Anti-discrimination law in Australia: federal vs state-by-state

The federal framework

The federal anti-discrimination framework in Australia is established through four key Acts of Parliament. These are the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 2004. These Acts prohibit discrimination and promote equal opportunity in various areas of public life.

The Australian Human Rights Commission (AHRC) administers these federal Acts. The AHRC’s role includes investigating complaints of discrimination, providing education and guidance, and promoting understanding of human rights.

Workplace sexual harassment is now specifically addressed under federal law. Section 47C of the Sex Discrimination Act 1984 introduces a positive duty requirement, obligating employers to take reasonable steps to prevent sexual harassment. This provision is enforceable by the AHRC, with enforcement commencing on 12 December 2023.

State and territory Acts

Each state and territory in Australia has its own legislation governing discrimination. These Acts provide legal frameworks to protect individuals from unfair treatment based on characteristics such as age, disability, gender, race, and other attributes. The specific protections and processes available vary between jurisdictions.

The legislation in each state and territory is administered by a dedicated commission or equivalent body. These bodies are responsible for providing information, investigating complaints, and promoting equal opportunity within their respective jurisdictions. Examples include Anti-Discrimination NSW, the Victorian Equal Opportunity and Human Rights Commission, and the NT Anti-Discrimination Commission.

Here's a list of the relevant Acts and administering bodies:

• NSW: Anti-Discrimination Act 1977 — Anti-Discrimination NSW
• VIC: Equal Opportunity Act 2010 — Victorian Equal Opportunity and Human Rights Commission
• QLD: Anti-Discrimination Act 1991 — Queensland Human Rights Commission
• WA: Equal Opportunity Act 1984 — Equal Opportunity Commission WA
• SA: Equal Opportunity Act 1984 — Equal Opportunity Commission SA
• TAS: Anti-Discrimination Act 1998 — Equal Opportunity Tasmania
• ACT: Discrimination Act 1991 — ACT Human Rights Commission
• NT: Anti-Discrimination Act 1992 — NT Anti-Discrimination Commission

Choice of regime

A complainant generally has the option to lodge a discrimination complaint under either federal or state legislation when the conduct in question falls within the scope of both. However, a complainant cannot pursue the same matter under both regimes concurrently.

The decision to lodge under a particular Act is significant, as each Act contains its own specific protected attributes, exemptions, and legal tests. These differences can substantially influence the potential outcome of the complaint.

Employers operating in Australia must comply with all applicable anti-discrimination legislation, regardless of whether a complaint is lodged under the federal or a state Act.

Practical implications

Compliance with anti-discrimination law in Australia presents practical challenges for employers, particularly those operating nationally. A single, comprehensive anti-discrimination policy is essential to ensure coverage of all relevant legislation, given the interplay of federal and state-based Acts. This policy must be regularly reviewed and updated to reflect changes in legislation and case law.

A frequent area of concern during audits relates to reasonable adjustments for employees with disabilities and the avoidance of indirect discrimination. Employers should proactively identify potential barriers and implement strategies to mitigate discriminatory impacts. Conducting thorough and impartial workplace investigations is also critical, requiring a robust framework that satisfies obligations under all applicable anti-discrimination legislation. Consider using a workplace investigation timer to ensure investigations are conducted promptly and efficiently.

To assist in ensuring compliance:

• Review existing policies and practices.
• Provide training to staff on anti-discrimination obligations.
• Maintain accurate records of complaints and resolutions.