Racial Discrimination Act 1975

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).

In Bligh and Ors v State of Queensland [1996] HREOCA 28, the Human Rights and Equal Opportunity Commission (precursor to the Australian Human Rights Commission) found in favour of a number of Aboriginal applicants who had worked on Great Palm Island Aboriginal reserve and were underpaid between 31 October 1975 (the RDA start date) and 31 May 1984.[6][7] A$7,000 was awarded to each applicant, although the evidence suggested that the loss of income A$8,573.66 to A$20,982.97 .[6][8][9] Following this case, the Queensland Government settled 5,729 claims with a single payment of A$7,000 under the Award Wages Process, established in May 1999, to Indigenous people employed by the government on Aboriginal reserves between 1975 and 1986 (the date their policy of paying below-award rates to Indigenous Australians officially ended).[6]

In Wotton v Queensland (No 5) police raids and behaviour following the 2004 Palm Island community riot, sparked by the death in custody of an Aboriginal man, were found to have breached the Racial Discrimination Act with $220,000 in damages awarded in 2016.[10][11] Police actions were described in the judgement as "unnecessary, disproportionate" with police having "acted in these ways because they were dealing with an Aboriginal community."[11] Dozens of police officers in riot gear wearing balaclavas with no identification and carrying large guns had marched into the community conducting early-morning raids on 27 November 2004. Residents reported officers kicking down doors, pointing guns at children's heads, and tasering residents.[11] with one resident and his partner awarded $235,000 compensation for assault, battery and false imprisonment in a separate case.[12] Subsequently, this led to a record class action settlement of $30 million and a formal apology issued by the Queensland State Government in May 2018.[13]

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.[14][15]

While some conservative politicians have claimed the bar for breaching 18C is too low,[16][17] courts have consistently shown that this is not the case, and to fall within 18C the speech must have "... profound and serious effects, not to be likened to mere slights."[18]

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.[19]
• 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.[20]
• 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.[21]
• In Mcglade v Lightfoot [1999] HREOCA 1, the HREOC dismissed a complaint 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, on the basis that he had apologised in the Senate and retracted his comments.[22]
• In Jacobs v Fardig [1999] HREOCA 9, the HREOC found that a Councillor who had made comments about "shooting" Aboriginal people contravened section 18C.[23]
• 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".[24] 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.[25]
• 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".[26]
• 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.[27]
• 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.[28]

An aggrieved person may make a complaint of a contravention of the RDA to the Australian Human Rights Commission.[29]^{:section 46P} 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.[29]^{:section 46PO} When such allegations are upheld, the court may make orders, including for compensation.[29]