Sex Discrimination Act 1984 (Cth): Overview, Coverage and Positive Duty

What the Act prohibits

The Sex Discrimination Act prohibits direct discrimination on the ground of sex. This means treating someone less favourably because of their sex. Amendments in 2013 extended this protection to include discrimination based on gender identity, intersex status, and sexual orientation. Anti-discrimination by state in Australia provides further context on state-based protections.

The Act also addresses indirect discrimination. Section 7B outlines a test for indirect discrimination, which occurs when a requirement or condition has a disadvantaging effect on people of a particular sex and is not reasonable in the circumstances. This can include policies or practices that appear neutral but disproportionately affect one sex.

Beyond sex itself, the Act protects against discrimination based on marital or relationship status, pregnancy or potential pregnancy, breastfeeding, and family responsibilities. Employers are subject to vicarious liability under s 106 for the unlawful conduct of employees and agents, unless reasonable steps were taken to prevent the discrimination. Sexual harassment positive duty under s 47C is a related obligation for employers.

Sexual harassment and hostile workplace environments

The Sex Discrimination Act prohibits sexual harassment, defined in section 28A as unwelcome conduct of a sexual nature. This conduct is unlawful if, in the circumstances, a reasonable person would anticipate the possibility the person harassed would be offended, humiliated or intimidated. Section 28B makes such harassment unlawful in employment contexts, covering workers, prospective workers, persons conducting a business or undertaking (PCBUs) and their workers. Sexual harassment positive duty under s 47C outlines obligations for employers.

Furthermore, section 28AA (inserted by the Respect@Work amendments in 2022) specifically prohibits subjecting another person to a workplace environment that is hostile on the ground of sex. This expands the scope of prohibited conduct beyond individual acts of harassment.

Separately, sex-based harassment is prohibited when unwelcome conduct of a seriously demeaning nature occurs by reason of the person's sex. This recognises that harassment can be based on a person’s sex, even if the conduct does not meet the definition of sexual harassment under section 28A.

The positive duty (section 47C)

Section 47C imposes a positive duty on PCBUs (within the WHS Act meaning) to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment, sex-based harassment, hostile workplace environments and related victimisation. This duty requires proactive steps to prevent these behaviours and related victimisation, rather than simply responding to incidents. [Sexual harassment positive duty under s 47C]

The positive duty commenced on 12 December 2022. From 12 December 2023, the Australian Human Rights Commission (AHRC) gained compliance and enforcement powers relating to this duty. This allows the AHRC to investigate potential breaches and take action to ensure compliance.

The AHRC can conduct inquiries, issue compliance notices, accept enforceable undertakings and apply to the Federal Court for orders to enforce compliance with the positive duty. The AHRC’s Guidelines for Complying with the Positive Duty identify seven standards to assist PCBUs in meeting their obligations: leadership, culture, knowledge, risk management, support, reporting and response, and monitoring/evaluation.

Complaints and enforcement via the AHRC

Complaints alleging unlawful discrimination under the Sex Discrimination Act are lodged with the Australian Human Rights Commission, operating under the Australian Human Rights Commission Act 1986. The AHRC facilitates a process where the President investigates and attempts to resolve these complaints through conciliation. Anti-discrimination by state in Australia provides further context on similar legislation.

If conciliation is unsuccessful and the complaint is terminated, a complainant has recourse to the Federal Court or Federal Circuit and Family Court. This application must be made within 60 days.

The courts have the power to grant various remedies, including damages, declarations, injunctions, and orders requiring specific actions to address any loss or damage suffered as a result of the discrimination.