Discrimination is broadly defined as the treatment of an individual or group more favourably or less favourably than another individual or group, on the basis of a specified attribute.
Anti-discrimination legislation makes it unlawful to discriminate on the basis of particular attributes. The attributes specified in the legislation in each jurisdiction differ slightly. However, in general they include the following:
- race, colour, nationality, descent and ethnic, ethno-religious and national origin;
- sex (which extends to pregnancy);
- marital status;
- transgender status;
- carers responsibilities; and
The legislation requires that the act of discrimination occur “on the ground of” or “by reason of” a person’s status, such as their sex or race. The aggrieved person must show that other persons in the same or similar circumstances were not subject to the less favourable treatment and that the reason for the less favourable treatment was the aggrieved person’s sex, race or other attribute.
The legislation only renders discriminatory conduct unlawful if it occurs in specified contexts, one of which is employment.
Certain types of behaviour may be classified as direct discrimination. This will occur in circumstances where a person who has a particular attribute (for example, is of a particular sex or race, or has a disability) is treated less favourably because of that attribute.
Other types of behaviour may be classified as indirect discrimination. Indirect discrimination is concerned with conditions or practices that may have a discriminatory effect upon particular groups of people as compared to others. For example, requiring all employees to be a certain height may have a discriminatory effect on employees of a particular race.
The Commonwealth, State and Territory legislation dealing with harassment are all similarly expressed. Under the Anti-Discrimination Act 1977 (NSW), one person sexually harasses another where there is:
- an unwelcome sexual advance; or
- an unwelcome request for sexual favours; or
- other unwelcome conduct of a sexual nature; and
- the above conduct occurs in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, or
Equal opportunity legislation prohibits, in general, victimisation of complainants for the reason that they have, among other prohibited grounds:
- brought a complaint or intend to bring a complaint; or
- made allegations that the perpetrator has engaged in unlawful conduct of a kind prohibited by the
Central to the concept of victimisation is the requirement that the complainant establish that he or she suffered a “detriment” and that the perpetrator had “subjected” the complainant to the “detriment” by reason of him or her asserting his or her rights under the legislation (or other prohibited reasons).
In addition, the Corporations Act 2001 (Cth) specifically prohibits victimisation of a whistleblower, being someone who has made a ‘protected disclosure’. The Corporations Act 2001 (Cth) also provides that if a whistleblower suffers damage because of such victimisation, the whistleblower can independently claim compensation for that damage from the offender.
Federal Anti-Discrimination Laws
In the Federal jurisdiction, each ground of discrimination is contained in a separate Act:
- Racial Discrimination Act 1975 (Cth)
- Age Discrimination Act 2004 (Cth)
- Disability Discrimination Act 1992 (Cth)
- Racial Discrimination Act 1975 (Cth)
- Sex Discrimination Act 1984 (Cth)
- Australian Human Rights Commission Act 1986 (Cth).
Whereas in the State jurisdictions, the various forms of unlawful conduct are generally set out in one centralised Act:
- Australian Capital Territory – Discrimination Act 1991
- New South Wales – Anti-Discrimination Act 1977
- Northern Territory – Anti-Discrimination Act 1996
- Queensland – Anti-Discrimination Act 1991
- South Australia – Equal Opportunity Act 1984
- Tasmania – Anti-Discrimination Act 1998
- Victoria – Equal Opportunity Act 2010
- Western Australia – Equal Opportunity Act 1984.
Behaviour prohibited by equal opportunity laws comprise four broad concepts: