Damon Mcknight
Discrimination is unlawful in Australia and is covered by both federal laws and local laws in each state or territory. The Australian Human Rights Commission enforces anti-discrimination legislation and investigates complaints of unlawful discrimination. Discrimination is impermissible differential treatment among persons or groups that result in a person or group being treated less favourably than others, based on one of the prohibited grounds for discrimination. These grounds include age, disability, race, sex, intersex status, gender identity, sexual orientation, and 'other status'.
| Characteristics | Values |
|---|---|
| Age | Yes |
| Disability | Yes |
| Race | Yes |
| Sex | Yes |
| Intersex status | Yes |
| Gender identity | Yes |
| Sexual orientation | Yes |
| Relationship status | Yes |
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What You'll Learn
Protected attributes in public life
In Australia, it is unlawful to discriminate on the basis of a number of protected attributes in certain areas of public life, including education and employment. These protected attributes include:
Age
The Age Discrimination Act of 2004 makes it unlawful to discriminate against people based on their age. However, there are exemptions for age requirements in specific contexts, such as drinking, voting, driving, and marrying.
Disability
The Disability Discrimination Act of 1992 was enacted after Australia signed the United Nations' Declarations on the Rights of Mentally Retarded Persons and the Rights of Disabled Persons. This Act makes it unlawful to discriminate against individuals due to their disability.
Race
The Racial Discrimination Act of 1975 (RDA) prohibits discrimination based on race, national or ethnic origins, or descent. The term "race" is broadly defined and should be understood in the popular sense.
Sex and Gender Identity
The Sex Discrimination Act of 1984 makes it unlawful to discriminate against individuals based on their sex or gender identity. This includes discrimination related to pregnancy, breastfeeding, and family or caring responsibilities. The Workplace Gender Equality Act of 2012 further promotes equality for both women and men in the workplace, including equal remuneration.
Intersex Status
Australia recognises intersex status as a protected attribute, and individuals cannot be discriminated against on this basis. The Births, Deaths, and Marriages Act of 1996 was amended in 2019 to allow people to change the sex on their birth certificates to reflect their gender identity.
Sexual Orientation
Individuals are protected from discrimination based on their sexual orientation. This includes protection for sex workers under the attribute of "lawful sexual activity".
Marital Status
It is unlawful to discriminate against individuals based on their marital or relationship status, whether they are single, married, widowed, divorced, separated, or in a de facto relationship.
Other Protected Attributes
Other protected attributes in Australia include physical features, religious or political beliefs, industrial or employment activity, and spent convictions.
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Federal and local laws
In Australia, there are federal laws that apply to everyone and local laws that apply to people in a particular state or territory. Federal laws also impose a positive duty on employers to prevent certain unlawful acts. If there is a clash between federal and state or territory laws, federal law overrides them.
The Australian Human Rights Commission has statutory responsibilities under the following federal legislation:
- Age Discrimination Act 2004
- Australian Human Rights Commission Act 1986
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
- Workplace Gender Equality Act 2012
The Australian Human Rights Commission Act 1986 was enacted after Australia signed the International Covenant on Civil and Political Rights (ICCPR). The Act outlines a consistent gender classification system and the standard of evidence required to establish or change gender on personal records for Australian Government departments and agencies.
The Disability Discrimination Act 1992 came after Australia signed the United Nations' Declarations on the Rights of Mentally Retarded Persons and the Rights of Disabled Persons. This Act makes it unlawful to discriminate against people because of their disability.
The Age Discrimination Act 2004 makes it unlawful to discriminate against people because of their age. However, the Act contains several exemptions to allow for age requirements for drinking, voting, driving, and marrying.
The Sex Discrimination Act 1984 came after Australia signed the United Nations' International Convention on the Elimination of All Forms of Discrimination Against Women. The Act requires employers to take reasonable steps to prevent workplace sexual harassment and discrimination. It is unlawful to discriminate against people because of their marital or relationship status.
In addition to federal legislation, each state and territory in Australia has equal opportunity and anti-discrimination agencies with statutory responsibilities. While Commonwealth laws and state/territory laws generally overlap, they apply in different ways, and employers must comply with all legislation.
The Fair Work Act provides general protections against unlawful workplace discrimination and adverse actions by an employer. Under this Act, organisations have a positive duty to eliminate unlawful behaviour, such as discrimination on the grounds of sex in a work context.
The Privacy Act 1988 lays down strict privacy safeguards for Federal Government departments when dealing with personal information.
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Workplace discrimination
Discrimination in the workplace is illegal in Australia. The Australian Human Rights Commission (AHRC) enforces federal anti-discrimination laws and aims to promote equality and fair treatment for all individuals. The AHRC has the power to receive, investigate and conciliate complaints of unlawful discrimination. Each state and territory also has anti-discrimination legislation, with its own equal opportunity and anti-discrimination agencies.
There are several federal laws that prohibit discrimination in employment, including the Sex Discrimination Act 1984, the Racial Discrimination Act 1975, the Disability Discrimination Act 1992, and the Age Discrimination Act 2004. These laws protect employees from discrimination and harassment based on sex, race, disability, age, and other attributes. For example, the Sex Discrimination Act 1984 makes it unlawful to discriminate against someone because of their marital or relationship status, and requires employers to take steps to prevent sexual harassment in the workplace.
The Workplace Gender Equality Act 2012 also aims to promote equality for men and women in the workplace, including equal pay and participation. The Respect@Work bill, introduced in 2021, expanded the definition of sexual harassment, increased employer obligations to prevent harassment, and increased penalties for non-compliance.
In addition to federal laws, state and territory laws often cover additional attributes and have different complaint-handling processes. For example, the Victorian Equal Opportunity Act 2010 includes "employment activity" as a protected attribute, while the Australian Capital Territory's Discrimination Act 1991 prohibits discrimination based on "profession, trade, occupation, or calling".
Employers should review their policies and procedures to ensure compliance with anti-discrimination laws and take steps to prevent and address discrimination and harassment in the workplace. This may include conducting regular workplace assessments, implementing anonymous reporting software, and providing training on respectful workplace behaviour.
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Complaints and investigations
Discrimination is illegal in Australia under both federal and state/territory laws, which aim to outlaw discrimination and harassment in various areas of public life. The Australian Human Rights Commission (AHRC) is an independent statutory body that can receive, investigate, and conciliate complaints of unlawful discrimination. Each state and territory also has its own anti-discrimination laws and agencies that handle complaints. For example, the Victorian Equal Opportunity and Human Rights Commission handles complaints related to the Equal Opportunity Act.
The AHRC can investigate complaints of discrimination and human rights breaches in the workplace, and employers may be held liable for the actions of their employees. The Fair Work Ombudsman also plays a role in investigating allegations of unlawful workplace discrimination and may initiate litigation against a national system employer for contravening the Fair Work Act. The Fair Work Commission, Australia's workplace tribunal, can help resolve issues at work but does not have jurisdiction over all unlawful discrimination complaints.
If an employee makes a complaint of discrimination, employers should acknowledge it promptly, treat it seriously, and conduct a thorough and impartial investigation. This includes interviewing relevant parties, gathering evidence, and determining appropriate action based on the evidence. Employers should also be mindful of time limits for lodging complaints with external agencies, such as the 12-month deadline for filing complaints with the AHRC.
In the event that an employee is unsatisfied with the outcome of an internal complaint process, they can escalate the matter to external agencies like the Fair Work Ombudsman, the AHRC, or their state or territory anti-discrimination agency. Employers are expected to cooperate fully with any external investigations and provide the necessary information and evidence. To avoid vicarious liability, employers must demonstrate that they took proactive steps to prevent discrimination in the workplace.
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$285.94 $301
Equality and non-discrimination rights
Australia has federal, state, and territory laws that protect people from discrimination and harassment. The Australian Human Rights Commission has statutory responsibilities under the Age Discrimination Act 2004, Australian Human Rights Commission Act 1986, Disability Discrimination Act 1992, Racial Discrimination Act 1975, and the Sex Discrimination Act 1984.
The right to equality and non-discrimination encompasses both positive and negative obligations. This includes the obligation to refrain from discriminating or eroding equality and the obligation to protect and advance the fulfilment and enjoyment of equality and non-discrimination rights for all people. Australia is a party to seven core international human rights treaties, and the rights to equality and non-discrimination are contained in articles 2, 16, and 26 of the International Covenant on Civil and Political Rights (ICCPR).
Discrimination is impermissible differential treatment among persons or groups that result in a person or group being treated less favourably than others based on prohibited grounds. These prohibited grounds include age, disability, race, sex, intersex status, gender identity, and sexual orientation. Not all differential treatment is considered prohibited discrimination; it must be unreasonable and subjective, and the aim must be illegitimate under the ICCPR. For example, a compulsory retiring age of 60 for airline pilots was deemed legitimate under the ICCPR as it maximised public safety. Discrimination can be direct or indirect; indirect discrimination occurs when a requirement or condition has a disproportionate or unintended negative impact on particular groups.
To promote equality, the Workplace Gender Equality Act 2012 aims to improve gender equality in the workplace, including equal remuneration between men and women. The Sex Discrimination Act 1984 also requires employers to take reasonable steps to prevent workplace sexual harassment and discrimination. The Fair Work Commission can deal with disputes regarding workplace sexual harassment under the Fair Work Act, and the Australian Human Rights Commission provides resources to help organisations meet their positive duty obligations.
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Frequently asked questions
Discrimination is impermissible differential treatment among persons or groups that result in a person or a group being treated less favourably than others, based on one of the prohibited grounds for discrimination.
In Australia, it is unlawful to discriminate on the basis of age, disability, race, sex, intersex status, gender identity and sexual orientation in certain areas of public life, including education and employment.
You can lodge a complaint with the Australian Human Rights Commission, which has the power to receive, investigate and conciliate complaints of unlawful discrimination under Australia's anti-discrimination legislation. You can also contact your relevant state or territory work health and safety authority for help.
There are federal, state and territory laws in Australia to protect people from discrimination and harassment, including the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975, and the Sex Discrimination Act 1984.
