Racial Discrimination Act 1975
The Racial Discrimination Act 1975 (RDA) is a statute passed by the Australian Parliament during the Prime Ministership of Gough Whitlam.[1]
The RDA makes racial discrimination unlawful in Australia and overrides inconsistent States and Territory legislation, making the State or Territory law ineffective to the extent of the inconsistency. The power of the national Parliament to pass this over-riding law arises under the "external affairs" power contained in section 51(xxix) of the Australian Constitution. The power arose from the 1965 International Convention on the Elimination of all Forms of Racial Discrimination which Australia ratified in September 1975. This use of the power in this manner was confirmed in the landmark High Court decision in Koowarta v. Bjelke-Petersen in 1982 and maintained in Mabo v Queensland (No 1). [2]
Contents
Definition of racial discrimination under the Act
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).
- Certain offensive behaviour will also be found discriminatory if it is likely to offend, insult, humiliate or intimidate people of a certain race, colour or national or ethnic origin (section 18 B-F) [3][4]
- Section 18D of the RDA outlines the exemptions to s18C. However, the courts have previously established in Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 that they "will not use freedoms as a cover to offend, insult, humiliate or intimidate people by reason of their colour or ethnic or national origin. [5]
If there is no freedom to "offend" then it is not just Freedom of Association (which must logically include the freedom to not associate) that the Act violates - if there is no freedom to "offend" then the Act also violates Freedom of Speech.
Australian Human Rights Commission
The Racial Discrimination Act is administered by the Australian Human Rights Commission ("AHRC"), the Australian human rights and equal opportunities watchdog, with an Australian Human Rights Commissioner responsible for investigating complaints.
The Commission also attempts to raise awareness about the obligations that individuals and organisations have under the Act.
Andrew Bolt defamation case
In September 2010, nine individuals commenced legal proceedings in the Federal Court against 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.[6] The applicants claimed the posts breached the Racial Discrimination Act. They sought an apology, legal costs, and a gag on republishing the articles and blogs, and "other relief as the court deems fit". They did not seek damages.[7] On 28 September 2011, Bolt was found to have contravened section 18C of the Racial Discrimination Act.[8][9]
See also
- Australian Human Rights Commission
- Northern Territory National Emergency Response
- Racism in Australia
References
- ↑ http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/29DCCB9139D4CCD8CA256F71004E4063/$file/RDA1975.pdf
- ↑ Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
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- ↑ Bropho v Human Rights & Equal Opportunity Commission [2002] FCA 1510 (4 December 2002)
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