Workplace racism remains an entrenched issue in Australia despite the existence of a comprehensive legal infrastructure which is intended prevent it.   

The recent Gari Yala 2 report, found more than 50% of Indigenous employees surveyed experienced comments about the way they look or “should” look as an Aboriginal and Torres Strait Islander person. This has prompted renewed discussion about whether the current legal framework adequately addresses workplace racism and what reforms may be needed. This push has been bolstered by the federal government’s recent decision to launch an Inquiry into Racism, Hate and Violence Directed at Aboriginal and Torres Strait Islander People (the “Inquiry”).  

Existing protections and cultural drivers  

Australia’s legal infrastructure already prohibits racial discrimination and harassment. The Racial Discrimination Act 1975 (Cth) (“Racial Discrimination Act”) sets the baseline, while state-based Work Health and Safety (“WHS”) laws place a positive duty on employers to eliminate the risk of workplace racism (as a form of psychosocial hazard) for workers as far as is reasonably practicable. In addition to the federal protections, every state and territory has its own antidiscrimination legislation, which operates alongside the Racial Discrimination Act to prohibit racial discrimination and provide additional avenues for complaints and enforcement. 

Although this framework is comprehensive, it remains reactive. That is, the law (or legal consequences) will usually “step in” after racism has occurred. Compliance may reduce certain behaviours, but it does not (and arguably cannot) erase cultural or structural factors that allow racism to surface in everyday workplace interactions. This is because the law is not capable of preventing the beliefs, assumptions or biases that give rise to racism – it prevents the conduct which is actioned as a result of those beliefs. 

This is why certain individuals and organisations are seeking law reform that will ensure employers have a duty to prevent racism.  

Potential areas for future reform  

If legal reform emerges from the Inquiry, it likely to focus on proactive prevention. One possible reform could be introducing a positive duty to prevent racism under the Racial Discrimination Act. Similar to the positive duty to prevent sexual harassment recently introduced under the Sex Discrimination Act 1984 (Cth). Such a duty would align the antiracism framework with existing WHS obligations and shift the emphasis from addressing racism after it occurs to actively preventing it. 

A positive duty to prevent workplace racism would require employers to demonstrate they are taking meaningful, practical steps to identify and reduce cultural risks – not simply relying on policy documents or reactive investigations. 

What employers should be doing now 

Regardless of whether further reforms eventuate, it is clear that employers seeking meaningful change must move beyond mere compliance. Preventing workplace racism requires early intervention, not just structured responses after harm has occurred.  

While the law and policy have their inherent limitations – for example, policy is not capable of marshalling how one thinks – a legal framework which encourages a shift towards mandating forms of anti-racist education and cultural capability training for all employees is likely to decrease the incidence of workplace racism by challenging underlying beliefs which result in consequential behaviours. 

In particular, employers can take clear action to reduce workplace racism against Indigenous employees by: 

• investing in ongoing cultural capability training, delivered regularly and with input from Indigenous voices; 

• providing antiracism education aimed at understanding bias, stereotyping and the impact of race based assumptions; 

• ensuring leaders are accountable for fostering respectful culture, not merely enforcing compliance; 

• reviewing reporting pathways to ensure employees feel safe raising concerns about racism without fear of retaliation; and 

• engaging with employee feedback and survey data, including reports such as Gari Yala 2, to inform continuous improvement.