Commonwealth anti-discrimination law

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) (“AHRC Act”). 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’s website (www.humanrights.gov.au). In particular, search for the AHRC’s publication, Federal Discrimination Law 2016.

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 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), alleging unlawful discrimination.

Recent changes to the AHRC Act, which came into force on 12 April 2017, have changed how the AHRC handles complaints. Currently (30 June 2017), the practical ramifications of these changes are unknown; for updates, see the AHRC’s website (www.humanrights.gov.au).

A key change to the complaint process is that in addition to making an allegation of unlawful discrimination based on particular conduct, the complainant must now set out, as fully as practicable, 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 inquires into complaints and attempts to conciliate them. 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;

an inquiry or a continuation of an inquiry into the complaint is not warranted;

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;

the complaint could be more effectively or conveniently dealt with in another forum or by another statutory authority;

the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit Court.

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;

there is no reasonable prospect that the Federal Court or the Federal Circuit Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.

Under the 2017 amendments to the AHRC Act, complainants must seek the court’s leave (i.e. permission) before making an application 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 Court;

the President terminated the complaint because there was no reasonable prospect of the matter being settled by conciliation.

These courts can make an order declaring that:

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

the complainant be paid compensation;

the complainant be offered employment; or

the respondent carry out any reasonable act to redress the unlawful 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.

Representative complaints may also 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 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.


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 advance 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 prohibits sexual harassment in the areas where sex discrimination is unlawful generally (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, both 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 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. The Access to Premises Standards, and the Public Transport and 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 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 b