9.17 Despite the differences of detail between Australian jurisdictions, all legislation dealing with discrimination embodies the same paradigm or framework for identifying unlawful discrimination. Generally, for discrimination to be unlawful, an act or omission must:
be based on one of the grounds or attributes set out in the legislation, such as race, sex or disability;
fall within an area of activity set out in the legislation, such as employment, education, or the provision of goods or services;
result in some harm or less favourable treatment, whether by direct or indirect discrimination; and
not fall within an exception, exemption or defence.
Specified ground or attribute
9.18 In order to be unlawful, the discrimination must be based on one of the grounds or attributes set out in the legislation. This means that the statutory definitions of these grounds are crucial to the operation of the legislation. In Australia, these grounds vary from jurisdiction to jurisdiction and include race, sex, sexuality, pregnancy, marital status, parental status, age, disability, religion, political belief or activity, and trade union activity. If a person is discriminated against on the basis of an attribute that is not listed in the legislation, for example, simply because the discriminator does not like them personally, the victim has no remedy under anti-discrimination law.
9.19 Most of the grounds listed in anti-discrimination legislation reflect the community’s belief that the attribute in question is, or at least should be, an irrelevant consideration in the particular context in which the question arises. For example, discrimination between a man and a woman in employment is permitted on the basis of their qualifications, skills or experience, but not generally on the basis of their sex. This legislative judgment is based on the belief that sex does not usually have a relevant impact on the ability of the individual to perform the job.
9.20 However, exceptions to anti-discrimination provisions recognise that, in some circumstances, grounds or attributes may be relevant and may be taken into account. Under the SDA, for example, it is not unlawful for an insurer to discriminate on the basis of sex in the terms on which an insurance policy is offered if the discrimination is based on reasonable actuarial and statistical data. In the same way, the DDA recognises the relevance of a person’s disability in certain circumstances by including a number of exceptions, including an insurance exception. In addition, the DDA does not simply require that employers and others disregard a person’s disability. Employers and others are expressly required to make reasonable efforts to accommodate disabled individuals so that they are, for example, able to perform the job, despite their disability. The DDA and the duty to provide reasonable accommodation are discussed further below and in Part H of this Report.
9.21 Potentially, any of the grounds or attributes listed in Australian anti-discrimination law may be relevant to discrimination on the basis of genetic status. The relevance of these grounds will depend upon our expanding understanding of genetics, and of the way in which genes may influence attributes such as race, sexuality and so on. Currently, the most obviously relevant ground is disability or impairment and this is discussed in detail below.
Specified area of activity
9.22 In order to be unlawful, discrimination must occur in a field of activity set out in the legislation. The areas specified in Australian anti-discrimination legislation vary from jurisdiction to jurisdiction and include employment, education, the provision of goods and services (for example, insurance), the provision of accommodation, the disposition of land, membership of clubs, and the administration of laws and government programs. This coverage is wide, but does not generally include acts done in the private sphere, reflecting the public/private distinction that runs through much of Australian anti-discrimination law.
9.23 Some legislation has adopted a slightly different approach in indicating those areas of public life covered. The RDA refers to specific areas, but also contains a more general provision, based on the language of the International Convention on the Elimination of all Forms of Racial Discrimination 1966. Section 9(1) of the RDA states in part that:
It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race … which has the purpose or effect of nullifying or impairing the recognition … of any human right … in any field of public life.
9.24 The Genetic Privacy and Non-discrimination Bill 1998 (Cth), which is discussed below, also adopted this approach. Clause 17 of the Bill was in the same terms as s 9 of the RDA, with the substitution of ‘genetic information’ for ‘race’.
Direct and indirect discrimination
9.25 Australian law recognises two ways in which discrimination may occur. These are direct discrimination and indirect discrimination.
9.26 Direct discrimination occurs when a person is treated less favourably than another person who does not share the first person’s attribute. For example, refusing to admit non-Caucasians to a cinema amounts to unlawful racial discrimination. This is so whether the discriminatory policy is worded positively (‘Whites Only’) or negatively (‘No Non-Whites’).
9.27 This type of discrimination is the most obvious to identify. The intention of the discriminator is irrelevant: a person who believes he or she is doing the right thing (for example, dismissing a pregnant woman ‘for her own good’) is liable in the same way as someone who is blatantly biased and actively discriminatory.
9.28 If an action is done for more than one reason, one of which is discriminatory on its face and the other of which is not (for example, refusing service in a hotel to someone of a particular race who is also drunk or improperly dressed), there may still be liability for unlawful discrimination, but this differs between jurisdictions. Under the RDA a complainant need only show that it was one of the reasons for the act ‘whether or not it is the dominant reason or a substantial reason’.
9.29 Indirect discrimination is less obvious and more difficult to identify. It is sometimes called ‘adverse impact’ discrimination because it focuses on the effect of the discriminator’s action rather than on the attributes of the person towards whom the action is directed, although the latter are still relevant. Australian law is not uniform with respect to the elements comprising indirect discrimination. Generally, it must be shown that a requirement or condition is imposed which, even though neutral on its face, has an adverse impact on people with a particular attribute, in circumstances where this is unreasonable. As with direct discrimination, an intention to discriminate is not necessary.
9.30 For example, a requirement that all users of public transport buy tickets that are validated for travel by scratching off segments may appear to be non-discriminatory. However, in Waters v Public Transport Corporation of Victoria it was held that this requirement has a greater adverse impact on people who have visual, motor or intellectual impairments than it does on people without such impairments. Such a requirement, where unreasonable, amounts to indirect disability discrimination.
Exemptions, exceptions and defences
9.31 Anti-discrimination laws contain a number of exemptions, exceptions and defences. If they apply, an otherwise valid complaint of discrimination cannot be sustained. Exemptions, exceptions and defences in Australian anti-discrimination legislation include ‘unjustifiable hardship’ in accommodating a person’s disability, and acts done to comply with other legislation, such as occupational health and safety legislation. These issues, which arise in the employment context, are examined further in Chapters 30, 31, 32 and 33. Broad exceptions relating to insurance, which raise important issues about the use of genetic information by the insurance and financial services industry, are discussed in detail in Chapters 26 and 27.
9.32 In some circumstances it may be possible for a person or body to apply to the agency administering the anti-discrimination legislation for an exemption with respect to a particular activity. In relation to the DDA and SDA, for example, a person may apply to the Human Rights and Equal Opportunity Commission (HREOC) for a temporary exemption from the operation of the legislation. HREOC may grant an exemption for a period of up to five years, provided it is not inconsistent with the objects of the legislation.