Racial discrimination and the law
Understand how Australia's Racial Discrimination Act (1975) protects people from racial discrimination in employment, education, services and public life.
Summary
The law in Australia protects people from racial discrimination in many areas of public life.
The Racial Discrimination Act 1975 (the Act) makes it unlawful to discriminate against a person because of their:
- race
- colour
- descent
- national origin
- ethnic origin
- immigrant status.
The Act also makes racial hatred unlawful.
Know your rights in the workplace
All types of employers, employment relationships and recruitment are covered under the Act. This includes:
- advertising jobs
- recruitment and selection processes
- decisions about training
- transfer and promotion opportunities
- terms, conditions and termination of employment.
Examples could include:
- insisting that all employees speak English at all times, even during their breaks
- not employing someone from a particular racial group
- unfair treatment on the basis of race.
Employers' obligations
Employers must take all reasonable steps to prevent racial discrimination.
For example, they should:
- put in place policies and procedures to create a respectful and inclusive environment
- set up reporting and support channels to deal with allegations made by employees or customers.
Employers can be held legally responsible for discrimination or harassment of their employees. This is called vicarious liability.
Read our fact sheet on vicarious liability.
The Act also protects people from being treated unfairly because they associate with a person of a particular race, colour or national or ethnic origin.
Nationality, citizenship and visa status
It is not against the law for an employer to limit recruitment to Australian citizens or people with permanent residency.
However, it can be against the law to not employ someone or offer them job opportunities because of their immigrant status. Employees always need a valid work visa.
You can also bring a complaint against an employer on the basis of nationality under the Australian Human Rights Commission Act 1986.
Read more about other areas of workplace discrimination.
Case study
Anita* was employed by a large company as a travel consultant and asked her team leader for leave to celebrate Greek Orthodox Good Friday. The company denied her request and made negative comments about her background.
Anita decided to make a complaint of racial discrimination to the Commission. After conciliation, the company agreed to provide her with financial compensation, a statement of regret and a statement of service.
*not her real name.
Experiencing discrimination as a customer
It is also unlawful to discriminate when providing services in:
- banking and insurance
- government departments
- transport or telecommunications
- law, healthcare or trade
- restaurants, shops or entertainment venues.
This means that it is against the law for a provider of goods or services to discriminate against a person because of their race by:
- refusing to provide goods, services and facilities
- providing them with goods, services and facilities on less favourable terms and conditions, or in an unfair manner.
For example, it is against the law for a real estate agent to refuse to rent a house to a person because they are of a particular race or skin colour.
When does the Racial Discrimination Act allow people to be treated differently?
Like other anti-discrimination laws, the Act says that in some circumstances treating someone differently because of their race won’t be against the law. This is known as special measures.
- The Act allows 'special measures' to support groups of people who face or have faced entrenched discrimination. This is so they can have access to opportunities, like others in the community.
- These special measures are positive actions to promote equality for disadvantaged groups.
What is racial hatred?
Under the Act, it is unlawful to do or say something in public that is reasonably likely to offend, insult, humiliate or intimidate a person or group because of their race, colour, or national or ethnic origin.
This behaviour is called racial hatred.
Examples could include racially offensive:
- material in print or online such as posters, cartoons, memes or other images.
- behaviour or language such as comments, jokes or gestures in a public place, like a workplace or a shop.
The person being racist is primarily responsible for their behaviour. However, employers can be held responsible – or vicariously liable – for acts of racial hatred by their employees or agents.
The Act aims to strike a balance between freedom of speech and the right to live free from racial hatred or vilification.
The following are not against the law, provided they are ‘done reasonably and in good faith’:
- An artistic work or performance - for example, a play in which a character expresses racist attitudes.
- A statement, publication, discussion or debate made for genuine academic or scientific purposes – for example, public policy discussions on immigration, multiculturalism or special measures for particular groups.
- Making a fair and accurate report on a matter of public interest – for example, a newspaper article about racially offensive conduct.
- Making a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
Case study
Two male factory workers claim their supervisor made racist remarks towards them and threatened them both verbally and physically. The men decided to make a complaint to the Commission.
Following conciliation, the employer agreed to:
- pay the men financial compensation
- provide them with written apologies
- establish an anti-discrimination policy
- train all staff in anti-discrimination
- encourage the supervisor to attend counselling.
Looking for more information?
You can contact us for information about your rights, how to make a complaint and where to get help.
