The following is intended to act as a general guide to anti-discrimination law in Australia. It does not constitute legal opinion.  This paper provides an overview of sex discrimination legislation in Australia in relation to:
- Bodies covered by the legislation; and
- Grounds of discrimination.

 The paper focuses on the Commonwealth Sex Discrimination Act 1984 and the equivalent legislation in New South Wales and Victoria. These States are included in this initial examination of the legislation because the women’s medical secretariats are based in Melbourne and Sydney. The remaining States and Territory’s legislative framework will be examined at a later stage.

Sex Discrimination Legislation in Australia

Sex Discrimination Act 1984 (Cth)
Anti-Discrimination Act 1977 (NSW)
Equal Opportunity Act 1995 (Vic)
Anti-Discrimination Act 1991(Qld)
Equal Opportunity Act 1984 (WA)
Equal Opportunity Act 1984 (SA)
Sex Discrimination Act 1994 (TAS)
Discrimination Act 1991 (ACT)
Anti Discrimination Act (NT)

Other legislation

Affirmative Action (Equal Opportunities for Women) Act 1986 (Cth)

For further information

• http://www.austlii.edu.au
• http://www.hreoc.gov.au
• http://www.lawlink.nsw.gov.au/adb.nsf/pages/lawsindex

What bodies (other than employers) are covered by the sex discrimination legislation?

Commonwealth Legislation

“Qualifying Bodies”

According to the Sex Discrimination Act, 1984 “it is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession to discriminate against a person on the ground of the person's sex, marital status, pregnancy or potential pregnancy” either by refusing to confer the qualification, or, in the terms that it is prepared to confer the qualification.

Examples: the Road Traffic Authority is a qualifying body: Mcinnes v Roads & Traffic Authority Of N S W [1997] NSWEOT

The NSW Medical Board is also a qualifying body: Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4.

See also, Wheen v Valuers Registration Board (1996) EOC 92-816.

“Educational Authority”

The Act also prohibits educational authorities from discriminating against a person on the ground of the person's sex, marital status, pregnancy or potential pregnancy by denying the student access, or limiting the student's access, to any benefit provided by the educational authority.

An educational authority is a body administering an educational institution; an educational institution is a school, college for education or training.

Denying access to a benefit includes failing to provide an environment conducive to work: Metwally v University of Wollongong (1984) EOC [92-030].

“Voluntary Bodies” exception

The legislation states that “voluntary bodies” are excluded from the operation of the legislation and do not need to comply with its provisions. However, these bodies are excluded only in relation to the admission of persons as members and in the provision of benefits, facilities and services (not from the employment provisions).

A “voluntary body” is defined as an association that is not engaged in profit-making activities. A voluntary body does not include clubs or registered or statutory bodies. This means that clubs, registered organisations and statutory bodies must comply with the legislation.

There has been no judicial consideration of this exception, but the general principle is that exceptions should be construed narrowly: Waters v Public Transport Commission (1991-1992) 173 CLR 349 at 369 (per Mason CJ, Gaudron J with Deane J agreeing at 382), (State Personal/Carer’s Leave Case [1998] NSWIRComm 652).

[For the specific sections of the Commonwealth legislation, see Appendix One.]

State Legislation

In addition to the Federal legislation, each State and Territory has its own anti-discrimination legislation. Federal and State or Territory anti-discrimination laws generally cover the same grounds and areas of discrimination within each jurisdiction.

Where legislation is inconsistent, the Federal legislation will generally apply. Where provisions of the Commonwealth legislation and State/ Territory legislation are similar, and can operate together, both will apply. Where an exemption exists under either Federal or State/ Territory legislation the exempt body may be covered under legislation in the alternative jurisdiction. There are, however, some circumstances where only the Federal law applies or only the State or Territory law applies.

Where both the State law and the Federal law is applicable, the aggrieved person can pursue the matter through either legislative framework. However, State Government employees are only entitled to lodge complaints under State (or Territory) law.

“Qualifying authority”

In NSW it is unlawful for an authority which is empowered to confer, renew or extend a qualification that is needed for the practice of a profession to discriminate against a person by refusing the qualification or, in the terms on which it is prepared to confer the qualification or to renew the qualification.

Similar provisions exist in Victoria.

“Educational authority”

NSW has similar provisions to the Commonwealth regarding educational institutions, however some institutions are exempted from complying with the legislation.

A “private educational authority” is excluded from the operation of the Act. A private educational authority is defined as a body administering a school, college, university or other institution that is not administered by statute. In other words, only those educational institutions that are administered by statute are required to comply with the legislation.

Under Victorian law, like in NSW and Commonwealth legislation, it is prohibited for an educational authority to discriminate against a person by denying the student access, or limiting the student's access, to any benefit provided by the authority. However, unlike in NSW it appears that this applies to all educational institutions.

“Voluntary Bodies” exception

The NSW legislation contains a “voluntary body” exception so that voluntary bodies do not have to comply with the legislation. A voluntary body is defined as any body that is a not for profit organisation and is not a co-operative, friendly or building society or a “registered club”. (A registered club is one registered under the Registered Clubs Act 1976). All other voluntary bodies do not need to comply with the NSW legislation.

The Victorian legislation has a similar exemption for voluntary organisations but it is not defined as broadly. The legislation exempts only “private clubs”. A private club is defined as a social, recreational, sporting or community service club, or a community service organisation. Consequently, a private club that is not a social, recreational, sporting or community service club, or a community service organisation must comply with the legislation.

[See Appendix 2 for specific NSW and Victorian anti-discrimination legislation sections.]

Grounds of discrimination

Commonwealth Legislation

The Sex Discrimination Act prohibits discrimination on the following grounds:

1. Sex

A person discriminates against another person on the grounds of sex if they treat the that person less favourably than a person of the opposite sex is treated in similar circumstances that not materially different because of:
(a) their sex;
(b) a characteristic that appertains generally to persons of that sex;
(c) a characteristic that is generally imputed to persons of that sex.

Discrimination under this section includes situations where the discriminator imposes a condition or practice that likely to have the effect of disadvantaging persons of that sex.

2. Marital Status

It is unlawful to discriminate against someone because of their marital status. Whether single, married, divorced or in a de facto relationship, marital status is irrelevant.

Discrimination on the grounds of marital status includes discrimination by reason of a characteristic that appertains or is generally imputed to persons of a particular marital status.

Example of discrimination on the ground of marital status:

A woman is not hired for a position once the manager realises that she is not married and has a child. The manager believes that employing a single mother would “set a bad example”.

3. Pregnancy and Potential Pregnancy

Discrimination against women because they are, or are thought to be pregnant, or they look pregnant, is unlawful.

An act of pregnancy discrimination may also be sex discrimination or discrimination on the ground of family responsibilities, depending on the circumstances.

Examples of pregnancy discrimination

• A policy that employees may apply for a promotion only after two years of uninterrupted service may be indirectly discriminatory to female employees who break their term of service for maternity leave.
• A woman is visibly pregnant on the day of enrolment at college. The administrator having confirmed that she is pregnant, refuses to enrol her and says “you won’t finish the semester, try again next year”.

As well as actual pregnancy, the legislation prohibits discrimination on the basis of “potential pregnancy”. Potential pregnancy is broadly defined and includes “the fact that the woman is or may be capable of bearing children” or has “expressed a desire to become pregnant”.

See for example, Wardly v Ansett Australia (1984) EOC 92-019.

Examples of potential pregnancy discrimination

• Employers or co-workers making assumptions or asking questions about an employee's plans to have children, particularly when the assumptions or answers influence decisions about the employee.
• Questions about a woman's interest in having children, or future plans to have children, during a recruitment process when, in the circumstances, it appears that this information played a part in determining the applicant's suitability for the job.

4. Family Responsibilities

It is unlawful to dismiss an employee on the basis of family responsibilities under the Sex Discrimination Act. Family responsibilities means responsibilities to care or support a dependent child or any other immediate family member.

This provision relates only to the dismissal of employees.

Example of dismissal on the basis of family responsibilities

Being refused leave to take a sick child to the hospital and being dismissed when leave is taken.

[For the specific sections of the Commonwealth legislation, see Appendix One.]

State Legislation

The New South Wales and Victorian legislation prohibits discrimination on the following grounds:

1. Sex

The NSW legislation defines sex discrimination when a person is treated less favourably than someone of the opposite sex. It also includes treatment that requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex are able to comply with, which is not a reasonable requirement.

The Victorian legislation prohibits direct or indirect discrimination on the basis of sex. This includes discrimination on the basis of a characteristic that sex; of a characteristic that is generally imputed to that sex; or because that person is presumed to have the attribute of that sex or to have had it at any time.

2. Marital Status

The NSW legislation defines marital status discrimination as when a person is treated less favourably than someone of different marital status. It also includes treatment that requires the person to comply with a condition that a substantially higher proportion of persons of different marital status are able to comply with, being a requirement which is not reasonable having regard to the circumstances of the case.

The Victorian legislation prohibits direct or indirect discrimination on the basis of marital status, whether that attribute is actual, presumed or is a generally imputed characteristic.

3. Pregnancy

Under the NSW legislation, direct discrimination on the grounds of pregnancy and potential pregnancy is unlawful, but indirect discrimination is probably not unlawful on that ground. However indirect discrimination on the ground of pregnancy has usually been considered to be covered by indirect discrimination on the ground of sex.

The Victorian legislation prohibits direct or indirect discrimination on the basis of pregnancy, whether that attribute is actual, presumed or is a generally imputed characteristic.

4. Family Responsibilities

NSW legislation provides that discriminates occurs when, on the grounds of their responsibilities as a carer, a person is treated less favourably than a person who does not have those responsibilities would be treated in the same circumstances. Discrimination also occurs when a person is required to comply with a condition with which a substantially higher proportion of persons who do not have such responsibilities are able to comply.

The Victorian legislation also prohibits direct and indirect discrimination on the basis of status as a parent or carer. A parent includes a step-parent, adoptive parent, foster parent and guardian. A “carer” means a person on whom someone else is wholly or substantially dependent for ongoing care and attention.

[See Appendix 2 for specific NSW and Victorian anti-discrimination legislation sections.]

Appendix One

Commonwealth, Sex Discrimination Act 1984

s. 4B: Potential Pregnancy

A reference in this Act to potential pregnancy of a woman includes a reference to:
(a) the fact that the woman is or may be capable of bearing children; or
(b) the fact that the woman has expressed a desire to become pregnant; or
(c) the fact that the woman is likely, or is perceived as being likely, to become pregnant.

s. 7B: Indirect discrimination: reasonableness test
(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.
(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

Secretary of DEFAT v Styles & Anor (1989) EOC 92-265: under the federal legislation the onus is on the respondent to prove that the at was reasonable.
Australian Iron and Steel v Banovic (1989) EOC 92-271.

s. 18: Qualifying Bodies

It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of the person's sex, marital status, pregnancy or potential pregnancy:

(a) by refusing or failing to confer, renew or extend the authorisation or qualification;
(b) in the terms or conditions on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification; or
(c) by revoking or withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.

s. 21: Education
(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's sex, marital status, pregnancy or potential pregnancy:
(a) by refusing or failing to accept the person's application for admission as a student; or
(b) in the terms or conditions on which it is prepared to admit the person as a student.
(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's sex, marital status, pregnancy or potential pregnancy:
(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority;
(b) by expelling the student; or
(c) by subjecting the student to any other detriment.

s. 39: Voluntary bodies
Nothing in Division 1 or 2 renders it unlawful for a voluntary body to discriminate against a person, on the ground of the person's sex, marital status or pregnancy, in connection with:

(a) the admission of persons as members of the body; or

(b) the provision of benefits, facilities or services to members of the body.

s. 4: Interpretation

“voluntary body” means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include:

(a) a club;
(b) a registered organisation;
(c) a body established by a law of the Commonwealth, of a State or of a Territory; or
(d) an association that provides grants, loans, credit or finance to its members.

“club” means an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that:
(a) provides and maintains its facilities, in whole or in part, from the funds of the association; and
(b) sells or supplies liquor for consumption on its premises.

Appendix Two

New South Wales, Anti-Discrimination Act 1977

s. 24: What constitutes discrimination on the ground of sex

A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if, on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

s. 29: Qualifying Bodies

It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of sex:

(a) by refusing or failing to confer, renew or extend the authorisation or qualification,

(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or

(c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.

s. 31A: Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of sex:

(a) by refusing or failing to accept the person’s application for admission as a student, or
(b) in the terms on which it is prepared to admit the person as a student.
(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex:
(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority…
3) Nothing in this section applies to or in respect of:
(a) a private educational authority….

s. 4: Definitions

“Private educational authority” means a person or body administering a school, college, university or other institution at which education or training is provided, not being:

a school, college, university or other institution established under the Education Reform Act 1990 (by the Minister administering that Act), the Techical and Further Education Commission Act 1990 or an Act of incorporation of a university;

(b) an agricultural college administered by the Minister for Agriculture.

s. 49S: Meaning of “responsibilities of a carer”
(1) A reference in this Part to a person’s "responsibilities as a carer" is a reference to the person’s responsibilities to care for or support:
(a) any child or step-child of the person (whether or not under the age of 18 years) who is:
(i) wholly or substantially dependent on the person, or
(ii) in need of care or support, or
(b) any child or adult who is in need of care or support and:
(i) of whom the person is guardian….

s. 49T: What constitutes discrimination on the grounds of being a carer.

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of the aggrieved person’s responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

s. 57: Voluntary bodies

In this section, “body” means a body, the activities of which are carried on otherwise than for profit and which is not established by an Act, but does not include:
(a) a co-operative registered under the Co-operatives Act 1992 or a society under the Friendly Societies Act 1989 , or
(b) a friendly society registered under the Friendly Societies Act 1989 , or …
(e) a registered club.
(2) Nothing in this Act affects:
(a) any rule or practice of a body which restricts admission to membership of that body, or
(b) the provision of benefits, facilities or services to members of that body.

Victoria, Equal Opportunity Act 1995

s. 35. Discrimination by qualifying bodies

(1) A qualifying body must not discriminate against a person-
(a) by refusing or failing to confer, renew or extend an occupational qualification;
(b) in the terms on which it confers, renews or extends an occupational qualification;
(c) by varying the terms on which an occupational qualification is held;
(d) by revoking or withdrawing an occupational qualification;
(e) by subjecting the person to any other detriment.
(2) A reference to a qualifying body in this section includes a reference to each member of the qualifying body.

s. 36: Exception-reasonable terms of qualification

A qualifying body may set reasonable terms in relation to an occupational qualification, or make reasonable variations to those terms, to take into account any special limitations that a person's impairment or physical features imposes on his or her capacity to practise the profession, carry on the trade or business or engage in the occupation or employment to which the qualification relates.

s. 37. Discrimination by educational authorities

An educational authority must not discriminate against a person-
in deciding who should be admitted as a student;
by refusing, or failing to accept, the person’s application for admission as a student;
in the terms on which the authority admits the person as a student.
An educational authority must not discriminate against a student-
by denying or limiting access to any benefit provided by the authority;
(b) by expelling the student;
(c) by subjecting the student to any other detriment.

s. 4: Definitions

“Occupational qualification” means an authorisation or qualification that is needed for, or facilitates;
the practice of a profession;
the carrying on of a trade or business;
(c) the engaging in of any other occupation or employment.

“Qualifying body” means a person or body that is empowered to confer, renew or extend an occupational qualification.

s. 78: Private clubs

Nothing in part 3 applies to the exclusion of people from a private club or from any part of the activities or premises of a private club.
In this section, "private club" means a social, recreational, sporting or community service club or a community service organisation, other than one that occupies any Crown land; or
directly or indirectly receives any financial assistance from the State or a municipal council.