Protected attributes

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 28 June 2019

Attributes that are protected

Section 6 of the Equal Opportunity Act 2010 (Vic) (Equal Opportunity Act) sets out the 'attributes' on the basis of which discrimination is prohibited in the areas of activity in Part 4 of the Equal Opportunity Act. Those attributes are:

a) age

b) breastfeeding

c) employment activity

d) gender identity

e) disability

f) industrial activity

g) lawful sexual activity

h) marital status

i) parental status or status as a carer

j) physical features

k) political belief or activity

l) pregnancy

m) race

n) religious belief or activity

o) sex

p) sexual orientation

pa) an expunged homosexual conviction

q) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.

Many of the protected attributes are self-explanatory - for example, age, breastfeeding and sex. For others, the Equal Opportunity Act contains more detailed definitions. Some of the more complex attributes are explored further below.

The onus of proving the existence of an attribute is on the person bringing a complaint.(1)]]

Extensions of protected attributes

Importantly, section 7(2) provides:

(2) Discrimination on the basis of an attribute includes discrimination on the basis--

a) that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;

b) of a characteristic that a person with that attribute generally has;

c) of a characteristic that is generally imputed to a person with that attribute;

d) that a person is presumed to have that attribute or to have had it at any time.

Section 7(3) of the Equal Opportunity Act also makes it clear that the use of an assistance aid, such as an assistance dog, by somebody with a disability will be treated as a 'characteristic' that a person with that attribute generally has, as discussed further in this chapter.

These provisions require a broader inquiry than simply whether the complainant actually has the protected attribute and whether there is a causal nexus between that attribute and the alleged discriminatory conduct.

Presumed attribute

In Daniels v Hunter Water Board (1994) EOC 92-626, Mr Daniels alleged he was harassed and discriminated against by the respondent over a number of years on the grounds of his presumed homosexuality, even though he did not identify himself as being homosexual.

The alleged conduct began after Mr Daniels adopted a 'trendy' haircut and an earring in his left ear. He also took up jazz, ballet, drama and modelling. At this time, his co-workers started to call him a 'weirdo' and suggest that he must be 'gay'. After Mr Daniels removed a poster of a naked woman from his workplace because it had offended a female colleague, the frequency of these derogatory comments increased.

Mr Daniels' claim on the basis of his presumed homosexuality was upheld. While this decision was made in New South Wales, the wording in section 7(2) of the Equal Opportunity Act suggests the same principles would apply in Victoria.

Imputed characteristic

In Waterhouse v Bell (1991) 25 NSWLR 99 the complainant was refused registration as a racehorse trainer because her husband had been 'warned off' all racecourses due to his involvement in a horse substitution scandal. The New South Wales Court of Appeal found the registration refusal was because of a characteristic imputed to married women - that is, that all wives are liable to be corrupted or influenced to do wrong by their husbands. On that basis, the Court held the refusal constituted discrimination against the complainant on the ground of marital status.

Attributes under Commonwealth anti-discrimination laws

Most of the attributes in the Equal Opportunity Act overlap with protected attributes under federal anti-discrimination legislation and industrial legislation such as the Fair Work Act 2009 (Cth). A number of protected attributes, however, remain particular to Victoria (and a few other states). These attributes are discussed below.

What 'protected attributes' means

Employment activity as a protected attribute

'Employment activity' is defined in section 4 of the Equal Opportunity Act to mean:

[A]n employee in his or her individual capacity--

a) making a reasonable request to his or her employer, orally or in writing, for information regarding his or her employment entitlements; or

b) communicating to his or her employer, orally or in writing, the employee's concern that he or she has not been, is not being or will not be, given some or all of his or her employment entitlements.

'Employment entitlements' in relation to an employee are broadly defined in section 4 of the Equal Opportunity Act to mean:

the employee's rights and entitlements under an applicable--

a) contract of service; or
 
b) federal agreement or award; or
 
c) minimum wage order under the Fair Work Act 2009 (Cth); or
 
d) contract for services (such as independent contractor); or
 
e) Act or enactment; or
 
f) law of the Commonwealth.

The 1995 Act was amended in 2007 to include these definitions. The Explanatory Memorandum to the amending Bill stated the amendment sought to:

[P]rovide further protection to Victorian employees where, in their individual capacity, they make a reasonable request to their employer for information about their employment entitlements or communicate concerns to their employer about whether they have been, are being or will be given their employment entitlements (page 1).

The Explanatory Memorandum to the amending 2007 Bill provides extensive guidance about the interpretation of 'employment activity':

A request for information does not extend to questions unrelated to or outside of an employee's existing employment entitlements. A request for information would include questions about the source of the employee's employment entitlements, what the entitlements are and whether the employee has been, is being, or will be given those entitlements. For example:
  • what is my rate of pay?
  • how many holidays have I accrued?
  • do I have an entitlement to paid maternity leave?
  • have I been paid for those extra hours I worked?
  • will I be able to take my annual leave next month?

A request for information can be made verbally or in writing but the request must be reasonable. This means that the nature of the information sought about the employment entitlements should be reasonable and that the request should be made in a reasonable manner and at a reasonable time. For example, a request will not be reasonable if the employee asks the employer for confidential or unduly complicated information that the employer cannot readily access. Some examples of a request that may not be made in a reasonable manner or at a reasonable time is a request made in a violent or threatening manner or made outside of normal work hours.

The attribute also covers an employee communicating a concern to his or her employer about whether his or her employment entitlements have not been, are not being or will not be given to him or her.

This may cover concerns such as:
  • I am worried that I have not been paid my overtime allowance.
  • why am I not being paid at the correct rate of pay?
  • someone has told me that the company is going under and I will not be paid my redundancy pay.

It is not intended, however, that the attribute provide a mechanism for enforcing employment entitlements or for negotiating a pay rise or other terms and conditions of employment more generous or different than those to which an employee is currently entitled (pages 2-4).

See also Loevski v Jacobson [2010] VCAT 1428.

Sex as a protected attribute

The term sex is not defined in the Equal Opportunity Act. As discussed below, in 2001 the Victorian Civil and Administrative Tribunal (VCAT) considered this term to mean being male or female.(2) While sex has historically been understood as exclusively female or male, it is now known and accepted by courts that biological sex characteristics include many variations and that 'the sex of a person is not … in every case unequivocally male or female'.(3)

Gender identity as a protected attribute

In 2000, gender identity was added to the Equal Opportunity Act as a protected attribute. The intention was to extend protection against discrimination to those whose gender identity does not match their physical sex at birth. This ranged from people who occasionally dress in a style usually associated with the opposite sex to persons undergoing gender reassignment surgery.(4)

The matter of Menzies v Waycott [2001] VCAT 415 in 2001 highlighted the need to include the attribute of 'gender identity'. After gender identity had been included as an attribute in the 1995 Act, VCAT considered a complaint made by an employee regarding discrimination in employment that pre-dated the reform. The complaint was made by a woman who had transitioned and had reassignment surgery. VCAT contemplated whether the attributes of sex, physical features and impairment could include 'transsexualism'. VCAT found the attribute of sex in the Equal Opportunity Act had the straightforward meaning of being male or female. VCAT found neither sex nor physical features could cover the 'condition of transsexualism' however there were grounds for concluding it to be an 'impairment' [198]-[199], [205], [230].

Gender identity covers a range of expressions of gender, from the way that a person dresses or speaks, to gender reassignment surgery. 'Gender identity' is defined in section 4 to mean:

a) the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such):

(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or

(ii) by living, or seeking to live, as a member of the other sex; or

b) the identification on a bona fide basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such):

(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or

(ii) by living, or seeking to live, as a member of the other sex.

However, the definition of 'gender identity' under the Equal Opportunity Act does not extend to people who do not identify as either 'male' or 'female' gender. People who identify as of 'indeterminate sex' (often due to their mixed or indeterminate sex characteristics), are not protected, though people who are physically intersex are protected, on the basis of the 'sex' protected attribute.

Gender identity is protected under Commonwealth law and in Victoria, Queensland, and Tasmania. Very similar protections are afforded in some other states, such as 'chosen gender' in South Australia and the more ambiguous 'gender history' in Western Australia.

The Commonwealth Sex Discrimination Act 1984 specifically protects people who experience discrimination because of their sexual orientation, gender identity or intersex status. Intersex people who do not identify as being either female or male are covered by Commonwealth law.(5)

Disability as a protected attribute

'Disability' is defined in section 4 of the Equal Opportunity Act to mean:

a) total or partial loss of a bodily function; or

b) the presence in the body of organisms that may cause disease; or

c) total or partial loss of a part of the body; or

d) malfunction of a part of the body, including:

(i) a mental or psychological disease or disorder;

(ii) a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder; or

e) malformation or disfigurement of a part of the body-

and includes a disability that may exist in the future (including because of a genetic predisposition to that disability) and, to avoid doubt, behaviour that is a symptom or manifestation of a disability.

The 1995 Act used the term 'impairment' rather than the more commonly used term 'disability'.

The words 'includes a disability that may exist in the future' have been found to extend to any disability that may exist at any time in the future. In Ingram v QBE Insurance (Australia) Ltd [2015] VCAT 1936 the respondent issued an insurance policy that included a clause excluding all claims from people who experienced a mental illness. The complainant, who developed depression after purchasing the policy, argued the exclusion in the policy was unlawful discrimination. VCAT found at the time the complainant bought the insurance policy, she did have a disability. Reading the words of section 4 widely, VCAT said 'the definition of disability applies to a person at a point in time when a future disability did not yet exist or had not been diagnosed, was not known to the person or others or was not otherwise apparent' [49]. On the evidence that the complainant later did develop a disability, VCAT accepted at the time she bought the insurance policy, she was a person for whom a disability may exist in the future [50].

A disability may also be temporary. In Bevilacqua v Telco Business Solutions[2015] VCAT 269, VCAT found although a pregnant woman suffering morning sickness is generally not considered to be a person with a disability, morning sickness may constitute a 'disability' involving the malfunction of a part of the body. Morning sickness also falls within the pregnancy attribute (in this case, the complainant had suffered from a very severe form of morning sickness as well as ordinary morning sickness) [154] [192] [195] [199].

Characteristics of an attribute

Section 7(2) of the Equal Opportunity Act provides that attributes include characteristics of an attribute. For this reason, it is also unlawful to discriminate against a person on the basis of a characteristic generally pertaining or imputed to a person with a disability.

Sections 7(2) and 7(3) of the Equal Opportunity Act also make clear that the use of an assistance aid, such as equipment, an assistance dog or a person who provides assistance, is a characteristic that a person with a disability generally has. This means discrimination on the basis of the assistance aid will be unlawful (unless a defence or exception applies).

The provisions in sections 7(2) and 7(3) were inserted to deal with the situation in Walker v State of New South Wales [2003] NSWADT 13 (Walker). In Walker, the complainant used a walking stick and an aluminium scooter as mobility aids to cope with a back injury. On several occasions he tried to access the Parramatta Court complex but was initially denied entry with his stick or scooter until the court staff were able to ascertain that these items were assistance aids. Once the court staff were satisfied Mr Walker used his stick and scooter to cope with a disability, he was granted special dispensation to use these items within the court complex. Mr Walker argued he should not be required to obtain special dispensation to enter the court complex for a matter in which he was personally involved.

One of the issues the New South Wales Administrative Tribunal considered was whether the use of a scooter or stick as a mobility aid was a characteristic that pertains generally to, or is generally imputed to, people with a back injury. Mr Walker, who was unrepresented, had not led any evidence on this point. In the absence of evidence, the tribunal said it was not open to it to make such a finding. In other words, it was not 'common knowledge' that the use of a walking stick or scooter are characteristics generally pertaining or imputed to a person with a back injury. The tribunal noted the Disability Discrimination Act 1992 (Cth), unlike the NSW legislation they were dealing with, dealt expressly with palliative or therapeutic devices or auxiliary aids.

Sections 7(2) and 7(3) bring the Equal Opportunity Act more closely into line with the Disability Discrimination Act 1992 (Cth). Complainants do not need, therefore, to lead evidence to prove the use of an assistance aid is a characteristic generally pertaining or imputed to a person with a disability.

In circumstances that fall outside sections 7(2) and 7(3), the complainant will still need to identify the particular characteristic and satisfy VCAT that it is a characteristic that a person with a disability generally has, or is generally imputed to have. In O'Connor v State of Victoria (Dept of Education and Training) [2004] VCAT 118, for example, VCAT did not accept that taking sick leave is a characteristic a person with a disability generally has.

Manifestations or symptoms of a disability

Broadening the definition of disability in section 4 of the Equal Opportunity Act to include behaviour that is a symptom or manifestation of a disability clarified issues raised in the High Court of Australia's decision in Purvis v New South Wales (Department of Education) [2003] HCA 62 (Purvis).(6)

The Purvis case concerned the treatment of a high school student, Daniel Hoggan, who suffered from a number of disabilities as the result of a brain injury acquired when he was a baby. Daniel's disabilities manifested in certain behaviours, including violent behaviour and swearing. Daniel was suspended several times, and later expelled, from South Grafton High School on the basis of his violent and disruptive behaviour. Daniel's foster parents brought a claim of discrimination under the Disability Discrimination Act 1992 (Cth) on his behalf. The case went to the High Court of Australia on appeal. One of the issues before the High Court was whether Daniel's behaviour - which was described as a 'symptom' or 'manifestation' of his disability - fell within the meaning of 'disability' under the Disability Discrimination Act 1992 (Cth).

When the case was first decided by the Human Rights and Equal Opportunity Commission, Purvis Hoggan v New South Wales (Department of Education) [2001] EOC 93-117, Commissioner Innes had not drawn a clear distinction between Daniel's disabilities and the manifestation of those disabilities. In the Federal Court of Australia, however, Justice Emmett applied a narrow interpretation of 'disability'. He stated 'it is the disorder or malfunction, or the disorder, illness or disease that is the disability. It is not the symptom of that condition that is the disability'.(7)

A majority of the High Court disagreed with Justice Emmett's narrow interpretation of the term 'disability'. The High Court concluded the definition of disability does include behaviour resulting from the disability.(8) In reaching the conclusion to apply this broader interpretation of 'disability', the majority looked at the purpose and objectives of the Disability Discrimination Act 1992 (Cth) that, as Justices McHugh and Kirby said, was intended to be 'beneficial and remedial in nature'.(9)

The issue of manifestations of a disability was considered in Slattery v Manningham City Council [2013] VCAT 1869. In 2009 the complainant had been declared a 'proscribed prohibited person' by the council and was banned from attending any council building. The ban was imposed in response to Mr Slattery's behaviour and interactions with council staff (including acting aggressively and making thousands of complaints about safety issues). The complainant had requested the ban be reviewed and lifted in 2012, but the council had refused. The complainant had a number of disabilities, including post-traumatic stress disorder, bipolar disorder, a brain injury following a stroke, a hearing impairment and sleep apnoea. He argued his conduct was a manifestation of his disabilities and he had been treated unfavourably by being refused access to council services.

VCAT stated a complainant, to prove discrimination has occurred because of a manifestation of a disability, must provide evidence to establish the symptoms experienced consequent to their disability. VCAT cannot infer from the evidence that a complainant experiences symptoms 'typical of people with the disabilities he suffers from' [78]. Ultimately, Senior Member Nihill found there was sufficient evidence to show that the complainant's compulsive complaining was a symptom of his disabilities, and although there may have been other reasons for his conduct, 'at least to a significant extent' the combination of his 'irrational and anti-social behaviours' were a manifestation of his disabilities [79]-[83].

In coming to this conclusion, Senior Member Nihill noted there is no qualification to the definition of disability in section 4 of the Equal Opportunity Act. In other words, the definition 'does not address the situation where some other cause in addition to the disability may be operative' [83]. However, Senior Member Nihill considered the definition did not require total or absolute certainty that the behaviours were manifestations of the disability. It was enough that VCAT was satisfied the behaviours were, to a 'significant extent', manifestations even if other contributing factors may have existed. This was considered the most appropriate interpretation in light of the context of other sections of the Equal Opportunity Act (such as the objects in section 3 and the test for direct discrimination in section 8). Senior Member Nihill also took into account VCAT's obligation under section 32 of the Charter of Human Rights and Responsibilities to interpret statutory provisions in a way that is compatible with human rights, so far as it is possible to do so consistent with their purpose [83].

VCAT also considered manifestations of a disability in the education context in two similar cases AB v Ballarat Christian College[2013] VCAT 1790 and USL obo her son v Ballarat Christian College [2014] VCAT 623 (USL). Those cases involved students with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder (ADHD) respectively. However, there was insufficient evidence provided by the complainants to prove the behaviours were manifestations of their disability.

In USL,Judge Harbison noted it was 'fundamental' that the complainant first establish that the student (her son) had the alleged disability (ADHD) at the time of the alleged discrimination. The complainant must then also establish what the symptoms or manifestations of the disability were - 'particular to her own child not as a general proposition' for people with ADHD [47]. Judge Harbison's concern was that there may be many different manifestations arising out of a particular disability (in this case, ADHD). Without evidence of the student's own manifestations, the complainant would be unable to establish that the discrimination had occurred as a result of the symptoms or manifestations of the disability [22] [43]-[44].(10) Judge Harbison ultimately accepted the student had ADHD and certain manifestations of ADHD including a short attention span, hyperactivity and impulsivity. However, she did not accept that other behaviours were related to the disability, such as being disruptive in class, using inappropriate language and taunting other children [75]-[79].

Industrial activity as a protected attribute

The Equal Opportunity Act protects against discrimination on the basis of a person's industrial activity.

The definition of 'industrial activity' in section 4 of the Equal Opportunity Act continues that which existed in the 1995 Act from 2006. The definition of 'industrial activity' was amended in 2006 to include:

  • the setting up of an industrial organisation or association
  • organising or promoting, encouraging, assisting or participating in, or not participating in a lawful activity, organised by an industrial organisation or association
  • representing or advancing the views, claims or interests of an industrial organisation or association.

These amendments were designed to more explicitly reflect various VCAT decisions relating to the interpretation of 'industrial activity'. In Dickenson v Shire of Yarra Ranges[2000] VCAT 1093,for example, Deputy President McKenzie stated 'industrial activity' includes:

[A]ction taken by groups of employees acting or expressing themselves in a collective way, or action to promote compliance with relevant awards or workplace regulations, or to improve workplace conditions where a union, or group of staff acting collectively, is also involved in that activity, or encourages, assists or supports that activity.

Similarly, in Aylett v Australian Paper & Purdy[2004] TASADT 4, the complainant's level of participation in occupational health and safety issues with the support and/or sanction of a union was defined as industrial activity.

In Hendrickson v Victorian Association of State Secondary Principals Inc [2007] VCAT 1193, not joining or not being a member of the Australian Principals Federation was held to be industrial activity as defined in the 1995 Act. The complainant was charged a higher subscription fee to join only the Victorian Association of State Secondary Principals than the fee charged to individuals who wished to join both the federation and the association. VCAT held the complainant had been discriminated against because of his industrial activity.

More recently, in Dulhunty v Guild Insurance Limited[2012] VCAT 1651, VCAT held Guild Insurance Limited had discriminated against a chiropractor on the basis of his 'industrial activity'. The complainant was charged a higher premium as a non-member of the Chiropractor's Association of Australia than the premium charged to members of the association. VCAT found not being a member of the association was an 'industrial activity' within the meaning of the Equal Opportunity Act.

Under section 4 'Industrial association' is defined as 'a group of employees or employers, formed formally or informally to represent or advance the views, claims or interests of the employees or employers in a particular industry, trade, profession, business or employment, not including an industrial organisation'.

The definition was amended in 2006 to reflect decisions of VCAT, which established that while a collective dimension is required to constitute an industrial organisation, a formal link with a union is not required.(11)

'Industrial organisation' is defined in section 4 as:

[O]ne of the following organisations that is registered or recognised under a State or Commonwealth Act or enactment--

a) an organisation of employees;

b) an organisation of employers;

c) any other organisation established for the purposes of people who carry on a particular industry, trade, profession, business or employment.

This definition was also amended in 2006 to stipulate an industrial organisation must be registered or recognised under a State or Commonwealth enactment. This is intended to distinguish an industrial organisation from an industrial association.

Lawful sexual activity as a protected attribute

Lawful sexual activity is defined in section 4 as 'engaging in, not engaging in or refusing to engage in a lawful sexual activity'. This definition applies to consensual adult relationships, including legal prostitution.

The attribute of 'lawful sexual activity' has been raised where a person has been treated unfavourably because of extramarital affairs or sexual relationships between co-workers. In Rowley v Goodyear Tyres Pty Ltd [2011] VCAT 1536, for example, the respondent's application to strike out a complaint of discrimination in employment on the ground of lawful sexual activity was denied. In that case, the complainant was terminated because of his alleged extramarital sexual relationship with another member of the executive leadership team. VCAT refused to strike out the application because the question of whether the attribute extends to relationships (as opposed to actually engaging in lawful sexual activity) needs further consideration.

Lawful sexual activity was raised in Martin v Padua College[2014] VCAT 1652 and on appeal in Pearson v Martin[2015] VSC 696. VCAT and the Victorian Supreme Court considered whether a school principal's decision to dismiss a teacher was based on the teacher's 'lawful sexual activity' with a former student. It was alleged the teacher started a relationship with an 18-year-old former student shortly after she completed her studies. VCAT accepted although the reasons for dismissal were multifaceted - involving, among other things, allegations of 'boundary transgressions' and 'grooming' - the lawful sexual activity was a substantial reason for the decision (Martin v Padua College [94]-[95]). The Supreme Court considered this finding was reasonably open to VCAT, and that the existence of lawful sexual activity formed a decisive factor in the chain of reasoning that led the principal to investigate the teacher and finally terminate his employment (Pearson v Martin [26] [70]-[71]).

Examples of sexual activities that fall outside of the scope of this definition include paedophilia, incest, bestiality or sexual assault - regardless of gender or sexual practice - because they are unlawful.

Marital status as a protected attribute

The Equal Opportunity Act protects against discrimination on the basis of a person's 'marital status'. Under section 4 this includes being single, married (whether living separately or apart from one's spouse), in a domestic partnership, divorced, or widowed.

Protections against discrimination on the basis of a person's 'marital status' do not necessarily extend to circumstances where the discrimination occurs because of the identity or situation of a person's spouse - as opposed to the relationship itself - unless the personal association discrimination applies.

For example, in Tebby v Davies[2002] VCAT 1023 (Tebby) Deputy President Coghlan applied an earlier New South Wales case Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13. Deputy President Coghlan found the prohibition against discrimination on the basis of a person's 'marital status' does not 'extend to characteristics of the particular spouse or partner' [45]. In that case, the Deputy President dismissed a complaint by an employee about the termination of their employment due to their spouse working for a competitor.

The outcome would be different under the Equal Opportunity Act if the discrimination occurred because of a person's 'personal association' with another - including a spouse - who has a protected attribute. It would be unlawful, for example, for an employer to refuse to employ a candidate on the basis that he or she is married to a union official or a person of a particular religion. Such conduct would constitute unlawful discrimination against the candidate on the basis of his or her personal association with somebody who had engaged in industrial activity in the first example, or on the basis of religion in the second.

An exception to the rule may also exist where discrimination in relation to the identity or situation of a person's spouse is based on an assumption about a characteristic generally imputed to marital status, as in Waterhouse v Bell (1991) 25 NSWLR 99. In that case, the New South Wales Court of Appeal considered a complaint of discrimination brought by horse trainer Gai Waterhouse. Ms Waterhouse had applied to the Australian Jockey Club for a trainer's licence but her application was rejected on the basis that her husband had been involved in betting fraud. The Court of Appeal found, where there was no suggestion that Ms Waterhouse had a relevant character deficiency, the reason for the refusal to grant her a licence was the respondent's belief that 'all wives are liable to be corrupted by their husband', which was held to be a characteristic attributed or imputed to married women.

Physical features as a protected attribute

Victoria is the only Australian jurisdiction that protects against discrimination on the basis of a person's physical features.

'Physical features' is defined to mean a person's height, weight, size or other bodily characteristics. The term 'bodily characteristics' has been interpreted widely and has been found to include tattoos(12) and the styling, colour and location of hair (see Fratas v Drake International Ltd (1998) EOC 93-038). However, personal hygiene (such as body odour), not wearing underwear and overeating are not 'physical features' (See Hill v Canterbury Road Lodge Pty Ltd [2004] VCAT 1365).

In Ruddell v DHS [2001] VCAT 1510 VCAT considered whether the complainant's loud voice fell within the meaning of a 'physical feature'. VCAT did not rule out the possibility that a 'physical feature' may include 'not only visible bodily characteristics like height or weight but any other bodily characteristics with an external manifestation such as voice which is audible' (paragraphs 55-56). However, VCAT found the loudness of Mr Ruddell's voice - which he could control at his own will - was not within the meaning of a 'physical feature'.

In Kuyken v Lay [2013] VCAT 1972 (Kuyken), VCAT found the complainants were directly discriminated against on the basis of their physical features through the promotion and enforcement of a new grooming policy in the Victoria Police Manual, banning police officers wearing long hair and all forms of facial hair except moustaches. VCAT accepted hair and facial hair are physical features. However, VCAT found the respondent's conduct was authorised by the Police Regulations Act 1952 (Vic) and, therefore, covered by the general exception in section 75 of the Equal Opportunity Act and not unlawful (Kuyken [70]-[71] [166]-[167]). See Exception for things done with statutory authority for a detailed discussion about section 75.

Personal association as a protected attribute

The Equal Opportunity Act also protects against discrimination of a person on the basis that the complainant has a 'personal association' (whether as a relative, friend or otherwise), with somebody who has another protected attribute. The complainant must prove the association and that the person has one of the protected attributes. See, for example, Lund v Eyrie Common Equity Rental Housing Cooperative Ltd [2000] VCAT 1078 and Johnson v Berwick City Soccer Club [2010] VCAT 1093.

This protection was introduced with the 1995 Act. In the second reading speech for the Bill, the Honourable Haddon Storey said:

Discrimination based on the attribute of personal association is prohibited under the Bill. This ground of prohibited discrimination is intended to protect people who are discriminated against because of the association, whether as relatives or otherwise with a person who has any of the [protected attributes] … For instance, relatives, friends and helpers of disabled persons often suffer discrimination when attempting to gain access to accommodation and services. Such people are provided with an avenue of redress under this Bill.(13)

In Lund v Eyrie Common Equity [2000] VCAT 1078 Mr Lund claimed his landlord, in giving him a notice to vacate, had directly discriminated against him because of his 'personal association' with another person, Mr Milsom. Mr Lund lived with and cared for Mr Milsom, who had a psychological impairment. VCAT referred to the second reading speech (cited above) in considering the purpose and scope of the personal association protections. While VCAT accepted the personal association attribute applied, VCAT was not satisfied it was the reason for issuing the notice to vacate. Rather, VCAT accepted the notice was issued to resolve a long running dispute between tenants.

Personal association relates to 'persons' rather than companies. In Cassidy v Leader Associated Newspapers Pty Ltd [2002] VCAT 1656, VCAT found personal association requires association between natural persons and not between a person and a company [75].

Political belief or activity as a protected attribute

Under section 4 of the Equal Opportunity Act 'Political belief or activity' means:

a) holding or not holding a lawful political belief or view;

b) engaging in, not engaging in or refusing to engage in a lawful political activity.

Political belief or activity has been interpreted more narrowly by courts and tribunals in Victoria than in other jurisdictions.(14) In Victoria, 'political' has been interpreted as a matter or activity that involves the state and 'bears on government'.(15) 'Political belief' has been distinguished from beliefs basic to the structure of society such as honesty (see Richardson v City of Casey Council [2014] VCAT 1294 [23]), and must be related to 'mores of society' (see Jolly v Director-General of Corrections (Vic) (1985) EOC 92-124). A belief is not political where 'it has no bearing on the form, role, structure, feature, purpose, obligations, duties or some other aspect of government' (see Richardson v City of Casey Council [2014] VCAT 1294 [23]). Political belief or activity covers a continuum, beginning with the mental state of belief (which includes expressing that belief, or holding a view), an intention to act, and actual action. In other words, the word 'political' describes both 'belief' and 'activity'. What is political must be determined objectively, accounting for the nature of the activity or belief. A teacher's public expression of views about the age of consent, for example, may be 'political' (see Thorne v R (1986) EOC 92-182).

'Political activity' means more than 'capable of being political',(16) but can relate to deeply held political views manifested in refusal to support certain union action of a political nature.(17) Dismissal of a builder's labourer after re-joining a deregistered union was found not to be discrimination on the ground of 'political activity' because there was no evidence the employer had the employee dismissed for engaging in political activity as defined, or that his failure to present a financial clear card was political.(18) In the provision of goods and services, failure to allow a municipal hall to be used by protesters against a United States base, when it had been made available to supporters, was held to be discriminatory on grounds of political belief and activity.(19) Holding placards at a council meeting, where those placards focused on individual concerns, was engaging in political activities. In the case of Yianni v Moonee Valley City Council (Human Rights) [2018] VCAT 1990 , VCAT said such conduct was 'one of the most ancient, accessible and common forms of political activity' [24].

In Justice Abolish Child Support and Family Court v State of Victoria [2015] VCAT 771 the complainant contended a name can constitute a political statement, or a reflection of a political view. The complainant argued the police would not have made close inquiries about him when he applied for a gun license if he had another name. VCAT accepted a name is capable of being characterised as a political belief or activity if a person changes a surname to a statement with a clear meaning advocating particular action [126] [129].

Race as a protected attribute

Race is defined in section 4 of the Equal Opportunity Act as:

a) colour;

b) descent or ancestry;

c) nationality or national origin;

d) ethnicity or ethnic origin;

e) if 2 or more distinct races are collectively referred to as race--

(i) each of those distinct races;

(ii) that collective race.

Courts have generally taken the view that 'race' as described in anti-discrimination legislation is a broad term and should be understood in the popular sense.(20) The meaning of 'race' was considered in the context of disputes between Aboriginal People in Williams v Tandanya Cultural Centre [2001] FMCA 46; _(2001) [2001] FMCA 46; 163 FLR 203_, in which Federal Magistrate Driver held:

The word 'race' is a broad term. Also, in addition to race, the Racial Discrimination Act 1975 (Cth) (RDA) proscribes discrimination based upon national or ethnic origins or descent. It will be apparent to anyone, with even a rudimentary understanding of Aboriginal culture and history, that the Australian Aborigines are not a single people but a great number of peoples who are collectively referred to as Aborigines. This is clear from language and other cultural distinctions between Aboriginal peoples. It is, in my view, clear that the RDA provides relief, not simply against discrimination against 'Aboriginals' but also discrimination against particular Aboriginal peoples [21].

'Descent or ancestry' was considered in Australian Macedonian Human Rights Committee (Inc) v State of Victoria [2000] HREOCA 52 in which it was found:

'Descent' and 'national or ethnic origin' must also be given a liberal construction. 'Descent' has a meaning that includes coming from, by birth or lineage, an ancestor or ancestors and does not require any particular citizenship, country of birth or particular territorial link. The terms 'national' and 'ethnic' give expanded scope to the term 'origin'.

There is a distinction between discrimination on grounds of national origin and discrimination on grounds of nationality. National origin is normally a status acquired and fixed at birth and incapable of change, whereas a person may acquire a number of different nationalities over the course of a lifetime.(21) In Australian Medical Council v Sir Ronald Wilson, Elizabeth Hastings, Jenny Morgan, Dr B Siddiqui and Commonwealth Minister of Health [1996] FCA 1618(22) Justice Sackville held 'national origin' does not simply mean citizenship. However, citizenship may be treated as synonymous with nationality.(23)

The distinction between national origin and ethnic origin was considered in Australian Macedonian Human Rights Committee (Inc) v State of Victoria [2000] HREOCA 52:

'National origin' has a meaning that includes coming from, by birth or lineage, an identifiable nation or country of people. In particular, the nation or country need no longer exist or indeed have a particular international status. In my opinion, the term 'ethnic origin' has a meaning that includes coming from an identifiable group or community who use speech different to the majority language (here in Australia English) and does not require any particular territorial link.

'Ethnic origin' has been interpreted broadly in a number of jurisdictions to include Jewish(24) and Sikh people. The Court in King-Ansell held Jewish people in New Zealand formed a group with common ethnic origins within the meaning of the Race Relations Act 1971 (NZ). Justice Richardson stated:

[A] group is identifiable in terms of ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents [543].

Similarly, in Mandla v Dowell Lee [1983] 2 AC 548, the House of Lords held a group (such as Sikh people), to constitute an ethnic group for the purposes of the legislation in question, had to regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics.

In an application made in Linfox Australia Pty Ltd [2015] VCAT 528 (Linfox) to exempt the company from the Equal Opportunity Act, VCAT observed decisions about employment on the basis of someone's citizenship may amount to prohibited discrimination under the Equal Opportunity Act. Section 6 makes 'race' a protected attribute, that is defined to include nationality. Deciding whether to employ a person on the basis of their citizenship may amount to unlawful discrimination. Section 107 of the Equal Opportunity Act also prohibits requests for discriminatory information, such as someone's citizenship (Linfox [3]). For more information see the section on Discriminatory requests for information.

Race has also been raised in connection with immigration status. VCAT found there had been direct discrimination based on race in Khalid v Secretary Department of Transport Planning and Local Infrastructure [2013] VCAT 1839. A full-time student from New Zealand applied for a public transport concession card, but was rejected because of his visa status. If the complainant had been an Australian citizen, he would have been entitled to a student concession. Despite this finding, the discrimination was found to be authorised by legislation [39]-[42] See further detail in the section on Permanent exceptions to discrimination.

The matter of Faulkner v ACE Insurance Ltd [2011] NSWADT 36 concerned a complaint made by a New Zealand man who was a permanent resident of Australia. He was denied insurance services on the basis of his visa category basis. The NSW Administrative Decisions Tribunal found Mr Faulkner was indirectly discriminated against by the insurer, because of his race, because there was a requirement to be an Australian resident to be able to obtain cover. Mr Faulkner fell into none of the categories of Australian resident required in the insurance policy.

Certain insults have also been found to be discrimination on the basis of race. Using the words 'monkey' or 'ape' is derogatory and humiliating when referring to or used in connection with a person of colour or of some racial or ethnic backgrounds (see Dirckze v Holmesglen Institute [2015] VCAT 1116 [155]-[161]). VCAT was also satisfied a comment that a complainant 'looked like a gorilla' amounted to unfavourable treatment based on race in the matter of Jemal v ISS Facility Services Pty Ltd [2015] VCAT 103 [116], [119].

Religious belief or activity as a protected attribute

Religious belief or activity is defined under section 4 of the Equal Opportunity Act as:

a) holding or not holding a lawful religious belief or view;
 
b) engaging in, not engaging in or refusing to engage in a lawful religious activity.

'Religious belief or activity' has been interpreted broadly, and includes atheism (see Aitken v The State of Victoria - Department of Education & Early Childhood Development [2012] VCAT 1547. 'Religious belief' has been extended to a union member who refused to make a welfare payment on account of his religious belief that charitable works and welfare support was the sole province of the church and was not a function of union members (see Marett v Petroleum Refineries (Aust) Pty Ltd (1987) EOC 92-206; Petroleum Refineries (Australia) Pty Ltd v Marett [1989] VicRp 69; [1989] VicRp 69; [1989] VR 789). Discrimination on the basis of religious belief or activity has also been found where fresh Halal meat was not provided to a Muslim prisoner who requested it (see Queensland v Mahommed (2007) EOC 93-452; [2007] QSC 018).

Expunged homosexual conviction as a protected attribute

An attribute was added to section 6 of the Equal Opportunity Act in 2015, prohibiting discrimination on the basis of an expunged homosexual conviction. Until 1981, it was possible to be convicted of certain sexual and public morality offences in Victoria. Although these laws no longer exist, the criminal records arising from those offences have remained for some people for over 30 years.

The purpose of the amendments is to remove the stigma of a criminal record along with the practical impediments created by having a criminal conviction in Victoria such as a person's right to travel or to find a job. The inclusion of the attribute in the Equal Opportunity Act makes it unlawful to discriminate against a person who has 'a conviction for a historical homosexual offence that has become expunged followed by a determination of the Secretary of the Department of Justice and Regulation or a review by VCAT'.

Notes

1 : See discussion of onus and evidence in AB v Ballarat Christian College (Human Rights) [2013] VCAT 1790 [15]-[18], [81], [122]-[123], [142]; Also see [[https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2014/623.html?context=1;query=%5b2014%5d%20VCAT%20623;mask_path=au/cases/vic/VCAT][ USL obo her son v Ballarat Christian College (Human Rights) [2014] VCAT 623 [18], [22], [53], [267].

2 : Menzies v Waycott [2001] VCAT 415 s 198.

3 : NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11;[2014] HCA 11; (2014) 250 CLR 490, [1], [35], [37], citing AB v Western Australia (2011) 244 CLR 390, 402; [2011] HCA 42.

4 : Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, 1014-1015 (Rob Hulls, Attorney General).

5 : See also Australian Human Rights Commission, Sexual orientation, gender identity or intersex status discrimination Fact Sheet 2013, p 3.

6 : Applied recently in Slattery v Manningham CC (Human Rights) [2013] VCAT 1869 [26]-[27]; AB v Ballarat Christian College (Human Rights) [2013] VCAT 1790 [79]-[80] and USL obo her son v Ballarat Christian College (Human Rights) [2014] VCAT 623 [20]-[21].

7 : New South Wales (Department of Education) v Human Rights and Equal Opportunity Commission [2001] FCA 1199 [37].

8 : Purvis v New South Wales [2003] HCA 62 [27], [80], [209]-[212]; [2003] HCA 62; (2003) 217 CLR 92.

9 : Ibid [80]. Note although the High Court accepted the broader meaning of 'disability', it adopted a narrow approach to the comparator test, that meant the discrimination claim ultimately failed. This aspect of the case is no longer directly relevant to the Equal Opportunity Act due to the recent changes that remove the comparator test from the definition of 'direct discrimination'.

10 : See, for example, the test for direct discrimination in Equal Opportunity Act 2010 (Vic) s 8.

11 : Schou v State of Victoria [1999] VCAT 632; Moloney v State of Victoria [2000] VCAT 1089.

12 : In Jamieson v Benalla Golf Club Inc [2000] VCAT 1849, VCAT assumed without deciding that tattoos are physical features.

13 : Victoria, Parliamentary Debates, Legislative Assembly, 4 May 1995, 1251 (Jan Wade, Attorney-General).

14 : See, for example, Croatian Brotherhood Union of WA (Inc) v Yugoslav Clubs & Community Associations of WA Inc (1987) EOC 92-190, EOT (WA).

15 : Hein v Jacques Ltd (1987) EOC 92-188; followed in this respect Nestle Australia Ltd v Equal Opportunity Board [1990] VR 805; [1990] VicRp 71; (1990) EOC 92-281; CPS Management Pty Ltd v President and Members of the Equal Opportunity Board [1991] VicRp 50; [1991] 2 VR 107; (1991) EOC 92-332 at 78,290, [[http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2014/1294.html?context=1;query=Richardson%20v%20city%20of%20casey;mask_path=][ Richardson v City of Casey Council [2014] VCAT 1294]].

16 : [[http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VicRp/1991/50.html?context=1;query=CPS%20Management;mask_path=][CPS Management Pty Ltd v President and Members of the Equal Opportunity Board [1991] [1991] VicRp 50; 2 VR 107]]; (1991) EOC 92-332, 78, 291.

17 : Hein v Jacques Ltd (1987) EOC 92-188; BC8900498.

18 : Duggan v South Yarra Constructions Pty Ltd (1988) EOC 92-220; 25 IR 367.

19 : Williams v Council of the Shire of Exmouth (1990) EOC 92-296.

20 : Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342 [362].

21 : See Australian Medical Council v Wilson [1996] FCA 1618;[1996] FCA 1618; (1996) 68 FCR 46; Macabenta v Minister for Immigration and Multicultural Affairs [1998] FCA 385; (1998) 90 FCR 202.

22 : (1996) 68 FCR 46, 75.

23 : Faulkner v ACE Insurance Limited [2011] NSWADT 36 [65] citing Macabenta v Minister for Immigration and Multicultural Affairs [1998] FCA 385; (1998) 90 FCR 202.

24 : Miller v Wertheim [2002] FCAFC 156 [14]. See also Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243, 271-273 [110]-[113], Jones v Toben [2002] FCA 1150 [101], Jeremy Jones v Bible Believers Church [2007] FCA 55, [21] and Silberberg v Builders Collective of Australia Inc [2007] FCA 1512 [22] where it was found Jews in Australia are a group of people with a common 'ethnic origin' under the Racial Discrimination Act 1975 (Cth).


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