Unearthing Language Rights Protections in the Racial Discrimination Act 1975 (Cth)

Abstract

The Racial Discrimination Act 1975 (Cth) (‘RDA’) has been ineffective at preventing discrimination based on language. Australian courts have adopted narrow approaches to deny language-based claims by misconstruing the relationship between language and racial discrimination. These approaches portray language as an individual characteristic, subject language rights to proportionality analysis, require the positive existence of a language right, or narrow the scope of rights protected by the RDA to exclude language claims. This article argues that these denials have no basis. Historically, the use of language as a proxy for race has been a means of effecting exclusionary policies which fail to defend against racial and linguistic discrimination. Recognition of these dimensions of language supports the deconstruction of the doctrinal arguments which have been deployed to deny protection from racial discrimination in the context of language.