Human Rights Commission Act 2005

This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—

treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or

imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination).

It is a rebuttable presumption that discrimination has occurred if the complainant—

establishes that—

for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and

for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and

presents evidence that would enable the ACAT to decide, in the absence of any other explanation—

for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or

for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.

The presumption under subsection (2) is rebutted if the respondent establishes that—

for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or

for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.

The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).

In this section: