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 (previously known as the Human Rights and Equal Opportunity Commission and referred to in this chapter as the AHRC or "the Commission"), under the Australian Human Rights Commission Act 1986 ("AHRCA"). The Commission investigates complaints and attempts to settle them by conciliation. Complaints that cannot be resolved by the Commission can be heard in the Federal Court or Federal Magistrates Court of Australia.
Further detailed information about federal discrimination law can be found at: http://humanrights.gov.au/legal/FDL.
Complaints lodged under the RDA, SDA, DDA and ADA are handled in the same way under Part IIB of the AHRCA.
The President of the Commission enquires 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 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;
- 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 or Federal Magistrates 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 Magistrates Court or the Federal Court of Australia to have their allegation(s) heard and determined (s.46PO AHRCA). Either of these courts can make an order that the complainant be paid compensation, be offered employment (where the complaint is related to an offer of employment), receive a public apology from the discriminator or any other order that redresses the discrimination.
The AHRCA also permits representative complaints to be lodged where the complaint concerns a substantial common issue affecting a class of people (see s.46PB of the AHRCA for the conditions for lodging a representative complaint).
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) RDA; s.94 SDA; s.42 DDA; s.51 ADA).
The RDA prohibits discrimination based on race, colour, descent, or national or ethnic origin. 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).
The RDA also makes direct and indirect racial discrimination unlawful in a number of specific areas:
- places and facilities (s.11);
- land, housing and other accommodation (s.12);
- provision of goods and services (s.13); and
- employment (s.15), including the right to join a trade union (s.14).
The RDA also prohibits "racial vilification", which is described in the RDA as "offensive behaviour based on racial hatred" (Part 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)).
The SDA deals with direct and indirect discrimination on the grounds of sex, marital status, pregnancy and potential pregnancy. Discrimination is unlawful in the areas of employment, education, goods, services and facilities, accommodation, disposal of land, clubs, and the administration of Commonwealth laws and programs. The SDA also prohibits direct family responsibilities discrimination in relation to dismissal from employment.
The SDA also prohibits sexual harassment in the areas mentioned above (Division 3). The sexual harassment provisions are broad. In the workplace they apply to all "workplace participants", including commission agents and contract workers. In educational settings, they protect students from harassment by staff and protect adult students (aged 16 and over) from harassment by other adult students.
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 incite others to discriminate (s.105);
- it is also unlawful to request information that may be used to discriminate against a person where the information would not be sought from persons of the opposite sex, of a different marital status or who are not pregnant 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 (Part II Division 4). It is not unlawful to take special measures to achieve substantive equality (s.7B).
The 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 employment, 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 cause "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 (Division 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 assist compliance 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. To date, Public Transport and Education Standards have been made and a draft Access to Premises Standard has been developed.
It is unlawful to fail to comply with a Disability Standard (s.32). On the other hand, compliance with the relevant Standard equates to compliance with the DDA itself (s.34). Further information about the Transport and Education Disability Standards can be found on the AHRC's website 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 also unlawful to request information that may be used 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). The section 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.31(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 all reasonable steps to stop the employee or agent doing the act (s.123).
The DDA contains a range of exemptions, including for charities, in migration and in superannuation and insurance (Part 2 Division 5). It is not unlawful to take special measures to ensure equal opportunities or meet the special needs of people with disability (s.45).
The ADA addresses age discrimination in many areas of public life. The ADA makes direct and indirect discrimination on the ground of age unlawful in employment, 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 incite others to discriminate (s.56);
- it is also unlawful to request information that may be used 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 all reasonable steps to stop the employee or agent doing the act (s.57).
The ADA contains a range of exemptions, including for youth wages (s.22), charities, voluntary and religious bodies, in migration and in superannuation and insurance (Part 4 Division 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 that arises out of persons of a particular age; or
- are intended to reduce a disadvantage experienced by people of a particular age (s.33).
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