Overview

Discrimination means giving a person or a group of people less favourable treatment than another person or group of people. Equal opportunity is a fundamental human right. To protect this right, the states, territories and federal government of Australia have enacted legislation (written laws) prohibiting certain acts of discrimination.

Discrimination against a person will be unlawful when:

• it is based on a personal characteristic such as:
  • race,
  • gender,
  • disability including mental illness,
  • pregnancy and breastfeeding,
  • marital and parental or carer status,
  • age or
  • religion; and

• it happens in an area of public life such as:
  • employment,
  • education,
  • provision of goods and services,
  • accommodation,
  • clubs or
  • interest groups; and
• it causes loss or humiliation.

Other unlawful treatment covered by discrimination laws includes:

• racial vilification,
• sexual harassment,
• victimisation and
• whistle blowing.

Because each jurisdiction has its own legislation the types of discrimination you can complain about may also be different. You may need to check with a lawyer or the anti-discrimination commissioner in your state or territory to confirm whether you can formally complain about the treatment you have suffered. In all jurisdictions the person who feels that they have been discriminated against starts the proceedings by making a complaint to an administrative agency. This agency provides a process of inquiry and conciliation. If the complaint is not resolved it will go to a tribunal which will hear the evidence and make a determination. If the complaint is still not resolved there is a possibility of appealing to a court for judgment.

Each jurisdiction also has a number of exemptions which allow actions to take place which might otherwise be discriminatory. For example it would not be religious discrimination to refuse to ordain a practicing Buddhist as a Catholic priest. Nor would it be gender discrimination for a male hockey team to refuse to accept a female hockey player or for a bottle shop to display a sign refusing service to people under the age of 18. There may also be exemptions that allow for positive discrimination such as setting aside disabled parking spots or allowing breastfeeding mothers to take extra work breaks during the day to express breastmilk.

You can find out more information about the various laws and the types of discrimination they cover from the Australian Human Rights Commission: https://www.humanrights.gov.au/guide-australias-anti-discrimination-laws#summary.

Our Legal Guide on Anti-Discrimination provides both sides of a discrimination dispute with information on the available procedures in different states and territories and under the federal system. Before making important decisions it is advisable to obtain legal advice specific to your situation. LegalEagle’s free directory profiles all lawyers in Australia. You can use it to Find a Lawyer near you who specialises in Anti-Discrimination law.

How a lawyer can help?

A lawyer can help you determine whether any of the state, territory or federal anti-discrimination laws apply to the treatment you suffered or have been accused of. They will assist you in deciding how you have been discriminated against or what laws you may have broken if you have been accused of discriminating against someone else. They will also tell you what the laws are in your jurisdiction (state or territory) or if federal laws apply.

A lawyer can also suggest how you should legally respond to the discrimination. They can help you write a letter of complaint to someone and explain whether there are any remedies you can seek. If you receive a letter of complaint a lawyer can advise you on how to respond.

If an informal approach does not successfully resolve the problem a lawyer can assist you to make a complaint or respond to a complaint in an anti-discrimination commission. Although lawyers are generally discouraged from attending a commission’s proceedings (such as conciliation) you can still benefit from a lawyer’s advice and assistance with document preparation. A lawyer can also advise you on proposed settlement offers.

If the matter is not settled in the anti-discrimination commission and it proceeds to a tribunal or court a lawyer can help you draft your documents. They can also represent you in the court proceedings and may be able to represent you before a tribunal depending on the tribunal’s rules and any special needs you have.