Guide 4 of 5Vic, NSW and three Commonwealth Acts, a selection
Recruitment services · Job ads
Discriminatory job ads: what an ad must not indicate
Victoria’s and New South Wales’s discrimination Acts, and the Commonwealth’s Sex, Age and Disability Discrimination Acts, each make it an offence to publish an ad that indicates an intention to do something the Act makes unlawful. The test in each is what the ad indicates about the conduct to come, judged against that Act’s own rules and exceptions, rather than whether a word such as age or sex appears in it. New South Wales adds one rule about gendered job titles, set out below.
General information, not legal advice. The official places to check are the Australian Human Rights Commission for the Commonwealth Acts, and each state’s legislation register and equal opportunity or anti-discrimination body.
The five advertising offences
This is a selection: other states and territories have their own discrimination Acts, not covered here.
| Act | What the ad must not indicate | Penalty | Defence in the section |
|---|---|---|---|
| Equal Opportunity Act 2010 (Vic), s 182, version 032 from 15 April 2026 | That any person intends to engage in conduct that would contravene a provision of Part 4, 6 or 7 | 60 penalty units for a natural person; 300 for a body corporate | s 183: the accused proves it took reasonable precautions and used due diligence to stop the ad being published or displayed |
| Anti-Discrimination Act 1977 (NSW), s 51, as captured on 24 January 2026 | An intention to do an act that is unlawful under the Act | 50 penalty units for a body corporate; 10 in any other case | s 51(4): the defendant believed on reasonable grounds that publishing the ad was not an offence |
| Sex Discrimination Act 1984 (Cth), s 86, Compilation No. 47 | An intention to do an act made unlawful by a provision of Part II | 10 penalty units | None stated in s 86 |
| Age Discrimination Act 2004 (Cth), s 50, Compilation No. 57 | An intention to do an act that would be unlawful under Part 4 | 10 penalty units; strict liability applies to paragraph (1)(c) | None stated in s 50 |
| Disability Discrimination Act 1992 (Cth), s 44, Compilation No. 40 | An intention by the person publishing it to do an act that is unlawful under Division 1, 2, 2A or 3 | 10 penalty units | None stated in s 44 |
The New South Wales text was read from an archived copy of the state’s legislation site taken on 24 January 2026, so check the current version before relying on it.
“Indicates, or could reasonably be understood as indicating”
The three Commonwealth sections reach an ad that indicates the intention or “could reasonably be understood as indicating” it, and Victoria’s uses almost the same words. So an ad can be caught by how it could reasonably be read, not only by what its writer intended. Victoria’s s 182 also covers a person who authorises the publication or display, and the Commonwealth Age and Disability Acts cover a person who causes or permits it.
“Advertisement” is read widely. The Sex Discrimination Act says it includes “every form of advertisement or notice, whether to the public or not”, in print, on television or radio, on signs and notices, and “in any other way”. The New South Wales Act includes any notice, sign, label or circular, and matter that conveys a message by its form or context even where it is not writing.
New South Wales: a gendered job title
Section 51(3) of the New South Wales Act deals with the words of the job itself. Using a word that, because of its gender, denotes a person of a particular sex, in the description of the job offered, or of the people the offer is made to, or in the heading the ad appears under, is taken to indicate that the job is offered only to people of that sex, unless the ad, classification or heading shows a contrary intention. In New South Wales, then, a gendered title is not neutral by default: the ad must show the contrary intention for the presumption not to apply.
The Act’s exceptions decide what is unlawful
Because each offence turns on an act that would be unlawful, an ad has to be read against the rules that make the act unlawful, including their exceptions. Two examples from the Age Discrimination Act show the shape of it:
- Its employment section does not make it unlawful to discriminate on the ground of age, in deciding who should be offered employment, if the person “is unable to carry out the inherent requirements of the particular employment because of his or her age.”
- Its work provisions do not make it unlawful to discriminate on the ground of age in relation to youth wages, which the Act defines as “remuneration for persons who are under 21.”
The Disability Discrimination Act has an exception for unjustifiable hardship in the same Division as its employment rules, and puts the burden of proving the hardship on the person claiming it. Victoria’s s 182 likewise reaches only conduct that “would contravene” Part 4, 6 or 7. None of this makes every mention of age or sex lawful, and none of it makes every mention unlawful: each ad turns on the Act’s rules for the job it describes.
The recruiter as an employment agency
The Commonwealth Acts also speak to recruiters directly. Under both the Age and Disability Discrimination Acts, it is unlawful for an employment agency to discriminate on the protected ground by refusing to provide its services, in the terms on which it offers them, or in the manner it provides them. Each defines an employment agency as any person or body that, “whether for payment or not”, assists people to find work or employers to find workers.
The Disability Discrimination Act says its Part 2 “does not require an employment agency to ensure that an employer complies with this Act”, but that this leaves s 122 untouched, and s 122 applies where an agency causes or instructs an employer to do an unlawful act, or induces, aids or permits it. The Age Discrimination Act has the same idea in s 56: a person who causes, instructs, induces, aids or permits another to do an act unlawful under Part 4 is taken also to have done it.
The fee side of a recruiter’s work is in the guide to job seeker fees, and South Australia’s licence for employment agents in its own guide.