There is a continuous evolution of discrimination law in Australia, with some grounds of protection being updated as recently as this year. To ensure they don’t inadvertently discriminate against an employee, employers should be aware of all the grounds of discrimination applicable to their state. Multistate employers have a particularly difficult time complying with anti-discrimination laws across multiple states and territories.

Australia has four anti-discrimination laws that protect against discrimination based on race, gender, age, and disability. A complaint that is discriminatory based on these grounds can be filed with the Australian Human Rights Commission (the “AHRC”), where it is conciliated. Employees can file a complaint in the Federal Court, Federal Circuit and Family Court if conciliation fails.

A number of additional protected attributes are provided for under the Australian Human Rights Commission Act 1986 (“AHRC Act”), including irrelevant medical records, irrelevant criminal records, political beliefs, religious beliefs, and trade union activities. While these grounds are not protected by the four federal anti-discrimination laws, the AHRC has the power to investigate and, where appropriate, try to resolve a complaint of discrimination by conciliation. Employees, however, cannot sue for damages if conciliation fails. The AHRC only aims to prepare a report with recommendations for the Attorney-General, for submission to Parliament. Nevertheless, employers should be aware of these additional protected grounds so they can avoid the cost of attending conciliation conferences at the AHRC and reputational damage.

In addition to the federal protections against discrimination, each Australian state and territory has its own anti-discrimination legislation that covers some or all of the above grounds, as well as some additional protected grounds. In addition to the federally protected grounds, state and territory legislation offers a wide range of additional grounds for discrimination that employers are likely not aware of. The following table summarizes what is protected at the federal, state, and territory levels.

In some cases, employers may be surprised that discrimination grounds include protection against physical features, professions, trades, occupations, or callings, as well as employment activities or employment status discrimination. There are only two protected grounds in Victoria and the Australian Capital Territory, but anti-discrimination laws are constantly evolving, and other states and territories may follow suit in the near future.

Employees can file a complaint with their state or territory anti-discrimination body if they believe an employer has discriminated against them based on state or territory laws. A conciliation process is usually used between the employer and employee to resolve the complaint. If conciliation fails, the employee may then file a complaint with the Civil and Administrative Tribunal of their state.

NSW: Anti-Discrimination Act 1977

QLD: Anti-Discrimination Act 1991

VIC: Equal Opportunity Act 2010

WA: Equal Opportunity Act 1984

SA: Equal Opportunity Act 1984

TAS: Anti-Discrimination Act 1998

ACT: Discrimination Act 1991

NT: Anti-Discrimination Act 1996

AHRC Act: Australian Human Rights and Commission Act 1986