Contemporary issue: discrimination in the workplace: HSC Legal Studies

What this dot point is asking

Discrimination is one of the four contemporary issues that must be studied in the Workplace option of the Legal Studies Stage 6 Syllabus (2009), alongside safety, termination of employment and leave. You must identify and investigate the issue and evaluate the effectiveness of legal and non-legal responses to it.

It was examined directly in 2023, when Question 31(a) asked "To what extent does workplace law address discrimination?". NESA's feedback rewarded answers that dealt with one type of discrimination per paragraph (for example age, gender or disability), used both federal and state bodies, and unpacked what "address" means: access to remedies, fairness and equality. Sexual harassment is usually treated as part of this issue because the law treats it as a form of sex discrimination.

The answer

Identifying the issue

Discrimination is unlawful when a person is treated less favourably because of a protected attribute in an area of public life such as employment.

• Direct discrimination: refusing to promote a woman because she might become pregnant.
• Indirect discrimination: a requirement that looks neutral but disadvantages a group and is not reasonable, such as requiring all staff to work full-time in the office, which disadvantages carers and people with disability.
• Sexual harassment: unwelcome conduct of a sexual nature that a reasonable person would anticipate would offend, humiliate or intimidate. Sex-based harassment (demeaning conduct because of sex) and a hostile workplace environment on the ground of sex are also prohibited since 2022.
• Victimisation: punishing someone for complaining.

The evidence of the problem:

• Gender pay. WGEA reports a private sector gender pay gap of 21.1 per cent in average total remuneration (2024-25 data); the ABS gap in full-time base earnings was 11.3 per cent in May 2026.
• Complaints. Anti-Discrimination NSW received 1,945 complaints in 2024-25 (up from 1,536), and 721 (37.1 per cent) concerned employment; the most common grounds in employment were disability (21.8 per cent), victimisation (14.7 per cent) and race (14 per cent). Most of its 106 sexual harassment complaints related to the workplace.
• Sexual harassment. The AHRC received a record 759 complaints under the Sex Discrimination Act in 2025-26, up 21 per cent in a year; 460 were sexual harassment complaints and 95 per cent of those related to employment (ABC News, 24 September 2026).
• Other attributes. Older workers, people with disability, First Nations workers and workers from culturally diverse backgrounds face barriers in hiring; pregnant workers and parents face discrimination on return from leave.

Legal responses

1. Federal anti-discrimination law

Four Acts protect workers throughout Australia: the Racial Discrimination Act 1975, Sex Discrimination Act 1984 (sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding and family responsibilities), Disability Discrimination Act 1992 (which requires reasonable adjustments unless they would cause unjustifiable hardship) and Age Discrimination Act 2004. A worker complains to the Australian Human Rights Commission (AHRC), which investigates and conciliates; if the complaint is not resolved, the worker can go to the Federal Court or Federal Circuit and Family Court. The Acts give effect to Australia's international obligations, including ILO Convention No. 111 on discrimination in employment.

2. The Anti-Discrimination Act 1977 (NSW)

It covers grounds including race, sex, pregnancy, breastfeeding, marital or domestic status, disability, carer's responsibilities, homosexuality, transgender status and age, and prohibits sexual harassment and victimisation. Anti-Discrimination NSW conciliates complaints, and unresolved complaints go to NCAT. The Act is nearly 50 years old and does not prohibit discrimination on the ground of religious belief (other than ethno-religious origin), and it contains broad exceptions for religious schools. The NSW Law Reform Commission is reviewing it; its first consultation paper was released on 20 May 2025 and a second, on procedures and compliance, on 24 July 2026; no final report had been released by September 2026.

3. The Fair Work Act 2009 (Cth)

• s 351: an employer must not take adverse action (dismissal, demotion, refusing to hire) because of attributes including race, sex, sexual orientation, gender identity, intersex status, age, disability, marital status, family or carer's responsibilities, pregnancy, breastfeeding, religion, political opinion, national extraction, social origin and, since 2023, subjection to family and domestic violence.
• s 772: an employer must not terminate employment for such reasons.
• s 527D: sexual harassment in connection with work is prohibited (from 6 March 2023); the FWC can make stop orders and, if both parties agree, arbitrate.
• The FWC cannot approve an enterprise agreement containing discriminatory terms, and the pay secrecy ban (s 333B) helps workers detect pay discrimination.

Fair Work claims are attractive because they start at the FWC, which is quick and cheap, and in general protections cases the employer must prove its reason was not discriminatory (a reverse onus).

4. The shift to prevention (2022 to 2026). The Respect@Work report (2020), led by Sex Discrimination Commissioner Kate Jenkins, found that sexual harassment was widespread and that a complaints-based system placed the burden on victims. Its recommendations were implemented through:

• the positive duty (Sex Discrimination Act s 47C, from 12 December 2022): employers must take reasonable and proportionate measures to eliminate sex discrimination and sexual harassment as far as possible;
• AHRC enforcement powers (from 12 December 2023): inquiries, compliance notices, court enforcement and enforceable undertakings;
• costs protection (Australian Human Rights Commission Amendment (Costs Protection) Act 2024, from 2 October 2024): an unsuccessful applicant generally no longer pays the employer's legal costs, while a successful applicant generally recovers theirs;
• gender pay transparency: WGEA has published employer gender pay gaps since 2024, and employers with 500 or more employees must set gender equality targets (Workplace Gender Equality Amendment (Setting Gender Equality Targets) Act 2025, first targets selected in 2026).

Key cases

• Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82. The Full Federal Court increased general damages for sexual harassment from $18,000 to $100,000, holding that damages must reflect current community standards. It began a trend of much higher awards.
• Magar v Khan [2025] FCA 874 (1 August 2025). A worker at a Mad Mex franchise was sexually harassed by the company's sole director in a workplace culture that tolerated sexualised comments. The Federal Court (Bromwich J) found sexual harassment and victimisation, with damages and compensation reported to total $305,000, among the highest awards under the Sex Discrimination Act. It was also the first case to consider sex-based harassment, although that claim was not upheld.
• Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669. The ABC removed journalist Antoinette Lattouf from a five-day fill-in radio shift in December 2023 after she shared a social media post about the war in Gaza. Justice Rangiah held the ABC contravened s 772 by terminating her employment for reasons including her political opinion, and ordered $70,000 compensation; on 24 September 2025 he imposed penalties of $150,000. The case shows the Fair Work Act protecting a casual worker against a powerful employer, and generated national media attention.

Non-legal responses

• Reports and inquiries: Respect@Work (2020) and Set the Standard (2021) on Parliament's workplaces drove law reform.
• The media and social movements: #MeToo and coverage of harassment in politics, law firms and the media changed community expectations.
• Unions bargain for family and domestic violence leave, flexible work and anti-harassment clauses, and represent members in complaints.
• Employer programs: diversity and inclusion policies, training, flexible work, targets and reporting; the positive duty now turns many of these from voluntary into expected practice.
• NGOs and legal centres: Diversity Council Australia, disability advocacy organisations and community legal centres give advice and research.

Evaluating the effectiveness of legal and non-legal responses

Judgement. Workplace law addresses discrimination to a large extent in design and to a moderate extent in practice. Since 2022 it has moved from a purely complaints-based model to one that also requires employers to prevent discrimination and harassment, and it has made complaining safer (costs protection) and pay gaps visible. But the system still relies on individuals, often the least powerful, to complain, and record demand has produced long delays. The NSW Act lags behind federal law while its review continues. Non-legal responses have been decisive in driving reform, but only legal responses deliver remedies.

In one sentence

Workplace discrimination and harassment are addressed by federal and NSW anti-discrimination law and the Fair Work Act, strengthened since 2022 by a positive duty to prevent harassment, AHRC enforcement, costs protection and pay gap transparency, but record complaints, long delays, an outdated NSW Act and a persistent pay gap show the law is more effective in design than in practice.

Try this

Q1. Identify TWO forms of workplace discrimination and give an example of each. (2 marks)

• What the marker wants. For example, direct and indirect discrimination, each with a workplace example.

Q2. Explain the significance of Lattouf v ABC (2025) for workplace law. (5 marks)

• What the marker wants. The facts, the finding under s 772, the compensation and penalty, and what it shows about protection of political opinion and casual workers.

Q3. Assess the effectiveness of the positive duty in preventing workplace sexual harassment. (8 marks)

• What the marker wants. The Respect@Work background, the duty and enforcement powers, evidence (complaints data, delays), and a judgement.