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Race Discrimination (SA)

In South Australia, it is unlawful to discriminate against a person on the basis of race in certain settings, including employment, education and accommodation. These laws are contained in the Equal Opportunity Act 1984, which also prohibits discrimination on the basis of sex, disability and other attributes. Complaints about discrimination can be made to the Equal Opportunity Commissioner and may be referred to the Civil and Administrative Tribunal (SACAT). This article deals with race discrimination in South Australia.

State or federal law?

Race discrimination is also prohibited under federal law. The state and federal anti-discrimination scheme overlap, and in some cases, it may be possible to complain under either scheme. However, it many cases, it is necessary to ascertain which is the appropriate forum for the complaint.

When discrimination is alleged in an employment context, the size and nature of the employer determines whether the state or federal laws apply.

If you are unsure whether to make a complaint of race discrimination under state or federal law, seek specialist legal advice.

What is race?

The Act defines ‘race’ as including a person’s nationality, country of origin, colour or ancestry.

What is race discrimination?

Race discrimination occurs when a person:

  • Treats a person unfavourably because of their race;
  • Treats a person unfavourably because they do not comply with a requirement that is more difficult for them to comply with because of their race;
  • Treats a person unfavourably because of an attribute or characteristic of their race;
  • Treats a person unfavourably because of the race of their relative or associate.

When is race discrimination unlawful?

The Equal Opportunity act prohibits racial discrimination in a range of contexts, including in work, education, accommodation, the provision of goods and services and in superannuation.

The Act contains two exceptions to the prohibition on race discrimination. These are situations where discrimination on the basis of race is permissible as it occurs for a valid reason.

Charities

A charity is allowed to provide benefits for persons of a particular race.

Projects for the benefit of a race

Scheme and undertakings may be carried out for the benefit of person of a particular race.

Complaints about race discrimination

A person can make a complaint about race discrimination to the Equal Opportunity Commissioner. The Commissioner can investigate the complaint and refer it to conciliation if it is appropriate. If the matter cannot be resolved through conciliation, it may be referred to SACAT for determination after a hearing.

The Commissioner may decline a complaint if it is frivolous or vexatious of if the complainant cannot be contacted or is not co-operating.

If a complaint is referred to SACAT, the Tribunal may refer it to conciliation if appropriate. Alternatively, the matter may be listed for a hearing. At the hearing, the Tribunal will hear evidence from both parties and if the alleged discrimination is proven, may make one of more orders to rectify the prohibited conduct.

Orders the tribunal may make include the following:

  • An order that the respondent must cease the discriminatory conduct;
  • An order that the respondent must pay compensation to the complainant for loss or damage, including injury to feelings;
  • An order that a person must do specific acts to redress the loss or damage arising from the prohibited conduct;

Appeals

A party may appeal against a decision by SACAT to the Supreme Court of South Australia. The Supreme Court may affirm, vary or quash the Tribunal’s orders. It may also add or substitute other others that should have been made by SACAT.  

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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