Discrimination occurs where a person is given less favourable treatment than someone else. There are a number of grounds under which it is unlawful to discriminate against a person.

Direct discrimination occurs when a person is treated less favourably than another person in the same or similar circumstances.  For example, unlawful sex discrimination may arise if a person is refused a job interview because she is a woman.

Indirect discrimination occurs when there is a requirement that adversely impacts on a particular person with an attribute covered by anti‑discrimination legislation (e.g. sex, race, marital status, etc). There may be no intention to discriminate, but the conduct or decision leads to a discriminatory effect if the conditions imposed are not reasonable.

For example: it may be indirect discrimination if the only way to enter a public building is by a set of stairs as people with disabilities who use wheelchairs are unable to enter the building.

The grounds on which discrimination is unlawful are set out in Commonwealth and State legislation. It is unlawful to discriminate against a person on any of the stated grounds.

Commonwealth legislation

The main Commonwealth anti-discrimination laws are:

• the Racial Discrimination Act 1975 - unlawful to discriminate against a person on the ground of race, colour, descent, national or ethnic origin.
• the Disability Discrimination Act 1992 - unlawful to discriminate against a person on the ground of disability. 
• the Sex Discrimination Act 1984 - unlawful to discriminate against a person on the ground of sex, marital or relationship status, gender identity, sexual orientation, pregnancy or potential pregnancy, breastfeeding or family responsibilities (in some circumstances). 
• the Age Discrimination Act 2004 -unlawful to discriminate against a person on the ground of age; and
• the Human Rights and Equal Opportunity Commission Act 1986 - include grounds on which complaints of discrimination in employment can be made to the Human Rights Commission. 

The Fair Work Act 2009 also sets out a number of grounds on which it is unlawful to discriminate against an employee. 

Areas where Commonwealth legislation applies

Discriminatory behaviour will only constitute unlawful discrimination if it takes place within one of the following areas of public life that are prescribed by the legislation:

• employment;
• provision of accommodation;
• education;
• provision of goods, services and facilities;
• access to places and vehicles;
• disposal of land;
• clubs and sport;
• administration of Commonwealth laws and programs; and
• advertisements.

Western Australian legislation

The Equal Opportunity Act 1984 is the relevant piece of State anti-discrimination legislation and makes it unlawful to discriminate against a person on grounds, including:

• race;
• sex;
• age;
• pregnancy;
• impairment;
• marital status;
• gender history;
• sexual orientation;
• religious or political conviction; and
• family responsibility or family status.

Under the Industrial Relations Act 1979, it is unlawful to discriminate against a person on the ground of trade union membership or non-membership.

Areas where Western Australian legislation applies

Like the Commonwealth legislation, discriminatory behaviour will only constitute unlawful discrimination if it takes place within one of the areas of public life that are prescribed by the legislation.

The issues that are most likely to be relevant to incorporated associations are in the areas of employment, and the provision of goods, services and facilities.  In addition, an incorporated association may not discriminate on the ground of impairment, age or race in relation to membership of the incorporated association.

Employment

Incorporated associations are prohibited from discriminating against employees (both current and prospective).  It is unlawful to discriminate against a person when deciding who should be offered employment, the terms on which employment is offered, the terms and conditions of employment, and allocation or access to benefits (e.g. promotion and training).

There are some legislative exceptions where discrimination may not be unlawful.  For example, where the duties performed need to be done by a person of the relevant sex to preserve privacy, discrimination on the ground of sex is lawful.

Goods, services and facilities

It is generally unlawful to discriminate against a person on a prohibited ground when providing goods or services, whether for payment or not.  However there are also exceptions in this area and it is generally lawful:

• to supply bona fide concessions or benefits to persons on the basis of age (e.g. pensioner travel concessions); or
• to give persons of a particular race, sex, age (or other attribute covered by the legislation) access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare.

Membership

In relation to membership of an association it is unlawful to discriminate against a person on the grounds of age of impairment in relation to:

• a person's application for membership;
• the terms and conditions on which an incorporated association is prepared to admit the person to membership;
• the general terms and conditions of membership; and
• access to benefits and facilities provided by the incorporated association.

Discrimination is not unlawful:

• where the principal object of the incorporated association is the provision of benefits to persons with a particular impairment or of a particular age;
• where a benefit has to be provided to a person with an impairment in a special manner and it would be an unjustifiable hardship on the association to do so;
• where a bona fide benefit or concession is based on age;
• where membership categories are based on age.

Clubs

There are certain anti-discrimination provisions that refer specifically to ‘clubs’ and may apply to incorporated associations who meet specific criteria. Under the EOA, a club is defined to include an incorporated association of not less than 30 persons associated together for a purpose including social, cultural, sporting or political purposes that:

• provides and maintains its facilities from the funds of the association; and
• sells or supplies liquor for consumption on its premises.

In relation to membership of a club, the anti-discrimination provisions are more extensive. It is generally unlawful to discriminate against a person on any prohibited ground in matters relating to:

• a person's application for membership;
• the terms and conditions on which the club is prepared to admit the person to membership;
• the general terms and conditions of membership; and
• access to benefits and facilities provided by the club.

Harassment includes any unwelcome behaviour that offends, humiliates or intimidates a person. Generally, unlawful harassment occurs when someone is subjected to prohibited behaviour under anti-discrimination legislation. Harassment can involve physical conduct, verbal conduct or visual conduct (e.g. in the form of posters, email, or SMS messages).

Sexual harassment

In Australia, sexual harassment is a legally recognised form of sex discrimination and includes any form of sexually related behaviour that is unwelcome and that offends, humiliates or intimidates a person in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

Unlawful sexual harassment can be a one-off incident or repeated/continuous. The Commonwealth Sex Discrimination Act 1984 makes sexual harassment unlawful in a wide range of areas that could apply to incorporated associations. The Australian Human Rights Commission has published Sexual Harassment: A Code of Practice to assist employers to understand their responsibilities under the Commonwealth Sex Discrimination Act 1984.

Racial harassment

Racial harassment generally includes racially‑based threats, taunts, abuse or insults that disadvantage another person in their workplace or other area covered by anti‑discrimination laws.  For example, racist jokes, racist graffiti and name-calling. In certain circumstances, aspects of racial harassment can constitute a criminal offence.

Racial vilification

The Western Australian Criminal Code makes aspects of racial harassment, and incitement to racial hatred criminal offences punishable by substantial jail terms.

Disability harassment

Under the Commonwealth Disability Discrimination Act 1992, disability harassment is unlawful in employment, education and provision of goods and services.  In some circumstances, disability harassment may be unlawful disability discrimination.

Most instances of discrimination or harassment constitute unlawful behaviour, rather than a criminal offence. As such, they are generally dealt with by lower authorities than the courts. It is the person experiencing the discrimination or harassment who normally has to initiate the action to seek some form of resolution.

Incorporated associations can assist with this process by undertaking some proactive planning. For example, it is important for associations to have a policy (and grievance procedure) in place that deals with discrimination, harassment and victimisation. Training for employees and members about discrimination and harassment may also be necessary.

Complaints to external bodies

Commissioner for Equal Opportunity

Complaints of discrimination or harassment under the EOA can be made to the Equal Opportunity Commission who have the power to investigate and attempt to conciliate complaints of unlawful discrimination lodged under the EOA.  Complaints should generally be made within 12 months of the alleged act/s of discrimination or harassment. If conciliation is not successful, the matter may be referred to the SAT.

The SAT is independent of the Commission, and is a statutory body that makes and reviews a range of administrative decisions. 

Postal Address: PO Box 7370, Cloisters Square Perth WA 6850

Telephone: (08) 9216 3900
Country Callers: 1800 198 149
TTY: 9216 3936

Website: www.eoc.wa.gov.au

Email: eoc@eoc.wa.gov.au

Australian Human Rights Commission

Complaints of discrimination or harassment under Commonwealth anti-discrimination legislation can be made to the Australian Human Rights Commission within 6 months of the alleged act/s of discrimination or harassment.  The President of the Commission is responsible for inquiring into and attempting to conciliate the complaint.  If the complaint is not resolved at this level, the complainant may apply to the Federal Court of Australia or the Federal Magistrates' Court of Australia to have a hearing conducted into their complaint.

Postal Address: GPO Box 5218 Sydney NSW 2001

Telephone: (02) 9284 9600
TTY: 1800 620 241
Complaints Infoline: 1300 656 419
Website: www.humanrights.gov.au
Email: complaintsinfo@humanrights.gov.au