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Federal discrimination laws
In Australia, discrimination laws exist at both federal, and state and territory level.
At a federal level, the following laws apply:
- Age Discrimination Act 2004
- Australian Human Rights Commission Act 1986
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
The Australian Human Rights Commission (AHRC) can investigate and conciliate complaints of discrimination under these laws. When any complaint cannot be resolved it can be heard by the Federal Court.
There is no specific time frame in which a complaint is required to be made. AHRC recommend that complaints should generally be lodged within 12 months of the alleged act of discrimination. In cases of unlawful discrimination if the complaint has been lodged more than 24 months after the alleged event occurred, the President of the Commission can decide not to investigate a complaint. If the event being complained about happened more than twenty-four months ago, you will have to explain the reasons for delay when you are making a complaint.
For complaints alleging human rights breaches and discrimination in employment under the International Labour Organisation Conventions, the relevant period is 12 months.
If a complaint is made outside the timeframes, the other party can request that the application to not be accepted.
If a complaint is terminated by the AHRC, strict time frames will apply. You must make an application to the Federal Court within 60 days of the date your complaint is terminated.
Protected attributes
Protected attributes are specified in the legislation.
In 2013, the Australian Government amended the Sex Discrimination Act to include protection from discrimination on the basis of sexual orientation, intersex status, and gender identity. This is in addition to already protected attributes including sex, marital status and pregnancy (or potential to become pregnant).
Age, race, and disability are also protected attributed under relevant legislation. These laws make discrimination based on these protected attributed prohibited when it occurs in a protected area.
There are two types of discrimination:
- Direct discrimination occurs where someone is treated less favourably because of a protected attribute they have or are assumed to have.
- Indirect discrimination occurs where an unreasonable rule or requirement applies to everybody, but unfairly disadvantages people with a protected attribute.
The Sex Discrimination Act has introduced a positive duty which requires organisations and businesses to take reasonable and proportionate measures to eliminate sexual harassment in the workplace. This includes discrimination on the ground of sex in a work context, sexual harassment in connection with work, sex-based harassment in connection wit work, conduct creating a workplace environment that is hostile on the ground of sex and related acts of victimisation.
Organisations and business who are obliged under this positive duty includes sole traders and the self-employed, as well as small, medium and large business and government. The positive duty covers behaviour engaged in by employers, employees, agents and in some cases third parties such as customers, clients’ patients and students in connection with work.
The AHRC has powers to conduct inquiries into organisations and businesses that it reasonably suspects are not complying with the positive duty. If they are not complying the Commission has the power to work with business/organisations, enter into agreements with them or issue compliance notices, which can be enforced by a court.
Case example
This recent change in the Sex Discrimination Act was the subject of a federal court case Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960.
Ms Tickle, who was assigned male at birth, began living as a woman from 2017 and subsequently underwent gender affirming surgery with her sex now being female. This was recognised on her Queensland birth certificate in 2020.
She subsequently downloaded a ‘women-only’ app called ‘Giggle App’ in February 2021 which used artificial intelligence to determine if someone was ‘male’ by analysing an uploaded selfie. Ms Tickle did so, and she was granted access to the app.
However, in September 2021 she noticed her account had been restricted after CEO, Ms Grover, reviewed the photo and removed her access. Despite Ms Tickle contacting Ms Grover to resolve the issue, she did not regain her access.
The Federal Court of Australia found both Giggle App and Ms Grover engaged in unlawful indirect discrimination by imposing a condition on Ms Tickle where she had to have the appearance of a cisgender woman to access Giggle App. The Court did not think the Giggle App or Ms Grover engaged in direct discrimination because they were not aware of Ms Tickle’s gender identity.
Other discrimination laws
The Fair Work Act 2009 also provides protections against discrimination, with a specific focus on discrimination in the workplace.
Of note, this Act protects against discrimination based on family or carer responsibility, physical or mental disability, religion, political opinion, national extraction, and social origin. This is in addition to the more commonly protected attributes like sex, race, age etc.
Discrimination is unlawful in the context of adverse action in relation to employment. For example, dismissing an employee, denying leave entitlements or pay, demoting, not hiring someone, or treating someone differently to others.
State and territory-based discrimination laws
In addition to federal based laws, each state and territory also has their own legislation which protects against discrimination.
Unlike on the federal level, state-based anti-discrimination laws are typically located in one Act.
Select the state or territory where your organisation is based.
The content on this webpage was last updated in December 2024 and is not legal advice. See full disclaimer and copyright notice.
