Commonwealth discrimination Acts

The Australian Human Rights Commission receives complaints, including representative complaints, under federal discrimination law in the areas of race, sex, disability and age. Complaints are investigated and may be conciliated. It is an offence to victimise a complainant. The Federal Court or the Circuit Court can make declarations and a range of appropriate orders. There are time limits for applications.

Key Acts and the Australian Human Rights Commission

The four main Commonwealth anti-discrimination Acts are the:

Racial Discrimination Act 1975 (“RDA”);

Sex Discrimination Act 1984 (“SDA”);

Disability Discrimination Act 1992 (“DDA”); and

Age Discrimination Act 2004 (“ADA”).

Complaints of discrimination can be made to the Australian Human Rights Commission (AHRC), under the Australian Human Rights Commission Act 1986 (Cth) (“AHRCA”). The AHRC investigates complaints and attempts to settle them by conciliation. Complaints that cannot be resolved by the AHRC can be heard in the Federal Court or Federal Circuit Court.

For more information about federal discrimination law, visit the AHRC website at www.humanrights.gov.au (click on “Our Work”, then “Legal”).

Complaint handling by the AHRC

Complaints lodged under the RDA, SDA, DDA and ADA are handled in the same way under part IIB of the AHRCA. 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).

The president of the AHRC inquires into complaints and, if it is considered appropriate to do so, attempts to conciliate them. The president may terminate (i.e. discontinue) a complaint if they are satisfied that the complaint:

does not involve discrimination;

was lodged more than 12 months after the alleged unlawful discrimination took place;

is trivial, vexatious, misconceived or lacking in substance;

involves subject matter that has already been adequately dealt with by the AHRC or another statutory body;

can be satisfied by another more appropriate remedy;

would be more appropriately resolved in another forum or by another statutory authority;

involves subject matter that would be more appropriately dealt with by the Federal Court of Australia or the Federal Circuit Court; or

has no reasonable prospect of being resolved by conciliation.

The president’s reason for termination does not affect the legal rights of the parties. Once a complaint is terminated on any ground, a complainant may apply to the Federal Court or to the Federal Circuit Court to have their allegation(s) heard and determined (s 46PO AHRCA).

These courts can make an order declaring that:

the respondent has committed discrimination and must not repeat or continue the discrimination;

the complainant be paid compensation;

the complainant be offered employment (where the complaint is related to an offer of employment or any other order that redresses the discrimination).

Applications to the Federal Court or the Federal Circuit Court must be made within 60 days of the date on which the president terminates the complaint.

The AHRCA also permits representative complaints to be lodged when the complaint concerns a substantial common issue affecting a class of people (for the conditions for lodging a representative complaint, see s 46PB AHRCA).


NOTE

It is an offence to disadvantage a person because they have made 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); s 94 Sex Discrimination Act 1984 (Cth); s 42 Disability Discrimination Act 1992 (Cth); s 51 Age Discrimination Act 2004 (Cth)).


Racial Discrimination Act

The Racial Discrimination Act 1975 (Cth) (“RDA”) prohibits discrimination based on race, colour, descent, national or ethnic origin, and in some circumstances, immigrant status. It contains a general prohibition on racial discrimination (s 9) and also a general protection of equality before the law, which can have the effect of invalidating discriminatory state laws (s 10).

Discrimination is unlawful in the areas of 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 RDA also prohibits “racial vilification”, which is described in the RDA as “offensive behaviour based on racial hatred” (pt IIA).

Under the RDA:

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 RDA contains very limited exceptions. “Special measures” taken to benefit a disadvantaged racial group are not unlawful discrimination (s 8(1)).

Sex Discrimination Act

The Sex Discrimination Act 1984 (Cth) (“SDA”) 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 the areas of work, education, goods, services and facilities, accommodation, disposal of land, clubs, and the administration of Commonwealth laws and programs. The SDA also prohibits direct discrimination on the ground of family responsibilities in the area of employment and against commission agents, contract workers and by qualifying bodies and employment agencies.

The SDA also prohibits sexual harassment in the areas mentioned above (div 3). The sexual harassment provisions are broad. In the workplace they apply to all “workplace participants”, including commission agents and contract workers (s 28B).

In educational settings, students are protected from harassment by adult students (persons over 16) and staff of their own educational institution. Students are also protected from sexual harassment by staff and adult students of another educational institution if the harassment occurs in connection with the harasser being a member of staff or student from the other educational institution. Staff members of educational institutions are protected from harassment by adult students of their institution. They are also protected from harassment by students of another educational institution if the harassment occurs in connection with the harasser being a student at their own educational institution (s 28F).

Under the SDA:

it is an offence to publish or display an advertisement that indicates an intention to discriminate (s 86) and 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 from persons of a different sex, of a different sexual orientation, of a different gender identity, of a different marital or relationship status, who are not pregnant, who are not breastfeeding, who are not of intersex status, or who are without family responsibilities in the same circumstances (s 27); 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 (s 106).

The SDA contains a range of exemptions, including for charities, religious bodies, voluntary bodies, sport and combat duties (pt II div 4). It is not unlawful to take special measures to achieve substantive equality (s 7D).

Disability Discrimination Act

The Disability Discrimination Act 1992 (Cth) (“DDA”) deals with discrimination on the grounds of a person’s disability. The DDA makes direct and indirect discrimination on the ground of disability unlawful in work, access to premises, 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 DDA also contains an obligation to make reasonable adjustments for a person’s disability. It is not necessary to make an adjustment that would impose “unjustifiable hardship” on the person making the adjustment.

The DDA also prohibits discrimination against associates 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 DDA (s 31(1)). Disability Standards provides assistance to comply with the DDA by specifying in greater detail the steps that should be taken to ensure that the general requirements of the DDA are met. Access to Premises Standards commenced on 1 May 2011. Public Transport and Education Standards are also 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 DDA itself (s 34). Further information about the Transport, Education and Premises Disability Standards can be found at www.humanrights.gov.au.

Under the DDA:

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 DDA 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 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

The Age Discrimination Act 2004 (Cth) (“ADA”) addresses age discrimination in many areas of public life. The ADA 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 as well as in other areas of public activity.

Under the ADA:

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 ADA contains a range of exemptions, including for youth wages (s 25), charities, voluntary and religious bodies, and in the areas of migration, superannuation and insurance (pt 4 div 4).

The ADA 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).