Discrimination and Legislations

Running head: DISCRIMINATION AND LEGISLATIONS
Discrimination and Legislations
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1DISCRIMINATION AND LEGISLATIONS
The laws in relation to Discrimination is Australia have been derived from various
sources such as the Rule of Law, International Conventions, Common Law and the principles
of Equality1. The provisions of human rights also operate toward the elimination of
discrimination from the society. It has been stated by Rosie (2015) that discrimination is a
social evil2. The commonwealth constitution of Australia makes any practice of
discrimination as illegal where they are related to protected attributes such as Race, Sex,
Intersex Status, Disability, Gender Identity, Sexual Orientation and Maternity in the public
areas such as employment and education. The Age discrimination Act 20043, the Disability
Discrimination Act 19924, The Sex Discrimination Act 19845 and The Racial Discrimination
Act 19756 are a few primary legislations which deal with anti-discrimination laws in
Australia. Australian Human Rights Commission Act 19867 also deals with provisions in
relation to ant discrimination in the country. Statutory responsibility has been provided to The
Australian Human Rights Commission under the laws8. The commission conciliates and
investigates complaints in relation to human rights and discrimination breaches which have
been made under the above discussed legislations9. The AHRCA 1986 has brought into
existence Australian Human Rights Commission which bases its functions on conventions
like Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based
on Religion or Belief and Convention Concerning Discrimination in Respect of Employment
and Occupation10. Discrimination has been defined through the provisions of section 3(1) of
the AHRCA 198611. Additional grounds which constitute discrimination have also been
1 Quinn, Gerard, Maeve McDonagh, and Cliona Kimber. Disability discrimination law in the United
States, Australia, and Canada. Oak Tree Press, 1993.
2 Ung, Rosie. "Indigenous People in Australia and Inequality." (2015).
3 The Age discrimination Act 2004 (Cth)
4 Disability Discrimination Act 1992 (Cth)
5 The Sex Discrimination Act 1984 (Cth)
6 The Racial Discrimination Act 1975 (Cth)
7 Australian Human Rights Commission Act 1986 (Cth)
8 Thornton, Margaret. The liberal promise: Anti-discrimination legislation in Australia. Oxford University
Press, 1990.
9 Connolly, Michael. Discrimination law. Sweet and Maxwell, 2006.
10 Gaze, Beth. "Context and interpretation in anti-discrimination law." Melb. UL Rev. 26 (2002): 325.
11 Australian Human Rights Commission Act 1986 s 3(1)

2DISCRIMINATION AND LEGISLATIONS
provided through the legislation12. The legislation defines discrimination as exclusion,
preference or distinction which has been made based on colour, race, sex, political opinion,
social origin, national extractions and religion which have an effect of impairing or nullifying
equality of treatment or opportunity in an occupation. Discrimination is also defined as any
other exclusion, preference or distinctions which have an effect of impairing or nullifying
equality of treatment or opportunity in an occupation in relation to the provisions of any
regulation under the Act13. However discrimination does not constitute an exclusion,
preference or distinction in relation to a job where particular requirements are required and in
relation to a religious institution where people of the same religion may be required14. The
primary purpose of the paper is to analyze Discrimination on Hollywood movies
concentrating of the role on indigenous people and the legislation and exemption screening in
Australian cinemas in relation to discrimination acts. The paper argues that even in the light
of several legal provisions available to combat discrimination, Hollywood movie makers not
only depict discrimination through movies but also discriminate against people of different
races while allocating roles and providing jobs. The paper also argues that the censorship
system under the operation of the Commonwealth Classification (Publications, Films and
Computer Games) Act 199515 is not operating effectively to identify movies which may
depict racism in the society.
In addition there are a few other legislations as well which address the issue in the paper. The
Discrimination Act 199116 operates to categorize certain form of legislations to be unlawful in
the country. The Racial Hatred Act 1995 (Cth)17 has the purpose of striking a balance
between two valued right of right to live free from criticism and the right to communicate
12 Connolly, M., 2006. Discrimination law. Sweet and Maxwell.
13 Lawson, Anna. European Union non-discrimination law and intersectionality: investigating the
triangle of racial, gender and disability discrimination. Routledge, 2016.
14 Ibid s 3 (1)
15 Commonwealth Classification (Publications, Films and Computer Games) Act 1995 (Cth)
16 The Discrimination Act 1991 (Cth)
17 The Racial Hatred Act 1995 (Cth)

3DISCRIMINATION AND LEGISLATIONS
freely. Statutory bodies like the Australian Classification Board (ACB) which used to be
called Office of Film and Literature Classification bases its functions on the provisions of
Commonwealth Classification Act 199518. The body deals with the majority of the issues
related to censorship in the country which includes classification guidelines and classification
codes on films. The Charter of Human Rights and Responsibilities Act 2006 (Vic)19 which is
in compliance to the AHRCA 1986 operates to ensure that policy and law making along with
their implementation is done with due consideration on Human Rights. The Equal
opportunity Act 2010 renders it illegal to discriminate against a person because of personal
characteristics, it also recognizes that in some situation the act of discrimination can be
justified. The Anti Discrimination Act 1977 prohibits discrimination against race, sex and
few other forms in specific situation and ensures the promotion of equal opportunity to every
person20.
It has been argued by Marrie, Henrietta, and Adrian Marrie (2014) that the amount of
discrimination which is carried out is Australia is very low if any21. On the other hand it has
been stated by McCorquodale (2016) that the level of discrimination which the Aboriginals
and Torres Strait Islanders are subjected to in the Australia community is increasing despite
several measures taken by the government to address the situation22. Discrimination is a
hellhound that gnaws at Negroes in every waking moment of their lives to remind them that
the lie of their inferiority is accepted as truth in the society dominating them.”23
18 Ronalds, C. and Raper, E., 2012. Discrimination law and practice. Federation Press.
19 The Charter of Human Rights and Responsibilities Act 2006 (Vic)
20 Vellani, F., 2016. Understanding Disability Discrimination Law Through Geography. Routledge.
21 Marrie, Henrietta, and Adrian Marrie. "Rainforest Aboriginal Peoples and the Wet Tropics of Queensland
World Heritage Area. The Role of Indigenous Activism in Achieving Effective involvement in Management and
Recognition of the Cultural Values." World Heritage Sites and Indigenous Peoples' Rights129 (2014): 341.
22 McCorquodale, John. "The legal classification of race in Australia." Aboriginal History (2016): 7-24.
23 Carlson, Laura. Comparative Discrimination Law. Brill, 2017.

4DISCRIMINATION AND LEGISLATIONS
The above quoted lines of “Martin Luther King, Jr.” provides a pertinent account of the
discrimination which many people face in the society on the score of various factors. The
concept of discrimination can be defined as “treatment or consideration of, or making a
distinction in favor of or against, a person based on the group, class, or category to which the
person is perceived to belong”24. It is significant to note that in the present times although the
world has undergone much transformation yet there are various incidents where the process
of discrimination resurfaces again and again25. A pertinent example of this is the portrayal of
the indigenous people in the various movies of the present times26. It has been provided
through the provisions of section 18 C of the Racial Discrimination Act 1975 that it is illegal
for a person to indulge in public actions where such actions may reasonably intimidate,
humiliate, insult or offend a person belonging to a certain color, race, ethnic origin or national
origin27. There are certain defenses also which have been provided through the provisions of
section 18D of Act which include actions related to artistic works, scientific purpose, fair
comment, fair reporting and a matter of public interest28. In the case of Bryant v Queensland
Newspaper Pty Ltd [1997] HREOCA 23 a compliant had been dismissed by the Human
Rights and Equal Opportunity Commission which had been bought by an English person
against the use of the word Pom and Pommy in a newspaper29. The basis of the claim was
that these names were insulting to English people30. The claim was rejected by the
commission based on the reasoning that it will not be in the ends of justice to consider the use
of words like pommy and pom aas so serious to have contravened the provisions of the Act31.
24 Simpson, G.E. and Yinger, J.M.,. Racial and cultural minorities: An analysis of prejudice and discrimination.
(Springer Science & Business Media. 2013)
25 Ibid pg 524
26 Craven, I.,. Australian Cinema in the 1990s. (Routledge. 2012)
27 The Racial Discrimination Act 1975 s 18C
28 Ibid s 18D
29 Davey, Judith. "Age discrimination in the workplace." Policy Quarterly 10.3 (2018).
30 Khaitan, Tarunabh. A theory of discrimination law. OUP Oxford, 2015.
31 Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA 23

5DISCRIMINATION AND LEGISLATIONS
Thus on the basis of these principles it can be stated that only when the portrayal of
indigenous people would be so serious that it would fall within the meaning of the Act would
it be considered as discrimination. However there are various other ways in which the
sentiments of the indigenous communities hurt through the use of Hollywood movies32.
Moreover, it is also seen that the various nations of the world as well as the individuals try to
suppress the movies which focus on the theme of the discrimination faced by the indigenous
people33. A pertinent example of this was the recent row which was caused with the news that
a colored individual would now play the role of the superhero “Spiderman” in the
“Spiderman” movie series. The provisions of the Equal opportunity Act 2010 renders it
illegal to discriminate against a person because of personal characteristics, it also recognizes
that in some situation the act of discrimination can be justified34. Part 5 of the EOA 2010
provides general exceptions along with exemptions from the prohibition of discrimination.
However the legislation does not certify any action which has been taken in the above
movie35. The exceptions would allow that where the role of the super hero is required to be a
white person than it is legally valid to accept a white person only in that role, however where
the role is general it there can be no such actions taken. In addition it is difficult to prove that
whether the role actually required a white person or it was general as the producers can easily
justify that they require a white person to do the role instead of an indigenous person.
However, on the contrary, there are movies which have a considerable impact in the recent
times due to their captivating portrayal of the life as well as the living conditions of the lives
of the indigenous people. A pertinent example of this is “Kunuk’s film, ‘Atanarjuat: The Fast
32 Soutphommasane, T., 2015. 40 years of the racial discrimination act. LSJ: Law Society of NSW
Journal, (8), p.20.
33 Ibid pg 212
34 Equal opportunity Act 2010 (Vic)
35 Ibid Part 5