Prohibits discrimination based on race, colour, descent, or national or ethnic origin in many parts of public life (including access to places and facilities, housing and land, goods and services, trade‑union membership, employment, and public behaviour) (see Part II, ss 9–17, 18C).
Creates a separate prohibition on offensive behaviour done publicly because of race, colour or national or ethnic origin (Part IIA, s 18C), but clarifies that such unlawful acts are not automatically criminal offences unless Part IV says so (s 18C note; s 26).
Establishes the Race Discrimination Commissioner and gives functions to the Australian Human Rights Commission (the Commission) to promote compliance, publish guidance, run education and research programs, and, with court leave, intervene in proceedings (ss 19–20).
Provides specific procedural and enforcement rules: many discriminatory acts are actionable but not criminal unless expressly made an offence (s 26); there are criminal penalties for obstructing administration of the Act and for specified victimisation and disclosure offences (ss 27, 27F).
Imposes vicarious liability in many cases so employers and principals can be treated as having done unlawful acts committed by employees or agents, unless the defendant proves it took all reasonable steps to prevent the act (ss 18A, 18E(2)).
Makes the Act bind the Crown but exempts the Crown from prosecution for offences (s 6); states that Chapter 2 of the Criminal Code applies to offences under the Act (s 6B).
The Racial Discrimination Act 1975 gives effect to the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention), whose English text is set out in the Schedule (s3(1)). Section 7 expressly approves ratification by Australia. The Act operates both under the external-affairs power and other heads of power, including with respect to immigration and the people of any race for whom special laws are deemed necessary (preamble).
At its core the Act renders racial discrimination unlawful. Section 9(1) provides the central prohibition: it is unlawful to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin that 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. Subsection 9(2) makes clear that such rights include those listed in Article 5 of the Convention. Subsection 9(1A) extends the prohibition to indirect discrimination: where a person imposes a term, condition or requirement that is not reasonable, with which another person does not or cannot comply, and which has the purpose or effect of nullifying or impairing the equal enjoyment of rights by people of the same race, colour, descent or national or ethnic origin, the imposition is treated as an act involving a distinction based on race.
Section 10(1) goes further by conferring a positive right to equality before the law. If, by reason of a Commonwealth, State or Territory law, persons of a particular race, colour or national or ethnic origin do not enjoy a right enjoyed by persons of another race (or enjoy it to a more limited extent), then, notwithstanding that law, they enjoy the right to the same extent. Subsection 10(3) specifically deems certain provisions affecting Aboriginal or Torres Strait Islander management of property to engage this rule. The succeeding sections of Part II (ss11–18AA) do not limit the generality of s9 (s9(4)).
Current sections
Direct links to the current provisions in Racial Discrimination Act 1975.
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Official source available
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Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Specifies that State and Territory laws that further the Convention may operate concurrently and, in some circumstances, preclude parallel complaints under federal processes (s 6A). It also preserves concurrent State/Territory laws for Part IIA (s 18F).
Defines key terms and extends operation to external Territories (s 3; s 4). Section 5 expressly extends the Act’s effect to acts done because a person is or has been an immigrant in certain provisions.
Sets appointment, term limits, conditions and dismissal grounds for the Race Discrimination Commissioner (ss 29–36), and allows delegation of powers by the Commission and the Commissioner (s 40).
Official purpose claim and legislative source
The Act states its purpose is to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention) and to prohibit racial discrimination (recitals; s 7 ratifies the Convention). The text then implements that purpose by defining unlawful conduct, establishing an enforcement/administrative architecture, and providing exceptions and penalties (Parts II, IIA, III, IV, VI).
Testing the stated purpose against costs, incentives and trade‑offs (source‑grounded)
Who pays: private persons and entities that commit unlawful discriminatory acts face legal consequences and may have to change behaviour to avoid liability or penalties. Employers, service suppliers, landlords and advertisers are directly required to modify practices to comply (examples: ss 11, 12, 13, 15, 16). A person or body corporate guilty of specified administration‑related offences can face penalty units or imprisonment (s 27; s 27F).
Who decides: the Commission and Commissioner are charged with promoting compliance, publishing guidance and conducting programs (s 20). The Minister and Governor‑General exercise appointment and termination powers for the Commissioner (ss 29, 34). Courts determine legal liability and impose penalties; the Act invests State and Territory courts with jurisdiction to hear proceedings under the Act (s 44).
Compliance burden and private choice: firms that supply goods/services, employers, landlords and public venues must assess their terms, advertising and conduct against the Act’s prohibitions (ss 11–15, 16). Vicarious liability provisions mean principals should put in place reasonable preventative steps to avoid being liable for staff conduct (ss 18A, 18E(2)). Registered charities have a specific carve‑out allowing rules that confer charitable benefits on persons of a particular race (s 8(2)).
Bureaucratic discretion and implementation risk: the Minister must be satisfied that an appointee meets qualification and merit‑based selection requirements before the Governor‑General appoints the Commissioner (s 29(2) — discretion rests with the Minister); the Commission has discretion about when to intervene in litigation (s 20(e)) and about how to publish guidance (s 20(d)). Section 6A allows State/Territory laws that further the Convention to operate concurrently and, in some cases, prevents duplicate federal complaints — this creates a procedural interaction where the choice of forum (State vs federal process) and timing of complaints affects remedies (s 6A).
Trade‑offs and opportunity costs: the Act imposes obligations that can change commercial and hiring practices (ss 12, 13, 15). At the same time it preserves some space for affirmative or "special measures" consistent with Article 1(4) of the Convention (s 8(1)) and for legitimate private domestic sharing arrangements (ss 12(3), 15(5)). The Act separates unlawful civil acts from criminal sanctioning except where Part IV expressly makes them offences (s 26), which affects the route for enforcement (administrative complaint and civil proceedings rather than automatic criminal prosecution).
Concentrated benefits and diffuse costs: the protections are focused at persons subject to discriminatory conduct; compliance costs are borne by a wide range of public‑facing actors (employers, service providers, property managers). Charities receive a limited exemption for rules conferring charitable benefits on persons of a particular race (s 8(2)).
Key operational risks and limits
Many unlawful acts remain civil/administrative rather than criminal unless Part IV provides otherwise (s 26; note on s 18C).
The Act binds the Crown but does not make the Crown liable to be prosecuted for an offence (s 6).
Concurrent State/Territory laws may preclude federal complaints in specific circumstances (s 6A(2)).
Practical takeaways (who pays, who decides, what changes)
Who pays: people and organisations that discriminate (employers, landlords, service providers, advertisers) face civil remedies and, for some administrative offences, penalties (ss 11–15; ss 27, 27F).
Who decides: the Commission (with the Race Discrimination Commissioner) promotes compliance and provides guidance (s 20); ministers and the Governor‑General make key appointment decisions (s 29); courts enforce the Act (s 44).
Behaviour change required: public‑facing entities should review policies, advertising, and staff conduct; employers should implement reasonable preventative steps to limit vicarious liability; complainants should consider State/Territory remedies where available because of s 6A.
Source references: selected provisions cited in parentheses above (for example, ss 3, 4, 5, 6, 6A, 6B, 7, 8–18, 18A, 18B–18F, 19–20, 26–27, 27F, 29–36, 40, 44, 45, 47).
The Act then spells out concrete applications. It is unlawful to deny access to or use of public places or vehicles, or facilities therein, on less favourable terms or to require a person to leave, by reason of race, colour or national or ethnic origin of that person or any relative or associate (s11). Similar specific rules govern disposal of land, housing or business accommodation (s12), supply of goods and services (s13), rules of trade unions (s14), employment decisions including recruitment, terms, training, promotion and dismissal (s15), and the publication of advertisements indicating an intention to do any of the foregoing unlawful acts (s16). Section 17 makes it unlawful to incite the doing of an act unlawful under Part II or to assist or promote such an act. Where an act is done for two or more reasons, one of which is race, colour, descent or national or ethnic origin (whether or not the dominant reason), the Act treats the act as done for that reason (s18).
Part IIA, inserted later, addresses offensive behaviour based on racial hatred. Section 18C(1) provides that it is unlawful to do an act, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group and is done because of the race, colour or national or ethnic origin of that person or some or all of the group. An act is not done in private if it causes words, sounds, images or writing to be communicated to the public, is done in a public place, or is done in the sight or hearing of people in a public place (s18C(2)). “Public place” is defined inclusively (s18C(3)). Section 18B mirrors s18 for the purposes of Part IIA. Exemptions appear in s18D for artistic works, genuine academic, artistic or scientific discussion or debate in the public interest, fair and accurate reports of public interest matters, and fair comment expressing a genuine belief.
Vicarious liability is imposed on principals for acts of employees or agents done in connection with their duties unless the principal took all reasonable steps to prevent the act (ss18A, 18E). Victimisation is separately unlawful (s18AA), as is victimisation by way of refusal to employ, dismissal, prejudicial treatment or intimidation where a person has made or proposes to make a complaint, furnished information or attended a conference under the Act or the Australian Human Rights Commission Act 1986.
The Act binds the Crown in all capacities but does not expose the Crown to prosecution (s6). It extends to external Territories (s4) and has additional operation in relation to immigrants (s5). It is not intended to exclude concurrent State or Territory laws that further the objects of the Convention (ss6A, 18F); where both laws create offences the person may be prosecuted under either but not punished twice (s6A(3)). Chapter 2 of the Criminal Code applies to offences against the Act (s6B).
Part III establishes the Race Discrimination Commissioner (s19) and confers functions on the Australian Human Rights Commission including promotion of the Act, research and education, publication of guidelines, intervention in proceedings with leave, and inquiry into matters referred by the Minister or Commissioner (s20). Complaints mechanisms are dealt with under the Australian Human Rights Commission Act 1986 (note to s20).
Part IV provides that unlawful acts are not criminal offences unless expressly so provided (s26). The only offences created are hindering or obstructing Commission officers (s27(1)), victimisation in the employment sense (s27(2)), and unauthorised disclosure of private information by the Commissioner, Commission members or staff (s27F). Strict liability applies to the circumstance element of the s27(1) offence (s27(1A)). Penalties are expressed in penalty units or, for natural persons under s27(2), imprisonment.
Parts VI and VII deal with appointment, terms, remuneration, leave, resignation, termination and acting arrangements for the Commissioner (ss29–36), delegation (s40), federal jurisdiction of State and Territory courts (s44), protection from civil liability for good-faith acts (s45), information-sharing obligations (s45A) and regulation-making power (s47).
In short, the Act both proscribes discriminatory conduct across multiple spheres and establishes an institutional framework for education, complaint resolution and enforcement while preserving concurrent operation of compatible State and Territory laws.
Who it affects
The Act binds every “person” (including bodies corporate via the Acts Interpretation Act 1901) and the Crown in each of its capacities (s6(1)). Because the prohibitions use the language “it is unlawful for a person to …”, the duties fall on employers, landlords, suppliers of goods and services, trade unions, advertisers, publishers, public authorities, and any individual or organisation whose acts fall within ss9, 11–18 or 18C.
Employees and agents are directly caught by the primary prohibitions, but principals are also liable for those acts if done in connection with duties unless reasonable steps were taken to prevent them (ss18A, 18E). The victimisation provisions (s18AA and s27(2)) protect complainants, information providers and conference attendees from adverse action by current or prospective employers and others.
The rights created are enjoyed by all persons within Australia and its external Territories (s4), regardless of citizenship or immigration status. The additional operation of the Act in s5 expressly extends many prohibitions to cover discrimination on the ground that a person “is or has been an immigrant” or that a relative or associate is or has been an immigrant. Special recognition is given to Aboriginal and Torres Strait Islander people: the interpretation section distinguishes them (s3(1)), and s10(3) specifically addresses laws that authorise management of their property without consent or prevent termination of such management.
Commonwealth agencies (defined by reference to the Privacy Act 1988) are subject to the Act and to obligations on their principal executive officers. Registered charities receive a carve-out for governing rules that confer benefits on persons of a particular race, colour or national or ethnic origin (s8(2)).
The Commission and the Race Discrimination Commissioner exercise the investigative, educational and intervention functions, while courts (State, Territory and federal) are invested with jurisdiction to hear civil and criminal proceedings instituted under the Act (s44).
Because the Act operates concurrently with State and Territory laws (ss6A, 18F), individuals and organisations may also be subject to parallel obligations under equivalent State legislation; however, once a person has chosen to pursue a complaint under one regime they are barred from duplicating proceedings under the other (s6A(2)).
Key duties and rights
The Act creates both negative duties (not to discriminate) and positive rights (to equality before the law). The central duty is to refrain from any act that involves a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin where that act has the purpose or effect of nullifying or impairing equal enjoyment of human rights and fundamental freedoms (s9(1)). The indirect discrimination limb in s9(1A) imposes a duty not to impose unreasonable terms or conditions that have a disparate impact on persons of a particular race even if not intended.
Specific duties include:
Allowing equal access to public places, vehicles and facilities (s11);
Dealing with persons on equal terms in the disposal, occupation or termination of interests in land, housing or business accommodation and not imposing race-based restrictions on licensees or invitees (s12(1)–(2));
Supplying goods and services on the same terms as to the public generally (s13);
Not preventing or hindering membership of trade unions (s14);
Making employment decisions (recruitment, terms, training, promotion, dismissal) without regard to race (s15(1)–(3));
Refraining from publishing discriminatory advertisements (s16);
Not inciting or assisting unlawful acts (s17).
In the racial hatred sphere, the duty is not to perform public acts reasonably likely to offend, insult, humiliate or intimidate on racial grounds (s18C), subject to the s18D exemptions which must be established on a “reasonably and in good faith” standard.
On the rights side, s10(1) guarantees that persons of a particular race enjoy any legal right to the same extent as persons of another race, overriding inconsistent Commonwealth, State or Territory laws. Article 5 rights are expressly included (s10(2)). Aboriginal and Torres Strait Islander persons receive additional protection against laws that interfere with their ability to manage or terminate management of their own property (s10(3)).
Complainants have the right to lodge complaints under the Australian Human Rights Commission Act 1986 without fear of victimisation (s18AA, cross-referenced in s27(2)). The Commission has rights to promote understanding, conduct research, issue guidelines, intervene in court proceedings with leave, and inquire into referred matters (s20).
Employers, principals and organisations have a positive duty to take all reasonable steps to prevent employees or agents from committing unlawful acts if they wish to avoid vicarious liability (ss18A(2), 18E(2)).
Penalties and enforcement
The Act is primarily civil. Unlawful acts under Parts II and IIA are not criminal offences unless Part IV expressly says so (s26). The only criminal offences are:
Hindering, obstructing, molesting or interfering with a person exercising powers or functions under the Act (s27(1)), carrying a penalty of 10 penalty units and attracting strict liability as to the circumstance that the person is performing such functions (s27(1A));
Victimisation in employment-related contexts for making complaints or providing information (s27(2)), with penalties of 25 penalty units or 3 months’ imprisonment (or both) for natural persons and 100 penalty units for bodies corporate;
Unauthorised recording, divulging, communication, use or production of private information acquired in the course of performing functions under the Act (s27F(1)), punishable by 50 penalty units or 1 year’s imprisonment (or both). Defences and exceptions appear in s27F(3)–(4), with evidential burdens on the defendant (notes to subsections).
Civil enforcement occurs through the complaint mechanism in Part IIB of the Australian Human Rights Commission Act 1986. The Commission may conciliate; if conciliation fails the complainant may proceed to the Federal Court or Federal Circuit and Family Court. Those courts may grant declaratory relief, injunctions, damages, apologies or other orders.
The Commission may also develop and publish guidelines (s20(d)), intervene in proceedings with leave (s20(e)), and the Commissioner may refer matters to the Commission (s20(f)). Protection from civil actions is afforded to the Commission, Commissioner, delegates and persons acting in good faith (s45).
How it interacts with other laws
The Act is expressly not intended to exclude or limit concurrent State or Territory laws that further the objects of the Convention (s6A(1) and, for Part IIA, s18F). Where a State or Territory law deals with the same matter, a person who has already taken action under that law is barred from making a complaint under the Australian Human Rights Commission Act 1986 in respect of the same act or omission (s6A(2)). Dual offences may be prosecuted under either regime but not punished twice (s6A(3)).
The Act cross-references and incorporates the Convention (ss3(1), 9(2), 10(2), 20(c)(iii)). Definitions draw on the Privacy Act 1988 (Commonwealth agency, principal executive), the Australian Charities and Not-for-profits Commission Act 2012 (registered charity), and the Australian Human Rights Commission Act 1986 (Commission, President, complaint and conciliation procedures). The Criminal Code’s general principles of criminal responsibility apply to the Act’s offences (s6B).
Section 5 expands the Act’s reach by deeming additional grounds (immigration status of a person or their relative or associate) to be added to several key operative sections. Section 8 excludes “special measures” under Article 1(4) of the Convention (except those caught by s10(3)) and charitable instruments that confer benefits on persons of a particular race, colour or national or ethnic origin.
Federal jurisdiction is conferred on State and Territory courts (s44(1)), subject to a Proclamation requirement that has long since been satisfied (s44(2)). The Act binds the Crown but does not expose it to criminal prosecution (s6(2)).
Recent changes and why
Although the consolidated text before us already incorporates amendments, the legislative history reflected in the provisions shows several layers. The addition of Part IIA (ss18B–18F) was designed to address racial hatred and vilification following reports that existing criminal law was inadequate for public acts that fall short of incitement to violence but still cause serious harm. The “reasonably likely in all the circumstances” test and the s18D exemptions were included to balance free speech concerns.
Subsequent amendments updated institutional machinery: the Commission is now the Australian Human Rights Commission; definitions of “Commission”, “President” and “Commissioner” were aligned with the Australian Human Rights Commission Act 1986. The registered-charity exception in s8(2) was modernised by reference to the Australian Charities and Not-for-profits Commission Act 2012. Appointment provisions for the Commissioner (s29) now require a merit-based, publicly advertised process and impose a seven-year cumulative term limit (s30(2)). Criminal Code application (s6B) and strict-liability clarification in s27(1A) reflect general criminal-law harmonisation. Victimisation was given its own civil prohibition in s18AA to reinforce the criminal offence in s27(2).
These changes reflect a policy of strengthening enforcement, clarifying interaction with other Commonwealth legislation, ensuring compliance with international obligations, and providing contemporary institutional safeguards while preserving the Act’s original purpose of implementing the Convention.
Court challenges and controversies
The source text itself does not record specific litigation; however, the structure of the provisions reveals points of likely contention. The breadth of s9(1) and the indirect-discrimination test in s9(1A) require courts to assess both purpose and effect, including whether a requirement is “not reasonable having regard to the circumstances of the case”. The phrase “reasonably likely, in all the circumstances” in s18C(1)(a) invites objective assessment of community standards, while the causal test “because of” race in s18C(1)(b) and the multi-reason rule in s18B have generated debate about the requisite degree of connection.
The s18D exemptions turn on whether conduct was “reasonably and in good faith” and whether it falls within artistic, academic, scientific or public-interest discussion. The boundary between unlawful vilification and protected expression has been a recurring source of controversy. Similarly, the interaction between federal and State regimes under s6A has required courts to determine whether a prior complaint under State law bars federal proceedings.
Vicarious liability defences under ss18A(2) and 18E(2) place an evidentiary onus on the respondent to prove that “all reasonable steps” were taken; the content of that standard depends on the size, resources and risk profile of the organisation. The property-management protections in s10(3) have been used to strike down or read down State laws that single out Aboriginal or Torres Strait Islander owners for special controls.
The non-criminal character of most breaches (s26) means enforcement depends on individual complaints rather than prosecutorial discretion, which has been criticised as placing the burden on victims. Conversely, the existence of criminal victimisation and obstruction offences (s27) provides a deterrent against interference with the Commission’s processes.
Gotchas
Most practitioners assume that because the Act uses the language of “unlawful” rather than “illegal”, there are no financial consequences beyond a possible compensation order. In reality, the combination of vicarious liability (ss18A, 18E), the broad “because of” test (ss18, 18B) and the potential for Federal Court proceedings means that a single employee’s email or social-media post can expose a corporation to uncapped damages, adverse publicity and mandatory injunctive relief.
The s18D exemptions look generous on paper but require the respondent to prove both reasonableness and good faith; a genuine belief in the truth of a statement is not enough if the manner or context is disproportionate. Many organisations discover too late that internal policies that appear neutral (for example, English-only rules or dress codes) can breach s9(1A) unless they can demonstrate reasonableness in the particular industry context.
The property provisions in s10(3) are often overlooked; any State or Territory law that singles out Aboriginal or Torres Strait Islander owners for trustee management without consent is automatically overridden, yet compliance audits rarely check historical land-management statutes.
The victimisation provisions (s18AA and s27(2)) apply to “proposes to” make a complaint; an employer who disciplines a worker after an internal grievance that might later become a formal human-rights complaint can find itself strictly liable even if no complaint has yet been lodged.
Finally, the Act’s concurrent-operation clauses (ss6A, 18F) create a trap: lodging a complaint under a State anti-discrimination statute can permanently bar federal proceedings, yet many complainants and their advisers do not appreciate that the bar operates retrospectively and extinguishes federal rights even if the State matter is withdrawn.
How to comply
Compliance begins with a risk assessment across the domains in ss11–16 and 18C. Organisations should maintain up-to-date policies that expressly prohibit racial discrimination, racial hatred and victimisation. Policies must be communicated to all employees and agents and backed by training that addresses both direct and indirect discrimination.
For employment and service delivery, implement objective, transparent criteria for decisions and document the non-racial reasons for each outcome. Where a requirement might have a disparate impact (for example, language proficiency or qualifications), conduct a formal reasonableness assessment recording the business need, alternatives considered and why the requirement is proportionate.
To avoid vicarious liability under ss18A and 18E, take “all reasonable steps” before any incident occurs: this includes induction training, clear codes of conduct, regular refresher sessions, a robust complaints procedure, and visible leadership commitment. After an incident, immediate investigation and corrective action are necessary but cannot retroactively absolve the principal if preventive steps were absent.
For public communications, social-media guidelines should remind staff that s18C applies to acts “otherwise than in private” and that the s18D exemptions are narrowly construed. Pre-publication review for high-risk content (marketing, media releases, academic partnerships) is advisable.
Charities relying on the s8(2) exception must ensure their governing rules are drafted to confer benefits for charitable purposes on persons of a particular race, colour or national or ethnic origin and that any preferential acts are directly referable to those rules.
Employers must not take adverse action against anyone who has made, or proposes to make, a complaint or who has provided information to the Commission; internal grievance procedures should be separated from disciplinary processes to avoid any appearance of reprisal.
Organisations subject to the Act should designate a senior officer to liaise with the Commission, monitor guideline publications under s20(d), and keep records sufficient to demonstrate compliance. Because the Act operates concurrently with State laws, organisations operating nationally must map overlapping obligations and ensure that complaint pathways do not inadvertently trigger the s6A(2) bar.
Finally, because the Commissioner and Commission have power to intervene in proceedings and to issue guidelines, maintaining an ongoing relationship with the Commission—through participation in education programs and early engagement on complaints—substantially reduces legal risk. Regular legal audit of policies against the precise wording of ss9, 10, 18C and 18D, rather than generic “diversity” statements, is the single most effective compliance measure.