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Racial discrimination & vilification – What are your rights?

Discrimination Definition

Will Barsby Written by:
Will Barsby
National Special Counsel - Consumer Dispute Resolution

In Australia, it is unlawful for you to be treated unfairly because of attributes including your race, colour, immigration status, ethnicity or nationality. Unfortunately, despite Federal Laws such as the Racial Discrimination Act 1975 (Cth), making this conduct and behaviour illegal, everyday people and groups of people continue to be subjected to unfair treatment because of these protected attributes.

The Racial Discrimination Act can protect people from unfair treatment in areas of public life, such as the workplace; places of education and access to public and private services.

Racial hatred or vilification is also against the law. It is unlawful to do something in public based on the same factors to a person or a group of persons if the conduct will likely offend, insult, offend or humiliate.


How do you know if you have suffered racial discrimination or racial vilification / hatred?

Simply, racial discrimination occurs when a person is treated differently, unfairly or unfavourably by another person, including a business or organisation, because of factors such as race, colour of their skin and nationality. Discrimination can happen to a person either directly or indirectly. Unfortunately, more often than not, people will indirectly racially discriminate another person without even realising. Ignorance of the offending behaviour does not provide the person with immunity from the law. A person can still be found to have breached the legislation indirectly even if they are unaware of their conduct.

Direct discrimination can occur when a person or organisation has a policy in place that refuses people of certain colour or race entry into, for example, a restaurant or club. It would be considered indirect discrimination if a workplace does not permit without lawful excuse, a person to wear head garments which may have an indirect unfair impact on someone who may wear certain garments as part of their racial or ethnic background.

It may be a case for racial vilification or hatred if someone makes racially insensitive remarks in a public forum or perhaps dresses up as ‘black face’ on television or a mad Monday football break up session.


What can you do?

If you have experienced racial discrimination, the first step is to consider whether you can safely raise your grievance with the person, business or organisation involved. Sometimes, you may not feel comfortable or safe in doing so or it may not resolve the problem.

A formal complaint can be lodged with the Human Rights and Equal Opportunity Commission. This involves completing a form and lodging it with the Commission. You can elect to have a lawyer represent you.

Once the Commission receives the complaint, it will be assessed to ensure it contains sufficient information to demonstrate unlawful discrimination. Generally, the complaint will then be served on the responding party and the parties will be invited to participate in a conciliation. A conciliation is an informal process where the parties can privately attempt to talk about the issues and attempt to resolve the dispute on terms that satisfies all involved.

If the dispute remains unresolved, you may have a right to commence an action in the Federal Court of Australia.

If you believe you have suffered racial discrimination, you should consider getting legal advice to see whether you can take any action to protect your rights.

Written by Will Barsby on . Last modified: December 22, 2017.

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