Race Discrimination (Tas)
In Tasmania, the Anti-Discrimination Act 1998 prohibits discrimination on the basis of various attributes including gender, disability, age and race. The Act sets out what steps can be taken when discrimination is alleged and the remedies for discriminatory conduct. This article deals with race discrimination in Tasmania.
Federal or state law?
Race discrimination is also prohibited under federal law. There is overlap between the Tasmanian and the federal anti-discrimination law schemes. If a person in Tasmania believes that they have suffered race discrimination, they should seek specialist legal advice to ascertain whether they ought to complain at federal or state level.
What is discrimination?
A person must not engage in behaviour that offends, humiliates, intimidates, or ridicules a person on the basis of their race.
What is race discrimination?
Race discrimination can be direct or indirect.
Direct discrimination occurs when a person treats another person less favourably because of their race – for example, declining to hire someone because they are Asian. Direct discrimination can occur even when the person’s race is not the only or the main reason the person was treated less favourably.
Indirect discrimination occurs when a person imposes a requirement, condition or practice that is unreasonable and that disadvantages members of a race – for example, having a requirement that all staff must be taller than a specified height, meaning that applicants from races with a shorter average height are excluded. Indirect discrimination can occur regardless of whether the discriminator is aware that the requirement disadvantages a group, and regardless of what their intention was.
When is race discrimination prohibited?
In Tasmania, a person must not discriminate on the basis of race in the following contexts.
- Education and training
- Provision of goods and services
- Administration of state laws and programs
- Awards, enterprise agreements and industrial agreements
The Act provides three exceptions in relation to race discrimination. These are situations where it is not unlawful to discriminate on the basis of race because there is a legitimate reason for doing so.
These exceptions are:
Clubs may provide benefits to people of a particular race, where this is done in order to preserve a minority culture or to reduce disadvantage suffered by members of that race.
A person may discriminate on the basis of race in employment where this based on the genuine operational requirements of the position.
Cultural and religious places
A person may discriminate on the basis of race in relation to places of religious significance if this is done in accordance with the customs of the culture or the doctrines of the religion and it is necessary to avoid offending religious sensitivities.
A complaint can be made about alleged race discrimination to the Anti-Discrimination Commissioner. The Commissioner may investigate the complaints and reject it, refer it for conciliation or refer it to the Civil and Administrative Tribunal (TASCAT) for an inquiry.
Conciliation conferences take part in private and are an opportunity for the complainant and the respondent to try to resolve the situation informally. If no resolution is possible through conciliation, the matter may proceed to TASCAT for determination after a hearing.
When a race discrimination complaint is referred to the Tribunal, it may proceed to a hearing, or be referred to conciliation, depending on the wishes of the parties. If a matter goes to hearing, the Tribunal will hear the evidence of the parties and any witnesses they call and make a determination as to whether the alleged discrimination has been proven.
If discrimination is proven, the Tribunal may make one or more orders to remedy the situation, including an order that the respondent must not repeat the discriminatory conduct, that the complainant be re-employed, that the respondent pay compensation to the complainant or pay a fine and that the respondent apologise to the complainant.
A party can appeal against a decision by the Tribunal to the Supreme Court of Tasmania. The Supreme Court can affirm, vary or revoke orders made by the Tribunal, and where appropriate, remit the matter back to TASCAT for reconsideration.
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