QCE Legal Studies Practice Questions

Section 9 of the Racial Discrimination Act 1975 (Cth) (RDA) is the principal operative provision that renders racial discrimination in the workplace unlawful at the federal level. Section 9(1) makes it 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 that 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. As the stimulus confirms, this provision gives direct domestic effect to Australia's treaty obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965. In an employment context, a complainant seeking to invoke s 9 must establish three core elements. First, the complainant must identify a relevant protected attribute — namely their race, colour, descent, or national or ethnic origin. Second, they must demonstrate that the respondent's act involved a distinction, exclusion, restriction or preference based on that attribute. This encompasses both direct discrimination (where race is the explicit basis of the adverse treatment, such as refusing to promote a person because of their Aboriginal heritage) and indirect discrimination (where a neutral criterion disproportionately disadvantages persons of a particular racial group, such as a language requirement not justifiable by the inherent requirements of the role). Third, the complainant must show that this conduct has the purpose or effect of nullifying or impairing the enjoyment or exercise of a human right or fundamental freedom — notably, s 9 is engaged by either purpose or effect, meaning that an employer cannot escape liability by claiming no discriminatory intent was present. The breadth of the phrase 'on an equal footing' is significant: it imports a comparative standard, requiring the court or tribunal to assess whether the complainant was treated less favourably relative to a person of a different racial background in comparable circumstances. Once a prima facie case is established under s 9, the burden may shift to the respondent to demonstrate a lawful justification, such as the special measures exception under s 8 RDA.