For all of the column inches devoted to the Federal Government’s proposal to amend the Racial Discrimination Act 1975 (Cth) (the RDA), it is likely that even if the changes go through in their current form, the impact for HR professionals will be minimal. Section 18C has never been especially relevant to cases of racial abuse in the workplace, and nothing in the proposed amendments adds any workplace relevance. Those parts of the RDA which are more commonly relied upon in cases of workplace racial abuse won’t be changing, and of course, changes to the RDA won’t affect the operation of State anti-discrimination legislation.
So why does section 18C have so little work to do in the workplace? The main reason is that for conduct to infringe section 18C, the conduct must occur “otherwise than in private”. Conduct which occurs on an employer’s premises to which the public do not have access is generally regarded, for the purposes of section 18C, as being “in private”. That is, conduct does not have to be expressly confidential to be “private” for the purposes of section 18C.
For example, in 2011, a Full Bench of Fair Work Australia held that a swastika drawn on a freezer door in a warehouse was conduct done “in private” because there was no general public access to that part of the warehouse. In another 2011 case, the Federal Magistrates Court held that comments made in the workplace by one employee to another about the second employee’s skin colour were made in a private conversation, and thus “in private”, so that section 18C was not engaged.
Of course, not all conduct in workplaces will be “in private” in the necessary sense. In 2001, the Federal Magistrates Court held that racial abuse of an employee infringed section 18C because the abuse occurred in a place where it could be heard by a member of the public. Late last year, the Federal Circuit Court found that a West Australian lawyer (presumably not an expert in discrimination law) had infringed section 18C when the lawyer racially abused a security officer in the foyer of the Perth Central Law Courts.
Many aspects of the employment relationship (especially aspects which involve “friction points”, like meetings to discuss performance counselling, or termination of employment) take place in circumstances of express confidentiality. What is confidential will necessarily also be “private”. However, with the proposed new legislation retaining the “otherwise than in private” formulation, even conduct which meets the new tests of vilification and intimidation will continue to be outside the scope of the RDA if it occurs in conversations (or other communications, such as emails) which lack a public element.
So what will change in the workplace if the RDA is amended as proposed? The main change might be a change brought about by the atmospherics of the debate – what Dr Tim Soutphommasane, the Race Discrimination Commissioner, has referred to as the “licensing of racial hatred” and what George Brandis, the Attorney General, famously encapsulated as, “People do have a right to be bigots, you know”.
That means that now might be a good time to ensure that you have your house in order in relation to the prevention of discrimination more broadly (if only to ensure that no-one in your organisation responds to an employee complaint by saying, “We have considered your complaint of racial abuse by your supervisor; the complaint is substantiated, but we will take no further action, because your supervisor does have a right be a bigot, you know”).
So, check that your policies are clear (and that the training of your employees is up-to-date) and make sure that your grievance procedures (and those who administer them) are tuned up, so that any problems which do arise are dealt with swiftly and close to their source. If that sounds like advice which you have heard before, then think about it this way – sometimes with the RDA, as in other areas of life, the more things change, the more they stay the same.
Angus Macinnis is a lawyer at StevensVuaran Lawyers firstname.lastname@example.org