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Racial discrimination

Legislation:

Areas of discrimination on basis of race under SA law

Under South Australian legislation it is unlawful to discriminate against a person on the basis of race in the following areas:

  • employment
  • membership of an association
  • qualifying bodies
  • education
  • sale of land
  • provision of goods and services
  • accommodation
  • superannuation

Exemptions

  • charities
  • special measures designed to benefit persons of a particular race or ethnic group
  • employment not in connection with an employer's business
  • employment for which it is a genuine occupational requirement that a person be of a particular race
  • social clubs established for the purpose of promoting the interests of persons of a particular race or ethnic group
  • accommodation in one's own household

Areas of discrimination on basis of race under Commonwealth law

It is unlawful under Commonwealth legislation to discriminate on the basis of race, colour, descent or national or ethnic origin in the following areas:

  • Access to places and facilities
  • Land, housing and other accommodation
  • Provision of goods and services
  • Membership of trade unions
  • Employment

Under section 10 equality before the law is guaranteed. If a law of the Commonwealth or a state gives rights to one racial group and not another, the effect of this section is to give the same rights to the excluded racial group.

The Fair Work Ombudsman can also accept complaints about discrimination at work on the ground of race.

Exemptions under the Racial Discrimination Act 1975 (Cth)

  • Special provisions made to seek the advancement of certain racial or ethnic groups requiring such protection as to ensure they enjoy equal enjoyment of human rights and fundamental freedoms
  • Employment of a person on a foreign-owned ship or aircraft if person employed outside Australia
  • Employment in a private household
  • Any provision of a will or deed conferring charitable benefits on members of a particular race, colour or national or ethnic group

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Aboriginal teacher subject to racial slur and refused service at supermarket

Michelle, an Aboriginal teacher, said she was not served in a large regional supermarket. When she complained to the manager, the shop assistant said, "I couldn't see her because of the colour of her skin." Michelle said this was witnessed by a non-Aborginal colleague. Michelle was quite distressed and went back into the store to follow up with the manager, but did not feel the matter was properly dealt with.

In response to her complaint, the store investigated the matter and provided letters of apology from both the shop assistant and the manager.

Outcome: At conciliation, the store undertook to provide discrimination training to all staff and pay Michelle $1500 compensation.


Racial hatred

Legislation

Racial vilification in South Australian law

It is an offence to incite hatred or severe ridicule or contempt of a person or group of persons on the basis of their race by threatening physical harm or harm to property or inciting others to do so (Racial Vilification Act 1996 (SA)). Any such offence should be reported to the police.

It is also a civil wrong to do a public act that incites hatred, severe ridicule or serious contempt of a person or group on the ground of their race [Civil Liability Act 1936 (SA) s 73]. A public act means conduct in a public place or any form of communication with the public (for instance, a radio broadcast). If this happens, any person or group affected can sue for damages of up to $40 000 in total for all persons affected by the one act. It is not, however, unlawful to publish a fair report of actual events or to publish genuine and reasonable academic, artistic or scientific material.

Racial hatred in Commonwealth law

Offensive behaviour based on racial hatred is also prohibited under the Racial Discrimination Act 1975 (Cth). Under s 18C it is unlawful for a person to do an act, other than in private, if the act is reasonably likely to offend, insult, humiliate or intimidate another person or group of persons and the act is done because of race, colour, national or ethnic origin. A complaint can be made to the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Exemptions to this include: performance, distribution or exhibition of artistic works statements or comments made in public interest discussions and the publication of a fair and accurate report of an event or matter of public interest.

Racial discrimination  :  Last Revised: Wed Nov 8th 2017
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.