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 (AHRC). The President of the Commission is 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).

Section 18C: Prohibition on offense, insult, humiliation or intimidation[edit]

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 and determinations in relation to section 18C include the following:

  • In Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA 23, the predecessor of the AHRC, the Human Rights and Equal Opportunity Commission (HREOC) dismissed a complaint by an English person against use of the words "Pom" and "Pommy" used in newspapers.[6]
  • Rugema v Gadsten Pty Ltd & Derkes [1997] HREOCA 34, the HREOC awarded $55,000 in damages to an African former refugee who had suffered racial abuse in the workplace.[7]
  • In Combined Housing Organisation Ltd, Ipswich Regional Atsic for Legal Services, Thompson and Fisher v Hanson [1997] HREOCA 58, the HREOC dismissed a complaint against politician Pauline Hanson over comments about Aboriginal welfare policy.[8]
  • In Mcglade v Lightfoot [1999] HREOCA 1, the HREOC dismissed a complaint aagainst 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, on the basis that he had apologised in the Senate and retracted his comments.[9]
  • In Jacobs v Fardig [1999] HREOCA 9, the HREOC found that a Councillor who had made comments about "shooting" Aboriginal people contravened section 18C.[10]
  • In Jones v Toben [2000] HREOCA 39 the HREOC found that a person had contravened section 18C when they referred to the treatment of Jews in the 1930s and 1940s as having been "mythologised".[11] Following orders made by the Federal Court of Australia to enforce the Commission's decision, in Toben v Jones [2003] FCAFC 137 the Full Court of the Federal Court of Australia dismissed an appeal from those orders, in which the defendant challenged the constitutional validity of section 18C.[12]
  • In McMahon v Bowman [2000] FMCA 3, the Federal Magistrates Court of Australia found that a person had contravened section 18C by calling his neighbour a "black bastard".[13]
  • In Wanjurri v Southern Cross Broadcasting (Aus) Ltd [2001] HREOCA 2, the HREOC found that Southern Cross Broadcasting and journalist Howard Sattler had contravened section 18C, and ordered each to pay the five complainants $10,000 in damages.[14]
  • In Eatock v Bolt [2011] FCA 1103, the Federal Court of Australia held that newspaper commentator Andrew Bolt had contravened section 18C for comments made in relation to fair-skinned Aboriginal persons.[15]
  • In Prior v Queensland University of Technology & Others [2016] FCCA 2853, the Federal Circuit Court of Australia summarily dismissed a claim brought by an indigenous staff member at the Queensland University Technology against certain students for comments made on Facebook after one of them had been evicted from a computer room set aside for indigenous students, on the basis that the claim had no reasonable prospects of success.[16]

Complaint process and remedies[edit]

An aggrieved person may make a complaint of a contravention of the RDA to the Australian Human Rights Commission.[17] 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.[18] When such allegations are upheld, the court may make orders, including for compensation.[19]

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".[20]

In 2011, the Federal Court ruled that commentator Andrew Bolt had contravened section 18C of the RDA. Bolt said that the verdict a "a restriction on the freedom of all Australians to discuss multiculturalism and how people identify themselves".[21]

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.[22][23] The Attorney-General, George Brandis, defended the proposed changes, stating that people have "a right to be bigots".[24] Trade Unionist Paul Howes argued that section 18C stretches out its fingers "into the realm of what Orwell might have called a Thought Crime".[25] After public consultation and opposition by minority groups, the Government did not proceed with the proposed changes.[26]

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.[27] In March 2016, the Australian Law Reform Commission called for review of section 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."[28]

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.[29][30] However, on 12 December 2016 at a Senate inquiry hearing, Triggs declined to restate that position, and said it was a matter for the government to draft proposed changes.[31] Triggs said that "to weaken section 18C in any way would be a seriously retrograde step" and that section 18C "should be strengthened and clarified".[32]

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. ^ Bryant v Queensland Newspaper Pty Ltd, 15 May 1997, retrieved 2016-12-15 
  7. ^ Rugema v Gadsten Pty Ltd & Derkes, 26 June 1997, retrieved 2016-12-15 
  8. ^ Combined Housing Organisation Ltd, Ipswich Regional Atsic for Legal Services, Thompson and Fisher v Hanson, 16 October 1997, retrieved 2016-12-15 
  9. ^ Mcglade v Lightfoot, 21 January 1999, retrieved 2016-12-15 
  10. ^ Jacobs v Fardig, 27 April 1999, retrieved 2016-12-15 
  11. ^ Jones v Toben, 5 October 2000, retrieved 2016-12-15 
  12. ^ Toben v Jones, 27 June 2003, retrieved 2016-12-15 
  13. ^ McMahon v Bowman, 13 October 2000, retrieved 2016-12-15 
  14. ^ Wanjurri v Southern Cross Broadcasting (Aus) Ltd, 7 May 2001, retrieved 2016-12-15 
  15. ^ Eatock v Bolt, 28 September 2011, retrieved 2016-12-15 
  16. ^ Prior v Queensland University of Technology & Ors (No.2), 4 November 2016, retrieved 2016-12-15 
  17. ^ "AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 - SECT 46P Lodging a complaint". www.austlii.edu.au. Retrieved 2016-12-09. 
  18. ^ "AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 - SECT 46PO Application to court if complaint is terminated". www.austlii.edu.au. Retrieved 2016-12-09. 
  19. ^ "AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 - SECT 46PO Application to court if complaint is terminated". www.austlii.edu.au. Retrieved 2016-12-09. 
  20. ^ Adams, Phillip (1995). The Role of the Media. 
  21. ^ "Bolt breached discrimination act, judge rules". ABC News. 2011-09-28. Retrieved 2016-12-07. 
  22. ^ "25 March 2014 - Racial Discrimination Act". www.attorneygeneral.gov.au. Retrieved 2016-12-07. 
  23. ^ Wright, Jessica. "George Brandis to repeal 'Bolt laws' on racial discrimination". The Sydney Morning Herald. Retrieved 2016-12-07. 
  24. ^ "Brandis defends 'right to be a bigot'". ABC News. 2014-03-24. Retrieved 2016-12-07. 
  25. ^ "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. 
  26. ^ Aston, Heath. "Tony Abbott dumps controversial changes to 18C racial discrimination laws". The Sydney Morning Herald. Retrieved 2016-12-07. 
  27. ^ "Parliamentary inquiry into freedom of speech". www.attorneygeneral.gov.au. Retrieved 2016-12-07. 
  28. ^ Manager, Web (2016-01-12). "Laws that interfere with freedom of speech". www.alrc.gov.au. Retrieved 2016-12-09. 
  29. ^ Hunter, Fergus (2016-11-08). "Gillian Triggs backs changes to section 18C as government announces inquiry into freedom of speech". The Sydney Morning Herald. Retrieved 2016-12-15. 
  30. ^ editor, Katharine Murphy Political (2016-11-07). "Gillian Triggs says replacing 'insult' and 'offend' could strengthen 18C". The Guardian. ISSN 0261-3077. Retrieved 2016-12-15. 
  31. ^ Chan, Gabrielle (2016-12-12). "Gillian Triggs says weakening 18C 'a seriously retrograde step'". The Guardian. ISSN 0261-3077. Retrieved 2016-12-15. 
  32. ^ Chan, Gabrielle (2016-12-12). "Gillian Triggs says weakening 18C 'a seriously retrograde step'". The Guardian. ISSN 0261-3077. Retrieved 2016-12-15. 

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