Federal human rights and anti-discrimination legislation

35. Australia's framework for protecting and advancing human rights involves a combination of common law, federal, state and territory legislation, administrative measures, policy and practice, in addition to an independent judiciary.
36. Federal anti-discrimination legislation prohibits direct and indirect discrimination based on protected attributes in key areas of public life, including employment, education, the provision of goods and services, and facilities and accommodation. Federal anti-discrimination legislation regulates public life not the private domain, to balance the rights to equality, non-discrimination and privacy.
37. Federally, Australian anti-discrimination legislation comprises the Sex Discrimination Act, Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) and Age Discrimination Act 2004 (Cth). Australia's anti-discrimination legislation does not prescribe a process for making complaints of intersecting discrimination; however, complainants can be made to the AHRC on multiple grounds of discrimination.
38. The Sex Discrimination Act makes discrimination against women unlawful, giving effect to many of Australia's obligations under CEDAW. The Act prohibits discrimination on the grounds of sex, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, sexual orientation, and gender identity or intersex status. It prohibits discrimination on the grounds of family responsibilities in the area of work, sexual and sex-based harassment and subjecting someone to a hostile work environment, and includes a positive duty on employers to eliminate certain forms of sex discrimination.
39. On 15 March 2023, Australia's Attorney-General referred Australia's Human Rights Framework for inquiry to the federal Parliamentary Joint Committee on Human Rights (PJCHR), with the report tabled in Parliament on 30 May 2024.
    • The PJCHR made 17 recommendations to improve human rights protections in Australia, including that the Australian Parliament enact a federal Human Rights Act, and the Government commit to national human rights education, enhancements to human rights parliamentary scrutiny, and review existing legislation for compatibility with human rights. The Government is considering the Committee's report.

Recognition of the First Nations People in the Constitution

40. In October 2023, the Government held a referendum to recognise the First Peoples of Australia in the Constitution through establishment of an Aboriginal and Torres Strait Islander Voice. The referendum was not successful. The Government respects the outcome of the referendum.
41. Under Closing the Gap, all Australian governments agree to strengthen existing formal partnerships and shared decision-making approaches, including through national policy and place-based partnerships with Indigenous peoples to ensure policies and programs are community-led and self-determined to achieve better outcomes for Indigenous peoples, including women.

Harmonising federal, state and territory legislation

42. Australian state and territory jurisdictions have adopted anti‑discrimination legislation making discrimination unlawful on the basis of protected attributes, including sex and gender identity:
    • ACT: Discrimination Act 1991, Human Rights Act 2004;
    • NSW: Anti-Discrimination Act 1977;
    • NT: Anti-Discrimination Act 1992;
    • QLD: Anti-Discrimination Act 1991, Human Rights Act 2019;
    • SA: Equal Opportunity Act 1984;
    • TAS: Anti-Discrimination Act 1998;
    • VIC: Equal Opportunity Act 2010, Charter of Human Rights and Responsibilities Act 2006;
    • WA: Equal Opportunity Act 1984.
43. Where a state law is inconsistent with a federal law, section 109 of the Australian Constitution provides that Commonwealth law will prevail to the extent of the inconsistency. Similar principles apply to inconsistency between territory and federal laws. These rules apply to inconsistencies between state or territory anti-discrimination legislation and the Sex Discrimination Act. Federal anti-discrimination legislation does not displace or limit the operation of state and territory laws where they are capable of operating concurrently.
44. Australian governments work together to ensure consistency and application of CEDAW, for example:
    • during 2021-2023, the Standing Council of Attorneys‑General (state, territory and federal Attorneys-General) reviewed the consistency of sexual harassment and sex discrimination laws in response to the AHRC's Respect@Work Report. In September 2023, Attorneys-General agreed to continue progressing further legislative alignment to improve consistency across jurisdictions, noting in a federal system changes to state and territory legislation is a matter for individual jurisdictions.¹⁶

Enhancing effectiveness of the Sex Discrimination Act

45. The Government is considering recommendations to enhance the effectiveness of the Sex Discrimination Act, and has made amendments to the Act since the 2008 Senate Standing Committee on Legal and Constitutional Affairs Report.