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Racial discrimination law, remedies, reform and the Racial Justice Centre

25th May 2023

In the dying days of the Whitlam Government, the then Attorney-General, the Hon Kep Enderby, introduced the ground-breaking Racial Discrimination Bill 1975. In his second reading speech, he said:

‘The proscribing of racial discrimination in legislative form will require legal sanctions. These will also make people more aware of the evils, the undesirable and unsociable consequences of discrimination – the hurtful consequences of discrimination – and make them more obvious and conspicuous.’

Federal protection against racial discrimination

The Racial Discrimination Act 1975 (Cth) (RDA) makes racial discrimination and racial vilification unlawful. Redress can be had through an application to the Australian Human Rights Commission (AHRC). That application can be terminated by the President for a variety of reasons – one of which is that there are no reasonable prospects of it being successfully conciliated – in which case proceedings can be commenced in the federal courts seeking declaratory and injunctive relief and damages, which are akin to common law tortious damages, including aggravated damages.[1] Exemplary damages should be able to be awarded. There is a compulsory conciliation.

A complaint to the AHRC must be made within two years and, if the complaint is terminated, application to the federal court made within 60 days. There is a discretion to extend these time periods for good cause.   

The requirements of s9(1) of the RDA are –

• that there be an ‘act involving a distinction, exclusion, restriction or preference’;
• which must be ‘based on race, colour, descent or national or ethnic origin’;
• which must have ‘the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.’[2]

Section 18C gives relief for conduct that is reasonably likely to offend or humiliate and done because of race, colour or national or ethnic origin. It is an important protection but has been the subject of criticism and unsuccessful attempts in the Senate to abolish it or water it down. During a 2016 debate on a bill in to remove the provisions against racist hate speech, Yawuru man Senator Pat Dodson said ‘words do matter, and how we use words is critical in the way we go about our business and in the way we go about our communication’. An opinion poll conducted in 2014 showed that 88% of the public supported the retention of the Section.[3]

The reach of s18C is well illustrated by Eatock v Bolt, where the respondents failed to discharge the onus of proof to make out the good faith and reasonableness exception provided by s18D, which ‘seeks to balance the objectives of section 18C with the need to protect justifiable freedom of expression’ (Bromberg J) (at [7]).   

Further federal protection against racial discrimination in the workplace is provided pursuant to s351 of the Fair Work Act 2009 (Cth).

Reform, change, rejuvenation and expansion

Prevention of and redress for racial discrimination has been the subject of legislation in all the states and territories.[4] The provisions apply in diverse ways, lack uniformity and there are gaps in the protection afforded. Some jurisdictions have caps on the amount of compensation that can be awarded; in NSW, the cap is $100,000. It is usual that the parties bear their own costs. There is a mandatory conciliation process in all jurisdictions other than Victoria.

The legislative provisions – federal, state and territory – are in urgent need of reform, change, rejuvenation and expansion to better achieve racial justice in our society.

There is a need for a uniform approach in all anti-discrimination laws in the states and territories.

Positive duties legislation (other than the Victorian model, which is unsatisfactory) should be introduced in the Commonwealth and states and territories making it mandatory to take positive steps to prevent racial discrimination. This should impose substantial monetary penalties for breaches by individuals – including company directors.

The Sex Discrimination Act 1984 (Cth) was amended in 2022 to make it unlawful for persons to subject another person to a workplace environment hostile on the grounds of sex (s28M) and introduces such a positive duty (pt IIA). Such a reform ought to have made to the RDA and it is difficult to understand why this was not done.

Another reform should provide for a shifting onus of proof and apply where there is prima facie evidence of racial discrimination, requiring the respondent to then prove that there has been no breach of the relevant provision.[5]

Currently in federal court proceedings costs usually follow the event and in state and territory tribunals in general each party bears their own costs but there are differing discretions to award them in certain circumstances. 

A reform of federal court proceedings should provide for ‘equal access’ cost provisions that render applicants immune from adverse costs orders unless the claim is frivolous, unreasonable or unfounded. Such a reform is being considered by the Commonwealth Attorney-General’s Department.

As far as the states and territories go, there ought to be uniformity, with costs to follow the event but with the ‘equal access’ model to apply.

There should be no caps on damages in the state and territory tribunals, the damages to be awarded akin to tortious common law damages, as is the case in federal court proceedings. The general damages awarded need to reflect community standards.[6]

Applicants should be required to bring proceedings in a reasonable fixed time, but time should be extended unless the respondent can establish that it would be prejudiced irreparably. Similarly, applicants should be able to include new breaches unless there is irreparable prejudice to the respondent.

Currently if there are proceedings under state or territory legislation a person cannot make a complaint to the AHRC. Commencing in the wrong or least effective venue should not be fatal. Although the issue is complicated, and constitutional issues may arise, consideration should be given to providing a mechanism whereby if a complaint is made under state or territory legislation, and it becomes apparent that the better venue would be the federal one, the applicant is not barred from making a complaint to the AHRC and, if necessary, bringing proceedings in the federal courts.

There are other reforms needed to make racial discrimination laws fit for purpose, which I am unable to adequately deal with in this opinion piece.

The present political landscape in Australia offers an opportunity for the overhaul of existing racial discrimination law in Australia. A great deal more needs to be done by all governments.

To be effective and meaningful, the National Anti-Racism Framework proposed by the Federal Government should include the substantive reforms outlined in this opinion piece. Public awareness and educative campaigns are important, but law reform is critical. This will give effect to the Labor Party’s commitment to combating racism and its impacts, and its condemnation of racism without reservation.

These reforms also give effect to the United Nations Declaration on the Elimination of All Forms of Racial Discrimination adopted by the General Assembly in1965, ‘106 votes in favour, none against’.

The Racial Justice Centre

In 2022 the Racial Justice Centre (RJC)was established, an Australian first in providing an integrated organisation dedicated to eliminating racial discrimination in all forms, providing redress for those subject to racial discrimination and bringing about racial justice for all ethnicities.

It is a not-for-profit incorporated legal entity that can give advice and take legal proceedings in relation to racial discrimination under existing legislative provisions. It is supported by an executive and highly credential advisory committee. It is assisted by pro-bono lawyers, along with volunteer students of law and other areas of racial and social justice.

The RJC strives to create a world where all people can live, thrive and enjoy life without racism. It has a wide remit, including advocating for racial justice, influencing the discourse in relation to racism by way of education and dialogue and, importantly, engaging with the Commonwealth and the states and territories to transform and enhance protections through the legislative process.

It has made a detailed submission supporting an ‘equal access’ cost provision.[7] is currently litigating a racial discrimination case in the NSW tribunal.[8]

It aims to be an important stakeholder and force for change to reduce and eradicate racial injustice in our society.

The Racial Justice Centre invites feedback on this article. Please contact sarah@racialjustice.au

The ALA thanks Des Kennedy SC for this article.

Des Kennedy is a retired SC and member of the Advisory Committee of the Racial Justice Centre. He practised in the areas of sexual discrimination and harassment, racial discrimination, and bullying. He has written extensively in these areas and presented papers at state and national legal conferences, including those of the Australian Lawyers Alliance (ALA). He appeared as SC for Devanar Naidu in Nationwide News Limited v Naidu, a bullying case that resurrected the tort of intentional harm and made it mainstream. EMAIL desmondkennedy@outlook.com.au

The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Racial Discrimination Act 1975 (Cth) Australian Human Rights Commission Law reform Racial justice Racial Justice Centre National Anti-Racism Framework United Nations Declaration on the Elimination of All Forms of Racial Discrimination Des Kennedy