Discrimination and harassment

There are State and Commonwealth laws prohibiting discrimination on various grounds in certain areas of public life.  In many circumstances, as they go about their day-to-day business, incorporated associations will be required to comply with relevant anti-discrimination legislation and the related harassment laws.  This chapter provides an overview of anti-discrimination legislation and its implications for incorporated associations.

Key Points

  • There is extensive Commonwealth and Western Australian legislation that prohibits unlawful discrimination and harassment on various grounds in certain areas of public life.  Incorporated associations will generally be subject to anti-discrimination legislation, and need to be particularly mindful of discrimination in the areas of employment, the provision of goods, services and facilities, and membership of the incorporated association.
  • Incorporated associations need to have a policy (and grievance procedure) in place that deals with discrimination, harassment and victimisation.  Training for employees and members about discrimination and harassment may also be necessary.
  • Complaints of unlawful discrimination or harassment can be made to the Equal Opportunity Commission (in relation to complaints of non-compliance with Western Australian legislation) or the Human Rights and Equal Opportunity Commission (in relation to complaints of non-compliance with Commonwealth legislation).

What is discrimination?

Discrimination is defined in terms of direct or indirect discrimination. 

Direct discrimination is generally established when a person is treated less favourably than another person in the same or similar circumstances.  For it to be discrimination, the less favourable treatment must be on grounds prohibited by legislation. 

For example, unlawful sex discrimination may arise if a person is refused a job interview because she is a woman.

Indirect discrimination is generally established when a condition or requirement is imposed on a person that, on its face, appears neutral, but in practice adversely impacts on a particular person with an attribute covered by anti‑discrimination legislation (e.g. sex, race, marital status, etc). The condition or requirement will be unlawful if it is not reasonable and there is no applicable exception or other defence.  There may be no intention to discriminate, but the conduct or decision leads to a discriminatory effect. 

For example, imposing a height requirement for job applicants may be indirectly discriminatory against women and people of certain races (depending on whether the requirement is reasonable).

Grounds of discrimination

The grounds on which discrimination is unlawful are set out in Commonwealth and State legislation.

It is unlawful to discriminate against a person on any one of these stated grounds, or on a characteristic that generally relates to a person on these grounds.  For example, the capacity to bear children is a characteristic attributed to women.

In relation to some grounds, it is unlawful to discriminate against a person on the ground that a relative or associate of that person has that attribute (e.g. race, impairment).

Commonwealth legislation

The main laws that cover discrimination at the Commonwealth level are:

  • the Racial Discrimination Act 1975, which makes it unlawful to discriminate against a person on the ground of race, colour, descent, national or ethnic origin. Racial harassment is also unlawful under this Act;
  • the Disability Discrimination Act 1992, which makes it unlawful to discriminate against a person on the ground of disability.  Disability harassment is also unlawful;
  • the Sex Discrimination Act 1984, which makes it unlawful to discriminate against a person on the ground of sex, marital status, pregnancy, potential pregnancy, breastfeeding or family responsibilities (in some circumstances).  Sexual harassment is also unlawful;
  • the Age Discrimination Act 2004, which makes it unlawful to discriminate against a person on the ground of age; and
  • the Human Rights and Equal Opportunity Commission Act 1986.  Although this Act does not make discrimination unlawful, it nevertheless sets out a range of grounds on which complaints of discrimination in employment can be made to the Human Rights and Equal Opportunity Commission. 

These grounds are:

  • age
  • medical record
  • criminal record
  • impairment
  • marital status
  • mental, intellectual or psychiatric disability
  • nationality
  • physical disability
  • sexual orientation
  • trade union activity

Please also note that it is also unlawful under the Fair Work Act 2009 to prejudice an employee in his or her employment on the ground that he or she is or is not a member of a trade union.  Under the Crimes Act 1914 (Commonwealth), it is unnecessary for a person to disclose a spent conviction.

Areas where Commonwealth legislation applies

Discriminatory behaviour will only constitute unlawful discrimination if it takes place within one of the areas of public life that are prescribed by the legislation.

Generally, under the Commonwealth’s laws, discrimination is unlawful in the areas of:

  • employment;
  • provision of accommodation;
  • education;
  • provision of goods, services and facilities;
  • access to places and vehicles;
  • disposal of land;
  • clubs and sport;
  • administration of Commonwealth laws and programmes; and
  • advertisements.

Discrimination in relation to superannuation and insurance is unlawful on some grounds.

Western Australian legislation

The Equal Opportunity Act 1984 (EOA) is the relevant piece of State anti-discrimination legislation.

The EOA makes it unlawful to discriminate against a person on a number of grounds, including:

  • race
  • sex
  • age
  • pregnancy
  • impairment
  • marital status
  • gender history
  • sexual orientation
  • religious or political conviction
  • family responsibility or family status

Sexual harassment and racial harassment are also unlawful.

Under the Industrial Relations Act 1979, it is unlawful to discriminate against a person on the ground of trade union membership or non-membership. The Spent Convictions Act 1988 makes it unlawful to discriminate against a person with a spent conviction.

Areas where Western Australian legislation applies

As with Commonwealth legislation, discriminatory behaviour will only constitute unlawful discrimination if it takes place within one of the areas of public life that are prescribed by the legislation.

Discrimination is unlawful in the following areas:

  1. employment;
  2. provision of accommodation;
  3. education;
  4. provision of goods, services and facilities;
  5. access to places and vehicles;
  6. Clubs (See below for the meaning of ‘clubs’ under the EOA. Incorporated associations are not necessarily clubs.); and
  7. sport.

Discrimination in relation to membership of incorporated associations, application forms, superannuation and insurance, and disposal of land is also unlawful on some grounds.

Issues for incorporated associations

The issues that are most likely to be relevant to incorporated associations are in the areas of employment, and the provision of goods, services and facilities.  In addition, an incorporated association may not discriminate on the ground of impairment, age or race in relation to membership of the incorporated association.

Employment

Incorporated associations that are employers are prohibited under Commonwealth and Western Australian laws from discriminating against employees (both current and prospective, and whether full-time, part-time or casual) in the area of employment.  It is unlawful to discriminate against a person when deciding who should be offered employment, the terms on which employment is offered, the terms and conditions of employment, and allocation or access to benefits (e.g. promotion and training).

It is also unlawful for a principal to discriminate against a contract worker in relation to the terms and conditions of contract work, not allowing the contract worker to work or continue work, access to benefits, or any other detriment.

Discrimination may not be unlawful in certain circumstances because of certain exceptions set out in the legislation.  For example, where the duties performed need to be done by a person of the relevant sex to preserve privacy, discrimination on the ground of sex is lawful.

It is also not unlawful to discriminate against a person on the ground of disability or impairment if that person is not able to carry out the inherent requirements of their job, or is only able to carry out those requirements with the assistance of services or facilities which, if provided, would impose an unjustifiable hardship on the employer.

Example of lawful discrimination

An employee is told that she cannot be promoted because she has dyed her hair pink.  This might be considered unfair, but it is not illegal to discriminate against someone on the basis of hair colour – so the conduct is not unlawful discrimination.

However, if the employee is told that she cannot be promoted because she is too old, this is likely to be unlawful discrimination on the ground of age.

Goods, services and facilities

It is generally unlawful under both Commonwealth and Western Australian legislation to discriminate against a person on a prohibited ground in the provision of goods or services, whether for payment or not.  Goods would include things such as clothing, books, food and equipment.  The term 'services' includes services relating to the provision of finance, entertainment or recreation, transport or travel, and services of the kind provided by members of any trade or profession.

Exceptions may also apply in this area.  For example, it is generally lawful:

  • to supply bona fide concessions or benefits to persons on the basis of age (e.g. pensioner travel concessions); or
  • to give persons of a particular race, sex, age (or other attribute covered by the legislation) access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare.

Membership

In relation to membership of an association, there are only limited grounds for discrimination that are applicable. Discrimination on the ground of impairment or age (under Western Australian legislation) and on the ground of impairment (under Commonwealth legislation) is unlawful in relation to:

  • a person's application for membership;
  • the terms and conditions on which an incorporated association is prepared to admit the person to membership;
  • the general terms and conditions of membership; and
  • access to benefits and facilities provided by the incorporated association.
  • There are also specific exceptions where discrimination is not unlawful.  These include:
  • where the principal object of the associated incorporation is the provision of benefits to persons with a particular impairment or of a particular age;
  • where a benefit has to be provided to a person with an impairment in a special manner and it would be an unjustifiable hardship on the association to do so;
  • where a bona fide benefit or concession is based on age;
  • where membership categories are based on age.

Clubs

Although most clubs in Western Australia are incorporated associations, there are certain anti-discrimination provisions that refer specifically to clubs, but not necessarily to incorporated associations. The specific provisions relating to clubs, however, may apply to those incorporated associations that fall within the definition of a 'club'.

Under the EOA, a club is generally defined to include an incorporated association of not less than 30 persons associated together for a purpose including social, cultural, sporting or political purposes, and

  • that provides and maintains its facilities from the funds of the association; and
  • sells or supplies liquor for consumption on its premises.
  • In relation to membership of a club, the anti-discrimination provisions are more extensive than those that apply to an association that is not also a club. It is generally unlawful for a club, the management committee of a club or a member of the management committee of a club, to discriminate against a person on any prohibited ground in matters relating to:
  • a person's application for membership;
  • the terms and conditions on which the club is prepared to admit the person to membership;
  • the general terms and conditions of membership; and
  • access to benefits and facilities provided by the club.

There are also specific exceptions/exemptions where discrimination will not be unlawful in this area. 

For example, refusing membership to a club on the ground of a person's sex is generally not unlawful if membership of the club is available to persons of a particular sex only.  Please note that the Commissioner for Equal Opportunity has publicly flagged this particular exemption for review and a possible legislative change.

Note also that the specific exceptions listed above as applying to incorporated associations apply to clubs as well.

Temporary exemptions

There are circumstances in which an incorporated association may apply for a temporary exemption from the operation of part/s of Commonwealth anti-discrimination legislation and the Western Australian EOA.  A temporary exemption may be granted where circumstances exist which might constitute unlawful discrimination, but which can be shown to fit within the objects and scheme of the legislation.  For example, a temporary exemption might allow an organisation to offer a research award to women to increase the number of women in research positions within that organisation.

The effect of a temporary exemption is that discrimination covered by the exemption is not unlawful under the legislation while the exemption is in force.

The circumstances in which exemptions will be granted tend to be limited because of the permanent exceptions contained in the legislation, referred to above.  Consequently, exemptions at both Commonwealth and Western Australian level are not frequently granted.

To obtain an exemption, an incorporated association must apply in writing to the relevant body; that is,

Harassment

Harassment refers to a wide spectrum of offensive behaviour, not all of which may have been captured by appropriate legislation. In Australia, unlawful harassment is dealt with under the anti-discrimination laws, rather than through specific harassment legislation, like in the United Kingdom.

Harassment includes any unwelcome behaviour that offends, humiliates or intimidates a person.

Generally, unlawful harassment occurs when someone is subjected to such behaviour for a reason that is prohibited under anti-discrimination legislation. Put another way, unlawful harassment is a form of discrimination. For example, intimidating a person because he or she belongs to a particular ethnic group is unlawful because racial discrimination is outlawed by both Commonwealth and State legislation.

Harassment can involve physical conduct, verbal conduct or visual conduct (e.g. in the form of posters, email, or SMS messages).

Sexual harassment

In Australia, sexual harassment is a legally recognised form of sex discrimination.  It is the most common form of harassment.  Generally, sexual harassment is any form of sexually related behaviour that is:

  • unwelcome; and that
  • offends, humiliates or intimidates a person;

in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

Sexual harassment can result from a one-off incident. It does not have to be repeated or continuous to be against the law. Under the EOA, sexual harassment is unlawful in the areas of employment, education, and accommodation.  However, under criminal law or Commonwealth anti-discrimination legislation, sexual harassment in other areas of public life may be unlawful sex discrimination.

The Commonwealth Sex Discrimination Act 1984 makes sexual harassment unlawful in a wide range of areas that could apply to incorporated associations.

For example, in the areas of clubs and sport and in the provision of goods, services and facilities. 

The Australian Human Rights Commission has published Sexual Harassment: A Code of Practice to assist employers to understand their responsibilities under the Commonwealth Sex Discrimination Act 1984.

Racial harassment

Racial harassment generally includes racially‑based threats, taunts, abuse or insults that disadvantage another person in their workplace or other area covered by anti‑discrimination laws.  Racial harassment could include, for example, racist jokes, racist graffiti and name-calling.

The EOA only deals with racial harassment in the areas of work, education and accommodation.  However in some circumstances, racial harassment could be unlawful racial discrimination, or unlawful under criminal law or Commonwealth anti‑discrimination legislation.

Under the Commonwealth Racial Discrimination Act 1975, racial harassment extends to other areas that could apply to incorporated associations (for example, in the provision of goods, services or facilities).  Under this Commonwealth Act, it is unlawful to perform an act (other than in private) if the act is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people because of race.

In terms of the workplace, sending racially sensitive or offensive emails to colleagues, even if they are meant to be funny, may be considered unlawful racial harassment.

In certain circumstances, aspects of racial harassment can constitute a criminal offence.

Racial vilification

The Western Australian Criminal Code makes aspects of racial harassment, and incitement to racial hatred criminal offences punishable by substantial jail terms.

Disability harassment

Under the Commonwealth Disability Discrimination Act 1992, disability harassment is unlawful in employment, education and provision of goods and services.  In some circumstances, disability harassment may be unlawful disability discrimination.

Victimisation

It is unlawful to subject, or threaten to subject, someone to a detriment because they assert their rights under anti-discrimination legislation.  This is known as victimisation.

Liability

An employer is generally personally liable for acts of discrimination and/or harassment committed by employees or agents in connection with their employment or duties, unless the employer can establish that it took all reasonable steps to prevent the discrimination or harassment. 

A lack of knowledge of discrimination or harassment taking place is not an automatic defence.

An individual may also be personally liable for acts of discrimination or harassment, depending on the circumstances.

Dealing with discrimination or harassment

Most instances of discrimination or harassment constitute unlawful behaviour, rather than a criminal offence. As such, they are generally dealt with by lower authorities than the courts. It is the person experiencing the discrimination or harassment who normally has to initiate the action to seek some form of resolution.

Policy, grievance procedure and training

Incorporated associations can assist with this process by undertaking some proactive planning. For example, it is important for associations to have a policy (and grievance procedure) in place that deals with discrimination, harassment and victimisation. Training for employees and members about discrimination and harassment may also be necessary.

Complaints to external bodies

Complaints of discrimination or harassment under the EOA can be made to the Equal Opportunity Commission, which is administered by the Commissioner for Equal Opportunity.  The Commissioner has the power to investigate and attempt to conciliate complaints of unlawful discrimination lodged under the EOA.  If conciliation is not successful, the Commissioner may refer the matter to the SAT.

The SAT is independent of the Commission, and is a statutory body that makes and reviews a range of administrative decisions.  The SAT holds formal inquiries into complaints, where witnesses may be called to give evidence.  A decision and orders are made which are enforceable.

Complaints of discrimination or harassment under Commonwealth anti-discrimination legislation can be made to the Human Rights and Equal Opportunity Commission.  The President of the Commission is responsible for inquiring into and attempting to conciliate the complaint.  If the complaint is not resolved at this level, the complainant may apply to the Federal Court of Australia or the Federal Magistrates' Court of Australia to have a hearing conducted into their complaint.

In both jurisdictions, complaints should generally be made within 12 months of the alleged act/s of discrimination or harassment. 

Commissioner for Equal Opportunity

Postal Address:
PO Box 7370
Cloisters Square Perth WA 6850

Telephone: (08) 9216 3900
Country Callers: 1800 198 149
TTY: 9216 3936
Website: www.eoc.wa.gov.au
Email: eoc@eoc.wa.gov.au

Australian Human Rights Commission

Postal Address:
GPO Box 5218
Sydney NSW 2001

Telephone: (02) 9284 9600
TTY: 1800 620 241
Complaints Infoline: 1300 656 419
Website: www.humanrights.gov.au
Email: complaintsinfo@humanrights.gov.au