Anti-discrimination law as the protector of other rights and freedoms: the case of the racial discrimination act

The prohibitions on discrimination on the basis of race in the Racial Discrimination Act 1975 (Cth) (‘RDA’) are different from those contained in other Commonwealth anti-discrimination legislation. Rather than requiring complainants to demonstrate ‘less favourable’ treatment on the basis of a ground, the RDA requires complainants to demonstrate that an act or a law has made a distinction based on race that has the purpose or effect of nullifying or impairing the enjoyment of a person’s human rights and fundamental freedoms. This article argues that while this construction has avoided some of the problems that plague other Commonwealth discrimination laws, the focus on ‘other rights and freedoms’ in the RDA gives rise to a different problem- the need for an effective articulation of the content and scope of such other rights and freedoms. Such a problem could be resolved through refocusing attention on the underlying purpose of the RDA-the facilitation of equality and non-discrimination on the basis of race.