Discrimination law exists to enable everyone to take part equally in public life, regardless of irrelevant personal characteristics. Discrimination law regulates public life, not private life. For example, it covers what happens at work, in education or in the supply of goods and services. It does not affect how people conduct their private lives, for instance, who they choose to have as friends. The law says that certain personal characteristics, such as a person's race, disability, gender or age, must be disregarded in public life situations, like selecting people for jobs.
A person experiences unlawful discrimination if a personal characteristic is taken into account in an area of public life where the law prohibits this.
Discrimination law also prohibits other behaviours that stop people taking part equally in public life. These include sexual harassment, victimization, refusing services to people with guide dogs, and discriminatory advertising.
The law relating to discrimination in South Australia is a mixture of Commonwealth and State law.
Legislation:
The following Acts apply in South Australia
Direct and indirect discrimination
Discrimination can be direct or indirect. Both kinds are unlawful.
Direct discrimination is what most people think of as discrimination, for example, an employer refusing to consider job applications from people of African origin or a landlord refusing to rent to potential tenants who have children.
Indirect discrimination means that conditions are imposed or rules are made that may, on the surface, look equal but which, in practice, result in unfavourable treatment of some people. For example, suppose an employer stipulates that applicants for a particular job must have blue eyes. In practice, fewer people of African or Asian origin can meet this requirement, so the requirement could amount to race discrimination. Similarly, a requirement that all workers must be available for night shifts could be indirect discrimination against those who have caring responsibilities and are unable to arrange for a substitute carer to stay overnight in their absence. Whether indirect discrimination is unlawful will depend on whether the requirement is reasonable. If there is a good reason, for example, why all employees need to be available for night shifts, then the requirement will not be discrimination, even though it may be harder for carers to achieve.
Discrimination complaints
There are often a range of alternatives when it comes to bring a discrimination complaint. Choosing among these pathways is not a simple matter. Your choice can significantly affect your rights and you should seek legal advice first.
Further information is available: What is detriment, Making a complaint, Equal Opportunity Legal Advice Service.
Whether a person has grounds to make a discrimination complaint, depends on several questions:
These factors are considered in the following pages. If a person has grounds for a complaint they also need to consider which agency is best to handle the complaint.
Not all unfair treatment is unlawful discrimination. The combined effect of the South Australian and Commonwealth legislation is that, in South Australia, it is unlawful to discriminate on the following grounds:
From 13 December 2022, the Australian Human Rights Commission can also inquire into systemic unlawful discrimination - continuous or repetitive unlawful discrimination which affects a class or group of persons [Australian Human Rights Commission Act 1986 (Cth) s 35L].
Age discrimination occurs when people are treated unfavourably because of their age, or because of assumptions made about people of that age. Common examples of age discrimination include preferring to hire younger over older workers regardless of competence, refusing to consider job applications from people over pension age, or sacking younger workers when they reach the age where adult wages will apply.
However, specific laws that set age requirements are not age discrimination. For example, laws that limit alcohol sales to adults, or laws requiring that anyone aged between 6 and 17 must attend school, are not age discrimination.
Legislation:
Areas of discrimination on basis of age under SA law
Under Part 5A of the Equal Opportunity Act 1984 (SA) it is unlawful to discriminate on the basis of age in the following areas:
Exemptions
There are exemptions in the following circumstances:
Areas of discrimination on basis of age under Commonwealth law
Under the Age Discrimination Act 2004 (Cth) it is unlawful to discriminate on the basis of age in:
Exemptions
There are a number of areas of exemption under the Age Discrimination Act 2004 (Cth), including:
Making a complaint
Complaints can be made to the Australian Human Rights Commission (Cth) or the Equal Opportunity Commission (SA). There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
For complaints relating to discrimination in employment, claims may be made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.
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Time limits: The Australian Human Rights Commission may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, this time period was 6 months. The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
This covers all types of disability, including illness, injury, physical restrictions, mental illness, intellectual disability, having an infection (such as HIV or Hepatitis C), being at risk of developing a disability in future (such as carrying a particular gene) or having had a disability in the past. Discrimination can include treating the person unfavourably because of their disability, or because of assumptions made about people with that type of disability. Examples of disability discrimination include refusing to consider a job application from a person who uses a wheelchair or refusing to let a house to a person who has a guide dog.
Discrimination on the basis of disability also includes:
In accommodation, landlords are generally required to allow tenants to make reasonable alterations to the premises as needed to accommodate the disability, but at the tenant’s expense and on condition that the premises be restored to their former state at the end of the tenancy.
Separating a person from their guide dog, or refusing to allow them into a shop with their dog is also a criminal offence [Dog and Cat Management Act 1995 (SA) s 81].
Legislation
Areas of discrimination on basis of disability under SA law
Under Part 5 of the Equal Opportunity Act 1984 (SA) it is unlawful to discriminate on the basis of any disability.
Discrimination is prohibited in the following areas:
Exemptions
There are exemptions in the following circumstances:
Areas of discrimination on basis of disability under Commonwealth law
Discrimination is prohibited pursuant to the Disability Discrimination Act 1992 (Cth) in the following areas:
Exemptions
Employment - it is not unlawful if:
Education - it is not unlawful if:
Accommodation - it is not unlawful where:
The following, whilst not strictly speaking exemptions, are defences against an action of disability discrimination and also need to be considered:
It is up to the person who claims a defence of unjustifiable hardship to prove this. All relevant factors, such as the costs and benefits, can be taken into account.
Making a complaint
Complaints can be made to the Australian Human Rights Commission (Cth) or the Equal Opportunity Commission (SA). There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
For complaints relating to discrimination in employment, claims may be made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.
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Time limits: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, this time period was 6 months. If the complaint alleges a human rights breach and discrimination in employment pursuant to the ILO Convention, in which case the time frame is 12 months. The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
Disability Access Reporting Tool
The Office for the Commissioner for Equal Opportunity (OCEC) has launched a tool to support people living with disability report difficulties accessing public venues and businesses. Businesses are expected to make reasonable adjustments for people living with disability.
The Disability Access Reporting Toolkit DART is an online reporting form that triggers an email directly to owners/operators, as well as those responsible for public buildings, informing them about access issues experienced by the user and venue responsibilities under equal opportunity legislation.
Should a business not take action to address the concerns raised via the DART email, the user may choose to make a formal complaint to the Office of Equal Opportunity. The user can then show that they have attempted to resolve the issue using DART prior to making a complaint. DART is an optional step, and is not required prior to making a formal disability discrimination complaint.
Marital or domestic partnership status discrimination occurs where a person is treated unfavourably in public life because they are married or single, divorced, living in a de facto relationship or living with a same-sex partner, or because of characteristics that people of a particular marital status are presumed to have. One example would be refusing to let a flat to a same-sex couple. Another would be overlooking job applications from single people in the belief that they are not sufficiently settled.
Legislation:
Areas of discrimination on basis of marital or partnership status under SA law
Under Part 5B of the Equal Opportunity Act 1984 (SA) it is illegal to discriminate against a person on the basis of their marital or domestic partnership status. Marital or domestic partnership status includes:
It covers relationships of opposite sex and same-sex.
Discrimination is prohibited in the following areas:
Exemptions
There are exemptions in the following circumstances:
Areas of discrimination on basis of marital or relationship status under Commonwealth law
As with the SA legislation, discrimination on the basis of marital or relationship status is prohibited under Commonwealth law. Marital or relationship status means the same as in South Australian law.
Discrimination on the basis of marital status is prohibited in the following areas:
Exemptions
There are exemptions in the following circumstances.
Accommodation
Employment - it is not unlawful to discriminate on the grounds of marital or relationship status:
A complaint about marital or relationship status discrimination at work can also be made to the Fair Work Ombudsman.
Making a complaint
Complaints can be made to the Australian Human Rights Commission (Cth) or the Equal Opportunity Commission (SA). There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
For complaints relating to discrimination in employment, claims may be made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.
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Time limits: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, this time period was 6 months, except for complaints pursuant to the Sex Discrimination Act 1984 (Cth) which was 2 years. The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
This occurs where a person is treated less favourably in public life because of who their spouse is. An example would be where a trader refuses to serve a man in a shop because his wife is a politician whom the trader dislikes.
Legislation:
In South Australia it is unlawful to treat a person less favourably because of who their spouse or partner is [Part 5B of the Equal Opportunity Act 1984 (SA)]. This applies in:
Exemptions
Less favourable treatment is not unlawful if, because of who the person’s spouse or partner is, there would be an unreasonable risk to confidentiality, a conflict of interest, a risk to health or safety, or the person’s appointment would be nepotism.
Making a complaint
Complaints can be made to the Equal Opportunity Commission of South Australia. There is no cost to lodge a complaint in the Equal Opportunity Commission. For forms and guides on making a complaint see the website for the Equal Opportunity Commission.
For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.
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Time limits: The Equal Opportunity Commissioner normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General Protections claims relating to dismissal have a 21 day timelimit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
This occurs where a woman is treated unfavourably because she is pregnant, or because she might become pregnant. It includes unfavourable treatment based on a belief about pregnant women in general, for example, that pregnant women are not interested in working. An example would be where an employer reduces a worker’s hours when she becomes pregnant, even though the worker is still quite capable of working her usual hours.
Legislation:
Areas of discrimination on basis of pregnancy under SA law
In South Australia it is illegal under Part 5B of the Equal Opportunity Act 1984 (SA) to discriminate on the grounds of pregnancy. This includes discrimination because it is thought likely that the woman may become pregnant.
The following areas of discrimination on the basis of pregnancy are unlawful:
Exemptions
There are exemptions in the following circumstances:
Areas of discrimination on basis of pregnancy and family responsibilities under Commonwealth law
Discrimination on the basis of pregnancy under Commonwealth legislation includes the fact that a woman is capable of bearing children, or has expressed a desire to become pregnant [Sex Discrimination Act 1984 (Cth) ss 4B and 7].
Discrimination on the basis of pregnancy (including potential pregnancy) is prohibited in the following areas:
Exemptions
There are exemptions in the following circumstances:
Pregnancy discrimination at work is also unlawful under the Fair Work Act 2009 (Cth) and complaints can be made to the Fair Work Ombudsman.
Making a complaint
Complaints can be made to the Australian Human Rights Commission (Cth) or the Equal Opportunity Commission (SA). There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
For complaints relating to discrimination in employment, claims may be made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.
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Time limits: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) after the alleged acts, omissions or practices took place [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months for any claims not being made under the Sex Discrimination Act 1984 (Cth). The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
Jane was working as a livestock manager in a medium-sized country livestock business. On discovering she was pregnant, her doctor recommended light duties for four weeks and to avoid administering medication to livestock. She told her employer, Keith, and provided a doctor's certificate.
Keith called a meeting for himself, Jane, and another employee, Jack, and said Jack would now take over from Jane as manager. Jane asked for Keith to put this in writing, which he did, stating, "Jane is now pregnant and I feel in the future she will not be able to have the time necessary to do the job."
Jane took sick leave and made a complaint to the Equal Opportunity Commission. Keith denied that Jane was either demoted or discriminated against. The business had undergone a restructure and Jane's status in the business had been retained along with her salary package. However, her medical certificate placed some restrictions on her and he was concerned about her safety as they work with heavy animals and chemicals.
Outcome: At conciliation, Keith agreed to pay Jane $2,800 for loss of income and allow Jane to return to work after signing her clarified job description.
This occurs where a person is treated unfavourably because they have a responsibility to provide care for a family member, such as a dependent child or a frail elderly parent. This discrimination also occurs when people are treated unfavourably because of assumptions made about people with caring responsibilities. For example, it is discrimination if an employer decides not to hire a job applicant because that person is the sole carer for a spouse with disability and the employer assumes that the applicant will be frequently late for work.
Legislation:
Areas of discrimination on basis of family responsibilities under SA law
In South Australia it is illegal under Part 5B of the Equal Opportunity Act 1984 (SA) to discriminate on the ground of family responsibilities. This means the responsibility to provide care for a dependent child or for an immediate family member who is in need of care and support.
Immediate family members include spouses and domestic partners, children, parents, siblings, grandparents, grandchildren and the corresponding relatives of one’s spouse or partner [s 5]. They also include a person to whom an Aboriginal or Torres Strait Islander person owes a responsibility of care or support under applicable kinship rules.
It is unlawful to discriminate based on a person’s caring responsibilities in:
Exemptions
There are exemptions in the following circumstances:
Areas of discrimination on basis of family responsibilities under Commonwealth law
Discrimination on the basis of family caring responsibilities is also prohibited under Commonwealth law.
Under sections 4A and 7A of the Sex Discrimination Act 1984 (Cth), the definition of family responsibilities is the same as in South Australian law, but discrimination on this ground is only unlawful if it occurs in relation to the person's work or selection for work.
Discrimination at work on the basis of family responsibilities is also prohibited under the Commonwealth Fair Work Act 2009 (Cth) and, in that case, any type of adverse action at work is covered.
Making a complaint
Complaints can be made to the Australian Human Rights Commission (Cth) or the Equal Opportunity Commission (SA). There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
For complaints relating to discrimination in employment, claims may be made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.
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Time limits: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) after the alleged acts, omissions or practices took place [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months for any claims not being made under the Sex Discrimination Act 1984 (Cth). The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
Legislation
South Australian legislation refers to 'association with a child', which includes breastfeeding, whereas Commonwealth legislation only refers to 'breastfeeding'.
Association with a child covers situations where [Equal Opportunity Act 1984 (SA) s 85T(5)]:
The Commonwealth legislation specifically includes expressing milk in its definition of breastfeeding [Sex Discrimination Act 1984 (Cth) s 7AA].
Areas of discrimination on the basis of association with a child under SA law
It is unlawful in South Australia to:
Areas of discrimination on the basis of breastfeeding under Commonwealth law
It is unlawful to discriminate based on the fact that a woman is breastfeeding in the areas of:
Making a complaint
Complaints can be made to the Australian Human Rights Commission (Cth) or the Equal Opportunity Commission (SA). There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
For complaints relating to discrimination in employment, claims may be made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.
Time limits
The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) after the alleged acts, omissions or practices took place [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months for any claims not being made under the Sex Discrimination Act 1984 (Cth).
The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93].
General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission [Fair Work Act 2009 (Cth) s 394].
Legislation:
Areas of discrimination on basis of race under SA law
Under Part 4 of the Equal Opportunity Act 1984 (SA) it is unlawful to discriminate against a person on the basis of race in the following areas:
Race of a person means the nationality (current, past or proposed), country of origin, colour or ancestry of the person [s 5].
Exemptions
There are exemptions in the following circumstances:
Areas of discrimination on basis of race under Commonwealth law
It is unlawful under Commonwealth legislation to discriminate on the basis of race, colour, descent or national or ethnic origin in the following areas:
Under section 10 of the Racial Discrimination Act 1975 (Cth) equality before the law is guaranteed. If a law of the Commonwealth or a state gives rights to one racial group and not another, the effect of this section is to give the same rights to the excluded racial group.
The Fair Work Ombudsman can also accept complaints about discrimination at work on the ground of race.
Exemptions under the Racial Discrimination Act 1975 (Cth)
Making a complaint
Complaints can be made to the Australian Human Rights Commission (Cth) or the Equal Opportunity Commission (SA). There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
For complaints relating to discrimination in employment, claims may be made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.
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Time limits: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, this time period was 6 months.. The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
Michelle, an Aboriginal teacher, said she was not served in a large regional supermarket. When she complained to the manager, the shop assistant said, "I couldn't see her because of the colour of her skin." Michelle said this was witnessed by a non-Aboriginal colleague. Michelle was quite distressed and went back into the store to follow up with the manager, but did not feel the matter was properly dealt with.
In response to her complaint, the store investigated the matter and provided letters of apology from both the shop assistant and the manager.
Outcome: At conciliation, the store undertook to provide discrimination training to all staff and pay Michelle $1500 compensation.
Legislation
Racial vilification in South Australian law
It is an offence to incite hatred or severe ridicule or contempt of a person or group of persons on the basis of their race by threatening physical harm or harm to property or inciting others to do so [Racial Vilification Act 1996 (SA) s 4]. Any such offence should be reported to the police.
It is also a civil wrong to do a public act that incites hatred, severe ridicule or serious contempt of a person or group on the ground of their race [Civil Liability Act 1936 (SA) s 73]. A public act means conduct in a public place or any form of communication with the public (for instance, a radio broadcast). If this happens, any person or group affected can sue for damages of up to $40,000 in total for all persons affected by the one act. It is not, however, unlawful to publish a fair report of actual events or to publish genuine and reasonable academic, artistic or scientific material.
Racial hatred in Commonwealth law
Offensive behaviour based on racial hatred is also prohibited under the Racial Discrimination Act 1975 (Cth). Under section 18C it is unlawful for a person to do an act, other than in private, if the act is reasonably likely to offend, insult, humiliate or intimidate another person or group of persons and the act is done because of race, colour, national or ethnic origin. A complaint can be made to the Australian Human Rights Commission.
For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.
Exemptions to this include: performance, distribution or exhibition of artistic works statements or comments made in public interest discussions and the publication of a fair and accurate report of an event or matter of public interest.
This type of discrimination occurs where a person is treated unfavourably because of their sexuality or gender, or because of characteristics that they are assumed to have because of their sexuality. For example, it is discrimination to refuse to hire a worker because they are bisexual. It would also be discrimination for a relationship-preparation course to exclude same-sex couples because it is assumed that their relationships are not enduring, or to pay male workers more than female workers in the same role.
Legislation:
See also the Workplace Gender Equality Act 2012 (Cth) for more information on gender equality targets for relevant employers [s 4].
Areas of discrimination on basis of sexuality or chosen gender under SA law
Under Part 3 of the Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sexuality or gender in the following areas:
Exemptions
There are exemptions in the following circumstances:
Areas of discrimination on basis of sexual preference and gender identity under Commonwealth law
It is unlawful under the Sex Discrimination Act 1984 (Cth) to discriminate on the basis of sexual orientation [s 5A], gender identity [s 5B] or intersex status [s 5C] in the following areas:
Exemptions
There are exemptions in the following circumstances:
Making a complaint
Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
The Fair Work Commission can hear claims of discrimination in work on the ground of sexual preference and address equal remuneration, under the Fair Work Act 2009 (Cth) [section 351 and Part 2-7]. More information is available in the Employment chapter and in the Fair Work Commission's guide to general protection applications.
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Time limit: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months for any claims not being made under the Sex Discrimination Act 1984 (Cth). The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
Mike and Greg lived together in an Adelaide suburb. Their property was assessed by the local council for installation of a new driveway. When the worker arrived to do the work they made derogatory comments about Mike and Greg's sexuality after seeing them together in the house. Some of the comments that they made were, 'You gays don't deserve to have this work done ... I will make you wait', and 'I know people who will bash you up'. The worker then refused to finish the work promised. Mike and Greg were angry and felt humiliated by these remarks.
Mike and Greg complained to the local council but were told that the worker was an independent contractor and not the council's responsibility. Mike and Greg then made a complaint to the Equal Opportunity Commission.
Outcome: At conciliation the Council agreed to provide all contract workers with written information about their responsibilities regarding discrimination, that all people requesting a copy of council policy will receive one free of charge and made a commitment to ensure that their staff were aware of their discrimination policy. A payment of $500 each was made to Mike and Greg for injury to feeling.
This occurs where a person is treated unfavourably because of their sex or because of characteristics that people of that sex are thought to have. For example, it is sex discrimination to set inconsistent dress codes for men and women patrons at a nightclub (for example, women can wear sandals but men cannot). It is also sex discrimination to refuse to hire men in a helping profession because they are assumed to lack empathy.
Legislation:
Areas of discrimination on basis of sex under SA law
Under the Part 3 of Equal Opportunity Act 1984 (SA) it is illegal to discriminate on the basis of sex in the following areas:
Exemptions
There are exemptions in the following circumstances:
Areas of discrimination on basis of sex under Commonwealth law
Sex-based harassment is defined as unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated [Sex Discrimination Act 1984 (Cth) s 28AA].
A person is prohibited under the Sex Discrimination Act 1984 (Cth) from assisting another person, as well as actually engaging themselves, in sex- based harassment.
The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the basis of sex in:
Exemptions
There are exemptions in the following circumstances:
Making a complaint
There is no cost to lodge a complaint in either the Equal Opportunity Commission (SA) or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
The Fair Work Commission can also take complaints of discrimination in work on the ground of sex. See further the Employment law chapter on general protections.
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Time limits: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months for any claims not being made under the Sex Discrimination Act 1984 (Cth). The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
Positive duty to eliminate unlawful sex discrimination
From 13 December 2022, section 47C of the Sex Discrimination Act 1984 (Cth) provides that employers and people conducting a business or undertaking must take all reasonable and proportionate measures to eliminate acts by employers, employees and agents which constitute:
This is a positive duty on employers and business operators.
The following circumstances can be taken into account in determining compliance with the duty [s 47C(6)]:
The Australian Human Rights Commission will be required to ensure compliance with the positive duty to eliminate unlawful sex discrimination and to inquire into suspected non-compliance from 12 December 2023 [s 35A, see also the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth)]. This provides a 12 month period during which businesses (duty holders) can take steps to comply with the duty.
The Commission is required, from 13 December 2022, to publish guidelines for complying with the positive duty in relation to sex discrimination and to undertake educational programs [s 35A].
Further information is available from the Commonwealth Respect@Work website.
Kevin and Todd, in a same-sex relationship, applied for a position as a Hotel Managing Couple for a hotel in an Adelaide suburb. The hotel owner appeared keen to appoint them, but cancelled the interview at the last minute, making a comment about "wanting a woman behind the desk." Todd had flown from Sydney for the interview.
When Kevin and Todd made a complaint, the hotel owner denied making the comment about a woman and stated that he didn't want Todd to travel from interstate for the interview because he could not guarantee they would be successful in getting the position. He had been given a poor report by one of Kevin's referees.
Outcome: At conciliation the hotel owner agreed to pay for Todd's flight from Sydney.
Legislation
What is sexual harassment?
Sexual harassment includes an unwelcome advance, an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature that a reasonable person would find offensive, humiliating or intimidating. The conduct can be spoken or written words, pictures or actions.
Common examples include:
This behaviour is unlawful because it is a form of bullying or intimidation that affects a person’s ability to participate in public life.
The test under the Equal Opportunity Act 1984 (SA) used to determine whether behaviour is sexual harassment is whether a reasonable person would have expected that the other person would be offended, humiliated or intimidated by the behaviour [s 87]. Behaviour that most people would regard as inoffensive will not amount to sexual harassment just because the recipient feels offended by it. Conversely, behaviour that most people would regard as offensive will not be lawful just because the person who did it thought that no-one would mind. It does not matter whether or not the person intended to give offence.
The test to decide if behaviour amounts to sexual harassment under the Sex Discrimination Act 1984 (Cth) is broader than the South Australian test. The Commonwealth test is whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated [s 28A]. Circumstances to be considered include:
A person is prohibited under the Sex Discrimination Act 1984 (Cth) from assisting another person, as well as actually engaging themselves, in sexual harassment [s 28B].
From 13 December 2022, it is also unlawful for a person to be subject to a workplace environment that is hostile on the ground of sex [Sex Discrimination Act 1984 (Cth) s 28M].
Pursuant to section 527D of the Fair Work Act 2009 (Cth), from 6 March 2023 sexual harassment in the workplace is prohibited. The prohibition applies between workers, people seeking to become workers and people conducting businesses or undertakings. The definition of 'workers' means more than just 'employees', and includes other workers such as volunteers, contractors, sub-contractors, out-workers, labour hire workers, work experience students and trainees. An employer or principal can also be held liable for the conduct of their employee or agent [s 527E]. The Fair Work Commission has the jurisdiction to deal with a sexual harassment dispute, and can make an order to stop sexual harassment in the workplace if there is an ongoing risk to the worker [see Part 3-5A].
Under the Fair Work Act 2009 (Cth) sexual harassment in a workplace can also amount to serious misconduct and be a valid reason for dismissal [s 387]. For further information, see the Fair Work Commission's webpage on Sexual harassment.
As with discrimination laws, sexual harassment laws are concerned with participation in public life and not with conduct in private life. Unwanted sexual behaviour in private life may amount to sexual assault or stalking and, if so, could be reported to the police, but it is not covered by sexual harassment laws.
Sexual harassment is unlawful:
The coverage of Commonwealth and State law varies and advice should be sought on this in deciding whether to complain to the Equal Opportunity Commission or the Australian Human Rights Commission.
Under both Commonwealth and State law, employers will be legally responsible for sexual harassment in their workplaces unless they can show that they have taken reasonable steps to prevent it. Employers also have a positive duty to take steps to prevent unlawful discrimination on the basis of sex. Under South Australian law, an employer can be responsible for harassment by a third party who visits the workplace, if it had been reported and the employer did not take reasonable action to stop it recurring.
Further information about workplace sexual harassment is available from Safe Work Australia (such as the Workplace sexual harassment – advice for workers publication) and the Fair Work Commission sexual harassment section.
Making a complaint
Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
Sexual harassment in the workplace can also be classed as workplace bullying and be dealt with by either SafeWork SA or the Fair Work Commission - see further the Employment chapter on Bullying.
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Time limits: The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months for any claims not being made under the Sex Discrimination Act 1984 (Cth). The Equal Opportunity Commission normally requires a complaint to be made within 12 months of the event being complained of but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. The Fair Work Commission may decide to dismiss any application made more than 24 months after the last of the alleged contraventions took place [Fair Work Act 2009 (Cth) s 527G]. |
Ms D'Andrea accepted contract work as a photographer for a local photography studio. On her second day at the studio, Ms D'Andrea was asked by her employer (Mr Jaye) if she would like to go interstate with him. When she asked if the trip was work related, Mr Jaye said, "It could be".
Ms D'Andrea made a sexual harassment and sex discrimination complaint against Mr Jaye, claiming that he:
A conciliation conference between the parties was held, but settlement negotiations broke down when Mr Jaye did not respond to contact from the Commission.
The matter was then referred to the Tribunal.
Mr Jaye did not appear at the Tribunal.
The Tribunal found that Ms D’Andrea was entitled to a total of $22,000 compensation, which included lost wages and $10,00 for stress and humiliation caused by the harassment.
Legislation:
Religious dress discrimination in South Australian law
South Australian law does not cover religion in general but covers the wearing of religious dress, in work and education only.
Under Part 5B of the Equal Opportunity Act 1984 (SA) it is unlawful to treat a person unfavourably in their work or their education because they wear dress or adornments that are required by or symbolic of their religion. For example, a school could not send a Muslim student to detention because she refused to remove her hijab.
Exceptions
There are exceptions in the following circumstances:
In general, employers may set reasonable dress requirements for the workplace.
Religious discrimination in Commonwealth law
Commonwealth law covers this ground of discrimination only in the area of work.
In Commonwealth law, it is unlawful to treat a person unfavourably in their work because of their religion. This includes refusing to hire them, hiring them on less favourable terms, denying them access to any benefits that go with the job, dismissing them or subjecting them to other adverse treatment. A complaint can be made to the Fair Work Ombudsman or the Australian Human Rights Commission, with different consequences.
Complaints
Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
For complaints relating to discrimination in employment, claims can may made to the Fair Work Commission, see the Employment chapter on protected workplace rights: General Protections.
Time limits:
The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 2 years (24 months) previously [Australian Human Rights Commission Act 1986 (Cth) s 46PH]. Until 12 December 2022, the time period was 6 months.
General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394].
Legislation
South Australian law
From 1 September 2023, South Australian law covers discrimination on the basis of being, or having been, subjected to domestic abuse [s 85T(1)(g)].
Under section 85T(8) of the Equal Opportunity Act 1984 (SA) it is unlawful to treat a person unfavourably because they are, or have been subjected to domestic abuse. This applies in relation to work [s 85U], membership of an association [s 85ZA], in education [s 85ZD], in obtaining an interest in land [s 85ZF], the provision of goods and services [s 85ZG] and accommodation [s 85ZH].
Exceptions
There are exceptions in the following circumstances:
Commonwealth law
From 15 December 2023, the Commonwealth Fair Work Act 2009 has covered discrimination on the basis of being subjected to family and domestic violence.
Under section 351 of the Act, it is unlawful for an employer to take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s subjection to family and domestic violence.
Complaints
Complaints can be made to the Equal Opportunity Commission. There is no cost to lodge a complaint. For forms and guides on making a complaint see the website of the Equal Opportunity Commission
The Commissioner may decline complaints on the ground of being, or having been, subjected to domestic abuse if the complainant fails to provide sufficient evidence [s 95A(1)(d)]. However, sufficient evidence would include [s 95A(4)]:
The Fair Work Commission can also take complaints of discrimination in work on the ground of subjection to family or domestic violence. See further the Employment law chapter on general protections.
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Time limits: The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained about, but can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. General protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission, unless exceptional circumstances justify an extension of time [Fair Work Act 2009 (Cth) s 394]. |
Legislation:
South Australian law does not cover this ground of discrimination, and Commonwealth laws applying in South Australia cover discrimination on this ground in the area of work only.
Commonwealth law
In Commonwealth law, it is unlawful to treat a person unfavourably in their work because of their political opinion, including trade union activities [for example s 772 of the Fair Work Act 2009 (Cth)]. This includes refusing to hire them, hiring them on less favourable terms, denying them access to any benefits that go with the job, dismissing them or subjecting them to other adverse treatment. Commonwealth law does not cover this type of discrimination in any other area apart from the workplace.
Complaints
The Fair Work Commission can accept claims about discrimination in work on the ground of political opinion [s 351]. See the Employment chapter on protected workplace rights: General Protections.
The Australian Human Rights Commission can also accept such complaints but cannot take them beyond the stage of conciliation. It can report about them to the Federal Attorney-General.
South Australian law does not cover this ground of discrimination, and Commonwealth laws applying in South Australia cover discrimination on this ground in the area of work.
The law is not clear about what this type of discrimination covers, but it could cover a person’s social class, family background and local origin.
Legislation:
Commonwealth law
In Commonwealth law, it is unlawful to treat a person unfavourably in their work because of their social origin. This includes refusing to hire them, hiring them on less favourable terms, denying them access to any benefits that go with the job, dismissing them or subjecting them to other adverse treatment. Commonwealth law does not cover this type of discrimination in any other area apart from the workplace.
Complaints
The Fair Work Commission can accept claims about discrimination in work on the ground of social origin [s 351]. See the Employment chapter on protected workplace rights: General Protections.
The Australian Human Rights Commission can also accept such complaints but cannot take them beyond the stage of conciliation. It can report about them to the Federal Attorney-General.
Legislation:
South Australian law does not cover this ground of discrimination, and Commonwealth laws applying in South Australia cover discrimination on this ground in the area of work only.
Commonwealth law
In Commonwealth law, it is unlawful to impair equality of opportunity or treatment in the workplace because of an irrelevant criminal record [s 3 reg 6].
This includes refusing to hire a person because of an irrelevant criminal record, hiring them on less favourable terms, denying them access to any benefits that go with the job, or subjecting them to other adverse treatment. Commonwealth law does not cover this type of discrimination in any other area apart from the equality of opportunity in the workplace.
It does not, however, include any distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job or in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion [s 3].
Complaints
The Australian Human Rights Commission can accept such complaints but cannot take them beyond the stage of conciliation. It can report about them to the Federal Attorney-General.
The word "irrelevant" was added to this ground of discrimination from 1 October 2019, in part to address concerns raised by the Commission in its report BE v Suncorp Group Ltd [2018] AusHRC 121.
Discrimination is only unlawful in specific areas of public life, not in all situations.
Discrimination is generally unlawful in:
As well as the exemptions that are set out in the law, it is possible for an employer, education provider or other trader to apply for an exemption to a discrimination law to cover their own particular circumstances.
The South Australian Employment Tribunal can grant exemptions from provisions of the Equal Opportunity Act 1984 (SA) (including outside of employment situations) and the Australian Human Rights Commission can grant exemptions from provisions of Commonwealth anti-discrimination laws.
In general, exemptions are granted for a limited time and conditions may be imposed.
See further:
To make a complaint about discrimination, you need to have suffered some type of harm or loss because of it. A person cannot complain about a practice that they think is discriminatory but which does not affect them personally.
Any type of harm or loss can be considered. Typical examples are:
Detriment can also take the form of humiliation or denigration, for example, putting the person down, ridiculing them or jeering at them.
If you wish to make a complaint under the anti-discrimination laws, you cannot go directly to a court or tribunal. You must first make a complaint to one of the relevant anti-discrimination agencies, that is:
Choosing jurisdiction
You will need to consider which pathway best fits your complaint. As such it is best to get legal advice.
If you have been dismissed, however, then you should contact the Fair Work Commission, which handles cases of unfair or unlawful dismissal. You have only 21 days to lodge an application about an unfair dismissal or unlawful dismissal (including dismissal for discriminatory reasons).
More detail about the role of the Fair Work Ombudsman and of Fair Work Commission are found on their websites. They also have helplines open to receive enquiries. See the Employment chapter, in particular, the section on on protected workplace rights: General Protections.
The Australian Human Rights Commission can accept complaints about discrimination in public life generally, including work, education, qualifications, goods and services and accommodation. It applies the:
The Commission’s role is principally to try to conciliate between the disputing parties to reach an agreed solution. Matters that do not resolve in this way can (with some exceptions) be referred to the Federal Court, where the parties can litigate the case if they choose. The Federal Court is a formal jurisdiction and the losing party will normally have to pay the winning party’s costs. There are some matter types where, if conciliation does not succeed, the complaint cannot be taken further.
From 13 December 2022, in some circumstances a representative action may be brought under section 46PO of the Australian Human Rights Commission Act 1986 (Cth). This means that some actions may be instituted jointly or by a representative such as a union.
For more information, please refer to the Australian Human Rights Commission website. It also has a telephone enquiry line: 1300 656 419.
The South Australian Equal Opportunity Commission can accept complaints about discrimination in public life if they are covered by the Equal Opportunity Act 1984 (SA). The Commission's role is to conciliate between the parties. If conciliation does not succeed, the Commissioner can refer the case to the South Australian Civil and Administrative Tribunal SACAT. From 1 December 2024, where the case concerns discrimination or victimisation in the workplace, the Commissioner must refer the case to the South Australian Employment Tribunal (SAET) instead [Equal Opportunity Act 1984 (SA s 95B(2)]. However, if the case concerns both workplace-related matters, and other matters, the Commissioner may refer the case the either SACAT or SAET.
The Commissioner has a discretion as to whether to provide funding to the parties to litigate the case further at a tribunal.
These state tribunals provide a less formal jurisdiction and neither party will normally have to pay the other’s legal costs. However, monetary awards are usually much lower than awards in Commonwealth cases.
Where the Equal Opportunity Commission becomes aware that a criminal investigation is being conducted or a person is being charged in relation to a matter that is the subject of a complaint, the Commissioner may not proceed to investigate, conciliate, or otherwise deal with the complaint under this Act until the criminal investigation has been completed, or the proceedings for the offence have been disposed of, withdrawn, or permanently stayed.
If the South Australian Equal Opportunity Commission takes up your complaint and acts on it, you will no longer be able to take that complaint to the Australian Human Rights Commission. It is, however, generally possible to take the complaint to the Australian Human Rights Commission and then later opt to move to the Equal Opportunity Commission. Legal advice should be sought first.
Choosing among these pathways is not a simple matter. Your choice can significantly affect your rights and you should seek legal advice first. There may be other assistance available to you if your claim relates to disability, before lodging a formal complaint. Each agency can advise on whether it can handle a particular complaint, and will refer complaints to the other agency if necessary. It is always worth speaking to each agency before making your decision. You can also speak with the Equal Opportunity Legal Advice Service.
Equal Opportunity Legal Advice Service
A free legal advice service run by the University of Adelaide - providing assistance in areas of Equal Opportunity Law (e.g. sexual harassment, discrimination, etc.).
This service is run by final year law students who are supervised by fully qualified lawyers.
Email: eolas@adelaide.edu.au
Visit the University of Adelaide - Equal Opportunity Legal Advice Service website for more information, and to make a booking.
We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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