What is discrimination?
Discrimination can happen in two ways:
- Direct - where someone treats you less favourably than they would treat anyone else under the same or similar circumstances.
- Indirect - where a law, policy or practice seems to apply to everyone equally, but which actually affects a large number of people of a particular race, sex or other group because they cannot comply with it.
Are there laws against discrimination?
There are several laws which protect us from discrimination:
- Commonwealth Acts (Australia wide) include:
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
- Australian Human Rights Commission Act 1986
- Disability Discrimination Act 1992
- Racial Hatred Act 1995
- Age Discrimination Act 2004
- Fair Work Act 2009
- State Acts (WA only):
- Equal Opportunity Act 1984
- Disability Services Act 1993.
What is unlawful discrimination?
Under West Australian the grounds of discrimination which are unlawful are:
- marital status
- political and religious conviction
- sexual harassment
- racial harassment
- family responsibility
- family status
- gender history
- sexual orientation.
The law also covers people who are victimised because they complain about discrimination and people who are discriminated against in some areas of work or employment for having a spent conviction. Under the Equal Opportunity Act 1984 (WA) it is also unlawful to publish or display an advertisement that shows an intention to discriminate.
Under the Equal Opportunity Act 1984 (WA) discrimination is not against the law everywhere, only if it happens in the areas of public life such as:
- access to places and vehicles
- provision of goods, services and facilities
- membership of clubs
- superannuation and insurance
- disposal of land.
Under Commonwealth laws discrimination is unlawful on the grounds of:
- sex including pregnancy, marital or relationship status (including same-sex de facto couples), breastfeeding, family responsibilities, sexual harassment, gender identity, intersex status and sexual orientation
- race including colour, descent, national or ethnic origin, immigrant status and racial hatred
- disability including temporary and permanent disabilities; physical, intellectual, sensory, psychiatric disabilities, diseases or illnesses; medical conditions; work related injuries; past, present and future disabilities; and association with a person with a disability
- sexual preference, criminal record, trade union activity, political opinion, religion or social origin (in employment only).
Unlawful discrimination also covers:
- offensive behaviour based on racial hatred
- sexual harassment
- harassment of people with disabilities.
The Australian Human Rights Commission (AHRC) can investigate and resolve complaints of discrimination, harassment and bullying based on the grounds listed above.
The AHRC can only accepts complaints of discrimination on the grounds of sexual orientation, gender identity and intersex status, and for same sex couples on the grounds of marital or relationship status that occurred on or after 1 August 2013.
Under Commonwealth laws you cannot be discriminated against in many areas of public life, including employment, education, the provision of goods, services and facilities, accommodation, sport and the administration of Commonwealth laws and services.
Is discrimination ever allowed?
In some cases the Acts allow forms of discrimination. "Exceptions" or "exemptions" mean that in certain circumstances discrimination will not be unlawful.
What can I do about discrimination?
You should always seek legal advice if you feel that you have been discriminated against.
If you believe you have been discriminated against, it is important to try and get proof. For example, if there are witnesses you will need their names and addresses.
Sometimes people do not realise they are discriminating against you. You have the right to complain about it by speaking to them. It may be enough to sort the problem out if it is unintentional.
If the discrimination happens at work you may want to tell your manager or trade union representative about it and they can lodge a complaint for you.
Where can I make a complaint about discrimination?
Complaints about discrimination covered under:
- State Acts can be made to the Equal Opportunity Commission WA (EOC WA).
- Commonwealth Acts (except under the Fair Work Act 2009 (Cth)) can be made to the AHRC.
- The Fair Work Act 2009 (Cth) can go to the Fair Work Commission (FWC) or the Fair Work Ombudsman (FWO) if you are employed under the national workplace relations system. If you are not employed in the national system you may still be able to make an application to FWC if your employment has been unlawfully terminated on a discriminatory ground covered by the Act.
How do I make a complaint?
To the Equal Opportunity Commission of West Australia
A formal complaint must be in writing.
You can obtain a complaint form from the Commission or download one from its website.
You can call the EOC WA on (08) 9216 3900 or country calls 1800 198 149 to ask about your situation and to download a complain form.
To the Australian Human Rights Commission
The AHRC administers Commonwealth discrimination laws.
The Complaints Infoline can give you advice about making a discrimination complaint under Commonwealth law. You can contact the AHRC on 1300 656 419 TTY 1800 620 241 or email firstname.lastname@example.org.
You can lodge your complaint in the following ways:
- in a letter
- download a complaint form from the AHRC website and fill it in
- complete an online complaint form
- send your complaint in email form.
If you cannot write the complaint down yourself you can:
- ask a friend or support person to write it down for you or
- contact the complaints information line and an officer will help you write it down or refer you to someone who can help you.
Your complaint can be in any language.
Are there time limits for making a complaint?
A complaint to the EOC WA must be lodged within 12 months of the date of the last incident of alleged discrimination. If incidents are out of time you can ask the Commissioner for Equal Opportunity to consider them anyway by showing "good cause" (that is, a good reason why you did not complain earlier).
Get legal advice if you are outside the time limit.
Under the Australian Human Rights Commission Act 1986 (Cth) there is no strict time limit for making a complaint of unlawful discrimination to the AHRC. However it is recommended you should lodge your complaint as soon as you can as this will make it easier and quicker to sort it out. The President has discretion to end a complaint if it is lodged more than 12 months after the alleged unlawful discrimination took place.
What happens with complaints to the Commissions?
There are a number of types of complaints that can go to either the EOC WA or the AHRC.
If your complaint:
- nominates a ground of discrimination covered by a relevant law
- nominates an area of public life it occurred in which is covered under a relevant law
- says how you were treated less favourably because of the characteristic (the ground)
- says how you suffered a detriment (eg, lost your job)
then it will be accepted for investigation.
After that, both Commissions at first try to resolve problems through conciliation which is like mediation.
Conciliation involves someone from the Commission working with the parties to talk through the issues and look for a solution. The Commission makes no findings though.
You should seek legal advice about your claim and which Commission you should lodge it with.
If conciliation does not solve the problem, you can apply to:
- the State Administrative Tribunal if your complaint was to the WA Equal Opportunity Commission
- the Federal Court or the Federal Circuit Court, depending on the complexity of your case, if your complaint was to the AHRC.
You should get legal advice before applying.
The Fair Work Commission and the Fair Work Ombudsman
There are laws to protect employees and prospective employees from job-related discrimination. The Fair Work Commission (FWC) is the national workplace relations tribunal. It can deal with some disputes over job-related discrimination. For more information visit the FWC website.
You may be eligible to make a workplace complaint to the FWO if you think your employer (or prospective employer) is discriminating against you and you are covered by Commonwealth or national workplace laws. The FWO does not have the power to order compensation, penalties, or reinstatement of employment. If your case ends up in court, orders for reinstatement or compensation can be made.
For more information in relation to dismissal on discriminatory grounds see: Unfair dismissal and unlawful termination of employment.
For information on other protections from workplace discrimination under the Fair Work Act 2009 (Cth) visit the FWC website.
Where can I get more information?
- Contact Legal Aid WA's Infoline on 1300 650 579. Information officers may be able to help you with appropriate referrals within Legal Aid WA or to other organisations.
- Go to the Australian Human Rights Commission website to inquire about possible discrimination based on sex, disability, race, age, sexual orientation, gender identity, intersex status, marital or relationship status, criminal record, trade union activity, political opinion or social origin, or to lodge a complaint.
- Go to the Equal Opportunity Commission website to inquire about possible discrimination based on age, breastfeeding, family responsibilities, family status, gender history, impairment, marital status, political conviction, pregnancy, race, racial harassment, religious conviction, sex, sexual harassment, sexual orientation, spent conviction, or to lodge a complaint.
- Contact the Fair Work Commission on 1300 799 675 in relation to workplace discrimination.
- Contact the Fair Work Ombudsman on 13 13 94 to have a workplace complaint investigated.
- If you are in a union contact your union for assistance with workplace discrimination.
Last reviewed: 01/08/2013