Sex Discrimination (Tas)

In Tasmania, discrimination on the basis of particular attributes including sexual orientation, age, race, disability and gender is prohibited. The Anti-Discrimination Act 1998 sets out the definitions of direct and indirect discrimination and the processes for making complaints of discrimination. This article deals with sex discrimination in Tasmania.

What is sex discrimination?

Under section 16 of the Anti-Discrimination Act, a person must not discriminate on the basis of sexual orientation, lawful sexual activity, gender, gender identity, intersex status, pregnancy or breastfeeding. A person must also not discriminate on the basis of a belief that another person has any of those attributes.

Direct and indirect discrimination

Discrimination on the basis of a prescribed attribute is unlawful regardless of whether it is direct or indirect.

Direct discrimination occurs when a person treats another person less favourably because of a prescribed attribute – for example, not hiring a person because they are female.

For direct discrimination to occur it does not have to be the only or the main ground for the treatment. It is also irrelevant whether the person discriminating views the treatment as less favourable or has any particular motive.

Indirect discrimination occurs when a person imposes a condition, requirement or practice that is unreasonable and disadvantages a group that has a particular attribute – for example, failing to provide female toilets for staff.

Indirect discrimination can occur regardless of whether the discriminator is aware that the condition or requirement adversely affects the group.

When is sex discrimination unlawful?

Under section 23 of the Act, a person must not discriminate on the basis of sexual orientation, lawful sexual activity, gender, gender identity, intersex status, pregnancy or breastfeeding in any of the following areas of life.

• Employment;
• Education and training;
• The provision of facilities, goods and services;
• Accommodation;
• Clubs;
• The administration of state laws and programs;
• Awards, enterprise agreements or industrial agreements.

However, there are a number of exceptions and exemptions that apply. In those situations, discrimination is not unlawful within the parameters of the exemptions set out in the Act.

Exceptions and exemptions

Under section 27, a person may discriminate on the basis of gender in the following contexts.

• In a religious institution, in accordance with he doctrines of the religion;
• In education, in relation to enrolments in single sex schools;
• In employment in the area of residential care for children;
• In employment, where it is because of genuine occupational requirements of the position;
• In share housing for fewer than five people;
• In the provision of facilities, where they are reasonably required for use by one gender only.

General exemptions

There are also a number of general exemptions under the Act. These relate to the provision of charitable services and schemes for the benefit of a specific disadvantaged group and affirmative action programs. It is not unlawful discrimination to provide opportunities to members of a particular group in these contexts. For example, it is not unlawful to establish a charity for the benefit of women only, or to hire women in preference to men for particular positions as part of an affirmative action program.

Complaints

Complaints can be made about discrimination to Equal Opportunity Tasmania.  Complaints are investigated by the Equal Opportunity Commissioner, who may refer a matter to conciliation or to the Civil and Administrative Tribunal (TASCAT).

Conciliation conferences take part in private and parties who are invited to attend must do so. If a matter cannot be resolved at conciliation, it will be referred for inquiry by TASCAT.

TASCAT

When a matter is referred to the Tribunal for inquiry, it may initially be listed for a directions conference to ascertain whether it is ready to proceed to a hearing. At this conference, the parties will be asked for a list of witnesses they intend to call and any documents they want the Tribunal to consider. If the matter appears not be ready for a hearing, it may be referred for conciliation, depending on the wishes of the parties.

Once a matter is ready for hearing, the Tribunal will hear the evidence of the parties and their witnesses. If the alleged discrimination is established, it can make one or more of the following orders.

• An order that the respondent must not repeat or continue the discriminatory conduct;
• An order that the complainant must be re-employed;
• An order that the respondent must pay the complainant compensation;
• An order that the respondent must pay a fine;
• An order that a contract is void or must be varied;
• An order that the complainant must make an apology or retraction;
• Any other order it sees fit.

Appeals

A party to a matter that is decided by TASCAT can appeal against the decision to the Supreme Court of Tasmania. The supreme Court can affirm, vary or revoke orders made by the Tribunal and, where appropriate, can remit the matter back to the Tribunal for reconsideration. 

State vs federal law

Sex discrimination in also unlawful under federal law. Complaints under federal law are made to the Commonwealth Human Rights Commission. There is overlap between Tasmanian and federal anti-discrimination law and if you are unsure which legislative scheme applies to your complaint, you should seek specialist legal advice.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.