Racial Discrimination Act 1975: Section 9, Section 18C and AHRC Complaints

Section 9: unlawful racial discrimination

Section 9 of the Racial Discrimination Act 1975 prohibits unlawful racial discrimination. It makes it unlawful to undertake any act that involves a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin. Such acts must have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms. Anti-discrimination by state in Australia

The Racial Discrimination Act was Australia's first federal anti-discrimination statute, enacted to implement the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). This provision applies broadly across all areas of public life, and is not limited to employment.

Section 9(1A) expands the scope of this prohibition to include indirect discrimination. This covers situations where terms or conditions are imposed that a person cannot or is not able to comply with, due to their race. Anti-discrimination by state in Australia

Specific areas of public life

The Racial Discrimination Act 1975 outlines specific areas where racial discrimination is unlawful. Sections 11 to 17 detail these protections, covering access to places and facilities, land and accommodation, the provision of goods and services, and employment. Anti-discrimination by state in Australia provides further information on related legislation.

Employment is a key area of focus, with Section 15 specifically prohibiting discrimination in advertisements, hiring processes, terms and conditions of employment, and dismissal. This section aims to ensure fairness and equality in the workplace.

Registered organisations and trade unions are also subject to the Act. Section 16 prohibits racial discrimination by these bodies in relation to membership and access to benefits.

Section 18C: racial vilification

Section 18C makes it unlawful to do an act, otherwise than in private, that is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group and is done because of the race, colour or national or ethnic origin of the other person or group. This section of the Racial Discrimination Act 1975 prohibits actions motivated by racial prejudice. Anti-discrimination by state in Australia

Section 18C was inserted by the Racial Hatred Act 1995, demonstrating a legislative intent to address harmful racial conduct. The definition of “private” is important in determining whether this section applies.

Conduct in a public place, or visible or audible to people in a public place, is taken not to be done in private (s 18C(2)). This clarifies that actions occurring in public view are generally considered to be outside the scope of private conduct for the purposes of this provision.

Section 18D defences and AHRC complaints

Section 18D provides specific exemptions to the Racial Discrimination Act. These exemptions apply to statements or actions undertaken reasonably and in good faith for artistic works, genuine academic, artistic or scientific purposes, or in fair and accurate reporting of a matter of public interest. A further exemption exists for fair comment on a matter of public interest, provided the comment reflects a genuine belief. Anti-discrimination by state in Australia provides further context on related legislation.

Complaints alleging breaches of the Racial Discrimination Act are typically lodged with the Australian Human Rights Commission (AHRC) under Part IIB of the AHRC Act 1986. The AHRC attempts to resolve these complaints through conciliation.

If conciliation fails and the complaint is terminated, the complainant has the option to apply to the Federal Court or Federal Circuit and Family Court. This application must be made within 60 days, as outlined in s 46PO of the AHRC Act. The Racial Discrimination Act binds the Crown in right of the Commonwealth and the States (s 6).