The Racial Discrimination Act 1975 (Cth) (RDA) was introduced by the Australian Government in 1975, and it provides important legal protections against racial discrimination. The RDA makes racial discrimination and racial hatred unlawful in public life.
In 2025, Australia marks 50 years since the RDA was introduced, highlighting its role in addressing racial inequality. Over the decades, the RDA has been central to many legal cases, but one of its most high-profile involvements was in Mabo v Queensland (No. 1 and No. 2).
In the Mabo decision, the High Court held that the common law of Australia recognises a form of native title to land. The Court rejected the doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement. Pre-existing rights to land survived colonisation and still survive today in certain circumstances.
The High Court did not discover a new form of title. It recognised property rights which Aboriginal and Torres Strait Islander people have always possessed[i]. The Native Title Act 1993 (Cth) recognises these rights.
Racial discrimination
The RDA aims to protect everyone in Australia from discrimination based on race, colour, descent, national origin or ethnic origin, and immigrant status. Areas where racial discrimination is made unlawful include:
- Access to places and facilities.
- Land, housing and accommodation.
- The provision of goods and services.
- Joining a trade union.
- Employment.
- Advertisements.
Section 9 of the RDA takes a human rights based approach to discrimination. It defines racial discrimination and makes it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, 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.
The RDA specifically provides that the references to human rights and fundamental freedoms and equal enjoyment of rights includes the rights referred to in Article 5 of International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which include:
- The right to equal treatment before tribunals and all other organs administering justice.
- The right to security of person and protection by the State against violence or bodily harm.
- The right to participate in elections and the conduct of public affairs.
- The right to own property alone and in association with other.
- The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration.
- The right to housing.
- The right to public health, medical care, social security and social services;
- The right to equal participation in cultural activities; and
- The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.
Over the past 7 years the Commission has seen an increase in representative complaints from Aboriginal and Torres Strait Islander peoples alleging racial discrimination under section 9 of the RDA. The majority of these complaints raise systemic issues about the administration of state or Australian Government laws, practices and policies.
Racial hatred
The RDA also makes it unlawful to do an act in public otherwise than in private that is reasonably likely to offend, insult, humiliate or intimidate a person or group and the act is done because of their race, colour or national or ethnic origin
Examples of racial hatred include:
- Racially offensive material on the internet.
- Racially offensive articles or images in a newspaper.
- Racially offensive comments in a public place.
- Racially offensive speeches at a public rally.
The racial hatred provisions aim to balance the right to live free from racial hatred and the right to freedom of expression. Section 18D of the RDA says an act will not be against the law if it is ‘done reasonably and in good faith’ in certain circumstances.
Who can make a complaint?
Section 46P of the Australian Human Rights Commission Act 1986 (Cth) sets out the requirements that need to be met to make a valid complaint of racial discrimination or racial hatred to the Australian Human Rights Commission. These requirements are:
- The complaint is in writing.
- The complaint is made by the person affected by the discrimination or by someone on their behalf, like a friend, family member or lawyer.
- Allege actions that are reasonably arguable unlawful discrimination.
The process is free and confidential. Complaints can be made online, by email or post. People from all racial backgrounds can make complaints under the RDA.
Limitations of the Racial Discrimination Act
Individual, not structural
While the RDA offers some protections against "racial discrimination" and "racial hatred", feedback received through consultations on the National Anti-Racism Framework and the Racism It Stops with Me campaign highlights a strong public demand for reforming the RDA. In response, the National Anti-Racism Framework includes key recommendations that call for strengthening the RDA and taking proactive steps to address systemic and structural racism. One of the central recommendations is the introduction of a positive duty within the RDA, which would legally require organisations to actively prevent racial discrimination, shifting the burden away from individuals making complaints[ii].
The RDA does not include criminal sanctions on racial discrimination. This means that a breach of the RDA does not amount to a crime. Violations of the RDA are, therefore, unlawful, and not illegal. This means that responsibility is placed on the individual affected by the act (rather than the police) to hold someone else accountable for the breach of the RDA.
Accessibility
People from culturally, linguistically diverse and racially marginalised communities can experience barriers when seeking to take action against experiences of racism. Financial circumstance s, lack of knowledge about the Commission or rights under the law, difficulties in obtaining legal assistance, levels of English literacy and fears of backlash or punitive action or concerns about the complexity and formality of complaint and court processes can all limit people's ability to make complaints under the RDA.
Vulnerable to suspension
Protections under the RDA have also been suspended on various occasions where the Australian Government wanted to implement legislation that would otherwise be unlawful under the RDA (the RDA allows for this to occur in certain circumstances). On each occasion, this has been specifically related to laws affecting the rights of First Nations peoples. The 2007 Northern Territory Emergency Response (NTER) is a key example, where the Act was set aside to enable racially targeted measures in Aboriginal communities across the Northern Territory. This included compulsory income management, alcohol restrictions and land acquisitions.[iii]
[i] https://humanrights.gov.au/our-work/race-discrimination/publications/rda-and-native-title-1997
[ii] https://humanrights.gov.au/sites/default/files/2024-11/NARF_Full_Report_FINAL_DIGITAL_ACCESSIBLE.pdf
[iii] https://www.monash.edu/__data/assets/pdf_file/0003/2106156/NT-Intervention-Evaluation-Report-2020.pdf