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.