An Act relating to the Elimination of Racial and other Discrimination
WHEREAS a Convention entitled the “International Convention on the Elimination of all Forms of Racial Discrimination” (being the Convention a copy of the English text of which is set out in the Schedule) was opened for signature on 21 December 1965:
AND WHEREAS the Convention entered into force on 2 January 1969:
AND WHEREAS it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention:
BE IT THEREFORE ENACTED by the Queen, the Senate and the House of Representatives of Australia, as follows:
Part I—Preliminary
1 Short title
This Act may be cited as the Racial Discrimination Act 1975.
2 Commencement
(1) Sections 1, 2 and 7 shall come into operation on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act shall come into operation on a day to be fixed by Proclamation, being a day not earlier than the day on which the Convention enters into force for Australia.
3 Interpretation
(1) In this Act, unless the contrary intention appears:
Aboriginal means a person who is a descendant of an indigenous inhabitant of Australia but does not include a Torres Strait Islander.
Commission means the Australian Human Rights Commission.
Commissioner means the Race Discrimination Commissioner appointed under section 29.
Commonwealth agency means an agency within the meaning of the Privacy Act 1988.
Convention means the International Convention on the Elimination of All Forms of Racial Discrimination that was opened for signature on 21 December 1965 and entered into force on 2 January 1969, being the Convention a copy of the English text of which is set out in the Schedule.
dispose includes sell, assign, lease, let, sub‑lease, sub‑let, license or mortgage, and also includes agree to dispose and grant consent to the disposal of.
employment includes work under a contract for services, and cognate expressions have corresponding meanings.
President means President of the Commission.
principal executive, in relation to a Commonwealth agency, has the same meaning as in Part V of the Privacy Act 1988.
registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.
relative, in relation to a person, means a person who is related to the first‑mentioned person by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on, or is a member of the household of, the first‑mentioned person.
residential accommodation includes accommodation in a dwelling‑house, flat, hotel, motel or boarding‑house or on a camping ground.
services includes services consisting of the provision of facilities by way of banking or insurance or of facilities for grants, loans, credit or finance.
Torres Strait Islander means a person who is a descendant of an indigenous inhabitant of the Torres Strait Islands.
vehicle includes a ship, an aircraft and a hovercraft.
(2) A reference in this Act to an Australian ship or aircraft shall be construed as a reference to a ship or aircraft registered in Australia or belonging to or in the possession of the Commonwealth or a State.
(3) For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure.
(4) A reference in this Act to the doing of an act by a person includes a reference to the doing of an act by a person in association with other persons.
4 Extension to external Territories
This Act extends to every external Territory.
5 Additional operation of Act
Without prejudice to its effect apart from this section, this Act also has, by force of this section, the effect it would have if:
(a) there were added at the end of sections 11 and 13 the words “or by reason that that other person or any relative or associate of that other person is or has been an immigrant”;
(b) there were added at the end of subsections 12(1) and 15(1) the words “or by reason that that second person or any relative or associate of that second person is or has been an immigrant”;
(c) there were inserted in subsection 14(1), before the words “is invalid, the words or by reason that that person is or has been an immigrant”;
(d) there were added at the end of subsection 14(2) the words “or by reason that that other person is or has been an immigrant”;
(e) there were added at the end of subsection 15(2) the words “or by reason that the person so seeking employment or any relative or associate of that person is or has been an immigrant”; and
(f) there were inserted in section 18, after the word “person”, the words “or by reason that a person is or has been an immigrant”.
6 Act binds the Crown
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
6A Operation of State and Territory laws
(1) This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.
(2) Where:
(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and
(b) a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which the person would, but for this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act;
the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II or IIA of this Act and any proceedings pending under this Act at the commencement of this section in respect of such a complaint made before that commencement are, by force of this subsection, terminated.
(3) Where:
(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and
(b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act;
the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.
6B Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
7 Ratification of Convention
Approval is given to ratification by Australia of the Convention.
Part II—Prohibition of racial discrimination
8 Exceptions
(1) This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection 10(1) applies by virtue of subsection 10(3).
Charities
(2) This Part does not:
(a) affect a provision (whether made before or after the commencement of this Part) of the governing rules (within the meaning of the Australian Charities and Not‑for‑profits Commission Act 2012) of a registered charity, if the provision:
(i) confers benefits for charitable purposes; or
(ii) enables such benefits to be conferred;
on persons of a particular race, colour or national or ethnic origin; or
(b) make unlawful any act done to give effect to such a provision.
9 Racial discrimination to be unlawful
(1) 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.
(1A) Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4) The succeeding provisions of this Part do not limit the generality of this section.
10 Rights to equality before the law
(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.
(3) Where a law contains a provision that:
(a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;
not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.
11 Access to places and facilities
It is unlawful for a person:
(a) to refuse to allow another person access to or use of any place or vehicle that members of the public are, or a section of the public is, entitled or allowed to enter or use, or to refuse to allow another person access to or use of any such place or vehicle except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow access to or use of that place or vehicle;
(b) to refuse to allow another person use of any facilities in any such place or vehicle that are available to members of the public or to a section of the public, or to refuse to allow another person use of any such facilities except on less favourable terms or conditions than those upon or subject to which he or she would otherwise allow use of those facilities; or
(c) to require another person to leave or cease to use any such place or vehicle or any such facilities;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
12 Land, housing and other accommodation
(1) It is unlawful for a person, whether as a principal or agent:
(a) to refuse or fail to dispose of any estate or interest in land, or any residential or business accommodation, to a second person;
(b) to dispose of such an estate or interest or such accommodation to a second person on less favourable terms and conditions than those which are or would otherwise be offered;
(c) to treat a second person who is seeking to acquire or has acquired such an estate or interest or such accommodation less favourably than other persons in the same circumstances;
(d) to refuse to permit a second person to occupy any land or any residential or business accommodation; or
(e) to terminate any estate or interest in land of a second person or the right of a second person to occupy any land or any residential or business accommodation;
by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.
(2) It is unlawful for a person, whether as a principal or agent, to impose or seek to impose on another person any term or condition that limits, by reference to race, colour or national or ethnic origin, the persons or class of persons who may be the licensees or invitees of the occupier of any land or residential or business accommodation.
(3) Nothing in this section renders unlawful an act in relation to accommodation in a dwelling‑house or flat, being accommodation shared or to be shared, in whole or in part, with the person who did the act or a person on whose behalf the act was done or with a relative of either of those persons.
13 Provision of goods and services
It is unlawful for a person who supplies goods or services to the public or to any section of the public:
(a) to refuse or fail on demand to supply those goods or services to another person; or
(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or services;
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
14 Right to join trade unions
(1) Any provision of the rules or other document constituting, or governing the activities of, a trade union that prevents or hinders a person from joining that trade union by reason of the race, colour or national or ethnic origin of that person is invalid.
(2) It is unlawful for a person to prevent or hinder another person from joining a trade union by reason of the race, colour or national or ethnic origin of that other person.
15 Employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:
(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;
(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or
(c) to dismiss a second person from his or her employment;
by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.
(2) It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person.
(3) It is unlawful for an organization of employers or employees, or a person acting or purporting to act on behalf of such an organization, to prevent, or to seek to prevent, another person from offering for employment or from continuing in employment by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
(4) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(5) Nothing in this section renders unlawful an act in relation to employment, or an application for employment, in a dwelling‑house or flat occupied by the person who did the act or a person on whose behalf the act was done or by a relative of either of those persons.
16 Advertisements
It is unlawful for a person to publish or display, or cause or permit to be published or displayed, an advertisement or notice that indicates, or could reasonably be understood as indicating, an intention to do an act that is unlawful by reason of a provision of this Part or an act that would, but for subsection 12(3) or 15(5), be unlawful by reason of section 12 or 15, as the case may be.
17 Unlawful to incite doing of unlawful acts
It is unlawful for a person:
(a) to incite the doing of an act that is unlawful by reason of a provision of this Part; or
(b) to assist or promote whether by financial assistance or otherwise the doing of such an act.
18 Acts done for 2 or more reasons
Where:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done for that reason.
18A Vicarious liability
(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by that person;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
Part IIA—Prohibition of offensive behaviour based on racial hatred
18B Reason for doing an act
If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.
18C Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
18D Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
18E Vicarious liability
(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by the person;
this Act applies in relation to the person as if the person had also done the act.
(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
18F State and Territory laws not affected
This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
Part III—Race Discrimination Commissioner and functions of Commission
Division 1—Preliminary
19 Race Discrimination Commissioner
For the purposes of this Act there shall be a Race Discrimination Commissioner.
20 Functions of Commission
The following functions are hereby conferred on the Commission:
(b) to promote an understanding and acceptance of, and compliance with, this Act;
(c) to develop, conduct and foster research and educational programs and other programs for the purpose of:
(i) combating racial discrimination and prejudices that lead to racial discrimination;
(ii) promoting understanding, tolerance and friendship among racial and ethnic groups; and
(iii) propagating the purposes and principles of the Convention;
(d) to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of infringements of Part II or Part IIA;
(e) where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve racial discrimination issues;
(f) to inquire into, and make determinations on, matters referred to it by the Minister or the Commissioner.
Note: For the provisions about inquiries into complaints of discrimination and conciliation of those complaints: see Part IIB of the Australian Human Rights Commission Act 1986.
Part IV—Offences
26 Unlawful acts not offences unless expressly so provided
Except as expressly provided by this Part, nothing in this Act makes it an offence to do an act or agree with another person to do an act that is unlawful by reason of a provision of Part II or Part IIA.
27 Offences relating to administration of Act
(1) A person shall not hinder, obstruct, molest or interfere with a person exercising or performing any of the powers or functions referred to in this Act.
Penalty for an offence against subsection (1): 10 penalty units.
(1A) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance, that a person is exercising or performing any of the powers or functions referred to in this Act.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person shall not:
(a) refuse to employ another person; or
(b) dismiss, or threaten to dismiss, another person from the other person’s employment; or
(c) prejudice, or threaten to prejudice, another person in the other person’s employment; or
(d) intimidate or coerce, or impose any pecuniary or other penalty upon, another person;
by reason that the other person:
(e) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or
(f) has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act or the Australian Human Rights Commission Act 1986; or
(g) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986.
Penalty for an offence against subsection (2):
(a) in the case of a natural person—25 penalty units or imprisonment for 3 months, or both; or
(b) in the case of a body corporate—100 penalty units.
27F Non‑disclosure of private information
(1) A person who is, or has at any time been, the Commissioner, a member of the Commission or a member of the staff assisting the Commission or is, or has at any time been, authorised to perform or exercise any function or power of the Commission or the Commissioner or any function or power on behalf of the Commission or the Commissioner, being a function or power conferred on the Commission or on the Commissioner under this Act, shall not, either directly or indirectly:
(a) make a record of, or divulge or communicate to any person, any information relating to the affairs of another person acquired by the first‑mentioned person by reason of that person’s office or employment under or for the purpose of this Act or by reason of that person being or having been so authorised; or
(b) make use of any such information as is mentioned in paragraph (a); or
(c) produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.
Penalty: 50 penalty units or imprisonment for 1 year, or both.
(2) A person who is, or has at any time been, the Commissioner, a member of the Commission or a member of the staff assisting the Commission or is, or has at any time been, authorised to perform or exercise any function or power of the Commission or the Commissioner or any function or power on behalf of the Commission or the Commissioner, being a function or power conferred on the Commission or on the Commissioner under this Act, shall not be required:
(a) to divulge or communicate to a court any information relating to the affairs of another person acquired by the first‑mentioned person by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person being or having been so authorised; or
(b) to produce in a court a document relating to the affairs of another person of which the first‑mentioned person has custody, or to which that person has access, by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person being or having been so authorised;
except where it is necessary to do so for the purposes of this Act.
(3) Nothing in this section prohibits a person from:
(a) making a record of information that is, or is included in a class of information that is, required or permitted by an Act to be recorded, if the record is made for the purposes of or pursuant to that Act; or
(b) divulging or communicating information, or producing a document, to any person in accordance with an arrangement in force under section 16 of the Australian Human Rights Commission Act 1986; or
(c) divulging or communicating information, or producing a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by an Act to be divulged, communicated or produced, as the case may be, if the information is divulged or communicated, or the document is produced, for the purposes of or pursuant to that Act.
Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(3A) Subsection (1) does not prevent a person from making a record of, divulging, communicating or making use of information, or producing a document, if the person does so:
(a) in the performance of a duty under or in connection with this Act; or
(b) in the performance or exercise of a function or power conferred on the Commission or on the Commissioner under this Act.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code).
(4) Nothing in subsection (2) prevents a person from being required, for the purposes of or pursuant to an Act, to divulge or communicate information, or to produce a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by that Act to be divulged, communicated or produced.
(5) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
Part VI—Race Discrimination Commissioner
29 Appointment of Race Discrimination Commissioner
(1) The Race Discrimination Commissioner shall be appointed by the Governor‑General.
(2) A person is not qualified to be appointed as the Race Discrimination Commissioner unless the Minister is satisfied that the person has appropriate qualifications, knowledge or experience.
30 Terms and conditions of appointment
(1) Subject to this section, the Commissioner holds office for such period, not exceeding 7 years, as is specified in the instrument of his or her appointment, but is eligible for re‑appointment.
(3) The Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General.
31 Remuneration of Commissioner
(1) The Commissioner shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, the Commissioner shall be paid such remuneration as is prescribed.
(2) The Commissioner shall be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
32 Leave of absence
(1) The Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
33 Resignation
The Commissioner may resign from the office of Commissioner by writing signed by the Commissioner and delivered to the Governor‑General.
34 Termination of appointment
(1) The Governor‑General may terminate the appointment of the Commissioner by reason of misbehaviour or of physical or mental incapacity.
(2) The Governor‑General shall terminate the appointment of the Commissioner if the Commissioner:
(a) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any period of 12 months; or
(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit.
35 Outside employment
The Commissioner shall not, except with the approval of the Minister, engage in paid employment outside the duties of the office of Commissioner.
36 Acting Commissioner
(1) The Minister may appoint a person to act in the office of Commissioner during any period, or during all periods, when the Commissioner is absent from duty or from Australia or during a vacancy in that office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(4) Sections 32, 33 and 35 apply in relation to a person appointed to act in the office of Commissioner in like manner as they apply in relation to the Commissioner.
40 Delegation
(1) The Commission may, by writing under its seal, delegate to a member of its staff, or to another person, all or any of the powers conferred on the Commission under this Act.
(2) The Commissioner may, by writing signed by the Commissioner, delegate to a member of the staff of the Commission approved by the Commission, or to another person approved by the Commission, all or any of the powers exercisable by the Commissioner under this Act.
Part VII—Miscellaneous
44 Jurisdiction
(1) The several courts of the States are invested with federal jurisdiction, and jurisdiction is conferred on the several courts of the Territories, within the limits of their several jurisdictions, whether those limits are as to locality, subject‑matter or otherwise, to hear and determine civil and criminal proceedings instituted in those courts under this Act.
(2) No proceedings under this Act shall be instituted in a court of a State or Territory before a day to be fixed by Proclamation as the day on which:
(a) that court shall commence to exercise its jurisdiction under subsection (1); or
(b) a class of courts of that State or Territory in which that court is included shall commence to exercise their jurisdiction under that subsection;
but nothing in this subsection prevents a court from exercising jurisdiction in a matter arising under this Act in a proceeding instituted in that court otherwise than under this Act.
45 Protection from civil actions
(1A) Subsection (1) applies in relation to any of the following persons:
(a) the Commission;
(b) the Commissioner or another member of the Commission;
(c) a person acting under the direction or authority of:
(i) the Commission; or
(ii) the Commissioner or another member of the Commission;
(d) a person acting under a delegation under section 40.
(1) The person is not liable to an action or other proceeding for damages for or in relation to an act done, or omitted to be done, in good faith in the performance, or purported performance, of any function, or in the exercise or purported exercise of any power or authority, conferred on the Commission, the Commissioner or the other member of the Commission.
(2) If a submission has been made, a document or information has been given, or evidence has been given, to the Commission or the Commissioner, a person is not liable to an action, suit or other proceeding in respect of loss, damage or injury of any kind suffered by another person merely because submission was made, the document or information was furnished or the evidence was given.
45A Commissioner to furnish information
The Commissioner shall furnish to the Commission such information relating to the Commissioner’s operations under this Act as the Commission from time to time requires.
47 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Schedule—International Convention on the elimination of all forms of racial discrimination
Section 3(1)
The States Parties to this Convention,
Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co‑operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,
Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin,
Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination,
Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end,
Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person,
Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere,
Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,
Convinced that the existence of racial barriers is repugnant to the ideals of any human society,
Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation,
Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination,
Bearing in mind the Convention concerning Discrimination in respect of Employment and Occupation adopted by the International Labour Organisation in 1958, and the Convention against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization in 1960,
Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end,
Have agreed as follows:
PART I
Article 1
1. In this Convention, the term “racial discrimination” shall mean any 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 human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non‑citizens.
3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
Article 2
1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;
(e) Each State Party undertakes to encourage, where appropriate, integrationist multi‑racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.
2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.
Article 3
States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.
Article 4
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:
(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;
(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.
Article 5
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice;
(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;
(c) Political rights, in particular the rights to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the State;
(ii) The right to leave any country, including one’s own, and to return to one’s country;
(iii) The right to nationality;
(iv) The right to marriage and choice of spouse;
(v) The right to own property alone as well as in association with others;
(vi) The right to inherit;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;
(e) Economic, social and cultural rights, in particular:
(i) 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;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social security and social services;
(v) The right to education and training;
(vi) The right to equal participation in cultural activities;
(f) 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.
Article 6
States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
Article 7
States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnic groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.
PART II
Article 8
1. There shall be established a Committee on the Elimination of Racial Discrimination (hereinafter referred to as the Committee) consisting of eighteen experts of high moral standing and acknowledged impartiality elected by States Parties from amongst their nationals who shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as of the principal legal systems.
2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by the States Parties. Each State Party may nominate one person from among its own nationals.
3. The initial election shall be held six months after the date of the entry into force of this Convention. At least three months before the date of each election the Secretary‑General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within two months. The Secretary‑General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.
4. Elections of the members of the Committee shall be held at a meeting of States Parties convened by the Secretary‑General at United Nations Headquarters. At that meeting, for which two‑thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.
5. (a) The members of the Committee shall be elected for a term of four years. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these nine members shall be chosen by lot by the Chairman of the Committee.
(b) For the filling of casual vacancies, the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee.
6. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties.
Article 9
1. States Parties undertake to submit to the Secretary‑General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted and which give effect to the provisions of this Convention:
(a) within one year after the entry into force of the Convention for the State concerned; and
(b) thereafter every two years and whenever the Committee so requests. The Committee may request further information from the States Parties.
2. The Committee shall report annually, through the Secretary‑General, to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of the reports and information received from the States Parties. Such suggestions and general recommendations shall be reported to the General Assembly together with comments, if any, from States Parties.
Article 10
1. The Committee shall adopt its own rules of procedure.
2. The Committee shall elect its officers for a term of two years.
3. The secretariat of the Committee shall be provided by the Secretary‑General of the United Nations.
4. The meetings of the Committee shall normally be held at United Nations Headquarters.
Article 11
1. If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee. The Committee shall then transmit the communication to the State Party concerned. Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.
2. If the matter is not adjusted to the satisfaction of both parties, either by bilateral negotiations or by any other procedure open to them, within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter again to the Committee by notifying the Committee and also the other State.
3. The Committee shall deal with a matter referred to it in accordance with paragraph 2 of this article after it has ascertained that all available domestic remedies have been invoked and exhausted in the case, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged.
4. In any matter referred to it, the Committee may call upon the States Parties concerned to supply any other relevant information.
5. When any matter arising out of this article is being considered by the Committee, the States Parties concerned shall be entitled to send a representative to take part in the proceedings of the Committee, without voting rights, while the matter is under consideration.
Article 12
1. (a) After the Committee has obtained and collated all the information it deems necessary, the Chairman shall appoint an ad hoc Conciliation Commission (hereafter referred to as the Commission) comprising five persons who may or may not be members of the Committee. The members of the Commission shall be appointed with the unanimous consent of the parties to the dispute, and its good offices shall be made available to the States concerned with a view to an amicable solution of the matter on the basis of respect for this Convention.
(b) If the States parties to the dispute fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission not agreed upon by the States parties to the dispute shall be elected by secret ballot by a two‑thirds majority vote of the Committee from among its own members.
2. The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States parties to the dispute or of a State not Party to this Convention.
3. The Commission shall elect its own Chairman and adopt its own rules of procedure.
4. The meetings of the Commission shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Commission.
5. The secretariat provided in accordance with article 10, paragraph 3, of this Convention shall also service the Commission whenever a dispute among States Parties brings the Commission into being.
6. The States Parties to the dispute shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary‑General of the United Nations.
7. The Secretary‑General shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States parties to the dispute in accordance with paragraph 6 of this article.
8. The information obtained and collated by the Committee shall be made available to the Commission, and the Commission may call upon the States concerned to supply any other relevant information.
Article 13
1. When the Commission has fully considered the matter, it shall prepare and submit to the Chairman of the Committee a report embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute.
2. The Chairman of the Committee shall communicate the report of the Commission to each of the States parties to the dispute. These States shall, within three months, inform the Chairman of the Committee whether or not they accept the recommendations contained in the report of the Commission.
3. After the period provided for in paragraph 2 of this article, the Chairman of the Committee shall communicate the report of the Commission and the declarations of the States Parties concerned to the other States Parties to this Convention.
Article 14
1. A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.
2. Any State Party which makes a declaration as provided for in paragraph 1 of this article may establish or indicate a body within its national legal order which shall be competent to receive and consider petitions from individuals and groups of individuals within its jurisdiction who claim to be victims of a violation of any of the rights set forth in this Convention and who have exhausted other available local remedies.
3. A declaration made in accordance with paragraph 1 of this article and the name of any body established or indicated in accordance with paragraph 2 of this article shall be deposited by the State Party concerned with the Secretary‑General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary‑General, but such a withdrawal shall not affect communications pending before the Committee.
4. A register of petitions shall be kept by the body established or indicated in accordance with paragraph 2 of this article, and certified copies of the register shall be filed annually through appropriate channels with the Secretary‑General on the understanding that the contents shall not be publicly disclosed.
5. In the event of failure to obtain satisfaction from the body established or indicated in accordance with paragraph 2 of this article, the petitioner shall have the right to communicate the matter to the Committee within six months.
6. (a) The Committee shall confidentially bring any communication referred to it to the attention of the State Party alleged to be violating any provision of this Convention, but the identity of the individual or groups of individuals concerned shall not be revealed without his or their express consent. The Committee shall not receive anonymous communications.
(b) Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.
7. (a) The Committee shall consider communications in the light of all information made available to it by the State Party concerned and by the petitioner. The Committee shall not consider any communication from a petitioner unless it has ascertained that the petitioner has exhausted all available domestic remedies. However, this shall not be the rule where the application of the remedies is unreasonably prolonged.
(b) The Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner.
8. The Committee shall include in its annual report a summary of such communications and, where appropriate, a summary of the explanations and statements of the States Parties concerned and of its own suggestions and recommendations.
9. The Committee shall be competent to exercise the functions provided for in this article only when at least ten States Parties to this Convention are bound by declarations in accordance with paragraph 1 of this article.
Article 15
1. Pending the achievement of the objectives of the Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in General Assembly resolution 1514 (XV) of 14 December 1960, the provisions of this Convention shall in no way limit the right of petition granted to these peoples by other international instruments or by the United Nations and its specialized agencies.
2. (a) The Committee established under article 8, paragraph 1, of this Convention shall receive copies of the petitions from, and submit expressions of opinion and recommendations on these petitions to, the bodies of the United Nations which deal with matters directly related to the principles and objectives of this Convention in their consideration of petitions from the inhabitants of Trust and Non‑Self‑Governing Territories and all other territories to which General Assembly resolution 1514 (XV) applies, relating to matters covered by this Convention which are before these bodies.
(b) The Committee shall receive from the competent bodies of the United Nations copies of the reports concerning the legislative, judicial, administrative or other measures directly related to the principles and objectives of this Convention applied by the administering Powers within the territories mentioned in sub‑paragraph (a) of this paragraph, and shall express opinions and make recommendations to these bodies.
3. The Committee shall include in its report to the General Assembly a summary of the petitions and reports it has received from United Nations bodies, and the expressions of opinion and recommendations of the Committee relating to the said petitions and reports.
4. The Committee shall request from the Secretary‑General of the United Nations all information relevant to the objectives of this Convention and available to him regarding the Territories mentioned in paragraph 2 (a) of this article.
Article 16
The provisions of this Convention concerning the settlement of disputes or complaints shall be applied without prejudice to other procedures for settling disputes or complaints in the field of discrimination laid down in the constituent instruments of, or in conventions adopted by, the United Nations and its specialized agencies, and shall not prevent the States Parties from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.
PART III
Article 17
1. This Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention.
2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary‑General of the United Nations.
Article 18
1. This Convention shall be open to accession by any State referred to in article 17, paragraph 1, of the Convention.
2. Accession shall be effected by the deposit of an instrument of accession with the Secretary‑General of the United Nations.
Article 19
1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary‑General of the United Nations of the twenty‑seventh instrument of ratification or instrument of accession.
2. For each State ratifying this Convention or acceding to it after the deposit of the twenty‑seventh instrument of ratification or instrument of accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or instrument of accession.
Article 20
1. The Secretary‑General of the United Nations shall receive and circulate to all States which are or may become Parties to this Convention reservations made by States at the time of ratification or accession. Any State which objects to the reservation shall, within a period of ninety days from the date of the said communication, notify the Secretary‑General that it does not accept it.
2. A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect of which would inhibit the operation of any of the bodies established by this Convention be allowed. A reservation shall be considered incompatible or inhibitive if at least two‑thirds of the States Parties to this Convention object to it.
3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary‑General. Such notification shall take effect on the date on which it is received.
Article 21
A State Party may denounce this Convention by written notification to the Secretary‑General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary‑General.
Article 22
Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.
Article 23
1. A request for the revision of this Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary‑General of the United Nations.
2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.
Article 24
The Secretary‑General of the United Nations shall inform all States referred to in article 17, paragraph 1, of this Convention of the following particulars:
(a) Signatures, ratifications and accessions under articles 17 and 18;
(b) the date of entry into force of this Convention under article 19;
(c) communications and declarations received under articles 14, 20 and 23;
(d) denunciations under article 21.
Article 25
1. This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.
2. The Secretary‑General of the United Nations shall transmit certified copies of this Convention to all States belonging to any of the categories mentioned in article 17, paragraph 1, of the Convention.
