3 What does the law say? This section provides a brief overview of the Australia’s federal anti-discrimination legislation, which is contained in: a) b) c) d) Age Discrimination Act 2004 (Cth) (ADA) Disability Discrimination Act 1992 (Cth) (DDA) Racial Discrimination Act 1975 (Cth) (RDA) Sex Discrimination Act 1984 (Cth) (SDA) (together, the Discrimination Acts). In addition to the Discrimination Acts, insurers also have obligations under state and territory antidiscrimination legislation (see section 3.5).4 3.1 What is discrimination? Under the Discrimination Acts, discrimination includes both direct and indirect discrimination on the basis of certain personal characteristics, known as protected attributes. (a) Protected attributes The Discrimination Acts respectively make it unlawful to discriminate against persons because of the following protected attributes: a) ADA: age5 b) DDA: disability6 c) RDA: race, colour, descent, national or ethnic origin, or immigrant status7 d) SDA: sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, or family responsibilities.8 (b) Direct discrimination Direct discrimination involves treating a person less favourably than another person because of a protected attribute in circumstances that are the same or not materially different.9 For example, refusing to insure someone because they have a disability would be direct discrimination. In simple terms, the question for insurers will usually be: did the insurer treat a customer with a protected attribute less favourably than a customer without a protected attribute because of that protected attribute? Whilst a customer claiming discrimination must show that the less favourable treatment was because of the protected attribute, they do not have to show that the insurer had an intention or motive to discriminate. Where the customer’s treatment may be due to two or more reasons (including the protected attribute), then it is taken to be done by reason of the protected attribute (regardless of whether that was the dominant or substantial reason).10 (c) Indirect discrimination Indirect discrimination occurs when a term, condition, requirement, or practice (for simplicity, we will subsequently refer only to a ‘requirement’), that applies to everyone disadvantages people with a protected attribute, and the requirement is not reasonable in the circumstances.11 However, there are exemptions in some of the Discrimination Acts which provide that discrimination by insurers may be lawful in certain circumstances (see section 3.3). Guidance Resource: Artificial intelligence and discrimination in insurance pricing and underwriting • 2022 • 11