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SECTIONS 18C AND 18D OF THE RACIAL DISCRIMINATION ACT AND THE AHRC’s PROCESSES

Recently an inquiry into Freedom of Speech was conducted by the Parliamentary Joint Committee into Human Rights. The inquiry considered whether sections 18C and 18D of the Racial Discrimination Act 1975 (Cth) impose unreasonable restrictions on freedom of speech, and whether the handling of complaints by the Australian Human Rights Commission (AHRC) should be reformed.

Following the conclusion of the inquiry, no amendments were made to sections 18C or 18D but some changes were made to the AHRC’s compliant handling processes.

Racial Discrimination Act

Section 18C outlaws acts, other than in private, that are “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” and the act is done because of the race, colour or national or ethnic origin of the person or people.

The exemptions in section 18D of the Act do not provide any protection to employers in most circumstances. Also, section 18E (Vicarious liability) extends the obligations under section 18C, in respect of employers.

What happens when an employee makes racist comments?

A recent unfair dismissal case involving BHP Billiton subsidiary, Mt Arthur Coal, highlights the difficulties that an employer can face when dealing with racist conduct in its workplace. An employee was sacked for broadcasting grossly racist and homophobic comments on the company’s radio system. The comments breached company policies that were communicated to all employees. Despite this, the Majority of a Full Bench of the Commission upheld an earlier decision of Commissioner Saunders who had reinstated the employee.

The member on the Full Bench who dissented (Commissioner Johns) expressed strong disagreement with the Majority’s decision. Section 18C outlaws racial statements that offend or insult (other than in private), yet this case highlights that when an employer takes action to deal with such conduct in its workplace, it can be found to have breached the unfair dismissal laws.

Do you require further assistance?

For information or assistance regarding how the Racial Discrimination Act operates, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like assistance in understanding how the Racial Discrimination Act applies to your business please contact your local Ai Group Workplace lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane.

Published - 02/08/17

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