Discrimination and human rights is a complex area. Separate Commonwealth and state legislation sets out people’s rights and duties, and government agencies administer the law that protects people’s human rights and work rights in Victoria.

Contributors

Christina Hey-Nguyen

Australian Human Rights Commission

Gabby Watson-Munro

Victorian Equal Opportunity and Human Rights Commission

Commonwealth anti-discrimination law

Last updated

1 July 2021

Key Acts and the Australian Human Rights Commission

The four main Commonwealth anti-discrimination Acts are the:

  • Racial Discrimination Act 1975 (Cth);
  • Sex Discrimination Act 1984 (Cth);
  • Disability Discrimination Act 1992 (Cth); 
  • Age Discrimination Act 2004 (Cth).

In September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) was enacted. This Act amended the SD Act and the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’). Amendments to their Acts are reflected in this chapter.

Generally, discrimination is when a person, or a group of people, is treated less favourably than another person or group because of certain personal characteristics, such as race, disability, age, sex, pregnancy, marital status, family responsibilities, breastfeeding, sexual orientation, gender identity, or intersex status.

Complaints of discrimination can be made to the Australian Human Rights Commission (AHRC) under the AHRC Act.

The AHRC investigates discrimination complaints and attempts to settle them by conciliation. Complainants may apply for their complaint to be filed and heard in the Federal Court or the Federal Circuit and Family Court  of Australia if a complaint cannot be resolved by the AHRC.

For more information about federal discrimination law, visit the AHRC’s website. In particular, refer to the AHRC’s publication, Federal Discrimination Law 2016.

Complaint handling by the Australian Human Rights Commission

Complaints lodged under the following Acts are handled in the same way under Part IIB of the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’):

  • Racial Discrimination Act 1975 (Cth);
  • Sex Discrimination Act 1984 (Cth);
  • Disability Discrimination Act 1992 (Cth); 
  • Age Discrimination Act 2004 (Cth).

Complaints must be in writing and must be lodged by, or on behalf of, the person aggrieved (i.e. the person who claims to have been discriminated against), alleging unlawful discrimination.

The complaint must make an allegation of unlawful discrimination based on particular conduct and, as fully as practicable, set out the details of the alleged acts, omissions or practices. It must also be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination.

The President of the AHRC enquires into complaints and attempts to conciliate them.

The AHRC will usually provide a copy of the complaint (excluding contact details) to the person or organisation that is alleged to have acted unlawfully. 

The President may terminate (i.e. discontinue) a complaint if they are satisfied that:

  • the complaint does not involve unlawful discrimination;
  • the complaint was lodged more than six months after the alleged unlawful discrimination took place; that is, unless the complaint relates to sex discrimination, in which case, the complaint may be terminated if it was lodged more than 24 months after the alleged unlawful discrimination took place; 
  • after considering all the circumstances, an inquiry or continuation of an inquiry into the complaint is not warranted;
  • another remedy has already been sought in relation to the subject matter of the complaint, and the complaint has already been adequately dealt with;
  • the complaint involves subject matter that has already been adequately dealt with by the AHRC or another statutory body;
  • the complaint can be satisfied by some other more appropriate remedy that is reasonably available;
  • the complaint could be more effectively or conveniently dealt with by another statutory authority;
  • the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit and Family Court of Australia.

The President mustterminate a complaint if they are satisfied that:

  • the complaint is trivial, vexatious, misconceived or lacking in substance;
  • there is no reasonable prospect of the matter being settled by conciliation;
  • there is no reasonable prospect that the Federal Court or the Federal Circuit and Family Court of Australia would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.

Under the AHRC Act, complainants must seek the court’s leave (i.e. permission) before applying to the court alleging unlawful discrimination. There are two exceptions to this requirement; where:

  • the President terminated the complaint because the subject matter involves a significant issue of public importance that should be considered by the Federal Court or the Federal Circuit and Family Court of Australia;
  • the President terminated the complaint because there was no reasonable prospect of the matter being settled by conciliation.

In these two circumstances, the complainant is not first required to seek the court’s leave.

If the court is satisfied there has been unlawful discrimination, it can make any orders it sees fit, including any of the following orders:

  • declaring that the respondent has committed unlawful discrimination and must not repeat or continue the unlawful discrimination;
  • requiring the respondent to pay compensation to the complainant;
  • requiring the respondent to employ or re-employ the complainant; or
  • requiring the respondent to carry out any reasonable act to redress any loss or damage suffered by the complainant because of the unlawful discrimination.

Applications to the Federal Court or the Federal Circuit and Family Court of Australia must be made within 60 days after the date on which the President terminates the complaint.

Representative complaints may also be lodged with the AHRC when the complaint concerns a substantial common issue affecting a class of people (see s 46PB AHRC Act).

Note that where an offer to settle is made by the complainant or respondent, and this offer is rejected by either party, the court may consider this offer in determining whether to award costs.

It is an offence to disadvantage a person because they have made, or propose to make, a complaint of discrimination or provided information in connection with a complaint.

This is referred to as ‘victimisation’ (see s 27(2) Race Discrimination Act 1975 (Cth); ss 47A, 94 Sex Discrimination Act 1984 (Cth); s 42 Disability Discrimination Act 1992 (Cth); s 51 Age Discrimination Act 2004 (Cth)).

Racial Discrimination Act 1975 (Cth)

The Racial Discrimination Act 1975 (Cth) (‘RD Act’) prohibits discrimination based on:

  • race;
  • colour;
  • descent;
  • national or ethnic origin;
  • in some circumstances, immigrant status.

The RD Act contains a general prohibition on both direct and indirect racial discrimination (s 9) and a general protection of equality before the law, which can invalidate discriminatory laws (s 10).

In addition to the general prohibition on racial discrimination, discrimination is unlawful in the following areas:

  • land, housing and other accommodation;
  • the provision of goods and services;
  • access to places and facilities;
  • employment, including the right to join a trade union.

The RD Act (s 18C) also prohibits racial hatred (also called ‘racial vilification’), which is doing something in public based on the race, colour, national or ethnic origin of a person, or group of people, that is likely to offend, insult, humiliate or intimidate.

Under the RD Act:

  • it is unlawful to publish or display an advertisement that indicates an intention to discriminate (s 16) or to incite others to discriminate (s 17); and
  • an employer or principal may be liable for the discriminatory acts of their employees or agents unless they can show that they took all reasonable steps to stop the employee or agent doing the act (ss 18A, 18E).

The RD Act 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 1984 (Cth)

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;
  • intersex status.

Discrimination is unlawful in a broad range of areas of public life, including:

  • work;
  • education;
  • goods;
  • services;
  • facilities;
  • accommodation;
  • housing;
  • land dealings;
  • clubs;
  • the administration of Commonwealth laws and programs.

The SD Act also prohibits direct discrimination in employment on the ground of family responsibilities.

The SD Act (div 3) prohibits sexual harassment and harassment on the grounds of sex (or ‘sex-based harassment’) in the areas where sex discrimination is unlawful generally. The harassment provisions are broad.

In the workplace, the harassment provisions cover all harassment that occurs in connection with a person being an employer or employee, not necessarily during work hours or at a workplace. They apply to all paid and unpaid ‘workers’ and ‘persons conducting a business or undertaking’ , 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).

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 are not pregnant or not breastfeeding, who are not of intersex status, or who are 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 (pt II div 4) contains a range of exemptions, including for:

  • charities;
  • religious bodies;
  • voluntary bodies;
  • sport and combat duties.

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 1992 (Cth)

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:

  • at work;
  • in the access to premises;
  • in the provision of accommodation;
  • in education;
  • in the administration of Commonwealth laws and programs;
  • in the provision of goods, services and facilities;
  • in other areas of public activity.

The DD Act (ss 21B, 29A) 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.

The DD Act also prohibits discrimination against associates (e.g. a spouse, co-habitant, relative, carer, or a person who is in a business, sporting or recreational relationship with the person) of people with disabilities (s 7) and prohibits disability harassment (pt II div 3).

It is also unlawful to discriminate against someone because they have a carer, use an assistance animal or have a disability aid (s 8).

The minister can formulate standards applicable to the areas of public life covered by the DD Act (s 31(1)). Disability Standards provide assistance to comply with the DD Act by specifying in greater detail the steps that should be taken to ensure that the general requirements of the DD Act are met. The following Disability Standards are currently in operation:

  • Access to Premises Standards;
  • Public Transport Standards;
  • Education Standards.

It is unlawful to fail to comply with a Disability Standard (s 32); compliance with the relevant standard equates to compliance with the DD Act itself (s 34). Further information about the Transport, Education and Premises Disability Standards can be found on AHRC’s website.

Under the DD Act:

  • it is an offence to publish or display an advertise­ment that indicates an intention to discriminate (s 44) and it is unlawful to incite others to discriminate (s 43);
  • it is unlawful to cause, instruct, induce, aid or permit others to discriminate (s 122);
  • it is unlawful to request information to discriminate against a person where that information would not be requested of people without the disability in the same circumstances or where the information relates to the person’s disability (s 30). This does not apply where a person can show that they did not request the information for the purpose of discriminating against the other person on the ground of their disability (s 30(3)); and
  • an employer or principal may be liable for the discriminatory acts of their employees or agents unless they can show that they took reasonable precautions to stop the employee or agent doing the act (s 123).

The DD Act contains a range of exemptions, including for charities, and in the areas of migration, superannuation and insurance (pt 2 div 5).

It is not unlawful to take special measures (also called ‘positive discrimination’) to ensure equal opportunities exist for people with a disability, or to meet the special needs of people with a disability (s 45).

Age Discrimination Act 2004 (Cth)

The Age Discrimination Act 2004 (Cth) (‘AD Act’) addresses age discrimination in many areas of public life.

The AD Act makes direct and indirect discrimination on the ground of age unlawful in:

  • work;
  • education;
  • accommodation;
  • the provision of goods, services and facilities;
  • access to premises;
  • the administration of Commonwealth laws and programs;
  • in other areas of public activity.

Under the AD Act:

  • it is an offence to publish or display an advertise­ment that indicates an intention to discriminate (s 50) and it is unlawful to cause, instruct, aid or permit others to discriminate (s 56);
  • it is unlawful to request information to discriminate against a person where that infor­mation would not be requested of persons of a different age in the same circumstances (s 32); and
  • an employer or principal may be liable for the discriminatory acts of their employees or agents unless they can show that they took reasonable precautions to stop the employee or agent doing the act (s 57).

The AD Act contains a range of exemptions, including for:

  • youth wages (s 25);
  • charities;
  • voluntary bodies;
  • religious bodies;
  • in the areas of migration, superannuation and insurance (pt 4 div 4).

The AD Act also contains a wide exemption for ‘positive discrimination’, covering acts that:

  • provide a ‘bona fide benefit’ to persons of a particular age;
  • are intended to meet a need of persons of a particular age; or
  • are intended to reduce a disadvantage experienced by people of a particular age (s 33).

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