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“Boo” or “Boo-Urns” – Australia’s racial discrimination laws – does intention matter?

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There was much conversation last week regarding the certain sections of AFL crowds booing and jeering former Australian of the Year, Adam Goodes. As most people know Adam is a Sydney Swans AFL player, a proud indigenous man and a prominent advocate on behalf of the Australian indigenous community.

The behaviour has certainly opened up significant debate about whether such behaviour is bullying fuelled by racism or if fans were heckling the player for other reasons, such as his on-field performance.

The AFL, various sportspersons, commentators – and even politicians have come out in support of Adam. Not surprisingly but most regrettably, Adam is said to be distressed and has been given indefinite leave from his playing duties.  The heartening support widely demonstrated by AFL crowds and others over the weekend will hopefully be sending Adam and the indigenous community a strong message of support.

The situation also highlights one of the key aspects of anti-discrimination law and the Racial Discrimination Act 1975 (Cth) (the RD Act) which has been generally overlooked in the debate so far – namely, that the claimed intention (or lack thereof) is irrelevant when it comes to considering whether racial discrimination has occurred. The law focuses on the perception of the recipient of the conduct and whether he or she finds the conduct discriminatory.   All of the responses to this situation claiming a lack of intention in the booing jeering crowds are misguided from the RD Act point of view.

The RD Act provides that direct and indirect discrimination, on the basis of race, colour, descent or national or ethnic origin is unlawful. However there is no requirement that the conduct be “intentional” to be racially discriminatory. Further, the RD Act also provides that where an action is done for multiple reasons, and where one of those reasons is because of a person’s race, then that action will be considered to have been done because of the person’s race.

Certainly for employers, the AFL saga serves as a reminder that discrimination – in any of its forms is unlawful and should not be tolerated in the workplace or in the wider community.

For more insight and information regarding State and Federal anti-discrimination legislation, be sure to subscribe to the Workplace Law e-updates – our August 2015 Employment Law e-update will have a special feature on racial discrimination and the obligations of employers.

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