What laws apply to disability discrimination?

It is best to get legal advice in deciding which law you will use to address discrimination.

Most of the time the Equal Opportunity Act 2010 (Victoria) and the Disability Discrimination Act 1992 (Commonwealth) will apply to your complaint and you can choose between them. There are some cases where it is compulsory to use a particular Act.

Here is a guide for action in Victoria:

You must use the Disability Discrimination Act 1992 if you have a:

  • complaint about discrimination by a club
  • complaint about an owner’s corporation
  • complaint against Commonwealth agencies
  • complaint that involves other Commonwealth laws or international treaties
  • complaint against an employer who is not in Victoria and the discrimination happened during your employment outside Victoria.

These complaints should be lodged with the Australian Human Rights Commission (AHRC).

You must use the Equal Opportunity Act 2010 if you have a:

  • complaint against a Victorian government employer.

These complaints should be lodged with the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), or the Victorian Civil and Administrative Tribunal (VCAT).

Where your complaint of discrimination is about what happened at work or what your employer did or failed to do, you can choose to make your complaint under the:

  • Equal Opportunity Act 2010 – if your employment is in Victoria
  • Disability Discrimination Act 1992 – if your employment is outside Victoria or your employer is a Commonwealth organisation, or
  • Fair Work Act 2009 – in any other case, provided you are not a contractor.

Complaints under the Fair Work Act 2009 should be lodged with the Australian Fairwork Commission (AFC).

Changing your mind about which law to take action under may mean loss of time and money so it helps to think about this carefully before you make your complaint.

Also if your complaint under the Equal Opportunity Act 2010 is accepted by the Victorian Equal Opportunity and Human Rights Commission or the Victorian Civil and Administration Tribunal (VCAT), you are not able to transfer your case, or make the same complaint, under the Disability Discrimination Act 1992.

However, if you started a complaint under the Disability Discrimination Act 1992, you can stop and continue it under the Equal Opportunity Act 2010.

Generally speaking (but there are exceptions) VCAT is a not a cost associated jurisdiction, so you will not have to pay the other side’s legal costs if your complaint goes to a hearing and you lose.

However if your complaint cannot be settled at the Australian Human Rights Commission and goes on to the Federal Court, costs will be automatically awarded against the losing party at the end of a trial.

Make sure you think carefully about this and discuss any risks with a lawyer.

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