Need to know
- State and federal legislation protects you from discrimination on the basis of many of your attributes
- Exceptions to the rules exist where there is an evidential basis for them
- Disability discrimination is the most common form of discrimination in the provision of goods and services
When making a purchase, have you ever been asked a question that just seemed a little off?
Perhaps an insurer has asked about your weight or whether you have a criminal record, or maybe you have been denied access to a service because of a disability.
In both the physical and online marketplaces there are a range of so-called 'protected attributes', characteristics protected by law that businesses can't discriminate against. These include things like age, sex, gender identity, race or disability.
There are a range of so-called 'protected attributes', characteristics protected by law that businesses can't discriminate against
That's the simple version, but in reality, things are a lot more complicated.
Laws vary from state to state and there are also federal laws and 'exceptions' to laws. Even if you suspect discrimination has occurred it may be difficult to prove and seek recourse.
Discriminating based on other attributes that aren't protected may not be breaching the law, but may be ethically dubious.
Protected attributes
Each state and territory has their own legislation, though they are often similar. There is also federal anti-discrimination legislation which is administered by the Australian Human Rights Commission.
Under state-based anti-discrimination legislation in New South Wales, for example, it is illegal for you to be denied a service or have conditions of a service (like price) determined on the basis of age, disability, homosexuality, marital or domestic status, race, religion, sex (including pregnancy and breastfeeding) or transgender status.
In Victoria, the list of protected attributes is more expansive and includes things like profession or occupation and spent criminal convictions. In Queensland, trade union activity and political beliefs are also listed as protected attributes.
Exceptions to the rules
Despite these protections existing in law, there are times when companies may be legally allowed to discriminate against you, even on protected attributes.
Under federal legislation that could be when there is factual evidence that supports the discrimination or it is determined to be "reasonable in the circumstances".
Aimee Cooper, head of legal at the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) says when a company seeks to rely on an exemption, also known as an exception, the burden of proof that the discrimination is reasonable rests with the company.
"For insurers, for example, they must prove that discrimination is based on reasonable statistical data and it's reasonable to discriminate or if there's no data available and they can't obtain the data, then it's just reasonable having regard to relevant factors," she says.
When a company seeks to rely on an exemption, also known as an exception, the burden of proof that the discrimination is reasonable rests with the company
While state-based anti-discrimination legislation may be of use, there are few remedies under the federal Australian Consumer Law.
"There are no prohibitions in the Australian Consumer Law regarding differentiation of pricing or supply terms based on people's specific characteristics or attributes," a spokesperson from the Australian Competition and Consumer Commission (ACCC) says.
"However, under the Australian Consumer Law businesses must not mislead about their prices, including the reasons for any price differentiation between customers."
The most common forms of discrimination
Reports show that at both the federal level, but also in NSW and Victoria, disability discrimination is the most common form of discrimination reported.
For the 2022–23 financial year, the Australian Human Rights Commission reported that disability discrimination made up 21% of enquiries, with sex and race following further behind at nine percent each.
Disability discrimination is the most common form of discrimination reported
In Victoria, VEOHRC says for goods and services complaints, community services including local government services were the most complained about sector, along with hotels, restaurants and clubs, retail, health, construction/transport and recreation and entertainment.
In NSW, the most common sectors of the economy subject to complaints were health, transport, recreation/entertainment, wholesale and retail, hotels and restaurants, community services and prisons.
Discrimination in insurance
Some forms of 'discrimination' are particularly common in the insurance industry, like drivers under the age of 25 being charged more for car insurance.
Jodi Bird, CHOICE's money and travel manager, says while insurers claim this and other forms of discrimination are based on 'reasonable data', there is an inadequacy in who has access to that information.
"Consumers don't have access to the data being used against them unless they take the insurer to court. Insurers cite commercial sensitivity as a reason for hiding this information from the people affected, and the public more broadly. This lack of transparency means we have no way of knowing whether insurers are discriminating lawfully, or systematically breaking the law," Bird says.
Consumers don't have access to the data being used against them unless they take the insurer to court
CHOICE insurance expert Jodi Bird
"If they're going to be allowed the social license to discriminate, then they should be compelled to disclose the evidence of this risk to affected consumers. Insurers should also have to disclose the data to regulatory authorities on a regular basis, to ensure they are using accurate and up-to-date data. People affected should also have a clear path to appeal declined insurance cover and claims to the Australian Financial Complaints Authority," he adds.
Mental health is another area where some insurers have been found to systematically discriminate against customers in products such as life insurance and travel insurance.
What to do if you believe you've been discriminated against
If you believe you have been the subject of unlawful discrimination by a business you should complain to your state or territory anti-discrimination body, or the Australian Human Rights Commission.
The body that receives your complaint will assess its legitimacy and may ask you to provide details or proof of the interaction between you and the company.
Cooper says these bodies will then facilitate dispute resolution between you and the business. These resolutions may entail apologies or acknowledgements, changes in policies or practices, further staff training or financial compensation.
In Victoria over the last two financial years 65% of complaints that attempted conciliation were settled during that process.
If conciliation fails, cases can be heard at the Victorian Civil and Administrative Tribunal or equivalent bodies in other jurisdictions.
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