Commonwealth anti-discrimination Acts 

Unlike many comparable countries, Australia has no single national Human Rights Act or constitutional bill of rights. There is no one statute a student can open to find "the" law of human rights. Instead, protection is a patchwork: specific Commonwealth anti-discrimination Acts, a small number of express and implied constitutional protections, the general law, and — in only some jurisdictions — a jurisdiction-specific human rights charter or Act. This article orients the rest of the module by explaining that structural point and introducing the most consistently national part of the patchwork: the Commonwealth anti-discrimination Acts.

No single national instrument

Because there is no overarching Act, the question "is this conduct unlawful discrimination?" cannot be answered by reference to one statute. It depends on which attribute is involved, which area of activity the conduct occurred in, and which jurisdiction the conduct falls within. A national employer may need to consider Commonwealth legislation and State or Territory legislation simultaneously. This is a deliberate, if untidy, feature of Australian constitutional arrangements rather than an oversight, and it is why the topic is taught as a set of separate instruments rather than a single code.

One attribute, one Act

The Commonwealth has legislated separately for each protected attribute rather than consolidating them into one Act. The principal examples are the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth). Each Act was enacted at a different time, often to implement a particular international obligation, and each has its own definitions, exceptions and history. A student should resist the instinct to treat them as interchangeable: they do not even share a definition of discrimination — s 9 of the Racial Discrimination Act asks whether an act nullifies or impairs a human right,² while s 5 of the Sex Discrimination Act asks whether a person was treated less favourably³ — and the same fact pattern can be lawful under one Act's exceptions and unlawful under another's.

The structure common to the Acts

Despite being separate statutes, the Commonwealth Acts share a recognisable structure:

• a protected attribute — race, sex, disability, age, and related characteristics such as pregnancy or marital status, depending on the Act;
• a covered area of public life in which discrimination on that attribute is made unlawful — typically employment, education, the provision of goods, services and facilities, accommodation, and access to premises; conduct outside a covered area, however unfair, is not caught by the Act; and
• a complaint and conciliation process, administered by the Australian Human Rights Commission, that a person must generally use before the matter can proceed to litigation. The Commission investigates and attempts to conciliate a resolution; only if conciliation fails, or is inappropriate, does the matter progress toward court. Full factsheet on the Commission itself: Australian Human Rights Commission.

Direct and indirect discrimination

The Acts recognise two general forms of discrimination.

Direct discrimination occurs where a person is treated less favourably than another person is, or would be, treated in circumstances that are not materially different, because of a protected attribute. It is concerned with differential treatment because of the attribute — a causal question IW v City of Perth (1997) 191 CLR 1¹ shows can be genuinely contested where conduct connected to the attribute is itself in issue.

IW was decided under the Equal Opportunity Act 1984 (WA) as it stood in 1990, not under a Commonwealth Act. The Equal Opportunity Amendment Act 1992 (WA)⁴ later inserted s 66A(1a) into that Act, in force from 8 January 1993, so that discrimination on the ground of impairment also covers less favourable treatment on the ground of the impairment of a relative or associate of the person treated. Dawson and Gaudron JJ said that the amendment had no bearing on the outcome in IW.

Indirect discrimination occurs where a requirement or condition is imposed that applies, or would apply, to everyone equally, but that has the effect of disadvantaging people who share the protected attribute, and where that requirement or condition is not reasonable in the circumstances. Indirect discrimination targets facially neutral rules that produce an unequal practical effect — for example, a requirement that has nothing to do with an attribute on its face but that a substantially higher proportion of people without the attribute can satisfy.

The distinction matters because the two forms are proved differently: direct discrimination usually turns on a comparison and a causal link to the attribute, while indirect discrimination usually turns on effect and reasonableness, and the Acts often place the onus of establishing reasonableness on the respondent.

Why this orients the module

Because there is no single Human Rights Act, the rest of this module examines the other pieces of the patchwork in turn: jurisdiction-specific human rights charters and Acts, the proportionality reasoning used to test limits on rights, and the indirect role that international human rights treaties play in Australian law. Each of those pieces supplements, rather than replaces, the Commonwealth anti-discrimination Acts described here.

Applying this in a problem question

1. Identify the attribute in issue and check which Commonwealth Act (if any) protects it.
2. Confirm the conduct occurred in an area of public life the Act actually covers.
3. Classify the conduct as direct discrimination (less favourable treatment because of the attribute) or indirect discrimination (a neutral requirement with a disproportionate, unreasonable effect).
4. Check the relevant Act for exceptions or exemptions that might apply on the facts.
5. Remember the procedural step: a complaint ordinarily goes to the Australian Human Rights Commission for conciliation before any court proceeding.
6. Ask whether State or Territory anti-discrimination legislation might also apply, since Commonwealth coverage is not necessarily exhaustive.