The ACT Discrimination Act

Contributed by Kezlee Gray, ACT Human Rights Commission and current to April 2018.

Right of Action

Under the Discrimination Act 1991 (ACT) ("the Act"), a person can make a complaint to the ACT Human Rights Commission ("Commission") if they believe they have been discriminated against because they have an attribute that is protected by the Act, and for other reasons including being sexually harassed, vilified, or victimised.

The Act covers private, public and community sector organisations, as well as individuals.

Making a complaint to the Commission creates a potential pathway to the ACT Civil and Administrative Tribunal ("ACAT") as a complainant has the right to request that their complaint be referred to the ACAT if the complaint is unable to be resolved through the Commission’s conciliation process.

Elements of discrimination

There are three elements of discrimination needed for the Act to apply. These are:

1. A person has been treated unfavourably (or unreasonably disadvantaged);
2. Because they have an attribute protected by the Act (or linked to having an attribute); and
3. The treatment happens in an area of public life that is covered by the Act.

The Act covers both direct discrimination and indirect discrimination, and the attribute needs to be only one factor in the way a person is treated. The Act also covers not doing something, for example not making reasonable adjustment for a person’s disclosed disability in the workplace. Intention to discriminate is not a necessary element of discrimination, but instead the focus is on the impact of the treatment, that is whether it has a negative effect.

Examples of direct discrimination are where a person misses out on a promotion because they are pregnant, or where a person is subjected to a racial comment in the workplace.

An example of indirect discrimination is where a person is refused a job because they do not meet a minimum height requirement, and that requirement is not reasonable in all of the circumstances. This is because it can be argued that it would be more difficult for women, or people of particular cultural backgrounds to meet such a requirement thereby bringing into play the attributes of sex, and race.

Another example of indirect discrimination is a requirement for a person to be available to work every shift on a 24 hour/seven day a week roster where this is not reasonable in all of the circumstances. This requirement may be difficult for people with parent and carer responsibilities to comply with.

Factors to be taken into account to decide whether indirect discrimination is reasonable (and therefore lawful) include the nature and extent of any disadvantage that results from imposing the condition or requirement, and how feasible it is to overcome or reduce the disadvantage that the person experiencing the discrimination is subjected to.

Protected attributes

The Act protects a broad range of attributes. Many of these have been covered since the Act commenced in January 1992, such as disability (originally included as impairment), race, and sex. Further attributes have been added since the Act began, most recently in April 2017 following a review by the ACT Law Reform Advisory Council, which also led to the modernisation and expansion of a number of existing attributes.

The concept of ‘protected attribute’ specifically includes any ‘characteristics’ of attributes, an attribute that the person may have had in the past, and any attribute a person is assumed to have (either now or in the past). The attributes (or grounds) on which a discrimination complaint can currently be based in the ACT are:

• Accommodation status (including whether a person is homeless, lives in a property owned by Housing ACT, is on the Housing ACT waiting list, or is renting);
• Age (because the person is a child, a young person, or an older person);
• Association (with a person who has any protected attribute);
• Breastfeeding;
• Disability (is broadly defined, and can include sensory disability, physical disability, intellectual disability, a temporary disability, a workplace injury, mental illness, brain injury, a neurological condition, a condition that results in a person learning differently, the presence in a person’s body of organisms that could cause illness or disease, and reliance on a support person, disability aid or assistance animal);
• Employment status (including being unemployed, receiving Social Security or compensation, working part-time, casually, or temporarily, being a shift worker or a contractor);
• Gender identity (includes appearance, mannerisms, or other gender-related characteristics of a person with or without regard to the persons designated sex at birth);
• Genetic information;
• Immigration status (includes being an immigrant, refugee, asylum seeker or holding any kind of visa under the Federal Migration Act 1958);
• Industrial activity (includes being, or not being a member of a union, or organisation of employers, also being, or not being involved in union activities, or the activities of an employer organisation);
• Intersex status;
• Irrelevant criminal record (includes where a person has a conviction for an offence but the circumstances of the offence are not directly relevant to the situation in which the discrimination arises, charges that have not been finalised, an offence for which a person has been acquitted, and spent criminal convictions as defined in the Spent Convictions Act 2000);
• Parent, family, carer or kinship responsibilities (A person is a carer if another person depends on them for ongoing care and assistance on a non-commercial basis. The concept of kinship relates to the complex network of family and social relationships that underpin Aboriginal and Torres Strait Islander culture and community, and the obligations that arise from these);
• Physical features (means a person’s height, weight, size or other bodily features and is likely to include tattoos and piercings);
• Pregnancy (includes potential pregnancy);
• Political conviction (includes not having a political conviction);
• Profession, trade, occupation or calling (for example, sex workers);
• Race (includes colour, descent, ethnic and national origin, as well as nationality);
• Record of a person’s sex having been altered under the Births, Deaths and Marriages Registration Act 1997 (or an equivalent law);
• Relationship status (includes being single, and being in a same-sex or de facto relationship);
• Religious conviction (includes not having a religion, and engaging in the cultural heritage, distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander people in keeping with the cultural right contained in subsection 27(2) ACT Human Rights Act 2004);
• Sex;
• Sexuality;
• Subjection to domestic or family violence (Domestic or family violence occurs when one family member in an intimate relationship uses violent, abusive or controlling behaviour against another family member or person in that relationship).

Areas of public life

The Act provides protection in the following areas of public life:

Access to Premises

Covers entry to public premises, removal from these premises, and the terms and conditions upon which a person is able to use, and be present at these premises. ‘Public premises’ means premises that the public or a section of the public are entitled or allowed to enter and use. Use of public facilities is similarly included.

Accommodation

Includes rejecting a person’s application for accommodation (or giving a low ranking to their application), evicting them, subjecting them to any other detriment, or in the terms and conditions on which accommodation is offered.

Clubs

Only applies to clubs that hold a liquor licence under the Liquor Act 2010. Examples are refusing a person’s application for membership, the terms or conditions of membership, denying or limiting a member’s access to benefits provided by a club, or subjecting the member to any other detriment.

Education

Includes not being offered a place as a student, denial of access to benefits that are usually offered to students, failure to make reasonable adjustment for disability, expelling a student, or subjecting a student to any other detriment.

Employment

Covers permanent, casual or temporary paid (and unpaid work), people who are remunerated by the payment of a commission, do work under labour hire arrangements, or are working in partnership with others.

Includes decisions about hiring, the terms and conditions on which employment is offered, opportunities for promotion, transfer, training or any other benefits, dismissal, or subjecting an employee to any other detriment such as failure to make reasonable adjustment for disability, or give fair consideration to parent, family, carer or kinship responsibilities. The Act also creates a right for employees to carry out recognised religious practices during their working day where this does not create an unreasonable detriment to the employer.

Organisations and businesses can be held vicariously liable for any discrimination that occurs in a workplace that is under their control unless they can show that they took all reasonable steps to prevent any discrimination.

Employment agencies

Includes refusing to provide a person with services, the terms or conditions on which services are offered (or provided), and subjecting a person to any other detriment.

Goods, services and facilities

Includes refusal of service, the terms and conditions on which goods, facilities or services are provided, and the way in which these are made available including failure to make reasonable adjustment for disability. This area of public life also includes sport.

Professional or trade organisations

Covers failing to accept a person’s application for membership, the terms or conditions on which membership is offered, denying a member access (or limiting their access) to any benefits provided, or subjecting the member to any other detriment.

Qualifying bodies

Includes failing to confirm, renew or extend an authorisation or qualification, the terms or conditions on which the body is prepared to do this, revoking or withdrawing an authorisation or qualification, varying the terms and conditions on which these are held, or subjecting the person to any other detriment. A qualifying body is a body that a person must obtain registration or authority from to enable them to engage in, or practice, a particular profession.

Exceptions

There are a number of general exceptions which allow for discrimination to occur lawfully. There are also some exceptions which relate specifically to particular attributes and circumstances. For example there are exceptions that apply specifically to disability which make it legal to discriminate in situations where a ‘discriminator’ would face ‘unjustifiable hardship’ if they were not allowed to discriminate.

The Act requires that in deciding what is ‘unjustifiable hardship’ the nature of the benefit (or detriment) to all people concerned must be considered, as well as the nature of the disability, and the financial circumstances (and estimated amount of expenditure) of the person claiming the hardship.

There are also exceptions relating to domestic accommodation that allow a person to discriminate in certain situations such as in making choices about who to offer accommodation to in situations where they (or a close relative or person they care for) will be living in the accommodation that they are offering.

If an organisation or business wishes to rely on an exception and a complainant challenges this by making a complaint, but the matter is not resolved at the Commission through conciliation or otherwise, the complainant can still insist on their allegations being referred to ACAT. It will then be up to the organisation or business to provide evidence that will prove to the ACAT that the exception (which they are seeking to rely on to make their discrimination ‘legal’) does apply to the particular circumstances of the complaint.

Exceptions which commonly arise are set out below. However, there are a range of other exceptions contained in the Act.

It is very important to check whether there is an exception that applies to any situation you are concerned about, so as to understand whether the discrimination is likely to be lawful, or unlawful.

Measures intended to achieve quality

This exception allows for steps to be taken to ensure that members of particular groups have equal opportunities with other people, and to enable preferential access to facilities, services or opportunities so that the particular needs of groups of people (known as a ‘relevant class of people’) can be met.

‘Relevant class of people’ is defined in the Dictionary at the end of the Act as ‘a class of people whose members are identified by reference to a protected attribute’.

This exception can allow for health services for women (or men) only, services for transgender people, or allow people with particular attributes such as Aboriginal and Torres Strait Islander people, or women, to be specifically recruited to identified job roles, or positions.

Insurance

This exception is narrowly drawn to only apply to the terms on which an annuity, or policy is offered, or may be obtained, and does not include refusal to insure. Discriminatory terms in an annuity, or policy will only be lawful if they are reasonable having regard to any actuarial or statistical data on which it is reasonable for the potential insurer to rely.

Work-related disability discrimination

Employers are allowed to legally discriminate against a person on the ground of their disability where they can show on ‘reasonable grounds’ that they believe that the person would be unable to carry out work that is essential to the position, or where the person would require services or facilities due to their disability that would impose unjustifiable hardship on the employer.

Bodies (known as qualifying bodies) that regulate and authorise work in particular professions (such as the ACT Law Society, or the Medical Board of Australia) can also discriminate on the ground of disability if they believe on reasonable grounds that a person cannot do the essential work involved in practicing that profession.

Disability discrimination by educational institutions

This exception is limited to two circumstances only. It allows an educational institution to refuse a person’s application to be a student if they cater specifically for students with disabilities that the applicant does not have. It also permits an educational institution to refuse a person’s application to enrol as a student if the person would need services or facilities because of their disability, that a person without such a disability would not need, and the provision of which would impose ‘unjustifiable hardship’ on the institution.

Disability discrimination relating to access to premises

The exception can apply where alteration of inaccessible premises would impose unjustifiable hardship on the person responsible for providing access to the premises.

Genuine occupational qualifications

There are exceptions which allow for discrimination to occur lawfully on the ground of sex, race, disability, age and physical features where having such an attribute is a genuine occupational qualification for a position, for example, for a dramatic or artistic performance.

Sexual harassment

Sexual harassment is an unwelcome sexual advance, request for sexual favours or any other unwelcome sexual conduct in circumstances in which the person who is exposed to the conduct reasonably feels offended, humiliated or intimidated. A range of behaviour is covered from verbal or written comments of a sexual nature (either to, or in the presence of another person) such as sexual jokes, questions about a person’s intimate life, or emails, the display of sexually explicit images, unwanted touching or kissing, through to stalking, and sexual assault.

Sexual harassment is against the law in all employment situations including in unpaid work. The Act covers all workplace participants (employers, employees, commission agents, contract workers, or partners in a partnership) and coverage will extend where there is any link with the workplace (such as at work conferences, or work based social events).

The Act also prohibits sexual harassment in educational institutions including by staff and students, in providing (or offering) access to public premises, in providing (or offering) accommodation, and by a person who is on a committee of management of a club towards another member of the club (or a person seeking to become a member of the club).

Employers can be held legally responsible for any sexual harassment by their representatives unless they can demonstrate that they took all reasonable steps to prevent the representative from engaging in the conduct. The Act defines representative as an ‘employee’ or ‘agent’. Individuals can also be held directly liable with their employer if they sexually harass people in the workplace.

Vilification

The Act makes it against the law to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person (or group of people) on the ground of any of the following, other than in private:

• Disability;
• Gender identity;
• HIV/AIDS status (meaning a person who has the Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome);
• Intersex status;
• Race;
• Religious conviction;
• Sexuality.

Examples that could be ‘other than in private’ are public screenings (whether privately organised or not), posts on social media that can be viewed by members of the public, interviews for radio or TV, public actions or gestures, or wearing or displaying clothes, signs, or flags in public.

Victimisation

The Act provides redress if a person gets any ‘unfair payback’ by being subjected to a ‘detriment’ because they have taken discrimination action. ‘Discrimination action’ includes making a discrimination complaint, asserting any rights a person has under the Act, giving information to support a discrimination complaint or a criminal investigation into serious vilification (covered under section 750 of the Criminal Code), beginning a proceeding in the ACAT under the Act, or giving evidence to ACAT in relation to an alleged breach of the Act.

Unlawful request for information

It is against the law to discriminate against a person (or otherwise breach the Act) by asking them questions, or making them give information so as to discriminate against them (for example during job interviews or during pre-employment medical assessments).

Unlawful advertising

It is against the law to advertise in a way that shows an intention to discriminate against a person (or otherwise breach the Act), for example by advertising for applicants of a particular sex where there is no exception that would apply to the situation (and so make the discrimination lawful).

Aiding unlawful acts

The act prohibits any person or organisation from helping, persuading or encouraging another person to discriminate against someone else (or otherwise breach the Act).