An International Comparison of the Racial Discrimination Act 1975
Introduction
The Racial Discrimination Act 1975 (Cth) (RDA) came into effect 33
years ago. It was Australia’s first federal law dealing with human rights
and implemented a basic principle of international law: the principle
prohibiting discrimination against people on the basis of their race, colour, or
national or ethnic origin.
The RDA declared unambiguously to the Australian people that racism and
discrimination were no longer acceptable in our society. Since 1975, thousands
of individuals and organisations have used the RDA to address racism, either by
making complaints of discrimination, or by negotiating policy changes based on
the broader principles of racial equality. The legislation has also made
possible important developments in the area of Indigenous land rights,
culminating in the recognition of native title in 1993.
While these are important achievements, there is still a long way to go
before people from all backgrounds are able to participate fully in the life of
our nation. For this reason it is important that the RDA continues to be
reviewed against the goals it seeks to achieve; equality and non-discrimination.
It is also important that the legislation remains responsive to the changing
makeup and attitudes of Australian society. Recognising the need for the Act to
evolve if it is to remain relevant to contemporary Australian society, the Human Rights and Equal Opportunity Commission (HREOC) is currently
conducting research to assess the effectiveness of the Act, and highlight any
future need for reform.
This paper seeks to contribute to an analysis of the continuing usefulness
and effectiveness of the RDA by placing it in context with contemporary race
discrimination legislation in other global jurisdictions. By looking at the way
in which other similarly placed nations have responded to the problems of racial
discrimination and inequality, we are presented with a series of alternative
models against which the current Australian legislation may be compared.
Moreover, recent developments in other jurisdictions may suggest potential
directions for legislative reform.
This paper will examine how the RDA compares to similar race discrimination
laws in four other national and multinational jurisdictions: Canada, the United
Kingdom (U.K.), the United States (U.S.) and the European Union (E.U.). It is
beyond the scope of this paper to provide a comprehensive and/or comparative
analysis of State laws dealing with racial discrimination in Australia. In those
countries which, like Australia, have both federal and state regimes for
combating racial discrimination, this paper will focus on the federal law as the
appropriate point of comparison for the Australian RDA. Similarly, while it is
beyond the scope of this paper to provide a comprehensive analysis of the laws
of all of the member states in the European Union, this paper will focus on the
treaty law and directives of the Union itself.
The first chapter will set out a brief overview of the relevant legislation
in each of the jurisdictions. Subsequent chapters will each focus on a key
feature of race discrimination legislation, looking at issues such as who has
standing to make a complaint of race discrimination, how such discrimination is
defined and what sort of exemptions apply. Responses to racial vilification and
racial violence, and the imposition of positive duties to proactively combat
discrimination will also be considered, along with issues relating to the burden
and standard of proof to be applied in racial discrimination cases.
Executive Summary
The table below sets out the features to be examined in each chapter, along
with a summary of the key findings.
Table 1. Summary of Findings
Chapter 1: |
An overview of racial discrimination laws in
five jurisdictions. |
Chapter 2: Standing |
- Individuals who have themselves been adversely affected by discrimination
have standing to complain in all jurisdictions.
- Most jurisdictions (excluding the U.K.) also allow other parties to bring a
complaint on behalf of the person affected. In Australia, a person or trade
union representing the affected person may bring a complaint before the
Commission, but only the affected person has standing to bring an action before
the court.
- A ‘concerned bystander’ who is not specially affected and does
not represent a victim of discrimination generally does not have standing to
make a complaint in any jurisdiction, however the Canadian approach gives the
Commission the flexibility to accept these kinds of complaints in appropriate
cases.
- In all jurisdictions except Australia, there is some capability for the
relevant human rights body to initiate complaints in response to more systemic
discrimination or legally complex issues.
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Chapter 3: Elements of Direct and Indirect Discrimination |
- The statutory tests for direct and indirect discrimination in the E.U. and
U.K. are largely similar in content to the Australian test, with some
significant variations.
- In contrast, the U.S. tests for both direct and indirect discrimination are
far more difficult to meet. They require proof of actual intent for a finding of
direct discrimination, and recognise the existence of indirect discrimination
only in limited circumstances.
- Of all the jurisdictions, the Canadian approach alone conflates the two
concepts of direct and indirect discrimination and establishes a single test for
both.
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Chapter 4: Grounds of Discrimination |
- Most jurisdictions list specific grounds (such as employment) where
discrimination is unlawful. While the RDA also lists such grounds, it is also
the only act which contains a general prohibition on discrimination.
- At the same time, there may be some areas, such as the distribution of
social advantages, awards and honours, which fall outside of the general
prohibition in the RDA due to the fact that they do not affect ‘human
rights and fundamental freedoms’.
- There may also be arguments for expanding the specific grounds in the RDA on
the basis that they are better understood, and more widely utilised, than the
general prohibition.
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Chapter 5: Special Measures |
- Australia, Canada and the E.U. all allow exceptions for a wide range of
special measures designed to compensate for past discrimination and current
disadvantage.
- In Canada, the courts have found that, at least in the constitutional
context, such special measures do not require exemptions from the discrimination
laws since these measures are designed to enhance, and not damage, substantial
equality, and thus cannot be considered discrimination.
- In contrast, only a limited range of special measures are permitted in the
U.K., and significant constitutional obstacles restrict their application in the
U.S.
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Chapter 6: Racial Vilification |
- Approaches to racial vilification vary substantially between jurisdictions,
from the U.S., where the dissemination of racial hatred is constitutionally
protected, to the U.K., E.U. and Canada, where it is a criminal offence.
Australia currently has civil, but not criminal, laws prohibiting racial
vilification.
- Religious vilification is prohibited in many of the examined jurisdictions.
In Canada, it is treated identically to racial vilification, while in the U.K.
and E.U. it receives a lesser degree of protection. In Australia, religious
vilification is prohibited by some state laws, but there is no corresponding
federal offence.
- Most jurisdictions (U.S., U.K., and Canada) have laws which recognise the
particular harm caused by racially-motivated hate crime; establishing separate
offences for racially motivated crime or making it an aggravating factor when
sentencing existing offences. There is no federal equivalent to these kind of
laws in Australia.
- In some jurisdictions (the E.U., U.K. and Canada) there is also an offence
of racial harassment which takes into account the cumulative effect of multiple
acts of racial vilification and abuse.
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Chapter 7: Positive Duties |
- The obligation to pro-actively eliminate discrimination and promote equality
of opportunity has been imposed on a number of different entities, including the
public sector (in all jurisdictions, to varying extent), government contractors
(Canada and the U.S.) and some private sector organisations (Canada).
- While in most jurisdictions this duty is limited to the area of employment,
in the U.K. this duty is applicable to all functions of public bodies.
- In Canada and the U.K. (and, to some extent, in the U.S.) these positive
duties are monitored by human rights bodies and may be enforced by bringing an
action before a court or tribunal.
- In comparison to the international schemes, positive duties in Australia are
limited in scope, applying only to employment in the federal public sector, and
are not backed-up by effective enforcement mechanisms.
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Chapter 8: Burden of Proof |
- In all jurisdictions except Australia, there is a shift in the allocation of
the burden of proof once the plaintiff has established a prima facie case of
racial discrimination. Only in Australia does the entire evidentiary and
persuasive burden remain with the plaintiff at every stage of the case.
- In the U.S. and Canada, it is only the evidentiary burden that falls on the
defendant. They must ‘articulate a legitimate explanation’ for the
less favourable treatment shown by the plaintiff.
- In contrast, in the U.K. and E.U. the persuasive burden also shifts once a
prima facie case has been established. The defendant must then prove, on the
balance of probabilities, that discrimination did not occur.
- The Australian courts also regularly require a higher standard of evidence
in racial discrimination cases, although the standard of proof remains the civil
standard of the balance of probabilities.
- While other jurisdictions also require a similar higher standard of evidence
to prove the most serious or damaging of civil claims, this principle is rarely
invoked – outside of Australia – with respect to allegations of
racial discrimination.
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