State and territory legislation

All Australian States and Territories have laws which make racial discrimination unlawful. The State and Territory laws work with the Commonwealth laws to protect the human rights of those people living in the particular State or Territory. In this respect, these laws, unlike the Commonwealth laws, do not cover all of Australia. They are limited to the particular State or Territory.

Like the Commonwealth Racial Discrimination Act (RDA), the State and Territory laws make both direct discrimination and indirect discrimination unlawful. However, there is an important difference between the RDA and the State and Territory laws. The difference is the definition of direct discrimination. The State and Territory laws do not refer to preferences and distinctions based on race, and nor do they refer to Article 5 of the International Convention on the Elimination of all Forms of Racial Discrimination in relation to direct discrimination. Under the State and Territory laws, direct discrimination occurs where a person is treated less favourably than another person of a different race.

The State and Territory anti-discrimination laws are administered by specialist commissions that investigate complaints and try to resolve them by conciliation. Where the complaints cannot be resolved by conciliation, they are referred to specialist tribunals that hold hearings into the complaints. This involves all the relevant people giving evidence in the tribunal and the tribunal then makes a decision about the complaint.

In New South Wales racial discrimination is unlawful in the areas of education, employment, the provision of goods and services, accommodation and registered clubs. For the purposes of the New South Wales Act, “race” includes colour, nationality, descent, and ethnic, ethno-religious and national origin. The Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

The New South Wales Anti-Discrimination Act also prohibits racial vilification. Racial vilification may in serious cases amount to a criminal offence. Racial vilification under the New South Wales Act is any public act which is capable of inciting hatred towards, serious contempt for or severe ridicule of a person or a group of persons because of their race.

In South Australia racial discrimination is unlawful in the areas of education, employment, goods and services, accommodation, disposal of land, superannuation, clubs and associations and conferral of qualifications. Under the South Australian Act, “race” means skin colour, nationality, country of origin and ancestry. The South Australian Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

Racial vilification is unlawful under the South Australia Equal Opportunity Act. The South Australia Racial Vilification Act makes it an offence to racially vilify a person and unlawful to racially victimise a person.

In Western Australia, racial discrimination is unlawful in the areas of education, employment, access to places and vehicles, provision of goods and services, accommodation and land, and clubs. The Western Australian Act also has specific provisions making racial harassment unlawful in the areas of employment, education and accommodation.

Under the Western Australia Equal Opportunity Act, “race” includes colour, descent, ethnic or national origin and nationality. The Western Australian Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

Racial vilification is not dealt with under the Equal Opportunity Act, but the Criminal Code makes racial harassment and incitement to racial hatred a criminal offence. The offences are specific to possession of racial material, publication of racial material for display to harass a racial group or to incite racial hatred.

In the Australian Capital Territory, racial discrimination is unlawful in the areas of education, employment, accommodation, clubs, goods and services and request for information. Under the Australian Capital Territory Discrimination Act, “race” includes colour, descent ethnic or national origin and nationality. The Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

Racial vilification is also unlawful and the provisions of the Australian Capital Territory Act operate in the same way as the New South Wales racial vilification provisions.

In Queensland, racial discrimination is unlawful in the areas of education, employment, goods and services, superannuation, insurance, land, accommodation, clubs, administration of Queensland laws and programs and local government members.

For the purposes of the Queensland Anti-Discrimination Act, “race” includes colour, nationality or national origin, descent or ancestry, and ethnic origin or ethnicity. The Queensland Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

In 2001, the enactment of the Anti-Discrimination Amendment Act made racial and religious vilification unlawful. Racial and religious vilification under the Queensland Act is any public act which incites hatred towards, serious contempt for or severe ridicule of a person or group of persons because of their race or religion.

In the Northern Territory, racial discrimination is unlawful in the areas of education, employment, accommodation, goods and services, clubs and insurance and superannuation.

For the purposes of the Northern Territory Anti-Discrimination Act, “race” includes colour, nationality, ethnic or national origin, descent or ancestry, and that a person is or has been an immigrant. The Northern Territory Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

In Victoria, racial discrimination is unlawful in the areas of education, employment, goods and services, accommodation and land, sport and local government.

For the purposes of the Victorian Equal Opportunity Act, “race” includes colour, nationality or national origin, descent, ancestry, and ethnic origin or ethnicity. The Act also makes it unlawful to discriminate against a person on the ground that the person has a relative or associate who is of a particular race.

Racial and religious vilification are also unlawful in Victoria. The most serious forms of racial and religious vilification are a criminal offence.

The Tasmanian Anti-Discrimination Act was passed in 1998 and proclaimed in December 1999. The Tasmanian Act covers discrimination on the ground of “race”. It applies to discrimination and prohibited conduct in employment, education and training, the provision of facilities, goods and services, accommodation, membership and activities of clubs.

For the purposes of the Tasmanian Act, “race” includes colour, nationality, descent, ethnic, ethno-religious or national origin and the status of being or having been an immigrant.

The Tasmanian Act also contains strong inciting hatred provisions. Section 19 says that a person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on a number of grounds including race, religious belief or affiliation or religious activity. The Act applies to inciting hatred in the areas defined for discrimination and prohibited conduct as well as in any other area or in connection with any other activity.