Race is a group of people who regard themselves as having a particular historical identity in terms of their colour, or their racial, national or ethnic origins.
The Racial Discrimination Act 1975 (Cth) (the Racial Discrimination Act) provides that 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.
In determining cases about racial discrimination in employment under the Racial Discrimination Act, the Federal Court has held that the group with whom the complainant’s position is to be compared is not persons of the same race, colour, descent or national or ethnic origin as the complainant. Instead the comparison should be between persons of the same group as the complainant and members of other groups, regardless of whether or not those other groups are required to comply with the same condition.
To substantiate a complaint of racial discrimination under the Racial Discrimination Act, it is not sufficient for a person to show that he or she is of a different race, colour, descent, national or ethnic background and has suffered unfair treatment. He or she must show that the unfair treatment was based on, or sufficiently connected to, his or her race, colour, descent or national or ethnic background.