Race

Race is a group of people who regard themselves as having a particular historical identity in terms of their colour, or their racial, national or ethnic origins.[1]

The Racial Discrimination Act 1975 (Cth) (the Racial Discrimination Act) provides that it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which 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.[2]

In determining cases about racial discrimination in employment under the Racial Discrimination Act, the Federal Court has held that the group with whom the complainant’s position is to be compared is not persons of the same race, colour, descent or national or ethnic origin as the complainant. Instead the comparison should be between persons of the same group as the complainant and members of other groups, regardless of whether or not those other groups are required to comply with the same condition.[3]

To substantiate a complaint of racial discrimination under the Racial Discrimination Act, it is not sufficient for a person to show that he or she is of a different race, colour, descent, national or ethnic background and has suffered unfair treatment. He or she must show that the unfair treatment was based on, or sufficiently connected to, his or her race, colour, descent or national or ethnic background.[4]

Discriminatory action based on race found – Industrial Relations Act 1988 (Cth)

Shackley v Australian Croatian Club Ltd

Shackley v Australian Croatian Club Ltd [1995] IRCA 475 (6 September 1995), [(1995) 61 IR 430].

The applicant alleged that she was dismissed because of her race. She was told by the club president that she was dismissed because she was not Croatian. Although this would not establish conclusively that the applicant was being dismissed because of her race, the Court found that the Club did not displace the statutory presumption that the termination was for the reason the applicant alleged.

Compensation ordered
The respondent was ordered to pay the applicant $12,100 for loss suffered.

Discriminatory action based on race NOT found – Racial Discrimination Act 1975 (Cth)

Sharma v Legal Aid (Qld)

Sharma v Legal Aid (Qld) [2001] FCA 1699 (4 December 2001), [(2001) 112 IR 124].

Appeal upheld [2002] FCAFC 196 (21 June 2002), [(2002) 115 IR 91].

The applicant claimed to have experienced discrimination based on race on many occasions during the course of his employment with the respondent, in particular in relation to selection processes.

The Court concluded that there was nothing to indicate the applicant’s race was a factor which operated in the decision-making process for the selections. The decision was upheld on appeal.

Philip v State of New South Wales

Philip v State of New South Wales [2011] FMCA 308 (10 June 2011).

The applicant applied for a place in a Policing degree. The applicant was assessed as having ‘poor’ English skills after two telephone interviews. A file note was made indicating that he had an accent. It was also noted that the applicant had become agitated during the second interview and that he was difficult to understand. The application for admission into the degree was rejected on the grounds of failure to meet the English communication skills standards, and the applicant’s attitude. The applicant argued that he was discriminated against because of his race, claiming that his accent pertained to his ethnic origin.

The Court held that the decision was not based exclusively on the applicant’s failure to demonstrate adequate English communication skills but rather his abrasive attitude displayed during his telephone interviews. No discrimination was established and the application was dismissed.