An International Comparison of the Racial Discrimination Act 1975 (2008) Chapter 4: Grounds of Discrimination
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.
