Marital or domestic partnership status discrimination occurs where a person is treated unfavourably in public life because they are married or single, divorced, living in a de facto relationship or living with a same-sex partner, or because of characteristics that people of a particular marital status are presumed to have. One example would be refusing to let a flat to a gay couple. Another would be overlooking job applications from single people in the belief that they are not sufficiently settled.
Areas of discrimination on basis of marital or partnership status under SA law
Under the Equal Opportunity Act 1984 (SA) it is illegal to discriminate against a person on the basis of their marital status. Marital status includes:
- being single
- living in a de facto relationship (whether same-sex or opposite sex)
- being separated
- being divorced
- being or having been widowed
Discrimination is prohibited in the following areas:
- disposal of interest in land
- conferral of qualifications
- provision of goods and services
- membership of associations
- Employment not connected with an employer's business
- Accommodation in one's own household
- Special measures intended to achieve equality
- Training and ordination of priests and ministers of religion
- Discrimination against same sex domestic partners in relation to employment in a religious educational institution
- Associations administered in accordance with the precepts of a particular religion
- Accommodation provided by not for profit organisations for persons of a particular marital or domestic partner status
- Ordination and training of priests or ministers of religion
Areas of discrimination on basis of marital or relationship status under Commonwealth law
As with the SA legislation, discrimination on the basis of marital status is prohibited under Commonwealth law. Marital status means the same as in South Australian law.
Discrimination on the basis of marital status is prohibited in the following areas:
- superannuation - exercise of discretion in relation to a payment if a member of a fund prior to 25th June 1993
- qualifying bodies - conferral of qualifications
- provision of goods, services and facilities
- disposal of interest in land
- membership of clubs
- administration of Commonwealth laws and programs
- requests for information
- where person providing the accommodation (or a near relative of theirs) is to reside there with no more than 3 other persons
- where provided by a religious body
- where provided by a charitable or other not for profit organisation solely for persons of a particular marital status
Employment - it is not unlawful to discriminate on the grounds of marital status:
- if the position involves the care of a child or children in the place where they reside and it is intended that the spouse of the person holding the position would also occupy a position as an employee
- where employment is in an educational institution established for religious purposes
- Training, appointment or ordination of priests or ministers of religion
- Voluntary bodies
- Acts done under statutory authority e.g. an order of a Court or tribunal or decision made under an industrial award or agreement
- Superannuation funds
- where the fund conditions include a provision based on marital status as a result of actuarial or statistical data on which it is reasonable to rely
- where the member has no spouse and there is no or less generous provision in the event of the member’s death or incapacity
A complaint about marital or partnership status discrimination at work can also be made to the Fair Work Ombudsman.
Making a complaint
Complaints can be made to the Australian Human Rights Commission or the Equal Opportunity Commission. There is no cost to lodge a complaint in either the Equal Opportunity Commission of South Australia or the Australian Human Rights Commission. For forms and guides on making a complaint see the websites of the Equal Opportunity Commission and the Australian Human Rights Commission.
For complaints relating to discrimination in employment , claims can may made to the Fair Work Commission, see the Employment chapter of the handbook on protected workplace rights: General Protections.
The Australian Human Rights Commissioner may decide not to take any action for complaints on acts committed more than 12 months previously.
The Equal Opportunity Commission requires a complaint to be made within 12 months of the event being complained of, but can grant extensions of time.
General Protections claims relating to dismissal have a 21 day time limit (from the date of notice of dismissal) in the Fair Work Commission.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.