Changes to the ACT’s Discrimination Act

On 11 April 2024, significant changes to the Discrimination Act 1991 (ACT) (“Act”) came into force. These alterations include new areas of public life protected by the Act, narrowed exemptions and a positive duty placed on organisations and agencies to combat discrimination, sexual harassment and vilification. Here’s what you need to know about your new rights and obligations.

Background to the Reforms

In introducing the Discrimination Amendment Bill[1] back in 2022 (“Bill”), Minister for Human Rights, Ms Tara Cheyne, expressed her commitment to making “Canberra a more inclusive, progressive and equal community”.[2] Minister Cheyne sought to amend the Act to “reflect the voices of our diverse community,”[3] considering the Act, “directly impacts some of the most vulnerable Canberrans”.[4]

To ensure the Bill reflected Canberran’s needs, the Bill drew significantly from the ACT Law Reform Advisory Council’s 2015 Report,[5] and underwent two rounds of public consultation. The Bill’s explanatory statement acknowledged a key party of the amendment being “to address some of the limitations of a reactive complaints-based discrimination framework.”[6]

Ms Karen Toohey, the ACT Human Rights Commission Discrimination Commissioner, spoke about the changes requiring “government and organisations to do more”,[7] and to “take clear steps to review their practices and make changes to eliminate discrimination”. Ultimately such reforms intend to reach the goal of “fostering a more inclusive and fairer Canberra”.[8]

To realise these significant goals, substantial amendments have been made to the Act and can be summarised into the following categories:

  1. Adding new areas of public life protected by the legislation;
  2. Narrowing some exemptions to the Act; and
  3. Imposing a positive duty to combat discrimination.

1. New Areas of Public Life

The Act has been broadened to cover three new areas of public life. Namely: (i) organised sporting activities, (ii) organised competitions, and (iii) the administration of an ACT law, Government program or policy.

Organised Sport & Competitions

The Act now makes it unlawful to discriminate against someone in relation to their participation in a formally organised sporting activity or competition.[9] This opens up personal liability for individuals who organise or administrate these formally organised activities, including a coach, manager or administrator. A formalised sporting activity includes, for example, a basketball competition organised by a private school, or a dodgeball league match. Similarly, a formally organised competition includes a weekend chess competition for individuals under 18 years old, or a short film festival run by a not-for-profit organisation.[10]

Exemptions to Discrimination in Organised Sport and Competitions

In addition to these new protections, there are also some new exemptions for discrimination in organised sports and competitions.

  1. In sport, discrimination because of a disability is not unlawful if it is “reasonable, proportionate and justifiable in the circumstances”.[11] This is found where the person would be incapable of participating (unable to complete the actions needed to play) in the sporting activity, and the people participating in the activity are reasonably chosen based on their abilities relevant to the sport and relative to each other.[12] Additionally, discrimination cannot be argued where an activity is conducted mainly for people of a particular kind of disability, and the person does not have that disability (also known as ‘positive discrimination’).[13]
  2. Discrimination because of one’s sex is not unlawful where the strength, stamina or physique of competitors is relevant, and the discrimination is “reasonable, proportionate and justifiable in the circumstances”.[14] This exemption only applies to those over the age of 12 years.[15] For example, separating men and women competitors to prevent unreasonable risk of injury.
  3. Additionally, in both sport and competitions, discrimination because of age is not unlawful if the activity relates to people belonging to a particular age group.[16] For example, an individual aged 19 years is not discriminated against if they are refused participation in an under 15 volleyball team, or a singing competition for 25 year-olds.

Overall, these exemptions only apply to participation in the activity, and cannot be relied upon for discrimination against coaches, umpires or administrators of the sport or competition. Thus, discrimination can occur where a sporting institution excludes a worker because of their gender or age.

Administration of Territory laws, Government programs and policies.

New amendments to the Act now make it unlawful for a public authority to discriminate based on the administration of Territory laws or an ACT government policy or program.[17] For example, an elderly person who is eligible to live in public housing cannot be denied housing due to them having an assistance animal or mobility impairment arising from their disability. There are some exemptions to this rule, however, they relate mainly to the Legislative Assembly, ACT Courts, and some education providers.

2. Narrowed Exemptions

You may have noticed in some of the above exemptions the addition of the term “reasonable, proportionate and justifiable in the circumstances”. This test has been adopted to align the Act more closely with the Human Rights Act 2004 (ACT). It attempts to narrow the exemptions whilst also acknowledging that some rights “will need to be limited and balanced against other public interests”.[18] The ACT Human Rights Commission (“HRC”) defines the term as follows;

  • “A measure is reasonable if it is objectively designed to meet a legitimate and important aim, based in logic and supported by evidence
  • A measure is proportionate if it is necessary, suitable, appropriate and adapted to achieving the aim, and is the least restrictive way possible to achieve the aim
  • The measure is justifiable if it is proportionate, applied in good faith, in line with the values of equality and human rights, meets community expectations and is lawful”.[19]

As an example, a domestic violence crisis centre may make it a genuine occupational qualification to only employ women.  This is considered reasonable  in circumstances where there is evidence that most of the clients of the centre are women, and the shared lived experience of being a woman enables employees to engage in supporting clients more successfully.[20]

In employment situations, a genuine occupational qualification can be relied upon for choosing an individual without a protected attribute over someone else who has a protected attribute.[21] For example, selecting a person of a particular race for a role in a theatrical performance on the basis of authenticity, aesthetics or tradition would be permissible. Similarly, a female carer to provide personal care services for a woman on the basis of privacy or modesty.[22]

Employers may proactively apply to the HRC to be granted an exemption on the above grounds.

3. Positive Duty

Finally, a more proactive approach to tackling discrimination can be found in the new positive duty  to make reasonable adjustments to accommodate the particular needs of a person arising from any protected attribute under the Act.[23] This may include employers or service providers offering specific services, facilities or adjustments to facilitate inclusion and participation in an area of public life.

Specific examples provided by the HRC include:

  • “A school providing a student with a uniform that corresponds with their gender identity”,
  • “An employer providing an Aboriginal and Torres Strait Islander employee with time off work for Sorry Business”, or
  • “An employer promoting flexible working hours for employees with parental or caring responsibilities”.[24]

The adjustments are expected to be reasonable and should not place unjustifiable hardship on the provider of the adjustment. Whilst failing to exercise this positive duty is not currently an offence in and of itself, failure to do so could be used against individuals or organisations where a discrimination complaint is brought.

A further positive duty to eliminate discrimination, sexual harassment and unlawful vilification will roll out over the coming years, being applicable to public authorities in 2025, and general businesses in 2027.[25] The steps required to be taken must be reasonable and proportionate and will depend on the nature, size, resources, operational priorities and proposed costs for the organisation.

How can SHG help?

If you are an employer, service provider, government agency or community organisation and would like to discuss any of the above reforms including new obligations in relation to positive duties, Snedden Hall & Gallop’s Employment team can advise you further. Additionally, we also act for individuals and can provide guidance if you believe you have been discriminated against under the new regulations.

[1] 2022 (ACT). [2] Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 30 November 2022, 4020 (Tara Cheyne). [3] Ibid. [4] Ibid. [5] Australian Capital Territory Law Reform Advisory Council, Review of the Discrimination Act 1991 (Report No 3, March 2015). [6] Explanatory Statement, Discrimination Amendment Bill 2022 (ACT) 3. [7] ACT Government, ‘Legislation changes for a fairer Canberra’, Our CBR (Blog Post, 26 April 2024)< https://www.act.gov.au/our-canberra/latest-news/2024/april/legislation-changes-for-a-fairer-canberra#:~:text=%E2%80%9CThese%20changes%20will%20assist%20Canberrans,bodies%2C%E2%80%9D%20Commissioner%20Toohey%20said.> [8] Ibid. [9] Discrimination Act 1991 (ACT), ss 23A, 23B. [10] Ibid. [11] Ibid, s 57(1)(a). [12] Ibid, (i),(ii). [13] Ibid, s 57 (1)(b). [14] Ibid, s 41(1)(b).  [15] Ibid, (2)(b). [16] Ibid, s 33D, 57M. [17] Ibid, s 23C. [18] ACT Human Rights Commission, ‘Recent Amendments to the Discrimination Act’, ACT Human Rights Commission (Blog Post, April 2024) <https://www.hrc.act.gov.au/discrimination/amendments-to-the-discrimination-act-commencing-april-2024>. [19] Ibid. [20] Ibid. [21] Discrimination Act 1991 (ACT), s 33B. [22] Ibid. [23] Ibid, s 74. [24] ACT Human Rights Commission, ‘Recent Amendments to the Discrimination Act’, ACT Human Rights Commission (Blog Post, April 2024)< https://www.hrc.act.gov.au/discrimination/amendments-to-the-discrimination-act-commencing-april-2024>. [25] Discrimination Act 1991 (ACT), s 75.