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Federal Discrimination Law 2005 (archive)

• Please see the most recent Federal Discrimination Law Online.

The July 2007 supplement to Federal Discrimination Law 2005 covers significant cases decided in the federal unlawful discrimination jurisdiction since March 2005.

Federal Discrimination Law 2005 provides a comprehensive overview of case law in the federal unlawful discrimination jurisdiction. In addition to detailed analysis of discrimination law jurisprudence, the publication also covers issues of practical concern for litigants and practitioners, with chapters on procedural issues, damages and remedies, and costs. It is an invaluable resource for anyone with an interest in this very challenging area of the law.

 

March 2005 - 2007 Supplement

• Supplement: 1 March 2005 - 1 July 2007
  • Supplement: 1 March 2005 - 1 July 2007 in PDF
  • Supplement: 1 March 2005 - 1 July 2007 in MS Word

Contents

• Glossary
• Download Federal Discrimination Law 2005 in PDF
• Purchase Federal Discrimination Law 2005
• Chapter 1: Introduction
• Chapter 2: The Age Discrimination Act
• Chapter 3: The Racial Discrimination Act
• Chapter 4: The Sex Discrimination Act
• Chapter 5: The Disability Discrimination Act
• Chapter 6: Procedure and Evidence
• Chapter 7: Damages and Remedies
• Chapter 8: Costs Awards

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Chapter 1: Introduction

• 1.1 Nature and Scope of this Publication
• 1.2 What is 'Unlawful Discrimination'?
  • 1.2.1 'Unlawful Discrimination' Defined
  • 1.2.2 Distinguishing 'Unlawful Discrimination' from 'ILO 111 Discrimination' and 'Human Rights' under the HREOC Act

Chapter 2: The Age Discrimination Act

• 2.1 Introduction to the ADA
  • 2.1.1 Background
  • 2.1.2 Structure of the ADA
  • 2.1.3 Application of the ADA
  • 2.1.4 Offences
• 2.2 Age Discrimination Defined
  • 2.2.1 'Age' Defined
  • 2.2.2 Direct Discrimination
  • 2.2.3 Indirect Discrimination
  • 2.2.4 The 'Dominant Reason' Test
  • 2.2.5 Age Discrimination and Disability Discrimination
  • 2.2.6 Discrimination against a relative or associate on the basis of age
• 2.3 Proscribed areas of Age Discrimination
  • 2.3.1 Discrimination in employment and occupation
  • 2.3.2 Discrimination in areas of public life other than employment
• 2.4 Ancillary Liability
• 2.5 General exemptions under the ADA
  • 2.5.1 'Positive discrimination'
  • 2.5.2 Exemption for youth wages
  • 2.5.3 Exemption relating to superannuation, insurance and credit
  • 2.5.4 Exemption for charities, religious and voluntary bodies
  • 2.5.5 Exemption in relation to health
  • 2.5.6 Exemption relating to direct compliance with laws, orders of courts including taxation legislation and social security legislation
  • 2.5.7 Exemption in relation to migration and citizenship

Chapter 3: The Racial Discrimination Act

• 3.1 Introduction to the RDA
  • 3.1.1 Background and Scope
  • 3.1.2 Other Unlawful Acts and Offences
  • 3.1.3 Interaction between RDA, State and other Commonwealth Laws
• 3.2 Racial Discrimination Defined
  • 3.2.1 Grounds of Discrimination
  • 3.2.2 Direct Discrimination under the RDA
  • 3.2.3 Indirect Discrimination under the RDA
  • 3.2.4 Interference with the Recognition, Enjoyment or Exercise of Human Rights or Fundamental Freedoms on an Equal Footing
• 3.3 Exceptions: Special Measures
• 3.4 Racial Hatred
  • 3.4.1 Background
  • 3.4.2 Significance of Term Racial Hatred
  • 3.4.3 Persons to whom the Provisions Apply
  • 3.4.4 Causation and Intention to Offend
  • 3.4.5 Reasonably likely to Offend, Insult, Humiliate or Intimidate
  • 3.4.6 Otherwise than in Private
  • 3.4.7 Exemptions
  • 3.4.8 Constitutional Issues

Chapter 4: The Sex Discrimination Act

• 4.1 Introduction to the SDA
  • 4.1.1 Scope of the SDA
  • 4.1.2 Limited Application Provisions and Constitutionality
• 4.2 Direct Discrimination under the SDA
  • 4.2.1 Causation, Intention and Motive
  • 4.2.2 Direct Sex Discrimination
  • 4.2.3 Direct Marital Status Discrimination
  • 4.2.4 Direct Pregnancy Discrimination
  • 4.2.5 Discrimination on the Ground of Family Responsibilities
• 4.3 Indirect Discrimination under the SDA
  • 4.3.1 Defining the 'Condition, Requirement or Practice'
  • 4.3.2 Disadvantaging
  • 4.3.3 Reasonableness
  • 4.3.4 The Relationship between 'Direct' and 'Indirect' Discrimination
• 4.4 Special Measures under the SDA
• 4.5 Areas of Discrimination
  • 4.5.1 Provision of Services and Qualifying Bodies
  • 4.5.2 Clubs
• 4.6 Sexual Harassment
  • 4.6.1 Conduct of a Sexual Nature
  • 4.6.2 Unwelcome Conduct
  • 4.6.3 Single Incidents
  • 4.6.4 The 'Reasonable Person' Test
  • 4.6.5 Sexual Harassment as a Form of Sex Discrimination
  • 4.6.6 Sex-based Harassment and Sex Discrimination
• 4.7 Exemptions
  • 4.7.1 Services for Members of One Sex
  • 4.7.2 Voluntary Bodies
  • 4.7.3 Acts done under Statutory Authority
  • 4.7.4 Competitive Sporting Activity
• 4.8 Vicarious Liability
  • 4.8.1 Onus of Proof
  • 4.8.2 'In Connection With' Employment
  • 4.8.3 'All Reasonable Steps'
  • 4.8.4 Vicarious Liability for Victimisation
• 4.9 Aiding or Permitting an Unlawful Act

Chapter 5: The Disability Discrimination Act

• 5.1 Introduction to the DDA
  • 5.1.1 Scope of the DDA
  • 5.1.2 Limited Application Provisions and Constitutionality
  • 5.1.3 Retrospectivity of the DDA
• 5.2 Disability Discrimination Defined
  • 5.2.1 'Disability' Defined
  • 5.2.2 Direct Discrimination under the DDA
  • 5.2.3 Indirect Discrimination under the DDA
  • 5.2.4 Other Grounds: Aids, Assistants and Assistance Animals
  • 5.2.5 Disability Standards
• 5.3 Areas of Discrimination
  • 5.3.1 Employment (s 15)
  • 5.3.2 Education
  • 5.3.3 Access to Premises
  • 5.3.4 Provision of Goods, Services and Facilities
• 5.4 Ancillary Liability
  • 5.4.1 Vicarious Liability
  • 5.4.2 Permitting an Unlawful Act
• 5.5 Unjustifiable Hardship and other Exemptions
  • 5.5.1 Unjustifiable Hardship
  • 5.5.2 Other Exemptions to the DDA

Chapter 6: Procedure and Evidence

• 6.1 Introduction
• 6.2 Who is Entitled to make a Complaint to HREOC?
  • 6.2.1 'A Person Aggrieved'
  • 6.2.2 Bodies Corporate
  • 6.2.3 Unincorporated Bodies
• 6.3 Election of Jurisdiction
• 6.4 HREOC Act is an Exclusive Regime
• 6.5 Scope of Applications made under s 46PO of the HREOC Act to the FMC and Federal Court
  • 6.5.1 Parties
  • 6.5.2 Relationship between Application and Terminated Complaint
  • 6.5.3 Validity of Termination Notice
  • 6.5.4 Pleading Claims in addition to Unlawful Discrimination
• 6.6 Relevance of other Complaints to HREOC
  • 6.6.1 'Repeat Complaints' to HREOC
  • 6.6.2 Evidence of Other Complaints to HREOC
• 6.7 Pleading Direct and Indirect Discrimination as alternatives
• 6.8 Applications for Extension of Time
  • 6.8.1 Relevance of Nature of Jurisdiction
  • 6.8.2 Principles to be Applied
  • 6.8.3 Examples of where Extension of Time has been Granted
  • 6.8.4 Extension of Time for Filing Appeals
• 6.9 Interim Injunctions
  • 6.9.1 Sections 46PP and 46PO(6) of the HREOC Act
  • 6.9.2 Duration of Relief Granted under s 46PP and the Time Period in which such Relief must be Sought
  • 6.9.3 Relevant Factors
• 6.10 Applications for Summary Dismissal
  • 6.10.1 Principles Applied
• 6.11 Dismissal of Application due to Non-Appearance of Applicant
• 6.12 Application for Suppression Order
• 6.13 Interaction between the FMC and the Federal Court: Transfers and Appeals
  • 6.13.1 Transfer of Matters from the Federal Court to the FMC
  • 6.13.2 Transfer of Matters from the FMC to the Federal Court
  • 6.13.3 Appeals from the FMC to the Federal Court
• 6.14 Approach to Statutory Construction of Unlawful Discrimination Laws
• 6.15 Standard of Proof in Discrimination Matters
  • 6.15.1 Cases under the RDA
  • 6.15.2 Cases under the SDA
  • 6.15.3 Cases under the DDA
• 6.16 Miscellaneous Procedural and Evidentiary Matters
  • 6.16.1 Request for Copy of Transcript
  • 6.16.2 Unrepresented Litigants
  • 6.16.3 Representation by Unqualified Person
  • 6.16.4 Consideration of Fresh Evidence out of Time
  • 6.16.5 Statements made at HREOC Conciliation
  • 6.16.6 Security for Costs
  • 6.16.7 Applicability of s 198L of the Legal Profession Act 1987 (NSW) to Federal Discrimination Cases
  • 6.16.8 Judicial Immunity from Suit under Federal Discrimination Law
  • 6.16.9 Adjournment pending Decision of Legal Aid Commission

Chapter 7: Damages and Remedies

• 7.1 Section 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
• 7.2 Damages
  • 7.2.1 General Approach to Damages
  • 7.2.2 Damages under the RDA
  • 7.2.3 Damages under the SDA Generally
  • 7.2.4 Damages in Sexual Harassment Cases
  • 7.2.5 Damages under the DDA
• 7.3 Apologies
• 7.4 Declarations
• 7.5 Orders Directing a Respondent not to Repeat or Continue Conduct
• 7.6 Other Remedies

Chapter 8: Costs Awards

• 8.1 Introduction
  • 8.1.1 General Discretion Applies
  • 8.1.2 Power to Limit and Set Costs
• 8.2 Relevance of Nature of the Jurisdiction
  • 8.2.1 A 'No Costs' Jurisdiction?
  • 8.2.2 Usual Principles of Costs to Apply
• 8.3 Factors Considered
  • 8.3.1 Where there is a Public Interest Element
  • 8.3.2 Unrepresented Applicants
  • 8.3.3 The Successful Party Should Not Lose the Benefit of their Victory
  • 8.3.4 Courts Should be Slow to Award Costs at an Early Stage
  • 8.3.5 Unmeritorious Claims and Conduct which unnecessarily prolongs Proceedings
• 8.4 Applications for Indemnity Costs
  • 8.4.1 General Principles on Indemnity Costs
  • 8.4.2 Offers of Compromise
• 8.5 Application of s 47 of the Legal Aid Commission Act 1979 (NSW) to Human Rights Cases in the FMC

Download as PDF

• Foreword, Glossary and Indexes
• Chapter 1: Introduction
• Chapter 2: The Age Discrimination Act
• Chapter 3: The Racial Discrimination Act
• Chapter 4: The Sex Discrimination Act
• Chapter 5: The Disability Discrimination Act
• Chapter 6: Procedure and Evidence
• Chapter 7: Damages and Remedies
• Chapter 8: Costs Awards
• Federal Discrimination Law 2005 Supplement - June 2006

Purchase Federal Discrimination Law 2005

Federal Discrimination Law 2005 is available for purchase in hard copy format at a cost of $20.00 (incl. GST). Click on the links below to download the Federal Discrimination Law 2005 Order Form to purchase your copy.

• Federal Discrimination Law 2005 Publication Order Form in Word format
• Federal Discrimination Law 2005 Publication Order Form in PDF format

Glossary

AD(JR) Act	Administrative Decisions (Judicial Review) Act 1977 (Cth)
ADA	Age Discrimination Act 2004 (Cth)
CEDAW	Convention on the Elimination of Discrimination Against Women
CRC	Convention on the Rights of the Child
DDA	Disability Discrimination Act 1992 (Cth)
FMC Rules	Federal Magistrates Court Rules 2001 (Cth)
FMC	Federal Magistrates Court
HREOC Act	Human Rights and Equal Opportunity Commission Act 1986 (Cth)
HREOC	Human Rights and Equal Opportunity Commission
ICCPR	International Covenant on Civil and Political Rights
ICERD	International Convention on the Elimination of all forms of Racial Discrimination
ICESCR	International Covenant on Economic, Social and Cultural Rights
ILO 111	International Labour Organisation Convention (No 111) concerning Discrimination in respect of Employment and Occupation
RDA	Racial Discrimination Act 1975 (Cth)
SDA	Sex Discrimination Act 1984 (Cth)
UN	United Nations

Acknowledgements

Federal Discrimination Law 2005 builds on the Commission's earlier publications Change and Continuity: Review of the Federal Unlawful Discrimination Jurisdiction, September 2000 - September 20021 and Federal Discrimination Law 2004.2

The Commission would like to acknowledge the legal officers and staff of its Legal Section who have written and developed the material in these publications: John Armstrong, Alison Davidian, Katie Ellison, Christine Fougere, Tiffany Hambley, Joanna Hemingway, Catherine Hinwood, Jonathon Hunyor, Craig Lenehan, Stefanie Memmott, Julie O'Brien, Michelle Pratley, Susan Roberts, Gina Sanna, Melanie Schwartz, Natalie Sheard, Jane Stratton, Jenni Whelan and Emily Zhang.

The Commission would also like to acknowledge the feedback received from practitioners which has assisted in the revision and development of those earlier publications into Federal Discrimination Law 2005. In particular, the Commission acknowledges the helpful comments of the Human Rights Branch of the Attorney-General's Department.

1. Human Rights and Equal Opportunity Commission, Change and Continuity: Review of the Federal Unlawful Discrimination Jurisdiction, September 2000 - September 2002 (2003). This publication can be downloaded from the Commission's website http://www.humanrights.gov.au/legal/publications/review2002/index.html.
2. Human Rights and Equal Opportunity Commission, Federal Discrimination Law 2004 (2004). This publication can be downloaded from the Commission's website www.humanrights.gov.au.

15 November 2005

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