Discrimination laws protect our human right to equality.
There are many different laws in Australia which make discrimination illegal, but there are some common elements to each law. In this post, we explain the key elements of discrimination.
What is the human right to equality?
Human rights laws protect our right to equality. This right has 3 aspects:
- Formal equality before the law
- Equal protection of the law without discrimination
- Equal and effective protection against discrimination
Formal equality before the law requires courts and tribunals to treat people fairly regardless of their personal characteristics. It is concerned with ensuring we each have access to the law.
Commonwealth, State and Territory discrimination laws are targeted at ensuring equal protection of the law without discrimination and equal and effective protection against discrimination.
Does the law require people to be treated the same?
No. Discrimination laws recognise that treating people the same may actually be discriminatory. Consider the following examples:
- Requiring all people to access a building using stairs. What about people who cannot use stairs?
- Only providing information about a government service in English? What about people who do not read or speak English?
- Not providing any assistance to someone applying for a government benefit? What about people who need decision-making support?
Treating people the same can cause different outcomes. For some, possibly many, they will not be impacted. For others, because of a particular characteristic they have, being treated the same may mean they cannot access the same benefits as others.
What is discrimination?
Discrimination may occur when a person is treated differently because of their culture, health status, age, race, union membership, religion, political views, and many more. These are called protected attributes.
Discrimination may be direct, occurring when Person A treats Person B unfavourably because of a protected attribute.
Discrimination may also be indirect, occurring when Person A requires Person B to do something, and this has the effect of causing Person B disadvantage because of their protected attribute.
The following examples show the different between direct and indirect discrimination:
- Direct: An employer refuses to employ a person because of their age, even though the person is qualified and suitable to do the role.
- Indirect: An employer excludes all people over the age of 50 from being eligible for a position, in circumstances where the age restriction is not relevant to the job.
What areas do discrimination laws apply?
Laws protect against discrimination in:
- Supplying goods and services
- Accessing government services
- Accessing buildings and venues
- Membership to organisations and clubs
These are called areas of public life.
What can I do if I have been discriminated against?
What you can do depends on:
- Where you live; and
- The area of public life where the discrimination occurred
Generally, a complaint about discrimination can be made to a statutory body. In the ACT, this is the ACT Human Rights Commission. In NSW, complaints can be made to Anti-Discrimination NSW. Because the Commonwealth (federal) also has anti-discrimination legislation, complaints can be made under Commonwealth laws to the Australian Human Rights Commission.
Each statutory body will try and facilitate a resolution of the complaint between the complainant and the person or business complained about. If there cannot be a resolution, then complaints may be litigated in a Tribunal.
Depending on the area of public life in which the person was discriminated, court claims can be run. This is commonly seen in employment disputes at the Fair Work Commission or before the Federal Court.
Tips for making a complaint
- Stick to the key facts. What did you see or hear? Avoid second-hand information.
- Stick to dates in chronological form.
- Provide evidence. Has anyone else witnessed the incident? Do you have any emails, messages or social media posts showing the discriminatory conduct?
- Say how the discrimination has made you feel.
- Say what you want.
Initially, take the mantra ‘less is more’. You can always add to your complaint, but you cannot take information away. We often see complaints where too much information distills the key points of a complaint.
Discrimination laws provide for remedies if a person suffers some form of hurt, loss or damage. Unlike personal injury claims, you do not need to prove that you suffered an injury, though sometimes a person has. Damages may be awarded for hurt feelings, embarrassment, and humiliation at having been treated in a discriminatory way.
The types of remedies include:
- Orders requiring the treatment to stop
- An apology
- Compensation for hurt, loss, embarrassment and/or humiliation
- Compensation for medical treatment for any injury suffered
- Compensation for any loss of earnings or financial loss suffered as a result
- Orders requiring the perpetrator to take steps to ensure the conduct is not repeated
Elringtons has a long history of representing individuals in discrimination claims in the ACT, NSW and Commonwealth, as well as advising organisations in response to discrimination claims. Our experience covers discrimination in all areas.
Our discrimination practice is lead by Tom Maling, who has experience advising clients and running discrimination hearings. Denisa Zezulka also represents our clients across areas of discrimination, particularly employment. Both have a commitment to social justice, pride themselves on being easy to talk to, and provide practical advice to clients.