Discrimination Law

Hall Payne is a progressive law firm with the principles of fairness and equality at our core. We have a proud history fighting for our clients’ rights at home, at work or in education.

We apply the same principles and expertise when we tackle discrimination through the legal system. Our lawyers have worked successfully in all areas including discrimination, sexual harassment, victimisation and vilification.

Discrimination and sexual harassment are complex areas of the law. Technical knowledge is needed to navigate the different grounds, jurisdictions and remedies that may apply. If you think you’ve been discriminated against, seek advice as soon as possible as time limits relate to different claims.

Our Expert

Luke Forsyth

Principal

Luke is recognised as one of Australia's leading employment lawyers, bringing over 15 years experience helping employees in all areas of employment law.

Common Questions

What is discrimination?

Discrimination refers to being treated less favourably because you possess, or are seen to possess, certain characteristics. Discrimination is not always negative but when someone is treated unfairly the law may provide rights and remedies.

What types of discrimination are there?

Discrimination legislation is different across Australia. However, broadly speaking, Australian discrimination law is based on the presence of an “attribute” or “ground” as the basis for discrimination. This is generally the subject of discrimination and could be your:

  • age
  • race
  • disability
  • gender or gender identity
  • sexuality
  • carer’s responsibilities
  • political belief.

An attribute might also be things such as marital status, pregnancy, breastfeeding duties, physical features or trade union activity.

There are two types of discrimination:

  1. Direct discrimination, where you are treated less favourably than others in the same situation because you have a particular attribute; and
  2. Indirect discrimination, where an unreasonable condition or requirement is imposed which you cannot comply with because you have a particular attribute.

Discrimination may also occur if someone thinks you might possess one of these attributes – now or in the future. For example, if your employer thinks you might get pregnant soon and treats you differently as a result.

Is all discrimination illegal?

No. The law provides rights and remedies for some discrimination but not others meaning that not all forms of discrimination is considered unlawful.

To report discrimination you should know your rights and the obligations of others. Legal advice is the best way to arm you with this knowledge. Starting a claim strongly is much easier than altering it later, so contact Hall Payne to discuss your options.

Where does discrimination happen?

Discrimination law protects you from unlawful discrimination in a variety of areas. You have the right to be discrimination-free in most public places, including work, education, accommodation, clubs, sports, insurance, superannuation and more.

How do I know if I've been discriminated against?

Discrimination is rarely clear-cut. Decisions or policies that appear neutral can have a disproportionate impact on certain people. This is indirect discrimination and, in most cases, this form of discrimination is treated exactly the same as clearer cases of direct discrimination.

Discrimination can be based on a range of characteristics, including:

  • age
  • race
  • disability
  • gender or gender identity
  • sexuality
  • carer’s responsibilities
  • political belief.

It may occur in the form of harassment, victimisation, bullying, or it can take place where a decision is made because of one of these characteristics, and that decision has a negative affect on you. This might be that you don’t get a promotion at work, you’re prevented from returning to work or you can’t access a government program.

However, exceptions do exist. This means it can be difficult to know if the discrimination you’ve experienced is against the law. If you think you may have been discriminated against, get legal advice. Hall Payne have specialists who can ensure your treatment meets the rigorous tests needed to establish a complaint.

When is it okay to discriminate?

In some circumstances, discrimination may not be against the law.

There are many examples, both in law and out of it, where discrimination is actually a good thing. An example is where a company who sent “handywomen” into the homes of vulnerable women were granted an exemption from the Anti-Discrimination Act 1991 (Qld) so they could exclude men when recruiting workers. Another example is the provision of special services or benefits to meet the requirements of those with special needs.

That said, there will often be examples of discrimination that feel wrong, but aren’t technically unlawful. Exceptions to anti-discrimination legislation exist around health and safety and religion, and may apply in a number of circumstances, including in employment, education, the provision of goods and services.

If you’re unsure if the discrimination you’re experiencing is allowed by law, we recommend seeking legal advice.

 

Does it matter where I make a complaint?

Discrimination is a complex area. Each state and territory has its own anti-discrimination or equal opportunity legislation and there are four relevant Federal laws.

The way you initiate your complaint can have ramifications down the track. We want you to make the best decision first up. Seeking legal advice will get you the best outcome.

When should I act if I think I've been discriminated against?

Time limits apply for making a discrimination complaint, with most jurisdictions requiring that a complaint is made within one year of the discrimination having occurred, or giving the decision maker the capacity to terminate the complaint if it is not made within that time.

Obtaining legal advice means you can prepare your complaint, and any proceedings that might follow, in the best way possible.

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