Racial Discrimination Act 1975

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The Racial Discrimination Act 1975 (Cth) (RDA) is a statute passed by the Australian Parliament during the Prime Ministership of Gough Whitlam.[1] The RDA makes racial discrimination in certain contexts unlawful in Australia, and overrides States and Territory legislation to the extent of any inconsistency.

The RDA is administered by the Australian Human Rights Commission, with the President of the Commission responsible for investigating complaints. If a complaint is validated, the Commission will attempt to conciliate the matter. If the Commission cannot negotiate an agreement which is acceptable to the complainant, the complainant's only redress is through the Federal Court or through the Federal Circuit Court. The Commission also attempts to raise awareness about the obligations that individuals and organisations have under the RDA.

Constitutional power to pass the RDA[edit]

The source of the federal Parliament's power to pass the RDA is the "external affairs" power contained in section 51(xxix) of the Australian Constitution. Under that power, the federal Parliament implemented international obligations arising under the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, which Australia ratified in September 1975. The High Court of Australia confirmed that the external affairs power was a valid source of power for the RDA in Koowarta v. Bjelke-Petersen in 1982 and again in Mabo v Queensland (No 1).[2]

Several legal academics have suggested that section 18C of the RDA (see below) may be unconstitutional, on the basis that it is inconsistent with the constitutional implied freedom of political communication.[3]

Scope of the Act[edit]

Prohibition of racial discrimination in certain contexts[edit]

Racial discrimination occurs under the RDA when someone is treated less fairly than someone else in a similar situation because of their race, colour, descent or national or ethnic origin. Racial discrimination can also occur when a policy or rule appears to treat everyone in the same way but actually has an unfair effect on more people of a particular race, colour, descent or national or ethnic origin than others.

It is against the law to discriminate in areas such as:

  • Employment (section 15) - e.g. when seeking employment, training, promotion, equal pay or conditions of employment;
  • Land, housing or accommodation (section 12) - e.g. when buying a house or when renting;
  • Provision of goods and services (section 13) - e.g. when buying something, applying for credit, using banks, seeking assistance from government departments, lawyers, doctors and hospitals, or attending restaurants, pubs, entertainment venues;
  • Access to places and facilities for use by the public (section 11) - e.g. when trying to use parks, libraries, government offices, hotels, places of worship, entertainment centres, hire cars;
  • Advertising (section 16) - e.g. advertising for a job stating that people from a certain ethnic group cannot apply;
  • Joining a trade union (section 14).

Prohibition on offense, insult, humiliation or intimidation[edit]

In addition, section 18C of the RDA makes it is unlawful for a person to do an act in public if it is reasonably likely to "offend, insult, humiliate or intimidate" a person of a certain race, colour or national or ethnic origin, and the act was done because of one or more of those characteristics.[4][5] Exemptions are provided in section 18D, including acts relating to artistic works, genuine academic or scientific purposes, fair reporting, and fair comment on matters of public interest.

Cases involving section 18C include the following:

  • In Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA 23, a complaint by an English person against use of the word Pom and Pommy in newspapers was dismissed.
  • Rugema v Gadsten Pty Ltd & Derkes [1997 HREOCA 34] awarded $55,000 in damages to an African former refugee who had suffered racial abuse in the workplace.
  • In Combined Housing Organisation Ltd, Ipswich Regional Atsic for Legal Services, Thompson and Fisher v Hanson [1997] HREOCA 58 a case was dismissed against politician Pauline Hanson over comments about Aboriginal welfare policy.
  • In Mcglade v Lightfoot [1999] HREOCA 1, a complaint was lodged against Senator Ross Lightfoot over comments he had made that Aboriginal people were the most primitive people on earth and that aspects of their culture were abhorrent. His apology to the Senate was considered as part of the court's dismissal of the case
  • The court upheld a complaint against a Councillor who made comments about "shooting" Aboriginal people in Jacobs v Fardig [1999] HREOCA 9.
  • In Australian Macedonian Human Rights Committee (Inc) v State of Victoria [2000] HREOCA 52, the court found that the State of Victoria had acted unlawfully by instructing staff to “refer for the time being to the language that is spoken by people living in the Former Yugoslav Republic of Macedonia, or originating from it, as Macedonian (Slavonic)”.
  • In Jones v Toben [2000] HREOCA 39 the court found it was unlawful for the defendant to speak of the treatment of Jews in the 1930s and 1940s as having been "mythologised".
  • In McMahon v Bowman [2000] FMCA 3 the court found against a man for calling his neighbour a "black bastard".
  • In Wanjurri v Southern Cross Broadcasting (Aus) Ltd [2001] HREOCA 2, Southern Cross Broadcasting and journalist Howard Sattler were ordered to pay each of the five complainants $10,000 in damages.
  • In Prior v Queensland University of Technology & Others [2016], the Federal Court threw out a lawsuit which an indigenous staff member at the Queensland University Technology brought against some students for comments made on Facebook after one of them had been evicted from a computer room set aside for indigenous students.

Complaint process and remedies[edit]

An aggrieved person may make a complaint of a contravention of the RDA to the Australian Human Rights Commission.[6] If the complaint cannot be resolved, then an application alleging "unlawful discrimination" may be made to the Federal Court of Australia or to the Federal Circuit Court.[7] When such allegations are upheld, the court may make orders, including for compensation.[8]

Proposals for law reform[edit]

Section 18C of the RDA has been a topic of debate, especially in recent years. In 1995, left-wing ABC journalist Phillip Adams argued against the provision, saying that a better response to expressions of racial hatred was "public debate, not legal censure".[9]

In September 2010, nine individuals commenced legal proceedings in the Federal Court against media commentator Andrew Bolt and the Herald Sun over two posts on Bolt's blog. The nine sued over posts titled "It's so hip to be black", "White is the New Black" and "White Fellas in the Black". The articles suggested it was fashionable for "fair-skinned people" of diverse ancestry to choose Aboriginal racial identity for the purposes of political and career clout.[10] The applicants claimed the posts breached section 18C of the RDA and sought an apology, legal costs, and a gag on republishing the articles and blogs, but not damages.[11] On 28 September 2011, Bolt was found to have contravened section 18C.[12][13] Bolt called the verdict a "a restriction on the freedom of all Australians to discuss multiculturalism and how people identify themselves".[14]

In 2013, members of the Abbott Government proposed significant changes to section 18C in a draft bill put on public exhibition, which would have substantially limited the scope of the prohibition.[15][16] The Attorney-General, George Brandis, defended the proposed changes, stating that people have "a right to be bigots".[17] Trade Unionist Paul Howes argued that section 18C stretches out its fingers "into the realm of what Orwell might have called a Thought Crime".[18] After public consultation and opposition by minority groups, the Government did not proceed with the proposed changes.[19]

More recently, members of the Turnbull Government have proposed less significant and narrower changes to section 18C, and the Attorney-General, George Brandis, has asked for the Joint Parliamentary Committee on Human Rights to conduct an inquiry on the appropriateness of section in its current form.[20] In March 2016, the Australian Law Reform Commission called for review of S 18C, stating “In particular, there are arguments that s18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’." The ALRC noted that it had received "widely divergent views" on whether s 18C should be amended but found as follows:

In the ALRC’s view, s 18C of the RDA would benefit from more thorough review in relation to implications for freedom of speech. In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. In some respects, the provision is broader than is required under international law, broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.[21]

In November, 2016, the President of the Human Rights Commission Gillian Triggs voiced support for changes to 18C, saying that removing the words "offend" and "insult" and inserting "vilify" would strengthen the laws.

See also[edit]

References[edit]

  1. ^ http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/29DCCB9139D4CCD8CA256F71004E4063/$file/RDA1975.pdf
  2. ^ Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
  3. ^ "Indeed, Mr Abbott, Section 18C is 'clearly a bad law' - On Line Opinion - 6/5/2016". On Line Opinion. Retrieved 2016-12-07. 
  4. ^ "Racial Discrimination Act 1975 - Sect 18C". 
  5. ^ "Eatock v Bolt [2011]". 
  6. ^ "AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 - SECT 46P Lodging a complaint". www.austlii.edu.au. Retrieved 2016-12-09. 
  7. ^ "AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 - SECT 46PO Application to court if complaint is terminated". www.austlii.edu.au. Retrieved 2016-12-09. 
  8. ^ "AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 - SECT 46PO Application to court if complaint is terminated". www.austlii.edu.au. Retrieved 2016-12-09. 
  9. ^ Adams, Phillip (1995). The Role of the Media. 
  10. ^ "Bolt defends articles in discrimination case". ABC News (Australia). 29 March 2011. 
  11. ^ Karen Kissane (30 September 2010). "Case against Bolt to test racial identity, free-speech limits". The Age. Melbourne. 
  12. ^ "Andrew Bolt – Herald Sun columnist guilty of race discrimination". The Age. Melbourne. 28 September 2011. 
  13. ^ "Andrew Bolt loses racial vilification court case". HERALD Sun columnist Andrew Bolt has lost an action brought in the Federal Court in which the columnist was accused of breaching the Racial Discrimination Act. News Corporation Australia. The Australian. 28 September 2011. Retrieved 6 September 2015. 
  14. ^ "Bolt breached discrimination act, judge rules". ABC News. 2011-09-28. Retrieved 2016-12-07. 
  15. ^ "25 March 2014 - Racial Discrimination Act". www.attorneygeneral.gov.au. Retrieved 2016-12-07. 
  16. ^ Wright, Jessica. "George Brandis to repeal 'Bolt laws' on racial discrimination". The Sydney Morning Herald. Retrieved 2016-12-07. 
  17. ^ "Brandis defends 'right to be a bigot'". ABC News. 2014-03-24. Retrieved 2016-12-07. 
  18. ^ "Andrew Bolt: Freedom of Speech in Australia - Speech made by Paul Howes | Institute of Public Affairs Australia". www.ipa.org.au. Retrieved 2016-12-09. 
  19. ^ Aston, Heath. "Tony Abbott dumps controversial changes to 18C racial discrimination laws". The Sydney Morning Herald. Retrieved 2016-12-07. 
  20. ^ "Parliamentary inquiry into freedom of speech". www.attorneygeneral.gov.au. Retrieved 2016-12-07. 
  21. ^ Manager, Web (2016-01-12). "Laws that interfere with freedom of speech". www.alrc.gov.au. Retrieved 2016-12-09. 

External links[edit]