Racial Discrimination

Racial discrimination is prohibited in Australia in many areas of public life under the Racial Discrimination Act 1975 (RDA). Racial discrimination occurs when a person is treated less favourably, or given fewer opportunities than others, because of their race, the country where they were born, their ethnicity or their skin colour. This article outlines the law surrounding racial discrimination in Australia.

When is racial discrimination unlawful?

The RDA prohibits racial discrimination in employment, education, the provision of goods and services, renting or buying real estate, or accessing public places. The act also prohibits behaviour based on racial hatred.

Employment

Section 15 of the RDA makes it unlawful for an employer to do any of the following because of a person’s race, colour or national or ethnic origin:

• Refuse or fail to offer the person work;
• Refuse or fail to offer the person work on the same terms and conditions or with the same opportunities it is offered to others with the same qualifications and employed in the same circumstances;
• To dismiss a person from their employment.

In accordance with this provision, employers must not discriminate on the basis of race during the recruitment and selection process, in the terms, conditions and termination of employment or in deciding who to offer training, transfers or promotions.

The RDA also prohibits discrimination against a person because of their association with someone of a particular colour, race, ethnicity or national origin.

Goods and services

Section 13 of the RDA prohibits racial discrimination in the provision of goods and services. That section provides that it is unlawful to do the following because of a person’s race, colour or national or ethnic origin:

• Refuse or fail to provide goods or services to the person;
• Refuse or fail to provide goods or services except on less favourable terms than those on which they are otherwise supplied.

This prohibition applies to transport providers, shops, restaurants, tradespeople and professionals such as doctors and lawyers.

Accommodation

Section 12 of the RDA makes it unlawful for a person to do the following because of a person’s race, colour or national or ethnic origin:

• Refuse or fail to dispose of estate or an interest in estate to a person;
• Dispose of such an estate or interest on less favourable terms or conditions than would otherwise be offered;
• Treat a person seeking an estate or interest less favourably;
• Refuse to allow a person to occupy land or premises;
• Terminate an estate or interest in land or premises.

Direct and indirect discrimination

The RDA prohibits both direct racial discrimination and indirect racial discrimination.

Direct discrimination occurs when a person is treated less favourably because of their colour, race or ethnic or national origin. For example, refusing to hire a job applicant because they are Lebanese.

Indirect discrimination occurs when a requirement, practice or condition is applied equally to everyone but has the effect of disadvantaging some people because of their race, colour or ethnic or national origin. For example, an employer has a requirement that all employees must be taller than 165cm, meaning that no Vietnamese people are ever hired.

Exceptions to Racial Discrimination laws

It is not unlawful to discriminate against a person on the basis of their race in certain limited circumstances. One such circumstance is the provision of special measures that are designed to foster equality for groups that have historically been disadvantaged. For example, a university offering a scholarship specifically for Indigenous students is not engaging in unlawful discrimination.

Although the RDA prohibits discrimination on the basis of national origin, is not unlawful to discriminate on the basis of nationality or citizenship. For example, an employer is not unlawfully discriminating if it refuses to employ a person who does not have a valid work visa.

Racial hatred

Section 18C of the RDA prohibits acts from being done in public where the act is likely to offend, humiliate, intimidate or insult a person or a group of people on the basis of their colour, race or ethnic or national origin.

A person who speaks in a racially offensive manner, prints racially offensive material or behaves in a racially offensive manner can be held liable under this provision. Employers can also be held vicariously liable for racially offensive acts of their employees where the acts are done in connection with their duties.

Complaints about behaviour that violates this provision may be made to the Australian Human Rights Commission.

Behaviour is not unlawful if it is done in good faith in the context of:

• An artistic work or performance;
• A discussion, statement or debate made for academic or scientific purposes;
• A fair and accurate report on a matter of public interest;
• Making a fair comment that is an expression of a person’s genuine belief.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.