Equal Opportunity Act 1984

The Act affects virtually every person and organisation operating within South Australia. Because it binds the Crown (s 7) it applies to government departments, instrumentalities, councils (defined in s 5(1) by reference to the Local Government Act 1999) and public office holders (treated as employees under s 6(1)).

Employers, principals, educational authorities, landlords, goods and service providers, associations, qualifying bodies, superannuation and insurance providers, charities and religious bodies are all subject to the prohibitions in Parts 3–5B. The definition of "services to which this Act applies" in s 5(1) is deliberately expansive, capturing access to public places, employment agencies, banking, insurance, scholarships, entertainment, introduction agencies, sport coaching, transport, professional services and government services. After 2017 amendments, assisted reproductive treatment is expressly included (s 5(2)), subject to a conscientious objection carve-out for registered objectors (s 5(2a)).

Individuals are also directly affected as both complainants and respondents. Employees (including unpaid workers), applicants for employment, students, tenants, customers, club members and partners are protected. The Act extends protection to relatives and associates (see, for example, ss 29(2)(d), 51(d), 66(f), 85T(2)(d)). Children under 18 are covered; complaints on their behalf may be brought by suitable representatives (s 93(1)(c)), and publicity restrictions apply where a child is a party (s 96A).

Specific classes receive additional or modified protection. Persons with disabilities benefit from positive duties regarding access, assistance animals and therapeutic animals (ss 66(ca)–(e), 88–88A). Women receive protection from discrimination on the grounds of pregnancy, potential pregnancy and breast-feeding (ss 85T(4), 87B). Carers, including those with Aboriginal or Torres Strait Islander kinship responsibilities (s 5(3)–(4)), are protected. Victims of domestic abuse receive dedicated protection (s 85T(8)), with evidentiary thresholds in s 95A(4) for complaints on that ground. Members of Parliament, judicial officers and councillors are subject to sexual harassment prohibitions but benefit from privileges and separate complaint pathways (ss 87(6b)–(6d), 93AA).

Respondents include not only direct actors but those who aid unlawful acts (s 90) and those vicariously liable (s 91). Conversion practices prohibitions (s 86A) apply to any person providing or arranging such practices, with health practitioners subject to mandatory referral to health complaints entities (s 93(5)–(6)).

The Commissioner and Tribunal staff exercise statutory powers and are subject to Ministerial direction limits (s 10(2)). Legal practitioners, advocates and support persons appear in conciliation and Tribunal proceedings under controlled conditions (ss 95(6)–(7), 98).

In practice, the legislation therefore touches every employer with more than a handful of staff, every school and university, every real-estate agent, every insurer, every sporting club, every religious school or charity, every government agency and every individual who provides goods or services to the public. Its exemptions acknowledge that not every interaction is regulated; for example, private household arrangements (ss 40(3), 62(2a), 77(2a), 85L(5)(b), 85ZH(4)) and testamentary dispositions (ss 38(2), 60(2), 75(2), 85O) are largely excluded.

The Act creates both negative duties (not to discriminate) and, in limited cases, positive obligations. The central duty is to refrain from unlawful discrimination, harassment, victimisation or aiding such conduct. Employers and principals must take reasonable steps to prevent contraventions if they wish to avoid vicarious liability (s 91(2)–(3)); an appropriate policy, training, investigation and enforcement are expressly recognised as satisfying this duty.

Educational authorities administering secondary schools must maintain and publicise a written policy against student sexual harassment (s 87(8)). Persons offering insurance or superannuation on the basis of actuarial data must, if proposing to discriminate lawfully, notify the other party and provide a summary of the data on request (s 89).

Rights are conferred on persons aggrieved by contraventions. They may lodge complaints (s 93(1)), participate in conciliation, seek Tribunal orders including compensation for loss or injury to feelings (s 96(1)(a), (3)), and appeal to the Supreme Court on questions of law or fact (s 98A). Complainants may be assisted by the Commissioner in appropriate cases (s 95C), although the Commissioner must allocate limited public funds judiciously. Parties have rights to reasons for Tribunal decisions (s 97), representation by industrial associations with leave (s 98), and protection against victimisation.

Persons with disabilities have rights to access, assistance animals and therapeutic animals. Carers have rights not to be discriminated against because of their responsibilities (s 85T(6)). Religious adherents may wear symbolic dress unless it prevents safe performance of work or a reasonable standard is genuinely required (ss 85T(7), 85Z(4)–(5), 85ZN). Victims of domestic abuse have a right not to be discriminated against, subject to the evidentiary requirements in s 95A(4) before a complaint proceeds.

Respondents have procedural rights: notice of complaints (s 93(3)), participation in conciliation without legal representation unless the Commissioner allows it (s 95(6)), and the ability to raise exemptions or defences before the Tribunal. The Act preserves legal professional privilege and the privilege against self-incrimination in investigations (s 94(4)). Judicial officers and parliamentarians benefit from separate investigative pathways that protect independence and privilege (s 93AA, s 87(6b)–(6d)).

The Commissioner holds statutory functions to educate, research, recommend law reform and issue non-binding practice guidelines (ss 11, 91A). The Tribunal may grant exemptions after weighing the desirability of redressing past discrimination (s 92(6)).

The Act is almost entirely civil. Section 99 states that a contravention attracts no sanction except to the extent expressly provided. The principal remedies are those available from the Tribunal under s 96: compensation (capped only by what the Tribunal thinks fit, taking into account other awards), orders to refrain from further contravention, and orders requiring positive acts to redress loss or remedy the discriminatory act. Compensation may include injury to feelings (s 96(3)) but cannot be awarded against a child (s 96(3b)); vicarious liability may still lie against an adult employer.

Specific offences carry modest fines. Obstructing the Commissioner or failing to produce documents attracts a maximum $2,500 penalty (ss 102, 94(3)). Publishing identifying material about a child party is punishable by $10,000 (s 96A). Discriminatory advertisements carry $2,500 (s 103), with a reasonable-belief defence. Imposing a condition separating a person with a disability from an assistance animal is both unlawful and an offence of $2,500 (s 88).

Enforcement begins with a written complaint to the Commissioner (s 93). The Commissioner may investigate (s 94), conciliate (s 95), decline the complaint (s 95A) or refer it to the Tribunal or SAET (s 95B). Criminal investigations or charges relating to the same matter suspend the Commissioner’s processes (s 93(4)). Complaints against registered health practitioners alleging conversion practices must be referred to the relevant health complaints entity (s 93(5)).

Tribunal proceedings are not subject to internal review (s 96C) but may be appealed to the Supreme Court (s 98A), which conducts a review and may affirm, vary, quash, substitute or remit the decision. Interim orders are available to prevent prejudice (s 96(2)(a)). Limitation periods, extensions, and interaction with industrial dismissal proceedings under the Fair Work Act 1994 or Fair Work Act 2009 (Cth) are tightly regulated (s 100).

Practice guidelines, while not enforceable, may influence the Tribunal’s assessment of reasonableness or compliance (s 91B). Exemptions granted by the Tribunal under s 92 are published in the Gazette, last no more than three years, and may be conditional or revoked.

The Act is designed to sit alongside, and in some cases yield to, other legislation. Section 100 regulates its relationship with industrial relations laws. A person dismissed from employment may still pursue unfair dismissal in SAET under the Fair Work Act 1994, but once either set of proceedings is determined on the merits, the other is barred unless the dismissal ground was unrelated to a ground of discrimination under this Act. The Commissioner may intervene in Fair Work proceedings with leave (s 100(6)).

Cross-references to the South Australian Civil and Administrative Tribunal Act 2013 and the South Australian Employment Tribunal Act 2014 govern procedure, representation, appeals and transfers of proceedings between the Tribunal and SAET (ss 95B, 98B–98C). Exemptions and reviews under this Act are excluded from certain SACAT internal review mechanisms (ss 92(9), 96C, 98C).

The Intervention Orders (Prevention of Abuse) Act 2009 supplies the meaning of "domestic abuse" (s 5(1)) and evidence of an intervention order can satisfy the Commissioner that a complaint on that ground should proceed (s 95A(4)(a)). The Conversion Practices Prohibition Act 2024 supplies the definition for s 86A and triggers mandatory referral of health-practitioner complaints (s 93(5)–(6)).

The Dog and Cat Management Act 1995 is referenced for accredited assistance dogs (s 5(1)). The Assisted Reproductive Treatment Act 1988 interacts with the definition of services (s 5(2)–(2a)) and conscientious objection. The Relationships Register Act 2016 supplies the meaning of registered relationship (s 5(1)).

Federal laws operate concurrently in some areas. The Act does not exclude the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth) or Disability Discrimination Act 1992 (Cth), but South Australian complainants generally use the state system for its conciliation focus and lower cost. Insurance and superannuation exemptions align with federal actuarial standards.

Parliamentary privilege, judicial independence and proceedings before courts or committees are protected (ss 5(1) definitions of "parliamentary proceedings" and "judicial officer", s 94(7), s 87(6b)–(6d), s 93AA). Legal professional privilege and the privilege against self-incrimination are expressly preserved (s 94(4)).

Charitable instruments and testamentary dispositions are largely insulated (ss 45, 64, 80, 85N, 85O, 85ZI). Awards and enterprise agreements under federal or state industrial law may authorise otherwise discriminatory conduct in limited circumstances (s 85F(4)).

The legislative history reveals incremental but substantial expansion. The original 1984 Act addressed sex, race and disability. The Equal Opportunity (Miscellaneous) Amendment Act 2009 (No 34) was the most significant single overhaul: it inserted Part 5A (age), Part 5B (other grounds including pregnancy, caring responsibilities and marital status), modernised definitions, expanded sexual harassment provisions, introduced vicarious liability defences based on policy implementation, added assistance-animal protections, and aligned procedures with the new SACAT framework. These changes responded to evolving community standards, Commonwealth harmonisation pressures, and gaps exposed by complaints involving carers, pregnant workers and older employees.

The Statutes Amendment (Gender Identity and Equity) Act 2016 (No 35) replaced "sexuality" and "chosen gender" with "sexual orientation", "gender identity" and "intersex status", amended criteria in s 29, and adjusted exemptions for associations, religious bodies and educational institutions. This brought South Australia into closer alignment with Commonwealth and other state legislation following the 2013 federal reforms.

The Equal Opportunity (Domestic Abuse) Amendment Act 2023 (No 18) inserted protections against discrimination on the ground of being or having been subjected to domestic abuse throughout Part 5B, amended complaint-decline criteria (s 95A), and updated definitions. The measure recognised that victims often face secondary discrimination in employment, housing and services, and that evidentiary thresholds were required to prevent misuse.

The Conversion Practices Prohibition Act 2024 (No 39) inserted s 86A, applying the Commissioner’s functions to conversion practices and requiring health-practitioner complaints to be referred to national health regulators. Commencing 1 April 2025, this reflects a policy decision that attempts to change a person’s sexual orientation or gender identity are inherently harmful and should be unlawful.

The Statutes Amendment (South Australian Employment Tribunal) Act 2024 adjusted referral pathways between the Tribunal and SAET for employment and harassment matters (amendments to s 95B). Earlier amendments in 2016–2019 transferred jurisdiction from the former Equal Opportunity Tribunal to SACAT and then fine-tuned the relationship with SAET.

These changes illustrate a legislative trend toward broader protected attributes, stronger procedural safeguards for vulnerable complainants, clearer interaction with specialist tribunals, and alignment with national human-rights norms, while preserving core exemptions for religion, sport and insurance.

The source text does not record specific judicial decisions; however, several structural features have generated ongoing debate and litigation risk. Religious exemptions in ss 50, 85ZM and 34(3) permit religious educational institutions and bodies to discriminate on grounds of sexual orientation, gender identity or marital status where founded on religious precepts and a written policy is maintained and disseminated. These provisions have been controversial, with critics arguing they licence discrimination against LGBTIQ+ staff and students, while religious organisations contend they are necessary to preserve doctrinal integrity. Amendments in 2009 and 2016 tightened the conditions (written policy, dissemination to all stakeholders) but did not remove the exemption, reflecting a legislative compromise.

The "unjustifiable hardship" defence in disability cases (s 84) requires the Tribunal to weigh financial circumstances, the nature of the benefit or detriment, and the effect of the disability. This inherently fact-specific test has produced disputes over building modifications, auxiliary aids and adjustments to work or education. The Act’s requirement that regard be had to all relevant circumstances (s 84(2)) mirrors the federal Disability Discrimination Act but leaves substantial discretion.

Sexual harassment provisions, especially those applying to judicial officers, MPs and councillors (s 87(6a)–(6e)), were inserted after high-profile scandals. The separate complaint pathway in s 93AA, which routes such complaints first to the Chief Justice or presiding officers and protects judicial independence and parliamentary privilege, has been criticised as lacking transparency. The 2020 amendments (Equal Opportunity (Parliament and Courts) Amendment Act 2020) expanded coverage to other MPs and staff but preserved the privilege carve-out.

The introduction of domestic-abuse protections in 2023 required the Commissioner to decline complaints lacking "sufficient evidence" (s 95A(1)(d)), defined to include intervention orders, assistance from health practitioners or charitable organisations, or other evidence satisfying the Commissioner (s 95A(4)). This gatekeeping mechanism was inserted to prevent vexatious claims but may operate to exclude victims who have not yet sought formal assistance.

Conversion practices (s 86A) are likely to generate controversy once fully operational. The cross-reference to the 2024 Act, the mandatory referral for health practitioners, and the extension of the Commissioner’s educative functions indicate legislative intent to treat such practices as a form of harm analogous to discrimination. Constitutional questions around freedom of religion may arise, although the Act’s religious exemptions do not extend to conversion practices.

The interaction between this Act and industrial law (s 100) has produced procedural disputes. Once an unfair-dismissal claim is determined on the merits, a subsequent discrimination claim is barred unless the ground is unrelated. The Commissioner’s power to make submissions in SAET proceedings (s 100(6)) has been used to ensure discrimination issues are ventilated even in industrial forums.

Finally, the breadth of the definition of "disability" (s 5(1)), which includes organisms capable of causing disease, learning disorders, disturbed behaviour and imputed future disabilities, has been criticised as overly expansive, potentially capturing transient conditions or mere perceptions. Courts must apply the unfavourable-treatment test in s 6(3) and the reasonableness qualifiers in s 66(b) and (d).

Most practitioners are surprised by the breadth of vicarious liability. Section 91(3) makes clear that a well-drafted, communicated, trained and enforced policy can provide a complete defence even if an employee or agent still discriminates. Conversely, many organisations discover too late that a generic "equal opportunity policy" sitting on a server is insufficient; the Tribunal will examine actual implementation, investigation speed and corrective action.

The "substantial reason" test in s 6(2) means that discrimination need not be the sole or dominant reason. If an employer’s decision to dismiss is motivated 60 % by performance and 40 % by the employee’s caring responsibilities, and the latter is a substantial reason, the dismissal is unlawful. Decision-makers rarely document the prohibited ground, yet contemporaneous notes, witness statements and statistical patterns can prove it.

Exemptions for religious educational institutions (s 34(3)) are conditional on a written policy that is given to interviewees, provided free on request to staff, contractors, students, parents and the public. Failure to maintain or disseminate the policy removes the exemption. Many faith-based schools have discovered during complaints that their policy was out of date or not provided to all required parties.

The assistance-animal offence (s 88) is strict: imposing any condition that would result in separation from an accredited assistance dog is both unlawful and criminal, even if the animal is not on the premises at the exact moment of the refusal. The therapeutic-animal provision (s 88A) is weaker; the respondent can prove the refusal was reasonable in all the circumstances.

Complaints involving domestic abuse must clear an evidentiary threshold before the Commissioner will proceed (s 95A(1)(d) and (4)). Practitioners acting for respondents can usefully request particulars of the evidence relied upon; complainants’ advisers must ensure intervention orders or medical or charitable records are available early.

Insurance and superannuation exemptions (ss 49, 78, 85, 85R) require actuarial or statistical data from a reliable source and that the discrimination be reasonable having regard to that data. Insurers sometimes rely on outdated tables; the onus is on the respondent to prove both the reliability of the source and the reasonableness of the decision. The notification obligation in s 89 is absolute: failure to tell the applicant they may request a summary of the data renders the discrimination unlawful even if the underlying actuarial discrimination would have been lawful.

The limitation period is 12 months from the last act in a series (s 93(2)), but the Commissioner’s power to extend time is broad ("good reason" and "just and equitable"). Tribunals have granted extensions years later where the complainant was traumatised or the respondent’s conduct concealed the discrimination.

Finally, the Act’s definition of "services to which this Act applies" now expressly includes assisted reproductive treatment (s 5(2)), but registered objectors under the Assisted Reproductive Treatment Act 1988 may lawfully refuse on the basis of sexual orientation, gender identity or marital status (s 5(2a)). This carve-out is narrow and does not extend to other health services.

Compliance begins with a risk assessment across all protected attributes and all areas of activity. Organisations should map every decision point—recruitment, promotion, discipline, admission, service delivery, tenancy selection, insurance underwriting—against the unfavourable-treatment test in s 6(3) and the specific criteria in ss 29, 51, 66, 85A and 85T.

A documented equal-opportunity policy is essential but not sufficient. The policy must be communicated, training delivered, complaints investigated promptly, and corrective action taken. Section 91(3) treats these steps as evidence of reasonable precautions; failure on any element usually defeats the defence. Regular audits, anonymous staff surveys and exit-interview analysis can identify hidden biases.

For employers, genuine occupational requirements must be carefully defined and documented before advertising or interviewing (ss 34(2), 56(2), 71(2), 85F(2)). Requirements based on strength, stamina or physique in sport are permissible only where relevant to the outcome (s 48(a)). Religious educational institutions must maintain and disseminate an up-to-date written policy on religious grounds for discrimination (s 34(3)).

Service providers must ensure physical and electronic access for persons with disabilities. The unjustifiable-hardship defence (s 84) is available but requires evidence of financial impact, the benefit or detriment to all parties, and the effect of the disability; blanket refusals rarely succeed. Assistance animals cannot be excluded by house rules (s 88); therapeutic animals attract a reasonableness defence (s 88A(2)).

Insurance and superannuation providers must retain current actuarial data, assess its reliability, and be prepared to supply a summary on request (s 89). Refusals based on generalised assumptions about age or disability will not qualify for exemption.

Educational authorities must have a sexual-harassment policy for students that is readily available (s 87(8)) and must not penalise students for breast-feeding (s 87B), subject only to safety exceptions.

Organisations should train staff on the expanded definitions: "caring responsibilities" includes Aboriginal and Torres Strait Islander kinship obligations (s 5(3)(b)); "disability" includes imputed future conditions and learning differences; "domestic abuse" follows the Intervention Orders Act definition.

Complaint-handling procedures should encourage early reporting, protect against victimisation (s 86), and allow the Commissioner to attempt conciliation without legal representation unless authorised (s 95(6)). Records of counselling or advocacy must not be demanded without consent (s 94(2b)).

Finally, organisations should monitor legislative change. The 2024 conversion-practices prohibition and ongoing adjustments to Tribunal–SAET referral pathways require policy updates. Annual refresher training, scenario testing and legal sign-off on recruitment, marketing and tenancy materials are prudent. Where doubt exists, seeking an exemption under s 92 before implementing a potentially discriminatory practice provides certainty for up to three years.

Compliance is not merely risk avoidance; the Act’s objects include fostering informed and unprejudiced attitudes (s 11(1)). Organisations that embed equality principles into culture, rather than treating the legislation as a compliance checkbox, reduce complaints, improve staff and customer retention, and minimise exposure to compensation orders that can include injury to feelings and are uncapped.