Commonwealth antidiscrimination law

• Key Acts and the Australian Human Rights Commission

  The four main Commonwealth anti-discrimination Acts are the:

  • RD Act;

  • SD Act;

  • DD Act;

  • AD Act;

  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 or relationship status, family responsibilities, breastfeeding, sexual orientation, gender identity, or intersex status.

  Complaints of unlawful discrimination can be made to the 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 (www.humanrights.gov. au). In particular, search for the AHRC’s publication, Federal Discrimination Law 2016.

• Complaint handling by the Australian Human Rights Commission

  Complaints of unlawful discrimination lodged under the RD  Act, SD  Act, DD  Act and AD  Act are handled under Part IIB of the AHRC Act.

  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), who is 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 may inquire into complaints and attempt 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 has been lodged outside of the prescribed time:

    • if the alleged unlawful discrimination took place before 13 December 2022, the complaint must have been lodged within six months after the alleged unlawful discrimination took place, unless the complaint relates to sex discrimination, in which case the complaint must have been lodged within 24 months after the alleged discrimination took place;

    • if the alleged unlawful discrimination took place on or after 13 December 2022, the complaint must have been lodged within 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; or

  • 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 must terminate 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; or

  • 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 bringing a case 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; or

  • 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 directing the respondent not to repeat or continue the unlawful discrimination;

  • requiring the respondent to pay compensation to the applicant;

  • requiring the respondent to employ or re-employ the applicant; or

  • requiring the respondent to redress relevant loss or damage suffered by the applicant.

  Applications to the Federal Court or the Federal Circuit and Family Court of Australia must be made within 60 days after the date of issue of the notice to the complainant advising that the President has terminated 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 AHRC Act s 46PB).

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

  NOTE

  It is unlawful, and 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 to the AHRC. This is referred to as ‘victimisation’ (see RD Act ss 18AA, 27(2); SD Act ss 47A, 94(2); DD Act ss 42(2), 58A; AD Act ss 47A, 51(1)).

• Racial Discrimination Act

  The RD Act prohibits discrimination based on race, colour, descent, national or ethnic origin, and in some circumstances, immigrant status. The RD Act contains a 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; and employment, including the right to join a trade union.

  The RD Act 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 (s 18C).

  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

  The 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 selfemployed. 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).

  Since December 2022, organisations and businesses have a ‘positive duty’ 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.

  The AHRC has recently produced a range of resources to educate organisations to understand their obligations under the SD Act, including guidelines, factsheets, e-learning courses, research reports and more, all available on the website www.humanrights.gov.au.

  The AHRC has 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 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 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 2 div 3). It is also unlawful to discriminate against someone because they have a carer, an assistant, 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 Access to Premises Standards, the Public Transport Standards, and the Education Standards are currently in operation.

  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 at www.humanrights.gov.au.

  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 disability, or to meet the special needs of people with disability (s 45).

• Age Discrimination Act

  The 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, and the administration of Commonwealth laws and programs, as well as 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 (remuneration for persons aged under  21) (s  25), charities, voluntary and religious bodies, and 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).

Commonwealth antidiscrimination law

Chapter: 11.1: Discrimination and human rights

Contributor: Kristina Hoel, Legal and Policy Officer, Victorian Equal Opportunity and Human Rights Commission; Melissa De Abreu, Senior Lawyer, Australian Human Rights Commission

Current as of: 1 September 2024

Law Handbook Page: 909

Next Section: Other human rights protection