Discrimination

 

There is considerable overlap between Commonwealth and state laws prohibiting various kinds of discrimination. For general discussion about discrimination laws, and complaints procedures, see Discrimination and human rights.

In general, Australian laws prohibit discrimination on the basis of race, sex, impairment (bodily, psychological or emotional disorder), lawful sexual activity, sexual orientation, gender identity, political or religious belief, industrial activity, marital status or status as a parent or carer. None of the Acts (except the Racial and Religious Tolerance Act 2001 (Vic)) make discrimination a criminal offence; instead they enable the parties to resolve their dispute by conciliation. If it is impossible to resolve the dispute by conciliation, an appropriate anti-discrimination tribunal (such as the Victorian Human Rights and Equal Opportunity Commission (VHREOC) or Australian Human Rights Commission (AHRC) may arbitrate on the issue. See Discrimination and human rights, for further information about the Australian and Victorian commissions.

Australia is also a signatory to international agreements in this area; seeUN Convention on the Rights of the Child” in Young people’s rights and responsibilities.

The Equal Opportunity Act 2010 (Vic) (“EO Act”) defines discrimination as “direct or indirect discrimination on the basis of which discrimination is prohibited in the areas of activity:

age;

employment activity;

gender identity;

impairment or disability; (including physical, sensory and intellectual disability, work related injury, medical conditions, and mental, psychological and learning disabilities);

industrial activity;

lawful sexual activity;

marital status;

physical features;

political belief or activity;

pregnancy and breastfeeding;

race;

religious belief or activity;

sex;

sexual orientation;

status as a carer or parent;

personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes”.

It is also against the law to sexually harass someone, or to vilify someone because of their race or religion or victimise someone because they made a compliant under the discrimination laws of the state. The EO Act describes victimisation as “subjecting, or threatening to subject, someone to something detrimental because they have asserted their rights under equal opportunity law, made a complaint, helped someone else to make a complaint, or refused to do something because it would be discrimination, sexual harassment or victimisation”.

The EO Act prohibits both direct and indirect discrimination. A school may directly discriminate between pupils if, for example, it offers home economics, secretarial studies or hairdressing courses only to girls, and woodwork, carpentry, computer studies or photography only to boys.

A school may indirectly discriminate between pupils if it has policies that on the surface seem fair but result in treating some people less favourably than others. For example, a school policy that winter school uniform for girls is a woollen skirt (but not trousers) may discriminate against students with health problems (such as arthritis) and pupils from some religious backgrounds.

For example, in Christian Family Schools Association of Australia v Public Transport Corporation [1990] EOC 92–300, a policy granting transport concessions to children approved by the Ministry of Education was held to indirectly discriminate against a child who was educated at home because of his father’s religious beliefs.

In Girton Grammar School Ltd v Cope (“Haircut Case”) [1995] VicSC 262, a male student was suspended from school because he refused to comply with school’s uniform policy. The policy required boys to have hair not longer than collar length, but that requirement did not apply to girls. The Victorian Equal Opportunity Board found that the boy was discriminated against and on appeal the decision was upheld by the higher court.

Victoria amended the EO Act to provide that education authorities may discriminate against pupils in co-educational schools (in both the public and independent school systems) if they apply different standards of appearance, behaviour or dress code. There are instances where pupils challenged the school policy on specific hair length for boys and girls and wearing jewellery, including religious symbols, in schools.

In 2002, a student in an elite non-government school in Melbourne sued the school alleging that he suffered discrimination at school because of his sexuality. He alleged that school staff told him that he had the “devil in him” and he suffered bullying from his class mates, so much so that the principal advised him to hide his sexuality. His “invisibility”, he alleged, would offer him the protection he needed at school.

Schools are liable not only for their acts of discrimination but also for the acts or omissions of their staff such as teachers, school counsellors, welfare officers, sports instructors, general staff and volunteers. It is unlawful to victimise someone who has, or is likely, to make a complaint of discrimination.

Permissible discrimination

While the EO Act prohibits discrimination against someone because of their specific personal characteristics, it also recognises that discrimination may be justified in certain circumstances. EO contains general and specific exceptions to the legal requirement of compliance with the law. For further information search on “exceptions” at www.humanrightscommission.vic.gov.au.

For example, it is lawful to establish and run schools for:

a single sex (exclusive boys’ or girls’ schools, or a women’s college);

pupils with disabilities (special schools for children with intellectual disabilities, hearing or speech impairments);

a particular religious faith (e.g. Islamic schools); or

a particular racial group (Aboriginal and Torres Strait Islander students or Maori students in New Zealand).

It is lawful for schools to set and enforce reasonable standards of dress, appearance or behaviour of pupils. It is also a lawful exemption under the Victorian EO Act for:

Religious bodies and religious schools can discriminate on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, martial status, parental status or gender identity where the discrimination conforms to the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of people who follow the religion …

The term “reasonably necessary” requires an objective assessment of whether discrimination is necessary.*

*As stated on the VHREOC website at www.humanrightscommission.vic.gov.au; see the website for more information on this and other exemptions.

Under Commonwealth laws, educational authorities may refuse to admit students to their educational and training programs if it will create “unjustifiable hardship” to the organisation.

In Victoria, discrimination in education on the grounds of impairment is permissible where necessary facilities cannot reasonably be provided.

In 2005, the Commonwealth Government introduced the Disability Standards for Education. These standards provide clear guidelines for schools regarding their obligations under Australia’s disability discrimination laws. The standards set out reasonable steps schools should take to ensure that students with disabilities are provided with opportunities to realise their full potential. SeeEducation” in Understanding disability and the law.

Schools can bypass the Disability Standards if confirming with them would cause “unjustifiable hardship” for them. The fact that a school has to spend extra money to accommodate the disabled pupil’s needs would not necessarily seen as an unjustifiable hardship by courts.

The Disability Standards and accompanying guidance notes are available at www.education.gov.au – search on “Disability standards” and “Guidance notes”

There is considerable case law on the issue of discrimination, both under the Commonwealth and state legislation. See, for example, Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; L v Minister for Education [1996] QADT 2; Leighton v Victoria [2000] VCAT 416; and Zygorodimos v Department of Education & Training [2004] VCAT 128.

For more information, see Understanding disability and the law.

Making a complaint

It is not possible to make a complaint under both Commonwealth and state anti-discrimination legislation. It is advisable to check with VHROC before lodging a complaint of discrimination.

Victorian Equal Opportunity and Human Rights Commission

Level 3, 204 Lygon Street, Melbourne Vic 3053

Tel: 1300 891 848

TTY: 1300 289 621

Email: information@veohrc.vic.gov.au

Web: www.humanrightscommission.vic.gov.au

From 1 March 2003 complaints of discrimination under the Commonwealth Racial Discrimination Act 1975 (Cth), Disability Discrimination Act 1992 (Cth) and Sex Discrimination Act 1984 (Cth) cannot be lodged with the Victorian Equal Opportunity and Human Rights Commission. Complaints under these Acts should be made to:

Australian Human Rights Commission

Complaints Department

GPO Box 5218, Sydney NSW 2001

Tel: (02) 9284 9600; 1300 656 419

TTY: 1800 620 241

Email: infoservice@humanrights.gov.au

Web: www.humanrights.gov.au

For more information about anti-discrimination law and making a complaint, see Discrimination and human rights.