Explaining this resource

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

Scope of this resource

In 2022, we celebrated 44 years of anti-discrimination legislation in Victoria. The Equal Opportunity Act 2010 (Vic) (Equal Opportunity Act) commenced on 1 August 2011 and built on more than 30 years of anti-discrimination law in Victoria. The new Equal Opportunity Act completely replaced its predecessor and allowed the Commission to develop a new case law resource for the new Act. This is the third edition of that case law resource.

This resource provides an overview of the Equal Opportunity Act and an analysis of the case law that helps to guide how the Act is applied in practice. It also guides users on the scope of, and interaction between, exceptions and exemptions under the Equal Opportunity Act, reflecting its objective to promote substantive equality.

This third edition provides information about how the 2011 changes to Victoria's anti-discrimination law have been considered and applied. This edition refers to issues that arose under the predecessors to the Equal Opportunity Act, principally the Equal Opportunity Act 1995 (Vic), where they are still relevant.

We set out information about Victoria's Racial and Religious Tolerance Act 2001 (the RRTA), including case law about how that law promotes racial and religious tolerance and provides mechanisms for redress.

This third edition provides updated guidance on cases clarifying the law in various areas of the Equal Opportunity Act in addition to outlining reforms to the Equal Opportunity Act expanding the list of protected attributes, updating the definition of ‘gender identity’ and narrowing the religious exceptions.

This resource is not intended to be an academic text. Rather, it is a practical guide to the law as it currently applies in this jurisdiction and the significant issues that have arisen in cases brought under the Equal Opportunity Act and RRTA. The resource focuses on the Victorian legislation, but, where relevant, it refers to principles as they apply in other jurisdictions including in other states and territories and at the Commonwealth level. It is not intended to be an exhaustive study of discrimination law in these other jurisdictions. Nor is it intended to be a substitute for legal advice. It is, by its nature, general.

Importantly, case law from other jurisdictions, and decisions of the Victorian Civil and Administrative Tribunal (VCAT) are informative and provide guidance about how these issues may be approached in the future. But, they are not binding precedent that must be followed in future cases.

This publication references decisions publicly available on austlii.edu.au. For authorised versions of decisions, you can check citations in LawCite: http://www.austlii.edu.au/lawcite/

All future updates to the Victorian Discrimination Law resource will be made directly into this online version. However, you can download a PDF or DOC version current to February 2023 from the Commission's website.

We welcome your feedback and suggestions for how we can improve this resource. Please contact us by:

• Phone: 1300 891 848
• Email: legal@veohrc.vic.gov.au
• Mail: Legal Team
  Victorian Equal Opportunity and Human Rights Commission
  3/204 Lygon Street, Carlton VIC 3053

Abbreviations used in this resource

The following abbreviations are used throughout this resource.

Charter: Charter of Human Rights and Responsibilities Act 2006 (Vic)

Commission: Victorian Equal Opportunity and Human Rights Commission

Equal Opportunity Act: Equal Opportunity Act 2010 (Vic)

1995 Act: Equal Opportunity Act 1995 (Vic)

VCAT: Victorian Civil and Administrative Tribunal

RRTA: Racial and Religious Tolerance Act 2001 (Vic)

References used in this resource

Referenced cases will be written in full at first mention and link to the AustLII record where available. Cases not in AustLII will link to a transcript where is one available.

Pinpoint references will be shown as a paragraph number in square brackets, e.g. [43]-[45]. If paragraph numbers are not available page numbers will be given where appropriate.

Explaining the Equal Opportunity Act

The Equal Opportunity Act 2010 (Vic) (Equal Opportunity Act) makes it unlawful to discriminate against a person on the basis of a protected attribute listed in the Act; to sexually harass someone; or to victimise someone for speaking up about their rights, making a complaint, helping someone else make a complaint or refusing to do something that would be contrary to the Equal Opportunity Act.

The Equal Opportunity Act also puts in place measures to help identify and eliminate discrimination, sexual harassment and victimisation, and to promote and facilitate the progressive realisation of equality.

To help achieve this, the Commission provides a timely and effective dispute resolution service and several statutory functions to encourage and facilitate best practice and compliance.

People can also bring a complaint about discrimination to the Victorian Civil and Administrative Tribunal (VCAT) for determination.

The objects of the Equal Opportunity Act

Section 3(a) of the Equal Opportunity Act describes one of its objectives: to 'eliminate discrimination, sexual harassment and victimisation, to the greatest possible extent'.

Amendments to the Equal Opportunity Act added new objects to section 3 of the Act, which include a greater focus on identifying systemic issues.

The objectives, or aims, of the Equal Opportunity Act include the following:

• to eliminate discrimination, sexual harassment and victimisation, to the greatest extent possible
• to further promote and protect the right to equality set out in the Charter of Human Rights and Responsibilities
• to encourage the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation
• to promote and facilitate the progressive realisation of equality, as far as reasonably practicable by recognising that … the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures.(1)

A complete statement of objectives is under Equal Opportunity Act 2010 (Vic) s3.

The objectives are not merely aspirational statements. Rather, they are important tools for interpreting the Equal Opportunity Act. This is because where different interpretations are available, VCAT and courts are required to interpret the legislation in a way that promotes the Equal Opportunity Act's objectives over an interpretation that does not.(2) For example, an interpretation that would help to eliminate discrimination will generally be preferred to an interpretation that would further entrench inequalities.

Substantive equality goes further than simply treating all people the same (sometimes referred to as 'formal equality'). The phrase 'substantive equality' used in section 3(d)(iii) of the Equal Opportunity Act means achieving equal outcomes for individuals and groups of people in addition to equal opportunities. The Equal Opportunity Act aims to achieve this outcome in several ways. First, the Equal Opportunity Act requires people with obligations under the Act, described as 'duty holders', to make reasonable adjustments and accommodations for persons with disabilities and parent/carer responsibilities. This requirement helps remove some of the structural barriers to equality.

Second, the Equal Opportunity Act promotes special measures to achieve substantive equality (discussed in Procedures and evidence). By aiming for the progressive realisation of substantive equality, the Equal Opportunity Act recognises that 'Victorians are competing on uneven ground' and positive steps must be taken to 'level the playing field'.(3)

However, the Equal Opportunity Act recognises substantive equality cannot be achieved immediately. Its Explanatory Memorandum states the 'progressive realisation' of equality refers to the 'gradual implementation of measures over time' and 'will be dependent on the capacity and resources of the duty holders' (page 4). The Equal Opportunity Act reflects the need to balance the ultimate aims of equality with the practical realities faced by duty holders (for example, in the factors that are relevant to deciding whether adjustments or accommodations are reasonable in all the circumstances).

How the Equal Opportunity Act interacts with other legislation

The Equal Opportunity Act operates alongside federal anti-discrimination legislation, including the Australian Human Rights Commission Act 1986 (Cth), the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth), the Racial Discrimination Act 1975 (Cth), the Fair Work Act 2009 (Cth).

This means that people – such as employers, educators, service providers, clubs, sporting bodies and local governments – must avoid breaching their obligations under the laws at both the Commonwealth and Victorian Government levels. Generally speaking, however, a person claiming discrimination must select one jurisdiction in which to bring the claim. The Commission may decline to provide dispute resolution services if the person has already initiated proceedings in another forum, or if the complaint has already been, or would more appropriately be, dealt with by another court or tribunal. A person is also barred from bringing a complaint under federal anti-discrimination legislation if they have already made a complaint or commenced proceedings under state law. For example, Racial Discrimination Act 1975 (Cth) section 6A; Sex Discrimination Act 1984 (Cth) section 10; Disability Discrimination Act 1992 (Cth) section 13; and Age Discrimination Act 2004 (Cth) section 12.

In Victoria, the Equal Opportunity Act also operates alongside laws including the Charter of Human Rights and Responsibilities (Vic) (Charter) and the Racial and Religious Tolerance Act 2001 (Vic) (RRTA). The Charter provides human rights protections for people in Victoria, including protecting the right to equality (see section 8). The RRTA promotes racial and religious tolerance in Victoria by prohibiting acts that constitute racial and religious vilification, and provides an avenue of redress for the victims of such vilification. The section on Compliance powers contains more information about the RRTA.

How the Equal Opportunity Act interacts with the Charter

The Charter interacts with the Equal Opportunity Act in a number of ways. Under section 38 of the Charter, 'public authorities'(4) must not act in a way that is incompatible with a human right, or fail to give proper consideration to relevant human rights in making a decision. That is, if a public authority unlawfully discriminates against a person in breach of the Equal Opportunity Act, the conduct may also constitute a breach of the right to equality under the Charter. Importantly, VCAT operates as a 'public authority' when carrying out certain administrative functions under the Equal Opportunity Act, including granting temporary exemptions from unlawful discrimination (see Section 4(1)(j) of the Charter). In those circumstances VCAT must also consider and comply with Charter rights. For this reason, VCAT must consider its obligations under the Equal Opportunity Act in the context of the human rights protected by the Charter. VCAT must also consider the Charter right to equality when deciding whether to grant an exemption under the Equal Opportunity Act 2010 (s 90).

Section 32 of the Charter also requires Victorian legislation to be interpreted consistently with human rights, 'so far as it is possible to do so consistently with their purpose'. VCAT and the courts need to look at human rights, therefore, when they are interpreting laws, including the Equal Opportunity Act. This has been found to require:

VCAT and the courts may look to international law and the judgements of domestic, foreign and international courts and tribunals relevant to a human right for guidance when interpreting a provision.

How the Equal Opportunity Act interacts with the RRTA

Conduct that constitutes unlawful discrimination under the Equal Opportunity Act may also constitute racial or religious vilification under the RRTA. The section on Racial and religious vilification discusses the provisions of the RRTA in more detail.

What unlawful discrimination means

Unlawful discrimination includes both 'direct' and 'indirect' discrimination, which are explored in the section on Explaining the types of discrimination.

In addition, several stand-alone provisions also constitute unlawful discrimination:

• an unreasonable refusal to accommodate a person's responsibilities as a parent or carer in work-related contexts (see Permanent exceptions to discrimination)
• failure to make reasonable adjustments for a person with a disability in employment or in the provision of goods and services (see Reasonable adjustments for people with a disability)
• a failure to allow reasonable alterations to accommodation to meet the special needs of a person with a disability (see Areas of public life in which discrimination is prohibited)
• refusing to provide accommodation to a person with a disability because they have an assistance dog (including requiring the person to pay an extra charge or keep the assistance dog elsewhere) (see Temporary exemptions by VCAT)

If a complaint is brought under one of these stand-alone provisions, the complainant does not need to establish that the conduct constitutes 'direct' or 'indirect' discrimination.

Areas of life where discrimination is unlawful

The Equal Opportunity Act prohibits unlawful discrimination that occurs in specified areas of public life. The Equal Opportunity Act does not seek to operate in respect of purely private activities of private citizens. In essence, the Equal Opportunity Act prohibits unlawful discrimination in the following areas of activity:

• employment and related areas – which include partnerships, industrial organisations, employment agencies and qualifying bodies (including contracting and pre-employment)
• education
• the provision of goods and services and the disposal of land
• the provision of accommodation
• clubs and club membership
• sport and competitive sporting activities
• local government.

Even within these areas of activity, not all discrimination will be unlawful. Conduct is unlawful only where that discrimination occurs on the basis of a protected attribute, and provided no exemption or exception applies.

The protected attributes

The Equal Opportunity Act prohibits discrimination on any of the following grounds:

• age
• breastfeeding
• employment activity
• expunged homosexual conviction
• gender identity
• disability
• industrial activity
• lawful sexual activity
• marital status
• parental status or status as a carer
• physical features
• political belief or activity
• pregnancy
• profession, trade or occupation
• race
• religious belief or activity
• sex
• sex characteristics
• an expunged homosexual conviction
• sexual orientation
• spent conviction.

The Equal Opportunity Act s 7(2) also prohibits discrimination against a person because of a personal association that they have to a person with any of the attributes identified above. The chapter on Protected attributes explores the grounds for discrimination in more detail.

The positive duty to eliminate discrimination, sexual harassment and victimisation

Where a person has an obligation not to discriminate, section 15(2) of the Equal Opportunity Act imposes a positive duty on that person to avoid engaging in discrimination, sexual harassment and victimisation. As far as possible, that person must also take reasonable and proportionate steps to eliminate unlawful discrimination, sexual harassment or victimisation. That is, a person must be proactive and take steps to prevent discriminatory practices before they occur.

The explicit statement of the positive duty was part of changes introduced in the 2010 Equal Opportunity Act. It requires similar steps to those that employers may take to reduce their risk of vicarious liability.

Reasonable and proportionate measures to avoid discrimination

The duty for people and organisations to take reasonable steps to avoid discrimination requires an assessment of whether measures are reasonable and proportionate – see section 7(2). The Equal Opportunity Act recognises that what may be possible for one duty holder may not be possible for another. It also allows duty holders to implement policies and procedures progressively where appropriate.

Section 15(6) provides guidance on what constitutes reasonable and proportionate measures. Factors that must be considered include:

• the size of the business or operations
• the resources of the business
• the nature of the business
• the business and operational priorities
• the practicability and cost of the measures in question.

Complying with the positive duty might mean having policies aimed at preventing discrimination, harassment and victimisation, and ensuring all staff are aware of their obligations. It might also include having an effective complaint handling or grievance procedure, and mechanisms for reviewing and improving compliance where appropriate.

Examples of the steps a duty holder may need to take to comply with the requirement to eliminate discrimination, sexual harassment and victimisation are:

• making staff aware of a 'zero tolerance' of discrimination, sexual harassment and victimisation
• having policies on discrimination, sexual harassment and bullying and training staff
• developing an action plan setting out proposed reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation, and an implementation timeframe. This plan could include introducing policies and training on discrimination, sexual harassment and victimisation.
• conducting a baseline assessment or audit of existing policies and practices to identify actual or potential discrimination, sexual harassment and victimisation. This action could involve monitoring the handling and outcomes of complaints – both internal and external – including aspects such as dismissal, resignations and absenteeism.
• monitoring and publicising baseline assessments and annual progress in eliminating discrimination, sexual harassment and victimisation.

An individual cannot pursue an alleged contravention of this duty to the Commission or to VCAT, but a contravention may enable the Commission to investigate potential serious systematic discrimination.

Under section 148 of the Equal Opportunity Act, the Commission can issue practice guidelines to help organisations to meet their legal obligations under the Act, including the positive duty. Examples of recent practice guidelines include guidelines on:

• Spent conviction discrimination (June 2022)
• Preventing and responding to workplace sexual harassment (August 2020)
• Family violence services and accommodation (June 2017)
• Trans and gender diverse inclusion in sport (May 2017)

In Collins v Smith [2015] VCAT 1029 [46] VCAT confirmed it does not have jurisdiction to hear an application regarding a breach of the positive duty in section 15. The positive duty applies to a person with a duty under Part 4, 6 or 7 not to engage in discrimination, sexual harassment or victimisation. A breach of the duty may be the subject of an investigation undertaken by the Commission under Part 9 (Investigations) of the Equal Opportunity Act (see section 15(4)).

Notes

1 : Refer to Equal Opportunity Act 2010 (Vic) s 3 for the complete statement of objectives.

2 : Interpretation of Legislation Act 1984 (Vic) s 35(a). See also Project Blue Sky v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 [388]–[389].

3 : Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 783 (Robert Hulls, Attorney General).

4 : 'Public authority' is defined in s 4(2)(i) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). For further consideration about who may be a public authority, see Metro West v Sudi (Residential Tenancies) [2009] VCAT 2025.

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