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An International Comparison of the Racial Discrimination Act 1975

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Chapter 1: An Overview of Racial Discrimination Legislation in Each Jurisdiction

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1.1 Australia
1.2 Canada
1.3 United Kingdom
1.4 United States
1.5 European Union

1.1 Australia

The Australian Constitution contains no protection against discrimination, except on the narrow grounds of state residency.^[1] For this reason, the most significant federal protections against race discrimination in Australia are statutory, and are contained within the Australian Racial Discrimination Act 1975 (Cth) (RDA). This Act prohibits “any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom...”.^[2] As well as this general prohibition, the Act makes it an offence to discriminate in a range of specific areas, such as employment, housing and the provision of goods and services.^[3] Since the passage of the Racial Hatred Act 1995, the RDA has also contained provisions prohibiting racial vilification.^[4]

Other laws that are relevant to an understanding of Australia’s federal race discrimination regime include the Human Rights and Equal Opportunity Commission Act 1986 (Cth), which sets out the framework for bringing discrimination complaints,^[5] and the Workplace Relations Act 1996 (Cth), which prohibits discrimination in the specific areas of federally regulated workplace agreements and terminations.^[6] The Public Service Act 1999 (Cth) and the Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth) also impose some positive obligations on federal government authorities and public service agencies with regard to combating race discrimination.

1.2 Canada

The right to freedom from discrimination is protected by section 15 of the Canadian Charter of Rights and Freedoms, which provides that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”^[7] As a ‘Charter right’, the right to non-discrimination prevails over any inconsistent state or federal statute, except in so far as they impose “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.^[8] It is possible, however, for the legislature to expressly exclude the right to equality with respect to specific legislation. This may be done by passing an express declaration, which must be re-enacted every five years, that the law in question is to operate ‘notwithstanding’ that provision of the Charter.^[9]

Outside of the constitutional framework, the key federal legislation regarding race discrimination is the Canadian Human Rights Act.^[10] This Act prohibits discrimination on a number of grounds (including race) in areas such as the provision of services or accommodation, employment or membership of employee organisations. It also creates offences relating to hate messages, harassment and retaliation against persons making complaints under the Act.

Criminal offences relating to the incitement or promotion of racial hatred were introduced in Canada in 2003, and are contained in sections 318-320 of the Canadian Criminal Code.^[11] The Criminal Code also obliges courts to take racially motivated hate or prejudice into account as an aggravating factor when imposing sentences for other crimes.^[12]

Also relevant to a consideration of the Canadian anti-discrimination regime is the Employment Equity Act, passed in 1995.^[13] This act places positive obligations on certain employers to take steps to identify and overcome barriers to diversity in the workplace, and to institute positive policies which may be supervised and enforced by the Canadian Human Rights Commission. Other policy initiatives such as the Federal Contractors Programme for Employment Equity and the Procurement Strategy for Aboriginal Business also operate to impose positive obligations on certain employers involved in providing government services.

1.3 The United Kingdom

The Human Rights Act entered into force in the U.K. in 1998 and incorporated into domestic law certain rights contained within the European Convention for the Protection of Human Rights and Fundamental Freedoms.^[14] While strictly speaking, not a constitutional document the Human Rights Act 1998 has been perceived by many as the equivalent of a non-entrenched ‘bill of rights’ for the United Kingdom. The Act requires the judiciary to interpret all British laws, so far as possible, to be compatible with Convention rights, and makes it unlawful for a public authority to act in a manner that is incompatible with a Convention right unless required to do so by legislation.^[15] Where legislation is incompatible with the Convention, the court may make a declaration of incompatibility. While this declaration does not affect the validity of the legislation, it entitles the government to makes changes in order to remove the incompatibility.^[16] The Human Rights Act 1998 also requires the government to make a statement when introducing new legislation either that the legislation is compatible with the Convention, or that it wishes to proceed with the bill despite its incompatibility.^[17]

Amongst the Convention rights incorporated into domestic law by the Human Rights Act 1998 is the article 14 right, which states that all other rights in the Convention must be secured without discrimination on any ground, including race.^[18] The Convention also includes a protocol which provides that “(t)he enjoyment of any right set forth by law” should be secured without discrimination,^[19] however unlike article 14 this protocol has not been ratified by the United Kingdom, and hence is not enforceable under the Human Rights Act 1998.

Aside from the Human Rights Act 1998, the central piece of anti-race discrimination legislation in the United Kingdom is the Race Relations Act 1976.^[20] This Act makes it an offence to discriminate on the grounds of colour, race, nationality or ethnic or national origins in a range of specific areas including employment, planning, housing, education and provision of goods and services, as well as prohibiting discrimination by public authorities in the course of their duties. It also contains offences relating to the victimisation of complainants, and imposes a positive duty to combat racial discrimination upon certain public sector bodies. Since October 2007, the Race Relations Act 1976 has been administered by the new Commission for Equality and Human Rights, established by the Equality Act 2006. This new body replaced the three Commissions that were responsible for race, sex and disability discrimination, and has additional powers with regards to discrimination on the grounds of religion or sexuality.

Offences relating to racial hatred in the United Kingdom are contained within the Public Order Act 1986, specifically sections 17-27, which contain a range of offences relating to the use of threatening, abusive or insulting communication which is intended or likely to cause racial hatred.^[21] The Crime and Disorder Act 1998 also contains offences of racially or religiously aggravated assault, criminal damage, public order offences or harassment.^[22]

1.4 The United States

The fourteenth amendment, often referred to as the ‘Equal Protection Clause’ was added to the U.S. Constitution in 1868. It provides that “No State shall... deny to any person within its jurisdiction the equal protection of the laws.”^[23] While this clause applies only to states, and not to federal government actions, the courts have inferred a similar constitutional duty of equality from the fifth amendment to the Constitution, which does place limits upon federal government power.^[24]

Federal statute law prohibiting race discrimination in the U.S. includes the Civil Rights Act of 1866 (reenacted after the 14^th Amendment as the Civil Rights Act of 1870), which declares that all persons must receive equal treatment under the law and possess the same rights to make, enforce and enjoy the benefits of contracts.^[25] In more recent times, the key piece of legislation has been the Civil Rights Act of 1964, which prohibits discrimination in the areas of voter registration,^[26] provision of services in hotels, restaurants and places of entertainment,^[27] access to public facilities,^[28] education,^[29] federally funded programs^[30] and some areas of employment.^[31] Other relevant anti-discrimination legislation includes the Civil Rights Act of 1968 Title VIII (also known as the Fair Housing Act of 1968), which prohibits discrimination in the area of housing and housing finance.^[32]

The Civil Rights Act of 1964 also prohibits discrimination in employment by federal agencies, and requires them to institute a program of affirmative action monitored and approved by the Equal Employment Opportunity Commission.^[33] These affirmative action policies are also imposed upon Federal Government contractors, subcontractors and suppliers by Executive Order 11246.

United States racial hatred laws are circumscribed by the strong constitutional emphasis on the right to freedom of speech.^[34] It is a criminal offence under federal law to intimidate or interfere with a person because of their race so as to prevent them from undertaking certain federally protected activities such as attending a public school, applying for employment, serving on a jury, etc. These offences only apply, however, where the intimidation or interference involves either the use or threat of force, therefore distinguishing violent actions (or threats of violence) from racist or offensive speech.^[35] The Local Law Enforcement Hate Crimes Prevention Act of 2007, which has been passed by the U.S. House of Representatives and is now before the Senate, would create additional federal ‘hate crime’ offences, and provide federal assistance to state bodies in investigating such offences at the local level.^[36] Once again, however, these offences focus on racially motivated violence (involving actual or attempted bodily injury) rather than hate speech.

1.5 The European Union

The European Union currently consists of 27 independent European countries, bound together by treaty. The Union itself possesses its own legislative, judicial and administrative institutions which are responsible for upholding and implementing this treaty law. Directives issued by the Council of the European Union are binding on all member states, who must take steps to transpose them into national law. Where the state fails to do so, directives that are sufficiently “clear, precise and unconditional” may be directly enforceable by an individual against the state in the European Court of Justice.^[37] A state which fails to implement the directives may also be ordered to pay a financial penalty by the Court.^[38]

The European Union gained the specific power to legislate with regards to race discrimination in 1999, through the Treaty of Amsterdam.^[39] This Treaty amended the existing Treaty on Establishing the European Community, specifically authorising the European Council to “take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”^[40]

Shortly after these powers came into effect, the European Council issued a directive “implementing the principle of equal treatment between persons irrespective of racial or ethnic origin”, commonly known as the Racial Equality Directive.^[41] This directive required all member states to put in place a legal framework to combat race discrimination within their individual jurisdictions before July 2003. It also laid out the minimum requirements of such legislation, which must protect the principle of equal treatment in fields including employment, membership of professional organisations, social services, education and access to goods and services. In addition, the directives impose minimum requirements for the enforcement of such legal rights, including requirements relating to who may have standing to bring forth a claim, and the burden of proof that may be imposed.

In December 2000, a Charter of Fundamental Rights for the European Union was proclaimed, containing the declaration that “(a)ny discrimination based on any ground such as sex, race, colour, ethnic or social origin... shall be prohibited.”^[42] While this text may have some influence on the European Court of Justice, and may potentially be included in a future EU Constitution,^[43] at present it is not considered treaty law, and is thus not in itself binding on state members.

The European Convention for the Protection of Human Rights and Fundamental Freedoms^[44] is also of relevance within the context of the European Union. While this treaty was created by the Council of Europe, which is a separate political entity to the European Union, all EU member states are signatories to the Convention, and the institutions of the European Union have indicated their intention to respect the Convention rights.^[45] As already noted above (with respect to the United Kingdom), the Convention prohibits discrimination with regards to securing Convention rights.^[46] It also contains a more general, but less widely ratified, protocol prohibiting discrimination.^[47]

Table 2. Summary of Race Discrimination Legislation in the Five Jurisdictions^[48]

* As amended and codified in the United States Code Title 42 Chapter 21 (Civil Rights)

** As amended and codified in the United States Code Title 42 Chapter 45 (Fair Housing)

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^[1] Australian Constitution s 117.
^[2] Racial Discrimination Act 1975 (Cth) s 9.
^[3] Ibid ss 10-16.
^[4] Ibid s 18C.
^[5] Human Rights and Equal Opportunity Commission Act 1986 (Cth) Part IIB.
^[6] Workplace Relations Act 1996 (Cth) see especially ss 222, 659.
^[7] Canadian Charter of Rights and Freedoms, Schedule B Constitution Act 1982 (UK), c 15(1).
^[8] Ibid, c 1.
^[9] Ibid, c 33, commonly known as the ‘notwithstanding clause’.
^[10] Canadian Human Rights Act, R.S., 1985, c. H-6.
^[11] Criminal Code, RS, 1985, c C-46 ss 318-320.
^[12] Ibid s 718.2 (a)(i).
^[13] Employment Equity Act SC, 1995, c 44.
^[14] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, CETS 5 (entered into force 3 September 1953).
^[15] Human Rights Act 1998 (UK) c 42 ss 3 and 6.
^[16] Ibid ss 4 and 10.
^[17] Ibid s 19.
^[18] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, CETS 5, art 14 (entered into force 3 September 1953).
^[19] Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 2000, CETS 177, art 1 (entered into force 1 April 2005).
^[20] Race Relations Act 1976 (UK) c 74.
^[21] Public Order Act 1986(UK) c 64 ss 17-27.
^[22] Crime and Disorder Act 1998 (UK) c 37 ss 28-33.
^[23] United States Constitution, amend XIV, § 1.
^[24] Bolling v Sharpe, 347 US 497 (1954) at 500.
^[25] Civil Rights Act of 1866, 42 USC § 1981.
^[26] Civil Rights Act of 1964, 42 USC § 1971.
^[27] Ibid 42 USC § 2000a.
^[28] Ibid 42 USC § 2000b.
^[29] Ibid 42 USC § 2000c.
^[30] Ibid 42 USC § 2000d.
^[31] Ibid 42 USC § 2000e.
^[32] 42 USC §§ 3601-3607.
^[33]Civil Rights Act of 1964, 42 USC § 2000e-16, see also Exec Order No 11478, 3 CFR 803 (1966-1970).
^[34] United States Constitution, amend I.
^[35] 18 USC § 245.
^[36] Local Law Enforcement Hate Crimes Prevention Act of 2007 HR 1592 (110^th U.S. Congress: 2007-2008).
^[37] Van Gend & Loos (C-26/62) [1963] ECR 1; referred to in European Commission, Enforcement of the Directives (2007), http://ec.europa.eu/employment_social/fundamental_rights/legis/lgenforce_en.htm (accessed 9/7/07).
^[38] Treaty of the Treaty on Establishing the European Community, [2002] OJ C 325, art 228.
^[39] Treaty of Amsterdam, opened for signature 2 October 1997, [1997] OJ C 340, (entered into force 1 May 1999).
^[40] Consolidated Version of the Treaty on Establishing the European Community, [2002] OJ C 325, art 13.
^[41] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective or racial or ethnic origin [2000] OJ L180/22.
^[42] Charter of Fundamental Rights for the European Union [2000] OJ 364/01 art 21(1).
^[43] A proposal to establish a Constitution for Europe, which included the Charter, was signed by all EU members in October 2004, but failed to obtain ratification due to the negative results of referendums in some member states. New attempts to create an alternative constitution are currently under way.
^[44] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, CETS 5 (entered into force 3 September 1953).
^[45] See for instance, “Joint Declaration by the European Parliament, the Council and the Commission on fundamental rights, of 5 April 1977”, http://europa.eu/abc/treaties/archives/en/entr25.htm (accessed 9/7/07).
^[46] Convention for the Protection of Human Rights and Fundamental Freedoms, Rome 4.XI.1950 Article 14.
^[47] Ibid, Protocol 12.
^[48] Australian legislation can be found at: http://www.austlii.edu.au/     
    Canadian legislation can be found at: http://www.canlii.org/en/index.html
    United Kingdom legislation can be found at: http://www.bailii.org/
    United State legislation can be found at: http://www.law.cornell.edu/

 

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