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 it 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, religion, gender and other personal characteristics) and
• it occurs in certain areas of public life (including employment).

For example, the Sex Discrimination Act 1984 (Cth) prohibits discrimination on the grounds of sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or breastfeeding.

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 aims to discriminate.

National law also creates a positive duty for employers and those conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct that is already made unlawful under the Sex Discrimination Act 1984 (Cth), including:

• sex discrimination in a workplace context;
• sexual harassment in a workplace context;
• sex-based harassment in a workplace context;
• conduct that amounts to subjecting a person to a hostile work environment on the ground of sex; and
• certain acts of victimisation. 

There are other national laws that deal with discrimination such as the Disability Discrimination Act 1992, the Age Discrimination Act 2004  and the Racial Discrimination Act 1975.

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 may be able to 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:

• the Equal Opportunity Commission of WA or
• the Australian Human Rights Commission.

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 options and to find out where you should complain 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.

Complaints under the Sex Discrimination Act 1984 (Cth) should generally be lodged with the AHRC within 12 months of the alleged act of sex discrimination.

Complaints alleging human rights breaches and discrimination in employment under the International Labour Organisation (ILO) Convention must be made within 12 months.

The President of the AHRC may terminate an unlawful discrimination complaint made to the AHRC on several grounds, including if the complaint was lodged more than 24 months after the alleged acts, omissions or practices took place.

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.

More information

Legal Aid WA

• Fact sheet LGBTIQA+ Discrimination

Equal Opportunity Commission WA

• Fact sheets on grounds of discrimination and the complaint process

Australian Human Rights Commission

• Information for people making complaints
• Conciliation - How it works

 

 

Reviewed: 2 October 2024