- What is discrimination?
- Areas of discrimination
- Sexual harassment
- Racial and religious vilification
- Other types of conduct people may complain about
- When is discrimination allowable?
- Victorian Equal Opportunity and Human Rights Commission
- The Anti-Discrimination List of VCAT
- Investigations by the VEOHRC and VCAT where no individual complaint is made
The EO Act is the primary anti-discrimination legislation in the Victorian jurisdiction. Complaints of discrimination and sexual harassment can be lodged under the EO Act. The RRTA makes it possible to lodge a complaint about racial and religious vilification.
Note: Unless otherwise indicated, all references to specific sections of legislation are to sections of the EO Act.
The EO Act protects certain attributes. It is unlawful to discriminate against someone on the basis of any of the following:
- sex;
- pregnancy;
- breastfeeding;
- marital status (married, same-sex or heterosexual domestic partnership, single, separated, divorced or widowed);
- race (colour, nationality, ethnic or national origin, descent or ancestry);
- impairment or presumed/imputed impairment (including physical, intellectual or psychological disabilities and diseases);
- age;
- industrial activity (e.g. being or not being a member, joining or refusing to join, an industrial organisation/association, or participating or not participating in a lawful activity organised or promoted by an industrial organisation/association, or representing or advancing the views of members of an industrial organisation/association);
- political belief or activity;
- lawful sexual activity;
- sexual orientation;
- gender identity;
- physical features (a person's height, size or other bodily characteristics);
- religious belief or activity;
- status as a parent or carer;
- personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes; and
- employment activity (either making a reasonable request to an employer for information regarding his/her entitlements or expressing concern that some employment entitlements have not, or will not, be received).
Note: Since 1 September 2008 amendments to the EO Act have made it unlawful for employers to unreasonably refuse to accommodate the responsibilities that a person has as a parent or carer in working arrangements. Further information is available from the VEOHRC website at www.humanrightscommission.vic.gov.au.
Both direct and indirect discrimination are unlawful under the EO Act.
Direct discrimination: This occurs when a person with a particular attribute is treated (or proposed to be treated) less favourably than a person without that attribute, in the same or similar circumstances. For example, someone may say "women cannot handle stress, so you can't have the job".
Indirect discrimination: This may be more subtle, and happens when an unreasonable requirement, condition or practice is imposed in a particular situation (such as seeking a job) and it is more difficult for people with a particular attribute to comply with the condition than it is for people without that attribute. For example, a requirement that a person be at least 175 cm tall in order to work in a particular job may be indirectly discriminatory against women and/or people of certain ethnic backgrounds, unless being that height is crucial to performing the duties of the job.
Not all acts of discrimination are unlawful, only those in the following areas.
- Employment: Including hiring, terms and conditions of employment, denial of promotion or training, access to programs and dismissal, as well as subjecting an employee or contract worker to any detriment. This area includes the engagement of contract workers, in firms with five or more partners entering into a partnership, joining trade or professional organisations, the activities of employment agencies and the requirements of qualifying bodies (ss.13–15 & 30–36).
- Educational authorities: Including schools, colleges, universities or other educational institutions (s.37).
- Goods and services: Including credit, finance, insurance, entertainment, recreation, hospitality, transport, travel, services of a profession or trade, access to public places, and services of a public or local government authority or government department (ss.4 & 42).
- Accommodation: Such as renting flats, houses, units, motels/hotels, caravans, business accommodation, mobile homes or camping sites (s.49).
- Clubs and club members: For example, membership, access to facilities etc. The EO Act only applies to those clubs that are on Crown land or receive direct or indirect financial assistance from the state government or a local council (ss.59–60).
- Disposal of land.
- Sport: Including refusing or failing to select another or excluding another from participating or competing in a sporting activity.
- Local government: A councillor against another councillor or member of a council committee.
Sexual harassment means an unwelcome sexual advance, an unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated (s.85). It includes a range of activities, for example: dirty jokes, touching, kissing, using computer screen savers or placing pictures on the walls with sexually explicit images, and sending emails or SMS messages with sexually explicit content (s.85).
Part 5 of the EO Act prohibits sexual harassment in the areas of employment, provision of goods and services, accommodation, clubs and local government.The Act also prohibits sexual harassment in relation to industrial organisations, qualifying bodies, partnerships and educational institutions.
Sexual harassment in employment also includes harassment of job applicants, between co-workers and in common workplaces. A common workplace refers to any place where a person attends for the purposes of carrying out any function(s) in relation to their employment, occupation, business, trade or profession and need not be the person's principal place of business or employment. It is not necessary for both parties to be employed by the same employer, provided the harassment occurs in a place that is a workplace of both of them (s.87).
Employers may be vicariously liable for sexual harassment conducted by any employees or agents (s.102) unless they can demonstrate that they took reasonable precautions to prevent the harassment from occurring (s.103).
The RRTA makes it unlawful to vilify a person on the grounds of race or religion, subject to the exceptions outlined below. Complaints of vilification are handled under the provisions of the EO Act.
Racial vilification is conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of an individual or a class of people because of their race, colour, descent, ancestry, nationality or national origin, ethnicity or ethnic origin.
Religious vilification is conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, an individual or a class of people because of their religious beliefs or activities.
The RRTA sets out a number of circumstances (exceptions) in which conduct does not amount to vilification. These include conduct engaged in reasonably and in good faith in the performance, exhibition or distribution of an artistic work, in making or publishing a fair and accurate report of any event or matter of public interest, or in the course of any statement, publication, discussion or debate about:
- any genuine academic, artistic, religious or scientific purpose; or
- an issue in the public interest.
The meaning of "religious purpose" includes "conveying or teaching a religion or proselytising" (see: s.11 RRTA).
Certain private conduct is also exempted from the RRTA. Racial and religious vilification is not established if it occurred in such a way that it would be reasonable to expect that the parties' conduct was private (that is, it could not be heard or seen by anyone else). If the parties ought to have expected that their conduct may have been seen or heard by anyone else the private conduct exception does not apply (s.12 RRTA).
A person's motive for engaging in vilifying conduct is irrelevant under the RRTA.
The RRTA also provides criminal sanction for serious racial and religious vilification offences involving intentional conduct. The penalties include six months imprisonment or 60 penalty unit or both for individuals, and 300 penalty units in the case of a body corporate.
Enquiries or complaints about racial or religious vilification under the RRTA may be made to the VEOHRC (see: "Introduction", for contact details).
A person must not victimise another person (subject or threaten to subject the other person to any detriment) because the person or someone the person is associated with has either:
- made a complaint;
- brought proceedings under the EO Act or RRTA;
- given evidence in relation to a complaint;
- attended a compulsory tribunal hearing;
- refused to contravene a certain provision of the EO Act;
- has alleged that someone else contravened the EO Act;
- has otherwise done anything in accordance with this Act in relation to any person (ss.96–97 EO Act; ss.13–14 RRTA); or
- because the person believes the other person or associate has done or intends to do any of those things.
A person must not request, instruct, induce, encourage, authorise or assist another to contravene the EO Act or the RRTA. If the person acts in any of these ways, a complaint can be lodged against them. If the other person proceeds to contravene either Act, a complaint can be lodged against both persons.
The EO Act prohibits a person asking for information that could potentially be used to discriminate against another person (s.100). An exception to this is if the information sought is reasonably requested or required for a non-discriminatory purpose. For example, employers should not ask questions about a job applicant's religion, or parental or carer responsibilities in interviews unless they have a genuine non-discriminatory reason for doing so.
A person who believes that they have been asked for information that could be used to discriminate against them can make a complaint to the VEOHRC. This complaint would be dealt with in the same the way a complaint of discrimination is handled.
It is an offence under the EO Act to publish or authorise the publication of an advertisement or notice that indicates an intention to discriminate unlawfully (s.195). For example, it is likely to be unlawful to indicate in a job advertisement that job applicants should be 30 years or over.
At the time of writing (1 July 2009), exceptions to, and exemptions from the EO Act relating to provisions prohibiting discrimination are under review. It is therefore advisable to refer directly to the EO Act when considering whether any exception applies. The following is a list of some of the exceptions that are currently in force. To date, there are 53 exceptions in the Act.
There are limited circumstances in which discrimination does not breach the EO Act, including the following.
- Genuine occupational requirements necessitating discrimination based on sex (for example, where the employment requires particular physical attributes, or the preservation of the privacy or decency of others) or age, race, sex or impairment in relation to dramatic, artistic, performance, entertainment, photographic or modelling work, or any other employment for reasons of authenticity or credibility (s.17).
- Reasonable terms/requirements of employment that take into account the reasonable and genuine requirements of the job, any special limitations that a person’s impairment or physical features impose on their capacity to undertake the employment and any special services or facilities that are required to enable a person to undertake the employment (s.23).
- Small businesses in which no more than five people are employed full time (defined as 30 hours a week or more) (s.21). This only applies in relation to the offering of employment.
- Where special services and facilities required to accommodate the needs of people with disabilities in education cannot be reasonably provided or, if provided, would not assist the person with a disability (s.39).
- Discrimination on the grounds of impairment or physical features in the provision of goods or services where the goods or services would have to be provided in a special manner and it is not reasonable to do so (s.46).
- Discrimination on the grounds of impairment or physical features if reasonably necessary to protect the health or safety or property of any person, including the person discriminated against (s.80).
- An employer may set and enforce reasonable standards of dress, appearance and behaviour for employees, having regard to the nature and circumstances of the employment (s.24).
- Discrimination in admission to schools, colleges etc. established wholly or mainly for students of one sex, religious belief, race or a particular impairment or age group (s.38).
- Discrimination by clubs established to reduce disadvantage suffered by a particular group or to preserve a minority culture (s.61).
- Discriminatory provisions relating to pensions or superannuation schemes (ss.71 & 72).
- Discrimination by religious bodies and schools that conforms with the doctrine of the religion (ss.75 & 76).
- An act done to comply with an Act of Parliament or Regulations, or with an order of any court and tribunal (ss.69 & 70).
Even where an exception may apply, a complaint can still be lodged with the VEOHRC. The Commission will then consider whether the conduct complained of is likely to be covered by any exceptions.
Commonwealth legislation does not necessarily have the same exceptions as Victorian legislation. For example, the Victorian legislation may have a particular exception, where the Commonwealth legislation does not. This could mean that in these circumstances it may be advisable to bring a complaint under Commonwealth legislation rather than under the EO Act, as the behaviour complained about is not unlawful in Victoria but remains unlawful under the Commonwealth legislation. To find out about exceptions that apply under the Commonwealth legislation, contact the Australian Human Rights Commission (see: "Introduction", above, for contact details).
The Victorian Civil and Administrative Tribunal (VCAT) may also grant temporary exemptions from the EO Act (s.83).
A complaint of discrimination, sexual harassment or victimisation under the EO Act, or racial or religious vilification under the RRTA, may be made to the VEOHRC. A person may make a complaint in their own name, or a person may make a complaint on behalf of a child or a person who is unable to complain because of an impairment.
Complaints not lodged within 12 months of the relevant conduct may be declined (s.108(1)(c) EO Act). The complaint must be in writing and the VEOHRC must assist people in formulating their complaint. There is no cost involved. See: "Introduction", for VEOHRC contact details.
It is also possible for a person to lodge a complaint of discrimination, sexual harassment or racial or religious vilification on behalf of themselves and another person or a group of people. These kinds of complaints are known as representative complaints (s.104(1A)).
The VEOHRC can accept a representative complaint from a person if the Commission is satisfied that each person named in the complaint:
- is entitled to complain;
- has consented to the complaint being made on their behalf; and
- the contravention relates to the same conduct.
The VEOHRC can also accept complaints from a representative body (such as an advocacy or support organisation), if the Commission is satisfied that:
- each person named in the complaint is entitled to complain;
- the contravention relates to the same conduct or set of circumstances;
- each person named in the complaint has consented to the complaint being made by the body on the person's behalf; and
- the representative body has sufficient interest in the complaint (i.e. the matter is of genuine concern to the body because the conduct adversely affects or has the potential to affect the interests of the body or those it represents).
The VEOHRC may decline a complaint if it considers that the complaint:
- is lacking in substance, misconceived, frivolous or vexatious;
- would be better dealt with by a tribunal or court (other than the VCAT) or has already been adequately dealt with by a tribunal or court; or
- relates to matters that took place over 12 months ago (s.108 EO Act).
The VEOHRC may close a complaint if it does not consider it reasonably possible to conciliate it successfully (s.113).
If the VEOHRC does not decline the complaint, it will determine whether to schedule a conciliation conference to attempt to resolve the complaint. If the delegate of the Chief Conciliator does not consider it reasonably possible that the complaint may be conciliated successfully, or if unsuccessful attempts have been made to conciliate the complaint, it will close the complaint and the complainant has the right to refer the matter to the VCAT (s.117).
The respondent has the right to apply to the VCAT to have the complaint struck out at certain times (s.109).
Conciliation conferences are informal and confidential and may lead to a written mutual agreement between the parties. What may be agreed between the parties will depend on what the complainant requests and what the respondent is willing to offer. For example, where the complaint is about getting sacked from a job, the settlement could be reinstatement and/or payment of money as compensation for lost wages.
The VEOHRC has power to order a person to attend conciliation and to produce any documents that are relevant (s.114). Anything said or done during the conciliation cannot be used in evidence before the VCAT or any other legal proceedings related to the same issues (s.116).
The complainant or respondent can apply to the VEOHRC to fast-track or "expedite" the complaint. If the Commission decides to expedite a complaint, any conciliation process that occurs must be completed within 30 days of this decision. The Commission can decide to expedite a complaint if:
- the Commission believes that it is reasonably possible to conciliate the complaint successfully; and
- there are special circumstances requiring a speedy resolution of the complaint (if the application is made by the complainant), such as an emergency health matter or sexual harassment in employment that is continuing; or
- the complaint relates to a policy decision of the respondent, the implementation or proposed implementation of which is alleged to be discriminatory (if the application is made by the respondent).
In general, if the VEOHRC has declined a complaint under sections 108 or 113 of the EO Act, or cannot settle the complaint by conciliation (s.117), the person making the complaint can request in writing that the Commission refer the complaint to the Anti-Discrimination List of the VCAT for a public hearing.
However, if the complaint was made under the RRTA, and the complaint was declined by the Commission on the basis of being:
the complainant must formally apply to the VCAT for leave (permission) to have a complaint under the RRTA proceed to a hearing.
A complainant may request the Commission to refer a complaint under the RRTA to the VCAT if their complaint was closed as non-conciliable or conciliation was unsuccessful.
The VCAT has the power to grant an interim order if it is necessary that some action be taken immediately. For example, the VCAT could make an interim order to prevent one person doing something that could prejudice any decision it might subsequently make, such as sacking an employee, offering a job to another person or renting a house to someone else.
A person must lodge a complaint with the VEOHRC before they can make a separate application to the VCAT for an interim order under the EO Act.
The VCAT will usually require parties to attend a directions hearing and/or mediation before it considers listing the matter for a full hearing. Where the VCAT finds discrimination proven, it can order all or any of the following:
- that the discriminatory conduct cease;
- a sum of money be paid to the complainant as compensation for loss suffered; and
- the discriminator perform certain other acts to redress loss (s.136).
Examples of the orders the VCAT can make include:
- reinstatement of a person dismissed from their employment for discriminatory reasons (see: Wardley v Ansett Transport Industries (Operations) Pty Ltd (1984) EOC 92-002);
- amendment of discriminatory club membership rules (see: South v Royal Victorian Bowls Association [2001] VCAT 207); and
- payments for hurt, humiliation and embarrassment resulting from discriminatory conduct (see: Jamieson v The Australian Workers' Union & Anor (2000) EOC 92-048).
The VCAT is not bound by the rules of evidence. Parties may appear personally before the VCAT or, with the VCAT's permission, may be represented by a professional advocate (this includes lawyers and others with suitable legal qualifications). The VCAT has broad powers to compel parties to attend compulsory mediation, and to compel third parties to appear before the VCAT and produce documents.
Information on mediation and preparing for hearings before the VCAT is available on its website at www.vcat.vic.gov.au and in a guide provided by the VCAT to the parties before a hearing.
Appeals against VCAT decisions can be made to the Supreme Court, but only on a point of law.
The respondent may apply to the VCAT to have the complaint struck out because the complaint is frivolous, vexatious, misconceived or lacking in substance (s.109 EO Act). The respondent must make such an application before the VEOHRC has issued a notice to attend conciliation, or after conciliation has concluded but before the complaint has been referred to the VCAT at the request of the complainant.
Once the VEOHRC has referred a complaint to the VCAT, any application to the VCAT to strike out the proceedings should be made under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT Act").
In proceedings before the VCAT, either party may apply to the VCAT for an order that all or part of their costs of the proceedings be paid by the other party. The VCAT has a discretion in deciding whether or not to award costs and will have regard to the circumstances of the particular case in deciding whether costs will be awarded or not.
Under Part 8 of the EO Act, the VEOHRC can investigate possible discrimination without an individual complaint of discrimination being made. This can happen in two ways.
- The VCAT can ask the VEOHRC to conduct its own investigation into an allegation of discrimination if it is thought that an individual complaint would not be appropriate and the alleged discrimination is serious and concerns a possible contravention in relation to a class/group of people.
- The VEOHRC can initiate such an inquiry itself, with the Minister's consent.
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