Human rights are basic entitlements that belong to every one of us.
Victoria's Charter of Human Rights and Responsibilities Act 2006 (the Charter) was enacted through Parliament and it outlines the human rights of all people in Victoria.
The Charter requires that state government departments, local councils and other public authorities (such as police, public transport operators and government schools) comply. They also need to consider relevant human rights when they make decisions.
There are 20 human rights that are protected in the Charter, one of which acknowledges that Aboriginal people hold distinct cultural rights. This is section 19 which says Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community:
(a) to enjoy their identity and culture
(b) to maintain and use their language
(c) to maintain their kinship ties
(d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.
What is discrimination and vilification?
Discrimination is treating someone unfairly because of a personal characteristic (attribute) protected under the law. This also applies where there is a threat to treat someone unfairly.
Discrimination can also happen if an unreasonable policy or practice is applied which can or does disadvantage a person because of a personal characteristic (attribute). It can also happen if the policy or practice is proposed. It doesn't have to have been put into account.
Under the Victorian Equal Opportunity Act 2010 it is against the law to discriminate against someone because of their race, colour, descent, nationality, ancestry or ethnic background.
Direct discrimination happens when someone is treated unfavourably because of a personal characteristic protected by the law. It can also happen where there is a threat to treat someone unfavourably because of a personal characteristic protected by the law. It can be more than one characteristic eg. race and age or race and sexual orientation.
Luke and his girlfriend Ciara are Aboriginal Victorians who decided to go out to a restaurant for dinner. After sitting outside and waiting for 30 minutes to be served, Luke goes inside to grab a menu when the waiter tells him that he isn't going to serve 'his kind', so he may as well leave.
This is an example of direct racial discrimination.
Indirect discrimination occurs when an unreasonable requirement, condition or practice is imposed on a person or group that disadvantages them because of a protected characteristic. Indirect discrimination can also occur if the measure is proposed and if the disadvantage is likely to disadvantage the person – it does not have to have happened yet.
Leanne has recently arrived in Melbourne from Central Australia. After looking for months, she finally gets a job. While on her lunch break, a family member calls her and they have a conversation in Leanne's first language. Her manager overhears and tells her that when she is at work she must speak English because it makes other people around her nervous.
This is an example of indirect racial discrimination.
Under the Racial and Religious Tolerance Act 2001, vilification is behaviour that encourages others to hate, have serious contempt for, or feel revulsion or severe ridicule of a person or group of people because of their race or religion.
Some behaviour may not be vilification if it is reasonable and done in good faith eg. Artistic works, news reporting.
It is also against the law to victimise a person for making a complaint about discrimination or racial and religious vilification.
Sexual harassment is sexual behaviour that is unwelcome, and could make a person feel insulted, humiliated or threatened. The offending behaviour can be physical, verbal or written.
Sexual harassment is against the law and while the person who sexually harasses someone else is responsible for their behaviour, employers can also be held accountable for acts of sexual harassment in their workplace.
Positive duty requires all organisations covered by the law to take reasonable measures to remove discrimination, sexual harassment and victimisation as far as possible.
Its aim is to prevent discrimination from happening in the first place, rather than responding after a complaint has been made.
What are my rights at work?
Workplace rights and responsibilities are set out in the Equal Opportunity Act 2010, health and safety laws, and a range of federal laws. Employers can be held responsible for workplace incidents of discrimination, bullying, sexual harassment and victimisation.
Bullying and harassment can be verbal, physical or in writing, and includes behaviour that threatens, puts down or humiliates another person. It can also be discrimination when it happens because of any characteristic (attribute) that is protected under the Equal Opportunity Act.
Toolkits and Training
The Commission offers workshops, training and consultancy to help employers develop strategies to promote equal opportunity in the workplace.
We also have a suite of free online tools to help employers understand the Equal Opportunity Act 2010.
What are special measures?
Under the Equal Opportunity Act 2010 people and organisations can take positive steps to promote or realise substantive equality for members of groups with a particular characteristic (attribute). These are called ‘special measures’ under the Act.
This means that it is not unlawful discrimination to take a special measure that promotes substantive equality for a group of people who have one (or more) protected characteristics, such as race, sex or disability.
What is a special measure?
Section 12 of the Equal Opportunity Act 2010 sets out the rules and relevant criteria for special measures. A person seeking to establish a special measure to promote a group of people should consider the steps they propose to take against the criteria in section 12.
Special measures have some essential criteria. They must:
- be undertaken in good faith to help promote or achieve substantive equality for members of the group
- be reasonably likely to achieve this purpose
- be a proportionate way of achieving the purpose, and
- be justified because the members of the group have a particular need for advancement or assistance.
Where an organisation is taking action to address inequality for Aboriginal people within their organisation, or in the services they provide, that action is likely to be considered a special measure.
Do I need to make an application for a special measure?
No. You do not need to apply or get approval from the Victorian Civil and Administrative Tribunal (VCAT) for a special measure like you do for an exemption from the Equal Opportunity Act. This is because the Act says that special measures are not unlawful discrimination.
But you will need to consider whether the proposed actions meet the test for a special measure and whether everything you propose to do falls within this test. You may need some advice to help you look at this.
If a discrimination complaint is made about your measure you will need to be prepared to give good reasons to explain how and why what you’re doing is a special measure.
If what you propose to do is not a special measure you may need to reconsider your approach or apply for an exemption.
VCAT has made a number of decisions about exemption applications under the Act that help to illustrate what a special measure is.
In each of the following cases, VCAT was satisfied that the proposed conduct would meet the criteria in section 12 that the measures be undertaken in good faith and that it was reasonably likely to achieve the various remedial purposes. This meant that there was no need for an exemption and the applications were dismissed.
These examples recognise the reality that not all groups have the same access to opportunity in employment. Factors including poverty, geographic isolation, a lack of skills and historic discrimination have disadvantaged particular groups. These groups will often include Aboriginal people, people with disability, people from culturally and linguistically diverse communities and, in some circumstances, women.
Parks Victoria wanted to advertise for and employ Aboriginal people to care for Wurundjeri country. VCAT found that the purpose of the activity was to:
- provide employment opportunities to Aboriginal people
- increase the number of Aboriginal people employed by Parks Victoria
- provide opportunities for connection and care for the Wurundjeri country by its traditional custodians
- maintain the culture associated with the country.
VCAT was satisfied that the measure was proportionate because at the time the application was made, only 7.6 per cent of Parks Victoria’s workforce was Aboriginal.
Read more about the Parks Victoria case study.
Cummeragunja Housing and Development Aboriginal Corporation
Cummeragunja wanted to advertise for and employ Aboriginal people in the positions of mental health worker, Aboriginal health worker, trainee Aboriginal health worker and administration trainee.
VCAT found that the purpose of the activity was to:
- provide employment opportunities for Aboriginal applicants
- provide health services to local Aboriginal people in a manner that is culturally appropriate.
At the time of making the application there were almost equal numbers of Aboriginal and non-Aboriginal staff employed at Cummeragunja, while 95 per cent of people using the services were Aboriginal. These statistics satisfied VCAT that the measures were proportionate.
Read more about the Cummeragunja Housing and Development Aboriginal Corporation case study.
The Ian Potter Museum of Art
The museum wanted to advertise for and employ an Aboriginal person in the role of Vizard Foundation assistant curator.
VCAT found that the purpose of the activity was to increase the number of Aboriginal people employed by the museum. It held that the measure was proportionate, as the number of Aboriginal staff was dramatically lower than the number of Aboriginal people in the wider population.
Read more about the Ian Potter Museum of Art case study.