2000
2000
2001-07-17
act
publicspecial
act.reprint
allinforce
2001-07-17
act-2001-056
none
act-2000-024
11e3360c-5f45-4f47-ab31-410a236a3b19
dcbd7eea-2d7f-4677-ab23-4073fe002ef2
Note—
The Act was repealed by Sch 4 to the Statute Law (Miscellaneous Provisions) Act 2001
No 56 with effect from 17.7.2001.
An Act to amend the Anti-Discrimination Act 1977 so as to
prohibit discrimination on the ground of a person’s responsibilities as
a carer; and for other purposes.
1Name of
Act
This Act is the Anti-Discrimination Amendment (Carers’
Responsibilities) Act 2000.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Amendment of Anti-Discrimination Act 1977 No
48
The Anti-Discrimination Act 1977 is amended
as set out in Schedule 1.
Schedule 1Amendments
(Section 3)
[1]Part 4B (sections
49S–49ZC)
Insert after section 49R:
Part 4BDiscrimination on the ground
of a person’s responsibilities as a carer
Division 1General
49SMeaning of
“responsibilities as a carer”
(1)
A reference in this Part to a person’s
responsibilities as a carer is a
reference to the person’s responsibilities to care for or
support:
(a)
any child or step-child of the person (whether or
not under the age of 18 years) who is:
(i)
wholly or substantially dependent on the person,
or
(ii)
in need of care or support,
or
(b)
any child or adult who is in need of care or
support and:
(i)
of whom the person is guardian,
or
(ii)
for whom the person has parental responsibility
under a law of the Commonwealth or this State, or
(iii)
in relation to whom the person is an authorised
carer within the meaning of the Children and
Young Persons (Care and Protection) Act 1998,
or
(c)
any immediate family member of the person who is
in need of care or support, being one of the following:
(i)
a spouse or former spouse of the person or of a
spouse or former spouse of the person,
(ii)
a grandchild or step-grandchild of the person or
of a spouse or former spouse of the person,
(iii)
a parent or step-parent of the person or of a
spouse or former spouse of the person,
(iv)
a grandparent or step-grandparent of the person
or of a spouse or former spouse of the person,
(v)
a brother or sister, or step-brother or sister,
of the person or of a spouse or former spouse of the
person.
(2)
A reference in this Part to a person’s
responsibilities is a reference to responsibilities:
(a)
that the person has, or
(b)
that the person is thought to have (whether or
not the person in fact has the responsibilities), or
(c)
that the person had in the past, or is thought to
have had in the past (whether or not the person in fact had the
responsibilities), or
(d)
that the person will have in the future, or that
it is thought a person will have in the future (whether or not the person in
fact will have the responsibilities).
(3)
In this section:
de facto
relationship has the same meaning as in the Property (Relationships) Act
1984.
spouse of a person means:
(a)
the husband or wife of a person,
or
(b)
the other party to a de facto relationship with a
person.
step-child or step-grandchild of a person
means:
(a)
a child or grandchild of the spouse or former
spouse of the person, or
(b)
a step-child or step-grandchild of the spouse or
former spouse of the person (being a child or grandchild of the spouse’s
former spouse).
(4)
A reference in this section to a child,
step-child, grandchild, step-grandchild, parent, step-parent, grandparent,
step-grandparent, brother, sister, step-brother or step-sister of a person or
of a spouse or former spouse of a person:
(a)
includes a reference to persons whose
relationship arises because of adoption, guardianship or fostering or because
of the allocation of parental responsibility under a law of the Commonwealth
or this State, and
(b)
includes a reference to persons whose
relationship arises because of the birth of a child whose parents are not
married to each other and are not parties to a de facto relationship with each
other, and
(c)
in relation a reference to a brother or sister,
includes a reference to a half-brother or
half-sister.
49TWhat constitutes
discrimination on the ground of a person’s responsibilities as a
carer
(1)
A person (the
perpetrator) discriminates against another person (the
aggrieved person) on the ground of the aggrieved
person’s responsibilities as a carer if, on the ground of the aggrieved
person having responsibilities as a carer, the perpetrator:
(a)
treats the aggrieved person less favourably than
in the same circumstances, or in circumstances which are not materially
different, the perpetrator treats or would treat a person who does not have
those responsibilities, or
(b)
requires the aggrieved person to comply with a
requirement or condition with which a substantially higher proportion of
persons who do not have such responsibilities comply or are able to comply,
being a requirement that is not reasonable having regard to the circumstances
of the case and with which the aggrieved person does not or is not able to
comply.
(2)
For the purposes of subsection (1) (a), something
is done on the ground of a person’s responsibilities as a carer if it is
done on the ground of the person having responsibilities as a carer, a
characteristic that appertains generally to persons who have responsibilities
as a carer or a characteristic that is generally imputed to persons who have
responsibilities as a carer.
49UWhat constitutes unjustifiable
hardship
In determining what constitutes unjustifiable
hardship for the purposes of this Part, all relevant circumstances of the
particular case are to be taken into account, including:
(a)
the nature of the benefit or detriment likely to
accrue to or be suffered by any persons concerned, and
(b)
the effect of the relevant responsibilities as a
carer of a person concerned, and
(c)
the financial circumstances of and the estimated
amount of expenditure required to be made by the person claiming unjustifiable
hardship.
Division 2Discrimination in
work
49VDiscrimination against
applicants and employees
(1)
It is unlawful for an employer to discriminate
against a person on the ground of the person’s responsibilities as a
carer:
(a)
in the arrangements the employer makes for the
purpose of determining who should be offered employment,
or
(b)
in determining who should be offered employment,
or
(c)
in the terms on which the employer offers
employment.
(2)
It is unlawful for an employer to discriminate
against an employee on the ground of the employee’s responsibilities as
a carer:
(a)
in the terms or conditions of employment that the
employer affords the employee, or
(b)
by denying the employee access, or limiting the
employee’s access, to opportunities for promotion, transfer or training,
or to any other benefits associated with employment, or
(c)
by dismissing the employee,
or
(d)
by subjecting the employee to any other
detriment.
(3)
Subsections (1) and (2) do not apply to
employment:
(a)
for the purposes of a private household,
or
(b)
if the number of persons employed by the
employer, disregarding any persons employed within the employer’s
private household, does not exceed 5.
(4)
Nothing in subsection (1) (b) or (2) (c) renders
unlawful discrimination by an employer against a person on the ground of the
person’s responsibilities as a carer if taking into account the
person’s past training, qualifications and experience relevant to the
particular employment and, if the person is already employed by the employer,
the person’s performance as an employee, and all other relevant factors
that it is reasonable to take into account, the person because of his or her
responsibilities as a carer:
(a)
would be unable to carry out the inherent
requirements of the particular employment, or
(b)
would, in order to carry out those requirements,
require arrangements that are not required by persons without those
responsibilities as a carer and the making of which would impose an
unjustifiable hardship on the employer.
(5)
For the purposes of subsection (3) (b), a
corporation is regarded as the employer of the employees of any other
corporation which, with respect to the firstmentioned corporation, is a
related body corporate within the meaning of the Corporations Law.
49WDiscrimination against
commission agents
(1)
It is unlawful for a principal to discriminate
against a person on the ground of the person’s responsibilities as a
carer:
(a)
in the arrangements the principal makes for the
purpose of determining who should be engaged as a commission agent,
or
(b)
in determining who should be engaged as a
commission agent, or
(c)
in the terms on which the principal engages the
person as a commission agent.
(2)
It is unlawful for a principal to discriminate
against a commission agent on the ground of his or her responsibilities as a
carer:
(a)
in the terms or conditions that the principal
affords him or her as a commission agent, or
(b)
by denying the commission agent access, or
limiting the commission agent’s access, to opportunities for promotion,
transfer or training, or to any other benefits associated with his or her
position as a commission agent, or
(c)
by terminating the commission agent’s
engagement, or
(d)
by subjecting the commission agent to any other
detriment.
(3)
Nothing in subsection (1) (b) or (2) (c) renders
unlawful discrimination by a principal against a person on the ground of the
person’s responsibilities as a carer if taking into account the
person’s past training, qualifications and experience relevant to
engagement as a commission agent and, if the person is already engaged by the
principal as a commission agent, the person’s performance as a
commission agent, and all other relevant factors that it is reasonable to take
into account, the person because of his or her responsibilities as a
carer:
(a)
would be unable to carry out the inherent
requirements of a commission agent, or
(b)
would, in order to carry out those requirements,
require arrangements that are not required by persons without those
responsibilities as a carer and the making of which would impose an
unjustifiable hardship on the principal.
49XDiscrimination against
contract workers
(1)
It is unlawful for a principal to discriminate
against a contract worker on the ground of his or her responsibilities as a
carer:
(a)
in the terms on which the principal allows the
contract worker to work, or
(b)
by not allowing the contract worker to work or
continue to work, or
(c)
by denying the contract worker access, or
limiting the contract worker’s access, to any benefit associated with
the work in respect of which the contract with his or her employer is made,
or
(d)
by subjecting the contract worker to any other
detriment.
(2)
Nothing in subsection (1) (b) renders unlawful
discrimination by a principal against a contract worker on the ground of the
contract worker’s responsibilities as a carer if taking into account the
contract worker’s past training, qualifications and experience relevant
to working as a contract worker and, if the contract worker is already working
for the principal as a contract worker, the worker’s performance as a
contract worker, and all other relevant factors that it is reasonable to take
into account, the contract worker because of his or her responsibilities as a
carer:
(a)
would be unable to carry out the inherent
requirements of a contract worker, or
(b)
would, in order to carry out those requirements,
require arrangements that are not required by persons without those
responsibilities as a carer and the making of which would impose an
unjustifiable hardship on the principal.
49YPartnerships
(1)
It is unlawful for a firm consisting of 6 or more
partners, or for any one or more of 6 or more persons proposing to form
themselves into a partnership, to discriminate against a person on the ground
of his or her responsibilities as a carer:
(a)
in the arrangements made for the purpose of
determining who should be offered a position as partner in the firm,
or
(b)
in determining who should be offered a position
as partner in the firm, or
(c)
in the terms on which the person is offered a
position as partner in the firm.
(2)
It is unlawful for a firm consisting of 6 or more
partners to discriminate against a partner on the ground of his or her
responsibilities as a carer:
(a)
by denying the partner access, or limiting the
partner’s access, to any benefit arising from membership of the firm,
or
(b)
by expelling the partner from the firm,
or
(c)
by subjecting the partner to any other
detriment.
(3)
Nothing in subsection (1) (b) or (2) (b) renders
unlawful discrimination by one person against another person on the ground of
the person’s responsibilities as a carer if taking into account the
person’s past training, qualifications and experience relevant to the
proposed partnership or the partnership and, if the other person is already a
partner, the other person’s performance as a partner, and all other
relevant factors that it is reasonable to take into account, the other person
because of his or her responsibilities as a carer:
(a)
would be unable to carry out the inherent
requirements of a partner in the proposed partnership or the partnership,
or
(b)
would, in order to carry out those requirements,
require arrangements that are not required by persons without those
responsibilities as a carer and the making of which would impose an
unjustifiable hardship on the other partners.
49ZDiscrimination by local
government councillors
It is unlawful for any member or members of a
council of a local government area when acting (whether alone or together) in
the course of his, her or their official functions to discriminate against
another member of the council on the ground of his or her responsibilities as
a carer.
49ZAIndustrial
organisations
(1)
It is unlawful for an industrial organisation to
discriminate against a person who is not a member of the industrial
organisation on the ground of his or her responsibilities as a carer:
(a)
by refusing or failing to accept the
person’s application for membership, or
(b)
in the terms on which it is prepared to admit the
person to membership.
(2)
It is unlawful for an industrial organisation to
discriminate against a person who is a member of the industrial organisation
on the ground of his or her responsibilities as a carer:
(a)
by denying the person access, or limiting the
person’s access, to any benefit provided by the organisation,
or
(b)
by depriving the person of membership or varying
the terms of the person’s membership, or
(c)
by subjecting the person to any other
detriment.
(3)
Nothing in subsection (2) (a) renders it unlawful
to discriminate against a person on the ground of the person’s
responsibilities as a carer where, because of the person’s
responsibilities as a carer, the person requires the benefit to be provided in
a special manner and the benefit cannot be provided in that manner by the
industrial organisation without unjustifiable hardship to
it.
49ZBQualifying
bodies
(1)
It is unlawful for an authority or a body which
is empowered to confer, renew or extend an authorisation or a qualification
that is needed for or facilitates the practice of a profession, the carrying
on of a trade or the engaging in of an occupation to discriminate against a
person on the ground of his or her responsibilities as a carer:
(a)
by refusing or failing to confer, renew or extend
the authorisation or qualification, or
(b)
in the terms on which it is prepared to confer
the authorisation or qualification or to renew or extend the authorisation or
qualification, or
(c)
by withdrawing the authorisation or qualification
or varying the terms or conditions on which it is
held.
(2)
Nothing in subsection (1) (a) or (c) renders
unlawful discrimination by an authority or body against a person on the ground
of the person’s responsibilities as a carer if taking into
account:
(a)
the person’s past training, qualifications
and experience relevant to the particular profession, trade or occupation,
and
(b)
if the person is already a member of the
profession, carrying on the trade or engaged in the occupation, the
person’s performance in the profession, trade or occupation,
and
(c)
all other relevant factors that it is reasonable
to take into account,
the person because of his or her responsibilities as a
carer would be unable to carry out the inherent requirements of the
profession, trade or occupation.
49ZCEmployment
agencies
(1)
It is unlawful for an employment agency to
discriminate against a person on the ground of his or her responsibilities as
a carer:
(a)
by refusing to provide the person with any of its
services, or
(b)
in the terms on which it offers to provide the
person with any of its services, or
(c)
in the manner in which it provides the person
with any of its services.
(2)
Nothing in this section renders unlawful
discrimination by an employment agency against a person on the ground of the
person’s responsibilities as a carer if, taking into account the
person’s past training, qualifications and experience relevant to the
particular work sought, and all other relevant factors that it is reasonable
to take into account, the person because of his or her responsibilities as a
carer would be unable to carry out the inherent requirements of the work
sought.
[2]Schedule 1 Savings and
transitional provisions
Omit clause 1 (1). Insert instead:
(1)
The regulations may include provisions of a
savings or transitional nature consequent on the enactment of the following
Acts:
Anti-Discrimination (Amendment) Act
1994
Anti-Discrimination Amendment (Carers’
Responsibilities) Act 2000
[3]Schedule 1, clause 1
(2)
Omit “that Act”. Insert instead
“the Act concerned”.
[4]Schedule 1, Part
4
Insert after Part 3:
Part 4Anti-Discrimination Amendment (Carers’
Responsibilities) Act 2000
13Operation of
amendment
(1)
Part 4B does not apply to or in respect of
anything done or omitted to be done before the commencement of Schedule 1 [1]
to the amending Act.
(2)
This Act continues to apply to anything done or
omitted to be done before the commencement of Schedule 1 [1] to the amending
Act as if Part 4B had not been enacted. In particular, the insertion of Part
4B by the amending Act does not affect any complaint lodged on a ground of
unlawful discrimination before the commencement of Schedule 1 [1] to the
amending Act.
(3)
In this clause:
the
amending Act means the Anti-Discrimination Amendment (Carers’
Responsibilities) Act 2000.
Historical
notes
Table of amending
instruments
Anti-Discrimination Amendment (Carers’
Responsibilities) Act 2000 No 24. Assented to 5.6.2000.
Date of commencement, 1.3.2001, sec 2 and GG No 159 of 8.12.2000, p
12777.