Sex Discrimination Act 1984

Overview

The Sex Discrimination Act 1984 was enacted by the Commonwealth Parliament to address the pervasive issue of discrimination on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, and family responsibilities. This legislation aims to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and other relevant international instruments. The primary policy objective of the Act is to eliminate discrimination in various domains such as work, accommodation, education, the provision of goods and services, the disposal of land, the activities of clubs, and the administration of Commonwealth laws and programs. It also seeks to promote the principle of equality between men and women, aiming for substantive equality in society. The Act applies throughout Australia and is designed to ensure that all individuals are treated equally under the law, irrespective of their sex or related characteristics.

Scope and Application

The Sex Discrimination Act 1984 applies throughout Australia, including the external Territories, to prevent discrimination against individuals on the grounds of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy, breastfeeding, and family responsibilities. This Act also addresses discrimination involving sexual harassment, harassment on the ground of sex, and hostile workplace environments. It applies to acts done within Australia that involve persons or things outside Australia, and to acts done using postal, telegraphic, telephonic, or other like services. The Act applies to Commonwealth employees and State employees, as well as to acts done by or on behalf of the Commonwealth, a Territory, a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth, in the course of their respective duties or responsibilities. It also applies to discrimination in the course of trade or commerce between Australia and places outside Australia, among the States, between a State and a Territory, or between two Territories. Furthermore, it applies to discrimination in the carrying on of business in banking or insurance, where the business extends beyond the limits of the relevant State. Certain exemptions are provided, including for acts done under statutory authority, for services provided by religious bodies, and for discrimination based on genuine occupational qualifications. The Act does not affect the operation of State or Territory laws that deal with discrimination on the grounds specified in the Act or that further the objects of relevant international instruments. The Australian Human Rights Commission is tasked with promoting understanding and acceptance of the Act, preparing guidelines to avoid discrimination, and examining enactments and proposed enactments for compliance with the Act's objectives. The Act includes provisions for the establishment of a Sex Discrimination Commissioner and outlines the functions, terms, and conditions of appointment, as well as the potential for victimisation and the procedures for handling exemptions and appeals. The Act is complemented by subordinate instruments and regulations, which may be amended or added to through subsequent legislation.

Key Provisions

• The Sex Discrimination Act 1984 (the Act) prohibits discrimination against individuals on the grounds of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy, breastfeeding, or family responsibilities. The Act also outlaws discrimination involving sexual harassment and hostile workplace environments. The Act applies throughout Australia and binds the Crown in all its capacities. It primarily targets discrimination in areas such as employment, education, accommodation, and the provision of goods and services. Section 14 prohibits employers from discriminating against employees or prospective employees based on sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy, breastfeeding, or family responsibilities in hiring, employment terms, and promotion opportunities. Similarly, Section 15 prohibits principals from discriminating against commission agents, and Section 16 prohibits principals from discriminating against contract workers in the same grounds. Section 17 forbids partnerships from discriminating against prospective partners, and Section 18 prohibits qualifying bodies from discriminating against applicants based on these grounds when conferring or renewing qualifications. Section 21 makes it unlawful for educational authorities to discriminate against students or prospective students on these grounds. Section 22 prohibits discrimination against individuals by those providing goods, services, or facilities. Section 23 prohibits discrimination in accommodation, while Section 25 prohibits discrimination by clubs. Section 26 addresses discrimination in the administration of Commonwealth laws and programs. Section 28A defines sexual harassment, and Section 28AA defines harassment on the ground of sex. Section 28B prohibits sexual harassment or harassment on the ground of sex in various contexts, including employment, partnerships, and educational institutions. Employers and business operators have a duty under Section 47C to take reasonable and proportionate measures to eliminate unlawful sex discrimination, sexual harassment, and hostile workplace environments. The Act imposes strict liability for several offences, such as publishing advertisements indicating unlawful discrimination (Section 86) and failing to provide actuarial or statistical data when required (Section 87). The penalty for these offences is 10 penalty units. Additionally, Section 94 makes it an offence to commit an act of victimisation against another person, with penalties of 25 penalty units or imprisonment for 3 months, or both, for natural persons, and 100 penalty units for body corporates. Section 95 imposes a penalty of 10 penalty units for insulting, hindering, obstructing, molesting, or interfering with a person exercising a power or performing a function under the Act. The Act also includes provisions for the Australian Human Rights Commission to grant exemptions from certain provisions under Section 44, subject to review by the Administrative Review Tribunal under Section 45. Decisions of the Commission regarding exemptions must be published in the Gazette within one month under Section 46. Furthermore, Section 106 holds employers and business operators vicariously liable for discriminatory acts committed by their employees or agents, unless they can prove they took reasonable steps to prevent such acts.

Legal classification tags

Area of Law

Human Rights Law

Employment & Labour Law

Civil Litigation & Procedure

Instrument

Act

Concepts

Definitions & Interpretation

Offence Provisions

Vicarious liability etc.

Delegation

Protection from civil actions