Discrimination

What is discrimination?

NSW Anti-discrimination laws define discrimination as when you are treated less favourably than others because you have, or are assumed to have a certain characteristic that is protected by NSW law, including:

• sex (including pregnancy and breastfeeding)
• race
• age
• marital or domestic status
  
• disability
• homosexuality
• transgender or transsexual status, or
• carer's or family responsibilities
• religion.

What is sex discrimination?

Sex discrimination is when you are treated less favourably because:

• of your sex 
• you are the relative, friend, or colleague of someone who is a particular sex. This includes being treated unfairly or harassed or not given the same opportunities because you are pregnant or breastfeeding.

Sex discrimination is against the law. This includes indirect discrimination, where a rule or requirement is the same for everyone but unfairly affects people of a particular sex, and it is not reasonable in the circumstances.

For more information on sex discrimination, see Sex discrimination on the Anti-Discrimination NSW website.

What is racial discrimination?

Racial discrimination is when you are treated less favourably because:

• of your race, colour, nationality, descent, or ethnic, ethno-religious or national origin
• you are the relative, friend or colleague of someone of a particular race.

Race discrimination is against the law. This includes indirect discrimination, where a rule or requirement is the same for everyone but unfairly affects people of a particular race, and it is not reasonable in the circumstances.

For more information on racial discrimination, see Race discrimination on the Anti-Discrimination NSW website.

What is age discrimination?

Age discrimination is when you are treated less favourably because:

• of your age (you are considered to be too young or too old) 
• you are related to, friends with, or a colleague of someone of a particular age. Forcing people to retire at any particular age, as long as they can still do the job, is also against the law.

Age discrimination is against the law. This includes indirect discrimination, where a rule or requirement is the same for everyone but unfairly affects people of a particular age or age group, and it is not reasonable in the circumstances.

For more information on age discrimination, see Age discrimination on the Anti-Discrimination NSW website.

What is marital or domestic status discrimination?

Marital or domestic status discrimination is when you are treated less favourably because of your marital or domestic status, for example because you are single, married, divorced, widowed, married but living separately, or in a de facto relationship.

Marital or domestic status discrimination is against the law. This includes indirect discrimination, where a rule or requirement is the same for everyone but unfairly affects people of a particular marital or domestic status, and it is not reasonable in the circumstances.

For more information on marital or domestic status discrimination, see Marital or domestic status discrimination on the Anti-Discrimination NSW website.

What is homosexual discrimination?

Homosexual discrimination is when you are treated less favourably because you are:

• gay or lesbian, or someone thinks you are gay or lesbian 
• the relative, friend or colleague of someone who is gay or lesbian.

Homosexual discrimination is against the law. This includes indirect discrimination, where a rule or requirement is the same for everyone but unfairly affects people who are gay or lesbian, and it is not reasonable in the circumstances.

For more information on homosexual discrimination, see Homosexual discrimination on the Anti-Discrimination NSW website.

What is disability discrimination?

Disability discrimination is when you are treated less favourably because:

• you have a disability
• someone thinks you have a disability
• you had a disability in the past, or 
• you may or will become disabled in the future
• you are the relative, friend or colleague of someone with a disability.

Disability includes:

• physical disabilities
• diseases that make the body or brain work differently
• mental illness or psychiatric disability
• behavioural disorders
• intellectual disabilities
• learning or cognitive disabilities
• changed or different body parts after an accident or surgery
• a different formation of a body part 
• any virus or bacteria in the body that could cause disease or illness (such as HIV).

Disability discrimination is against the law. This includes indirect discrimination, where a rule or requirement is the same for everyone but unfairly affects people with disability, and it is not reasonable in the circumstances.

For more information on disability discrimination, see Disability discrimination on the Anti-Discrimination NSW website.

What is transgender discrimination?

Transgender discrimination is when you are treated less favourably because:

• you are transgender
• people think you are transgender
• you are being treated as your previous sex and being forced to follow a rule or requirement as your previous sex

you are the relative, friend or colleague of someone who is transgender.

You are counted as transgender if you identify as the opposite gender (sex) to your birth gender and you live or seek to live as your identified gender. Transgender discrimination can happen at all stages of transition.

Transgender discrimination is against the law. This includes indirect discrimination, where a rule or requirement is the same for everyone but unfairly affects people who are transgender, and it is not reasonable in the circumstances.

For more information, see Transgender discrimination on the Anti-Discrimination NSW website.

Add the following new FAQ after “What is transgender discrimination?”

What is religious vilification?

From 12 November 2023, religious vilification is against the law. 

It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severely ridicule a person or group of persons because of their religious belief, affiliation or activity.  

A public act means:

• communications to the public
• conduct that can be observed by the public
• distributing material to the public with the knowledge that it promotes or expresses hatred towards, serious contempt for or severe ridicule of a person or group of persons. 

For more information, see Religious vilification on the Anti-Discrimination NSW website.

What is carer’s responsibilities discrimination?

Carer’s responsibilities discrimination is when you are treated less favourably because you are, or people think you are, responsible for caring for or supporting:

• your child (including a step-child, foster child or adopted child)
• a children or adult for whom you are a guardian
• a family member.

Carers discrimination is only against the law at work. This includes indirect discrimination, where a rule or requirement is the same for everyone but unfairly affects people who have carers responsibilities, and it is not reasonable in the circumstances.

For more information, see Carers discrimination on the Anti-Discrimination NSW website.

What is the difference between direct and indirect discrimination?

Direct discrimination is when someone is treated less favourably than others because of a particular characteristic they have, compared to someone else who does not have that characteristic, in the same or similar circumstances. For example, if a real estate agent tells an Aboriginal person they have no properties for rent but tells a Caucasian person that they do, this may be direct race discrimination. 

Indirect discrimination is when there is a requirement or rule that is the same for everyone but this requirement or rule disadvantages people from a particular group more than people from other groups. Indirect discrimination is against the law, unless the requirement or rule is reasonable in all the circumstances of the case. For example, if an employer says that they need a person over 180cm tall to do a certain job, this could indirectly discriminate against women and some ethnic groups (sex or race discrimination) unless that role genuinely required a person of that height.

When is discrimination against the law?

There are NSW and Australia-wide laws against discrimination. Under NSW law, it is illegal to discriminate against someone in these public places:

• work
• education
• when providing goods or services
• when providing accommodation 
• registered clubs. 

It is only against the law to discriminate on the grounds of carers responsibilities at work. 

For more information, see Discrimination at work on the My problem is about section of our website.

When is discrimination allowed?

There are some exceptions to the law which allow for discrimination in some cases. For example, an employer may discriminate if the role requires a person of a particular race. This may occur if the workplace provides services for people of a particular race and those services can be most effectively provided by someone of the same race.

What is victimisation?

Victimisation occurs when you make a complaint about discrimination or provide evidence of discrimination and you are treated unfairly because of your complaint.

Victimisation is against the law.

Who can help me if I have been discriminated against?

If you have been discriminated against, you can make a complaint to Anti-Discrimination NSW. 

You may also make a complaint to the Australian Human Rights Commission. 

If you have been discriminated at work, you may also be able to go to the Fair Work Ombudsman or Fair Work Commission. 

For more information, see Discrimination at work on the My problem is about section of our website.

When can Anti-Discrimination NSW help me?

Anti-Discrimination NSW can assist you when you have been discriminated against in certain areas of public life and you can’t resolve the problem yourself. If it is appropriate, you should try to talk to the person or organisation who has discriminated against you. 

Anti-Discrimination NSW can only investigate certain types of discrimination, including:

• at work, for example when you apply for a job, when you are at work and when you leave a job
• at employment agencies, including recruitment agencies
• when you get or try to get most types of goods or services, for example, from shops, banks, lawyers, government departments, public transport and medical services
• when you apply to get into or study in any state educational institution, for example public schools, colleges or universities
• when you rent accommodation
• when you try to enter or join a registered club or get services from one. 

For more information about discrimination at school, see the Schooling topic.

How can Anti-Discrimination NSW help me?

You can make a complaint to Anti-Discrimination NSW if you believe you have been discriminated against. If you are not sure whether you have been discriminated against, Anti-Discrimination NSW enquiries team can provide you with further information.

Anti-Discrimination investigates complaints of discrimination and can help you and the other person or organisation to reach a solution. You should lodge your complaint within 12 months of when the discrimination or harassment happened. 

If the discrimination that you want to complain about happened more than 12 months ago, you can still complain. You will need to explain why you didn’t complain earlier and Anti-Discrimination NSW can choose to investigate your complaint.

For more information and to make a complaint, see How to make a complaint on the Anti-Discrimination NSW website.

How do I make a complaint to Anti-Discrimination NSW?

You can make a complaint by: 

• putting your complaint in writing and sending it to Anti-Discrimination NSW 
• completing the discrimination complaint form online
• writing a letter to the President of Anti-Discrimination NSW.

You can provide your complaint in a language other than English, and Anti-Discrimination NSW will translate your complaint into English for free. If writing your complaint is not possible, you can contact Anti-Discrimination NSW to discuss other ways to submit your complaint. Auslan users are able to provide a video describing their complaint and Anti-Discrimination NSW will organise translation and transcription. 

You can send your complaint using the online form, or by email or post (if you have no access to email).

The contact details for Anti-Discrimination NSW are:

• Postal address: Locked Bag 5000, Parramatta NSW 2124
  
• Email: complaintsadb@justice.nsw.gov.au.
  

A copy of your complaint will be sent to the person or organisation you are complaining about. Do not include anything in your complaint that you don’t want to have shared with the other party.

If you want to make a complaint on behalf of a child or a person with a disability who can’t make their own complaint, you should contact Anti-Discrimination NSW. 

To contact Anti-Discrimination NSW or for more information, see How to make a complaint on the Anti-Discrimination NSW website.

What happens after I make a complaint? 

After you lodge your complaint, you should receive a letter of acknowledgment within two weeks. Anti-Discrimination NSW will assess your complaint and decide if it is covered under the law. If it is not covered, Anti-Discrimination NSW will send you a letter explaining that they can’t investigate.

If your complaint is covered by law, Anti-Discrimination NSW will explain what they can do to help, and the steps in the process to resolve your complaint.

Anti-Discrimination NSW will send a copy of your complaint to the person or organisation you complained about. The conciliation officer from Anti-Discrimination NSW may contact you if they need any further information. They will give the person or organisation who discriminated against you a deadline to respond, and you will receive a copy of their response. 

The conciliation officer will try and help you both decide on a solution. This might happen by writing letters, telephone negotiations or a conciliation conference.

What is a conciliation conference? 

A conciliation conference is a meeting with you, the person or organisation you complained about and usually the conciliation officer at Anti-Discrimination NSW. The purpose of the meeting is to discuss your complaint and ways to resolve the issue(s) you raised.

You can bring a support person to the conference. 

The conciliator won’t take sides and can’t make a decision for you. They can help you consider different options but it is up to you and the other party to agree on a solution.

The conciliator can’t give you legal advice.

How can I prepare for a conciliation conference?

It is a good idea before the conciliation conference to write down a list of things you would like done to resolve your complaint. This could be:

• an apology (verbal or written)
• the person who discriminated doing anti-discrimination training
  
• introduction of policies to deal with and prevent discrimination in future
• getting your job back
• changes to working conditions, for example, different hours of work
• a written reference
• the person or organisation who discriminated against you paying for you to get counselling
• financial compensation
• the person who discriminated against you facing disciplinary action
• adjustments to buildings to make them more accessible.
  

You might not get everything you ask for, but it is a good idea to know what you want before you start negotiating with the other side. You might be asked to give up your right to take any further action against the other person in return. 

To see examples of results from conciliation cases with Anti-Discrimination NSW, see Complaint case studies on the Anti-Discrimination NSW website. 

Can a lawyer represent me? 

You must get permission from the President of Anti-Discrimination NSW if you want to have a lawyer represent you at the conciliation conference. If you want to have a lawyer, you should discuss this with your conciliation officer before the day of the conference.

Even if you are not allowed to have a lawyer represent you, you can still get legal advice about the conciliation conference. 

Is an agreement at the conciliation conference binding?

Usually if you and the other person reach an agreement, it is put into a deed of release or a conciliation agreement. A deed of release is a formal document that sets out the details of your agreement with the other person. It is signed by you and the other side and is legally enforceable.

A conciliation agreement is also a written document containing the details of your agreement. If you want to enforce a conciliation agreement, you will need to register it with the NSW Civil and Administrative Tribunal (NCAT). You should register it within six months of the agreement being made. 

For more information about registering a conciliation agreement, see Register a conciliation agreement on the NCAT website.

Before signing a deed of release or a conciliation agreement, you should get legal advice.

What happens if the other person doesn’t follow the agreement?

How you enforce an agreement will depend on what type of agreement you made.

If you had a deed of release, you may be able to take the other person to court to enforce the deed. You should get legal advice before going to court.  

If you have a conciliation agreement, and it has been registered at the NSW Civil and Administrative Tribunal (NCAT), you can have the agreement enforced. You should do this within six months of the agreement. If it has been longer than six months, you can still apply to NCAT. You will need to request a time extension as part of your application. It is up to NCAT whether they accept your late application. 

Once your conciliation agreement has been turned into an NCAT order, you can enforce it. 

What happens if we can’t agree at the conciliation conference?

Anti-Discrimination NSW can’t force you or the other person to accept a particular solution. If you can’t agree on a solution, you can:

• continue negotiating
• withdraw your complaint
• ask for the President of Anti-Discrimination NSW to refer your complaint to the NSW Civil and Administrative Tribunal (NCAT) for a hearing.

The President could also decline your complaint if it’s apparent that there is not enough evidence to support your complaint. If this happens, you can take your complaint to NCAT.

Before going to NCAT, you should get legal advice.

How long will it take for my complaint to be dealt with? 

It could take several months to resolve your complaint, particularly in complex cases. Anti-Discrimination NSW aims to deal with all complaints within six months from the time you made the complaint, subject to complaint numbers at any time. 

Can Anti-Discrimination NSW decide not to investigate my complaint? 

Your complaint may be declined if it is not covered by the Anti-Discrimination Act.

Anti-Discrimination NSW will also stop an investigation if it appears your complaint does not involve any unlawful discrimination. 

What can I do if I’m unhappy with how Anti-Discrimination NSW deals with my complaint? 

If you are not happy about how your complaint is being handled, you can:

• first, speak with your conciliation officer
• complain to the Executive Manager of Anti-Discrimination NSW
  
• complain to the NSW Ombudsman.
  

For more information, see Feedback or complaints on the Anti-Discrimination NSW website.

Can I withdraw my complaint? 

You can ask the Anti-Discrimination NSW to stop dealing with your complaint at any time during the investigation or conciliation process. 

To withdraw your complaint, you need to write to the person handling your complaint and tell them that you want to withdraw it. Your file will then be closed. 

If you later change your mind, you can’t re-open your complaint. 

What if I make a complaint and things get worse?

It is against the law for someone to treat you badly because you:

• have made a complaint
• are planning on making a complaint
• have helped someone else make a complaint.
  

If you are treated unfairly because of a complaint, you should contact Anti-Discrimination NSW immediately.

When can the NSW Civil and Administrative Tribunal help me?

You can’t lodge a complaint directly with the NSW Civil and Administrative Tribunal (NCAT). You must make your complaint to Anti-Discrimination NSW first. You can ask for your complaint to be referred to NCAT if it can’t be resolved.

In some cases, the President of Anti-Discrimination NSW can refer your complaint to NCAT, even if you don't ask for this to happen.

What can the NSW Civil and Administrative Tribunal do about my complaint?

If the NSW Civil and Administrative Tribunal (NCAT) decides that the law has been breached, they can order the other person or organisation to:

• pay you up to $100,000 for loss or damage because of the breach
• stop the discrimination
• take certain actions, for example, giving you your job back if you were dismissed
• publish an apology or a retraction (a statement taking back what they said).
  

What will happen at the NSW Civil and Administrative Tribunal? 

The NSW Civil and Administrative Tribunal will list your case for a case conference. A Tribunal member will have one or several meetings with you and the other party to understand what the dispute is about, to make orders about providing evidence and to set a hearing date. This is called a case conference. 

You and the other party might be referred to do mediation. If your case isn’t resolved through mediation, a Tribunal member will make a decision about your case after hearing all of the evidence. 

For more information, and a step-by-step guide to anti-discrimination cases in NCAT, see Anti-Discrimination complaints on the NCAT website. 

Can a lawyer represent me at the NSW Civil and Administrative Tribunal?

Yes, you can choose to have a lawyer represent you at NSW Civil and Administrative Tribunal (NCAT). Usually, you will still need to be there at the Tribunal, even if you have a lawyer representing you.

What happens if the other person doesn’t follow the orders of the NSW Civil and Administrative Tribunal?

If the other person does not follow the orders, you can take steps to enforce (make the other person follow) the orders.

If the order is about money that hasn’t been paid, ask the NSW Civil Administrative Tribunal (NCAT) Registrar for a certificate which you can file as a judgment debt at court. Once a judgment debt has been registered, you can take action to recover the money from the other person. 

For more information about how to enforce an NCAT judgment, see Step by step guide - enforcing NCAT orders on the My problem is about section of the website.

If the order doesn’t involve money, you can ask NCAT for an order called ‘a certificate of order’, which can be filed in the Supreme Court to be enforced.

When can the Australian Human Rights Commission help me?

The commission can investigate complaints about unlawful discrimination on the grounds of age, disability, race, sex or sexual orientation. Discrimination can occur in the workplace, education services, when you are getting or using other services and renting or buying a home. 

Discrimination in the workplace can be on the following grounds:

• religion
• political opinion
• national extraction
• nationality
• social origin
• medical record
• criminal record
• trade union activity.

For more information, see Discrimination on the Australian Human Rights Commission website.

How can I make a complaint to the Australian Human Rights Commission?

You can make a complaint online, by email, fax or by post. You can send your complaint by:

• post to Director, Investigation and Conciliation Service, Australian Human Rights Commission, GPO Box 5218, Sydney NSW 2001
• fax to 02 9284 9611
• email to complaints@humanrights.gov.au.

You will need to include your full name and contact details. Your complaint will be sent to the person or organisation you are complaining about.

For more information, see Make a complaint on the AHRC website.

How long do I have to make the complaint?

You have 24 months to make a complaint to the Australian Human Rights Commission (AHRC) about unlawful discrimination. Before 12 December 2022, the time limit was 6 months for complaints other than conduct involving unlawful sex discrimination or sexual harassment.

If your complaint is about employment discrimination based on religion, criminal record, trade union activity, sexual preference, political opinion and social origin, you have 12 months to make a complaint to the AHRC.

If your complaint is lodged later than these times, you can still complain, but you should explain why your complaint is delayed. If your complaint is late, the AHRC might choose not to investigate.

What does the Australian Human Rights Commission do with my complaint?

The Australian Human Rights Commission (AHRC) will help you to resolve your complaint with the person or organisation that discriminated against you. This could involve letters written between you, or a telephone conversation with a representative from the AHRC and everyone involved. This is known as conciliation.

The Commission will discuss your complaint with you and see what kind of result you want. They will also discuss the complaint with the person you are complaining about.

What is a conciliation conference? 

A conciliation conference an informal meeting between you, the person or organisation you complained about and the Australian Human Rights Commission. It is a chance for you and the other person to discuss the problem and come to a solution. You can bring a support person to the conference. 

The conciliator won’t take sides and can’t make a decision for you. They can help you consider different options but it is up to you and the other party to agree on a solution. If you are not comfortable being in the same room as the other party, ask the conciliator if you can do shuttle mediation. This means that you and the other person stay in separate rooms, and the conciliator goes between both rooms and meets with you both separately to allow for negotiation.

Do I need a lawyer to represent me at the conciliation conference?

No, you don’t need a lawyer for conciliation with the Australian Human Rights Commission. If you want a lawyer to represent you during the conciliation, you will need to get permission.

Even if you are not allowed to have a lawyer represent you, you can still get legal advice about the conciliation conference. 

How can I prepare for a conciliation conference?

It is a good idea before the conciliation conference to write down a list of things you would like done to resolve your complaint. This could be:

• an apology (verbal or written)
• the person who discriminated doing anti-discrimination training
• introduction of policies to deal with and prevent discrimination in future
• getting your job back
• changes to working conditions, for example, different hours of work
• a written reference
• the person or organisation who discriminated against you paying for you to get counselling
• financial compensation
• the person who discriminated against you facing disciplinary action
• adjustments to buildings to make them more accessible.
  

You might not get everything you ask for, but it is a good idea to know what you want before you start negotiating with the other side. You might be asked to give up your right to take any further action against the other person in return. 

To see examples of results from conciliation cases with the Australian Human Rights Commission (AHRC), see Conciliation Register on the AHRC website. 

What happens if we agree on a solution?

If you and the other person agree on a solution, it can be put into a conciliation agreement. The conciliator can help you write this document.

Before you sign any agreement, it may be a good idea to get legal advice. 

If the other side does not follow the agreement, you should get legal advice as soon as possible. 

What if we can’t agree at the conciliation conference?

The Australian Human Rights Commission (AHRC) can’t force you or the other person to accept a particular solution. If the complaint can’t be resolved, the AHRC will terminate the complaint and will send you a letter letting you know why your complaint has been terminated.  

You may be able to apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia. You might need the permission of the Court to make an application. You have 60 days to take a complaint to court after it has been terminated by the AHRC.

From 12 December 2022, a representative body, such as a union can apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia on behalf of an individual or a group of people with regards to a terminated complaint.  

Before applying to court, you should get legal advice.

When can my discrimination complaint go to court? 

If you can’t resolve your complaint through conciliation (agreement) with the Australian Human Rights Commission, you may be able to take your case to court. Your case might go to either the Federal Circuit and Family Court or the Federal Court of Australia. Most discrimination cases are dealt with in the Federal Circuit and Family Court. You may need permission of the Court to apply. 

The Federal courts can have a hearing and decide whether you were discriminated against unlawfully and what orders should be made to fix it.

You should apply within 60 days of your case being terminated by the Australian Human Rights Commission. If it has been more than 60 days, you may still be able to apply and explain why you are applying late. You will need a very good reason to convince the Court why you haven’t filed your application in time. 

From 12 December 2022, a representative body, such as a union can apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia on behalf of an individual or a group of people with regards to a terminated complaint.  

Before going to court, you should get legal advice. The Court may make a decision you don’t agree with, and if you lose, you might be ordered to pay the legal costs of the other side.

For more information, see Guide to Human Rights Cases on the Federal Court of Australia website.

What orders can the Court make?

The Court can decide whether someone has unlawfully discriminated against you or not. 

The Court can order that the person who unlawfully discriminated against you must:

• stop the unlawful discrimination
• take action to fix any loss or damage you suffered
• re-employ you
• pay you compensation for any loss or damage you suffered
• vary (change) the termination of a contract or agreement to fix any loss or damage you suffered.
  

The Court may also make an order that it would be inappropriate to take any further action.