Racial Discrimination Act 1975 (Cth)

Racial Discrimination Act 1975 No. 52, 1975 Compilation No. 19 Compilation date: 13 December 2022 Includes amendments up to: Act No. 85, 2022 Registered: 20 December 2022 About this compilation This compilation This is a compilation of the Racial Discrimination Act 1975 that shows the text of the law as amended and in force on 13 December 2022 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part I—Preliminary 1 Short title 2 Commencement 3 Interpretation 4 Extension to external Territories 5 Additional operation of Act 6 Act binds the Crown 6A Operation of State and Territory laws 6B Application of the Criminal Code 7 Ratification of Convention Part II—Prohibition of racial discrimination etc. 8 Exceptions 9 Racial discrimination to be unlawful 10 Rights to equality before the law 11 Access to places and facilities 12 Land, housing and other accommodation 13 Provision of goods and services 14 Right to join trade unions 15 Employment................................. 16 Advertisements 17 Unlawful to incite doing of unlawful acts 18 Acts done for 2 or more reasons 18A Vicarious liability 18AA Victimisation Part IIA—Prohibition of offensive behaviour based on racial hatred 18B Reason for doing an act 18C Offensive behaviour because of race, colour or national or ethnic origin 18D Exemptions 18E Vicarious liability 18F State and Territory laws not affected Part III—Race Discrimination Commissioner and functions of Commission Division 1—Preliminary 19 Race Discrimination Commissioner 20 Functions of Commission Part IV—Offences 26 Unlawful acts not offences unless expressly so provided 27 Offences relating to administration of Act 27F Non‑disclosure of private information Part VI—Race Discrimination Commissioner 29 Appointment of Race Discrimination Commissioner 30 Terms and conditions of appointment 31 Remuneration of Commissioner 32 Leave of absence 33 Resignation 34 Termination of appointment 35 Outside employment 36 Acting Commissioner 40 Delegation Part VII—Miscellaneous 44 Jurisdiction 45 Protection from civil actions 45A Commissioner to furnish information 47 Regulations Schedule—International Convention on the elimination of all forms of racial discrimination Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act relating to the Elimination of Racial and other Discrimination WHEREAS a Convention entitled the "International Convention on the Elimination of all Forms of Racial Discrimination" (being the Convention a copy of the English text of which is set out in the Schedule) was opened for signature on 21 December 1965: AND WHEREAS the Convention entered into force on 2 January 1969: AND WHEREAS it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention: BE IT THEREFORE ENACTED by the Queen, the Senate and the House of Representatives of Australia, as follows: Part I—Preliminary 1 Short title This Act may be cited as the Racial Discrimination Act 1975. 2 Commencement (1) Sections 1, 2 and 7 shall come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act shall come into operation on a day to be fixed by Proclamation, being a day not earlier than the day on which the Convention enters into force for Australia. 3 Interpretation (1) In this Act, unless the contrary intention appears: Aboriginal means a person who is a descendant of an indigenous inhabitant of Australia but does not include a Torres Strait Islander. Commission means the Australian Human Rights Commission. Commissioner means the Race Discrimination Commissioner appointed under section 29. Commonwealth agency means an agency within the meaning of the Privacy Act 1988. Convention means the International Convention on the Elimination of All Forms of Racial Discrimination that was opened for signature on 21 December 1965 and entered into force on 2 January 1969, being the Convention a copy of the English text of which is set out in the Schedule. dispose includes sell, assign, lease, let, sub‑lease, sub‑let, license or mortgage, and also includes agree to dispose and grant consent to the disposal of. employment includes work under a contract for services, and cognate expressions have corresponding meanings. President means President of the Commission. principal executive, in relation to a Commonwealth agency, has the same meaning as in Part V of the Privacy Act 1988. registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act. relative, in relation to a person, means a person who is related to the first‑mentioned person by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on, or is a member of the household of, the first‑mentioned person. residential accommodation includes accommodation in a dwelling‑house, flat, hotel, motel or boarding‑house or on a camping ground. services includes services consisting of the provision of facilities by way of banking or insurance or of facilities for grants, loans, credit or finance. Torres Strait Islander means a person who is a descendant of an indigenous inhabitant of the Torres Strait Islands. vehicle includes a ship, an aircraft and a hovercraft. (2) A reference in this Act to an Australian ship or aircraft shall be construed as a reference to a ship or aircraft registered in Australia or belonging to or in the possession of the Commonwealth or a State. (3) For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure. (4) A reference in this Act to the doing of an act by a person includes a reference to the doing of an act by a person in association with other persons. 4 Extension to external Territories This Act extends to every external Territory. 5 Additional operation of Act Without prejudice to its effect apart from this section, this Act also has, by force of this section, the effect it would have if: (a) there were added at the end of sections 11 and 13 the words "or by reason that that other person or any relative or associate of that other person is or has been an immigrant"; (b) there were added at the end of subsections 12(1) and 15(1) the words "or by reason that that second person or any relative or associate of that second person is or has been an immigrant"; (c) there were inserted in subsection 14(1), before the words "is invalid, the words or by reason that that person is or has been an immigrant"; (d) there were added at the end of subsection 14(2) the words "or by reason that that other person is or has been an immigrant"; (e) there were added at the end of subsection 15(2) the words "or by reason that the person so seeking employment or any relative or associate of that person is or has been an immigrant"; and (f) there were inserted in section 18, after the word "person", the words "or by reason that a person is or has been an immigrant". 6 Act binds the Crown (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to be prosecuted for an offence. 6A Operation of State and Territory laws (1) This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act. (2) Where: (a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and (b) a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which the person would, but for this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act; the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act and any proceedings pending under this Act at the commencement of this section in respect of such a complaint made before that commencement are, by force of this subsection, terminated. (3) Where: (a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act; the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission. 6B Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 7 Ratification of Convention Approval is given to ratification by Australia of the Convention. Part II—Prohibition of racial discrimination etc. 8 Exceptions (1) This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3). Charities (2) This Part does not: (a) affect a provision (whether made before or after the commencement of this Part) of the governing rules (within the meaning of the Australian Charities and Not‑for‑profits Commission Act 2012) of a registered charity, if the provision: (i) confers benefits for charitable purposes; or (ii) enables such benefits to be conferred; on persons of a particular race, colour or national or ethnic origin; or (b) make unlawful any act done to give effect to such a provision. 9 Racial discrimination to be unlawful (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has 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. (1A) Where: (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and (b) the other person does not or cannot comply with the term, condition or requirement; and (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin. (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention. (3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia. (4) The succeeding provisions of this Part do not limit the generality of this section. 10 Rights to equality before the law (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention. (3) Where a law contains a provision that: (a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or (b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander; not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person. 11 Access to places and facilities It is unlawful for a person: (a) to refuse to allow another person access to or use of any place or vehicle that members of the public are, or a section of the public is, entitled or allowed to enter or use, or to refuse to allow another person access to or use of any such place or vehicle except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow access to or use of that place or vehicle; (b) to refuse to allow another person use of any facilities in any such place or vehicle that are available to members of the public or to a section of the public, or to refuse to allow another person use of any such facilities except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow use of those facilities; or (c) to require another person to leave or cease to use any such place or vehicle or any such facilities; by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person. 12 Land, housing and other accommodation (1) It is unlawful for a person, whether as a principal or agent: (a) to refuse or fail to dispose of any estate or interest in land, or any residential or business accommodation, to a second person; (b) to dispose of such an estate or interest or such accommodation to a second person on less favourable terms and conditions than those which are or would otherwise be offered; (c) to treat a second person who is seeking to acquire or has acquired such an estate or interest or such accommodation less favourably than other persons in the same circumstances; (d) to refuse to permit a second person to occupy any land or any residential or business accommodation; or (e) to terminate any estate or interest in land of a second person or the right of a second person to occupy any land or any residential or business accommodation; by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person. (2) It is unlawful for a person, whether as a principal or agent, to impose or seek to impose on another person any term or condition that limits, by reference to race, colour or national or ethnic origin, the persons or class of persons who may be the licensees or invitees of the occupier of any land or residential or business accommodation. (3) Nothing in this section renders unlawful an act in relation to accommodation in a dwelling‑house or flat, being accommodation shared or to be shared, in whole or in part, with the person who did the act or a person on whose behalf the act was done or with a relative of either of those persons. 13 Provision of goods and services It is unlawful for a person who supplies goods or services to the public or to any section of the public: (a) to refuse or fail on demand to supply those goods or services to another person; or (b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services; by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person. 14 Right to join trade unions (1) Any provision of the rules or other document constituting, or governing the activities of, a trade union that prevents or hinders a person from joining that trade union by reason of the race, colour or national or ethnic origin of that person is invalid. (2) It is unlawful for a person to prevent or hinder another person from joining a trade union by reason of the race, colour or national or ethnic origin of that other person. 15 Employment (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer: (a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified; (b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or (c) to dismiss a second person from his or her employment; by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person. (2) It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person. (3) It is unlawful for an organization of employers or employees, or a person acting or purporting to act on behalf of such an organization, to prevent, or to seek to prevent, another person from offering for employment or from continuing in employment by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person. (4) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia. (5) Nothing in this section renders unlawful an act in relation to employment, or an application for employment, in a dwelling‑house or flat occupied by the person who did the act or a person on whose behalf the act was done or by a relative of either of those persons. 16 Advertisements It is unlawful for a person to publish or display, or cause or permit to be published or displayed, an advertisement or notice that indicates, or could reasonably be understood as indicating, an intention to do an act that is unlawful by reason of a provision of this Part or an act that would, but for subsection 12(3) or 15(5), be unlawful by reason of section 12 or 15, as the case may be. 17 Unlawful to incite doing of unlawful acts It is unlawful for a person: (a) to incite the doing of an act that is unlawful by reason of a provision of this Part; or (b) to assist or promote whether by financial assistance or otherwise the doing of such an act. 18 Acts done for 2 or more reasons Where: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act); then, for the purposes of this Part, the act is taken to be done for that reason. 18A Vicarious liability (1) Subject to subsection (2), if: (a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and (b) the act would be unlawful under this Part if it were done by that person; this Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act. 18AA Victimisation (1) It is unlawful for a person to commit an act of victimisation against another person. Note 1: See also subsection 27(2) (offences relating to administration of this Act). Note 2: See also the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986. (2) For the purposes of subsection (1), a person (the first person) commits an act of victimisation against another person if the first person: (a) refuses to employ the other person; or (b) dismisses, or threatens to dismiss, the other person from the other person's employment; or (c) prejudices, or threatens to prejudice, the other person in the other person's employment; or (d) intimidates or coerces, or imposes any pecuniary or other penalty upon, the other person; by reason that the other person: (e) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or (f) has given, or proposes to give, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986; or (g) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986. Part IIA—Prohibition of offensive behaviour based on racial hatred 18B Reason for doing an act If: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act); then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin. 18C Offensive behaviour because of race, colour or national or ethnic origin (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence. (2) For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place. (3) In this section: public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place. 18D Exemptions Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) 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. 18E Vicarious liability (1) Subject to subsection (2), if: (a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and (b) the act would be unlawful under this Part if it were done by the person; this Act applies in relation to the person as if the person had also done the act. (2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act. 18F State and Territory laws not affected This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory. Part III—Race Discrimination Commissioner and functions of Commission Division 1—Preliminary 19 Race Discrimination Commissioner For the purposes of this Act there shall be a Race Discrimination Commissioner. 20 Functions of Commission The following functions are hereby conferred on the Commission: (b) to promote an understanding and acceptance of, and compliance with, this Act; (c) to develop, conduct and foster research and educational programs and other programs for the purpose of: (i) combating racial discrimination and prejudices that lead to racial discrimination; (ii) promoting understanding, tolerance and friendship among racial and ethnic groups; and (iii) propagating the purposes and principles of the Convention; (d) to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of infringements of Part II or Part IIA; (e) where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve racial discrimination issues; (f) to inquire into, and make determinations on, matters referred to it by the Minister or the Commissioner. Note: For the provisions about inquiries into complaints of discrimination and conciliation of those complaints: see Part IIB of the Australian Human Rights Commission Act 1986. Part IV—Offences 26 Unlawful acts not offences unless expressly so provided Except as expressly provided by this Part, nothing in this Act makes it an offence to do an act or agree with another person to do an act that is unlawful by reason of a provision of Part II or Part IIA. 27 Offences relating to administration of Act (1) A person shall not hinder, obstruct, molest or interfere with a person exercising or performing any of the powers or functions referred to in this Act. Penalty for an offence against subsection (1): 10 penalty units. (1A) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance, that a person is exercising or performing any of the powers or functions referred to in this Act. Note: For strict liability, see section 6.1 of the Criminal Code. (2) A person shall not: (a) refuse to employ another person; or (b) dismiss, or threaten to dismiss, another person from the other person's employment; or (c) prejudice, or threaten to prejudice, another person in the other person's employment; or (d) intimidate or coerce, or impose any pecuniary or other penalty upon, another person; by reason that the other person: (e) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or (f) has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986; or (g) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986. Penalty for an offence against subsection (2): (a) in the case of a natural person—25 penalty units or imprisonment for 3 months, or both; or (b) in the case of a body corporate—100 penalty units. 27F Non‑disclosure of private information (1) A person who is, or has at any time been, the Commissioner, a member of the Commission or a member of the staff assisting the Commission or is, or has at any time been, authorised to perform or exercise any function or power of the Commission or the Commissioner or any function or power on behalf of the Commission or the Commissioner, being a function or power conferred on the Commission or on the Commissioner under this Act, shall not, either directly or indirectly: (a) make a record of, or divulge or communicate to any person, any information relating to the affairs of another person acquired by the first‑mentioned person by reason of that person's office or employment under or for the purpose of this Act or by reason of that person being or having been so authorised; or (b) make use of any such information as is mentioned in paragraph (a); or (c) produce to any person a document relating to the affairs of another person furnished for the purposes of this Act. Penalty: 50 penalty units or imprisonment for 1 year, or both. (2) A person who is, or has at any time been, the Commissioner, a member of the Commission or a member of the staff assisting the Commission or is, or has at any time been, authorised to perform or exercise any function or power of the Commission or the Commissioner or any function or power on behalf of the Commission or the Commissioner, being a function or power conferred on the Commission or on the Commissioner under this Act, shall not be required: (a) to divulge or communicate to a court any information relating to the affairs of another person acquired by the first‑mentioned person by reason of that person's office or employment under or for the purposes of this Act or by reason of that person being or having been so authorised; or (b) to produce in a court