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Australian legislation and international law

Commonwealth of Australia laws and policies

• Commonwealth Racial Discrimination Act (1975)
• Commonwealth Racial Hatred Act (1995)
• Human Rights and Equal Opportunity Commission Act (1986)
• Commonwealth policies

When Australia becomes a party to an international convention, the terms of the convention create binding obligations in international law. However, international laws do not automatically become a part of Australian law. The Australian government can choose to give effect to its international obligations in various forms - legislative, policy or symbolic. In Australia, they are reflected in a range of government policies and programs. Some are also incorporated in law. Not all of the international conventions and declarations set out above are incorporated into Australian law.

Commonwealth Racial Discrimination Act (1975)

The Racial Discrimination Act (RDA) gives effect to Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.

The RDA aims to ensure that all Australians can enjoy their human rights and freedoms in full equality regardless of their race, colour, descent, or national or ethnic origin, being an immigrant (in some circumstances) or being a relative or associate of someone of a particular ethnicity or other status. The RDA applies to everyone in Australia including businesses, schools, local governments, State and Territory government agencies and departments and Commonwealth government agencies and departments. It overrides racially discriminatory State or Territory legislation, making it ineffective. However, Commonwealth legislation which is racially discriminatory is not necessarily overridden by the RDA.

Under the RDA, racial discrimination is unlawful whenever it impairs a person’s equal enjoyment of his or her human rights and fundamental freedoms as set out in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination. In addition, the RDA has specific provisions making it unlawful to discriminate in areas such as employment; land; housing and accommodation; provision of goods and services; access to places and facilities for use by the public; advertising and joining a trade union. The RDA also makes indirect racial discrimination unlawful.

In some cases, the RDA will permit special measures, that is, distinctions based on race where there might be more favourable treatment for one racial group over another. It does so as a form of affirmative action, so that a group which has been traditionally denied human rights and access to rights, can receive special treatment to redress the situation and to allow that group to enjoy human rights on an equal footing with the rest of the community. This form of favourable treatment is not unlawful discrimination and the special measure will be removed when equality has been achieved.

There are several examples of special measures in Australia including Aboriginal legal and medical services and the Special Broadcasting Service (SBS). Government support for these organisations is not discriminatory because their aim is to enhance the access of minority groups to justice, cultural expression and other rights and freedoms.

The RDA is administered by the Human Rights and Equal Opportunity Commission (HREOC). HREOC has the responsibility for investigating complaints. The HREOC President endeavours to resolve complaints by conciliation, that is getting the relevant people together to talk through the complaint. If the complaint cannot be resolved by conciliation, a complainant can decide whether to take their complaint to the Federal Court or the Federal Magistrate’s Service.

Commonwealth Racial Hatred Act (1995)

The Racial Hatred Act extends the coverage of the Racial Discrimination Act (RDA) to allow people to complain about racially offensive or abusive behaviour. In 1995, the Racial Hatred Act amended the RDA by adding in new laws specifically dealing with racial vilification. The Racial Hatred Act gives effect to some of Australia's obligations under the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

The Racial Hatred Act aims to strike a balance between two valued rights - the right to communicate freely and the right to live free from vilification. It covers public acts which are:

• done, in whole or in part, because of the race, colour, or national or ethnic origin of a person or group and
• reasonably likely in all circumstances to offend, insult, humiliate or intimidate that person or group.

In order to protect freedom of speech, under the Act the following things are not unlawful if "done reasonably and in good faith":

• an artistic work or performance
• an academic or scientific publication, discussion or debate
• a fair and accurate report on a matter of public interest
• a fair comment if the comment is an expression of a person's genuine belief.

In bringing a complaint, the complainant is responsible for proving that the act was done in public, that it was done because of his or her ethnicity and that it was reasonably likely to offend, insult, humiliate or intimidate a reasonable person of that ethnicity. In claiming an exception, the respondent is responsible for establishing that the act was a genuine exception and that it was done reasonably and in good faith.

Human Rights and Equal Opportunity Commission Act (1986)

The Human Rights and Equal Opportunity Commission Act (HREOCA) is another Commonwealth law which applies throughout Australia. HREOCA gives effect to the following relevant international conventions and declarations, such the International Covenant on Civil and Political Rights, the Declaration on the Rights of the Child, the Convention on the Rights of the Child, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities. It also gives effect to International Labour Organisation Convention on Discrimination in Employment and Occupation and United Nations declarations concerning the rights of people with disabilities.

HREOCA does not make all breaches of these conventions and declarations unlawful. It enables the Human Rights and Equal Opportunity Commission (HREOC) to investigate complaints of breaches of these conventions by Commonwealth Government agencies and may also investigate complaints of racial discrimination in employment by any employer.

In addition to investigating complaints, HREOC also carries out research into these issues, promotes awareness of rights and prepares reports detailing how Australia protects these human rights.

Commonwealth policies

The expression of anti-racism in national educational policy is implicit in The Adelaide Declaration on National Goals for Schooling in the Twenty-First Century (1999).

In April 1999, State, Territory and Commonwealth Ministers of Education met as the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) to endorse this declaration as the common and agreed national goals for schooling. The achievement of the national goals is aimed to assist young people to contribute to Australia's social, cultural and economic development and to develop a disposition towards learning throughout their lives so they can exercise their rights and responsibilities as citizens of Australia.

Goal 3.1 specifically relates to discrimination in education and states that:

Schooling should be socially just so that students' outcomes from schooling are free from the effects of negative forms of discrimination based on sex, language, culture and ethnicity, religion or disability; and of differences arising from students' socio-economic background or geographic location.

The most recent expression of anti-racism in terms of national public policy was made in October 1996 when the Prime Minister, with the support of the Leader of the Opposition, made a Parliamentary Statement of Racial Tolerance by moving:

"That this house:

• reaffirms its commitment to the right of all Australians to enjoy equal rights and be treated with equal respect, regardless of race, colour, creed or origin;
• reaffirms its commitment to maintaining an immigration policy wholly non-discriminatory on grounds of race, colour, creed or origin;
• reaffirms its commitment to the process of reconciliation with Aboriginal and Torres Strait Islander peoples, in the context of redressing their profound social and economic disadvantage;
• reaffirms its commitment to maintaining Australia as a culturally diverse, tolerant and open society, united by an overriding commitment to our nation and its democratic institutions and values; and
• denounces racial intolerance in any form as incompatible with the kind of society we are and want to be."