Protected attributes

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 24 March 2023

Attributes that are protected

Section 6 of the Equal Opportunity Act 2010 (Vic) (Equal Opportunity Act) sets out the 'attributes' on the basis of which discrimination is prohibited in the areas of activity in Part 4 of the Equal Opportunity Act. Those attributes are:

Many of the protected attributes are self-explanatory – for example, age, breastfeeding and sex. For others, the Equal Opportunity Act contains more detailed definitions. Some of the more complex attributes are explored further below.

The onus of proving the existence of an attribute is on the person bringing a complaint.(1)]]

Extensions of protected attributes

Importantly, section 7(2) provides:

Section 7(3) of the Equal Opportunity Act also makes it clear that the use of an assistance aid, such as an assistance dog, by somebody with a disability will be treated as a 'characteristic' that a person with that attribute generally has, as discussed further in this chapter.

These provisions require a broader inquiry than simply whether the complainant actually has the protected attribute and whether there is a causal nexus between that attribute and the alleged discriminatory conduct.

Presumed attribute

In Daniels v Hunter Water Board (1994) EOC 92–626, Mr Daniels alleged he was harassed and discriminated against by the respondent over a number of years on the grounds of his presumed homosexuality, even though he did not identify himself as being homosexual.

The alleged conduct began after Mr Daniels adopted a 'trendy' haircut and an earring in his left ear. He also took up jazz, ballet, drama and modelling. At this time, his co-workers started to call him a 'weirdo' and suggest that he must be 'gay'. After Mr Daniels removed a poster of a naked woman from his workplace because it had offended a female colleague, the frequency of these derogatory comments increased.

Mr Daniels' claim on the basis of his presumed homosexuality was upheld. While this decision was made in New South Wales, the wording in section 7(2) of the Equal Opportunity Act suggests the same principles would apply in Victoria.

Imputed characteristic

In Waterhouse v Bell (1991) 25 NSWLR 99 the complainant was refused registration as a racehorse trainer because her husband had been 'warned off' all racecourses due to his involvement in a horse substitution scandal. The New South Wales Court of Appeal found the registration refusal was because of a characteristic imputed to married women – that is, that all wives are liable to be corrupted or influenced to do wrong by their husbands. On that basis, the Court held the refusal constituted discrimination against the complainant on the ground of marital status.

Attributes under Commonwealth anti-discrimination laws

Most of the attributes in the Equal Opportunity Act overlap with protected attributes under federal anti-discrimination legislation and industrial legislation such as the Fair Work Act 2009 (Cth). A number of protected attributes, however, remain particular to Victoria (and a few other states). These attributes are discussed below.

What 'protected attributes' means

Employment activity as a protected attribute

'Employment activity' is defined in section 4 of the Equal Opportunity Act to mean:

(b) a contract worker, in the contract worker’s individual capacity—

The Industrial Relations Legislation Amendment Bill 2021 came into effect on 1 July 2021 and made amendments to Part 4 of the Equal Opportunity Act 2010 (the Act) in response to the Victorian Inquiry into the Labour Hire Industry and Insecure Work. The amendments reflected above ensure that contract workers who are protected under the Act are included in the definition of employment activity.

'Employment entitlements' in relation to an employee or a contract worker are broadly defined in section 4 of the Equal Opportunity Act to mean:

The 1995 Act was amended in 2007 to include these definitions. The Explanatory Memorandum to the amending Bill stated the amendment sought to:

The Explanatory Memorandum to the amending 2007 Bill provides extensive guidance about the interpretation of 'employment activity':

• what is my rate of pay?
• how many holidays have I accrued?
• do I have an entitlement to paid maternity leave?
• have I been paid for those extra hours I worked?
• will I be able to take my annual leave next month?

• I am worried that I have not been paid my overtime allowance.
• why am I not being paid at the correct rate of pay?
• someone has told me that the company is going under and I will not be paid my redundancy pay.

In Gilmore v Victoria Police [2021] VCAT 1250, VCAT clarified that ‘employment entitlements’ are not limited to a particular category or matters such as rates of pay, leave or hours of work. Instead, ‘employee entitlements are defined in terms of the various sources which give rise to an employee’s rights, entitlements and duties’ [231]. In that case, VCAT found that the applicant’s employment entitlements arose under his contract of service with Victoria Police, which encompassed relevant employee awards, rules, guidelines and legislation [8].

- See also Loevski v Jacobson [2010] VCAT 1428.

Recently, VCAT found that the meaning of ‘employment entitlements’ may also extend to an employee’s rights under Occupational Health and Safety law, as well as to rights that exist under a workplace policy that is then incorporated into an employee’s terms and conditions of employment.

- See Edmonds v Holmesglen Institute (Human Rights)_ [2020] VCAT 860.

VCAT has also suggested that ‘employment activity’ can include complaints made to an external complaint body. In Gilmore v Victoria Police [2021] VCAT 1250, VCAT observed that the applicant’s complaints to the Independent Broad-based Anti-corruption Commission (IBAC), which were referred to Victoria Police for investigation, constituted ‘employment activity’ even though the complaints were not made directly to Victoria Police as his employer [227]. VCAT noted that the subject matter of the complaints had already been raised with Victoria Police and the relevant legislation enables a complaint to be made about the conduct of a police officer to another police officer or to IBAC [227].

For the purposes of employment activity, it is not necessary that the employee’s communication (either oral or written) about their entitlements be explicitly framed as a concern about whether they had/had not received or would/would not receive those employment entitlements. It is sufficient that the issue raised is capable of being characterised as such.

- See Edmonds v Holmesglen Institute (Human Rights) [2020]_ VCAT 860 (also see Gilmore v Victoria Police [2021] VCAT 1250 [222]).

Gender identity as a protected attribute

In October 2021, an updated definition of gender identity commenced which defines gender identity to mean:

A person's gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references.

The updated definition recognises that collective understanding and awareness of gender identity has evolved over time and that the previous definition of gender identity had become outdated.

Prior to October 2021, protection from discrimination on the basis of gender identity was more restrictive. It did not protect people from discrimination except insofar as they identified as either ‘male’ or ‘female’. The prior definition only protected people from discrimination if their physical sex at birth, male or female, did not match with the sex, male or female, they identified with. It also covered people of indeterminate sex who identified as a member of a particular sex. The manner in which people could identify with a sex could range from occasionally dressing in a style usually associated with the ‘other sex’ to undergoing gender reassignment surgery.⁽³⁾

The Explanatory Memorandum to the Change or Suppression (Conversion) Practices Prohibition Bill 2020 explains that the definition of gender identity now focuses ‘on an individual’s experience of their gender-related identity, which includes their personal sense of the body and other expressions of gender’⁽²⁾. There is no longer a requirement to be male or female – the new definition reflects the non-binary nature of gender. A person’s gender identity is also protected whether or not it corresponds with their designated sex at birth.

Gender identity is also protected under Commonwealth law, with the Sex Discrimination Act 1984 specifically protecting people who experience discrimination because of their gender identity. Gender identity is also protected in Queensland, Tasmania, South Australia and the Australian Capital Territory, while in Western Australia the more ambiguous term 'gender history' is used.

Disability as a protected attribute

'Disability' is defined in section 4 of the Equal Opportunity Act to mean:

The 1995 Act used the term 'impairment' rather than the more commonly used term 'disability'.

The words 'includes a disability that may exist in the future' have been found to extend to any disability that may exist at any time in the future. In Ingram v QBE Insurance (Australia) Ltd [2015] VCAT 1936 the respondent issued an insurance policy that included a clause excluding all claims from people who experienced a mental illness. The complainant, who developed depression after purchasing the policy, argued the exclusion in the policy was unlawful discrimination. VCAT found at the time the complainant bought the insurance policy, she did have a disability. Reading the words of section 4 widely, VCAT said 'the definition of disability applies to a person at a point in time when a future disability did not yet exist or had not been diagnosed, was not known to the person or others or was not otherwise apparent' [49]. On the evidence that the complainant later did develop a disability, VCAT accepted at the time she bought the insurance policy, she was a person for whom a disability may exist in the future [50].

A disability may also be temporary. In Bevilacqua v Telco Business Solutions[2015] VCAT 269, VCAT found although a pregnant woman suffering morning sickness is generally not considered to be a person with a disability, morning sickness may constitute a 'disability' involving the malfunction of a part of the body. Morning sickness also falls within the pregnancy attribute (in this case, the complainant had suffered from a very severe form of morning sickness as well as ordinary morning sickness) [154] [192] [195] [199].

Characteristics of an attribute

Section 7(2) of the Equal Opportunity Act provides that attributes include characteristics of an attribute. For this reason, it is also unlawful to discriminate against a person on the basis of a characteristic generally pertaining or imputed to a person with a disability.

Sections 7(2) and 7(3) of the Equal Opportunity Act also make clear that the use of an assistance aid, such as equipment, an assistance dog or a person who provides assistance, is a characteristic that a person with a disability generally has. This means discrimination on the basis of the assistance aid will be unlawful (unless a defence or exception applies).

The provisions in sections 7(2) and 7(3) were inserted to deal with the situation in Walker v State of New South Wales [2003] NSWADT 13 (Walker). In Walker, the complainant used a walking stick and an aluminium scooter as mobility aids to cope with a back injury. On several occasions he tried to access the Parramatta Court complex but was initially denied entry with his stick or scooter until the court staff were able to ascertain that these items were assistance aids. Once the court staff were satisfied Mr Walker used his stick and scooter to cope with a disability, he was granted special dispensation to use these items within the court complex. Mr Walker argued he should not be required to obtain special dispensation to enter the court complex for a matter in which he was personally involved.

One of the issues the New South Wales Administrative Tribunal considered was whether the use of a scooter or stick as a mobility aid was a characteristic that pertains generally to, or is generally imputed to, people with a back injury. Mr Walker, who was unrepresented, had not led any evidence on this point. In the absence of evidence, the tribunal said it was not open to it to make such a finding. In other words, it was not 'common knowledge' that the use of a walking stick or scooter are characteristics generally pertaining or imputed to a person with a back injury. The tribunal noted the Disability Discrimination Act 1992 (Cth), unlike the NSW legislation they were dealing with, dealt expressly with palliative or therapeutic devices or auxiliary aids.

Sections 7(2) and 7(3) bring the Equal Opportunity Act more closely into line with the Disability Discrimination Act 1992 (Cth). Complainants do not need, therefore, to lead evidence to prove the use of an assistance aid is a characteristic generally pertaining or imputed to a person with a disability.

In circumstances that fall outside sections 7(2) and 7(3), the complainant will still need to identify the particular characteristic and satisfy VCAT that it is a characteristic that a person with a disability generally has, or is generally imputed to have. In O'Connor v State of Victoria (Dept of Education and Training) [2004] VCAT 118, for example, VCAT did not accept that taking sick leave is a characteristic a person with a disability generally has.

Manifestations or symptoms of a disability

Broadening the definition of disability in section 4 of the Equal Opportunity Act to include behaviour that is a symptom or manifestation of a disability clarified issues raised in the High Court of Australia's decision in Purvis v New South Wales (Department of Education) [2003] HCA 62 (Purvis).(2)

The Purvis case concerned the treatment of a high school student, Daniel Hoggan, who suffered from a number of disabilities as the result of a brain injury acquired when he was a baby. Daniel's disabilities manifested in certain behaviours, including violent behaviour and swearing. Daniel was suspended several times, and later expelled, from South Grafton High School on the basis of his violent and disruptive behaviour. Daniel's foster parents brought a claim of discrimination under the Disability Discrimination Act 1992 (Cth) on his behalf. The case went to the High Court of Australia on appeal. One of the issues before the High Court was whether Daniel's behaviour – which was described as a 'symptom' or 'manifestation' of his disability – fell within the meaning of 'disability' under the Disability Discrimination Act 1992 (Cth).

When the case was first decided by the Human Rights and Equal Opportunity Commission, Purvis Hoggan v New South Wales (Department of Education) [2001] EOC 93–117, Commissioner Innes had not drawn a clear distinction between Daniel's disabilities and the manifestation of those disabilities. In the Federal Court of Australia, however, Justice Emmett applied a narrow interpretation of 'disability'. He stated 'it is the disorder or malfunction, or the disorder, illness or disease that is the disability. It is not the symptom of that condition that is the disability'.(3)

A majority of the High Court disagreed with Justice Emmett's narrow interpretation of the term 'disability'. The High Court concluded the definition of disability does include behaviour resulting from the disability.(4) In reaching the conclusion to apply this broader interpretation of 'disability', the majority looked at the purpose and objectives of the Disability Discrimination Act 1992 (Cth) that, as Justices McHugh and Kirby said, was intended to be 'beneficial and remedial in nature'.(5)

The issue of manifestations of a disability was considered in Slattery v Manningham City Council [2013] VCAT 1869. In 2009 the complainant had been declared a 'proscribed prohibited person' by the council and was banned from attending any council building. The ban was imposed in response to Mr Slattery's behaviour and interactions with council staff (including acting aggressively and making thousands of complaints about safety issues). The complainant had requested the ban be reviewed and lifted in 2012, but the council had refused. The complainant had a number of disabilities, including post-traumatic stress disorder, bipolar disorder, a brain injury following a stroke, a hearing impairment and sleep apnoea. He argued his conduct was a manifestation of his disabilities and he had been treated unfavourably by being refused access to council services.

VCAT stated a complainant, to prove discrimination has occurred because of a manifestation of a disability, must provide evidence to establish the symptoms experienced consequent to their disability. VCAT cannot infer from the evidence that a complainant experiences symptoms 'typical of people with the disabilities he suffers from' [78]. Ultimately, Senior Member Nihill found there was sufficient evidence to show that the complainant's compulsive complaining was a symptom of his disabilities, and although there may have been other reasons for his conduct, 'at least to a significant extent' the combination of his 'irrational and anti-social behaviours' were a manifestation of his disabilities [79]–[83].

In coming to this conclusion, Senior Member Nihill noted there is no qualification to the definition of disability in section 4 of the Equal Opportunity Act. In other words, the definition 'does not address the situation where some other cause in addition to the disability may be operative' [83]. However, Senior Member Nihill considered the definition did not require total or absolute certainty that the behaviours were manifestations of the disability. It was enough that VCAT was satisfied the behaviours were, to a 'significant extent', manifestations even if other contributing factors may have existed. This was considered the most appropriate interpretation in light of the context of other sections of the Equal Opportunity Act (such as the objects in section 3 and the test for direct discrimination in section 8). Senior Member Nihill also took into account VCAT's obligation under section 32 of the Charter of Human Rights and Responsibilities to interpret statutory provisions in a way that is compatible with human rights, so far as it is possible to do so consistent with their purpose [83].

VCAT also considered manifestations of a disability in the education context in two similar cases AB v Ballarat Christian College[2013] VCAT 1790 and USL obo her son v Ballarat Christian College [2014] VCAT 623 (USL). Those cases involved students with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder (ADHD) respectively. However, there was insufficient evidence provided by the complainants to prove the behaviours were manifestations of their disability.

In USL,Judge Harbison noted it was 'fundamental' that the complainant first establish that the student (her son) had the alleged disability (ADHD) at the time of the alleged discrimination. The complainant must then also establish what the symptoms or manifestations of the disability were – 'particular to her own child not as a general proposition' for people with ADHD [47]. Judge Harbison's concern was that there may be many different manifestations arising out of a particular disability (in this case, ADHD). Without evidence of the student's own manifestations, the complainant would be unable to establish that the discrimination had occurred as a result of the symptoms or manifestations of the disability [22] [43]–[44].(6) Judge Harbison ultimately accepted the student had ADHD and certain manifestations of ADHD including a short attention span, hyperactivity and impulsivity. However, she did not accept that other behaviours were related to the disability, such as being disruptive in class, using inappropriate language and taunting other children [75]-[79].

Industrial activity as a protected attribute

The Equal Opportunity Act protects against discrimination on the basis of a person's industrial activity.

The definition of 'industrial activity' in section 4 of the Equal Opportunity Act continues that which existed in the 1995 Act from 2006. The definition of 'industrial activity' was amended in 2006 to include:

• the setting up of an industrial organisation or association
• organising or promoting, encouraging, assisting or participating in, or not participating in a lawful activity, organised by an industrial organisation or association
• representing or advancing the views, claims or interests of an industrial organisation or association.

These amendments were designed to more explicitly reflect various VCAT decisions relating to the interpretation of 'industrial activity'. In Dickenson v Shire of Yarra Ranges[2000] VCAT 1093,for example, Deputy President McKenzie stated 'industrial activity' includes:

Similarly, in Aylett v Australian Paper & Purdy[2004] TASADT 4, the complainant's level of participation in occupational health and safety issues with the support and/or sanction of a union was defined as industrial activity.

In Hendrickson v Victorian Association of State Secondary Principals Inc [2007] VCAT 1193, not joining or not being a member of the Australian Principals Federation was held to be industrial activity as defined in the 1995 Act. The complainant was charged a higher subscription fee to join only the Victorian Association of State Secondary Principals than the fee charged to individuals who wished to join both the federation and the association. VCAT held the complainant had been discriminated against because of his industrial activity.

More recently, in Dulhunty v Guild Insurance Limited[2012] VCAT 1651, VCAT held Guild Insurance Limited had discriminated against a chiropractor on the basis of his 'industrial activity'. The complainant was charged a higher premium as a non-member of the Chiropractor's Association of Australia than the premium charged to members of the association. VCAT found not being a member of the association was an 'industrial activity' within the meaning of the Equal Opportunity Act.

Under section 4 'Industrial association' is defined as 'a group of employees or employers, formed formally or informally to represent or advance the views, claims or interests of the employees or employers in a particular industry, trade, profession, business or employment, not including an industrial organisation'.

The definition was amended in 2006 to reflect decisions of VCAT, which established that while a collective dimension is required to constitute an industrial organisation, a formal link with a union is not required.(7)

'Industrial organisation' is defined in section 4 as:

This definition was also amended in 2006 to stipulate an industrial organisation must be registered or recognised under a State or Commonwealth enactment. This is intended to distinguish an industrial organisation from an industrial association.

Lawful sexual activity as a protected attribute

Lawful sexual activity is defined in section 4 as 'engaging in, not engaging in or refusing to engage in a lawful sexual activity'.

A new protected attribute of ‘profession, trade or occupation’ commenced on 10 May 2022 which encompasses sex work.

The attribute of 'lawful sexual activity' has been raised where a person has been treated unfavourably because of extramarital affairs or sexual relationships between co-workers. In Rowley v Goodyear Tyres Pty Ltd [2011] VCAT 1536, for example, the respondent's application to strike out a complaint of discrimination in employment on the ground of lawful sexual activity was denied. In that case, the complainant was terminated because of his alleged extramarital sexual relationship with another member of the executive leadership team. VCAT refused to strike out the application because the question of whether the attribute extends to relationships (as opposed to actually engaging in lawful sexual activity) needs further consideration.

Lawful sexual activity was raised in Martin v Padua College[2014] VCAT 1652 and on appeal in Pearson v Martin[2015] VSC 696. VCAT and the Victorian Supreme Court considered whether a school principal's decision to dismiss a teacher was based on the teacher's 'lawful sexual activity' with a former student. It was alleged the teacher started a relationship with an 18-year-old former student shortly after she completed her studies. VCAT accepted although the reasons for dismissal were multifaceted – involving, among other things, allegations of 'boundary transgressions' and 'grooming' – the lawful sexual activity was a substantial reason for the decision (Martin v Padua College [94]–[95]). The Supreme Court considered this finding was reasonably open to VCAT, and that the existence of lawful sexual activity formed a decisive factor in the chain of reasoning that led the principal to investigate the teacher and finally terminate his employment (Pearson v Martin [26] [70]–[71]).

Examples of sexual activities that fall outside of the scope of this definition include paedophilia, incest, bestiality or sexual assault – regardless of gender or sexual practice – because they are unlawful.

Marital status as a protected attribute

The Equal Opportunity Act protects against discrimination on the basis of a person's 'marital status'. Under section 4 this includes being single, married (whether living separately or apart from one's spouse), in a domestic partnership, divorced, or widowed.

Protections against discrimination on the basis of a person's 'marital status' do not necessarily extend to circumstances where the discrimination occurs because of the identity or situation of a person's spouse – as opposed to the relationship itself – unless the personal association discrimination applies.

For example, in Tebby v Davies[2002] VCAT 1023 (Tebby) Deputy President Coghlan applied an earlier New South Wales case Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13. Deputy President Coghlan found the prohibition against discrimination on the basis of a person's 'marital status' does not 'extend to characteristics of the particular spouse or partner' [45]. In that case, the Deputy President dismissed a complaint by an employee about the termination of their employment due to their spouse working for a competitor.

The outcome would be different under the Equal Opportunity Act if the discrimination occurred because of a person's 'personal association' with another – including a spouse – who has a protected attribute. It would be unlawful, for example, for an employer to refuse to employ a candidate on the basis that they are married to a union official or a person of a particular religion. Such conduct would constitute unlawful discrimination against the candidate on the basis of personal association with somebody who had engaged in industrial activity in the first example, or on the basis of religion in the second.

An exception to the rule may also exist where discrimination in relation to the identity or situation of a person's spouse is based on an assumption about a characteristic generally imputed to marital status, as in Waterhouse v Bell (1991) 25 NSWLR 99. In that case, the New South Wales Court of Appeal considered a complaint of discrimination brought by horse trainer Gai Waterhouse. Ms Waterhouse had applied to the Australian Jockey Club for a trainer's licence but her application was rejected on the basis that her husband had been involved in betting fraud. The Court of Appeal found, where there was no suggestion that Ms Waterhouse had a relevant character deficiency, the reason for the refusal to grant her a licence was the respondent's belief that 'all wives are liable to be corrupted by their husband', which was held to be a characteristic attributed or imputed to married women.

Parental status as a protected attribute

The Equal Opportunity Act protects against discrimination on the basis of a person's 'parental status’. Under section 4, parental status means the status of being a parent or not being a parent. Parent includes a step-parent, adoptive parent, foster parent and guardian.

In Carpenter v Pearly Whites Pty Ltd [2022] VCAT 623, VCAT accepted that family responsibilities is a characteristic that a person with the attribute of parental status generally has (under section 7(2)(b)) or is a characteristic that is generally imputed to a person with the attribute of parental status (under section 7(2)(c)) [32]. In that case, VCAT found that the respondent had directly discriminated against the applicant by dismissing her substantially on the basis of her family responsibilities and related limited work availability [94].

Section 19 of the Equal Opportunity Act also requires employers to accommodate an employee’s responsibilities as a parent or carer. This is discussed under the heading ‘Accommodating a person’s responsibilities as a parent or carer in employment’.

Physical features as a protected attribute

Victoria is the only Australian jurisdiction that protects against discrimination on the basis of a person's physical features.

'Physical features' is defined to mean a person's height, weight, size or other bodily characteristics. The term 'bodily characteristics' has been interpreted widely. VCAT has found that ‘other bodily characteristics’ extends to include the styling, colour and location of hair (see Fratas v Drake International Ltd (1998) EOC 93–038). However, personal hygiene (such as body odour), not wearing underwear and overeating are not 'physical features' (See Hill v Canterbury Road Lodge Pty Ltd [2004] VCAT 1365).

In Jamieson v Benalla Golf Club Inc [2000] VCAT 1849, VCAT assumed, without deciding, that tattoos are physical features. Deputy President McKenzie discussed the reasons tattoos may be included in the meaning of ‘other bodily characteristics’ under the definition of ‘physical features’. This included the ordinary meaning of ‘physical features’ which would ‘embrace any distinctive bodily mark or attribute’, the lack of express exclusion of tattoos from the definition, the lack of express exclusion of characteristics acquired after birth or as a matter of choice, the objects of the Equal Opportunity Act and the liberal construction of human rights related legislation including the Equal Opportunity Act.

In Ruddell v DHS [2001] VCAT 1510 VCAT considered whether the complainant's loud voice fell within the meaning of a 'physical feature'. VCAT did not rule out the possibility that a 'physical feature' may include 'not only visible bodily characteristics like height or weight but any other bodily characteristics with an external manifestation such as voice which is audible' (paragraphs 55–56). However, VCAT found the loudness of Mr Ruddell's voice – which he could control at his own will – was not within the meaning of a 'physical feature'.

In Kuyken v Lay [2013] VCAT 1972 (Kuyken), VCAT found the complainants were directly discriminated against on the basis of their physical features through the promotion and enforcement of a new grooming policy in the Victoria Police Manual, banning police officers wearing long hair and all forms of facial hair except moustaches. VCAT accepted hair and facial hair are physical features. However, VCAT found the respondent's conduct was authorised by the Police Regulations Act 1952 (Vic) and, therefore, covered by the general exception in section 75 of the Equal Opportunity Act and not unlawful (Kuyken [70]–[71] [166]–[167]). See Exception for things done with statutory authority for a detailed discussion about section 75.

Personal association as a protected attribute

The Equal Opportunity Act also protects against discrimination of a person on the basis that the complainant has a 'personal association' (whether as a relative, friend or otherwise), with somebody who has another protected attribute. The complainant must prove the association and that the person has one of the protected attributes. See, for example, Lund v Eyrie Common Equity Rental Housing Cooperative Ltd [2000] VCAT 1078 and Johnson v Berwick City Soccer Club [2010] VCAT 1093.

This protection was introduced with the 1995 Act. In the second reading speech for the Bill, the Honourable Haddon Storey said:

In Lund v Eyrie Common Equity [2000] VCAT 1078 Mr Lund claimed his landlord, in giving him a notice to vacate, had directly discriminated against him because of his 'personal association' with another person, Mr Milsom. Mr Lund lived with and cared for Mr Milsom, who had a psychological impairment. VCAT referred to the second reading speech (cited above) in considering the purpose and scope of the personal association protections. While VCAT accepted the personal association attribute applied, VCAT was not satisfied it was the reason for issuing the notice to vacate. Rather, VCAT accepted the notice was issued to resolve a long running dispute between tenants.

Personal association relates to 'persons' rather than companies. In Cassidy v Leader Associated Newspapers Pty Ltd [2002] VCAT 1656, VCAT found personal association requires association between natural persons and not between a person and a company [75].

Political belief or activity as a protected attribute

Under section 4 of the Equal Opportunity Act ‘Political belief or activity’ means:

Political belief or activity has been interpreted more narrowly by courts and tribunals in Victoria than in other jurisdictions.(9) In Victoria, 'political' has been interpreted as a matter or activity that involves the state and 'bears on government'.(10) 'Political belief' has been distinguished from beliefs basic to the structure of society such as honesty (see Richardson v City of Casey Council [2014] VCAT 1294 [23]), and must be related to 'mores of society' (see Jolly v Director-General of Corrections (Vic) (1985) EOC 92–124). A belief is not political where 'it has no bearing on the form, role, structure, feature, purpose, obligations, duties or some other aspect of government' (see Richardson v City of Casey Council [2014] VCAT 1294 [23]). Political belief or activity covers a continuum, beginning with the mental state of belief (which includes expressing that belief, or holding a view), an intention to act, and actual action. In other words, the word 'political' describes both 'belief' and 'activity'. What is political must be determined objectively, accounting for the nature of the activity or belief. A teacher's public expression of views about the age of consent, for example, may be 'political' (see Thorne v R (1986) EOC 92–182).

'Political activity' means more than 'capable of being political',(11) but can relate to deeply held political views manifested in refusal to support certain union action of a political nature.(12) Dismissal of a builder's labourer after re-joining a deregistered union was found not to be discrimination on the ground of 'political activity' because there was no evidence the employer had the employee dismissed for engaging in political activity as defined, or that his failure to present a financial clear card was political.(13) In the provision of goods and services, failure to allow a municipal hall to be used by protesters against a United States base, when it had been made available to supporters, was held to be discriminatory on grounds of political belief and activity.(14) Holding placards at a council meeting, where those placards focused on individual concerns, was engaging in political activities. In the case of Yianni v Moonee Valley City Council (Human Rights) [2018] VCAT 1990 , VCAT said such conduct was 'one of the most ancient, accessible and common forms of political activity' [24].

In Justice Abolish Child Support and Family Court v State of Victoria [2015] VCAT 771 the complainant contended a name can constitute a political statement, or a reflection of a political view. The complainant argued the police would not have made close inquiries about him when he applied for a gun license if he had another name. VCAT accepted a name is capable of being characterised as a political belief or activity if a person changes a surname to a statement with a clear meaning advocating particular action [126] [129].

Profession, trade or occupation as a protected attribute

Commencing on 10 May 2022, ‘profession, trade or occupation’ was added to the Equal Opportunity Act as a protected attribute. The change was part of reforms to decriminalise sex work in Victoria and reduce discrimination and harm to sex workers.

Although the new attribute of ‘profession, trade or occupation’ does not apply exclusively to sex work, the Explanatory Memorandum explains that the new attribute is:

[i]ntended to address discrimination against sex workers and other persons based on their participation in sex work as a profession, trade or occupation, protect sex workers from discrimination in the future, and de-stigmatise the sex work industry (page 9).

Sex workers were previously only protected from discrimination on the basis of ‘lawful sexual activity’ where the sexual services were provided ‘lawfully’ (that is, conducted by a licenced sex worker in licenced premises). As a result, the majority of sex workers who engaged in street-based sex work or other unlicenced sex work were not protected from discrimination. Now that sex work has been decriminalised in Victoria, all sex workers can rely on the protected attributes of ‘lawful sexual activity’ and ‘profession, trade or occupation’.

Race as a protected attribute

Race is defined in section 4 of the Equal Opportunity Act as:

Courts have generally taken the view that 'race' as described in anti-discrimination legislation is a broad term and should be understood in the popular sense.(15) The meaning of 'race' was considered in the context of disputes between Aboriginal People in Williams v Tandanya Cultural Centre [2001] FMCA 46; _(2001) [2001] FMCA 46; 163 FLR 203_, in which Federal Magistrate Driver held:

'Descent or ancestry' was considered in Australian Macedonian Human Rights Committee (Inc) v State of Victoria [2000] HREOCA 52 in which it was found:

There is a distinction between discrimination on grounds of national origin and discrimination on grounds of nationality. National origin is normally a status acquired and fixed at birth and incapable of change, whereas a person may acquire a number of different nationalities over the course of a lifetime.(16) In Australian Medical Council v Sir Ronald Wilson, Elizabeth Hastings, Jenny Morgan, Dr B Siddiqui and Commonwealth Minister of Health [1996] FCA 1618(17) Justice Sackville held 'national origin' does not simply mean citizenship. However, citizenship may be treated as synonymous with nationality.(18)

The distinction between national origin and ethnic origin was considered in Australian Macedonian Human Rights Committee (Inc) v State of Victoria [2000] HREOCA 52:

'Ethnic origin' has been interpreted broadly in a number of jurisdictions to include Jewish(19) and Sikh people. The Court in King-Ansell held Jewish people in New Zealand formed a group with common ethnic origins within the meaning of the Race Relations Act 1971 (NZ). Justice Richardson stated:

Similarly, in Mandla v Dowell Lee [1983] 2 AC 548, the House of Lords held a group (such as Sikh people), to constitute an ethnic group for the purposes of the legislation in question, had to regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics.

In an application made in Linfox Australia Pty Ltd [2015] VCAT 528 (Linfox) to exempt the company from the Equal Opportunity Act, VCAT observed decisions about employment on the basis of someone's citizenship may amount to prohibited discrimination under the Equal Opportunity Act. Section 6 makes 'race' a protected attribute, that is defined to include nationality. Deciding whether to employ a person on the basis of their citizenship may amount to unlawful discrimination. Section 107 of the Equal Opportunity Act also prohibits requests for discriminatory information, such as someone's citizenship (Linfox [3]). For more information see the section on Discriminatory requests for information.

Race has also been raised in connection with immigration status. VCAT found there had been direct discrimination based on race in Khalid v Secretary Department of Transport Planning and Local Infrastructure [2013] VCAT 1839. A full-time student from New Zealand applied for a public transport concession card, but was rejected because of his visa status. If the complainant had been an Australian citizen, he would have been entitled to a student concession. Despite this finding, the discrimination was found to be authorised by legislation [39]-[42] See further detail in the section on Permanent exceptions to discrimination.

The matter of Faulkner v ACE Insurance Ltd [2011] NSWADT 36 concerned a complaint made by a New Zealand man who was a permanent resident of Australia. He was denied insurance services on the basis of his visa category basis. The NSW Administrative Decisions Tribunal found Mr Faulkner was indirectly discriminated against by the insurer, because of his race, because there was a requirement to be an Australian resident to be able to obtain cover. Mr Faulkner fell into none of the categories of Australian resident required in the insurance policy.

Certain insults have also been found to be discrimination on the basis of race. Using the words 'monkey' or 'ape' is derogatory and humiliating when referring to or used in connection with a person of colour or of some racial or ethnic backgrounds (see Dirckze v Holmesglen Institute [2015] VCAT 1116 [155]–[161]). VCAT was also satisfied a comment that a complainant 'looked like a gorilla' amounted to unfavourable treatment based on race in the matter of Jemal v ISS Facility Services Pty Ltd [2015] VCAT 103 [116], [119].

In some cases, using certain words in isolation will not be discriminatory but may amount to racial discrimination if used in conjunction with other words. For example, in Ferguson v John A Martin & Kevin J Pendergast trading as Sharks Shire Pumping [2021] FedCFamC2G 58 , a matter under section 18C of the Racial Discrimination Act 1975 (Cth), the Federal Circuit and Family Court of Australia commented that the terms ‘thief’ and ‘dole bludger’ used in isolation were offensive but not discriminatory [235]. However, in combination with the words ‘all you Māori’s’ it was ‘beyond doubt’ that the comments were discriminatory [236].

Religious belief or activity as a protected attribute

Religious belief or activity is defined under section 4 of the Equal Opportunity Act as:

'Religious belief or activity' has been interpreted broadly, and includes atheism (see Aitken v The State of Victoria – Department of Education & Early Childhood Development [2012] VCAT 1547. 'Religious belief' has been extended to a union member who refused to make a welfare payment on account of his religious belief that charitable works and welfare support was the sole province of the church and was not a function of union members (see Marett v Petroleum Refineries (Aust) Pty Ltd (1987) EOC 92–206; Petroleum Refineries (Australia) Pty Ltd v Marett [1989] VicRp 69; [1989] VicRp 69; [1989] VR 789). Discrimination on the basis of religious belief or activity has also been found where fresh Halal meat was not provided to a Muslim prisoner who requested it (see Queensland v Mahommed (2007) EOC 93–452; [2007] QSC 018).

Sex as a protected attribute

The term ‘sex’ is not defined in the Equal Opportunity Act.

While, historically, sex has been understood as two binary categories of male and female (for example, see Menzies v Waycott & Anor [2001] VCAT 415[198]), more recent case law demonstrates that courts have recognised that "the sex of a person is not … in every case unequivocally male or female" ( AB v State of Western Australia [2011] HCA 42).

In Carpenter v Pearly Whites Pty Ltd [2022] VCAT 623, VCAT assumed that ‘sex’ referred to a person’s biological status rather than their gender identity [26]. However, the law is currently unsettled on the meaning of the term ‘sex’ under the Equal Opportunity Act due to the fact that ‘sex’ is not defined in the Act and there is limited analysis or guidance currently available in case law under the Equal Opportunity Act.

In 2019, the Births, Deaths and Marriages Act 1996 (Vic) was amended to allow people to change the sex on their birth certificate to reflect their gender identity.(20) Although this has not been tested under the Equal Opportunity Act, a person may be able to rely on the attribute of ‘sex’ in relation to the sex recorded on their amended birth certificate.

There have been instances in other jurisdictions where a person’s sex has been recognised as ambiguous (see NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11), or assessed to differ from biological features (see AB v Western Australia [2011] HCA 42).

Sex characteristics as a protected attribute

Commencing on October 2021, sex characteristics was added to the Equal Opportunity Act as a protected attribute, to better protect intersex Victorians from discrimination.

Sex characteristics means a person's physical features relating to sex, including:

The addition of ‘sex characteristics’ as a protected attribute recognises that express protections are needed to better protect Victorians with an intersex variation from discrimination.

Prior to October 2021, there was no express protected attribute of sex characteristics. Other protections, such as the previous definition of gender identity which referred to a ‘person of indeterminate sex’ identifying as a ‘member of a particular sex’ were inappropriate because gender identity and intersex status are not the same.

While the attribute of ‘sex characteristics’ commenced in October 2021, it is possible that discrimination on the basis of sex characteristics that occurred prior to this date is captured by the protected attribute of ‘sex’. See ‘Sex as a protected attribute’ for more information.

The Commonwealth Sex Discrimination Act 1984 protects intersex people from discrimination, including intersex people who do not identify as being either female or male.

Sexual orientation as a protected attribute

Commencing on October 2021, the definition of sexual orientation was updated to mean:

A person's emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons a different gender or the same gender or more than one gender.

Prior to October 2021, protection from discrimination on the basis of sexual orientation was more restrictive and limited to homosexuality (including lesbianism), bisexuality or heterosexuality. It did not expressly protect other sexual orientations, such as people who are asexual. Similar to the updated definition of gender identity, the updated definition of sexual orientation recognises that understanding and awareness of sexual orientation has evolved over time and that the previous definition had become outdated.

Expunged homosexual conviction as a protected attribute

An attribute was added to section 6 of the Equal Opportunity Act in 2015, prohibiting discrimination on the basis of an expunged homosexual conviction. Until 1981, it was possible to be convicted of certain sexual and public morality offences in Victoria. Although these laws no longer exist, the criminal records arising from those offences have remained for some people for over 30 years.

The purpose of the amendments is to remove the stigma of a criminal record along with the practical impediments created by having a criminal conviction in Victoria such as a person's right to travel or to find a job. The inclusion of the attribute in the Equal Opportunity Act makes it unlawful to discriminate against a person who has 'a conviction for a historical homosexual offence that has become expunged followed by a determination of the Secretary of the Department of Justice and Regulation or a review by VCAT'.

Spent conviction as a protected attribute

Commencing on 1 December 2021, ‘spent conviction’ was added to the Equal Opportunity Act as a protected attribute. The purpose of introducing this protected attribute was to ensure that people are not unfairly discriminated against in any area of life on the basis of minor historical offending. The amendments to the Equal Opportunity Act accompanied the establishment of a scheme under the Spent Convictions Act 2021, that enables eligible convictions to become protected from disclosure on a person’s criminal record after a period without re-offending.

“Spent conviction” in the Equal Opportunity Act has the same meaning as in the Spent Convictions Act 2021. Under that Act, spent convictions include convictions that can become spent immediately, on completion of the conviction period, or on application to the Magistrates’ Court. The way in which a conviction will become spent can depend on factors such as the age at time of offence, the type of offence, and the length of conviction period. Spent convictions of other states and territories are also spent convictions for the purposes of the Victorian legislation. For more information about the spent convictions scheme, visit www.justice.vic.gov.au/spent-convictions-act-2021

In her Second Reading speech to the Spent Convictions Bill 2020, the Attorney-General acknowledged that Aboriginal Victorians are more likely to be impacted by criminal records than non-Aboriginal Victorians for a range of reasons, including increased contact with the criminal justice system. She noted that this Act will help reduce the over-representation of Aboriginal people in the criminal justice system by removing barriers to self-determination, removing stigma associated with criminal records and increasing employment and educational opportunities.

Notes

1 : See discussion of onus and evidence in AB v Ballarat Christian College (Human Rights) [2013] VCAT 1790 [15]–[18], [81], [122]–[123], [142]; Also see [[https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2014/623.html?context=1;query=%5b2014%5d%20VCAT%20623;mask_path=au/cases/vic/VCAT][ USL obo her son v Ballarat Christian College (Human Rights) [2014] VCAT 623 [18], [22], [53], [267].

2 : Applied recently in Slattery v Manningham CC (Human Rights) [2013] VCAT 1869 [26]–[27]; AB v Ballarat Christian College (Human Rights) [2013] VCAT 1790 [79]–[80] and USL obo her son v Ballarat Christian College (Human Rights) [2014] VCAT 623 [20]–[21].

3 : New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission [2001] FCA 1199 [37].

4 : Purvis v New South Wales [2003] HCA 62 [27], [80], [209]–[212]; [2003] HCA 62; (2003) 217 CLR 92.

5 : Ibid [80]. Note although the High Court accepted the broader meaning of 'disability', it adopted a narrow approach to the comparator test, that meant the discrimination claim ultimately failed. This aspect of the case is no longer directly relevant to the Equal Opportunity Act due to the recent changes that remove the comparator test from the definition of 'direct discrimination'.

6 : See, for example, the test for direct discrimination in Equal Opportunity Act 2010 (Vic) s 8.

7 : Schou v State of Victoria [1999] VCAT 632; Moloney v State of Victoria [2000] VCAT 1089.

8 : Victoria, Parliamentary Debates, Legislative Assembly, 4 May 1995, 1251 (Jan Wade, Attorney-General).

9 : See, for example, Croatian Brotherhood Union of WA (Inc) v Yugoslav Clubs & Community Associations of WA Inc (1987) EOC 92–190, EOT (WA).

10 : Hein v Jacques Ltd (1987) EOC 92–188; followed in this respect Nestle Australia Ltd v Equal Opportunity Board [1990] VR 805; (1990) EOC 92–281; CPS Management Pty Ltd v President and Members of the Equal Opportunity Board [1991] VicRp 50; [1991] 2 VR 107; (1991) EOC 92–332 at 78,290, [[http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2014/1294.html?context=1;query=Richardson%20v%20city%20of%20casey;mask_path=][ Richardson v City of Casey Council [2014] VCAT 1294]].

11 : CPS Management Pty Ltd v President and Members of the Equal Opportunity Board [1991] 2 VR 107; (1991) EOC 92–332, 78, 291.

12 : Hein v Jacques Ltd (1987) EOC 92–188; BC8900498.

13 : Duggan v South Yarra Constructions Pty Ltd (1988) EOC 92–220; 25 IR 367.

14 : Williams v Council of the Shire of Exmouth (1990) EOC 92–296.

15 : Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342 [362].

16 : See Australian Medical Council v Wilson [1996] FCA 1618;[1996] FCA 1618; (1996) 68 FCR 46; Macabenta v Minister for Immigration and Multicultural Affairs [1998] FCA 385;[1998] FCA 1643; (1998) 90 FCR 202.

17 : (1996) 68 FCR 46, 75.

18 : Faulkner v ACE Insurance Limited [2011] NSWADT 36 [65] citing Macabenta v Minister for Immigration and Multicultural Affairs [1998] FCA 385; [1998] FCA 1643; (1998) 90 FCR 202.

19 : Miller v Wertheim [2002] FCAFC 156 [14]. See also Jones v Scully [2002] FCA 1080; [2002] FCA 1080; (2002) 120 FCR 243, 271–273 [110]–[113], Jones v Toben [2002] FCA 1150 [101], Jeremy Jones v Bible Believers Church [2007] FCA 55, [21] and Silberberg v Builders Collective of Australia Inc [2007] FCA 1512 [22] where it was found Jews in Australia are a group of people with a common 'ethnic origin' under the Racial Discrimination Act 1975 (Cth).

20 : Births, Deaths and Marriages Registration Amendment Act 2019 (Vic).

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