The Law Handbook 2024

1004 Section 11: Rights, activism and fair treatment at work The RDAct contains very limited exceptions. ‘Special measures’ taken to advance a disadvantaged racial group (this is also called ‘positive discrimination’) are not unlawful discrimination (s 8(1)). Sex Discrimination Act The Sex Discrimination Act 1984 (Cth) (‘ SD Act ’) deals with direct and indirect discrimination on the grounds of sex, marital or relationship status, pregnancy, potential pregnancy, breastfeeding, sexual orientation, gender identity and intersex status. Discrimination is unlawful in a broad range of areas of public life, including work, education, goods, services, facilities, accommodation, land dealings, clubs, and the administration of Commonwealth laws and programs. The SD Act also prohibits direct discrimination in employment on the grounds of family responsibilities. The SD Act prohibits sexual harassment and harassment on the grounds of sex (or ‘sex-based harassment’) in the areas where sex discrimination is unlawful generally (div 3). It also prohibits subjecting a person to a workplace environment that is hostile on the ground of sex. The harassment provisions are broad. They cover all harassment that occurs in connection with a person being an employer, a ‘person conducting a business or undertaking’, an employee, or a worker, and not necessarily only during work hours or at a workplace. They apply to all paid and unpaid workers including contract workers, interns, apprentices, volunteers and those who are self-employed. The harassment provisions also apply to public servants at all levels of government, members of state and federal parliament, parliamentary staff, and judges and their staff members and consultants. In educational settings, students and staff are protected from harassment by adult students (people over 16) and staff from their own educational institution and other educational institutions (s 28F). Amendments to the SD Act in December 2022 introduced a ‘positive duty’ on organisations and businesses to take reasonable and proportionate steps to eliminate, as far as possible: • discrimination on the ground of sex in a work context; • sexual harassment in connection with work; • sex-based harassment in connection with work; • conduct creating a workplace environment that is hostile on the ground of sex; and • related acts of victimisation. From 12 December 2023, the AHRC will have the power to enforce compliance with the positive duty. Under the SD Act: • it is an offence to publish or display an advertisement that indicates an intention to discriminate (s 86); • it is unlawful to cause, instruct, induce, aid or permit others to discriminate (s 105); • it is unlawful to request information to discriminate against a person where the information would not be sought in the same circumstances from a person of a different sex, a different sexual orientation, a different gender identity, with a different marital or relationship status, who is not pregnant or not breastfeeding, who is not of intersex status, or who is without family responsibilities (s 27); and • an employer or principal may be liable for the discriminatory acts of their employees or agents unless they can show they took all reasonable steps to stop the employee or agent doing the act (s 106). The SD Act contains a range of exemptions, including for charities, religious bodies, voluntary bodies and sport. It is not unlawful to take special measures (also called ‘positive discrimination’) for the purpose of achieving substantive equality for people with attributes covered by the SD Act (s 7D). Disability Discrimination Act The Disability Discrimination Act 1992 (Cth) (‘ DD Act ’) deals with discrimination on the grounds of a person’s disability. The DD Act makes direct and indirect discrimination on the ground of disability unlawful in work, access to premises, the provision of accommodation, education, the administration of Commonwealth laws and programs, and the provision of goods, services and facilities, as well as in other areas of public activity. The DD Act also contains an obligation to make reasonable adjustments for a person’s disability. It is not necessary to make an adjustment if it would impose ‘unjustifiable hardship’ on the person making the adjustment (ss 21B, 29A). The DD Act also prohibits discrimination against associates (e.g. a spouse, co-habitant, relative, carer, or