Discrimination

Contributed by PaulSheiner and KelsiForrest and current to 27 July 2018

Discrimination and racial and vilification remain a daily fact of life for many Aboriginal and Torres Strait Islander individuals. Both the State and Commonwealth have anti-discrimination legislation which make racial discrimination unlawful. The relevant State legislation is the Equal Opportunity Act 1984 (WA) (“EOA”) and the relevant Commonwealth legislation is the Racial Discrimination Act 1975 (Cth) (“RDA”).

Under the EOA and RDA it is unlawful to racially discriminate against, or treat less favourably, a person or a group of people, because of their race or ethnic origin (Section 36 of the EOA and Section 9 of the RDA). This includes discrimination by refusing access to places and facilities or refusing to rent or sell accommodation. The RDA expressly provides protection against restrictions of fundamental human rights, including the right to own property, on the basis of race.

This latter aspect of the RDA forms the basis of the protection of native title recognised by the High Court in Mabo and Ors v The State of Queensland [1992] HCA 23; (1992) 66 ALJR 408 (see Native Title and Aboriginal Land Heritage).

Aboriginal people subject to discriminatory behaviour can make a complaint under the State legislation to the Equal Opportunity Commission (“EOC”) or under Commonwealth legislation to the Human Rights and Equal Opportunity Commission (“HREOC”).

Generally, once a complaint is made in these bodies, it will lead to a conciliation between the complainant and the other person involved. Through the conciliation processes offered by the EOC and HREOC, the following types of outcomes may be possible by agreement:

• An apology or statement of regret;
• An agreement to introduce policies to prevent discrimination;
• An agreement to provide anti-discrimination training; and/or
• Financial compensation for monetary loss or injury to feelings.

If a complaint in the EOC or HREOC is not resolved through the conciliation process, the complaint can be pursued through the State Administrative Tribunal (“SAT”) in respect of a complaint under the EDC or the Federal Court in respect of a complaint to HREOC where a governing member or Judge will make a determination in relation to the incident.

The RDA also outlaws racial vilification. The RDA, and other anti-discrimination laws, are discussed in Discrimination.

The experience of discrimination has led to the creation of some agencies aimed specifically at redressing the balance by delivering culturally-appropriate, non-discriminatory services for Aboriginal and Torres Strait Islander peoples. Section 8(1) of the RDA provides an exception to racial discrimination being unlawful in the circumstances where the discrimination is for the purpose of special measures to secure the advancement of certain racial or ethnic groups as set out in the International Convention on the Elimination of All Forms of Racial Discrimination.