Discrimination Act 1991

The Act binds employers, principals, educational authorities, providers of goods, services and facilities, landlords and accommodation providers, clubs, organisers of sporting activities and competitions, public authorities administering territory laws, and any person who might otherwise engage in vilification, victimisation or unlawful advertising. Because s 4A(1) defines “doing an act” to include failing to do an act, omissions are caught.

Employees, job applicants, students, tenants, customers, club members and participants in sport or competitions are the primary beneficiaries. Section 6 treats MLAs as employers of their staff under the Legislative Assembly (Members’ Staff) Act 1989. Section 121A attributes the conduct of employees or agents to the principal unless the principal took all reasonable steps to prevent the conduct.

Organisations and individuals with “organisational management responsibility” (s 75(6)) – from sole traders to vice-chancellors and church leaders – bear the positive duties in Part 9. Public authorities (defined in s 23C(3) to include administrative units, territory authorities, Ministers, public employees and entities exercising public functions) are subject to the s 23C prohibition on discrimination in the administration of territory laws and government programs.

Religious bodies, clubs established for a protected class, insurers relying on actuarial data, and persons providing domestic services in their own home receive targeted exceptions. The Director-General administering the Adoption Act 1993 is expressly permitted to discriminate on suitability grounds (s 25A).

Protected persons have the right not to be subjected to direct or indirect discrimination (s 8), sexual harassment (s 58), vilification (s 67A), victimisation (s 68) or discriminatory requests for information (s 23). They are entitled to reasonable adjustments (s 74) and to have organisations take reasonable and proportionate steps to eliminate the prohibited conduct (s 75).

Duty-bearers must refrain from the conduct proscribed in Parts 3, 5 and 7 and, where the positive duties apply, actively eliminate risks. Employers must not discriminate in recruitment, terms, promotion, training, dismissal or other detriment (s 10) and must permit reasonable religious practice during working hours unless it subjects the employer to unreasonable detriment (s 11). Educational authorities must not discriminate in admission or expulsion (s 18). Providers of goods and services must not refuse or impose discriminatory terms (s 20). Public authorities must administer laws and programs without discrimination (s 23C(1)), subject to parliamentary privilege and judicial functions.

The onus of establishing any exception lies on the respondent (s 70). Complaints are made under the Human Rights Commission Act 2005; the Commission may investigate, conciliate or refer matters to the ACAT. Exemptions may be sought from the Commission (s 109).

Section 4AA and the objects in s 4(d) crystallise a right to substantive equality that may require differential treatment (special measures under s 27) and reasonable adjustments.

The Act does not create criminal offences for discrimination itself (s 71). However, serious vilification is an offence under Criminal Code s 750, and victimisation or other conduct may attract criminal liability under general principles (s 6A applies the Criminal Code).

Enforcement is civil. A complaint under the Human Rights Commission Act 2005 may lead to conciliation or referral to the ACAT. The ACAT may order compensation, apologies, injunctions, variation of contracts, or other relief it considers appropriate. Section 72 expressly states that an unlawful act does not itself ground a civil action outside the statutory scheme, but breach of the positive duties is an unlawful act actionable through the complaint process.

Penalty units for any offence created by regulation are set by Legislation Act 2001 s 133 ($160 for an individual, $810 for a corporation at republication date). Secrecy breaches under s 121 carry a maximum of 50 penalty units, six months imprisonment or both.

The Commission may grant exemptions (s 109) or accept enforceable undertakings; the ACAT may review exemption decisions (s 110). Representative complaints and class actions are facilitated by the broad aiding-and-abetting rule in s 73 and the attribution rule in s 121A.

Section 122 provides that the Act is additional to, and does not derogate from, any other territory law protecting against the same conduct. It must be interpreted consistently with the Human Rights Act 2004 (s 4(b) and s 4AA) and Legislation Act 2001 s 139 (purposive interpretation) and s 115–117 (editorial changes).

Specific interaction provisions appear throughout. Section 30 exempts acts done necessarily to comply with territory laws, court orders or ACAT orders. Section 25A preserves the Director-General’s functions under the Adoption Act 1993. Insurance and superannuation exceptions (s 28) rely on actuarial data and interact with Commonwealth prudential regulation. Youth wages (s 57B) reference modern awards under the Fair Work Act 2009 (Cwlth). The definition of “irrelevant criminal record” (Dictionary) cross-references the Spent Convictions Act 2000.

The positive duty in s 75 operates alongside work health and safety legislation; health-and-safety exceptions in ss 57C, 57J and 57R recognise that overlap. Section 23C(2) preserves Legislative Assembly privileges and the judicial functions of ACT courts.

Federal discrimination legislation (Sex Discrimination Act 1984 (Cwlth), Disability Discrimination Act 1992 (Cwlth), etc.) operates concurrently; a complainant may choose the forum but cannot double-dip on the same conduct.

The republication reflects amendments up to and including those commencing 23 February 2026 (A2026-4). The most significant recent reform was the Discrimination Amendment Act 2023, which inserted the positive duties (Part 9, ss 74–76), expanded the objects (s 4), introduced beneficial interpretation (s 4AA), added new protected attributes and contexts (ss 23A–23C, updated s 7), modernised exceptions (new ss 33B–33D, revised ss 27–28, 31–32), and repealed spent or redundant provisions (e.g. former racial and disability-specific genuine occupational qualification rules).

These changes responded to the recognition in s 4(d) that equal application of a rule can produce unequal outcomes and that substantive equality requires proactive measures. The three-year phased commencement for non-government entities (s 75(4)–(6)) gave organisations time to develop compliance systems scaled to size and resources. Amendments in A2024-49 and A2025-22 refined religious-body exceptions (s 32) and clarified definitions (sex characteristics, carer). The 2026 amendment (A2026-4) updated potential-pregnancy and vilification provisions (ss 5A, 67A).

The shift from a purely complaint-driven model to one imposing ex-ante duties mirrors developments in Victoria and federally, aiming to reduce the burden on individuals to litigate and to address systemic discrimination identified in the objects (s 4(c)).

Although the Act itself does not create a direct right of action (s 72), ACAT and Supreme Court decisions have clarified key concepts. The beneficial-interpretation rule (s 4AA) and Human Rights Act 2004 s 30 require reading provisions compatibly with equality rights where possible. Disputes over “unjustifiable hardship” (s 5B) turn on evidence of cost, financial circumstances, benefit or detriment, and the protected attribute; tribunals weigh these holistically rather than applying a mechanical test.

Religious-body exceptions (s 32) have generated litigation concerning the boundary between doctrinal conformity and commercial activity (s 32(3)). The requirement that policy be “readily accessible to the public” before the exception can be relied upon has produced contested factual findings. Genuine-occupational-qualification and inherent-requirements exceptions (ss 33B, 33C) are construed narrowly; employers must demonstrate that no reasonable adjustment would enable the person to perform the role.

Vilification complaints (s 67A) raise free-speech tensions; the defences of fair report, absolute privilege and public-interest discussion or artistic/scientific work have been tested. The “otherwise than in private” element has been interpreted by reference to the examples in s 67A(1) (social-media posts, public gestures, broadcast interviews).

Positive-duty cases are emerging. Tribunals examine what steps are “reasonable and proportionate” having regard to organisational size, resources and operational priorities (s 75(3)). Small businesses are not expected to replicate large-corporation systems, but total inaction is unlikely to suffice.

Controversies persist around the breadth of “disability” (s 5AA includes imputed future disabilities, reliance on assistance animals, and behavioural manifestations) and the interaction with workers’ compensation and industrial laws. The exclusion of judicial functions from s 23C has been upheld to preserve judicial independence.

Most practitioners still treat the Act as a complaints statute and overlook the positive duties in Part 9. Failure to conduct a risk assessment or implement even low-cost elimination measures can itself be an unlawful act, exposing the organisation to compensation orders without the respondent being able to rely on the s 76 carve-out unless an exception in Part 4 or an exemption under Part 10 squarely applies.

The “because of” test in direct discrimination (s 8(2)) is satisfied if the protected attribute is one of two or more reasons; it need not be the dominant or substantial reason (s 4A(2)). This catches mixed-motive decisions that many employers assume are safe.

Section 23 (requests for information) is wider than many realise: asking about any protected attribute in circumstances where the information would enable an unlawful act under Parts 3, 5, 6 or 7 is itself unlawful, even if the ultimate decision is never made.

Religious bodies must publish and make readily accessible their policy on goods, services, facilities and employment before the s 32 exception can be invoked; an internal policy kept in a drawer is insufficient. The same accessibility requirement applies to religious educational institutions under s 46.

Assistance-animal cases frequently stumble on the liability carve-out in s 5AB: the person with disability remains liable for injury, loss or damage caused by the animal, but that does not entitle the service provider to refuse access if the refusal would otherwise be unlawful.

The onus provision (s 70) is decisive in practice. Respondents who fail to plead and prove an exception at the outset often cannot cure the omission later. Equally, applicants who do not particularise which protected attribute or combination is engaged risk having their claim struck out for want of a tenable case.

Finally, the beneficial-interpretation mandate (s 4AA) means that ambiguity in exceptions or definitions is resolved in favour of the person with the protected attribute; reliance on older federal case law that applied a strict “but for” test or narrow construction of exceptions is dangerous.

Compliance begins with a protected-attribute audit: map every decision point in recruitment, service delivery, accommodation allocation, education admission, sport selection and policy administration against the 24 attributes and the expanded definitions in s 7(2). Document the audit; it evidences the “reasonable steps” required by s 75.

Implement a reasonable-adjustment policy consistent with s 74 and s 5B. The policy should contain a clear process for requesting adjustments, a non-exhaustive list of common adjustments, and criteria for assessing unjustifiable hardship that mirror the statutory factors. Train decision-makers to apply the s 5B checklist rather than relying on intuition.

For the positive duty (s 75), conduct a risk assessment scaled to the organisation’s size and resources. Large entities should maintain a discrimination-elimination plan with measurable KPIs, staff training, anonymous reporting channels, and periodic independent audits. Small businesses may satisfy the duty with a simple policy, targeted training and a willingness to seek external advice when issues arise. Document the steps taken; contemporaneous records are the best defence.

Review all standard-form contracts, position descriptions, selection criteria, application forms, tenancy agreements and advertising to remove express or implied discriminatory requirements. Replace them with inherent-requirements language (s 33C) or genuine-occupational-qualification statements (s 33B) that are reasonable, proportionate and justifiable.

For religious bodies and educational institutions, publish policies on employment and student admission on websites and in brochures so they are “readily accessible.” Ensure any discrimination on religious conviction conforms to published doctrine and is necessary to avoid injury to religious susceptibilities (s 32).

In insurance and superannuation, retain actuarial or statistical data and make it available on request (s 28(3)). Decisions not supported by data or other relevant documents will fall outside the exception.

Train staff on sexual-harassment definitions and the expanded contexts (sport, competitions, public-authority administration). Implement a stand-alone prevention policy that satisfies s 75; mere compliance with WHS legislation is insufficient.

Establish internal complaint mechanisms that feed into the statutory scheme. Ensure complainants are not victimised (s 68); any adverse action after a complaint will be presumed to be victimisation unless the respondent proves an independent reason.

Seek exemptions under s 109 where a legitimate activity cannot be brought within an exception and positive-duty compliance would be disproportionately burdensome. Prepare detailed submissions addressing the statutory criteria (promotion of acceptance of the Act and redress of past discrimination).

Review insurance policies for discrimination-liability cover that extends to positive-duty breaches and ACAT proceedings. Keep detailed records of all adjustments considered or made; the onus lies on the respondent once prima-facie discrimination is shown (s 70).

Finally, treat the legislation as a living instrument. Monitor ACAT and Supreme Court decisions on unjustifiable hardship, inherent requirements and the content of the s 75 duty. Update policies annually and retrain staff. Organisations that integrate equality impact assessments into all major decisions will be best placed to demonstrate both the negative prohibitions and the positive duties have been met.