Site navigation

Change font size: SmallerLargerReload

Legal Research & Resources navigation

Federal Discrimination Law Online

Chapter 3 The Racial Discrimination Act

Back to index
PDF document for download Download Chapter 3 in PDF [528 KB]
Word document for download Download Chapter 3 in Word [540 KB]

3.1 Introduction to the RDA

3.1.1 Scope of the RDA

The RDA was the first Commonwealth unlawful discrimination statute to be enacted and is different in a number of ways from the SDA, DDA and ADA.[1] This is because it is based to a large extent on, and takes important parts of its statutory language from, the International Convention on the Elimination of all Forms of Racial Discrimination[2] (‘ICERD’). A copy of ICERD is scheduled to the RDA.[3]

Unlike the SDA, the DDA and the ADA, the RDA does not provide a discrete definition of discrimination[4] and then identify the specific areas of public life in which that discrimination is unlawful.[5] Also unlike the SDA, DDA and ADA which contain a wide range of permanent exemptions[6] and a process for applying for a temporary exemption,[7] there are only a limited number of statutory ‘exceptions’ to the operation of the RDA[8] (see 3.3 below).

Part II of the RDA sets out the prohibitions of racial discrimination and the right to equality before the law under s 10. Part IIA of the RDA, which was introduced in 1995, prohibits offensive behaviour based on racial hatred (discussed in detail under 3.4 below).

(a) The prohibition on discrimination in s 9

Section 9(1) prohibits what is generally known as ‘direct’ race discrimination:

(1) It is unlawful for a person to do 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 in the political, economic, social, cultural or any other field of public life.

Section 9 makes unlawful a wide range of acts (‘any act’ involving a relevant distinction etc which has a relevant purpose or effect) in a wide range of situations (‘the political, economic, social, cultural or any other field of public life’).

Section 9(1A), which was inserted into the RDA in 1990, prohibits ‘indirect’ race discrimination:

(1A) Where:

  • (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
  • (b) the other person does not or cannot comply with the term, condition or requirement; and
  • (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

In addition to the general prohibition on race discrimination in s 9, ss 11-15 of the RDA also specifically prohibit discrimination in the following areas of public life:[9]

Discrimination for the purposes of these specific prohibitions will be unlawful when a person is treated less favourably than another ‘by reason of the first person’s race, colour or national or ethnic origin’. These sections do not limit the generality of s 9[15] and have been described as ‘amplifying and applying to particular cases the provisions of s 9’.[16]

Complaints alleging race discrimination are sometimes considered under both s 9(1) and one of the specific prohibitions.[17]

(b) The right to equality before the law in s 10

Section 10 of the RDA provides for a general right to equality before the law:[18]

10 Rights to equality before the law

(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in article 5 of the Convention.

(3) Where a law contains a provision that:

  • (a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
  • (b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;

not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.

There is no equivalent to s 10 in other State or Commonwealth anti-discrimination legislation. Section 10 does not make unlawful any acts, omissions or practices. It is ‘concerned with the operation and effect of laws’[19] rather than with proscribing the acts or conduct of individuals.

The language of s 10(1) does not require the complainant to show that the infringement of their rights was ‘based on’[20] or ‘by reason of’[21] race, colour, or national or ethnic origin. The question under s 10 is whether the complainant, because of the operation and effect of law, does not enjoy a right to same extent as others not of that race. As the Full Federal Court in Bropho v Western Australia[22] (‘Bropho’) stated:

In general terms, s 10(1) of the RD Act is engaged where there is unequal enjoyment of rights between racial or ethnic groups: see Ward v Western Australia (2002) 213 CLR 1. Section 10(1) does not require the Court to ascertain whether the cessation of rights is by reason of race, with the clear words of s 10 demonstrating that the inquiry is whether the cessation of rights is ‘by reason of’ of [sic] the legislation under challenge. Further, s 10 operates, not merely on the intention, purpose or form of legislation but also on the practical operation and effect of legislation (Gerhardy v Brown, at 99; Mabo v Queensland [no 1] (1988) 166 CLR 186 at 230-231; Western Australia v Ward at 103).[23]

Therefore, to make a successful claim under s 10 of the RDA, the complainant must be able to show:

For example, in Mabo v Queensland[25] the High Court considered whether the Queensland Coast Islands Declaratory Act 1985 (‘the Queensland Act’) breached s 10 of the RDA. The Queensland Act declared that the Murray Islands, upon first becoming part of Queensland in 1879, were vested in the Crown in right of Queensland, to the exclusion of all other rights and claims.

The majority of the High Court held that the Queensland Act discriminated on the basis of race in relation to the human rights to own property and not to be arbitrarily deprived of property, in that the native title interests that the Act sought to extinguish were only held by the indigenous inhabitants of the Murray Islands (the Miriam people). The majority found that the Queensland Act impaired the rights of the Miriam people ‘while leaving unimpaired the corresponding human rights of those whose rights in and over the Murray Islands did not take their origin from the laws and customs of the Miriam people’. [26] Therefore, the Queensland Act was inconsistent with s 10 of the RDA and, by virtue of s 109 of the Constitution, invalid.

In Bropho, the Full Court held that, in applying s 10, it is necessary to recognise that some rights, such as property rights, are not absolute in their nature. Accordingly, actions that impact upon the ownership of property may not necessarily invalidly diminish the rights to ownership of property. The Court held that ‘no invalid diminution of property rights occur where the State acts in order to achieve a legitimate and non-discriminatory public goal.’[27] The Court noted, however, that its reasoning was not ‘intended to imply that basic human rights protected by the [RDA] can be compromised by laws which have an ostensible public purpose but which are, in truth, discriminatory’.[28]

In Bropho, the Reserves (Reserve 43131) Act 2003 (WA) (‘Reserves Act’) and actions taken under it were said to have limited the enjoyment of the property rights of the Aboriginal residents of the Swan Valley Nyungah Community (Reserve 43131) by, in effect, closing that community. The Court held that any interference with the property rights of residents was effected in accordance with a legitimate public purpose, namely to protect the safety and welfare of residents of the community.[29] It therefore did not invalidly diminish the property rights of the residents.

(c) The interface between ss 9 and 10

Section 9(1) applies to allegations that an act or conduct of a person[30] is discriminatory.[31]

Section 10 applies to a law that is alleged to be discriminatory in its terms or its practical effect.[32] To make a successful claim under s 10 of the RDA, the complainant must be able to show that the discrimination complained of arises by reason of a statutory provision.[33]

The making of laws by the Commonwealth and State and Territory legislatures or delegated lawmakers cannot be challenged as an act under s 9.[34] Instead, the resulting law or delegated law can only be challenged under s 10.

Determining whether s 9 or s 10 applies in any particular case is important because different forms of action are required to be taken by a complainant depending on whether it is s 9 or s 10 that is said to be breached in a particular case.

Where s 9 is alleged to have been breached, a complaint of unlawful racial discrimination may be made to HREOC.[35] If the complaint cannot be resolved by conciliation, the President must terminate the complaint[36] and the person making the complaint can seek a legally enforceable decision from the Federal Court of Australia or the Federal Magistrates Court about whether discrimination has occurred.[37]

In Bropho v Western Australia,[38] Nicholson J held that, while ordinarily an applicant claiming racial discrimination under s 9 must follow the procedures for making complaints to HREOC set out in the HREOC Act, issues as to constitutional validity can be litigated independently of the HREOC Act.[39]

In contrast to s 9 of the RDA, a person cannot rely upon s 10 to make a complaint of unlawful discrimination to HREOC. HREOC has no jurisdiction to inquire into an allegation that a State or Territory law is invalid because it is inconsistent with s 10(1). Rather, a person must lodge proceedings in either the Supreme Court of the State or Territory in which the legislation was made[40] or in the Federal Court.[41]

top | contents

3.1.2 Other unlawful acts and offences

Under s 17 of the RDA it is unlawful to incite or to assist the doing of an act of unlawful racial discrimination. To establish a successful claim the respondent will need to show the respondent was ‘actively inciting or encouraging’ behaviour that is made unlawful by Part II of the RDA or that the respondent assisted or promoted the doing of such acts.[42]

Section 16 of the RDA also prohibits the publication or display of an advertisement that indicates an intention to do an act of unlawful racial discrimination.

The RDA does not make it a criminal offence to do an act that is made unlawful by the provisions of Part II or Part IIA of the Act.[43] However, Part IV sets out a number of specific offences, including:

by reason that the other person:

Conduct constituting such offences is also included in the definition of ‘unlawful discrimination’ in s 3 of the HREOC Act (see 1.2.1 above), allowing a person to make a complaint to HREOC in relation to it.

top | contents

3.1.3 Interaction between RDA, State, Territory and other Commonwealth Laws

Sections 9 and 10 of the RDA interact with State, Territory and other Commonwealth laws in a number of ways.

(a) Impact of s 10 on enjoyment of rights

Section 10(1) operates to extend the enjoyment of rights under State, Territory and other federal laws where those laws otherwise fail to make a right universal. In Gerhardy v Brown,[46] Mason J stated:

If racial discrimination arises under or by virtue of State law because the relevant State law merely omits to make enjoyment of the right universal, ie by failing to confer it on persons of a particular race, then s 10 operates to confer that right on persons of that particular race. In this situation the section proceeds on the footing that the right which it confers is complementary to the right created by the State law. Because it exhibits no intention to occupy the field occupied by the positive provisions of State law to the exclusion of that law the provisions of the State law remain unaffected.[47]

(b) Impact of s 10 on discriminatory State laws

Section 10(1) operates to make invalid, by virtue of s 109 of the Constitution,[48] State laws that would otherwise operate to discriminate against people of a particular race by denying them rights or freedoms[49] regardless of the date the State law was enacted.[50] As Mason J in Gerhardy v Brown stated:

When racial discrimination proceeds from a prohibition in a State law directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race, by virtue of that State law, s 10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race. This necessarily results in an inconsistency between s 10 and the prohibition contained in the State law.[51]

(c) Impact of s 10 on discriminatory Territory laws

Section 109 of the Constitution does not apply to a conflict between a Commonwealth law and a Territory law. A Territory legislature, established under s 122 of the Constitution, is a subordinate legislature to the Commonwealth, and is not competent to pass laws that are repugnant to a Commonwealth law. Therefore, depending on the legislative scheme in place in a particular Territory, a law of that Territory may be ‘treated as ineffective’ to the extent that it is inconsistent with s 10 of the RDA.[52]

(d) Impact of s 10 on discriminatory Commonwealth laws

Section 10 may operate to repeal racially discriminatory Commonwealth legislation enacted prior to the enactment of the RDA on 31 October 1975.[53] Whether repeal of the inconsistent law has occurred will be determined on a case by case basis.

Section 10 cannot, however, prevent the enactment of a discriminatory Commonwealth law after 31 October 1975 which expressly or impliedly repeals the RDA.[54]

Section 10 has been used as a basis for challenging Commonwealth regulations alleged to deny or impair the enjoyment of rights by members of a particular national origin.[55]

In Clark v Vanstone,[56] Gray J held that it was necessary, by virtue of s 10 of the RDA (amongst other factors), to read down s 4A(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (‘the ATSIC Act’) and cl 5(1)(k) of a 2002 Determination made under it relating to ‘misbehaviour’. This was on the basis that the effect of these provisions was to impose a higher standard on office holders under the ATSIC Act (who were more likely to be Indigenous people) than on those elected or appointed to similar offices and was therefore discriminatory.

On appeal in Vanstone v Clark,[57] this aspect of the decision of Gray J was overturned. Weinberg J, with whom Black CJ agreed, noted that the 2002 Determination applied to positions held by both Indigenous and non-Indigenous persons and that ‘it is no answer to the structure and text of the ATSIC Act to engage in speculation that holders of such officers were likely to be indigenous’.[58] His Honour stated:

Had the 2002 Determination provided a different test for suspension or termination of indigenous persons from that applicable to non-indigenous persons, it would obviously trigger the operation of s 10, and result in an adjustment of rights, as a matter of construction, as contemplated by the section... However, that is not the case here. There is no inconsistency of treatment based upon race within either the Act, or the 2002 Determination.[59]

(e) Impact of s 9 on State laws

Section 9 of the RDA may also render invalid inconsistent State laws, by virtue of s 109 of the Constitution. As Mason J in Gerhardy v Brown observed:

The operation of s 9 is confined to making unlawful the acts which it describes. It is s 10 that is directed to the operation of laws, whether Commonwealth, State or Territory laws, which discriminate by reference to race, colour or national or ethnic origin... This is not to say that s 9 of the [RDA] cannot operate as a source of invalidity of inconsistent State laws, by means of s 109 of the Constitution. Inconsistency may arise because a State Law is a law dealing with racial discrimination, the Commonwealth law being intended to occupy that field to the exclusion of any other law: Viskauskas v Niland (1983)153 CLR 280. Or it may arise because a State law makes lawful the doing of an act which s 9 forbids: see Clyde Engineering Co. Ltd. v Cowburn (1926) 37 CLR 466 at 490.[60]

(f) The RDA does not invalidate State laws that promote the objects of ICERD

In Viskauskas v Niland[61] the High Court held that the RDA was intended to ‘cover the field’ in relation to racial discrimination in the provision of goods and services. Therefore, Pt II of the Anti-Discrimination Act 1977 (NSW), which dealt with racial discrimination, was inconsistent and constitutionally invalid.

Following the decision in Viskauskas v Niland, the Commonwealth introduced s 6A into the RDA which, in ss (1), provides that the RDA ‘is not intended, and shall be deemed never to have been intended to exclude or limit the operation of a law of a State or Territory’ which promotes the objects of the ICERD and is capable of operating concurrently with the RDA.[62]

However, in University of Wollongong v Metwally[63] the majority of the High Court held that this amendment could only have effect from the date it was enacted as Parliament was unable to deem that an inconsistency that had arisen by virtue of s 109 of the Constitution had never existed.[64]

A person is required to choose between making a complaint of racial discrimination or racial hatred under the HREOC Act and taking action under the equivalent State or Territory legislation. If action has been taken under the State or Territory legislation, the person is statute barred from making a complaint under the HREOC Act.[65]

top | contents

3.1.4 Constitutionality

(a) The RDA is supported by the external affairs power

The constitutional validity of the RDA was considered in Koowarta v Bjelke Petersen.[66] In this case, the Queensland Government refused to approve a transfer of Crown lease to the Aboriginal Land Fund Commission for the benefit of John Koowarta and other members of the Winychanam Group. When Mr Koowarta brought proceedings alleging that the Queensland Government’s refusal to transfer the lease breached s 9 and s 12 of the RDA, the Queensland Government challenged the constitutional validity of the RDA.

The High Court upheld the validity of s 9 and s 12 of the RDA as an exercise of the Commonwealth’s power to make laws with respect to external affairs under s 51 (xxix) of the Constitution. The High Court held that the RDA was enacted to give effect to Australia’s international obligations under the ICERD.[67]The majority rejected the submission that the RDA was supported by s 51 (xxvi) of the Constitution which gives the Commonwealth the power to make laws with respect to the people of any race for whom it is deemed necessary to make special laws, on the basis that ss 9 and 12 applied equally to all persons and were not a special law for the people of any one race.[68]

(b) Part IIA of the RDA does not infringe the implied right of freedom of political communication

The case of Hobart Hebrew Congregation v Scully[69] considered whether Part IIA of the RDA (prohibiting offensive behaviour based on racial hatred) infringed upon the implied constitutional right of freedom of political communication. Commissioner Cavanough referred to Lange v Australian Broadcasting Corporation[70] and Levy v Victoria[71] and found that while the restrictions imposed by s 18C(1) of the RDA might, in certain circumstances, burden freedom of communication about government and political matters, the exemptions available in s 18D meant that Part IIA of the RDA was ‘reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of government prescribed under the Constitution’.[72] The legitimate end included the fulfilment of Australia’s international obligations under ICERD, in particular article 4.

In Toben v Jones,[73] the appellant argued that to interpret s 18C of the RDA as extending beyond the expression of racial hatred would lead to that section being outside the scope of the external affairs power in s 51(xxix) of the Constitution, as article 4 of ICERD specifically refers to discrimination because of ‘racial hatred’.

The Full Federal Court held that s 18C of the RDA was constitutionally valid (and did not need to be read down), as it was reasonably capable of being considered appropriate and adapted to implement the obligations under ICERD. The failure to fully implement ICERD (which also requires making racial hatred a criminal offence) did not render Part IIA substantially inconsistent with that convention. It was noted that Part IIA of the RDA was directed not only at article 4 of ICERD but also at the other provisions of ICERD and the International Covenant on Civil and Political Rights, which dealt with the elimination of racial discrimination in all its forms.[74]

top | contents

3.2 Racial Discrimination Defined

3.2.1 Grounds of discrimination

The RDA makes unlawful discrimination ‘based on race, colour, descent or national or ethnic origin’. [75] While these grounds of discrimination are not defined in the RDA, their meaning has been considered in a number of cases.

(a) Race

Courts have generally taken the view that ‘race’ as described in anti-discrimination legislation is a broad term and should be understood in the popular sense rather than as a term of art.[76] In King-Ansell v Police[77] (‘King-Ansell’) the New Zealand Court of Appeal rejected a biological test of race which distinguished people in terms of genetic inheritance and stated:

The ultimate genetic ancestry of any New Zealander is not susceptible to legal proof. Race is clearly used in its popular meaning. So are the other words. The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.[78]

The meaning of ‘race’ was considered in the context of disputes between Aboriginal people in Williams v Tandanya Cultural Centre.[79] Driver FM held:

The word ‘race’ is a broad term. Also, in addition to race, the RDA proscribes discrimination based upon national or ethnic origins or descent.
It will be apparent to anyone with even a rudimentary understanding of Aboriginal culture and history that the Australian Aborigines are not a single people but a great number of peoples who are collectively referred to as Aborigines. This is clear from language and other cultural distinctions between Aboriginal peoples. It is, in my view, clear that the RDA provides relief, not simply against discrimination against ‘Aboriginals’ but also discrimination against particular Aboriginal peoples. There is no dispute that the applicant is an Aboriginal person. There was some dispute within the Kaurna community as to the applicant’s links to that community. The alleged acts of discrimination by the first, second, fifth (and, possibly third) respondents are all related in one way or another to that dispute and the alleged exclusion and lack of consultation are all linked by the applicant to his particular cultural associations within the Aboriginal community. In principle, I am satisfied that these acts, if found to be discriminatory, could constitute discrimination against either s 9 or s 13 of the RDA.[80]

In Carr v Boree Aboriginal Corporation,[81] Raphael FM found that the first respondent had unlawfully discriminated against the applicant in her employment and had dismissed her for reasons ‘which were to do with her race or non Aboriginality’.[82] His Honour concluded that ‘the provisions of the RDA apply to all Australians’.[83]

(b) Ethnic origin

Religious discrimination is not, per se, made unlawful by the RDA.[84] However the term ‘ethnic origin’ has been interpreted broadly in a number of jurisdictions to include Jewish and Sikh people. The Court in King-Ansell held that Jewish people in New Zealand formed a group with common ethnic origins within the meaning of the Race Relations Act 1971 (NZ). Richardson J stated that:

a group is identifiable in terms of ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.[85]

Similarly, the House of Lords held in Mandla v Dowell Lee[86] that for a group (in that instance, Sikh people) to constitute an ethnic group for the purposes of the legislation in question, it had to regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics.

Their Lordships indicated that the following characteristics are essential:

Their Lordships further held that the following characteristics will be relevant, but not essential, to a finding that a group constitutes an ‘ethnic group’:

In Miller v Wertheim,[88] the Full Federal Court dismissed a claim of discrimination under the RDA in relation to a speech made by the respondent (himself Jewish) which had criticised members of the Orthodox Jewish community for allegedly divisive activities. The Full Court stated that it could be ‘readily accepted that Jewish people in Australia can comprise a group of people with an “ethnic origin”’[89] for the purposes of the RDA, and cited with approval King-Ansell. However, in the present case, the members of the group

were criticised in the speech because of their allegedly divisive and destructive activities, not because the group or its members were of the Jewish race, of Jewish ethnicity or because they were persons who adhered to the practices and beliefs of orthodox Judaism.[90]

The Court did not discuss further whether or not persons ‘adhering to the practices and beliefs of orthodox Judaism’ were a recognisable group for the purposes of the RDA.

There has been no jurisprudence concerning whether or not Muslim people constitute a group with a common ‘ethnic origin’ under the RDA. It is noted, however, that the Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) (which became the Racial Hatred Act 1995 (Cth) and introduced Part IIA of the RDA which prohibits offensive behaviour based on racial hatred) suggests that Muslims are included in the expressions ‘race’ and/or ‘ethnic origin’. It states:

The term ‘ethnic origin’ has been broadly interpreted in comparable overseas common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per Richardson J at p.531 and Mandla v Dowell Lee [1983] 2 AC 548 (HL) per Lord Fraser at p.562). It is intended that Australian courts would follow the prevailing definition of ‘ethnic origin’ as set out in King-Ansell. The definition of an ethnic group formulated by the Court in King-Ansell involves consideration of one or more of characteristics such as a shared history, separate cultural tradition, common geographical origin or descent from common ancestors, a common language (not necessarily peculiar to the group), a common literature peculiar to the group, or a religion different from that of neighbouring groups or the general community surrounding the group. This would provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims.

The term ‘race’ would include ideas of ethnicity so ensuring that many people of, for example, Jewish origin would be covered. While that term connotes the idea of a common descent, it is not necessarily limited to one nationality and would therefore extend also to other groups of people such as Muslims.[91]

Cases that have considered this issue in other jurisdictions have found that Muslims do not constitute a group with a common ethnic origin because while Muslims professed a common belief system, the Muslim faith was widespread covering many nations, colours and languages.[92]

(c) National origin

The term ‘national origin’ has been interpreted by the courts as being distinct from nationality or citizenship. ‘National origin’ has been characterised as a status or attribute that is fixed at the time of birth whereas nationality and citizenship have been described as a ‘transient status’, capable of change through a person's lifetime. Acts of discrimination based on nationality or citizenship are not prohibited by the RDA.

In Australian Medical Council v Wilson[93] (‘Siddiqui’) Sackville J held ‘national origin’ ‘does not simply mean citizenship’.[94] His Honour cited with approval Lord Cross in Ealing London Borough Council v Race Relations Board,[95] a case which had considered the materially similar Race Relations Act 1968 (UK):

There is no definition of ‘national origins’ in the Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as ‘a nation’ – whether or not they also constitute a sovereign state.
The connection will normally arise because the parents or one of the parents of the individual in question are or is identified by descent with the nation in question, but it may also sometimes arise because the parents have made their home among the people in question.
...
Of course, in most cases a man has only a single ‘national origin’ which coincides with his nationality at birth in the legal sense and again in most cases his nationality remains unchanged throughout his life. But ‘national origins’ and ‘nationality’ in the legal sense are two quite different conceptions and they may well not coincide or continue to coincide.[96]

Sackville J stated that this view was powerfully supported by article 1(2) of ICERD, which specifically provides that it is not to apply to distinctions, exclusions, restrictions or preferences made by a State Party between citizens and non-citizens.[97]

The Full Federal Court in Macabenta v Minister for Immigration & Multicultural Affairs[98] (‘Macabenta’) followed Siddiqui and rejected the submission that ‘national origin’ could be equated with ‘nationality’ for the purposes of ss 9 and 10 of the RDA.[99] The Full Court held that the phrase ‘race, colour or national or ethnic origin’ in s 10 of the RDA should have the same meaning in the RDA as it has in ICERD, under which the ‘core concern is racial discrimination’. The words ‘colour, or national or ethnic origin’ were intended to give ‘added content and meaning to the word “race”’ and ‘capture the somewhat elusive concept of race’.[100] The Court continued:

In our opinion, the description ‘ethnic origin’ lends itself readily to factual inquiries of the type described by Lord Fraser in Mandla v Lee [at 562]. For example, is there a long shared history?, is there either a common geographical origin or descent?, is there a common language?, is there a common literature?, is there a common religion or a depressed minority? One can easily appreciate that the question of ethnic origin is a matter to be resolved by those types of factual assessments. Ethnic origins may once have been identifiable by reference to national borders, but that time ended hundreds or perhaps thousands of years ago. To some extent the same can be said of national origins as human mobility gained pace. It may well also be appropriate, given the purpose of the Convention, to embark on a factual enquiry when assessing whether the indicia of a law include national origin as a discrimen. Ethnic origins may have become blurred over time while national origins may still be relatively clear. That further reference point of national origin may be needed in order to identify a racially-discriminatory law. National origin may in some cases be resolved by a person’s place of birth. In other cases it may be necessary to have regard to the national origin of a parent or each parent or other ancestors either in conjunction with the person’s place of birth or disregarding that factor. If by reference to matters of national origin one can expose a racially-discriminatory law, then the Convention will have served its purpose. However, no Convention purpose is in any manner frustrated by drawing a distinction between national origin and nationality, the latter being a purely legal status (and a transient one at that).[101]

In Commonwealth v McEvoy,[102] von Doussa J applied Macabenta in finding that the meaning of ‘national origin’ should be confined to characteristics determined at the time of birth – ‘either by the place of birth or by the national origin of a parent or parents, or a combination of some of those factors’.[103] In that case, Mr Stamatov, who was of Bulgarian nationality and had lived and worked in Bulgaria, was required to satisfy security checks for a position with the Department of Defence. Bulgaria was a country where security checks could not be meaningfully conducted. This meant that Mr Stamatov was found to be ‘uncheckable’ and therefore refused employment. His Honour held:

The evidence ... was clear that the elements of checkability which caused Mr Stamatov’s background to be uncheckable concerned checks with security authorities in the place where the applicant resided. The checks were concerned with the activities of the applicant and were unrelated to the national origins within the meaning of that expression as construed in Macabenta. The fact that Mr Stamatov had been born in Bulgaria of Bulgarian parents was an irrelevant coincidence. A person of any other national origin that had lived his or her adult life in Bulgaria, and had followed the educational and employment pursuits of Mr Stamatov would also have a background that was uncheckable.[104]

The same approach was taken by Merkel J in De Silva v Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs):[105]

Although there are obvious difficulties in any precise definition of ‘national origin’ as that term is used in the [RDA], in my view it does not mean current nationality or nationality at a particular date which has no connection with the national origin of the persons concerned.[106] (emphasis in original)

Merkel J’s decision was upheld on appeal[107] and was followed by Raphael FM in AB v New South Wales Minister for Education & Training.[108] In that case, an interim injunction was sought against a decision to deny enrolment in a New South Wales Government school to a child who was not a permanent resident of Australia. One ground upon which Raphael FM rejected the application was that the argument of discrimination was unlikely to succeed on the basis of the authorities that established the distinction between ‘national origin’ and ‘nationality’.[109]

In AB v New South Wales[110] Driver FM dealt with the substantive issues that had first been litigated before Raphael FM. Driver FM held that the condition or requirement imposed on the applicant that he be an Australian citizen or a permanent resident in order to pursue study was not reasonable in the circumstances. However, because the condition or requirement was one pertaining to the ‘nationality’ or ‘citizenship’ not ‘national origin’ it was not discriminatory. In reaching this conclusion, Driver FM noted that ‘national origin’ had the meaning given to it by the Full Federal Court in Macabenta (see further below 3.2.3)[111].

top | contents

3.2.2 Direct discrimination under the RDA

(a) Section 9(1)

Section 9(1) prohibits what is generally referred to as ‘direct’ race discrimination:

(1) It is unlawful for a person to do 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 in the political, economic, social, cultural or any other field of public life.

This broad prohibition is based on the definition of ‘racial discrimination’ contained in article 1(1) of ICERD.[112]

To establish a breach of s 9(1), a complainant must establish the following elements:

(i) Proving the elements of s 9(1)

The decision of the Full Federal Court in Baird v Queensland,[115] emphasises a number of aspects to the correct approach to proving the elements of s 9(1) of the RDA.[116] This case concerned the underpayment of wages to Aboriginal people living in the Hope Vale and Wujal Wujal communities in Queensland. Those communities were managed, in the relevant period, by the Lutheran Church (‘the Church’) which was funded by the Queensland government (‘the Government’) for this purpose.

It was alleged that the payment of under-award wages was racially discriminatory, contrary to the RDA. The claim covered the period from 1975 until 1986 (after which time Aboriginal people living on Government and church-run communities were paid award wages). The applicants argued that the Government was responsible for the discrimination either as the employer through the agency of the Church, contrary to s 15 of the RDA and/or through the act of paying grants to the Church which were calculated to include a component for wages to be paid at under-award rates, contrary to s 9(1) of the RDA. Significantly, the Church was not a respondent to the case.

At first instance,[117] Dowsett J found that the claim under s 15 of the RDA failed because the Church, not the Government, employed the applicants and it did so in its own right. His Honour also rejected the claim under s 9(1) because there was no basis for asserting that the calculation of the grants involved a discriminatory element, nor was there a basis for finding that the payment of grants had the ‘purpose or effect of depriving the applicants of their proper pay rates’.[118]

On appeal, the decision of Dowsett J was overturned.[119] Allsop J (with whom Spender and Edmonds JJ agreed) found that Dowsett J had erred in requiring the appellants to firstly, demonstrate an obligation for the Government to make payments to the Church and secondly, provide a ‘real life comparator’ or comparison against which to assess the ‘discriminatory element’.

The Full Court held that neither aspect is a necessary element of s 9(1). Allsop J stated that the purpose of ICERD and the RDA is the ‘elimination of racial discrimination in all its forms and manifestations – not merely as manifested by people who are obliged to act in a particular way’, and that to achieve this broad purpose ‘requires broad and elastic terminology’.[120] In particular, Allsop J noted that

it is important to treat the terms of s 9(1) as comprising a composite group of concepts directed to the nature of the act in question, what the act involved, whether the act involved a distinction etc based on race and whether it had the relevant purpose or effect...[121]

Allsop J also noted that s 9(1) does not require a direct comparison to be available to demonstrate discrimination, observing that ‘[t]hose suffering the disadvantage of discrimination may find themselves in circumstances quite unlike others more fortunate than they’.[122]

The Full Court found that, on the facts as determined by Dowsett J, a breach of s 9(1) was made out. The acts of calculating and paying the grants by the Government clearly involved a distinction between award wages and below-award wages. This distinction was based on race because it was made by reference to the Aboriginality of the persons on reserves who were to be paid out of those grants. The Full Court also concluded that the act of the Government involving the distinction based on race could be seen to have ‘a causal effect on the impairment of the right of the appellants as recognised by Article 5 of the Convention to equal pay for equal work’.[123]

(ii) Racist remark as an act of discrimination

In Qantas Airways Ltd v Gama,[124] the Full Federal Court accepted that a racist remark may, depending on the circumstances, be sufficient to constitute an act of discrimination within the scope of s 9 of the RDA.

At first instance,[125] Raphael FM accepted that the making of remarks to the applicant in the workplace that he looked like a ‘Bombay taxi driver’ and walked up stairs ‘like a monkey’ denigrated him on the basis of his race and therefore amounted to acts of race discrimination under s 9.

On appeal, Qantas argued that the racist remarks were not sufficient of themselves to constitute an act of discrimination. Qantas submitted that as Raphael FM had rejected the applicant’s other claims of race discrimination in employment relating to such matters as the denial of promotions and training opportunities, and there was no evidence of systemic racial bullying or harassment, there was no nexus between the racist remarks and any adverse impact on the conditions of his employment.[126]

The Full Federal Court unanimously rejected Qantas’ submission on this point.[127] It held that the making of a remark was an ‘act’ for the purposes of s 9.[128] It also held that, in the circumstances of the case, the act involved a distinction based on race, noting:

It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person and not others, expressly or by implication links the criticism or denigration to that person’s race then that linkage establishes both the distinction and its basis upon race. That was the present case.[129]

In relation to the final element of s 9, impairment of a person’s enjoyment on an equal footing of any human right or fundamental freedom, the Court held:

The denigration of an employee on the grounds of that person’s race or other relevant attribute can properly be found to have the effect of impairing that person’s enjoyment of his or her right to work or to just and favourable conditions of work.[130]

And further:

Undoubtedly remarks which are calculated to humiliate or demean an employee by reference to race, colour, descent or national or ethnic origin, are capable of having a very damaging impact on that person’s perception of how he or she is regarded by fellow employees and his or her superiors. They may even affect their sense of self worth and thereby appreciably disadvantage them in their conditions of work. Much will depend on the nature and circumstances of the remark.[131]

The Court accepted that the finding at first instance that the relevant remarks adversely affected the applicant’s conditions of employment was open to Raphael FM on the facts.[132]

(iii) ‘Based on’ and intention to discriminate

Unlawful discrimination as defined by s 9(1) of the RDA requires that a ‘distinction, exclusion, restriction or preference’ be ‘based on’ race or other of the related grounds.

Section 18 of the RDA provides that where an act is done for two or more reasons, and one of the reasons is race (or other ground), the act will be taken to be done by reason of race (or other ground), whether or not this is the dominant or even a substantial reason for doing the act. It is sufficient if race or another ground is simply one of the reasons for doing an unlawful act.

The meaning of ‘based on’ in s 9(1) was considered at length by Weinberg J in Macedonian Teachers’ Association of Victoria Inc v Human Rights & Equal Opportunity Commission[133] (‘Macedonian Teachers’). In this case, his Honour suggested that the expression ‘based on’ in s 9(1) of the RDA could be distinguished from other expressions used in anti-discrimination legislation such as ‘by reason of’ or ‘on the ground of’ which had been interpreted elsewhere to require some sort of causal connection.[134]

After considering Australian and international authorities,[135] Weinberg J found that the relevant test imputed by the words ‘based on’ was one of ‘sufficient connection’ rather than ‘causal nexus’.[136] His Honour held that while there must be a ‘close relationship between the designated characteristic and the impugned conduct’, to require a relationship of cause and effect ‘would be likely to significantly diminish the scope for protection which is afforded by that subsection’.[137]

The approach of Weinberg to the meaning of ‘based on’ was endorsed by the Full Federal Court in Bropho v Western Australia.[138] This was an appeal against the decision of Nicholson J[139] to dismiss claims by a member of the Swan Valley Nyungah Community Aboriginal Corporation that the Reserves (Reserve 43131) Act 2003 (WA) (‘Reserves Act’) and actions taken by an Administrator under that Act breached ss 9, 10, and 12 of the RDA.

The Full Federal Court unanimously dismissed the appeal. However, the appeal decision identified certain errors in the approach of Nicholson J to the operation of ss 9 and 10 of the RDA. In particular, the Court noted that Nicholson J may have dealt with the various allegations of discrimination on the basis that there was no material distinction between the expression ‘by reason of’ in ss 10 and 12 and ‘based on’ in s 9.[140]

The Full Federal Court said there was no reason to doubt the correctness of the following conclusions of Weinberg J in Macedonian Teachers:

There appears to me to be no authority which binds me to hold that the phrase ‘based on’ in s 9(1) of the Act is to be understood as synonymous with the other expressions typically used in anti-discrimination legislation such as, ‘by reason of’, or ‘on the ground of’.
What is established by the authorities is that anti-discrimination legislation should be regarded as beneficial and remedial legislation. It should, therefore, be given a liberal construction. I am conscious of the fact that ‘the task remains one of statutory construction’ and a court ‘is not at liberty’ to give such legislation ‘a construction that is unreasonable or unnatural’ – see IW v The City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J. See also Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 88 per Davies J. There is, however, nothing ‘unreasonable or unnatural’, in my view, in treating as encompassed within the phrase ‘based on’ the meaning of ‘by reference to’, rather than the more limited meaning of ‘by reason of’.[141]

Despite Nicholson J’s apparent failure to give the expression ‘based on’ in s 9(1) its broader meaning, his Honour’s decision to dismiss the claims under ss 9 and 12 was upheld.[142] The Full Federal Court said that what was important was that his Honour had rejected the contention that the Administrator had acted to exclude the appellant (and others) from the reserve ‘by reason of’ race. It was therefore

not a large step to say that, even on the broader meaning of the expression ‘based on’ discussed by Weinberg J in Macedonian Teachers' Association, the act of the administrator of excluding the appellant was not taken by reference to the appellant's race. It was taken by reference to her (and others) as a member of a dysfunctional community in which the young had been, and continued to be, at risk of serious harm.[143]

In Macedonian Teachers Weinberg J also stated that s 9(1) ‘should not be construed in such a way as to confine its proscription of racial discrimination to circumstances where there is an element of the improper motive [in the act]’.[144] Weinberg J’s conclusion that s 9(1) does not require motivation or intention to discriminate followed the decision of Australian Medical Council v Wilson[145] where Sackville J reviewed the Australian authorities in relation to other anti-discrimination statutes[146] and found that ‘the preponderance of opinion favours the view that s 9(1) [of the RDA] does not require an intention or motive to engage in what can be described as discriminatory conduct’.[147]

(b) Prohibitions in specific areas of public life

In addition to s 9(1), ss 11-15 of the RDA prohibit discrimination in specific areas of public life ‘by reason of the first person’s race, colour or national or ethnic origin’. [148]

In Purvis v New South Wales (Department of Education & Training)[149] the High Court considered the expression ‘because of’ in the DDA.[150] It would seem settled as a result of that decision that the appropriate approach to expressions such as ‘by reason of’, ‘on the ground of’ and ‘because of’ is to question the ‘true basis’ or ‘real reason’ for the act of the alleged discriminator.[151]

In Trindall v NSW Commissioner of Police,[152] the applicant, a man of ‘mixed Aboriginal/African race’, asserted that his employment was subject to unreasonable restrictions by reason of his inherited condition known as ‘sickle cell trait’. In addition to a claim of disability discrimination, the applicant claimed that sickle cell trait particularly affects black Africans and therefore the employment condition constituted a restriction based on race, which impaired his right to work.[153] Driver FM rejected the allegation of racial discrimination contrary to s 9(1) and s 15(1)(b) of the RDA, stating:

While it is true that the sickle cell trait is most common among black Africans or persons of African descent, the trait occurs in persons of a variety of ethnic backgrounds, including persons of various Mediterranean backgrounds. The condition is one that is inherited. While it may well have originated in Africa, it has spread by natural inheritance through generations all around the globe. In the case of [the applicant], while the conduct of the NSW Police Service was based upon [the applicant’s] disability, it was not based upon his race or ethnicity. His Aboriginality was irrelevant. His black African heritage was relevant but was not a conscious factor in the actions of the NSW Police Service. The Police acted as they did because [the applicant] had the sickle cell trait, not because he was black.[154]

(c) Drawing inferences of racial discrimination

The existence of systemic racism has been routinely acknowledged by decision-makers considering allegations of race discrimination. The extent to which this enables inferences to be drawn as to the basis for a particular act, especially in the context of decisions about hiring or promotion in employment, has been the subject of some consideration. The cases highlight the difficulties faced by complainants in proving racial discrimination in the absence of direct evidence.[155]

In Murray v Forward,[156] it was alleged that the respondent’s view that the literacy of the complainant was inadequate could only be explained by an acceptance of stereotypes relating to the literacy of Aboriginal people generally. Sir Ronald Wilson stated:

I have not found the resolution of this issue an easy one. Counsel acknowledges that to accept his submission on behalf of the complainant I must exclude all other inferences that might reasonably be open. I am sensitive to the possible presence of systemic racism, when persons in a bureaucratic context can unconsciously be guided by racist assumptions that may underlie the system. But in such a case there must be some evidence of the system and the latent or patent racist attitudes that infect it. Here there is no such evidence. Consequently there is no evidence to establish the weight to be accorded to the alleged stereotype.[157]

In Sharma v Legal Aid Queensland[158] (‘Sharma’), Kiefel J held that a court should be wary of presuming the existence of racism in particular circumstances:

Counsel for the applicant submitted that an inference could be drawn because of the known existence of racism combined with the fact that the decision in question was one to be made between people of different races. It would seem to me that the two factors identified, considered individually or collectively, raise no more than a possibility that race might operate as a factor in the decision-making.[159]

Sharma involved allegations of discrimination in recruitment for senior legal positions. The Federal Court was referred to the small number of people from non-English speaking backgrounds employed by the respondent, particularly at the level of professional staff and the fact that nobody holding the position for which they applied in any of the respondent’s offices was from a non-English speaking background. The applicant argued that inferences could be drawn from this evidence as to the racially discriminatory conduct of the respondent. Kiefel J stated:

In such cases statistical evidence may be able to convey something about the likelihood of people not being advanced because of factors such as race or gender. The case referred to in submissions: West Midlands Passenger Transport Executive v Jaquant Singh [1988] [2 All ER 873, 877] is one in point. There it was observed that a high rate of failure to achieve promotion by members of a particular racial group may indicate that the real reason for refusal is a conscious or unconscious racial attitude which involves stereotypical assumptions about members of the group. It will be a question of fact in each case. Here however all that can be said is that a small number of the workforce of the respondent comes from non-English speaking backgrounds.[160]

The Full Federal Court upheld her Honour’s decision on appeal[161] and agreed that in appropriate cases, inferences of discrimination might be drawn:

It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 All ER 953, 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [[2000] 1 AC 501, 510].[162]

Similar issues arose in Tadawan v South Australia.[163] In this case, the applicant, a Filipino-born teacher of English as a second language, alleged victimisation by her employer on the basis of having made a previous complaint of racial discrimination. It was argued that victimisation could be inferred in the decision not to re-employ the applicant on the basis of the following factors: the applicant’s superior qualifications and experience; that the applicant was ‘first reserve’ for a previous position but was not given any work; that new employees were taken on in preference to providing work for the applicant; and the lack of cogent reasons for the preference of new employees. Raphael FM commented:

In the absence of direct proof an inference may be drawn from the circumstantial evidence. The High Court has said that ‘where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise...’ (Bradshaw v McEwans Pty Ltd (1951), unreported, applied in TNT Management Pty Ltd v Brooks (1979) 23 ALR 345).[164]

Raphael FM found that he was unable to infer that the applicant was subject to victimisation as the decision not to re-employ her was made before she lodged her complaint.[165]

In Meka v Shell Company Australia Ltd,[166] the applicant was a foreign national whose application for employment was not considered by the respondent. In the absence of any direct evidence as to racial discrimination, the Court was asked to infer that this was the reason for the decision. However, counsel for the applicant had not cross-examined the witnesses for the respondent who had denied that the applicant’s race was a factor in the decision. In those circumstances, the Court was not prepared to draw the inferences that the applicant sought to be drawn.[167]

In Gama v Qantas Airways Ltd (No 2)[168] Raphael FM was also asked to draw inferences that certain remarks and the treatment of the applicant in the workplace indicated an entrenched attitude towards the applicant based on his race. The applicant claimed that he was denied the same conditions of work and opportunities for training and promotion that were afforded to other employees on the basis of his race and disability and that certain remarks made to him by his supervisor and co-workers amounted to unlawful discrimination.

His Honour found that specific statements made to the applicant that he looked ‘like a Bombay taxi driver’ and that he walked up the stairs ‘like a monkey’ amounted to unlawful discrimination on the grounds of the applicant’s race. His Honour also observed in the course of his reasons that ‘there was a general culture inimical to persons of Asian background’.[169] However, his Honour was not prepared to accept that this evidence demonstrated that the rejections of the applicant’s attempts at training and promotion were acts based on his race.[170]

In his cross-appeal to the Full Federal Court,[171] Mr Gama submitted that Raphael FM erred in applying the balance of probabilities test in relation to the drawing of inferences ‘at such a high level that in the absence of direct evidence of racial discrimination, the [RDA] is ineffective’.[172] The court dismissed this ground of cross-appeal, noting simply that ‘[h]is Honour has dealt with these matters in his reasons in a way that does not disclose any error in the application of the standard of proof’.[173]

The Court also rejected an appeal ground by Qantas that the negative comments by Raphael FM about a generally racist workplace culture infected his Honour’s reasons yet were not relevant to his Honour’s ultimate findings of liability and were not open on the evidence. Further, Qantas argued that his Honour relied on these comments to make sweeping generalisations about Qantas’s workplace and some of its witnesses. The Full Court acknowledged that his Honour’s comments about workplace culture were ‘gratuitous’, but held that they did not play any part in his determination of liability and therefore did not give rise to any error.[174]

top | contents

3.2.3 Indirect discrimination under the RDA

(a) Background

The RDA was amended in 1990[175] to include s 9(1A) which states:

(1A) Where:

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.

Relatively few cases have considered issues of indirect discrimination under the RDA. However, some general principles from cases which have considered indirect discrimination provisions in other anti-discrimination laws are set out below to assist in the interpretation of the terms of s 9(1A). The development of these principles in the context of the SDA and DDA is discussed further in chapters 4 and 5.[176]

The following elements are required to establish indirect discrimination:

The onus is on the applicant to make out each of these elements.[177]

(b) The relationship between ‘direct’ and ‘indirect’ discrimination

Prior to the insertion of s 9(1A) into the RDA, a body of opinion suggested that the language of s 9(1) and the specific prohibitions in the RDA were wide enough to cover indirect racial discrimination. It has been suggested that the section was inserted to remove doubt that s 9(1) and the succeeding provisions might not cover indirect discrimination rather than because its terms were not general enough to do so.[178] However, in Australian Medical Council v Wilson[179] (‘Siddiqui’), the Full Court of the Federal Court held that ss 9(1) and (1A) of the RDA should be construed as being mutually exclusive. Heerey J stated that such an approach was ‘consistent with the language of the provisions, their legislative history and the preponderance of authority’.[180] This does not prevent applicants from pleading both direct and indirect discrimination in the alternative.[181]

Sections 11-15 of the RDA proscribe discrimination in particular fields of public life. The definition of ‘indirect discrimination’ in s 9(1A) explicitly applies for the purposes of Part II of the RDA, which contains ss 11-15. Therefore, it would appear that the definition of ‘indirect discrimination’ applies to the expression ‘by reason of’ race, as used in ss 11-15.[182]

(c) Defining the term, condition or requirement

The words ‘term, condition or requirement’[183] are to be given a broad meaning. It is still necessary, however, to identify specifically a particular action or practice which is said to constitute the relevant requirement. In considering the expression ‘requirement or condition’ in the context of the sex discrimination provisions of the Anti-Discrimination Act 1977 (NSW), Dawson J stated:

Upon principle and having regard to the objects of the Act, it is clear that the words ‘requirement or condition’ should be construed broadly so as to cover any form of qualification or prerequisite ... Nevertheless, it is necessary in each particular instance to formulate the actual requirement or condition with some precision.[184]

A requirement need not be explicit but rather can be implicit. For example, a service which is provided in a certain manner may, in effect, impose a requirement that the service be accessed in that manner.[185]

(d) Not reasonable in the circumstances

In the context of other anti-discrimination statutes, it has been held that factors relevant to assessing reasonableness will include:

The requirement of ‘reasonableness’ under s 9(1A)(a) of the RDA was considered in Siddiqui. In that matter, Dr Siddiqui sought unrestricted registration to practice medicine in Victoria. To obtain such registration, a person was required to be a graduate of a university, college or other body accredited by the Australian Medical Council (‘AMC’) or hold a certificate from the AMC certifying that the person was qualified to be registered as a medical practitioner. To obtain the necessary certificate so as to fall within this second category, it was necessary (amongst other things) to sit a written multiple choice question (‘MCQ’) exam and achieve a result which ranked the candidate within a quota set by the AMC.

Dr Siddiqui was not a graduate of an accredited institution. He sat the MCQ exam on a number of occasions and, although passing, he was not within the top 200 candidates, which was the quota set by the AMC at the time. Dr Siddiqui complained, amongst other things,[191] that the requirement to sit an exam and pass with a score which placed him within the quota constituted indirect racial discrimination.

HREOC, at first instance, considered whether or not the requirement was reasonable. It held that the setting of a quota was reasonable, but the manner in which it was applied to Dr Siddiqui was unreasonable. HREOC stated:

We are not persuaded that the Health Ministers acted unreasonably in determining that a quota was necessary nor in fixing it at 200 each year. But we are persuaded that the AMC acted unreasonably in using it to screen the number of those doctors who, having successfully met the minimum requirements of the MCQ, should be permitted to advance to the clinical examination. It was unreasonable to require the complainant to sit again for the MCQ within a year or so of his having satisfied the minimum requirements. If those minimum standards were intended by the AMC to ensure that measure of medical knowledge considered to be requisite for practice in Australia, then it was unreasonable to introduce an exclusionary principle based on comparative performance in the MCQ examination. The evidence has left us with the conclusion that it should have been possible for the AMC to implement the direction of the Health Ministers’ Conference in such a way as to minimise the trauma associated with repeated success in the MCQ followed by repeated failure to be included in the quota.[192]

On review under the Administrative Decision (Judicial Review) Act 1977 (Cth), the Full Court of the Federal Court found that HREOC had erred in a number of respects in relation to its findings on reasonableness.

It was held that HREOC had incorrectly reversed the onus of proof:

It approached its task by identifying alternative means of applying the quota (which would have resulted in Dr Siddiqui’s acceptance) and then finding that the AMC provided ‘no convincing explanation’ why such alternatives could not be utilised. However, the onus remained on Dr Siddiqui to show that the term, condition or requirement in fact applied was not reasonable, in the sense of being not rational, logical and understandable.[193]

Further, it was held that HREOC had erred in its approach to reasonableness and its conclusion that the application of the quota to Dr Siddiqui was unreasonable.[194] The Court approved of the following test of ‘reasonableness’[195] articulated by Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs & Trade v Styles: [196]

The test of reasonableness is less demanding than one of necessity, but more demanding than one of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reason advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.[197]

Heerey J observed that the relevant ‘circumstances of the case’ included, but were not limited to, the personal impact of the requirement on Dr Siddiqui. Also relevant were the reasons for which the AMC had imposed the requirement.[198] In assessing whether or not a requirement is ‘reasonable’, the focus is on ‘reason and rationality’ rather than whether the requirement is ‘one with which all people or even most people agree’.[199]

The Court held that once it was accepted, as HREOC had done, that a quota of 200 could lawfully be imposed, it was ‘impossible to say that it [was] not a rational application of that quota to select the first 200 candidates in order of merit’.[200]

In Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission,[201] Sackville J confirmed (in the context of the SDA) that in assessing reasonableness, ‘the question is not simply whether the alleged discriminator could have made a “better” or more informed decision’.[202] However, his Honour cautioned against an over reliance on ‘logic’ in assessing reasonableness:

The fact that a distinction has a ‘logical and understandable basis’ will not always be sufficient to ensure that a condition or requirement is objectively reasonable. The presence of a logical and understandable basis is a factor – perhaps a very important factor – in determining the reasonableness or otherwise of a particular condition or requirement. But it is still necessary to take account of both the nature and extent of the discriminatory effect of the condition or requirement ... and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision.[203]

In Aboriginal Students’ Support & Parents Awareness Committee, Alice Springs v Minister for Education, Northern Territory,[204] HREOC considered the closing of a primary school in Alice Springs which almost solely catered to Aboriginal students and was said to be unique in its curriculum and services. The relevant requirement was said to be that the children attend another school which was not similarly equipped to meet the needs of Aboriginal students.

Commissioner Carter noted that the onus is on a complainant to prove the requirement is not reasonable. The Commissioner noted the competing opinions in the evidence before him as to the education that the children would receive in the different schools. While the Commissioner noted that he ‘shared some of the concerns’ of the complainants, he was not persuaded that the requirement was ‘not reasonable’.[205]

In AB v New South Wales,[206] Driver FM held that the term, condition or requirement imposed upon the applicant that he be an Australian or New Zealand citizen or an Australian permanent resident in order to be eligible for education in a selective school operated by the respondent was not reasonable in the circumstances. His Honour stated:

I accept that places at selective schools in New South Wales are a scarce commodity...I also accept that it is reasonable to impose requirements to ensure that, as far as is practicable, persons entering a selective school are likely to complete their course of education. However, that purpose could, in my view, be achieved by a requirement that the student has applied for Australian permanent residency or citizenship. Making such an application demonstrates a commitment to live in Australia indefinitely sufficient to meet the expectation of completion of a course of secondary education.

It is true that the fact that there is a reasonable alternative that might accommodate the interests of an aggrieved person does not, of itself, establish that a requirement or condition is unreasonable. The Court must objectively weigh the relevant factors, but these can include the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement or condition: Catholic Education Office v Clarke (2004) 138 FCR 121 at 146 [115]. It is well known that the process of obtaining permanent residency and citizenship in Australia can be a lengthy one. Even where an application is refused, the process of review and appeal can take years. The present applicant has lived in this country for ten years and is seeking permanent residency. In my view, there is nothing in his circumstances which render it less likely that he would complete a course of education at Penrith Selective High School than if he had already been granted permanent residency or citizenship. The respondent’s condition is unnecessarily restrictive and is disruptive to the educational expectations of both NSW residents, and those who may relocate to NSW from other States, which do not have selective public schools.[207]

Driver FM held, however, that the applicant had not made out his case of indirect discrimination: see 3.2.3 (e) below.

(e) Ability to comply with a requirement or condition

An applicant must prove that an affected individual or group ‘does not or cannot comply’ with the relevant requirement or condition.

As outlined above, the complainant in Siddiqui had failed on a number of occasions to meet a requirement set by the AMC to sit an exam and pass with a score which placed him within a certain quota. The Full Federal Court held that it was correct to find in those circumstances that the complainant ‘does not’ comply with the relevant requirement. It was not necessary for a complainant to demonstrate that it was impossible for them ever to comply with the requirement because of some ‘immutable characteristic’. Sackville J suggested:

It seems to me that the primary purpose underlying s 9(1A)(b) is to ensure that the complainant (or someone on whose behalf a complainant acts) has sustained some disadvantage by reason of the requirement or condition or requirement under scrutiny. That purpose is satisfied if the relevant individual in fact does not comply with the condition or requirement, regardless of whether the non-compliance flows from some immutable characteristic or from a different cause. Certainly it should not be enough to exclude the operation of s 9(1A) that a complainant might ultimately be able to comply with a condition or requirement which discriminates against members of the group to which the complainant belongs.[208]

In assessing whether or not a person ‘cannot comply’ with a requirement, it is a person’s ‘practical’ (as opposed to theoretical or technical) ability to comply that is most relevant.

This issue was considered by the House of Lords in Mandla v Dowell Lee[209] (‘Mandla’), which concerned the ability of Sikh men to comply with a dress code:

It is obvious that Sikhs, like anyone else, ‘can’ refrain from wearing a turban, if ‘can’ is construed literally. But if the broad cultural/historic meaning of ethnic is the appropriate meaning of the word in the Act of 1976, then a literal reading of the word ‘can’ would deprive Sikhs and members of other groups defined by reference to their ethnic origins of much of the protection which Parliament evidently intended the Act to afford to them. They ‘can’ comply with almost any requirement or condition if they are willing to give up their distinctive customs and cultural rules.[210]

In obiter comments in Siddiqui, Sackville J cited, with apparent approval, the analysis in Mandla as authority for the proposition that ‘can comply’ should be understood to mean ‘can in practice’ or ‘can consistently with the customs and cultural conditions of the racial group’.[211]

As discussed above, in AB v New South Wales,[212] the applicant, a boy of Romanian national origin, was refused enrolment at a selective high school operated by the respondent, on the basis that he was not an Australian citizen or permanent resident. He claimed that this amounted to indirect discrimination on the basis of national origin.

Driver FM found that it was appropriate to make a comparison between persons of Romanian national origin and persons of Australian or New Zealand national origin (‘national origin’ being a concept distinct from citizenship)[213] in determining whether or not indirect discrimination had occurred.

Driver FM rejected the applicant’s claim on the basis that there was no evidence that there was a broad class of persons of Australian national origin who were better able to comply with the respondent’s requirement for citizenship or permanent residence than persons of Romanian national origin (whether they were born in Romania or in Australia).[214]

top | contents

3.2.4 Interference with the recognition, enjoyment or exercise of human rights or fundamental freedoms on an equal footing

(a) Human rights and fundamental freedoms defined

Sections 9 and 9(1A) of the RDA provide protection for a person’s human rights and fundamental freedoms on an equal footing with persons of other races. Section 10 provides for the equal enjoyment of rights by people of different races.[215] The RDA specifically provides that these references to human rights and fundamental freedoms and the equal enjoyment of rights include the rights referred to in article 5 of ICERD.[216]

In considering the meaning of the terms ‘human rights’ and ‘fundamental freedoms’, the Courts have held that article 5 is not an exhaustive list of the human rights and fundamental freedoms protected by the RDA.[217] Rather, courts have taken a broad approach to the rights and freedoms protected. For instance, in Gerhardy v Brown,[218] Mason J held:

The expression ‘human rights’ is commonly used to denote the claim of each and every person to the enjoyment of rights and freedoms generally acknowledged as fundamental to his or her existence as a human being and as a free individual in society ... As a concept, human rights and fundamental freedoms are fundamentally different from specific or special rights in our domestic law which are enforceable by action in the courts against other individuals or against the State, the content of which is more precisely defined and understood.[219]

Similarly, Brennan J stated:

The term connotes the rights and freedoms which must be recognized and observed, and which a person must be able to enjoy and exercise, if he is to live as he was born - ‘free and equal in dignity and rights’, as the Universal Declaration of Human Rights proclaims ... The conception of human rights and fundamental freedoms in the Convention definition of racial discrimination describes that complex of rights and freedoms the enjoyment of which permits each member of a society equally with all other members of that society to live in full dignity, to engage freely in any public activity and to enjoy the public benefits of that society.[220]

The High Court also considered the meaning of ‘right’ in Mabo v Queensland,[221] Deane J stating:

The word ‘right’ is used in s 10(1) in the same broad sense in which it is used in the International Convention, that is to say, as a moral entitlement to be treated in accordance with standards dictated by the fundamental notions of human dignity and essential equality which underlie the international recognition of human rights: cf. the preamble to the International Convention.[222]

In Secretary, Department of Veteran’s Affairs v P,[223] the Federal Court considered whether entitlement to a war veteran’s benefit (namely a government-subsidised housing loan) was a right or freedom protected by ss 9(1) or 10 of the RDA. Drummond J held:

Although it is well-established ... that neither s 9(1) nor s 10(1) of the [RDA] is confined to the rights actually mentioned in article 5 of the Convention, those sections are nevertheless concerned only with rights fundamental to the individual’s existence as a human being. In Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455, I reviewed relevant High Court authority and said (at 475):

Section 9(1) [of the RDA] can only apply where a discriminatory act based on national origin also affects ‘any human right or fundamental freedom’. The Act focuses on protecting from impairment by acts of racial discrimination certain fundamental rights which each individual has; it does not purport to aim at achieving equality of treatment in every respect of individuals of disparate racial and national backgrounds...

I concluded (at 476-477):

the rights and freedoms protected by ss 9(1) and 10(1) [of the RDA] do not encompass every right which a person has under the municipal law of the country that has authority over him or every other right which he may claim; rather are those sections limited to protecting those particular rights and freedoms with which the Convention is concerned and those other rights and freedoms which, like those specifically referred to in the Convention, are fundamental to the individual’s existence as a human being.[224]

Drummond J held that the right to the war veteran’s benefit in question ‘cannot be characterised as a right of the kind which is the concern of s 9 and s 10’ of the RDA as the benefit, being ‘confined to those persons who have served the interests of one nation against the interests of other nations, stands outside the range of universal human rights’.[225] Further, the benefit ‘cannot be regarded as falling within the kind of right to social security and social services mentioned in para (e)(iv) of Article 5’ of ICERD as para (e)(iv) ‘deals only with State-provided assistance to alleviate need in the general community and with benefits provided to advance the well-being of the entire community of the kind that many national states now make available to their citizens’.[226]

In Macabenta v Minister of State for Immigration and Multicultural Affairs,[227] Tamberlin J held:

Although Article 5 of the Convention is cast in wide terms in respect of the right to residence, it does not follow that every non-citizen who lawfully enters Australia has any claim by way of a right to permanently reside here. The equality envisaged in the enjoyment of the enumerated rights does not encompass circumstances where a government, on compassionate grounds, has declined to return a group of persons from certain states to their national states. Therefore, the law does not unequally affect persons from other countries who do not have a similar history and who are differently affected because of that history.[228]

In Australian Medical Council v Wilson[229] (‘Siddiqui’), Heerey J expressed doubt that there existed a right to practise medicine on an unrestricted basis.[230]

In Hagan v Trustees of the Toowoomba Sports Ground Trust,[231] Drummond J considered a complaint or racial discrimination brought in relation to the maintenance of a sign saying ‘The ES “Nigger Brown” Stand’ at an athletic oval. His Honour held, citing Ebber v Hu