Discrimination involves unfairly treating a person or group differently from other people or groups of people.
It is against the law to discriminate against someone because of a personal characteristic (like age, gender, race or disability). The law says that it is wrong to discriminate against someone on these grounds in certain areas of public life.
Understanding what counts as discrimination can be complicated.
- how discrimination can happen
- about the laws against discrimination, and
- what you can do about discrimination.
How can discrimination happen?
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 it actually affects a large number of people of a particular race, sex or other social group because they cannot comply with that requirement or it disadvantages them in some other way.
You may have been treated unfairly in a situation, but this will not always be against the law.
Are there laws against discrimination?
There are several national and state laws which protect people from unlawful discrimination if:
- it is because of certain grounds (such as age, race, gender and other personal characteristics) and
- it occurs in certain areas of public life (including employment).
There are also laws that: :
- protect people who are victimised if they complain about discrimination;
- make it unlawful to publish or display an advertisement that shows an intention to discriminate.
What can I do about discrimination?
You should seek legal advice if you feel that you have been unlawfully discriminated against.
If you believe you have been discriminated against, it is important to try and get evidence about what happened. For example, obtain the names and details of any people who witnessed an incident.
Sometimes people do not realise they have discriminated against you. You have the right to complain by speaking to them. If what happened was unintentional, taking informal action may help resolve the issue.
If the discrimination happened at work, you may want to talk to your manager or trade union representative. They can help you lodge a complaint or make one for you.
Where can I make a complaint about unlawful discrimination?
You can make a complaint to:
If your complaint relates to discrimination by an employer (or prospective employer), you may be able to make a complaint to the Fair Work Commission or the Fair Work Ombudsman. There are rules about who can apply to these bodies and strict time limits apply. You can get more information about job-related discrimination in Your rights at work.
You should get legal advice about your situation and to find out who you should complain to about unlawful discrimination.
Are there time limits for making a complaint?
If you are making a complaint about unlawful discrimination, you should get legal advice and lodge your complaint as soon as you can. This will make it easier and quicker to sort out the issue.
A complaint to the Equal Opportunity Commission must be lodged within 12 months of when the incident took place. If you lodge a complaint out of time, you will need to show you had a good reason for why you did not make the complaint earlier.
There is no time limit for making a complaint about unlawful discrimination to the Australian Human Rights Commission. However, the Commission has a discretion to close a complaint if it is lodged more than 6 months (or 24 months for sex discrimination) after the alleged incident took place. Complaints alleging human rights breaches and discrimination in employment under the International Labour Organisation (ILO) Convention must be made within 12 months.
Complaints to the Fair Work Commission about unlawful discrimination have a very strict 21 day time limit. Extensions are only given in exceptional cases.
What happens with complaints?
The Equal Opportunity Commission and Australian Human Rights Commission try to resolve problems through conciliation. Conciliation involves working with the parties to talk through the issues and look for a solution. The Commission makes no findings about what happened, or whether someone has broken the law.
If conciliation does not solve the problem, you can apply to:
- the State Administrative Tribunal about complaints lodged with the Equal Opportunity Commission
- the Federal Court or the Federal Circuit Court and Family Court of Australia (depending on the complexity of your case) about complaints made to the Australian Human Rights Commission.
Equal Opportunity Commission WA
Australian Human Rights Commission
Reviewed: 8 November 2022