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Discrimination Law

Discrimination law exists to enable everyone to take part equally in public life, regardless of irrelevant personal characteristics. Discrimination law regulates public life, not private life, so, for example, it covers what happens at work, in education or in the supply of goods and services. It does not affect how people conduct their private lives, for instance, who they choose to have as friends. The law says that certain personal characteristics, such as one’s race or age, must be disregarded in public life situations, such as in selecting people for jobs. A person experiences unlawful discrimination if a personal characteristic is taken into account in an area of public life where the law prohibits this.

Discrimination law also prohibits other behaviours that stop people taking part equally in public life. These include sexual harassment, victimization, refusing services to people with guide dogs, and discriminatory advertising.

The law relating to discrimination in South Australia is a mixture of Commonwealth and State law.

Legislation:

The following Acts apply in South Australia

Direct and indirect discrimination

Discrimination can be direct or indirect. Both kinds are unlawful.

Direct discrimination is what most people think of as discrimination, for example, an employer refusing to consider job applications from people of African origin or a landlord refusing to rent to tenants who have children.

Indirect discrimination means that conditions are imposed or rules are made that may, on their surface, may look equal but which, in practice, result in unfavourable treatment of some people. For example, suppose an employer stipulates that applicants for a particular job must have blue eyes. In practice, fewer people of African or Asian origin can meet this requirement, so the requirement could amount to race discrimination. Similarly, a requirement that all workers must be available for night shifts could be indirect discrimination against those who have caring responsibilities and are unable to arrange for a substitute carer to stay overnight in their absence. Whether indirect discrimination is unlawful will depend on whether the requirement is reasonable. If there is a good reason, for example, why all employees need to be available for night shifts, then the requirement will not be discrimination, even though it may be harder for carers to meet.

Grounds to making discrimination complaints

Whether a person has grounds to make a discrimination complaint, depends on several questions:

  • Is the discrimination of a type that is prohibited by law?
  • Did the discrimination occur in an area covered by the law?
  • Does the conduct fall under any of the permitted exemptions?
  • Is the complaint within the time limit?
  • Has the person suffered some detriment (harm)?

These factors are considered below. If a person has grounds for a complaint they also need to consider which agency they should deal with.

Types of discrimination

Not all unfair treatment is unlawful discrimination. The combined effect of the South Australian and Commonwealth legislation is that, in South Australia, it is unlawful to discriminate on the following grounds:

  • age
  • disability
  • marital or domestic partner status
  • identity of spouse or partner
  • pregnancy (or potential pregnancy)
  • family responsibilities
  • association with a child (in provision of goods, services or accommodation)
  • breastfeeding
  • race
  • sex
  • sexuality or chosen gender
  • religious appearance or dress
  • political opinion
  • social origin
  • on the basis of having disclosed public interest information to a relevant authority (i.e. whistleblowers) or of having made a complaint of discrimination

Age discrimination

Age discrimination occurs when people are treated unfavourably because of their age, or because of assumptions made about people of that age. Common examples of age discrimination include preferring to hire younger over older workers regardless of competence, refusing to consider job applications from people over pension age, or sacking younger workers when they reach the age where adult wages will apply.

However, specific laws that set age requirements are not age discrimination. For example, laws that limit alcohol sales to adults, or laws requiring that anyone aged between 6 and 17 must attend school, are not age discrimination.

Legislation:

Areas of discrimination on basis of age under SA law

Under the Equal Opportunity Act 1984 (SA) it is unlawful to discriminate on the basis of age in the following areas:

  • education
  • employment
  • accommodation
  • disposal of interest in land
  • conferral of qualifications
  • provision of goods and services
  • membership of associations

Exemptions

There are exemptions in the following circumstances:

  • employment not connected with an employer’s business
  • employment for which there is a genuine occupational requirement that a person be of a particular age, or age group
  • employment where a person would not be able to adequately perform the work without endangering himself or herself or other persons or respond adequately to emergency situations in connection with the employment in question
  • admission to an educational institution where the level of education or training provided is only available to students of a particular age
  • awarding of qualifications where a minimum age is a reasonable requirement for conferral
  • renewal of qualifications where a minimum age is a reasonable requirement
  • accommodation in one’s own household
  • accommodation where provided by a not for profit organisation for the benefit of persons of a particular age group
  • accommodation for recreational purposes if the accommodation is limited on a genuine and reasonable basis to persons of a particular age
  • compliance with provisions of an award or industrial agreement
  • reasonable concession fares or prices for children or seniors
  • charities for the benefit of persons of a particular age
  • special measures for the benefit of persons of a particular age or age group in order to meet a need that arises out of or is related to their age
  • sport: exclusion of persons of particular age groups from participation in competitive sporting activity
  • associations where different classes of membership exist for persons of different ages provided on a reasonable and genuine basis or where it is reasonable for an association to discriminate in relation to the provision of a particular benefit or service
  • associations established wholly or mainly for the promotion of the interests of or services to persons of particular age group
  • the terms of insurance and superannuation, where the different treatment is based on reliable actuarial or statistical data
  • the legal capacity of children

Areas of discrimination on basis of age under Commonwealth law

Under the Age Discrimination Act 2004 (Cth) it is unlawful to discriminate on the basis of age in:

  • employment and related matters including conferral of qualifications
  • education
  • access to premises
  • provision of goods, services and facilities
  • disposal of land
  • administration of Commonwealth laws and programs
  • requests for information on which age discrimination might be based

Exemptions

There are a number of areas of exemption under the Age Discrimination Act 2004 (Cth), including:

  • employment for domestic duties in private household
  • employment where a person is unable to carry out the inherent requirements of the job because of their age; the same exemption applies to qualifying bodies where a person is precluded from carrying out the inherent requirements of a profession or trade because of their age
  • accommodation, where the provider or a near relative lives on the premises and the accomodation is for no more than 3 other persons
  • superannuation, insurance and credit
  • migration and citizenship
  • taxation
  • pensions, allowances and benefits
  • some health programmes
  • certain acts of religious and voluntary organisations
  • compliance with specified laws
  • youth wages or compliance with industrial agreements and awards

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Time limits:

The Age Discrimination Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Disability discrimination

This covers all types of disability, including illness, injury, physical restrictions, mental illness, intellectual disability, having an infection (such as HIV or Hepatitis C), being at risk of developing a disability in future (such as carrying a particular gene) or having had a disability in the past. Discrimination can include treating the person unfavourably because of their disability, or because of assumptions made about people with that type of disability. Examples of disability discrimination include refusing to consider a job application from a person in a wheelchair or refusing to let a house to a person who has a guide dog.

Discrimination on the basis of disability also includes:

  • failure to provide special assistance or equipment where needed, if it would be reasonable to expect it to be provided;
  • failure to make reasonable adjustments to accommodate a disability, for example, adjusting a job so that an applicant with a disability would be able to do it – what is a reasonable adjustment will depend on all the circumstances, including costs and benefits;
  • failure to make public premises (such as shops and public offices) accessible to persons with a disability – however, it is not discrimination if making the premises accessible would cause undue hardship, for example, because it would be unreasonably expensive to make the changes needed;
  • refusal of service – for example, refusal of a taxi ride or admission to a restaurant because a person has a guide dog with them. Separating a person from their guide dog, or refusing to allow them into a shop with their dog is also a criminal offence

In accommodation, landlords are generally required to allow tenants to make reasonable alterations to the premises as needed to accommodate the disability, but at the tenant’s expense and on condition that the premises be restored to their former state at the end of the tenancy.

Legislation

Areas of discrimination on basis of disability under SA law

Under the Equal Opportunity Act 1984 (SA) it is unlawful to discriminate on the basis of any disability.

Discrimination is prohibited in the following areas:

  • education
  • employment
  • accommodation
  • access to premises
  • sale of land
  • conferral of qualifications
  • provision of goods and services
  • superannuation
  • membership of clubs and associations

Exemptions

  • employment not connected with an employer's business
  • employment: where a person suffering from an impairment would not be able to adequately perform the work required for employment without endangering themselves or others or to respond adequately to emergency situations reasonably anticipated in connection with the work required
  • salary rates
  • conferral of qualifications, where a person suffering from an impairment would not be able to perform the inherent requirements of the occupation adequately or safely
  • educational institutions established wholly or mainly for the benefit of students with a particular impairment
  • provision of goods and services where the standard of provision required would be onerous or unreasonable
  • accommodation in one's own household
  • insurance: discrimination in the terms of an annuity, life assurance, accident insurance or any other form of insurance where it is based on reliable actuarial or statistical data
  • superannuation, where based on reliable actuarial or statistical data
  • superannuation schemes provided for employees to which the employer makes a contribution and where the greater number of employees reside outside of SA
  • charities for the benefit of persons with a particular disability
  • special measures for the benefit of persons with a particular disability
  • sporting activities
  • where access to a place or facilities cannot be provided due to the unjustifiable hardship it would impose
  • measures taken to limit the spread of an infectious disease

Areas of discrimination on basis of disability under Commonwealth law

Discrimination is prohibited in the following areas:

  • education
  • employment
  • accommodation
  • access to premises
  • interest in land
  • conferral of qualifications
  • provision of goods and services
  • superannuation
  • membership of clubs and associations
  • registered organisations
  • administration of Commonwealth laws and programs
  • sport

Exemptions

Employment - it is not unlawful if:

  • a person is unable to carry out the inherent requirements of the job, or
  • in order to carry out the inherent requirements of the job the employer would have provide such facilities or services as would impose unjustifiable hardship to the employer, or
  • the employment is for domestic duties in a private residence
  • Qualifying bodies, where the person cannot meet the major inherent requirements of profession or trade

Education - it is not unlawful if:

  • it would impose unjustifiable hardship on the educational facility, or
  • the education is for people with a particular disability

Accommodation - it is not unlawful where:

  • the accommodation is for a particular disability and is supplied by a voluntary body
  • provision of the accommodation would cause unjustifiable hardship
  • the accommodation is only for a maximum of four people and includes the owner or a near relative in residence

The following, whilst not strictly speaking exemptions, are defences against an action of disability discrimination and also need to be considered:

Access to premises - it is a defence if altering the premises would result in unjustifiable hardship

  • Goods and service - it is a defence if the supplier would suffer unjustifiable hardship to supply the goods in the way they need to be supplied
  • Incorporated clubs and associations - it is a defence if the association is for people with a particular disability or if there is unjustifiable hardship in providing the benefit in a particular way which is needed as a result of a disability
  • Sport - it is a defence if the sport is organised for people with a particular disability or the person cannot perform the necessary actions required for the sport or a selection is based on relevant skills

It is up to the person who claims a defence of unjustifiable hardship to prove this. All relevant factors, such as the costs and benefits, can be taken into account.

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 12 months previously.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Disability Justice Program

The Legal Services Commission delivers community legal education that is relevant and in a style appropriate to the needs of people living with a disability and community workers. Disability Justice is a legal education project that aims to deliver relevant and high quality legal information and education in a way that is accessible and respectful of the communication needs and learning styles of different groups within our community. This education is provided free of charge but is dependent upon our capacity. The Legal Services Commission has also developed the following legal education resource:

Rights on Show is a legal education resource about rights with police. This resource has been specifically made for people with intellectual disability and cognitive impairment.

Rights on Show was funded by the South Australian Attorney-General's Department as part of the Disability Justice Plan 2014- 2017.

For more information on this resource visit the Legal Services Commission 's Rights on Show page.

Marital or domestic partnership status

Marital or domestic partnership status discrimination occurs where a person is treated unfavourably in public life because they are married or single, divorced, living in a de facto relationship or living with a same-sex partner, or because of characteristics that people of a particular marital status are presumed to have. One example would be refusing to let a flat to a gay couple. Another would be overlooking job applications from single people in the belief that they are not sufficiently settled.

Legislation:

Areas of discrimination on basis of marital or partnership status under SA law

Under the Equal Opportunity Act 1984 (SA) it is illegal to discriminate against a person on the basis of their marital status. Marital status includes:

  • being single
  • married
  • living in a de facto relationship (whether same-sex or opposite sex)
  • being separated
  • being divorced
  • being or having been widowed

Discrimination is prohibited in the following areas:

  • education
  • employment
  • accommodation
  • disposal of interest in land
  • conferral of qualifications
  • provision of goods and services
  • membership of associations

Exemptions

  • Employment not connected with an employer's business
  • Accommodation in one's own household
  • Charities
  • Special measures intended to achieve equality
  • Training and ordination of priests and ministers of religion
  • Discrimination against same sex domestic partners in relation to employment in a religious educational institution
  • Associations administered in accordance with the precepts of a particular religion
  • Accommodation provided by not for profit organisations for persons of a particular marital or domestic partner status
  • Ordination and training of priests or ministers of religion

Areas of discrimination on basis of marital or relationship status under Commonwealth law

As with the SA legislation, discrimination on the basis of marital status is prohibited under Commonwealth law. Marital status means the same as in South Australian law.

Discrimination on the basis of marital status is prohibited in the following areas:

  • employment
  • superannuation - exercise of discretion in relation to a payment if a member of a fund prior to 25th June 1993
  • qualifying bodies - conferral of qualifications
  • education
  • provision of goods, services and facilities
  • accommodation
  • disposal of interest in land
  • membership of clubs
  • administration of Commonwealth laws and programs
  • requests for information

Exemptions

Accommodation

  • where person providing the accommodation (or a near relative of theirs) is to reside there with no more than 3 other persons
  • where provided by a religious body
  • where provided by a charitable or other not for profit organisation solely for persons of a particular marital status

Employment - it is not unlawful to discriminate on the grounds of marital status:

  • if the position involves the care of a child or children in the place where they reside and it is intended that the spouse of the person holding the position would also occupy a position as an employee
  • where employment is in an educational institution established for religious purposes

  • Training, appointment or ordination of priests or ministers of religion
  • Voluntary bodies
  • Charities
  • Acts done under statutory authority e.g. an order of a Court or tribunal or decision made under an industrial award or agreement
  • Superannuation funds
    • where the fund conditions include a provision based on marital status as a result of actuarial or statistical data on which it is reasonable to rely
    • where the member has no spouse and there is no or less generous provision in the event of the member’s death or incapacity

A complaint about marital or partnership status discrimination at work can also be made to the Fair Work Ombudsman.

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment , claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Identity of spouse or partner

This occurs where a person is treated less favourably in public life because of who their spouse is. An example would be where a trader refuses to serve a man in a shop because his wife is a politician whom the trader dislikes.

Legislation:

In South Australia it is unlawful to treat a person less favourably because of who their spouse or partner is. This applies in:

  • work
  • education
  • conferral of qualifications
  • goods and services
  • accommodation
  • sale of land
  • membership of clubs and associations

Exemptions

Less favourable treatment is not unlawful if, because of who the person’s spouse or partner is, there would be an unreasonable risk to confidentiality, a conflict of interest or a risk to health or safety, or the person’s appointment would be nepotism.

Making a complaint

Complaints can be made to the Equal Opportunity Commission of South Australia. There is no cost to lodge a complaint in either the Equal Opportunity Commission. For forms and guides on making a complaint see the website for the Equal Opportunity Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Time limits:

The Equal Opportunity Commissioner normally requires a complaint to be made within 6 months of the event being complained of but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day timelimit (from the date of notice of dismissal) in the Fair Work Commission.

Pregnancy

This occurs where a woman is treated unfavourably because she is pregnant, or because she might become pregnant. It includes unfavourable treatment based on a belief about pregnant women in general, for example, that pregnant women are not interested in working. An example would be where an employer reduces a worker’s hours when she becomes pregnant, even though the worker is still quite capable of working her usual hours.

Legislation:

Areas of discrimination on basis of pregnancy under SA law

In South Australia it is illegal under the Equal Opportunity Act 1984 (SA) to discriminate on the grounds of pregnancy. This includes discrimination because it is thought likely that the woman may become pregnant.

The following areas of discrimination on the basis of pregnancy are unlawful:

  • education
  • employment
  • accommodation
  • interest in land
  • conferral of qualifications
  • provision of goods and services
  • membership of associations

Exemptions

  • Employment not connected with an employer's business
  • Employment: in the case of discrimination arising out of dismissal from employment, there is no other work the employer could reasonably be expected to offer and the woman has been offered leave for the period where she would be unable to perform adequately and she has refused to take leave
  • Discrimination based on the fact that a woman would not be able to adequately perform work reasonably required of her or respond to emergencies without endangering herself, the unborn child or others
  • Accommodation:
    • in one's own household
    • not for profit organisations providing accommodation for particular groups of persons
  • Charities
  • The granting of rights and privileges to women in connection with childbirth or pregnancy

Areas of discrimination on basis of pregnancy and family responsibilities under Commonwealth law

Discrimination on the basis of pregnancy under Commonwealth legislation includes the fact that a woman is capable of bearing children, or has expressed a desire to become pregnant.

Discrimination on the basis of pregnancy (including potential pregnancy) is prohibited in the following areas:

  • employment (applies also to partnerships, contract workers and employment agencies)
  • qualifying bodies (i.e. bodies that award professional and trade qualifications)
  • registered organisations
  • education
  • goods and services
  • accommodation
  • land
  • incorporated clubs and associations
  • administration of Commonwealth laws and programs
  • requests for information - it is unlawful to request information if a person who is not pregnant or potentially pregnant would not be required to provide the same information in the same or similar circumstances

Exemptions

  • Accommodation
    • where the person providing the accommodation or a near relative of theirs intends to reside on the premises and the accommodation is for no more than 3 other persons
    • where provided by a religious body
    • where provided by a charitable organisation for persons of a particular marital status
  • Requests for information - requests for medical history or information on a medical condition

Pregnancy discrimination at work is also unlawful under the Fair Work Act 2009 (Cth) and complaints can be made to the Fair Work Ombudsman.

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Livestock manager has job taken away after falling pregnant

Jane was working as a livestock manager in a medium-sized country livestock business. On discovering she was pregnant, her doctor recommended light duties for four weeks and to avoid administering medication to livestock. She told her employer, Keith, and provided a doctor's certificate.

Keith called a meeting for himself, Jane, and another employee, Jack, and said Jack would now take over from Jane as manager. Jane asked for Keith to put this in writing, which he did, stating, "Jane is now pregnant and I feel in the future she will not be able to have the time necessary to do the job."

Jane took sick leave and made a complaint to the Equal Opportunity Commissoin. Keith denied that Jane was either demoted or discriminated against. The business had undergone a restructure and Jane's status in the business had been retained along with her salary package. However, her medical certificate placed some restrictions on her and he was concerned about her safety as they work with heavy animals and chemicals.

Outcome: At conciliation, Keith agreed to pay Jane $2,800 for loss of income and allow Jane to return to work after signing her clarified job description.


Family responsibilities

This occurs where a person is treated unfavourably because they have a responsibility to provide care for a family member, such as a dependent child or a frail elderly parent. This discrimination also occurs when people are treated unfavourably because of assumptions made about people with caring responsibilities. For example, it is discrimination if an employer decides not to hire a job applicant because that person is the sole carer for a disabled spouse and the employer assumes that the applicant will be frequently late for work.

Legislation:

Areas of discrimination on basis of family responsibilities under SA law

In South Australia it is illegal under the Equal Opportunity Act 1984 (SA) to discriminate on the ground of family responsibilities. This means the responsibility to provide care for a dependent child or for an immediate family member who is in need of care and support.

Immediate family members include spouses and domestic partners, children, parents, siblings, grandparents, grandchildren and the corresponding relatives of one’s spouse or partner. They also include a person to whom an Aboriginal or Torres Strait Islander person owes a responsibility of care or support under applicable kinship rules.

It is unlawful to discriminate based on a person’s family responsibilities in:

  • education
  • work
  • accommodation
  • sale of land
  • conferral of qualifications
  • goods and services
  • membership of associations.

Exemptions

  • employment not connected with an employer's business
  • charities
  • special measures intended to achieve equality
  • associations established for persons with caring responsibilities or particular caring responsibilities
  • accommodation in one's own household
  • accommodation provided by not for profit organisations for the benefit of persons with particular caring responsibilities

Areas of discrimination on basis of family responsibilities under Commonwealth law

Discrimination on the basis of family responsibilities is also prohibited under Commonwealth law.

Under the Sex Discrimination Act, the definition of family responsibilities is the same as in South Australian law, but discrimination on this ground is only unlawful if it occurs in relation to the person's work or selection for work.

Discrimination at work on the basis of family responsibilities is also prohibited under the Commonwealth Fair Work Act 2009 (Cth) and, in that case, any type of adverse action at work is covered.

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Breastfeeding or Association with a Child

Legislation

South Australian legislation refers to 'association with a child', which includes breastfeeding, whereas Commonwealth legislation only refers to breastfeeding.

Association with a child covers situations where [Equal Opportunity Act 1984 (SA) s 85T(5)]:

  • a person is breastfeeding or bottle feeding (or proposes to do so)
  • a person is with a relative or friend who is breastfeeding or bottlefeeding (or with someone who proposes to do so)
  • a person is or will be accompanied by a child
  • a person is with a relative or friend who is or will be accompanied by a child.

The Commonwealth legislation specifically includes expressing milk in its definition of breastfeeding [s 7AA].

Areas of discrimination on the basis of association with a child under SA law

  • Provision of goods or services

    It is unlawful in South Australia to treat a person unfavourably in the area of provision of goods or services because they are accompanied by a child or have a responsibility to breastfeed or bottle feed a child.
  • Rental accommodation

    It is unlawful under the Equal Opportunity Act 1984 (SA) and the Residential Tenancies Act 1995 (SA) [s 52] to refuse a person rental accomodation or to move a person's application down the list because they will be sharing the accommodation with a child.
  • Education

    It is unlawful under the Equal Opportunity Act 1984 (SA) to treat a female student unfavourably in her education because she is breastfeeding.

Areas of discrimination on the basis of breastfeeding under Commonwealth law

It is unlawful to discriminate based on the fact that a woman is breastfeeding in the areas of:

  • work
  • education
  • provision of goods, services and facilities
  • accommodation
  • land
  • clubs
  • administration of Commonwealth laws and programs.

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Time limits

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Racial discrimination

Legislation:

Areas of discrimination on basis of race under SA law

Under South Australian legislation it is unlawful to discriminate against a person on the basis of race in the following areas:

  • employment
  • membership of an association
  • qualifying bodies
  • education
  • sale of land
  • provision of goods and services
  • accommodation
  • superannuation

Exemptions

  • charities
  • special measures designed to benefit persons of a particular race or ethnic group
  • employment not in connection with an employer's business
  • employment for which it is a genuine occupational requirement that a person be of a particular race
  • social clubs established for the purpose of promoting the interests of persons of a particular race or ethnic group
  • accommodation in one's own household

Areas of discrimination on basis of race under Commonwealth law

It is unlawful under Commonwealth legislation to discriminate on the basis of race, colour, descent or national or ethnic origin in the following areas:

  • Access to places and facilities
  • Land, housing and other accommodation
  • Provision of goods and services
  • Membership of trade unions
  • Employment

Under section 10 equality before the law is guaranteed. If a law of the Commonwealth or a state gives rights to one racial group and not another, the effect of this section is to give the same rights to the excluded racial group.

The Fair Work Ombudsman can also accept complaints about discrimination at work on the ground of race.

Exemptions under the Racial Discrimination Act 1975 (Cth)

  • Special provisions made to seek the advancement of certain racial or ethnic groups requiring such protection as to ensure they enjoy equal enjoyment of human rights and fundamental freedoms
  • Employment of a person on a foreign-owned ship or aircraft if person employed outside Australia
  • Employment in a private household
  • Any provision of a will or deed conferring charitable benefits on members of a particular race, colour or national or ethnic group

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Aboriginal teacher subject to racial slur and refused service at supermarket

Michelle, an Aboriginal teacher, said she was not served in a large regional supermarket. When she complained to the manager, the shop assistant said, "I couldn't see her because of the colour of her skin." Michelle said this was witnessed by a non-Aborginal colleague. Michelle was quite distressed and went back into the store to follow up with the manager, but did not feel the matter was properly dealt with.

In response to her complaint, the store investigated the matter and provided letters of apology from both the shop assistant and the manager.

Outcome: At conciliation, the store undertook to provide discrimination training to all staff and pay Michelle $1500 compensation.


Racial hatred

Legislation

Racial vilification in South Australian law

It is an offence to incite hatred or severe ridicule or contempt of a person or group of persons on the basis of their race by threatening physical harm or harm to property or inciting others to do so (Racial Vilification Act 1996 (SA)). Any such offence should be reported to the police.

It is also a civil wrong to do a public act that incites hatred, severe ridicule or serious contempt of a person or group on the ground of their race [Civil Liability Act 1936 (SA) s 73]. A public act means conduct in a public place or any form of communication with the public (for instance, a radio broadcast). If this happens, any person or group affected can sue for damages of up to $40 000 in total for all persons affected by the one act. It is not, however, unlawful to publish a fair report of actual events or to publish genuine and reasonable academic, artistic or scientific material.

Racial hatred in Commonwealth law

Offensive behaviour based on racial hatred is also prohibited under the Racial Discrimination Act 1975 (Cth). Under s 18C it is unlawful for a person to do an act, other than in private, if the act is reasonably likely to offend, insult, humiliate or intimidate another person or group of persons and the act is done because of race, colour, national or ethnic origin. A complaint can be made to the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Exemptions to this include: performance, distribution or exhibition of artistic works statements or comments made in public interest discussions and the publication of a fair and accurate report of an event or matter of public interest.

Sexuality and chosen gender

This type of discrimination occurs where a person is treated unfavourably because the person is homosexual, heterosexual, bisexual or of a chosen gender, or because of characteristics that they are assumed to have because of their sexuality. For example, it is discrimination to refuse to hire a worker because he or she is bisexual. It would also be discrimination for a relationship-preparation course to exclude homosexual couples because it is assumed that their relationships are not enduring.

Chosen gender refers to a person’s adopting the characteristics of the sex opposite to their biological sex (sometimes called transgender) and also includes people who have an intersex condition and decide to live as a member of one or the other sex. It is discrimination to treat these people unfavourably because of the gender that they have adopted as their own. It is also discrimination for an employer to require them to dress as a member of the sex with which they do not identify.

Legislation:

Areas of discrimination on basis of sexuality or chosen gender under SA law

Under the Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sexuality or chosen gender in the following areas:

  • education
  • employment
  • accommodation
  • conferral of qualifications
  • provision of goods and services
  • membership of clubs and associations (other than clubs specifically for homosexuals or bisexual people or people of a chosen gender)

Exemptions

  • charities for the benefit of people of a chosen gender or with a particular sexuality
  • special measures intended to achieve equality for persons of a chosen gender or with a particular sexuality
  • religious bodies in the ordination or appointment of priests, ministers of religion or members of a religious order, or in the training of priests or ministers
  • membership of religious associations
  • employment not connected with an employer's business
  • employment in religious schools - a religious school that wishes to use this exemption must have a policy saying so and must give this to all job applicants and to anyone else who asks for a copy
  • accommodation in one's own household
  • accommodation provided by not for profit organisations for the benefit of persons of a chosen gender or with a particular sexuality
  • employment: with regard to chosen gender, if discrimination is for the purpose of enforcing standards of appearance and dress reasonably required for employment
  • associations established for persons of a chosen gender or with a particular sexuality
  • associations where exclusion on the grounds of chosen gender or sexuality is administrated on religious precepts
  • registered objectors under the Assisted Reproductive Treatment Act 1988 (SA) – section 8 of the Act allows a provider of reproductive technologies to register their objection on religious grounds to the provision of assisted reproductive treatment on the basis of sexual orientation, gender identity or marital status; however, it is a condition of registration that they refer the person seeking treatment to another registered provider.

Areas of discrimination on basis of sexual preference under Commonwealth law

Australian Human Rights Commission

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 introduced changes to the Sex Discrimination Act 1984 (Cth) to enable the Australian Human Rights Commission to investigate and resolve complaints of discrimination, harassment and bullying based on a person’s gender identity and intersex status, relating to conduct that occurred after 1 August 2013. (The Commission can also receive complaints on this basis for conduct that occurred prior to 1 August 2013, however can only take the matters to the Conciliation stage and write a report to the Attorney-General).

There is a temporary exemption under these provisions (until 31 July 2014) for conduct that would otherwise be discrimination on the grounds of sexual orientation, gender identity or intersex status if the conduct is in direct compliance with a Commonwealth, State or Territory law prescribed by regulations.

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

The Fair Work Commission can hear claims of discrimination in work on the ground of sexual preference, under the Fair Work Act 2009 (Cth) s 351 [see the Employment chapter for information about this general protection under that Act]. See also the Fair Work Commission's guide to general protection applications.

Time limit:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Threatened in own home because of sexuality

Mike and Greg lived together in an Adelaide suburb. Their property was assessed by the local council for installation of a new driveway. When the worker arrived to do the work he made derogatory comments about Mike and Greg's sexuality after seeing them together in the house. Some of the comments that he made were, 'You gays don't deserve to have this work done ... I will make you wait', and 'I know people who will bash you up'. The worker then refused to finish the work promised. Mike and Greg were angry and felt humiliated by these remarks.

Mike and Greg complained to the local council but were told that the worker was an independent contractor and not the council's responsibility. Mike and Greg then made a complaint to the Equal Opportunity Commission.

Outcome: At conciliation the Council agreed to provide all contract workers with written information about their responsibilities regarding discrimination, that all people requesting a copy of council policy will receive one free of charge and made a commitment to ensure that their staff were aware of their discrimination policy. A payment of $500 each was made to Mike and Greg for injury to feeling.


Sex discrimination

This occurs where a person is treated unfavourably because of their sex or because of characteristics that people of that sex are thought to have. For example, it is sex discrimination to set inconsistent dress codes for men and women patrons at a nightclub (for example, women can wear sandals but men cannot). It is also sex discrimination to refuse to hire men in a helping profession because they are assumed to lack empathy.

Legislation:

Areas of discrimination on basis of sex under SA law

Under the Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sex in the following areas:

  • education
  • employment
  • accommodation
  • sale in land
  • conferral of qualifications
  • provision of goods and services
  • membership of an association that has both male and female members

Exemptions

  • charities
  • special measures intended to achieve equality
  • sport: where strength, stamina or physique are relevant in competition
  • insurance, where based on reliable actuarial or statistical data
  • religious bodies in relation to the ordination or appointment of priests, ministers or religion or members of a religious order or in relation to training of priests, ministers, etc
  • employment not connected with an employer's business
  • employment for which it is a genuine occupational requirement that a person be of a particular sex
  • associations, where it is not practicable for a service or benefit to be used or enjoyed simultaneously by both men and women and the same or an equivalent service is provided at other times
  • single-sex associations (eg clubs and groups)
  • single-sex schools, colleges and boarding houses
  • accommodation in one's own home
  • single-sex accommodation provided by not-for-profit organisations

Areas of discrimination on basis of sex under Commonwealth law

The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the basis of sex in:

  • employment
  • superannuation, regarding exercise of discretion in relation to payment of benefit
  • qualifying bodies
  • education
  • goods, services and facilities
  • accommodation
  • land
  • clubs
  • administration of Commonwealth laws and programs
  • requests for information

Exemptions

  • employment in a private household
  • employment, where it is a genuine occupational requirement of the job
  • education, single-sex educational institutions
  • accommodation
    • where person offering the accommodation or a near relative resides there and it is for no more than 3 other persons
    • where provided by a religious body
    • where provided by a charitable or other not-for-profit organisation solely for members of one sex
  • residential care of children
  • the provision of services the nature of which is such that they can only be provided to members of one sex
  • disposal of land by way of will or gift
  • religious bodies, except where that religious body is providing accommodation in connection with Commonwealth Aged Care [see section 23(3A) of the Sex Discrimination Act 1984 (Cth)]
  • educational institutions established for religious purposes
  • voluntary bodies
  • acts done under statutory authority e.g. an order of a Court or tribunal or decision made under an industrial award or agreement
  • insurance and superannuation, where based on reliable actuarial or statistical data
  • sport
  • combat duties

Making a complaint

There is no cost to lodge a complaint in either the Equal Opportunity Commission (SA) or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

The Fair Work Commission can also take complaints of discrimination in work on the ground of sex. See further the Employment law chapter on general protections.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6months previously.

The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time.

General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.

Same-sex couple refused hotel manager jobs

Kevin and Todd, in a same-sex relationship, applied for a position as a Hotel Managing Couple for a hotel in an Adelaide suburb. The hotel owner appeared keen to appoint them, but cancelled the interview at the last minute, making a comment about "wanting a woman behind the desk." Todd had flown from Sydney for the interview.

When Kevin and Todd made a complaint, the hotel owner denied making the comment about a woman and stated that he didn't want Todd to travel from interstate for the interview because he could not guarantee they would be successful in getting the position. He had been given a poor report by one of Kevin's referees.

Outcome: At conciliation the hotel owner agreed to pay for Todd's flight from Sydney.


Sexual harassment

Legislation

What is sexual harassment?

Sexual harassment includes unwelcome conduct of a sexual nature that a reasonable person would find offensive, humiliating or intimidating. The conduct can be spoken or written words, pictures or actions.

Common examples include:

  • making remarks about a person’s appearance or attractiveness
  • asking a person questions about their relationship or sexual activity
  • sending emails with sexual content
  • showing a person pornographic pictures e.g. on a phone or computer
  • unnecessarily touching the person

This behaviour is unlawful because it is a form of bullying or intimidation that affects a person’s ability to participate in public life.

The test under the Equal Opportunity Act used to determine whether behaviour is sexual harassment is whether a reasonable person would have expected that the other person would be offended, humiliated or intimidated by the behaviour. Behaviour that most people would regard as inoffensive will not amount to sexual harassment just because the recipient feels offended by it. Conversely, behaviour that most people would regard as offensive will not be lawful just because the person who did it thought that no-one would mind. It does not matter whether or not the person intended to give offence.

The test to decide if behaviour amounts to sexual harrassment under the Commonwealth Sex Discrimination Act is broader than the South Australian test. The Commonwealth test is whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Circumstances to be considered include:

  • the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person allegedly harassed
  • the relationship between the person harassed and the person who engaged in the conduct
  • any disability of the person allegedly harassed
  • any other relevant circumstance.

As with discrimination laws, sexual harassment laws are concerned with participation in public life and not with conduct in private life. Unwanted sexual behaviour in private life may amount to sexual assault or stalking and, if so, could be reported to the police, but it is not covered by sexual harassment laws.

Sexual harassment is unlawful:

  • in the workplace, including in job selection processes, in volunteering and in unpaid work experience.
  • in education, of students or staff, by staff or by students aged 16 years or older
  • in granting qualifications (including renewing, conferring, extending, revoking or withdrawing a qualification for a particular occupation)
  • in accommodation, including selection for accommodation
  • by the members of a committee of a club or association, against members of that club or association (South Australian law only)
  • in providing goods or services (harassment of customers by staff)
  • in receiving goods or services (harassment of staff by customers - South Australian law only)
  • in services provided by State government or in Commonwealth government programs.

The coverage of Commonwealth and State law varies and you should seek advice on this in deciding whether to complain to the Equal Opportunity Commission or the Australian Human Rights Commission.

Under both Commonwealth and State law, employers will be legally responsible for sexual harassment in their workplaces unless they can show that they have taken reasonable steps to prevent it. In South Australian law, an employer can be responsible for harassment by a third party who visits the workplace, if it had been reported and the employer did not take reasonable action to stop it recurring.

Making a complaint

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

Sexual harassment in the workplace can also be classed as workplace bullying and be dealt with by either SafeWork SA or the Fair Work Commission - see further the Employment chapter on Bullying.

Time limits:

The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 6 months previously.

The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time.

D Andrea v Wayne Jaye and Studio Silva Photography

Ms D'Andrea accepted contract work as a photographer for a local photography studio. On her second day at the studio, Ms D'Andrea was asked by her employer (Mr Jaye) if she would like to go interstate with him. When she asked if the trip was work related, Mr Jaye said, "It could be".

Ms D'Andrea made a sexual harassment and sex discrimination complaint against Mr Jaye, claiming that he:

  • asked her to dinner
  • commented on her appearance on numerous occasions
  • asked questions and made comments about her relationship
  • told her that they were meant to be together, and that she had feelings for him but could not express them
  • prevented her from leaving the company premises so he could talk to her for longer
  • commented on her underwear and lifted up her jumper
  • asked her to trade trousers with him and remove her jumper while on a location shoot
  • slapped her bottom

A conciliation conference between the parties was held, but settlement negotiations broke down when Mr Jaye did not respond to contact from the Commission.

The matter was then referred to the Tribunal.

Mr Jaye did not appear at the Tribunal.

The Tribunal found that Ms D’Andrea was entitled to a total of $22,000 compensation, which included lost wages and $10,00 for stress and humiliation caused by the harassment.


Religion and religious dress

Legislation:

Religious dress discrimination in South Australian law

South Australian law does not cover religion in general but covers the wearing of religious dress, in work and education only.

In South Australian law, it is unlawful to treat a person unfavourably in their work or their education because they wear dress or adornments that are required by or symbolic of their religion. For example, a school could not send a Muslim student to detention because she refused to remove her hijab.

Exceptions

  • where the religious dress would present a safety hazard
  • where it is reasonable to require a person to show their face for identification purposes
  • where standards of dress or appearance are reasonably required for employment
  • a school that is administered by a particular religion may prevent students from wearing dress or adornments of another religion

In general, employers may set reasonable dress requirements for the workplace.

Religious discrimination in Commonwealth law

Commonwealth law covers this ground of discrimination only in the area of work.

In Commonwealth law, it is unlawful to treat a person unfavourably in their work because of their religion. This includes refusing to hire them, hiring them on less favourable terms, denying them access to any benefits that go with the job, dismissing them or subjecting them to other adverse treatment. A complaint can be made to the Fair Work Ombudsman or the Australian Human Rights Commission, with different consequences.

Complaints

Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.

For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.

Political opinion

Legislation:

South Australian law does not cover this ground of discrimination, but Commonwealth laws applying in South Australia cover discrimination on this ground in the area of work only.

Commonwealth law

In Commonwealth law, it is unlawful to treat a person unfavourably in their work because of their political opinion, including trade union activities. This includes refusing to hire them, hiring them on less favourable terms, denying them access to any benefits that go with the job, dismissing them or subjecting them to other adverse treatment. Commonwealth law does not cover this type of discrimination in any other area apart from the workplace.

Complaints

The Fair Work Commission can accept claims about discrimination in work on the ground of political opinion, under the Fair Work Act 2009 (Cth) s 351. See the Employment chapter of the handbook on protected workplace rights: General Protections.

The Australian Human Rights Commission can also accept such complaints but cannot take them beyond the stage of conciliation. It can report about them to the Federal Attorney-General.

Social origin

South Australian law does not cover this ground of discrimination, but Commonwealth laws applying in South Australia cover discrimination on this ground in the area of work.

The law is not clear about what this type of discrimination covers, but it could cover a person’s social class, family background and local origin.

Legislation:

South Australian law does not cover this ground of discrimination, but Commonwealth laws applying in South Australia do.

Commonwealth law

In Commonwealth law, it is unlawful to treat a person unfavourably in their work because of their social origin. This includes refusing to hire them, hiring them on less favourable terms, denying them access to any benefits that go with the job, dismissing them or subjecting them to other adverse treatment. Commonwealth law does not cover this type of discrimination in any other area apart from the workplace.

Complaints

The Fair Work Commission can accept claims about discrimination in work on the ground of social origin, under the Fair Work Act 2009 (Cth) s 351. See the Employment chapter of the handbook on protected workplace rights: General Protections.

The Australian Human Rights Commission can also accept such complaints but cannot take them beyond the stage of conciliation. It can report about them to the Federal Attorney-General.

Areas of public life

Discrimination is only unlawful in specific areas of public life, not in all situations.

Discrimination is generally unlawful in:

  • work, including job selection, promotion, access to training opportunities and other benefits, and dismissal from work
  • education, including primary and secondary schooling and tertiary education
  • conferral of qualifications
  • access to goods and to some services
  • accommodation
  • sale of land
  • membership of clubs and associations

Exemptions from discrimination laws

As well as the exemptions that are already given by the law, it is possible for an employer, education provider or other trader to apply for an exemption to a discrimination law to cover their own particular circumstances.

The South Australian Employment Tribunal can grant exemptions from provisions of the South Australian Equal Opportunity Act 1984 (SA) (including outside of employment situations) and the Australian Human Rights Commission can grant exemptions from provisions of Commonwealth anti-discrimination laws.

In general, exemptions are granted for a limited time and conditions may be imposed.

See further:

The Equal Opportunity Commission's website on Exceptions to the Rules; and

The Australian Human Rights Commission website on Exemptions.

What is detriment?

To make a complaint about discrimination, you need to have suffered some type of harm or loss because of it. A person cannot complain about a practice that they think is discriminatory but which does not affect them personally.

Any type of harm or loss can be considered. Typical examples are:

  • being refused employment or not being considered for employment
  • being treated less favourably than other staff in the workplace
  • being refused accommodation, goods or services
  • being offered accommodation, goods or services at a higher price or on less favourable terms than others
  • not being able to gain access to public premises
  • not being allowed to join a club, or being admitted on less favourable terms.

Detriment can also take the form of humiliation or denigration, for example, putting the person down, ridiculing them or jeering at them.

Making a complaint

If you wish to make a complaint under the anti-discrimination laws, you cannot go directly to a court or tribunal. You must first make a complaint to one of the relevant anti-discrimination agencies, that is:

Choosing jurisdiction

You will need to consider which pathway best fits your complaint. As such it is best to get legal advice.

If you have been dismissed, however, then you should contact the Fair Work Commission, which handles cases of unfair or unlawful dismissal. You have only 21 days to lodge an application about an unfair dismissal or unlawful dismissal (including dismissal for discriminatory reasons).

More detail about the role of the Fair Work Ombudsman and of Fair Work Commission are found on their websites. They also have helplines open to receive enquiries. See further: the Employment chapter of the handbook, in particular, the section on on protected workplace rights: General Protections.

The Australian Human Rights Commission can accept complaints about discrimination in public life generally, including work, education, qualifications, goods and services and accommodation. It applies the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) (all Commonwealth Acts). The Commission’s role is principally to try to conciliate between the disputing parties to reach an agreed solution. Matters that do not resolve in this way can (with some exceptions) be referred to the Federal Court, where the parties can litigate the case if they choose. (The Federal Court is a formal jurisdiction and the losing party will normally have to pay the winning party’s costs.) There are some matter types where, if conciliation does not succeed, the complaint cannot be taken further.

More detail about the role of the Australian Human Rights Commission is available from its website. It also has a telephone enquiry line: 1300 656 419.

The South Australian Equal Opportunity Commission can accept complaints about discrimination in public life if they are covered by the Equal Opportunity Act 1984 (SA). Its role is to conciliate between the parties. If conciliation does not succeed, the case can be referred to the Tribunal. The Commissioner has a discretion as to whether to provide funding to the parties to litigate the case in the South Australian Civil and Administrative Tribunal (SACAT) SACAT can refer the matter to the South Australian Employment Tribunal (SAET) where it relates to another matter where SAET has jurisdiction (employment matters, for example, also relates to an underpayment of wages). This is a less formal jurisdiction and neither party will normally have to pay the other’s legal costs. However, monetary awards from the Tribunal are usually much lower than awards in Commonwealth cases.

If the South Australian Equal Opportunity Commission takes up your complaint and acts on it, you will no longer be able to take that complaint to the Australian Human Rights Commission (AHRC). It is, however, generally possible to take the complaint to the Australian Human Rights Commission and then later opt to move to the Equal Opportunity Commission.

Choosing among these pathways is not a simple matter. Your choice can significantly affect your rights and you should seek advice first. Each agency can advise on whether it can handle a particular complaint, and will refer complaints to the other agency if necessary. It is always worth speaking to each agency before making your decision.

Equal Opportunity Commission Legal Advice Service

Equal Opportunity Commission Legal Advice Service

A free legal advice service run by the University of Adelaide - providing assistance in areas of Equal Opportunity Law (e.g. sexual harassment, discrimination, etc.).

Run by final year law students who are supervised by fully qualified lawyers.

Telephone: 8207 1977 (between 10am - 3pm)

Email: eoclas@adelaide.edu.au

Visit the University of Adelaide - Equal Opportunity Commission Legal Advice Service website for more information.

    Discrimination Law  :  Last Revised: Tue Oct 15th 2019
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.