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An International Comparison of the Racial Discrimination Act 1975 (2008) - Chapter 1 An Overview of Racial Discrimination Legislation in Each Jurisdiction

An International Comparison of the Racial Discrimination Act 1975

Chapter 1: An Overview of Racial Discrimination Legislation
in Each Jurisdiction


 

1.1 Australia

1.2 Canada

1.3 United Kingdom

1.4 United States

1.5 European Union

1.1 Australia

The Australian Constitution contains no protection against
discrimination, except on the narrow grounds of state
residency.[1] For this reason, the
most significant federal protections against race discrimination in Australia
are statutory, and are contained within the Australian Racial Discrimination
Act 1975
(Cth) (RDA). This Act prohibits “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...”
.[2] As well as
this general prohibition, the Act makes it an offence to discriminate in a range
of specific areas, such as employment, housing and the provision of goods and
services.[3] Since the passage of the Racial Hatred Act 1995, the RDA has also contained provisions prohibiting
racial vilification.[4]

Other laws that are relevant to an understanding of Australia’s federal
race discrimination regime include the Human Rights and Equal Opportunity
Commission Act 1986
(Cth), which sets out the framework for bringing
discrimination complaints,[5] and the Workplace Relations Act 1996 (Cth), which prohibits
discrimination in the specific areas of federally regulated workplace agreements
and terminations.[6] The Public
Service Act 1999
(Cth) and the Equal Employment Opportunity (Commonwealth
Authorities) Act 1987
(Cth) also impose some positive obligations on federal
government authorities and public service agencies with regard to combating race
discrimination.

1.2 Canada

The right to freedom from discrimination is protected by section 15 of the
Canadian Charter of Rights and Freedoms, which provides that “Every individual is equal before and under the law and has the right
to the equal protection and equal benefit of the law without discrimination and,
in particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical
disability.”
[7] As a
‘Charter right’, the right to non-discrimination prevails over any
inconsistent state or federal statute, except in so far as they impose “such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic
society”
.[8] It is possible,
however, for the legislature to expressly exclude the right to equality with
respect to specific legislation. This may be done by passing an express
declaration, which must be re-enacted every five years, that the law in question
is to operate ‘notwithstanding’ that provision of the
Charter.[9]

Outside of the constitutional framework, the key federal legislation
regarding race discrimination is the Canadian Human Rights
Act
.[10] This Act prohibits
discrimination on a number of grounds (including race) in areas such as the
provision of services or accommodation, employment or membership of employee
organisations. It also creates offences relating to hate messages, harassment
and retaliation against persons making complaints under the Act.

Criminal offences relating to the incitement or promotion of racial hatred
were introduced in Canada in 2003, and are contained in sections 318-320 of the
Canadian Criminal Code.[11] The Criminal Code also obliges courts to take racially motivated hate or
prejudice into account as an aggravating factor when imposing sentences for
other crimes.[12]

Also relevant to a consideration of the Canadian anti-discrimination regime
is the Employment Equity Act, passed in
1995.[13] This act places positive
obligations on certain employers to take steps to identify and overcome barriers
to diversity in the workplace, and to institute positive policies which may be
supervised and enforced by the Canadian Human Rights Commission. Other policy
initiatives such as the Federal Contractors
Programme for Employment Equity
and the Procurement Strategy for
Aboriginal Business
also operate to impose positive obligations on certain
employers involved in providing government services.

1.3 The United Kingdom

The Human Rights Act entered into force in the U.K. in 1998 and
incorporated into domestic law certain rights contained within the European Convention for the Protection
of Human Rights and Fundamental
Freedoms
.[14] While strictly
speaking, not a constitutional document the Human Rights Act 1998 has
been perceived by many as the equivalent of a non-entrenched ‘bill of
rights’ for the United Kingdom. The Act requires the judiciary to
interpret all British laws, so far as possible, to be compatible with Convention
rights, and makes it unlawful for a public authority to act in a manner that is
incompatible with a Convention right unless required to do so by
legislation.[15] Where legislation
is incompatible with the Convention, the court may make a declaration of
incompatibility. While this declaration does not affect the validity of the
legislation, it entitles the government to makes changes in order to remove the
incompatibility.[16] The Human
Rights Act 1998
also requires the government to make a statement when
introducing new legislation either that the legislation is compatible with the
Convention, or that it wishes to proceed with the bill despite its
incompatibility.[17]

Amongst the Convention rights incorporated into domestic law by the Human
Rights Act 1998
is the article 14 right, which states that all other rights
in the Convention must be secured without discrimination on any ground,
including race.[18] The Convention
also includes a protocol which provides that “(t)he enjoyment of any
right set forth by law”
should be secured without
discrimination,[19] however unlike
article 14 this protocol has not been ratified by the United Kingdom, and hence
is not enforceable under the Human Rights Act 1998.

Aside from the Human Rights Act 1998, the central piece of anti-race
discrimination legislation in the United Kingdom is the Race Relations Act
1976
.[20] This Act makes it an
offence to discriminate on the grounds of colour, race, nationality or ethnic or
national origins in a range of specific areas including employment, planning,
housing, education and provision of goods and services, as well as prohibiting
discrimination by public authorities in the course of their duties. It also
contains offences relating to the victimisation of complainants, and imposes a
positive duty to combat racial discrimination upon certain public sector bodies.
Since October 2007, the Race Relations Act 1976 has been administered by the new
Commission for Equality and Human Rights, established by the Equality Act 2006.
This new body replaced the three Commissions that were responsible for race, sex
and disability discrimination, and has additional powers with regards to
discrimination on the grounds of religion or sexuality.

Offences relating to racial hatred in the United Kingdom are contained within
the Public Order Act 1986, specifically sections 17-27, which contain a
range of offences relating to the use of threatening, abusive or insulting
communication which is intended or likely to cause racial
hatred.[21] The Crime and
Disorder Act 1998
also contains offences of racially or religiously
aggravated assault, criminal damage, public order offences or
harassment.[22]

1.4 The United States

The fourteenth amendment, often referred to as the ‘Equal Protection
Clause’ was added to the U.S. Constitution in 1868. It provides that “No State shall... deny to any person within its jurisdiction the equal
protection of the
laws.”[23]
While this
clause applies only to states, and not to federal government actions, the courts
have inferred a similar constitutional duty of equality from the fifth amendment
to the Constitution, which does place limits upon federal government
power.[24]

Federal statute law prohibiting race discrimination in the U.S. includes the Civil Rights Act of 1866 (reenacted after the 14th Amendment
as the Civil Rights Act of 1870), which declares that all persons must
receive equal treatment under the law and possess the same rights to make,
enforce and enjoy the benefits of
contracts.[25] In more recent times,
the key piece of legislation has been the Civil Rights Act of 1964, which
prohibits discrimination in the areas of voter
registration,[26] provision of
services in hotels, restaurants and places of
entertainment,[27] access to public
facilities,[28] education,[29] federally funded
programs[30] and some areas of
employment.[31] Other relevant
anti-discrimination legislation includes the Civil Rights Act of 1968 Title VIII (also known as the Fair Housing Act of 1968), which prohibits
discrimination in the area of housing and housing
finance.[32]

The Civil Rights Act of 1964 also prohibits discrimination in
employment by federal agencies, and requires them to institute a program of
affirmative action monitored and approved by the Equal Employment Opportunity
Commission.[33] These affirmative
action policies are also imposed upon Federal Government contractors,
subcontractors and suppliers by Executive Order 11246.

United States racial hatred laws are circumscribed by the strong
constitutional emphasis on the right to freedom of
speech.[34] It is a criminal offence
under federal law to intimidate or interfere with a person because of their race
so as to prevent them from undertaking certain federally protected activities
such as attending a public school, applying for employment, serving on a jury,
etc. These offences only apply, however, where the intimidation or interference
involves either the use or threat of force, therefore distinguishing violent
actions (or threats of violence) from racist or offensive
speech.[35] The Local Law
Enforcement Hate Crimes Prevention Act
of 2007, which has been passed by the
U.S. House of Representatives and is now before the Senate, would create
additional federal ‘hate crime’ offences, and provide federal
assistance to state bodies in investigating such offences at the local
level.[36] Once again, however,
these offences focus on racially motivated violence (involving actual or
attempted bodily injury) rather than hate speech.

1.5 The European Union

The European Union currently consists of 27 independent European countries,
bound together by treaty. The Union itself possesses its own legislative,
judicial and administrative institutions which are responsible for upholding and
implementing this treaty law. Directives issued by the Council of the European
Union are binding on all member states, who must take steps to transpose them
into national law. Where the state fails to do so, directives that are
sufficiently “clear, precise and unconditional” may be
directly enforceable by an individual against the state in the European Court of
Justice.[37] A state which fails to
implement the directives may also be ordered to pay a financial penalty by the
Court.[38]

The European Union gained the specific power to legislate with regards to
race discrimination in 1999, through the Treaty of
Amsterdam
.[39] This Treaty
amended the existing Treaty on Establishing the European Community,
specifically authorising the European Council to “take appropriate action
to combat discrimination based on sex, racial or ethnic origin, religion or
belief, disability, age or sexual
orientation.”[40]

Shortly after these powers came into effect, the European Council issued a
directive “implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin
”, commonly known as
the Racial Equality
Directive
.[41] This directive
required all member states to put in place a legal framework to combat race
discrimination within their individual jurisdictions before July 2003. It also
laid out the minimum requirements of such legislation, which must protect the
principle of equal treatment in fields including employment, membership of
professional organisations, social services, education and access to goods and
services. In addition, the directives impose minimum requirements for the
enforcement of such legal rights, including requirements relating to who may
have standing to bring forth a claim, and the burden of proof that may be
imposed.

In December 2000, a Charter of Fundamental Rights for the European
Union
was proclaimed, containing the declaration that “(a)ny
discrimination based on any ground such as sex, race, colour, ethnic or social
origin... shall be
prohibited.”[42] While this
text may have some influence on the European Court of Justice, and may
potentially be included in a future EU
Constitution,[43] at present it is
not considered treaty law, and is thus not in itself binding on state
members.

The European Convention for the Protection of Human Rights and Fundamental
Freedoms
[44] is also of
relevance within the context of the European Union. While this treaty was
created by the Council of Europe, which is a separate political entity to the
European Union, all EU member states are signatories to the Convention, and the
institutions of the European Union have indicated their intention to respect the
Convention rights.[45] As already
noted above (with respect to the United Kingdom), the Convention prohibits
discrimination with regards to securing Convention
rights.[46] It also contains a more
general, but less widely ratified, protocol prohibiting
discrimination.[47]

Table 2. Summary of Race Discrimination Legislation in the Five
Jurisdictions[48]


Constitutional (or quasi-Constitutional) anti-Discrimination
measures
Key Race Discrimination Legislation
Other relevant policies and legislation
Australia
Nil
Racial Discrimination Act 1975
Human Rights and Equal Opportunity Act 1986
Workplace Relations Act 1996
Public Service Act 1999
Equal Employment Opportunity (Commonwealth Authorities) 1987
Canada
Canadian Charter of Rights and Freedoms s 15


Canadian Human Rights Act 1977


Canadian Criminal Code ss 318, 319, 320 and s 718.2
Employment Equity Act 1995
Federal Contractors Programme for Employment
Equity
Procurement Strategy for Aboriginal
Business
United Kingdom
Human Rights Act 1998
Race Relations Act 1976
Equality Act 2006
Crime and Disorder Act 1998 ss 28-33
Public Order Act 1986 ss 17-29J


United States
United States Constitution: 14th Amendment
Civil Rights Act of 1866 (Reenacted as the Civil Rights Act of 1870)*
Civil Rights Act of 1871*
Civil Rights Act of 1964*
Civil Rights Act of 1968 Title VIII (Fair Housing Act)**
Executive Order 11246
United States Code Title 18 Chapter 13
Local Law Enforcement Hate Crimes Prevention Act of 2007 (pending Senate
approval)

* As amended and codified in the United States Code Title 42 Chapter 21
(Civil Rights)

** As amended and codified in the United States Code Title 42 Chapter
45 (Fair Housing)



Treaties
Directives
Other Relevant Legislation/ Policy
European Union
Treaty on Establishing the European Community (as amended by the Treaty of
Amsterdam1999)


Racial Equality Directive
Charter of Fundamental Rights of the European Union (2000) Article 21
European Convention for the Protection of Human Rights and Fundamental
Freedoms (article 14, Protocol 12)
(European Community, endorsed by European Union)



[1] Australian Constitution s 117.

[2] Racial Discrimination
Act 1975
(Cth) s 9.

[3] Ibid ss
10-16.

[4] Ibid s
18C.

[5] Human Rights and Equal
Opportunity Commission Act 1986
(Cth) Part
IIB.

[6] Workplace Relations Act
1996
(Cth) see especially ss 222,
659.

[7] Canadian Charter of
Rights and Freedoms
, Schedule B Constitution Act 1982 (UK), c
15(1).

[8] Ibid, c
1.

[9] Ibid, c 33, commonly known
as the ‘notwithstanding
clause’.

[10] Canadian
Human Rights Act
, R.S., 1985, c.
H-6.

[11] Criminal Code,
RS, 1985, c C-46 ss 318-320.

[12] Ibid s 718.2 (a)(i).

[13] Employment Equity Act SC, 1995, c
44.

[14] Convention for the
Protection of Human Rights and Fundamental Freedoms, opened for signature 4
November 1950, CETS 5 (entered into force 3 September
1953).

[15] Human Rights Act
1998
(UK) c 42 ss 3 and
6.

[16] Ibid ss 4 and
10.

[17] Ibid s
19.

[18] Convention for the
Protection of Human Rights and Fundamental Freedoms
, opened for signature 4
November 1950, CETS 5, art 14 (entered into force 3 September
1953).

[19] Protocol No 12 to
the Convention for the Protection of Human Rights and Fundamental Freedoms
,
opened for signature 4 November 2000, CETS 177, art 1 (entered into force 1
April 2005).

[20] Race
Relations Act 1976
(UK) c
74.

[21] Public Order Act
1986
(UK) c 64 ss 17-27.

[22] Crime and Disorder Act 1998 (UK) c 37 ss
28-33.

[23] United States
Constitution
, amend XIV, §
1.

[24] Bolling v Sharpe,
347 US 497 (1954) at 500.

[25] Civil Rights Act of 1866, 42 USC §
1981.

[26] Civil Rights Act of
1964
, 42 USC §
1971.

[27] Ibid 42 USC §
2000a.

[28] Ibid 42 USC §
2000b.

[29] Ibid 42 USC §
2000c.

[30] Ibid 42 USC §
2000d.

[31] Ibid 42 USC §
2000e.

[32] 42 USC §§
3601-3607.

[33]Civil Rights
Act of 1964,
42 USC § 2000e-16, see also Exec Order No 11478, 3
CFR 803 (1966-1970).

[34] United States Constitution, amend
I.

[35] 18 USC §
245.

[36] Local Law
Enforcement Hate Crimes Prevention Act of 2007
HR 1592 (110th U.S. Congress: 2007-2008).

[37] Van Gend & Loos (C-26/62) [1963] ECR 1; referred to in European
Commission, Enforcement of the Directives (2007), http://ec.europa.eu/employment_social/fundamental_rights/legis/lgenforce_en.htm (accessed 9/7/07).

[38] Treaty
of the Treaty on Establishing the European Community
, [2002] OJ C 325, art
228.

[39] Treaty of
Amsterdam
, opened for signature 2 October 1997, [1997] OJ C 340, (entered
into force 1 May 1999).

[40] Consolidated Version of the Treaty on Establishing the European Community,
[2002] OJ C 325, art 13.

[41] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of
equal treatment between persons irrespective or racial or ethnic origin
[2000] OJ L180/22.

[42] Charter of Fundamental Rights for the European Union [2000] OJ 364/01 art
21(1).

[43] A proposal to
establish a Constitution for Europe, which included the Charter, was
signed by all EU members in October 2004, but failed to obtain ratification due
to the negative results of referendums in some member states. New attempts to
create an alternative constitution are currently under
way.

[44] Convention for the
Protection of Human Rights and Fundamental Freedoms
, opened for signature 4
November 1950, CETS 5 (entered into force 3 September
1953).

[45] See for instance,
“Joint Declaration by the European Parliament, the Council and the
Commission on fundamental rights, of 5 April 1977”, http://europa.eu/abc/treaties/archives/en/entr25.htm (accessed 9/7/07).

[46] Convention for the Protection of Human Rights and Fundamental Freedoms,
Rome 4.XI.1950 Article 14.

[47] Ibid, Protocol 12.

[48] Australian legislation can be found at:
http://www.austlii.edu.au/
   
 

    Canadian
legislation can be found at:
http://www.canlii.org/en/index.html

    United
Kingdom legislation can be found at:
http://www.bailii.org/

    United
State legislation can be found at:
http://www.law.cornell.edu/