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Discrimination Laws and Types in Australia: Racial, Sex, Age, Disability, and Employment, Study notes of Law

Anna UniversityLaw

An overview of discrimination laws in australia, including the federal legislation (racial discrimination act 1975, sex discrimination act 1984, disability discrimination act 1992, and age discrimination act 2004) and victorian equal opportunity act 1995. It covers the concepts of direct and indirect discrimination, employment discrimination, harassment, and vilification. The document also discusses the application of these laws, the process for handling complaints, and examples of discrimination in various contexts.

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Discrimination
Federal Legislation:
Racial Discrimination Act 1975 (C’th)
Sex Discrimination Act 1984 (C’th)
Disability Discrimination Act 1992 (C’th)
Age Discrimination Act 2004 (C’th)
Victorian Legislation:
Equal Opportunity Act 1995 (Vic)
- in Victoria this one piece of legislation is intended to cover
all areas of prohibited discrimination.
- other States have similar (but not exactly the same)
legislation.
Although both the federal legislation and the State legislation co-exist, the general
rule is that the federal legislation prevails and applies where they both cover the same
area.
1. Introduction
Discrimination laws provide a person with a system of rights and remedies if
they are affected by certain specified behaviour. The relevant legislation
categorises such behaviour as unlawful and a breach of the civil law (not the
criminal law and so there are no ‘criminal’ penalties).
Only those acts that fall within the various pieces of legislation are unlawful
and hence not all discriminatory behaviour is unlawful.
Most Acts provide that both direct and indirect discrimination are prohibited.
All Acts provide a conciliation approach to dealing with complaints. In
response to the complainer submitting a written complaint, an independent
statutory body investigates and endeavours to resolve the complaint through
confidential discussion and conciliation.
In the event that the complaint cannot be resolved by conciliation, the matter
can be referred to a court or tribunal for an enforceable decision.
2. Direct Discrimination
Most Acts have a similar definition of direct discrimination. In general terms
direct discrimination involves one person, because of a particular
characteristic they have (for example their racial group), being less favourably
treated than someone who does not have that characteristic.
Only those categories listed in the various Acts are covered, but characteristics
that generally apply to persons of the nominated type are also covered (for
example the characteristic of pregnant women is that they take maternity leave
so it would be unlawful to discriminate on the basis of maternity leave).
‘Less favourable treatment’ requires a comparison between the treatment the
person received and what they would have otherwise received.
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Discrimination

Federal Legislation: Racial Discrimination Act 1975 (C’th) Sex Discrimination Act 1984 (C’th) Disability Discrimination Act 1992 (C’th) Age Discrimination Act 2004 (C’th)

Victorian Legislation: Equal Opportunity Act 1995 (Vic)

  • in Victoria this one piece of legislation is intended to cover all areas of prohibited discrimination.
  • other States have similar (but not exactly the same) legislation.

Although both the federal legislation and the State legislation co-exist, the general rule is that the federal legislation prevails and applies where they both cover the same area.

1. Introduction Discrimination laws provide a person with a system of rights and remedies if they are affected by certain specified behaviour. The relevant legislation categorises such behaviour as unlawful and a breach of the civil law (not the criminal law and so there are no ‘criminal’ penalties).

Only those acts that fall within the various pieces of legislation are unlawful and hence not all discriminatory behaviour is unlawful.

Most Acts provide that both direct and indirect discrimination are prohibited.

All Acts provide a conciliation approach to dealing with complaints. In response to the complainer submitting a written complaint, an independent statutory body investigates and endeavours to resolve the complaint through confidential discussion and conciliation.

In the event that the complaint cannot be resolved by conciliation, the matter can be referred to a court or tribunal for an enforceable decision.

2. Direct Discrimination Most Acts have a similar definition of direct discrimination. In general terms direct discrimination involves one person, because of a particular characteristic they have (for example their racial group), being less favourably treated than someone who does not have that characteristic. Only those categories listed in the various Acts are covered, but characteristics that generally apply to persons of the nominated type are also covered (for example the characteristic of pregnant women is that they take maternity leave so it would be unlawful to discriminate on the basis of maternity leave). ‘Less favourable treatment’ requires a comparison between the treatment the person received and what they would have otherwise received.

There must be an identifiable causal link between the ground of discrimination and the action complained of. Tate v Rafin (2001) – no discrimination because cricket club committee did not know of the complainant’s disability Often there is no requirement to prove intention (to discriminate) or motive.

3. Indirect Discrimination Defining (and proving) indirect discrimination is complex. It is where the discriminator requires the aggrieved person (who has a listed characteristic) to comply with a requirement or condition a) with which a substantially higher proportion of persons without the characteristic comply or are able to comply; and b) which is not reasonable having regard to the circumstances of the case; and c) with which the aggrieved person does not or is not able to comply.

The definitions in all the Acts are not the same because of the difficulty in accurately stating what is meant. But all seemed to be aimed at the following meaning. Indirect discrimination involves a condition or requirement that on the face of it appears to apply neutrally and equally to everyone, but in fact disadvantages a particular group, for instance women.

Examples:

  1. Last on – first off rule applied when factory had to reduce its workforce particularly disadvantaged women because it was only recently that women had started to be hired for factory work.
  2. Miller v Minister for Education (2001) W A Education Department’s promotion policy was linked to a teacher’s ability to be transferred between city and country posts. This favoured male teachers who were more mobile than females who were restricted by family responsibilities.
  3. Height or weight requirements for employment 4. Attributes or Characteristics The various Acts each set out the attributes or characteristics that are covered by that particular piece of legislation. Hence each Act must be examined to ascertain whether it is unlawful to discriminate under the terms of that Act on the basis of a particular attribute or characteristic. Some of the attributes/characteristics covered by most Acts are: Age, sex, pregnancy, impairment, marital status, race, religious belief, physical features, political belief
  4. Employment Discrimination a) Applicants for employment - job advertisements - interview questions
  • likely to offend insult humiliate or intimidate
  • protections
  1. Provision of Goods & Facilities
  • services cover a wide range
  • unjustifiable hardship exception re disabled persons 9. Accommodation
  • most complaints involve rental of residential premises
  • wide coverage of the law 10. Clubs
  • difference between federal and State law definitions of ‘club’
  • admission of members, categories of membership, access to facilities and benefits
  • allowance for private clubs and single sex clubs
  • where facilities cannot be used by both sexes at same time Corry v Keparra Country Golf Club (1985)
  • redressing an existing discrimination McLeod Country Golf Club etc (1995)
  • unjustifiable hardship exemption regarding disabled persons
  • clubs for persons with a particular disability
  1. Sport
  • coaching, umpiring, administration, under 12 competitions
  • where strength stamina or physique is relevant and the under 12 exemption
  • person not reasonably capable of performing required actions
  • selection on basis of skill & ability
  • activity specific for a particular disability
  1. Insurance
  • reasonable actuarial or statistical data
  1. Liability
  • employers vicarious liability
  • defence of reasonable steps but not ignorance
  • aiding or permitting
  • exemption for programs/arrangements designed to combat existing disadvantage (eg Fernwood gyms)