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Guide to the Racial Discrimination Act

Following is an easy-to understand Guide to the Racial Discrimination Act. (PDF Icon 604KB)

How Australia got its human rights law

In 1966, many countries gathered at the United Nations to discuss how to deal with the problem of racial discrimination.

As a result of these discussions, the countries formed an international agreement which is now an important part of international human rights law. The agreement is called the International Convention on the Elimination of All Forms of Racial Discrimination. In this document, we refer to it as ‘the Convention’.

The Convention says that racial discrimination occurs if a person is, or a group of people are:

Now 156 countries have agreed to the Convention.

Australia's commitment to stop racial discrimination

Australia ratified the Convention on 30 September 1975.  This means that Australia promises to do the following:

Rights and freedoms guaranteed to all Australians

Some of the basic rights and freedoms guaranteed under the Convention include:

For more information on the Convention, visit:

http://www.unhchr.ch/html/menu3/b/d_icerd.htm

What are Australia’s laws against racial discrimination?

The most important thing Australia has done to uphold the Convention is to pass the Racial Discrimination Act 1975 (Cth). In this document, we refer to that law as ‘the Act’. It began on 31 October 1975.  Each of the states and territories has adopted similar legislation.

Racial discrimination laws under the Act

The Actsupports 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.  We discuss it below.

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.  We discuss it at page 8.

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.  We discuss these in more detail at page 10.

Religious discrimination and hatred not covered by the Act

Although the Act does not prohibit discrimination or vilification against someone because of their religion, there are other laws that apply in this situation.  We discuss them at page 10.

The Act: 2 types of racial discrimination

The Act prohibits 2 different types of discrimination:

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'.

Example

An Aboriginal woman complains that security guards at a shopping centre stopped, questioned and then followed her 15 year old daughter. The mother believes her daughter is being discriminated against because of her race and age. She thinks that the security guards follow all Aboriginal young people around and either stop them entering or from moving freely around the centre.


Example

An Egyptian man who is employed by a real estate company feels he is being treated less fairly and harassed because of his race. This is being done by the owner and another sales person. They make comments such as "dirty little Arab" and "Sand Nigger". They ask him about his “camel”. They make fun of his accent. After 9 months, the Egyptian man felt pressured to resign.

What ‘indirect discrimination’ is prohibited?

The Act prohibits a policy or rule:

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.

Example

A supermarket requires the people who stack its shelves at night to have a high level of English language skills — even though at work they rarely need to speak with anyone. This requirement disadvantages newly arrived refugees as they are less likely to have English skills and so are less likely to be hired. This is indirect discrimination. 

(However, if the job was taking telephone orders of groceries, then a requirement of good English skills would not be discrimination and so would be acceptable.)

Who must comply with the Act?

The Act applies to:

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: 

What you can do?

If you are discriminated against in any of these situations, then you can make a complaint — using the Act to help you get fair and equal treatment. See page 11.

In what situation is discrimination allowed?

It is not against the law to make racial distinctions:

What are the requirements for ‘special measures’?

For ‘special measures’ to be lawful, they must:

Example

Indigenous health services are a legitimate special measure because they are designed to help Indigenous people equally enjoy the right to health (which is a basic human right). Since special measures must be temporary, Indigenous health services will stop qualifying as a special measure once Indigenous people enjoy health standards equivalent to other Australians.

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

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. 

What are some examples of ‘racial hatred’?

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

When is ‘racial hatred’ not prohibited by the Act?

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

To strike this balance, the Act does not prohibit:

When is behaviour ‘in public’?

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

Example of NOT ‘in public’

If someone behaves offensively during a private telephone conversation or in someone’s home at a party, then that is private. So because the behaviour is not ‘in public’ it is not prohibited.


Example of ‘in public’

A woman says her neighbour called her 15 year old daughter a "black nigger" out the front of their home, where it could have been heard from the street. This is prohibited as it is ‘in public’.


Example of ‘in public’

A radio presenter made insulting comments about an African performing group who had recently toured Australia. The presenter also made offensive statements about people of African backgrounds by saying they were “uncivilised”, “tribal in the way they lived”, that “they should go back to their country” and made reference to them as belonging to “mud races”. One of the performers or any member of the African community living in Australia could make a complaint on the basis that the comments were likely to offend, insult and humiliate African people.

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":

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

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. 

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 race discrimination against the law.

These laws mean that:

The following table shows those states and territories that have racial discrimination laws, religious discrimination laws, racial hatred laws and religious hatred laws.

 

Federal

NSW

QLD

VIC

SA

WA

ACT

TAS

NT

Racial Discrimination

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Religious Discrimination

No*

No**

Yes

Yes

No

Yes

Yes

Yes

Yes

Racial Vilification/Hatred

Yes

Yes

Yes

Yes

Yes

No

Yes

Yes

No

Religious Vilification/Hatred

No

No

Yes

Yes

No

No

No

Yes

No

* HREOC can hear complaints about religious discrimination in employment.
** There is protection for ethno-religious discrimination under the NSW definition of racial discrimination.

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

What can you do if you experience racial discrimination or racial hatred?

If you have been discriminated against or vilified because of your race there are a number of things you can do about it. You can:

How do you complain to the Human Rights and Equal Opportunity Commission (HREOC)?

Normally, a complaint can be made only by:

For example, you cannot complain formally about someone talking about ‘dirty Greeks’ if you are not of Greek background. However, if a non-Greek person wishes to make a complaint, they can do so on behalf of a Greek person if they have that person’s written permission to do so.

For more information on HREOC and its complaints process, see page...

If you are thinking about making a complaint, then you might want to also think about speaking with:

Download the Compliant Handling Process

This information is also available for download in PDF Document for Download PDF (1.4 MB) Format

Where can you make a complaint or find out more information?

Contact details across Australia

If you believe you have been racially discriminated against or racially vilified you may be able to put in a complaint at the following places:

National - Human Rights and Equal Opportunity Commission (HREOC)

The Human Rights and Equal Opportunity Commission was established in 1986 by an act of the Federal Parliament. Our goal is to foster greater understanding and protection of human rights in Australia and to address the human rights concerns of a broad range of individuals and groups. We are an independent statutory organisation and report to the federal parliament through the Attorney-General.

The Commission’s responsibilities include education and public awareness, discrimination and human rights complaints, human rights compliance and policy and legislative development.

Complaints Infoline: 1300 656 419 (cost of a local call)

Website: www.humanrights.gov.au

(If you are deaf or hearing impaired, the Commission can arrange for an Auslan interpreter if you need it. You can also communicate with us by TTY by calling 1800 620 241)

Complaints about the media

You can also complain to the Editor or Manager of the media organisation. Also:

For complaints about newspapers and magazines publications- Australian Press Council Complaints Infoline: 1800 025 712

Website: http://www.presscouncil.org.au/

For complaints about advertisements- Australian Advertising Standards Council

Complaints Infoline: (02) 6262 9822

Website: http://www.advertisingstandardsbureau.com.au/about_the_asb.html

For complaints about material on television, radio or the Internet- Australian Broadcasting Authority

Complaints Infoline: 1800 226 667 / TTY: (02) 9334 7777

Website: http://www.aba.gov.au/

[1] The reservation reads: “The Government of Australia ... declares that Australia is not at present in a position specifically to treat as offences all the matters covered by article 4 (a) of the Convention. Acts of the kind there mentioned are punishable only to the extent provided by the existing criminal law dealing with such matters as the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4 (a).”