Need help with discrimination?
Every person deserves to be treated with dignity and respect. When an individual experiences discrimination, a range of reactions may be felt depending on previous life experiences or coping mechanisms that a person has developed over time. At QPP, we have an Advocacy Officer that you can speak to if you believe you have been subjected to HIV-related discrimination.
Discrimination is where a person with a certain characteristic is treated or proposed to be treated less favourably than a person without that characteristic in similar circumstances. Discriminating against someone because of their HIV status is unlawful in Australia. The Commonwealth and State Government’s have enacted anti-discrimination laws to help regulate unlawful discrimination.
Discrimination in Queensland
Discrimination is against the law in Queensland if it takes place because a person is treated less favourably because of the following characteristics:
- Relationship status;
- Parental status;
- Breast feeding;
- Religious belief or religious activity;
- Political belief or activity;
- Trade union activity;
- Lawful sexual activity;
- Gender identity;
- Family responsibilities; and
- Association with/relation to a person who has one of these attributes.
Discrimination can occur in a variety of settings including the workplace, place of education, during the provision of goods and services, superannuation or insurance, disposition of land, accommodation, club membership or affairs and the administration of state laws and programs. Anti-Discrimination Act 1991 breaches are handled by the Anti-Discrimination Commission Queensland (“ADCQ”).
Most importantly for PLHIV, The Anti-Discrimination Act 1991 makes it unlawful to discriminate against a person because of impairment. Impairment covers a broad range of categories including physical, psychiatric, sensory and other intellectual disabilities. The Act also includes impairments related to the presence in the body of organisms capable of causing illness or disease such as hepatitis and HIV.
Discrimination can happen in two forms: direct or indirect.
- Direct Discrimination occurs when a person with a certain characteristic is treated less favourably than a person without that characteristic in the same or similar circumstances.An example would be where you have a hearing impairment and your educational facility says it’s too much trouble to provide your lecture notes in a suitable format.
- Indirect discrimination is where a rule or policy looks like it applies equally to everyone on the surface, but a person with a certain characteristic for some reason or another cannot comply with the rule. An example would be where an employer has a policy of not letting any staff work part time. People with children or family responsibilities could be disadvantaged. If this policy or rule is deemed “not reasonable” it may be indirect discrimination. The Act states that whether a term is reasonable depends on examining all the circumstances including the consequences for people who can’t comply, the cost of alternatives and the financial situation of the person imposing the policy/practice.
There are also other exceptions/defences to discriminatory practices outlined by the Act and can include (but not limited to): workplace health and safety, public health, legal incapacity and equal opportunity measures.
Commonwealth (Federal) Discrimination
The Commonwealth Government has also created anti-discrimination laws, which are administered by Commonwealth Agencies. The most pertinent for PLHIV is the Disability Discrimination Act which is administered by the Human Rights Commission.
Under this act, the definition of ‘disability’ is interpreted broadly to include the presence in the body of disease-causing organisms such as HIV. The Act prohibits discrimination in the provision of goods, services and facilities, accommodation, buying or selling property, membership of clubs, sport and administration of Commonwealth programs. Similar to State laws on discrimination, there are exemptions to discriminatory conduct.
If Commonwealth and State laws apply, you can choose which law you want to lodge your complaint under. You cannot lodge your complaint under both the Commonwealth and State Law. If you start your complaint under the State law you cannot decide later to move your complaint under a Commonwealth law. However, you can start under the Commonwealth law and later decide to move to State law.
Making a complaint
If you wish to submit a complaint, it must be in writing by the person who was directly affected by the behaviour (or an agent) and sent to the appropriate Anti-Discrimination Commission.
There are a few options you can take before submitting a claim including steps to resolve the issue with the organisation or person.
The Anti-Discrimination Commission Queensland provides the following useful steps:
- Tell the person concerned that their behaviour is not acceptable and must stop;
- Get more information before deciding what to do:
- Contact a manager, human resource manager or equity contact officer within the organisation;
- Contact a trade union for advice;
- Seek legal advice; or
- Call the Anti-Discrimination Commission Queensland on 1300 130 670 for more information.
- Make an internal complaint within the organisation;
- Make an external complaint;
- Anti-Discrimination Commission Queensland (ADCQ) on 1300 130 670. We can explain the process to resolve a complaint through conciliation. The Commission complaint resolution service is free;
- Australian Human Rights Commission in Sydney on 1300 369 711; or
- Fair Work Commission on 1300 799 675; or
- If you are complaining about something that happened at work in the public service in Queensland, call the Queensland Industrial Relations Commission on 1300 592 987.
If you are considering making a complaint to the Anti-Discrimination Commission Queensland or the Human Rights Commission, the complaint must be lodged within 1 year of the conduct being complained of. The Commission will only consider complaints outside this timeframe if there are good reasons for doing so.
If you have any questions about peer support or groups, please call our Advocacy Officer toll free from a land-line on 1800 636 241, using the contact form provided or (07) 3013 5555 (nationally).
DISCLAIMER: This guide is NOT intended as a substitute for legal advice. The information contained is for educational purposes only.