Sex Discrimination (SA)
In South Australia, it is unlawful to discriminate against another person on the basis of certain attributes including sex, race, discrimination and disability. These laws are contained on the Equal Opportunity Act 1984. This article deals with sex discrimination in South Australia.
State or federal law?
Sex discrimination is also prohibited under federal law. Complaints under federal law are made to the federal Human Rights Commission, whereas complaints under South Australian law are made to the South Australian Anti-Discrimination Commissioner.
There is some overlap between the federal and state anti-discrimination laws. If you are unsure whether your matter is covered by state or federal law, seek advice from a specialist lawyer.
What is sex discrimination in South Australia?
In South Australia, sex discrimination is defined as including the following:
- Treating a person unfavourable because of their sex, a characteristic of their sex, their gender identity, past sex, sexual orientation, or intersex status;
- Treating a person unfavourably because they do not comply with an unreasonable requirement that is harder to comply with because of their sex, gender identity, past sex, sexual orientation or intersex status;
- Requiring a person to assume characteristics of a sex with which they do not identify.
When is it unlawful to discriminate?
Sex discrimination is prohibited in employment and work contracts, in education, in accommodation, in the provision of goods and services and by associations and qualifying bodies. However, there are a number of exceptions set out in the Act where sex discrimination is permissible if it occurs for legitimate reasons.
Exceptions to sex dsicrimination laws exist in the following contexts.
Charities are allowed to provide benefits to people of a particular sex, gender identity, sexual orientation, or to intersex people.
Measures intended to achieve equality
Acts may be done to ensure persons of a particular sex, gender identity, sexual orientation, or persons of intersex status have equal opportunities with other people.
A person can be excluded from participation in a sporting activity on the basis of sex (subject to certain qualifications set out in section 48 of the Act).
Sex discrimination in insurance is allowed where it is based on reliable data and is reasonable.
Religious bodies may discriminate on the basis of sex in practices that conform with the precepts of the religion where it is necessary to avoid offending religious sensibilities.
Complaints about alleged sex discrimination can be made to Equal Opportunity SA. The complaint must be made within 12 months of the date of the alleged discrimination. The complaint must be in writing and can be submitted online or by fax, email, or post.
A complaint will be declined if it is not covered by the Act or if it is frivolous or vexatious. Information may be sought from the other party before a complaint is accepted.
When a complaint is accepted, it will proceed to conciliation. Conciliation is a process that attempts to resolve the situation informally between the parties. It may occur face-to-face or by email, phone or letter.
If the matter cannot be resolved through conciliation, it will generally be referred to the South Australian Civil and Administrative Tribunal (SACAT) for determination. However, some matters may be referred to the SA Employment Tribunal, where this is more appropriate.
If a matter if referred to SACAT and the Tribunal finds that the respondent discriminated unlawfully, it may make one or more of the following orders:
- That the respondent must pay compensation to the complainant for damage arising from the discrimination, including injury to his or her feelings;
- That the respondent refrain from further discrimination;
- That the respondent or another party must perform specified acts to redress loss or damage arising from the discrimination.
A party may appeal against a decision of SACAT to the Supreme Court of South Australia. The Supreme Court may affirm, vary, or quash the order of the Tribunal, or substitute or add an order to the decision at first instance. It may remit the matter back to SACAT for reconsideration where appropriate. It may also make an order for costs.
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