Discrimination
[vc_row css_animation=”” row_type=”row” use_row_as_full_screen_section=”no” type=”full_width” angled_section=”no” text_align=”left” background_image_as_pattern=”without_pattern”][vc_column][vc_column_text]
This article will discuss the NSW and Federal Laws regarding discrimination within the community. It will discuss what kind of conduct is unlawful and whether any exemptions from the law exists.
[/vc_column_text][/vc_column][/vc_row][vc_row css_animation=”” row_type=”row” use_row_as_full_screen_section=”no” type=”full_width” angled_section=”no” text_align=”left” background_image_as_pattern=”without_pattern”][vc_column][vc_single_image image=”19000″ img_size=”700 x 400″ alignment=”center” qode_css_animation=””][/vc_column][/vc_row]
[vc_separator type=”normal” position=”center” up=”20″ down=”20″]
A. WHAT IS DISCRIMINATION?
Discrimination has two main branches: direct discrimination and indirect discrimination.
Direct Discrimination refers to when a person is treated less favourably because of a characteristic of theirs, and if they did not have that characteristic they would be treated better in the same circumstance. For example, an employer refusing to employ a woman on the basis that she is a woman, when the job is not necessarily suited for men only.
Indirect Discrimination refers to when a condition or rule is applied that in practice may disadvantage one particular group of people. For example, an employer scheduling meetings every week in the late afternoon which would affect parents who need to pick up their children from school.
B. NSW LAW
In New South Wales, there is one legislation that encompasses many types of discrimination – the Anti-Discrimination Act 1977 (NSW). The Anti-Discrimination Act is divided into parts, with each one focusing on a different type of discrimination. The types of discrimination covered by the Act include discrimination on the basis of:
• Race;
• Sex and gender identity;
• Marital and relationship status;
• Disability;
• Position as a carer;
• Sexuality;
• Age; and
• HIV/Aids status.
Under this Act, discrimination, be it direct or indirect, on the grounds of any of the above categories is unlawful, aside from various exemptions.
C. FEDERAL LAW
The Federal Parliament has enacted four separate pieces of legislation that prohibit certain types of discrimination:
• the Racial Discrimination Act 1975 ;
• the Sex Discrimination Act 1984;
• the Disability Discrimination Act 1992 ; and
• the Age Discrimination Act 2004.1
Due to the separation of these acts, as well as many of them being inspired by international conventions, the Federal Acts are much more detailed in their respected parts.
Alongside these four Acts, a proposed legislation called Religious Discrimination Bill is currently being considered by the Parliament.
The Fair Work Act 2009 (Cth) also prohibits discrimination specifically within the workplace. It is unlawful for an employer to take any adverse action against their employee, or a prospective employee based on their race, colour, sex, sexual orientation, age, disability, marital status, carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.2
Adverse action taken against an employee may include dismissing an employee, demoting an employee or refusing to employ a prospective employee due to discrimination based on the above factors.
For example, in the case of Willmott v Woolworths Ltd,3 Woolworths breached anti-discriminatory laws by forcing prospective employees to provide details of their gender and date of birth (ie sex and age discrimination). It was held that a prospective employees’ gender and age were not reasonably required by Woolworths in their recruitment process.
D. EXEMPTIONS / EXCEPTIONS
Both state and federal legislation set out exemptions to certain forms of discrimination, many of them common-sense proposals.
For instance, s31 of the Anti-Discrimination Act (NSW) states that discriminating against a person because of their sex is exempt from being an offense if it is for a “genuine occupational qualification”, for example employing a female cleaner to clean inside the female bathrooms over a male cleaner.
In NSW law, exceptions mostly apply when a characteristic of a person is a “genuine occupational qualification”.4 However, a person may apply for an exemption to anti-discrimination laws in certain circumstances not deemed exempt under the Act.5 Exemptions are usually allowed when the applicant shows that discrimination to one group will help “redress past or present discrimination”6 or is necessary to provide a “special needs program”7 for the purposes of increasing equal opportunity.
Applications for exemptions are sent in writing to the President of the Anti-Discrimination Board of NSW, with the status of the application being decided within roughly 60 days.
Similarly in Commonwealth legislation, general exemptions such as discrimination for a “genuine occupational qualification”8 or for the purposes of a charity,9 exist to suit most common-sense discrepancies. Applications for exemptions outside those covered by legislation can be made to the Australian Human Rights Commission pursuant to the sections of the relevant act.
E. WHAT IF YOU HAVE EXPERIENCED DISCRIMINATION?
Both State and Federal legislation have enacted an administrative body to handle discrimination complaints and allegations.
In New South Wales, the body responsible is the Anti-Discrimination Board. The Anti-Discrimination Board provides information and services to hear discrimination
complaints.
A complaint should be made in writing or using the Board’s complaint form. You can personally lodge a complaint or have one lodged on your behalf by organisations, such as charities and community centres.
Once a complaint is made to the Anti-Discrimination Board, they will assess whether the event contravenes the Anti-Discrimination Act or falls under any exemptions. If it is seen as discrimination, the Board will help you through a conciliation process to manage the issue and possibly get compensation.
The federal body that manages discrimination complaints is the Australian Human Rights Commission. Similarly to the Anti-Discrimination Board, complaints can be using a prescribed complaint form and once a complaint is made and evaluated, the Commission aids you in conciliation and gaining compensation if applicable.
Comasters can help clients with discrimination complaints.
[vc_separator type=”normal” position=”center” up=”20″ down=”20″]
1 Australian Human Rights Commission, ‘A Quick Guide to Discrimination’, accessed on 12/09/2019, <https://www.humanrights.gov.au/sites/default/files/GPGB_quick_guide_to_discrimination_laws_0.pdf>.
2 Fair Work Act 2009 (Cth) s 351.
3 Willmott v Woolworths Ltd [2014] QCAT 601.
4 Anti-Discrimination Act 1977 (NSW).
5 Ibid.
6 Anti-Discrimination Board of NSW, ‘Exemptions’ accessed 12/09/2019 <https://www.antidiscrimination.justice.nsw.gov.au/Pages/adb1_antidiscriminationlaw/adb1_exemptions/adb1_exemptions.aspx>.
7 Ibid.
8 Sex Discrimination Act 1984 (Cth) s 30.
9 Race Discrimination Act 1975 (Cth) s 8.
[vc_separator type=”normal” position=”center” up=”20″ down=”20″]
© Comasters June 2020.
Important: This is not advice. Clients should not act solely on the basis of the material contained in this paper. Our formal advice should be sought before acting on any aspect of the above information.