An International Comparison of the Racial Discrimination Act 1975
Chapter 4: Grounds of Discrimination
4.1 Common Grounds of Discrimination: Equality Before the Law
4.2 Common Grounds of Discrimination: Employment
4.3 Common Grounds of Discrimination: Housing and Accommodation, Access to Facilities and Provisions of Goods and Services
4.4 Less Common Grounds
Of the five jurisdictions under consideration, only the Australian legislation contains a general prohibition of all racial discrimination which detracts from the equal enjoyment of “any human right or fundamental freedom in... any... field of public life”.[1] In the remaining four jurisdictions, discrimination is only prohibited when it occurs in specified fields, such as employment or housing. Specific contexts in which discrimination is prohibited are also listed in the Racial Discrimination Act 1975 (Cth), in addition to the general proscription. Anecdotal evidence suggests that some members of the community prefer the clarity of these specific sections of the act, and find the abstract definition relatively difficult to understand. Perhaps for this reason, the majority of complaints continue to be brought in reference to the specifically listed grounds, making it important to ensure that these specific grounds cover the major areas in which discrimination may occur.
4.1 Common Grounds of Discrimination: Equality Before the Law
Every jurisdiction contains some provisions, whether constitutional or statute based, which provide for equality under the law. The right to be free from discriminatory laws is protected by the Canadian Charter of Rights and Freedoms and by the equal protection clause of the U.S. Constitution, although the latter applies only to intentionally discriminatory laws (see discussion above at 3.2).[2] The E.U. Racial Equality Directive also requires all states to ensure that “any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished.”[3] In the U.K., as well as being subject internationally to the Racial Equality Directive, the legislature’s power to make discriminatory laws is restricted by the European Convention on Human Rights.[4] This Convention may be enforced (to a limited extent) domestically through the Human Rights Act 1976 (UK),[5] and internationally through the European Court of Human Rights.[6]
In Australia, equal protection under the law is conferred by section 10 of the Racial Discrimination Act 1975 (Cth). As a non-entrenched federal statute, the Racial Discrimination Act 1975 (Cth) has the power to override discriminatory state laws and prior Commonwealth laws, but may be overridden by later Commonwealth laws that expressly or by implication exclude its operation.
4.2 Common Grounds of Discrimination: Employment
Discrimination in employment is prohibited in all five jurisdictions.[7] Most jurisdictions also cover employer or professional organisations, although generally only with regards to their ability to influence employment discrimination.[8] Only the U.K. and the E.U. directive specifically prohibit discrimination with regards to membership in such organisations.[9] In contrast, trade unions are usually cited both in regard to membership and with respect to their influence on employment discrimination.[10]
4.3 Common Grounds of Discrimination: Housing and Accommodation, Access to Facilities and Provision of Goods and Services
Other common areas covered by most anti-discrimination legislation include access to housing and accommodation, access to public facilities and the provision of goods and services to the public. In the U.S., discriminatory access to facilities is only prohibited with regards to state-run facilities,[11] and places of ‘public accommodation’ including hotels, restaurants and places of entertainment, along with other establishments located on the same premises.[12] There is also no general prohibition on discrimination in the supply of goods and services except in these locations. There is, however, a general right to equal treatment in the ‘making and enforcing of contracts’,[13] which in some circumstances can give protection against discrimination in the supply of goods and services.[14]
4.4 Less Common Grounds
Other, less common areas in which discrimination is prohibited include education, which is specifically cited in the U.S., U.K. and in the E.U. directive, but not mentioned in either of the Australian or Canadian acts.[15] In addition:
- the E.U. directive specifically lists ‘social protection (including social security and healthcare)’ and ‘social advantages’;[16]
- the U.S. proscribes discrimination in all federally funded programs, and also has specific prohibitions on discrimination in the area of voter registration.[17] It is also prohibited to take race into account when making decisions relating to adoption.[18]
The U.K. Race Relations Act cites a number of grounds which are not covered elsewhere including:
- discrimination in the carrying out of all public functions, including those which are delegated to private actors;
- partnerships (in some cases restricted to those with more than 6 partners);
- associations with more than 25 members;
- ‘qualifying bodies’ that grant qualifications relating to employment in a particular profession; and
- discrimination in the distribution of public honours and government appointments.[19]
While the general clause in the Australian legislation would cover most of the grounds listed above, it is most probably the case that not all of these areas would be covered. Under the Racial Discrimination Act 1975 (Cth), discrimination is prohibited only in cases where it detracts from the equal enjoyment of “any human right or fundamental freedom” in public life.[20] While this is broader than any individual ground in any of the other jurisdictions, it may not be broad enough to include conduct such as the discriminatory distribution of public honours or social advantages, which may be characterised as benefits or privileges rather than human rights. This issue has arisen previously in Australia with respect to allegations of discrimination in providing government loans for war veterans.[21] In this case, the court held that such benefits could not be characterised as human rights for the purpose of the act, and thus fell outside even the broad section nine definition of discrimination.[22] In contrast, it has been accepted that the distribution of ex gratia payments to persons interred in Japanese concentration camps during the war, along with other types of discretionary payments, will fall within the definition of ‘social advantages’ under E.U. and British law.[23]
[1] Racial Discrimination Act
1975 (Cth) s 9(1).
[2] Canadian Charter of Rights and Freedoms, Schedule B Constitution Act
1982 (U.K.) cl 15(1), U.S. Constitution amend XIV s 1 (see also 42 USC
§ 1981).
[3] Council
Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective or racial or ethnic origin [2000] OJ
L180/22, art 14 (a).
[4] Convention for the Protection of Human Rights and Fundamental Freedoms,
opened for signature 4 November 1950, CETS 5 (entered into force 3 September
1953), art 14.
[5] All laws must be
interpreted so as to give affect to Convention rights: Human Rights Act
1998 (U.K.) c 42 s 3, and legislators must make a declaration of
compatibility when passing laws: Human Rights Act 1998 (UK) c 42 s 19.
Discussed above at 1.3.
[6] Convention for the Protection of Human Rights and Fundamental Freedoms,
opened for signature 4 November 1950, CETS 5 (entered into force 3 September
1953), Part II.
[7] Racial
Discrimination Act 1975 (Cth) s 15; Canadian Human Rights Act, RS
1985, c. H-6 s 7; Race Relations Act 1976 (UK) c 74 part II; and 42 USC
§ 2000e.
[8] Racial
Discrimination Act 1975 (Cth) s 15(3), Canadian Human Rights Act, RS
1985, c. H-6 s 10. There is no specific reference in U.S.
legislation.
[9] Council
Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective or racial or ethnic origin [2000] OJ
L180/22 art 3 (1) (d), Race Relations Act 1976 (UK) c 74 s 11.
[10]Racial Discrimination Act
1975 (Cth) ss 14 and 15(3), Canadian Human Rights Act, RS 1985, c.
H-6 ss 9 and 10, 42 USC § 2000e-2
c).
[11] 42 USC §
2000b.
[12] 42 USC §
2000a.
[13] 42 USC §
1981.
[14] But note that the use
of this section has been limited by a strict interpretation by the courts of the
‘contractual relationship’ to be protected. See discussion in;
Harris A. G., ‘Shopping While Black: Applying 42 USC § 1981 to Cases
of Consumer Racial Profiling’ (2003) 23 B.C. Third Word L.J. 1 at
36-40.
[15] 42 USC § 2000c; Race Relations Act 1976 (U.K.) c 74 s 17-19ZA; and Council Directive
2000/43/EC of 29 June 2000 implementing the principle of equal treatment between
persons irrespective or racial or ethnic origin [2000] OJ L180/22 art 3
(1)(g).
[16] Council Directive
2000/43/EC of 29 June 2000 implementing the principle of equal treatment between
persons irrespective or racial or ethnic origin [2000] OJ L180/22 art
3(1)(e-f).
[17] 42 USC §
2000d and 42 USC §
1971.
[18] 42 USC § 1996b.
Note that there is an exception for children covered by the Indian Child
Welfare Act of 1978, which creates a preference for placing Native American
children with extended family or tribe
members.
[19] Respectively; Race Relations Act 1976 (UK) c 74 ss 19B, 10, 25, 12 and
76.
[20] Racial Discrimination
Act 1975 (Cth) s 9(1).
[21] Secretary, Department of Veteran's Affairs v P (1998) 79 FCR
594.
[22] See also the discussion
of this theme in; Human Rights and Equal Opportunity Commission Federal
Discrimination Law (2005) at
3.2.4.
[23] R (on the
application of Elias) v Secretary of State for Defence [2006] EWCA Civ 1293
at 56.
