The law relating to discrimination in South Australia is a mixture of Commonwealth and State law.
The following Acts apply in South Australia
- Equal Opportunity Act 1984 (SA)
- Whistleblowers Protection Act 1993 (SA)
- Racial Vilification Act 1996 (SA)
- Australian Human Rights Commission Act 1986 (Cth)
- Racial Discrimination Act 1975 (Cth)
- Disability Discrimination Act 1992 (Cth)
- Sex Discrimination Act 1984 (Cth)
- Age Discrimination Act 2004 (Cth)
- Fair Work Act 2009 (Cth)
The purpose of discrimination law
Discrimination law exists to enable everyone to take part equally in public life, regardless of irrelevant personal characteristics. Discrimination law regulates public life, not private life, so, for example, it covers what happens at work, in education or in the supply of goods and services. It does not affect how people conduct their private lives, for instance, who they choose to have as friends. The law says that certain personal characteristics, such as one’s race or age, must be disregarded in public life situations, such as in selecting people for jobs. A person experiences discrimination if a personal characteristic is taken into account in an area of public life where the law prohibits this.
Discrimination law also prohibits other behaviours that stop people taking part equally in public life. These include sexual harassment, victimization, refusing services to people with guide dogs, and discriminatory advertising.
Do I have grounds for a complaint?
This depends on several questions:
- Is the discrimination of a type that is prohibited by law?
- Did the discrimination occur in an area covered by the law?
- Does the conduct fall under any of the permitted exemptions?
- Is the complaint within the time limit?
- Have I suffered some harm (detriment)?
These factors are considered below. If a person has grounds for a complaint they also need to consider which agency they should deal with.
Types of discrimination prohibited by law
Not all unfair treatment is discrimination. The combined effect of the South Australian and Commonwealth legislation is that, in South Australia, it is unlawful to discriminate on the following grounds:
- marital or domestic partner status
- identity of spouse or partner
- pregnancy (or potential pregnancy)
- family responsibilities
- association with a child (in provision of goods, services or accommodation)
- sexuality or chosen gender
- religious appearance or dress
- political opinion
- social origin
- on the basis of having disclosed public interest information to a relevant authority (i.e. whistleblowers) or of having made a complaint of discrimination
Areas of public life covered by discrimination law
Discrimination is only unlawful in specific areas of public life, not in all situations.
Discrimination is generally unlawful in:
- work, including job selection, promotion, access to training opportunities and other benefits, and dismissal from work
- education, including primary and secondary schooling and tertiary education
- conferral of qualifications
- access to goods and to some services
- sale of land
- membership of clubs and associations
Direct and indirect discrimination
Discrimination can be direct or indirect. Both kinds are unlawful.
Direct discrimination is what most people think of as discrimination, for example, an employer refusing to consider job applications from people of African origin or a landlord refusing to rent to tenants who have children.
Indirect discrimination means that conditions are imposed or rules are made that may, on their surface, may look equal but which, in practice, result in unfavourable treatment of some people. For example, suppose an employer stipulates that applicants for a particular job must have blue eyes. In practice, fewer people of African or Asian origin can meet this requirement, so the requirement could amount to race discrimination. Similarly, a requirement that all workers must be available for night shifts could be indirect discrimination against those who have caring responsibilities and are unable to arrange for a substitute carer to stay overnight in their absence. Whether indirect discrimination is unlawful will depend on whether the requirement is reasonable. If there is a good reason, for example, why all employees need to be available for night shifts, then the requirement will not be discrimination, even though it may be harder for carers to meet.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.