Discrimination

The Anti-Discrimination Act 1991 prohibits discrimination on the basis of certain attributes including:

(a) sex;
(b) relationship status;
(c) pregnancy;
(d) parental status;
(e) breastfeeding;
(f) age;
(g) race;
(h) impairment;
(i) religious belief or religious activity;
(j) political belief or activity;
(k) trade union activity;
(l) lawful sexual activity;
(m) gender identity;
(n) sexuality;
(o) family responsibilities;
(p) association with, or relation to, a person identified on the basis of any of the above attributes.

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of—
(a) a characteristic that a person with any of the attributes generally has; or
(b) a characteristic that is often imputed to a person with any of the attributes; or
(c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
(d) an attribute that a person had, even if the person did not have it at the time of the discrimination.

Example of paragraph (c)—
If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the
employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

Direct and indirect discrimination are prohibited.

1. Direct discrimination is defined as: 

(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute
less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example—
R refuses to rent a flat to C because—
* C is English and R doesn’t like English people
* C’s friend, B, is English and R doesn’t like English people
* R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.
(2) It is not necessary that the person who discriminates considers the treatment is less favourable.
(3) The person’s motive for discriminating is irrelevant.
(b) indirect discrimination.

Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.


(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the
person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.


(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

2. Indirect discrimination is defined as:

Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.


(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.


(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4) In this section—

term includes condition, requirement or practice, whether or not written.

Example 1—
An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—
An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory\ effect against people who are required by religious or cultural beliefs to wear particular headdress.

Discrimination based on race

Section 18C of the Racial Discrimination Act 1975 prohibits offensive behaviour based on racial hatred. Offensive behaviour includes an act that is likely to offend, insult, humiliate or intimidate another because of their race, colour or national or ethnic origin (source: Law Council of Australia).

Discrimination based on a disability

Section 25 of the Disability Discrimination Act 1992 prohibits harassment in relation to an employee’s disability (source: Law Council of Australia).

Rule 42. Anti-discrimination and harassment

42.1 A solicitor must not in the course of practice, engage in conduct which constitutes:

42.1.1 discrimination;

42.1.2 sexual harassment; or

42.1.3 workplace bullying

Definition under the ASCR

discrimination” means discrimination that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.

The Bar Association of Queensland Barristers' Conduct Rules.

Objects

4. The object of these Rules is to ensure that all barristers:

(a) act in accordance with the general principles of professional conduct;

Principles

5. These Rules are made in the belief that:

(b) barristers must maintain high standards of professional conduct;

ADVOCACY RULES

General

12. A barrister must not engage in conduct which is:

(a) dishonest or otherwise discreditable to a barrister;
(b) prejudicial to the administration of justice; or
(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

Bullying, sexual harassment, discrimination, criminal, or other misconduct should be reported to the Legal Services Commission.

Conduct amounting to bullying, sexual harassment, discrimination, criminal, or other misconduct should also be reported to the relevant authority.