://www.hreoc.gov.au/racial_discrimination/guide_to_rda/index.html

1.         Introduction

1.1       The Racial Discrimination Act 1975 gives effect to Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. Its major objectives are to

  • promote equality before the law for all persons, regardless of their race, colour or national or ethnic origin, and
  • make discrimination against people on the basis of their race, colour, descent or national or ethnic origin unlawful.

2.         Laws

2.1       Racial discrimination laws under the Act

The Act supports the principle that everyone has a right to enjoy the same fundamental freedoms and human rights — regardless of their race, their colour, their descent (ancestry), their national origin, their ethnic origin or, in some cases, their immigrant status. Treating people differently because of these characteristics is against the law under the Act. This is called racial discrimination.

2.1       Racial hatred laws under the Act

On 13 October 1995, the Act was changed so as to give additional protection to people who are being publicly and openly offended, insulted, humiliated or intimidated because of their race, their colour, or their national or ethnic origin. This part of the Act is known as the Racial Hatred section.

2.3       The equivalent law in the states and territories

The Act was Australia's first federal anti-discrimination law. However, there are other laws in the states and territories that also deal with race discrimination, and occasionally racial hatred.

2.4       Religious discrimination and hatred not covered by the Act

The Act does not prohibit discrimination or vilification against someone because of their religion. There are some State laws which cover this, but not in South Australia.  

3.         Types of racial discrimination

3.1       The Act prohibits 2 different types of discrimination:

  • 'direct discrimination'; and.
  • 'indirect discrimination' — when discrimination is hidden, or is less obvious than direct discrimination.

 3.2       What 'direct discrimination' is prohibited?

The Act prohibits someone being treated less favourably (because of their race, their colour, their descent, their national origin or ethnic origin) than the way someone of a different race, colour, descent or origin would be treated in a similar situation. This is known as 'direct discrimination'.

3.3       What 'indirect discrimination' is prohibited?

The Act prohibits a policy or rule:

  • if it puts at a disadvantage more people of a particular race, colour, descent or national or ethnic origin than people of another race, colour, descent or national or ethnic origin
  • even if it applies equally to everyone and appears to treat everyone in the same way. This is known as 'indirect discrimination'.

However, this sort of discrimination can be acceptable if the policy or rule itself is reasonable and it has an important purpose.

3.4       In what situations is discrimination prohibited?

It is against the law to discriminate against someone when the discrimination prevents them from enjoying their human rights. The following are examples of situations in which people might be discriminated:

  • Employment including: when looking for work; advertising or interviewing for jobs; being employed; training; promotion opportunities; the terms and conditions of employment; termination (ending) of employment.
  • Land, housing and accommodation
  • Education including: school education, TAFE, University, etc.
  • Providing goods and services
  • Access to places and facilities meant for use by the public
  • Trade union membership.

4.         In what situation is discrimination allowed?

4.1       It is not against the law to make racial distinctions:

  • in private life — for example, when choosing a live-in nanny or when choosing your friends or people you have contact with or allow into your house. In those cases, making racial distinctions is allowed; and
  • as part of 'special measures' designed to help groups or individuals who have been unfairly treated and now need support to help them fully enjoy their human rights. For example, Indigenous people in Australia suffer from greater social and economic disadvantage than other groups in society. Because of this disadvantage, they may need special assistance to enjoy their rights to education, employment, and health to the same level that other Australians enjoy those rights.

4.2       What are the requirements for 'special measures' ?

For 'special measures' to be lawful, they must:

1. be by either a government body or a private organisation; and
2. be helpful to some or all members of a group who share a common race, colour, descent, national origin or ethnic origin; and
3. have the sole purpose of assisting the group to enjoy human rights and fundamental freedoms equally with others; and
4. be necessary to making sure that the group achieve that purpose; and
5. stop once their purpose has been achieved. The special measures cannot last forever — even if they take a long time to achieve their aim.

For more information about Special Measures, visit:
http://www.humanrights.gov.au/racial_discrimination/guide_law/special_measures.htm

5.         Who must comply with the Act?

5.1       The Act applies to:

  • businesses — from the smallest to the largest,
  • schools,
  • local governments,
  • State and Territory government agencies and departments,
  • Commonwealth Government agencies and departments and
  • individuals.

6.         Racial Hatred

6.1       How does the Act deal with 'racial hatred'?

The Act was changed in October 1995 to prohibit public behaviour that is racially offensive or abusive. This means it is against the law for someone to offend, insult or humiliate a person or group in public because of the other person's race, colour, or national or ethnic origin. This behaviour is sometimes
called racial hatred or racial vilification.

6.2       What are some examples of 'racial hatred'?

The prohibited behaviour can be using speech, images or writing in public — for example:

  • writing racist graffiti in a public place — including school playgrounds or bus stop shelters
  • making racist speeches at a public rally or assemblies
  • placing racist posters or stickers in a public place
  • making a racially abusive comment, joke, song or gesture in a public place — including shops, workplaces, parks, public transport, and schools
  • offensive racist comments or drawings in a newspaper, leaflet, website or other publication.

6.3       When is 'racial hatred' not prohibited by the Act?

The law against racial hatred aims to strike a balance between two values or rights:

  • the right to communicate freely — known as 'freedom of speech'; and
  • the right to live free from racial vilification.

To strike this balance, the Act does not prohibit:

  • racial hatred or vilification that is not made 'in public', and
  • racial hatred or vilification which is "done reasonably and in good faith" — even if it is done in public.

6.4       When is behaviour 'in public'?

Racial hatred or vilification is made 'in public' when members of the public have heard or seen it.

6.5       When can racial hatred or vilification be justified as having been "done reasonably and in good faith"?

The Act says that racial hatred of the following types is not against the law if it is "done reasonably and in good faith":

  • an artistic work or performance - for example, a play in which racist attitudes are expressed by a character.
  • an academic publication, discussion or debate - for example, discussing and debating public issues and policies such as immigration, multiculturalism, or special measures for particular groups.
  • a fair and accurate report on an issue which the public may be interested in - for example, a fair report in the media about something which happened that encouraged racial discrimination and hatred or was racially offensive behaviour.
  • a fair comment - but only if the comment reflects a view that a fair-minded person could have held and the person who made it actually holds that view.

For more information about the Racial Hatred sections of the Act, visit:
http://www.humanrights.gov.au/racial_discrimination/racial_hatred_act/index.html

For a copy of the 'Racial Hatred Act – a guide for people working within the media', visit:
http://www.humanrights.gov.au/racial_discrimination/media_guide/index.html

7.         Religious Discrimination and Vilification

    • How is religious discrimination and vilification dealt with?

Although the Racial Discrimination Act does not apply to religious discrimination or vilification, other federal laws do apply — at least in relation to job-related discrimination. If someone believes they have been discriminated against because of their religion in getting a job or at work, then they can complain to the Human Rights and Equal Opportunity Commission. Instead, it is set up under the Human Rights and Equal Opportunity Commission Act 1986.

7.2       What are the laws in the different States and Territories?

As well as the Racial Discrimination Act, there are anti-discrimination laws in all Australian states and territories. They also make racial discrimination against the law.

These laws mean that:

  • under both federal and all state anti-discrimination laws, it is against the law to discriminate against someone because of their race, descent or national or ethnic origin; but
  • in only some states is it against the law to racially vilify another person. Also, different states and territories deal with religious discrimination and vilification differently.

The following shows which racial discrimination laws, religious discrimination laws, racial hatred laws and religious hatred laws there are in South Australia:

Racial Discrimination Yes
Religious Discrimination No
Racial Vilification/Hatred Yes
Religious Vilification/Hatred No

Therefore, a person who believes they have been discriminated against or vilified solely because of their religion has no legally enforceable rights if the alleged discrimination happened in South Australia.

7.2       Investigatory Powers of HEROC

However, if a person believes that they have been discriminated against on the basis of their religion in their employment or occupation, or if they believe their human rights in relation to religious belief have been breached by the Commonwealth, then under the HREOC Act, the President, on behalf of the Commission, has the power to inquire into and attempt to conciliate such a complaint. If the complaint cannot be resolved, and the President finds that the complaint is substantiated, he then must provide a report to the federal Attorney-General concerning his findings, reasons and any recommendations. This report must be tabled in the federal Parliament. The findings of the President are not legally enforceable and the respondent can ignore them if it wishes to do so.

For more information about racial discrimination, racial hatred and vilification, and religious discrimination and vilification laws across states and territories in Australia, visit:
http://www.humanrights.gov.au/racial_discrimination/isma/report/chap1.html#1_4

8.         Further Information

National - Australian Human Rights Commission; www.humanrights.gov.au
South Australia Equal Opportunity Commission; http://www.eoc.sa.gov.au/