An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Anti-Discrimination Act 1977.
2 Commencement
(1) This section and section 1 shall commence on the date of assent to this Act.(2) Except as provided in subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
3 (Repealed)
s 3: Am 1980 No 67, sec 2 (a); 1981 No 15, Schs 1 (1), 2 (1), 4 (1), 5 (1); 1982 No 142, Schs 1 (1), 2 (1), 3 (1). Rep 1985 No 112, Sch 1 (1).
4 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:accommodation includes residential or business accommodation.associate of a person means:(a) any person with whom the person associates, whether socially or in business or commerce, or otherwise, and(b) any person who is wholly or mainly dependent on, or a member of the household of, the person.Board means the Anti-Discrimination Board constituted under this Act.commission agent means an agent who is remunerated by commission.contract worker means an employee who, under a contract of employment performs work for an employer who has undertaken to perform that work for another person.corporation has the same meaning as in the Corporations Act 2001 of the Commonwealth.council means a council or a county council within the meaning of the Local Government Act 1993.Department and Department Head have the same meanings as they have in the Public Sector Management Act 1988.Director means the Director of Equal Opportunity in Public Employment.disability means:(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or(c) the malfunction, malformation or disfigurement of a part of a person’s body, or(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.means a person or body administering a school, college, university or other institution at which education or training is provided.employment includes work under a contract for services.employment agency means a person who, for profit or not, provides services for the purpose of finding work or employment for others or for supplying employers with workers or employees.functions includes powers, authorities and duties.homosexual means male or female homosexual.industrial organisation means an industrial organisation within the meaning of the Industrial Relations Act 1996 or an organisation registered under the Industrial Relations Act 1988 of the Commonwealth.inquiry, in relation to the Tribunal, means an inquiry held under section 96.marital status means the status or condition of being:(a) single,(b) married,(c) married but living separately and apart from one’s spouse,(d) divorced,(e) widowed, or(f) in cohabitation, otherwise than in marriage, with a person of the opposite sex.near relative, in relation to a person, means the spouse, parent, child, grandparent, grandchild, brother or sister of the person.President means the President of the Board.principal means:(a) in relation to a commission agent, a person for whom work is done by that commission agent, or(b) in relation to a contract worker, a person for whom a contract worker performs work otherwise than under a contract of employment.means a person or body administering a school, college, university or other institution at which education or training is provided, not being:(a) a school, college, university or other institution established under the Education Reform Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or(b) an agricultural college administered by the Minister for Agriculture.race includes colour, nationality, descent and ethnic, ethno-religious or national origin.recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.registered club has the same meaning as in the Registered Clubs Act 1976.Registrar means the Registrar of the Tribunal.regulation means a regulation made under this Act.relative of a person means any person to whom the person is related by blood, marriage, affinity or adoption.services includes:(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,(b) services relating to entertainment, recreation or refreshment,(c) services relating to transport or travel,(d) services of any profession or trade,(e) services provided by a council or public authority,(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.Tribunal means the Administrative Decisions Tribunal established by the Administrative Decisions Tribunal Act 1997.vehicle includes a ship, an aircraft and a hovercraft.(2) A reference in this Act to the exercise of a function includes, where that function is a duty, a reference to the performance of that duty.(3) For the purposes of this Act, the fact that a race may comprise two or more distinct races does not prevent it from being a race.(4) A reference in this Act to the conferring, renewing or extending of an authorisation or a qualification, in relation to 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, includes a reference to the conferring, renewing, extending, granting, awarding, approving, issuing or accepting of a recognition, registration, enrolment, approval or certification by such an authority or such a body or to the admission of a person to membership of such an authority or such a body.(5)–(7) (Repealed)s 4: Am 1980 No 67, sec 2 (b); 1981 No 15, Schs 1 (2), 2 (2) (20), 4 (2), 5 (2); 1981 No 123, Sch 8; 1982 No 142, Schs 1 (2), 3 (2), 4 (1); 1987 No 63, Sch 2; 1989 No 130, Sch 1; 1990 No 118, Sch 3; 1994 No 28, Schs 1 (1), 3 (1), 4 (2), 5 (1); 1995 No 11, Sch 1.3 [1]; 1996 No 17, Sch 5.1; 1996 No 22, Sch 1 [1]; 1997 No 9, Sch 1 [1]–[6]; 1997 No 77, Sch 2.1 [1]; 2001 No 34, Sch 4.2 [1].
4A Act done because of unlawful discrimination and for other reasons
If:(a) an act is done for 2 or more reasons, andthen, for the purposes of this Act, the act is taken to be done for that reason.(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),s 4A: Ins 1994 No 28, Sch 4 (3).
4B Interpretation of references to the employer of people in the Public Service, Police Service or Education Teaching Service
(1) A reference in this Act to an employer:(a) in relation to employment in a Department, is a reference to the relevant Department Head, and(b) in relation to employment in the Police Service, is a reference to the Commissioner of Police, and(c) in relation to employment in the Education Teaching Service, is a reference to the Director-General of the Department of School Education.(2) Anything determined or done with respect to any matter concerning any such employment by an officer or employee in any Department, in the Police Service or in the Education Teaching Service who is authorised to determine and do things in that respect is taken to have been determined or done by the Department Head, Commissioner of Police or Director-General of the Department of School Education, respectively.(3) Subsection (2) includes anything determined or done with respect to:(a) any offer of employment, or(b) the terms and conditions on which employment is offered, or(c) the opportunity afforded for promotion, transfer, training or other benefits associated with employment, or(d) dismissal from employment.s 4B: Ins 1997 No 9, Sch 1 [7].
5 Act binds Crown
This Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.
Part 2 Racial discrimination
Division 1 General
6 (Repealed)
s 6: Rep 1981 No 15, Sch 5 (3).
7 What constitutes discrimination on the ground of race
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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 of a different race or who has such a relative or associate of a different race, or(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which 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) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.s 7: Am 1981 No 15, Sch 5 (4). Subst 1994 No 28, Sch 4 (4).
Division 2 Discrimination in work
8 Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of race:(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,(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 race:(a) in the terms or conditions of employment which the employer affords the employee,(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 subjecting the employee to any other detriment.(3) Subsections (1) and (2) do not apply to employment for the purposes of a private household.s 8: Am 1994 No 28, Schs 4 (5), 5 (2) (3) (5).
9 Discrimination against commission agents
(1) It is unlawful for a principal to discriminate against a person on the ground of race:(a) in the arrangements the principal makes for the purpose of determining who should be engaged as a commission agent,(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 race:(a) in the terms or conditions which the principal affords him or her as a commission agent,(b) by denying him or her access, or limiting his or her 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 his or her engagement or subjecting him or her to any other detriment.s 9: Am 1994 No 28, Schs 4 (5), 5 (6)–(9).
10 Discrimination against contract workers
It is unlawful for a principal to discriminate against a contract worker on the ground of race:(a) in the terms on which the principal allows him or her to work,(b) by not allowing him or her to work or continue to work,(c) by denying him or her access, or limiting his or her 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 him or her to any other detriment.s 10: Am 1994 No 28, Schs 4 (5), 5 (6) (8) (9).
10A Partnerships
(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 race:(a) in the arrangements made for the purpose of determining who should be offered a position as partner in the firm,(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 race:(a) by denying the partner access, or limiting the partner’s access, to any benefit arising from membership of the firm,(b) by expelling the partner from the firm, or(c) by subjecting the partner to any other detriment.s 10A: Ins 1981 No 15, Sch 5 (5). Am 1994 No 28, Schs 4 (5), 5 (10)–(13).
10B Discrimination 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 race.s 10B: Ins 1994 No 28, Sch 4 (6).
11 Industrial 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 race:(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 race:(a) by denying the person access, or limiting the person’s access, to any benefit provided by the industrial organisation,(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.s 11: Am 1994 No 28, Schs 4 (5), 5 (4) (7).
12 Qualifying bodies
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 race:(a) by refusing or failing to confer, renew or extend the authorisation or qualification,(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 upon which it is held.s 12: Am 1981 No 15, Sch 5 (6); 1994 No 28, Sch 4 (5).
13 Employment agencies
It is unlawful for an employment agency to discriminate against a person on the ground of race:(a) by refusing to provide the person with any of its services,(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.s 13: Am 1981 No 15, Sch 5 (7); 1994 No 28, Schs 4 (5), 5 (7).
14 Exception—genuine occupational qualification
Nothing in this Division applies to or in respect of any work or employment where that work or employment involves any one or more of the following:(a) participation in a dramatic performance or other entertainment in a capacity for which a person of a particular race is required for reasons of authenticity,(b) participation as an artist’s or photographic model in the production of a work of art, visual image or sequence of visual images for which a person of a particular race is required for reasons of authenticity,(c) working in a place where food or drink is, for payment or not, provided to and consumed by persons in circumstances in which a person of a particular race is required for reasons of authenticity, or(d) providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race.
15 Exception—employment intended to provide training in skills to be exercised outside New South Wales
Nothing in this Division applies to or in respect of anything done by an employer in or in connection with the employment in New South Wales of a person not ordinarily resident in New South Wales where that employment is intended to provide the person with training in skills to be exercised by the person wholly outside New South Wales.s 15: Am 1994 No 28, Sch 5 (7).
16 Exception—employment on ship or aircraft
Nothing in this Division applies to or in respect of the employment of a person on a ship or an aircraft in New South Wales if that person was engaged for that employment outside New South Wales.
Division 3 Discrimination in other areas
17 Education
(1) It is unlawful for an educational authority to discriminate against a person on the ground of race:(a) by refusing or failing to accept the person’s application for admission as a student, or(b) in the terms on which it is prepared to admit the person as a student.(2) It is unlawful for an educational authority to discriminate against a student on the ground of race:(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or(b) by expelling the student or subjecting the student to any other detriment.(3) Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed.s 17: Am 1994 No 28, Schs 4 (5), 5 (4) (7) (14) (15).
18 (Repealed)
s 18: Am 1994 No 28, Schs 4 (5), 5 (7) (16). Rep 1997 No 9, Sch 1 [8].
19 Provision of goods and services
It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:(a) by refusing to provide the person with those goods or services, or(b) in the terms on which the other person is provided with those goods or services.s 19: Am 1994 No 28, Schs 4 (5), 5 (7). Subst 1997 No 9, Sch 1 [9].
20 Accommodation
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race:(a) by refusing the person’s application for accommodation,(b) in the terms on which the person offers the person accommodation, or(c) by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race:(a) by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or(b) by evicting the person or subjecting the person to any other detriment.(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if:(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and(b) the accommodation provided in those premises is for no more than 6 persons.s 20: Am 1994 No 28, Schs 4 (5), 5 (4) (7) (17).
20A Registered clubs
(1) It is unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of race:(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 a registered club to discriminate against a person who is a member of the registered club on the ground of race:(a) by denying the person access, or limiting the person’s access, to any benefit provided by the registered club,(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 (1) or (2) applies to or in respect of a registered club if the principal object of the registered club is to provide benefits for persons of a specified race defined otherwise than by reference to:(a) colour, or(b) a description which has the effect of excluding persons of that race who are of a different colour from those persons, or the majority of those persons, who do not come within that description.(4) In determining whether the principal object of a registered club is as referred to in subsection (3), regard shall be had to:(a) the essential character of the registered club,(b) the extent to which the affairs of the registered club are so conducted that the persons primarily enjoying the benefits of membership are of the race specified in the principal object, and(c) any other relevant circumstance.s 20A: Ins 1981 No 15, Sch 4 (3). Am 1994 No 28, Schs 4 (5), 5 (4) (7).
Division 3A Racial vilification
pt 2, div 3A: Ins 1989 No 48, Sch 1 (1).
20B Definition of “public act”
In this Division, public act includes:(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.s 20B: Ins 1989 No 48, Sch 1 (1).
20C Racial vilification unlawful
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.(2) Nothing in this section renders unlawful:(a) a fair report of a public act referred to in subsection (1), or(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.s 20C: Ins 1989 No 48, Sch 1 (1).
20D Offence of serious racial vilification
(1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include:(a) threatening physical harm towards, or towards any property of, the person or group of persons, or(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.Maximum penalty:In the case of an individual—50 penalty units or imprisonment for 6 months, or both.In the case of a corporation—100 penalty units.(2) A person shall not be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution.s 20D: Ins 1989 No 48, Sch 1 (1). Am 1994 No 28, Sch 1 (2).
Division 4 Exceptions to Part 2
21 Special needs programs and activities
Nothing in this Part applies to or in respect of anything done in affording persons of a particular race access to facilities, services or opportunities to meet their special needs or to promote equal or improved access for them to facilities, services and opportunities.s 21: Subst 1994 No 28, Sch 4 (7).
22 Sport
Nothing in this Part applies to or in respect of anything done on the grounds of a person’s nationality or place of birth or length of time for which the person has been resident in a particular place or area:(a) in selecting one or more persons to represent a place or an area in any sport or game, or(b) in pursuance of the rules of any competition in so far as they relate to eligibility to compete in any sport or game.s 22: Am 1994 No 28, Sch 5 (17).
Part 2A Prohibition of sexual harassment
pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22A Meaning of “sexual harassment”
For the purposes of this Part, a person sexually harasses another person if:(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, orin circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22B Harassment of employees, commission agents, contract workers, partners etc
(1) It is unlawful for an employer to sexually harass:(a) an employee, or(b) a person who is seeking employment with the employer.(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.(3) It is unlawful for a person to sexually harass:(a) a commission agent or contract worker of the person, or(b) a person who is seeking to become a commission agent or contract worker of the person.(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.(7) It is unlawful for a member of either House of Parliament to sexually harass:(a) a workplace participant at a place that is a workplace of both the member and the workplace participant, or(b) another member of Parliament at a place that is a workplace of both members.(8) It is unlawful for a workplace participant to sexually harass a member of either House of Parliament at a place that is the workplace of both the member and the workplace participant.(9) In this section:place includes a ship, aircraft or vehicle.workplace means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.workplace participant means any of the following:(a) an employer or employee,(b) a commission agent or contract worker,(c) a partner in a partnership,(d) a person who is self-employed,(e) a volunteer or unpaid trainee.(10) Without limiting the definition of workplace, the workplace of a member of either House of Parliament is taken to include the following:(a) the whole of Parliament House,(b) any ministerial office or electoral office of the member,(c) any other place that the member otherwise attends in connection with his or her Ministerial, parliamentary or electoral duties.pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22C Harassment by members of qualifying bodies
(1) It is unlawful for a member or an employee of an authority or 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 sexually harass a person seeking action in connection with an occupational qualification.(2) In this section:action in connection with an occupational qualification means conferring, renewing, extending, revoking or withdrawing an authorisation or qualification.pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22D Harassment in employment agencies
It is unlawful for:(a) a person who operates an employment agency, orto sexually harass another person in the course of providing, or offering to provide, any of the agency’s services to that other person.(b) an employee of an employment agency,pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22E Harassment at educational institutions
(1) It is unlawful for a member of the staff of an educational institution to sexually harass:(a) a person who is a student at the institution, or(b) a person who is seeking to become a student at the institution.(2) It is unlawful for a person who is an adult student at an educational institution to sexually harass:(a) a person who is a student at the institution, or(b) a member of the staff of the institution.(3) If a complaint under subsection (2) is found to have been substantiated after an inquiry under Part 9, the Tribunal may make any order that it is empowered to make under section 113 (1) (b). However, if the respondent student was over the age of 16, but under the age of 18, when the unlawful conduct occurred, the Tribunal may not make an order requiring the student to pay damages under section 113 (1) (b) (i).(4) In this section:adult student means a student who has attained the age of 16 years.educational institution means a school, college, university or other institution at which education or training is provided.pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22F Provision of goods and services
It is unlawful for a person to sexually harass another person in the course of:(a) receiving, or seeking to receive, goods or services from that other person, or(b) providing, or offering to provide, goods or services to that other person.pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22G Provision of accommodation
(1) It is unlawful for a person to sexually harass another person in the course of providing, or offering to provide, (whether as principal or agent) accommodation to that other person.(2) This section does not apply to anything done by a person in the course of providing, or offering to provide, accommodation in a private household.pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22H Land
It is unlawful for a person to sexually harass another person in the course of dealing (whether as principal or agent) with that other person in connection with:(a) disposing of, or offering to dispose of, an estate or interest in land to the other person, or(b) acquiring, or offering to acquire, an estate or interest in land from the other person.pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22I Sport
(1) It is unlawful for a person engaged in a sporting activity to sexually harass another person engaged in a sporting activity.(2) For the purposes of this section, a person is engaged in a sporting activity if:(a) the person is involved in an organised sporting competition,(b) the person is coaching a person or team, or is being coached, for the purposes of an organised sporting competition,(c) the person is carrying out an activity relating to the administration of a sport or an organised sporting competition,(d) the person is officiating at an organised sporting competition or carrying out related duties or functions,(e) the person is officially involved in a function relating to a sport or an organised sporting competition.pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22J State laws and programs
(1) It is unlawful for a person to sexually harass another person:(a) in the course of performing any function under a State law or for the purposes of a State program, or(b) in the course of carrying out any other responsibility for the administration of a State law or the conduct of a State program.(2) In this section:State law means:(a) an Act, a statutory rule, or a determination made under or pursuant to an Act, or(b) an order or award made under or pursuant to such a law.State program means a program conducted by or on behalf of the State Government.pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
Part 3 Sex discrimination
Division 1 General
23 Definitions
In this Part:man means a member of the male sex irrespective of his age.woman means a member of the female sex irrespective of her age.
24 What constitutes discrimination on the ground of sex
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, 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 of the opposite sex or who does not have such a relative or associate of that sex, or(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which 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.(1A) For the purposes of subsection (1) (a), something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.(1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women.(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs:(a) are a woman who is pregnant and a man, or(b) are not of the same marital status.(3) (Repealed)s 24: Am 1981 No 15, Sch 5 (8); 1994 No 28, Sch 4 (8).
Division 2 Discrimination in work
25 Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of sex:(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,(b) in determining who should be offered employment, or(c) in the terms on which the employer offers employment.(1A) Nothing in subsection (1) renders unlawful discrimination by an employer against a woman on the ground of sex if, at the date on which the woman applied to the employer for employment or, where the employer interviewed the woman in relation to her application for employment, at the date of the interview, the woman is pregnant.(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:(a) in the terms or conditions of employment which the employer affords the employee,(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 subjecting the employee to any other detriment.(2A) Nothing in subsection (2) (c) renders unlawful discrimination by an employer against a woman on the ground of sex in respect of the dismissal by an employer of a woman who is pregnant if, at the date on which the woman applied to the employer for employment or, where the employer interviewed the woman in relation to her application for employment, at the date of the interview, the woman was pregnant, unless, at that date, the woman did not know and could not reasonably be expected to have known that she was pregnant.(3) Subsections (1) and (2) do not apply to employment:(a) for the purposes of a private household,(b) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or(c) by a private educational authority.(4) For the purposes of subsection (3) (b), a corporation shall be 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 Act 2001 of the Commonwealth.s 25: Am 1981 No 15, Sch 5 (9); 1981 No 123, Sch 8; 1994 No 28, Schs 4 (9) (10), 5 (2) (3) (5) (18); 1997 No 9, Sch 1 [11]; 2001 No 34, Sch 4.2 [2].
26 Discrimination against commission agents
(1) It is unlawful for a principal to discriminate against a person on the ground of sex:(a) in the arrangements the principal makes for the purpose of determining who should be engaged as a commission agent,(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 sex:(a) in the terms or conditions which the principal affords him or her as a commission agent,(b) by denying him or her access, or limiting his or her 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 his or her engagement or subjecting him or her to any other detriment.s 26: Am 1994 No 28, Schs 4 (9), 5 (6)–(9).
27 Discrimination against contract workers
It is unlawful for a principal to discriminate against a contract worker on the ground of sex:(a) in the terms on which the principal allows the contract worker to work,(b) by not allowing the contract worker to work or continue to work,(c) by denying the contract worker access, or limiting his or her 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.s 27: Am 1994 No 28, Schs 4 (9), 5 (6) (9) (19).
27A Partnerships
(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 sex:(a) in the arrangements made for the purpose of determining who should be offered a position as a partner in the firm,(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 sex:(a) by denying the partner access, or limiting the partner’s access, to any benefit arising from membership of the firm,(b) by expelling the partner from the firm, or(c) by subjecting the partner to any other detriment.s 27A: Ins 1981 No 15, Sch 5 (10). Am 1994 No 28, Schs 4 (9), 5 (10)–(13).
27B Discrimination 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 sex.s 27B: Ins 1994 No 28, Sch 4 (11).
28 Industrial 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 sex:(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 sex:(a) by denying the person access, or limiting the person’s access, to any benefit provided by the industrial organisation,(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.s 28: Am 1994 No 28, Schs 4 (9), 5 (4) (7).
29 Qualifying bodies
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 sex:(a) by refusing or failing to confer, renew or extend the authorisation or qualification,(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 upon which it is held.s 29: Am 1981 No 15, Sch 5 (11); 1994 No 28, Sch 4 (9).
30 Employment agencies
It is unlawful for an employment agency to discriminate against a person on the ground of sex:(a) by refusing to provide the person with any of its services,(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.s 30: Am 1981 No 15, Sch 5 (12); 1994 No 28, Schs 4 (9), 5 (7).
31 Exception—genuine occupational qualification
(1) Nothing in this Division renders unlawful discrimination against a person on the ground of the person’s sex where being a person of a particular sex is a genuine occupational qualification for the job.(2) Being a person of a particular sex is a genuine occupational qualification for a job where any one or more of the following requirements is satisfied:(a) the essential nature of the job calls for a person of that sex for reasons of physiognomy or physique, excluding physical strength or stamina, or, in dramatic performances or other entertainment, for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a person of the opposite sex, or(b) the job needs to be held by a person of that sex to preserve decency or privacy because it involves the fitting of a person’s clothing, or(c) the job requires the holder of the job to enter a lavatory ordinarily used by persons of that sex while it is used by persons of that sex, or(d) the job requires the holder of the job to search persons of that sex, or(e) the job requires the holder of the job to enter areas ordinarily used by persons of that sex while in a state of undress or while bathing or showering, or(f) the job requires the holder of the job to live in premises provided by the employer and:(i) those premises are not equipped with separate sleeping accommodation for persons of the opposite sex and sanitary facilities which could be used by persons of the opposite sex in privacy from persons of that sex, and(ii) it is not reasonable to expect the employer either to equip those premises with accommodation and facilities of that kind or to provide other premises for persons of the opposite sex, or(g) the job requires the holder of the job to keep persons of that sex in custody in a prison or other institution or in part of a prison or other institution, or(h) the holder of the job provides persons of that sex with personal services relating to their welfare or education, or similar personal services, and they or a substantial number of them might reasonably object to its being carried out by a person of the opposite sex, or(i) the job is one of two to be held by a married couple.(3) Being a person of a particular sex is a genuine occupational qualification for a prescribed job or a job of a prescribed class or description.(4) Nothing in subsection (2) limits the Governor’s power to make a regulation for the purposes of subsection (3).s 31: Am 1981 No 15, Sch 5 (13); 1987 No 48, Sch 32; 1994 No 28, Sch 4 (9). Subst 1994 No 28, Sch 5 (20).
Division 3 Discrimination in other areas
31A Education
(1) It is unlawful for an educational authority to discriminate against a person on the ground of sex:(a) by refusing or failing to accept the person’s application for admission as a student, or(b) in the terms on which it is prepared to admit the person as a student.(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex:(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or(b) by expelling the student or subjecting the student to any other detriment.(3) Nothing in this section applies to or in respect of:(a) a private educational authority, or(b) a refusal or failure to accept a person’s application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students of the opposite sex to the sex of the applicant.(4) The admission into any such school, college, university or other institution of a transgender person as referred to in Part 3A who identifies with the sex of persons for whom the school, college, university or other institution is conducted does not, for the purposes of subsection (3) (b), affect its status as a school, college, university or other institution conducted solely for students of the same sex.s 31A: Ins 1981 No 15, Sch 5 (14). Am 1994 No 28, Schs 4 (9), 5 (4) (7) (14) (15); 1996 No 22, Sch 1 [2].
32 (Repealed)
s 32: Am 1982 No 142, Sch 4 (2); 1994 No 28, Schs 4 (9), 5 (7) (21). Rep 1997 No 9, Sch 1 [12].
33 Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex:(a) by refusing to provide the person with those goods or services, or(b) in the terms on which he or she provides the person with those goods or services.(2) Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person’s normal practice.s 33: Am 1981 No 15, Sch 5 (15); 1994 No 28, Schs 4 (9), 5 (4) (7) (16).
34 Accommodation
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of sex:(a) by refusing the person’s application for accommodation,(b) in the terms on which he or she offers the person accommodation, or(c) by deferring the person’s application for accommodation or according to the person a lower order of precedence in any list of applicants for that accommodation.(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of sex:(a) by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or(b) by evicting the person or subjecting the person to any other detriment.(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if:(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and(b) the accommodation provided in those premises is for no more than 6 persons.s 34: Am 1994 No 28, Schs 4 (9), 5 (4) (7) (16).
34A Registered clubs
(1) It is unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of sex:(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 a registered club to discriminate against a person who is a member of a registered club on the ground of sex:(a) by denying the person access, or limiting the person’s access, to any benefit provided by the registered club,(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 (1) or (2) renders unlawful discrimination by a registered club against a person on the ground of sex if membership of the registered club is available to persons of the opposite sex only.(3A) The admission into any such registered club of a transgender person as referred to in Part 3A who identifies with the sex of persons for whom membership of the registered club is available does not, for the purposes of subsection (3), affect its status as a registered club the membership of which is available to persons of the same sex only.(4) Nothing in subsection (1) (paragraph (a) excepted) or subsection (2) renders unlawful discrimination by a registered club against a person on the ground of sex if the discrimination occurs in relation to the use or enjoyment of any benefit provided by the registered club where:(a) it is not practicable for the benefit to be used or enjoyed:(i) simultaneously, orby both men and women, and(ii) to the same extent,(b) either:(i) the same, or an equivalent, benefit is provided for the use of men and women separately from each other, or(ii) men and women are each entitled to a fair and reasonable proportion of the use and enjoyment of the benefit.(5) In determining any matter relating to the application of subsection (4), regard shall be had to:(a) the purposes for which the registered club is established,(b) the membership of the registered club, including any class or type of membership,(c) the nature of the benefits provided by the registered club,(d) the opportunities for the use and enjoyment of those benefits by men and women, and(e) any other relevant circumstance.s 34A: Ins 1981 No 15, Sch 4 (4). Am 1994 No 28, Schs 4 (9), 5 (4) (7); 1996 No 22, Sch 1 [3].
Division 4 Exceptions to Part 3
35 Pregnancy or childbirth
Nothing in this Part renders unlawful discrimination by a person against a man on the ground of sex by reason only of the fact that that person grants to a woman rights or privileges in connection with pregnancy or childbirth.s 35: Am 1994 No 28, Sch 4 (9).
36 Superannuation
Nothing in this Part renders unlawful discrimination on the ground of sex in the terms or conditions appertaining to a superannuation or provident fund or scheme, where:(a) the terms or conditions:(i) are based upon actuarial or statistical data on which it is reasonable to rely, and(ii) are reasonable having regard to the data and any other relevant factors, orand the source on which any data referred to in paragraph (a) is based is disclosed to the Tribunal, where the Tribunal so requires, and any other relevant factors to which regard has been had as referred to in paragraph (a) or (b) are disclosed to the Tribunal, where the Tribunal so requires.(b) in a case where no such actuarial or statistical data is available and cannot reasonably be obtained—the terms or conditions are reasonable having regard to any other relevant factors,s 36: Am 1994 No 28, Sch 4 (12).
37 Insurance etc
Nothing in this Part renders unlawful discrimination on the ground of sex with respect to the terms on which an annuity, a life assurance policy, an accident or insurance policy or other policy of insurance is offered or may be obtained where:(a) the discrimination is:(i) based upon actuarial or statistical data from a source on which it is reasonable to rely, and(ii) reasonable having regard to the data and any other relevant factors, and(b) the source on which the actuarial or statistical data referred to in paragraph (a) (i) is based is disclosed to the Tribunal, where the Tribunal so requires.s 37: Am 1981 No 15, Sch 2 (20).
38 Sport
Nothing in this Part renders unlawful the exclusion of persons of the one sex from participation in any sporting activity not being the coaching of persons engaged in any sporting activity, the administration of any sporting activity or any prescribed sporting activity.
Part 3A Discrimination on transgender grounds
Division 1 General
pt 3A, div 1 (ss 38A, 38B): Ins 1996 No 22, Sch 1 [4].
38A Interpretation
A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, orand includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,pt 3A, div 1 (ss 38A, 38B): Ins 1996 No 22, Sch 1 [4].
38B What constitutes discrimination on transgender grounds
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on transgender grounds if, on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, 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 he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, or(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not transgender persons, or who do not have a relative or associate who is a transgender person, comply or are able to comply, being a requirement which 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, or(c) treats the aggrieved person, being a recognised transgender person, as being of the person’s former sex or requires the aggrieved person, being a recognised transgender person, to comply with a requirement or condition with which a substantially higher proportion of persons of the person’s former sex comply or are able to comply, being a requirement or condition which 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 being transgender if it is done on the ground of the person being transgender, a characteristic that appertains generally to transgender persons or a characteristic that is generally imputed to transgender persons.pt 3A, div 1 (ss 38A, 38B): Ins 1996 No 22, Sch 1 [4].
Division 2 Discrimination in work
pt 3A, div 2: Ins 1996 No 22, Sch 1 [4].
38C Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on transgender grounds:(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 employment is offered.(2) It is unlawful for an employer to discriminate against an employee on transgender grounds:(a) in the terms or conditions of employment that are afforded to 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 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, or(c) by a private educational authority.(4) 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 Act 2001 of the Commonwealth.s 38C: Ins 1996 No 22, Sch 1 [4]. Am 2001 No 34, Sch 4.2 [3].
38D Discrimination against commission agents
(1) It is unlawful for a principal to discriminate against a person on transgender grounds:(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 transgender grounds:(a) in the terms or conditions that are afforded to the 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 subjecting the commission agent to any other detriment.ss 38D–38J: Ins 1996 No 22, Sch 1 [4].
38E Discrimination against contract workers
It is unlawful for a principal to discriminate against a contract worker on transgender grounds:(a) in the terms on which the contract worker is allowed 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 performed by the contract worker, or(d) by subjecting the contract worker to any other detriment.ss 38D–38J: Ins 1996 No 22, Sch 1 [4].
38F Partnerships
(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 transgender grounds:(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 transgender grounds:(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.ss 38D–38J: Ins 1996 No 22, Sch 1 [4].
38G Discrimination 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 the member’s or members’ official functions to discriminate against another member of the council on transgender grounds.ss 38D–38J: Ins 1996 No 22, Sch 1 [4].
38H Industrial organisations
(1) It is unlawful for an industrial organisation to discriminate on transgender grounds against a person who is not a member of the industrial organisation:(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 member of the organisation on transgender grounds:(a) by denying the member access, or limiting the member’s access, to any benefit provided by the organisation, or(b) by depriving the member of membership or varying the terms of his or her membership, or(c) by subjecting the member to any other detriment.ss 38D–38J: Ins 1996 No 22, Sch 1 [4].
38I Qualifying bodies
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 transgender grounds:(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.ss 38D–38J: Ins 1996 No 22, Sch 1 [4].
38J Employment agencies
It is unlawful for an employment agency to discriminate against a person on transgender grounds:(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.ss 38D–38J: Ins 1996 No 22, Sch 1 [4].
Division 3 Discrimination in other areas
38K Education
(1) It is unlawful for an educational authority to discriminate against a person on transgender grounds:(a) by refusing or failing to accept the person’s application for admission as a student, or(b) in the terms on which it is prepared to admit the person as a student.(2) It is unlawful for an educational authority to discriminate against a student on transgender grounds:(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or(b) by expelling the student or subjecting the student to any other detriment.(3) Nothing in this section applies to or in respect of a private educational authority.s 38K: Ins 1996 No 22, Sch 1 [4].
38L (Repealed)
s 38L: Ins 1996 No 22, Sch 1 [4]. Rep 1997 No 9, Sch 1 [13].
38M Provision of goods and services
It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds:(a) by refusing to provide the person with those goods or services, or(b) in the terms on which the other person is provided with those goods or services.ss 38M–38O: Ins 1996 No 22, Sch 1 [4].
38N Accommodation
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on transgender grounds:(a) by refusing the person’s application for accommodation, or(b) in the terms on which he or she offers the person accommodation, or(c) by deferring the person’s application for accommodation or giving the person a lower order of precedence in any list of applicants for that accommodation.(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on transgender grounds:(a) by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or(b) by evicting the person or subjecting the person to any other detriment.(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if:(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, in those premises, and(b) the accommodation provided in those premises is for no more than 6 persons.ss 38M–38O: Ins 1996 No 22, Sch 1 [4].
38O Registered clubs
(1) It is unlawful for a registered club to discriminate on transgender grounds against a person who is not a member of the registered club:(a) by refusing or failing to accept the person’s application for membership of the club, or(b) in the terms on which it is prepared to admit the person to membership of the club.(2) It is unlawful for a registered club to discriminate on transgender grounds against a member of the registered club:(a) by denying the member access, or limiting the members’ access, to any benefit provided by the club, or(b) by depriving the member of membership or varying the terms of his or her membership, or(c) by subjecting the member to any other detriment.ss 38M–38O: Ins 1996 No 22, Sch 1 [4].
Division 4 Exceptions to Part 3A
pt 3A, div 4: Ins 1996 No 22, Sch 1 [4].
38P Sport
(1) Nothing in this Part renders unlawful the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies.(2) Subsection (1) does not apply:(a) to the coaching of persons engaged in any sporting activity, or(b) to the administration of any sporting activity, or(c) to any sporting activity prescribed by the regulations for the purposes of this section.pt 3A, div 5 (ss 38P–38T): Ins 1996 No 22, Sch 1 [4].
38Q Superannuation
A person does not discriminate against a transgender person (whether or not a recognised transgender person) on transgender grounds if, in the administration of a superannuation or provident fund or scheme, the other person treats the transgender person as being of the opposite sex to the sex with which the transgender person identifies.pt 3A, div 5 (ss 38P–38T): Ins 1996 No 22, Sch 1 [4].
Division 5 Transgender vilification
pt 3A, div 5 (ss 38P–38T): Ins 1996 No 22, Sch 1 [4].
38R Definition
In this Division:public act includes:(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, or(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, or(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of:(i) a person on the ground that the person is a transgender person, or(ii) a group of persons on the ground that the members of the group are transgender persons.pt 3A, div 5 (ss 38P–38T): Ins 1996 No 22, Sch 1 [4].
38S Transgender vilification unlawful
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of:(a) a person on the ground that the person is a transgender person, or(b) a group of persons on the ground that the members of the group are transgender persons.(2) Nothing in this section renders unlawful:(a) a fair report of a public act referred to in subsection (1), or(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or(c) a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.pt 3A, div 5 (ss 38P–38T): Ins 1996 No 22, Sch 1 [4].
38T Offence of serious transgender vilification
(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person on the ground that the person is a transgender person, or a group of persons on the ground that the members of the group are transgender persons, by means which include:(a) threatening physical harm towards, or towards any property of, the person or group of persons, or(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.Maximum penalty:In the case of an individual—10 penalty units or imprisonment for 6 months, or both.In the case of a corporation—100 penalty units.(2) A person is not to be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution.pt 3A, div 5 (ss 38P–38T): Ins 1996 No 22, Sch 1 [4].
Part 4 Discrimination on the ground of marital status
Division 1 General
39 What constitutes discrimination on the ground of marital status
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of marital status if, on the ground of the aggrieved person’s marital status or the marital status of a relative or associate of the aggrieved person, 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 of a different marital status or who does not have such a relative or associate of that marital status, or(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of a different marital status, or who do not have such a relative or associate of that marital status, comply or are able to comply, being a requirement which 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.(1A) For the purposes of subsection (1) (a), something is done on the ground of a person’s marital status if it is done on the ground of the person’s marital status, a characteristic that appertains generally to persons of that marital status or a characteristic that is generally imputed to persons of that marital status.(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of a different marital status are not materially different by reason of the fact that the persons between whom the discrimination occurs are not of the same sex.(3) (Repealed)s 39: Am 1981 No 15, Sch 5 (16); 1994 No 28, Sch 4 (13).
Division 2 Discrimination in work
40 Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of marital status:(a) in the arrangements the employer makes for the purpose of determining who shall be offered employment,(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 marital status:(a) in the terms or conditions of employment which the employer affords the employee,(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 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,(b) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or(c) by a private educational authority.(4) For the purposes of subsection (3) (b), a corporation shall be 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 Act 2001 of the Commonwealth.s 40: Am 1981 No 15, Sch 5 (17); 1981 No 123, Sch 8; 1994 No 28, Schs 4 (14), 5 (2) (3) (5) (18); 1997 No 9, Sch 1 [11]; 2001 No 34, Sch 4.2 [4].
41 Discrimination against commission agents
(1) It is unlawful for a principal to discriminate against a person on the ground of marital status:(a) in the arrangements the principal makes for the purpose of determining who should be engaged as a commission agent,(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 marital status:(a) in the terms or conditions which the principal affords him or her as a commission agent,(b) by denying him or her access, or limiting his or her 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 his or her engagement or subjecting him or her to any other detriment.s 41: Am 1994 No 28, Schs 4 (14), 5 (6)–(9).
42 Discrimination against contract workers
It is unlawful for a principal to discriminate against a contract worker on the ground of marital status:(a) in the terms on which the principal allows the contract worker to work,(b) by not allowing the contract worker to work or continue to work,(c) by denying the contract worker access, or limiting his or her 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.s 42: Am 1994 No 28, Schs 4 (14), 5 (6) (9) (19).
42A Partnerships
(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 marital status:(a) in the arrangements made for the purpose of determining who should be offered a position as partner in the firm,(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 marital status:(a) by denying the partner access, or limiting the partner’s access, to any benefit arising from membership of the firm,(b) by expelling the partner from the firm, or(c) by subjecting the partner to any other detriment.s 42A: Ins 1981 No 15, Sch 5 (18). Am 1994 No 28, Schs 4 (14), 5 (10)–(13).
42B Discrimination 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 marital status.s 42B: Ins 1994 No 28, Sch 4 (15).
43 Industrial 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 marital status:(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 marital status:(a) by denying the person access, or limiting the person’s access, to any benefit provided by the industrial organisation,(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.s 43: Am 1994 No 28, Schs 4 (14), 5 (4) (7).
44 Qualifying bodies
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 marital status:(a) by refusing or failing to confer, renew or extend the authorisation or qualification,(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 upon which it is held.s 44: Am 1981 No 15, Sch 5 (19); 1994 No 28, Sch 4 (14).
45 Employment agencies
It is unlawful for an employment agency to discriminate against a person on the ground of marital status:(a) by refusing to provide the person with any of its services,(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.s 45: Am 1981 No 15, Sch 5 (20); 1994 No 28, Schs 4 (14), 5 (7).
46 Exception—employment of married couple
Nothing in this Division renders unlawful discrimination against a person on the ground of marital status in relation to a job which is one of two to be held by a married couple.s 46: Am 1994 No 28, Sch 4 (14).
Division 3 Discrimination in other areas
46A Education
(1) It is unlawful for an educational authority to discriminate against a person on the ground of marital status:(a) by refusing or failing to accept the person’s application for admission as a student, or(b) in the terms on which it is prepared to admit the person as a student.(2) It is unlawful for an educational authority to discriminate against a student on the ground of marital status:(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or(b) by expelling the student or subjecting the student to any other detriment.(3) Nothing in this section applies to or in respect of a private educational authority.s 46A: Ins 1981 No 15, Sch 5 (21). Am 1994 No 28, Schs 4 (14), 5 (4) (7) (14) (15).
47 Provision of goods and services
It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of marital status:(a) by refusing to provide the person with those goods or services, or(b) in the terms on which he or she provides the person with those goods or services.s 47: Subst 1981 No 15, Sch 5 (21). Am 1994 No 28, Sch 4 (14). Subst 1994 No 28, Sch 4 (16).
48 Accommodation
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of marital status:(a) by refusing the person’s application for accommodation,(b) in the terms on which he or she offers the person accommodation, or(c) by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of marital status:(a) by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or(b) by evicting the person or subjecting the person to any other detriment.(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if:(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and(b) the accommodation provided in those premises is for no more than 6 persons.s 48: Am 1994 No 28, Schs 4 (14), 5 (4) (7) (16).
48A Registered clubs
(1) It is unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of marital status:(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 a registered club to discriminate against a person who is a member of the registered club on the ground of marital status:(a) by denying the person access, or limiting the person’s access, to any benefit provided by the registered club,(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.s 48A: Ins 1981 No 15, Sch 4 (5). Am 1994 No 28, Schs 4 (14), 5 (4) (7).
Division 4 Exception to Part 4
49 Superannuation
Nothing in this Part renders unlawful discrimination on the ground of marital status in the terms or conditions appertaining to a superannuation or provident fund or scheme, where:(a) the terms or conditions:(i) are based upon actuarial or statistical data on which it is reasonable to rely, and(ii) are reasonable having regard to the data and any other relevant factors, orand the source on which any data referred to in paragraph (a) is based is disclosed to the Tribunal, where the Tribunal so requires, and any other relevant factors to which regard has been had as referred to in paragraph (a) or (b) are disclosed to the Tribunal, where the Tribunal so requires.(b) in a case where no such actuarial or statistical data is available and cannot reasonably be obtained—the terms or conditions are reasonable having regard to any other relevant factors,s 49: Am 1994 No 28, Sch 4 (12).
Part 4A Discrimination on the ground of disability
pt 4A: Ins 1981 No 15, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
Division 1 General
49A Disability includes past, future and presumed disability
A reference in this Part to a person’s disability is a reference to a disability:(a) that a person has, or(b) that a person is thought to have (whether or not the person in fact has the disability), or(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or(d) that a 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 disability).s 49A: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
49B What constitutes discrimination on the ground of disability
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, 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 that disability or who does not have such a relative or associate who has that disability, 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 that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which 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 disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.s 49B: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3); 1984 No 153, Sch 16. Subst 1994 No 28, Sch 3 (2).
49C What 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 or be suffered by any persons concerned, and(b) the effect of the disability of a person concerned, and(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.s 49C: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
Division 2 Discrimination in work
49D Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of disability:(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 disability:(a) in the terms or conditions of employment which 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) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or(c) by a private educational authority.(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 disability 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 disability:(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 services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.(5) For the purposes of subsection (3) (b), a corporation is taken to be 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 Act 2001 of the Commonwealth.s 49D: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2). Am 2001 No 34, Sch 4.2 [5].
49E Discrimination against commission agents
(1) It is unlawful for a principal to discriminate against a person on the ground of disability:(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 disability:(a) in the terms or conditions which the principal affords him or her as a commission agent, or(b) by denying him or her access, or limiting his or her 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 his or her engagement, or(d) by subjecting him or her 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 disability 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 disability:(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 services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the principal.ss 49E–49H: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
49F Discrimination against contract workers
(1) It is unlawful for a principal to discriminate against a contract worker on the ground of disability:(a) in the terms on which the principal allows him or her to work, or(b) by not allowing him or her to work or continue to work, or(c) by denying him or her access, or limiting his or her 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 him or her 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 disability if taking into account the contract worker’s past training, qualifications and experience relevant to working as a contract worker and, if the person is already working for the principal as a contract worker, the contract 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 disability:(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 services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the principal.ss 49E–49H: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
49G Partnerships
(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 disability:(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 disability:(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 a person against another person on the ground of the other person’s disability if taking into account the other 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 disability:(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 services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the partnership.ss 49E–49H: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
49H Discrimination 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 disability.ss 49E–49H: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
49I Industrial 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 disability:(a) by refusing or failing to accept his or her application for membership, or(b) in the terms on which it is prepared to admit him or her 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 disability:(a) by denying him or her access, or limiting his or her access, to any benefit provided by the industrial organisation, or(b) by depriving him or her of membership or varying the terms of his or her membership, or(c) by subjecting him or her to any other detriment.(3) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, 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.s 49I: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Schs 1 (3), 4 (3). Subst 1994 No 28, Sch 3 (2).
49J Qualifying bodies
(1) It is unlawful for an authority or 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 disability:(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 upon 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 disability if taking into account the person’s past training, qualifications and experience relevant to the particular profession, trade or occupation and, 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 all other relevant factors that it is reasonable to take into account, the person because of his or her disability would be unable to carry out the inherent requirements of the profession, trade or occupation.ss 49J–49L: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
49K Employment agencies
(1) It is unlawful for an employment agency to discriminate against a person on the ground of disability:(a) by refusing to provide him or her with any of its services, or(b) in the terms on which it offers to provide him or her with any of its services, or(c) in the manner in which it provides him or her 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 disability if taking into account the person’s past training, qualifications and experience relevant to the work sought, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability would be unable to carry out the inherent requirements of the work sought.ss 49J–49L: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
Division 3 Discrimination in other areas
49L Education
(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability:(a) by refusing or failing to accept his or her application for admission as a student, or(b) in the terms on which it is prepared to admit him or her as a student.(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability:(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or(b) by expelling him or her, or(c) by subjecting him or her to any other detriment.(3) Nothing in this section applies to or in respect of:(a) a private educational authority, or(b) a refusal or failure to accept a person’s application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant.(4) Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.(5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.ss 49J–49L: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
49LA (Repealed)
s 49LA: Ins 1981 No 15, Sch 4 (6). Am 1982 No 142, Sch 1 (3). Rep 1994 No 28, Sch 3 (2).
49M Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:(a) by refusing to provide the person with those goods or services, or(b) in the terms on which he or she provides the person with those goods or services.(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.s 49M: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
49N Accommodation
(1) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability:(a) by refusing the person’s application for accommodation, or(b) in the terms on which the person is offered accommodation, or(c) by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.(2) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability:(a) by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or(b) by evicting the person, or(c) by subjecting the person to any other detriment.(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if:(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and(b) the accommodation provided in those premises is for no more than 6 persons.(4) Nothing in this section applies to the provision of accommodation in premises where special services or facilities would be required by the person with a disability and the provision of such special services or facilities would impose unjustifiable hardship on the person providing or proposing to provide the accommodation whether as principal or agent.(5) Nothing in this section applies to the provision of accommodation to persons who have a particular disability by a charitable body or other body that does not distribute its profits to members.(6) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the person who provides the accommodation.s 49N: Ins 1981 No 15, Sch 1 (3). Am 1981 No 15, Sch 2 (20); 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
49O Registered clubs
(1) It is unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of disability:(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 a registered club to discriminate against a person who is a member of the registered club on the ground of disability:(a) by denying the person access, or limiting the person’s access, to any benefit provided by the registered club, 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 (1) or (2) applies to or in respect of a registered club if the principal object of the registered club is to provide benefits only for persons who have a particular disability specified in the principal object.(4) In determining whether the principal object of a registered club is as referred to in subsection (3), regard is to be had to:(a) the essential character of the registered club, and(b) the extent to which the affairs of the registered club are so conducted that the persons primarily enjoying the benefits of membership are persons who have the particular disability specified in the principal object, and(c) any other relevant circumstance.(5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the registered club.s 49O: Ins 1981 No 15, Sch 1 (3). Am 1982 No 142, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
Division 4 Exceptions to Part 4A
49P Public health
Nothing in this Part renders unlawful discrimination against a person on the ground of disability if the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health.s 49P: Ins 1982 No 142, Sch 1 (4). Subst 1994 No 28, Sch 3 (2).
49PA Persons addicted to prohibited drugs
(1) This section applies to the provisions of Division 2 (Discrimination in work), other than sections 49H, 49I and 49J.(2) Nothing in those provisions renders unlawful discrimination against a person on the ground of disability if:(a) the disability relates to the person’s addiction to a prohibited drug, and(b) the person is actually addicted to a prohibited drug at the time of the discrimination.(3) However, nothing in this section makes it lawful to discriminate against a person on the ground of the person having hepatitis C, HIV infection or any medical condition other than addiction to a prohibited drug.(4) In this section:prohibited drug means a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, but does not include:(a) methadone or buprenorphine, or(b) any other drug that is declared by the regulations not to be a prohibited drug for the purposes of this section.s 49PA: Ins 2002 No 6, Sch 1.
49Q Superannuation, insurance
Nothing in this Part renders unlawful discrimination against a person on the ground of disability in the terms or conditions appertaining to a superannuation or provident fund or scheme or with respect to the terms on which an annuity, a life assurance policy, an accident or insurance policy or other policy of insurance is offered or may be obtained, where:(a) the terms or conditions:(i) are based upon actuarial or statistical data on which it is reasonable to rely, and(ii) are reasonable having regard to the data and any other relevant factors, orand the source on which any data referred to in paragraph (a) is based is disclosed to the Tribunal, where the Tribunal so requires, and any other relevant factors to which regard has been had as referred to in paragraph (a) or (b) are disclosed to the Tribunal, where the Tribunal so requires.(b) in a case where no such actuarial or statistical data is available and cannot reasonably be obtained—the terms or conditions are reasonable having regard to any other relevant factors,s 49Q: Ins 1982 No 142, Sch 1 (4). Subst 1994 No 28, Sch 3 (2).
49R Sport
Nothing in this Part renders unlawful discrimination against a person on the ground of disability, being discrimination consisting of the exclusion of the person from a sporting activity:(a) if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity, or(b) if the persons who participate or are to participate in the sporting activity are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other, or(c) if the sporting activity is conducted only for persons who have a particular disability and the person does not have that disability.s 49R: Ins 1982 No 142, Sch 1 (4). Subst 1994 No 28, Sch 3 (2).
Part 4B Discrimination on the ground of a person’s responsibilities as a carer
pt 4B: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
Division 1 General
49S Meaning 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.ss 49S–49U: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
49T What 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.ss 49S–49U: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
49U What 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.ss 49S–49U: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
Division 2 Discrimination in work
49V Discrimination 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 Act 2001 of the Commonwealth.s 49V: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1]. Am 2001 No 34, Sch 4.2 [6].
49W Discrimination 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.ss 49W–49ZC: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
49X Discrimination 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.ss 49W–49ZC: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
49Y Partnerships
(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.ss 49W–49ZC: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
49Z Discrimination 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.ss 49W–49ZC: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
49ZA Industrial 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.ss 49W–49ZC: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
49ZB Qualifying 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, andthe 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.(c) all other relevant factors that it is reasonable to take into account,ss 49W–49ZC: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
49ZC Employment 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.ss 49W–49ZC: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
49ZD, 49ZE (Repealed)
s 49ZD: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2).
s 49ZE: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2).
Part 4C Discrimination on the ground of homosexuality
Division 1 General
pt 4C, div 1: Ins 1982 No 142, Sch 2 (2).
49ZF Interpretation
A reference in this Part to a person’s homosexuality includes a reference to the person’s being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.s 49ZF: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Sch 5 (16).
49ZG What constitutes discrimination on the ground of homosexuality
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of homosexuality if, on the ground of the aggrieved person’s homosexuality or the homosexuality of a relative or associate of the aggrieved person, 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 he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have such a relative or associate who is a homosexual person, comply or are able to comply, being a requirement which 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 homosexuality if it is done on the ground of the person’s homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.s 49ZG: Ins 1982 No 142, Sch 2 (2). Subst 1994 No 28, Sch 4 (17).
Division 2 Discrimination in work
pt 4C, div 2: Ins 1982 No 142, Sch 2 (2).
49ZH Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of homosexuality:(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,(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 homosexuality:(a) in the terms or conditions of employment which the employer affords the employee,(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 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,(b) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or(c) by a private educational authority.(4) For the purposes of subsection (3) (b), a corporation shall be 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 Act 2001 of the Commonwealth.s 49ZH: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Schs 4 (18), 5 (2) (3) (5) (18); 1997 No 9, Sch 1 [11]; 2001 No 34, Sch 4.2 [7].
49ZI Discrimination against commission agents
(1) It is unlawful for a principal to discriminate against a person on the ground of homosexuality:(a) in the arrangements the principal makes for the purpose of determining who should be engaged as a commission agent,(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 homosexuality:(a) in the terms or conditions which the principal affords him or her as a commission agent,(b) by denying him or her access, or limiting his or her 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 his or her engagement or subjecting him or her to any other detriment.s 49ZI: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Schs 4 (18), 5 (6)–(9).
49ZJ Discrimination against contract workers
It is unlawful for a principal to discriminate against a contract worker on the ground of homosexuality:(a) in the terms on which the principal allows the contract worker to work,(b) by not allowing the contract worker to work or continue to work,(c) by denying the contract worker access, or limiting his or her 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.s 49ZJ: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Schs 4 (18), 5 (6) (9) (19).
49ZK Partnerships
(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 homosexuality:(a) in the arrangements made for the purpose of determining who should be offered a position as partner in the firm,(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 homosexuality:(a) by denying the partner access, or limiting the partner’s access, to any benefit arising from membership of the firm,(b) by expelling the partner from the firm, or(c) by subjecting the partner to any other detriment.s 49ZK: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Schs 4 (18), 5 (10)–(13).
49ZKA Discrimination 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 homosexuality.s 49ZKA: Ins 1994 No 28, Sch 4 (19).
49ZL Industrial 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 homosexuality:(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 homosexuality:(a) by denying the person access, or limiting the person’s access, to any benefit provided by the industrial organisation,(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.s 49ZL: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Schs 4 (18), 5 (4) (7).
49ZM Qualifying bodies
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 homosexuality:(a) by refusing or failing to confer, renew or extend the authorisation or qualification,(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification,(c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.s 49ZM: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Sch 4 (18).
49ZN Employment agencies
It is unlawful for an employment agency to discriminate against a person on the ground of homosexuality:(a) by refusing to provide the person with any of its services,(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.s 49ZN: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Schs 4 (18), 5 (7).
Division 3 Discrimination in other areas
pt 4C, div 3: Ins 1982 No 142, Sch 2 (2).
49ZO Education
(1) It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:(a) by refusing or failing to accept the person’s application for admission as a student, or(b) in the terms on which it is prepared to admit the person as a student.(2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or(b) by expelling the student or subjecting the student to any other detriment.(3) Nothing in this section applies to or in respect of a private educational authority.s 49ZO: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Schs 4 (18), 5 (4) (7) (14) (15).
49ZP Provision of goods and services
It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of homosexuality:(a) by refusing to provide the person with those goods or services, or(b) in the terms on which he or she provides the person with those goods or services.s 49ZP: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Schs 4 (18), 5 (7) (16).
49ZQ Accommodation
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of homosexuality:(a) by refusing the person’s application for accommodation,(b) in the terms on which he or she offers the person accommodation, or(c) by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of homosexuality:(a) by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person, or(b) by evicting the person or subjecting the person to any other detriment.(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if:(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and(b) the accommodation provided in those premises is for no more than 6 persons.s 49ZQ: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Schs 4 (18), 5 (4) (7) (16).
49ZR Registered clubs
(1) It is unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of homosexuality:(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 a registered club to discriminate against a person who is a member of the registered club on the ground of homosexuality:(a) by denying the person access, or limiting the person’s access, to any benefit provided by the registered club,(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.s 49ZR: Ins 1982 No 142, Sch 2 (2). Am 1994 No 28, Schs 4 (18), 5 (4) (7).
Division 4 Homosexual vilification
pt 4C, div 4 (ss 49ZS–49ZTA): Ins 1993 No 97, Sch 1 (1).
49ZS Definition
In this Division:public act includes:(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.pt 4C, div 4 (ss 49ZS–49ZTA): Ins 1993 No 97, Sch 1 (1).
49ZT Homosexual vilification unlawful
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.(2) Nothing in this section renders unlawful:(a) a fair report of a public act referred to in subsection (1), or(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.pt 4C, div 4 (ss 49ZS–49ZTA): Ins 1993 No 97, Sch 1 (1).
49ZTA Offence of serious homosexual vilification
(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group by means which include:(a) threatening physical harm towards, or towards any property of, the person or group of persons, or(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.Maximum penalty:In the case of an individual—10 penalty units or imprisonment for 6 months, or both.In the case of a corporation—100 penalty units.(2) A person is not to be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution.pt 4C, div 4 (ss 49ZS–49ZTA): Ins 1993 No 97, Sch 1 (1).
Part 4E Compulsory retirement from employment on the ground of age
pt 4E: Ins 1990 No 99, Sch 1 (1).
49ZU Application of Part
(1) This Part applies to and for the benefit of employees specified in the following paragraphs on and from the dates specified:(a) 1 January 1991—persons who are employed in the public sector, other than persons specified in paragraph (c),(b) 1 January 1992—employees of a council,(c) 1 January 1993—persons who are employed in the public sector in fire fighting or fire prevention,(d) 1 January 1993—all other employees in New South Wales whether or not employed subject to an award or agreement.(2) This Part applies despite any compulsory retirement age fixed by an award or agreement made before, on or after 1 January 1991. Section 54 does not affect the operation of this subsection.(3) In this Part:award or agreement means an award or enterprise agreement within the meaning of the Industrial Relations Act 1996.employed in the public sector means:(a) employed in the Public Service or the Education Teaching Service, or(b) employed in the Police Service otherwise than as a police officer, or(c) employed in the service of a public authority, or(d) holding a statutory office.employee includes a commission agent and a contract worker.(4) In the operation of this Part in relation to the retirement of an employee or class of employees, the meaning of retirement may vary according to the particular circumstances. However, the regulations may make provision for or with respect to circumstances which are to constitute retirement for the purposes of this Part or circumstances which are not to constitute retirement for such purposes or both.s 49ZU: Ins 1990 No 99, Sch 1 (1). Am 1995 No 11, Sch 1.3 [2]; 1995 No 18, Sch 5; 1997 No 9, Sch 1 [14] [15]; 2003 No 17, Sch 3.1.
49ZV Compulsory retirement unlawful
It is unlawful for a person:(a) to retire an employee from employment, or(b) to require an employee to retire from employment, or(c) to threaten to retire an employee from employment, oron the ground of the employee’s age.(d) to engage in conduct with a view to causing an employee to retire from employment,s 49ZV: Ins 1990 No 99, Sch 1 (1).
49ZW Provision requiring retirement on basis of age of no effect
(1) A provision of an Act or statutory instrument which:(a) relates to a person employed in the public sector, andis of no effect if, under this Part, it is unlawful for the person to be retired from employment.(b) requires the person to retire from, or to vacate, office on or after reaching a specified age,(2) This section applies except to the extent, if any, prescribed by regulation made under this Act.(3) Section 54 does not affect the operation of this section.s 49ZW: Ins 1990 No 99, Sch 1 (1). Am 1991 No 94, Sch 2.
49ZX Exceptions to this Part
This Part does not apply to the retirement of the following persons:(a) a judicial officer within the meaning of the Judicial Officers Act 1986,(b) (Repealed)(c) an officer who cannot be removed from office except following an address, declaration, resolution or other involvement of either or both of the Houses of Parliament and who is not appointed for a term,(d) a person or the holder of an office prescribed by regulation made under this Act.s 49ZX: Ins 1990 No 99, Sch 1 (1). Am 1996 No 108, Sch 2.1.
Part 4F HIV/AIDS vilification
pt 4F (ss 49ZXA–49ZXC): Ins 1994 No 28, Sch 2.
49ZXA Definitions
In this Part:HIV/AIDS infected means infected by the Human Immunodeficiency Virus or having the medical condition known as Acquired Immunodeficiency Syndrome.public act includes:(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected).pt 4F (ss 49ZXA–49ZXC): Ins 1994 No 28, Sch 2.
49ZXB HIV/AIDS vilification unlawful
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected).(2) Nothing in this section renders unlawful:(a) a fair report of a public act referred to in subsection (1), or(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or(c) a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.pt 4F (ss 49ZXA–49ZXC): Ins 1994 No 28, Sch 2.
49ZXC Offence of serious HIV/AIDS vilification
(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected) by means which include:(a) threatening physical harm towards, or towards any property of, the person or group of persons, or(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.Maximum penalty: In the case of an individual—50 penalty units or imprisonment for 6 months, or both. In the case of a corporation—100 penalty units.(2) A person is not to be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution.pt 4F (ss 49ZXA–49ZXC): Ins 1994 No 28, Sch 2.
Part 4G Age discrimination
pt 4G: Ins 1993 No 91, sec 3.
Division 1 General
49ZYA What constitutes discrimination on the ground of age
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if, on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, 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 is not of that age or age group or who does not have such a relative or associate who is that age or age group, or(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which 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 age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.(3) In this section:associate of a person means any person with whom he or she associates, whether socially or in business or commerce, or otherwise.relative of a person means:(a) any person to whom the person is related by blood, marriage, affinity or adoption, or(b) any person who is wholly or mainly dependent on, or a member of the household of, the person.ss 49ZYA–49ZYE: Ins 1993 No 91, sec 3.
Division 2 Discrimination in work
49ZYB Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of age:(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 employment is offered.(2) It is unlawful for an employer to discriminate against an employee on the ground of age:(a) in the terms or conditions of employment that are afforded to the employee, or(b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or(c) by dismissing the employee or subjecting the employee to any other detriment.(3) This section does not apply to employment for the purposes of a private household.ss 49ZYA–49ZYE: Ins 1993 No 91, sec 3.
49ZYC Discrimination against commission agents
(1) It is unlawful for a principal to discriminate against a person on the ground of age:(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 age:(a) in the terms or conditions that are afforded to the commission agent, or(b) by denying or limiting 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 subjecting the commission agent to any other detriment.ss 49ZYA–49ZYE: Ins 1993 No 91, sec 3.
49ZYD Discrimination against contract workers
It is unlawful for a principal to discriminate against a contract worker on the ground of age:(a) in the terms on which the contract worker is allowed to work, or(b) by not allowing the contract worker to work or continue to work, or(c) by denying or limiting access to any benefit associated with the work performed by the contract worker, or(d) by subjecting the contract worker to any other detriment.ss 49ZYA–49ZYE: Ins 1993 No 91, sec 3.
49ZYE Partnerships
(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 another person on the ground of age:(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 other 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 age:(a) by denying or limiting 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.ss 49ZYA–49ZYE: Ins 1993 No 91, sec 3.
49ZYF Industrial organisations
(1) It is unlawful for an industrial organisation to discriminate against a person on the ground of age:(a) by refusing or failing to accept the person’s application for membership of the organisation, or(b) in the terms on which it is prepared to admit the person to membership of the organisation.(2) It is unlawful for an industrial organisation to discriminate against a member of the organisation on the ground of age:(a) by denying or limiting access to any benefit provided by the organisation, or(b) by depriving the person of membership of the organisation or varying the terms of that membership, or(c) by subjecting the person to any other detriment.(3) (Repealed)s 49ZYF: Ins 1993 No 91, sec 3. Am 1996 No 17, Sch 5.
49ZYG Qualifying bodies
(1) It is unlawful for an authority or 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 age:(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) This section does not prevent such an authority or body from imposing a reasonable and appropriate minimum age under which an authorisation or qualification will not be conferred.s 49ZYG: Ins 1993 No 91, sec 3.
49ZYH Employment agencies
It is unlawful for an employment agency to discriminate against a person on the ground of age:(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.s 49ZYH: Ins 1993 No 91, sec 3.
49ZYI Junior employees
(1) Nothing in section 49ZYB (1) applies to or in respect of the offering of employment to persons who are under 21 years of age or the terms on which employment is offered to persons who are under 21 years of age.(2) Nothing in section 49ZYB (2) (a) applies to or in respect of the terms or conditions of employment that are afforded to employees who are under 21 years of age.(3) This section ceases to operate on a day appointed by proclamation for the purposes of this section, being a day that is not earlier than 2 years after the date of commencement of this Part.s 49ZYI: Ins 1993 No 91, sec 3. Subst 1994 No 28, Sch 4 (20).
49ZYJ Exception—genuine occupational qualification
(1) Nothing in this Division renders unlawful discrimination against a person on the ground of the person’s age if being a person of a particular age or age group is a genuine occupational qualification for the job.(2) Being a person of a particular age or age group is a genuine occupational qualification for a job if either of the following requirements is satisfied:(a) in dramatic performances or other entertainment, the essential nature of the job calls for a person of that age or age group for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a person of another age or age group,(b) the holder of the job provides persons of that age or age group with services for the purpose of promoting their welfare or furthering their education and those services can most effectively be provided by a person of a particular age or age group.(3) Being a person of a particular age or age group is a genuine occupational qualification for a job, or a job of a class or description, prescribed by the regulations.(4) Nothing in subsection (2) limits the Governor’s power to make a regulation for the purposes of subsection (3).ss 49ZYJ–49ZYL: Ins 1993 No 91, sec 3.
49ZYK Exception—voluntary retirement or severance schemes
Nothing in this Division renders it unlawful to offer to a person who is an employee, commission agent, contract worker or partner, on the ground of the length of service of that person, participation in a voluntary phased-in retirement scheme, voluntary retirement scheme, retirement incentives scheme, voluntary severance scheme or other like scheme.ss 49ZYJ–49ZYL: Ins 1993 No 91, sec 3.
Division 3 Discrimination in other areas
49ZYL Education
(1) It is unlawful for an educational authority to discriminate against a person on the ground of age:(a) by refusing or failing to accept the person’s application for admission as a student, or(b) in the terms on which it is prepared to admit the person as a student.(2) It is unlawful for an educational authority to discriminate against a student on the ground of age:(a) by denying or limiting access to any benefit provided by the educational authority, or(b) by expelling the student or subjecting the student to any other detriment.(3) Nothing in this section applies to or in respect of:(a) the admission of, or the refusal of admission to, a person to a school, college, university or other institution if the level of education or training sought by the person is provided only for students above a particular age, or(b) a private educational authority, or(c) an education authority prescribed by the regulations in relation to such circumstances (if any) as may be so prescribed.(4) Nothing in this section applies to or in respect of a refusal by an educational authority to enrol at a government school or registered non-government school a child who is not of or above the age of 6 years. In this subsection, registered non-government school has the same meaning as in the Education Reform Act 1990.(5) Nothing in this section applies to or in respect of benefits, including concessions, provided in good faith to a student by reason of his or her age.ss 49ZYJ–49ZYL: Ins 1993 No 91, sec 3.
49ZYM (Repealed)
s 49ZYM: Ins 1993 No 91, sec 3. Rep 1997 No 9, Sch 1 [16].
49ZYN Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age:(a) by refusing to provide the other person with those goods or services, or(b) in the terms on which the other person is provided with those goods or services.(2) Nothing in subsection (1) applies to or in respect of:(a) benefits, including concessions, provided in good faith to a person by reason of his or her age, or(b) holiday tours offered or provided to persons who are of a particular age or age group.(3) Nothing in this section renders it unlawful for a person to discriminate against a person on the ground of age in disposing of goods, or in providing services, by gift or will or in accordance with the terms of a gift or will.s 49ZYN: Ins 1993 No 91, sec 3.
49ZYO Accommodation
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of age:(a) by refusing the person’s application for accommodation, or(b) in the terms on which the principal or agent offers the other person accommodation, or(c) by deferring the other person’s application for accommodation or according the other person a lower order of precedence in any list of applicants for that accommodation.(2) It is unlawful for a person, whether as principal or agent, to discriminate against a person for whom accommodation has been provided on the ground of age:(a) in the terms or conditions on which accommodation is provided, or(b) by denying or limiting access to any benefit associated with accommodation, or(c) by evicting the person or subjecting the person to any other detriment.(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if:(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, in those premises, and(b) the accommodation provided in those premises is for no more than 6 persons, and(c) the accommodation is provided with a concession provided in good faith to a person by reason of the person’s age.s 49ZYO: Ins 1993 No 91, sec 3. Am 1997 No 9, Sch 1 [17].
49ZYP Registered clubs
(1) It is unlawful for a registered club to discriminate against a person (not being a person under the age of 18 years) on the ground of age:(a) by refusing or failing to accept the person’s application for membership of the club, or(b) in the terms on which it is prepared to admit the person to membership of the club.(2) It is unlawful for a registered club to discriminate against a member of the registered club on the ground of age:(a) by denying or limiting access to any benefit provided by the club, or(b) by depriving the member of membership of the club or varying the terms of that membership, or(c) by subjecting the member to any other detriment.(3) Nothing in subsection (1) or (2) applies to or in respect of a registered club:(a) that has as its principal object the provision of benefits for persons who are of a particular age or age group, or(b) so as to prevent the retention by the club of different categories of membership for members of different ages or age groups.(4) In determining whether the principal object of a registered club is as referred to in subsection (3) (a), regard is to be had to:(a) the essential character of the club, and(b) the extent to which the affairs of the club are so conducted that the persons primarily enjoying the benefits of membership are of the relevant age or age group, and(c) any other relevant circumstance.ss 49ZYP–49ZYR: Ins 1993 No 91, sec 3.
Division 4 Exceptions to Part 4G
49ZYQ Legal capacity and welfare of children
Nothing in this Part:(a) affects the operation of a law that relates to the legal capacity or the legal entitlements, obligations or disqualifications of persons who are under 18 years of age, or(b) affects the operation of a law the object of which is to protect the welfare of those persons, including provisions of the criminal law that are designed to protect them.ss 49ZYP–49ZYR: Ins 1993 No 91, sec 3.
49ZYR Special needs programs and activities
Nothing in this Part applies to or in respect of anything done to afford persons who are of a particular age or age group access to facilities, services or opportunities to meet their special needs or to promote equal or improved access for them to facilities, services and opportunities.ss 49ZYP–49ZYR: Ins 1993 No 91, sec 3.
49ZYS Superannuation
(1) Nothing in this Part renders unlawful discrimination against a person on the ground of age in the terms or conditions appertaining to a superannuation or provident fund or scheme if, subject to subsection (2), one or more of the following apply:(a) the discrimination occurs because of the application of a standard in force under the Occupational Superannuation Standards Act 1987, or a requirement under the Superannuation Industry (Supervision) Act 1993, of the Commonwealth,(b) the discrimination is required in order to comply with, or obtain a benefit of, or avoid a penalty under, any other Act of the Commonwealth,(c) the discrimination is based on actuarial or statistical data from a source on which it is reasonable to rely,(d) if there is no data of a kind referred to in paragraph (c), the discrimination is based on such other data as may be available and on which it is reasonable to rely,(e) if none of the above apply, the discrimination is reasonable having regard to any other relevant factors,(f) the discrimination is based on an existing condition and relates to a person who became a member of the fund or scheme before the commencement of this section or not more than 12 months after that commencement, or happens not more than 12 months after that commencement.(2) An exemption under subsection (1) (c)–(e) is available only if the sources on which the data are based and those relevant factors (if any) are disclosed to the Tribunal, if the Tribunal so requires.(3) This section has effect despite section 54 (1) (d).s 49ZYS: Ins 1993 No 91, sec 3. Am 1995 No 99, Sch 2.1; 1997 No 9, Sch 1 [18].
49ZYT Provision of insurance
Nothing in this Part renders unlawful discrimination on the ground of age the terms on which any annuity, life assurance policy or accident or insurance policy or any other kind of insurance is offered or may be obtained if:(a) those terms:(i) are based on actuarial or statistical data from a source on which it is reasonable to rely or, if there are no such data, on such other data as may be available, and(ii) are reasonable having regard to the data and any other relevant factors, and(b) the sources on which the data are based and those relevant factors (if any) are disclosed to the Tribunal, if the Tribunal so requires.ss 49ZYT–49ZYY: Ins 1993 No 91, sec 3.
49ZYU Credit applications
Nothing in this Part renders unlawful discrimination against a person on the ground of age with respect to the criteria on which an application for credit is assessed or the terms on which credit is offered or may be obtained if:(a) those criteria or terms:(i) are based on actuarial or statistical data from a source on which it is reasonable to rely or, if there are no such data, on such other data as may be available, and(ii) are reasonable having regard to the data and any other relevant factors, and(b) the sources on which the data are based and those relevant factors (if any) are disclosed to the Tribunal, if the Tribunal so requires.ss 49ZYT–49ZYY: Ins 1993 No 91, sec 3.
49ZYV Safety procedures
Nothing in this Part renders unlawful discrimination against a person on the ground of age with respect to:(a) the manner in which fitness to control a vehicle or a class of vehicle is assessed, oras the case requires, if that manner is, or those terms and conditions and length of time are, imposed in order to meet safety considerations that are reasonable in the circumstances.(b) the terms and conditions on which and the length of time during which a licence to drive or ride a vehicle is provided or made available,ss 49ZYT–49ZYY: Ins 1993 No 91, sec 3.
49ZYW Sport
(1) Nothing in this Part renders unlawful the exclusion of persons of particular ages from participation in any sporting activity.(2) Subsection (1) does not apply:(a) to the coaching of persons engaged in any sporting activity, or(b) to the administration of any sporting activity, or(c) to any sporting activity prescribed by the regulations for the purposes of this section.ss 49ZYT–49ZYY: Ins 1993 No 91, sec 3.
49ZYX Certain activities or matters may be prescribed to be lawful
Nothing in this Part renders unlawful any activity or matter declared to be lawful by regulation made for the purposes of this Part.ss 49ZYT–49ZYY: Ins 1993 No 91, sec 3.
49ZYY Operation of Part 4E not affected
Nothing in this Part affects the operation of Part 4E.ss 49ZYT–49ZYY: Ins 1993 No 91, sec 3.
Part 5 Other unlawful acts
50 Victimisation
(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:(a) brought proceedings against the discriminator or any other person under this Act,(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, oror by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.s 50: Am 1994 No 28, Sch 5 (7).
51 Advertisements
(1) In this section:(a) advertisement, without affecting the generality of the expression, includes any notice, sign, label, circular and any similar thing, and includes any matter that is not writing but which, by reason of the form or context in which it appears, conveys a message, and(b) a reference to the publishing of an advertisement is a reference to the publishing of the advertisement by any means including the publishing thereof in a newspaper or periodical, by radio or television broadcast or in a film.(2) A person shall not publish or cause to be published an advertisement that indicates an intention to do an act that is unlawful under this Act.Maximum penalty: 50 penalty units in the case of a body corporate or 10 penalty units in any other case.(3) For the purposes of subsection (2), but without limiting the generality of that subsection, the use of a word which, by reason of its gender, denotes a person or persons of a particular sex:(a) as or as part of:(i) the description of a job offered, orby an advertisement, or(ii) the description of a class of persons to whom any offer or invitation is made,(b) as or as part of a classification or heading under which an advertisement which makes any offer or invitation is published, shall be taken to indicate the intention that the offer of the job or other offer or invitation made by the advertisement is made only to persons of that sex, unless the contrary intention appears in the advertisement or in the classification or heading.(4) In proceedings for an offence under subsection (2), it is a defence for the defendant to prove that he or she believed on reasonable grounds that the publication of the advertisement was not an offence under that subsection.s 51: Subst 1982 No 142, Sch 4 (4). Am 1993 No 47, Sch 1; 1994 No 28, Schs 4 (21), 5 (22).
52 Aiding and abetting etc
It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.s 52: Subst 1994 No 28, Sch 4 (22).
53 Liability of principals and employers
(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.s 53: Subst 1994 No 28, Sch 4 (22). Am 1997 No 9, Sch 1 [19]; 1997 No 147, Sch 2.3 [1].
Part 6 General exceptions to this Act
pt 6, hdg: Am 1980 No 67, sec 2 (c).
54 Acts done under statutory authority
(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:(a) any other Act, whether passed before or after this Act,(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,(c) an order of the Tribunal,(d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or(e) (Repealed)(2) (Repealed)(3) Except as provided in this section, this Act has effect notwithstanding anything contained in:(a) the Co-operation Act 1923,(c) the Friendly Societies (NSW) Code or the Friendly Societies (NSW) Regulations,(c1) the Co-operatives Act 1992,(d), (e) (Repealed)or any instrument of whatever nature made or approved thereunder.(f) the Registered Clubs Act 1976,s 54: Am 1981 No 15, Schs 2 (20), 4 (7), 5 (22). Subst 1982 No 142, Sch 4 (5). Am 1994 No 28, Schs 4 (23), 5 (7); 1997 No 9, Sch 1 [20]; 1997 No 11, Sch 1.1 [1]; 1998 No 113, Sch 2.1.
55 Charities
(1) Nothing in this Act affects:(a) a provision of a deed, will or other instrument, whether made before or after the day appointed and notified under section 2 (2), that confers charitable benefits or enables charitable benefits to be conferred on persons of a class identified by reference to any one or more of the grounds of discrimination referred to in this Act, or(b) an act which is done in order to give effect to such a provision.(2) In this section, charitable benefits means benefits for purposes that are exclusively charitable according to the law in force in any part of Australia.
56 Religious bodies
Nothing in this Act affects:(a) the ordination or appointment of priests, ministers of religion or members of any religious order,(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order,(c) the appointment of any other person in any capacity by a body established to propagate religion, or(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.s 56: Am 1994 No 28, Sch 4 (24).
57 Voluntary bodies
(1) In this section, body means a body, the activities of which are carried on otherwise than for profit and which is not established by an Act, but does not include:(a) a co-operative registered under the Co-operatives Act 1992 or a society under the Friendly Societies Act 1989, or(b) a friendly society registered under the Friendly Societies Act 1989, or(c) a building society or credit union registered under the Financial Institutions (NSW) Code, or(d) a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998, or(e) a registered club.(2) Nothing in this Act affects:(a) any rule or practice of a body which restricts admission to membership of that body, or(b) the provision of benefits, facilities or services to members of that body.s 57: Am 1981 No 15, Schs 4 (8), 5 (23); 1982 No 142, Sch 4 (6); 1997 No 9, Sch 1 [21]; 1997 No 11, Sch 1.1 [2]; 1998 No 11, Sch 6.1 [2].
58 (Repealed)
s 58: Rep 1981 No 15, Sch 5 (24).
59 Establishments providing housing accommodation for aged persons
Nothing in this Act affects any rule or practice of an establishment which provides housing accommodation for aged persons, whether by statute or otherwise, whereby admission to the establishment is restricted to persons of a particular sex, marital status or race.s 59: Subst 1994 No 28, Sch 4 (25).
Parts 7, 7A
60–69O
pt 7: Rep 1982 No 142, Sch 3 (3).
ss 60–68: Rep 1982 No 142, Sch 3 (3).
s 68A: Ins 1981 No 15, Sch 5 (25). Rep 1982 No 142, Sch 3 (3).
s 68B: Ins 1981 No 15, Sch 5 (25). Rep 1982 No 142, Sch 3 (3).
s 69: Rep 1982 No 142, Sch 3 (3).
pt 7A: Ins 1981 No 15, Sch 2 (3). Rep 1997 No 77, Sch 2.1 [2].
s 69A: Ins 1981 No 15, Sch 2 (3). Am 1982 No 142, Sch 4 (7); 1986 No 218, Sch 1 (1); 1994 No 28, Sch 5 (23). Rep 1997 No 77, Sch 2.1 [2].
s 69B: Ins 1981 No 15, Sch 2 (3). Rep 1997 No 77, Sch 2.1 [2].
s 69C: Ins 1981 No 15, Sch 2 (3). Subst 1982 No 142, Sch 4 (8). Am 1983 No 117, sec 3. Rep 1997 No 77, Sch 2.1 [2].
s 69D: Ins 1981 No 15, Sch 2 (3). Rep 1997 No 77, Sch 2.1 [2].
s 69E: Ins 1981 No 15, Sch 2 (3). Am 1982 No 142, Sch 4 (9); 1994 No 28, Sch 5 (9) (17) (23); 1996 No 17, Sch 5. Rep 1997 No 77, Sch 2.1 [2].
s 69F: Ins 1981 No 15, Sch 2 (3). Am 1994 No 28, Sch 5 (24) (25); 1997 No 9, Sch 1 [22]. Rep 1997 No 77, Sch 2.1 [2].
s 69G: Ins 1981 No 15, Sch 2 (3). Am 1982 No 142, Sch 4 (10); 1994 No 28, Sch 5 (26). Rep 1997 No 77, Sch 2.1 [2].
s 69H: Ins 1981 No 15, Sch 2 (3). Am 1982 No 142, Sch 4 (11); 1994 No 28, Sch 5 (24). Rep 1997 No 77, Sch 2.1 [2].
s 69I: Ins 1981 No 15, Sch 2 (3). Am 1994 No 28, Sch 5 (25); 1997 No 9, Sch 1 [23]. Rep 1997 No 77, Sch 2.1 [2].
s 69J: Ins 1981 No 15, Sch 2 (3). Am 1982 No 142, Sch 4 (12); 1994 No 28, Sch 5 (27). Rep 1997 No 77, Sch 2.1 [2].
s 69K: Ins 1981 No 15, Sch 2 (3). Subst 1982 No 142, Sch 4 (13). Am 1994 No 28, Sch 5 (17) (23). Rep 1997 No 77, Sch 2.1 [2].
s 69L: Ins 1981 No 15, Sch 2 (3). Am 1982 No 142, Sch 4 (14); 1994 No 28, Sch 5 (16). Rep 1997 No 77, Sch 2.1 [2].
s 69M: Ins 1981 No 15, Sch 2 (3). Am 1982 No 142, Sch 4 (15). Rep 1997 No 77, Sch 2.1 [2].
s 69N: Ins 1981 No 15, Sch 2 (3). Am 1982 No 142, Sch 4 (16); 1997 No 9, Sch 1 [24]. Rep 1997 No 77, Sch 2.1 [2].
s 69NA: Ins 1997 No 9, Sch 1 [25]. Rep 1997 No 77, Sch 2.1 [2].
s 69O: Ins 1981 No 15, Sch 2 (3). Am 1997 No 9, Sch 1 [23] [26]. Rep 1997 No 77, Sch 2.1 [2].
Part 8 The Anti-Discrimination Board
70 Definition
In this Part:member means a member of the Board and includes the President.s 70: Am 1981 No 15, Sch 2 (4); 1982 No 142, Sch 3 (4).
71 Constitution of Board
There shall be an Anti-Discrimination Board.
72 Appointment of members
The Board shall consist of 5 members (including a President) appointed by the Governor.s 72: Am 1990 No 99, Sch 1 (2); 1999 No 31, Sch 1.1 [1].
73 Term of office
Subject to this Part a member shall hold office for such period not exceeding:(a) in the case of the President—7 years, andas is specified in the instrument of the member’s appointment and is eligible for re-appointment as a member.(b) in the case of any other member—3 years,s 73: Am 1981 No 15, Sch 3 (1). Subst 1982 No 142, Sch 3 (5). Am 1994 No 28, Sch 5 (25); 1999 No 31, Sch 1.1 [2] [3].
74 Eligibility for appointment to Board
(1) (Repealed)(2) A person is not eligible for appointment as a member if the person is:(a) (Repealed)(b) a member of the Legislative Council or the Legislative Assembly or a member of a House of Parliament of another State or of the Commonwealth.s 74: Am 1981 No 15, Sch 3 (2); 1990 No 108, Sch 1; 1994 No 28, Sch 5 (17).
75 Vacation of office
A member shall be deemed to have vacated the member’s office:(a) if the member dies,(b) if, being the full-time President, the member engages in any paid employment outside the duties of the member’s office,(c) if, being the President, the member absents himself or herself from duty for a period exceeding 14 consecutive days except on leave granted by the Minister (which leave the Minister is hereby authorised to grant), unless the member’s absence is occasioned by illness or other unavoidable cause,(d) if, being a member other than the President, the member is unavailable for duty for a period exceeding 28 days except on leave granted by the Minister (which leave the Minister is hereby authorised to grant) unless the member’s unavailability is occasioned by illness or other unavoidable cause,(e) if the member is nominated for election as a member of the Legislative Council or the Legislative Assembly or a member of a House of Parliament of another State or of the Commonwealth,(f) if the member resigns the member’s office by writing under the member’s hand addressed to the Governor,(f1) if, being the President, the member is removed from office by the Governor pursuant to section 80 (4), or(g) if, being a member other than the President, the member is removed from office by the Governor pursuant to section 76.s 75: Am 1981 No 15, Sch 3 (3); 1990 No 99, Sch 1 (3); 1994 No 28, Sch 5 (24) (25) (28); 1999 No 31, Sch 1.1 [4].
76 Removal from office
The Governor may for any cause which to the Governor seems sufficient remove any member (other than the President) from office.s 76: Am 1994 No 28, Sch 5 (26); 1999 No 31, Sch 1.1 [5].
77 Filling casual vacancy
On the occurrence of a vacancy in the office of a member, otherwise than by the expiration of the term for which the member was appointed, the Governor may appoint a person to hold that office.s 77: Am 1981 No 15, Sch 3 (4); 1994 No 28, Sch 5 (24).
78 Member not subject to Public Sector Management Act 1988
The provisions of Part 2 of the Public Sector Management Act 1988 shall not apply to or in respect of the appointment of a member, and a member shall not be subject to the provisions of that Act during the member’s term of office.s 78: Am 1994 No 28, Sch 5 (25); 1997 No 9, Sch 1 [27].
79 Remuneration of members other than the President
A member (other than the President) shall be entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of him or her.s 79: Am 1994 No 28, Sch 5 (8); 1999 No 31, Sch 1.1 [6].
80 President
(1) The President may be appointed on a full-time or part-time basis.(2) A President appointed on a full-time basis shall devote the whole of his or her time to the duties of his or her office and shall be entitled to be paid:(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and(b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of him or her.(3) A President appointed on a part-time basis is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of him or her.(3A) A person may hold office, and exercise functions, as President (whether full-time or part-time) even though the person also holds, and exercises the functions of, a judicial office or a statutory or other public office.(4) The Governor may remove the President from office for incapacity, incompetence or misbehaviour.(5) (Repealed)s 80: Am 1981 No 15, Sch 3 (5); 1988 No 34, Sch 1; 1990 No 99, Sch 1 (4); 1994 No 28, Sch 5 (8) (9); 1999 No 31, Sch 1.1 [7]–[9].
81 Acting President
(1) The Minister may appoint an acting President to act during the absence of the President or during a vacancy in the President’s office.(2) An acting President is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of him or her.(3) No person shall be concerned to inquire whether or not any occasion has arisen requiring or authorising an acting President to act as President.(4) A person appointed an acting President shall, while so acting, be deemed to be the President and shall have the immunities and functions of the President.(5) The Minister may, for any cause which to the Minister seems sufficient, remove an acting President from office.s 81: Subst 1981 No 15, Sch 3 (6). Am 1994 No 28, Sch 5 (8) (29) (30).
82 Alternate members
(1) The Minister may at any time appoint a person as an alternate member to act during the absence or illness of a member other than the President.(2) An alternate member shall have and may exercise, while acting as a member, the functions of the person for whom he or she is the alternate member.s 82: Am 1994 No 28, Sch 5 (16); 1999 No 31, Sch 1.1 [10].
83 (Repealed)
s 83: Rep 1981 No 15, Sch 3 (7).
84 Preservation of rights of President who was previously public servant
(1) In this section, superannuation scheme means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under any Act.(2) Subject to subsection (3) and to the terms of his or her appointment, where the President was, immediately before his or her appointment as the President:(a) an officer of the Public Service, orthe President:(b) a contributor to a superannuation scheme,(c) shall retain any rights accrued or accruing to him or her as such an officer or contributor,(d) may continue to contribute to any superannuation scheme to which the President was a contributor immediately before his or her appointment as the President, andas if the President had continued to be such an officer or contributor during his or her service as the President, and:(e) shall be entitled to receive any deferred or extended leave and any payment, pension or gratuity,(f) his or her service as the President shall be deemed to be service as an officer or employee for the purpose of any law under which those rights accrued or were accruing, under which the President continues to contribute or by which that entitlement is conferred, and(g) the President shall be deemed to be an officer or employee, and the Board shall be deemed to be his or her employer, for the purpose of the superannuation scheme to which the President is entitled to contribute under this subsection.(3) A President who, but for this subsection, would be entitled under subsection (2) to contribute to a superannuation scheme or to receive any payment, pension or gratuity under that scheme shall not be so entitled upon his or her becoming (whether upon his or her appointment as the President or at any later time while he or she holds office as the President) a contributor to any other superannuation scheme, and the provisions of subsection (2) (g) cease to apply to or in respect of him or her and the Board in any case where he or she becomes a contributor to such another superannuation scheme.(4) Subsection (3) does not prevent the payment to the President upon his or her ceasing to be a contributor to a superannuation scheme of such an amount as would have been payable to him or her if he or she had ceased, by way of resignation, to be an officer or employee for the purposes of that scheme.(5) The President shall not, in respect of the same period of service, be entitled to claim a benefit under this Act and another Act.s 84: Am 1981 No 15, Sch 3 (8); 1982 No 142, Sch 4 (17); 1994 No 28, Sch 5 (8) (9) (16) (31); 1999 No 31, Sch 1.1 [11]–[14].
85 Meetings of the Board
(1) The procedure for the calling of meetings of the Board and for the conduct of business at those meetings shall, subject to this Act, be as determined by the Board.(2) The President shall preside at all meetings of the Board at which he or she is present.(3) Three members shall form a quorum at any meeting of the Board and any duly convened meeting at which a quorum is present shall be competent to transact any business of the Board.(4) A decision of a majority of the members present at a meeting of the Board at which a quorum is present shall be the decision of the Board.(5) The President or member presiding shall have a deliberative vote and, in the event of an equality of votes, shall have a second or casting vote.s 85: Am 1981 No 15, Sch 2 (5); 1994 No 28, Sch 5 (16).
86 Officers and employees
(1) Such officers and employees as may be necessary to enable the President and the Board to exercise their functions may be appointed and employed under and subject to Part 2 of the Public Sector Management Act 1988.(2) A person who is employed for the purposes of subsection (1) is, while he or she is so employed, an officer of the Board.s 86: Subst 1981 No 15, Sch 2 (6). Am 1982 No 142, Sch 3 (6); 1994 No 28, Sch 5 (16); 1997 No 9, Sch 1 [23].
Part 9 The functions of the President, the Tribunal and the Board
pt 9, hdg: Am 1981 No 15, Sch 2 (7); 1982 No 142, Sch 3 (7).
Division 1 General
87 Definitions
In this Part:complainant, in relation to a complaint, means the person or each of the persons by whom that complaint is lodged.complaint means:(a) a complaint, not being a representative complaint, lodged under section 88, andand includes a representative complaint.(b) a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95,Court means the Supreme Court of New South Wales.representative body means a body (whether incorporated or unincorporated) which represents or purports to represent:(a) a group of people within New South Wales, or(whether or not the body is authorised to do so by the group concerned) and which has as its primary object the promotion of the interests and welfare of the group.(b) a group of people within New South Wales on the basis of their homosexuality,representative complaint means a complaint lodged under section 88 by a person on behalf of himself or herself and other persons, or two or more persons on behalf of themselves and other persons, and which is treated by the Tribunal as a representative complaint.respondent, in relation to a complaint, means the person or each of the persons against whom that complaint is lodged.vilification complaint means a complaint in respect of a contravention of section 20C, 38S, 49ZT or 49ZXB.s 87: Am 1981 No 15, Sch 2 (20); 1982 No 142, Sch 4 (18); 1989 No 48, Sch 1 (2); 1993 No 97, Sch 1 (2), 1994 No 28, Schs 4 (26), 5 (28); 1996 No 22, Sch 1 [5]; 1997 No 9, Sch 1 [28] [29].
Division 2 The functions of the President
pt 9, div 2, hdg: Am 1982 No 142, Sch 3 (8).
88 Making of complaints
(1) Except as provided by this section, a complaint in writing in respect of any contravention of this Act or the regulations which is alleged to have been committed by a person (other than a contravention in respect of which a specific penalty is imposed) may be lodged with the President by:(a) a person on the person’s own behalf, or(b) a person on the person’s own behalf and on behalf of another person or other persons, or(c) 2 or more persons on their own behalf, or(d) 2 or more persons on their own behalf and on behalf of another person or other persons.(1A) A complaint may be lodged under subsection (1) by a representative body on behalf of a named person or named persons, but only if the representative body has satisfied the President that:(a) each person on whose behalf the complaint is lodged consents to the complaint being lodged by the body on his or her behalf, and(b) the body has a sufficient interest in the complaint.(1B) A representative body has a sufficient interest in a complaint only if the conduct that constitutes the alleged contravention concerned is a matter of genuine concern to the body because of the way conduct of that nature adversely affects or has the potential to adversely affect the interests of the body or the interests or welfare of the group of people it represents.(1C) The President may require a representative body which has lodged a complaint to nominate a person to appear for the representative body in conciliation proceedings concerning the complaint before the President.(1D) A vilification complaint cannot be lodged under this section unless each person on whose behalf the complaint is lodged:(a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention concerned, or(b) claims to have that characteristic and there is no sufficient reason to doubt that claim.(2) If a person is under the age of 18 years or has a disability, his or her complaint may be lodged on his or her behalf by another person, but only if:(a) the President is satisfied that the person on whose behalf the complaint is to be lodged consents to the complaint being lodged on his or her behalf by the other person, and(b) in the case of a complaint to be lodged on behalf of a person (whether or not a person who has a disability) who is under the age of 18 years, the other person who is to lodge the complaint is, or does so with the consent of, the person’s parent or guardian.(2A) When a complaint is lodged on behalf of another person (the complainant) pursuant to subsection (2):(a) the person who lodges the complaint is, for the purposes of this Division, taken to have the same rights, obligations and interests with respect to the investigation or referral of the complaint as the complainant, and(b) the complaint is, for the purposes of this Part, taken to have been lodged by the complainant on his or her own behalf (except to the extent necessary to give effect to subsection (2)).(2B) Nothing in subsection (2) limits or restricts the discretion of the President under section 90 (1) to decline to entertain a complaint lodged in accordance with subsection (2):(a) where it appears to the President that the person who lodged the complaint has subsequently lost the confidence or authority of the complainant, or(b) for any other reason that, in the circumstances of the case, appears to the President sufficient.(2C) A person who because of any disability is incapable of consenting to the making of a complaint on his or her behalf is taken to have consented to the making of the complaint on his or her behalf if that consent is given by the person’s parent or guardian or by anyone else who the President is satisfied has a genuine concern for the person’s welfare.(3) A complaint shall be lodged within 6 months after the date on which the contravention of this Act or the regulations which is the subject of that complaint is alleged to have been committed.(4) Notwithstanding subsection (3), the President, on good cause being shown, may accept a complaint which is lodged more than 6 months after the date referred to in that subsection.(5) (Repealed)s 88: Am 1981 No 15, Sch 2 (20); 1982 No 142, Schs 3 (9), 4 (19); 1989 No 48, Sch 1 (3); 1993 No 97, Sch 1 (3); 1994 No 28, Schs 4 (27), 5 (32).
88A Death of complainant does not terminate complaint
(1) If a complainant dies before his or her complaint is finally determined, the complaint survives and the estate of the complainant:(a) may continue the carriage of the complaint, including any appeal, and(b) is entitled to the benefit of any monetary sum ordered to be paid by the respondent in respect of the complaint.(2) If a respondent dies before any complaint against him or her is finally determined, the complainant may continue to pursue the complaint (including any appeal) and any monetary sum ordered to be paid in respect of the complaint is payable from the estate of the respondent.s 88A: Ins 1997 No 9, Sch 1 [30].
89 Investigation of complaints by the President
(1) The President shall investigate each complaint lodged with the President under section 88.(2) If the complaint is a vilification complaint, or alleges an offence of serious vilification, the President may, by notice in writing, require any person to produce a copy of any broadcast the subject of the complaint at a specified place. A person must not fail to comply with the terms of such a notice.Maximum penalty: 50 penalty units, in the case of a body corporate, or 10 penalty units in any other case.s 89: Am 1981 No 142, Schs 3 (9), 4 (20); 1994 No 28, Sch 5 (32); 1997 No 9, Sch 1 [31].
89A Application for interim order under sec 112
The President, at any time after a complaint is lodged with the President under section 88 and before the President declines to entertain the complaint, resolves the complaint by conciliation or refers the complaint to the Tribunal under section 94 (1), as the case may be, may apply to the Tribunal for the making of an interim order under section 112 or for the variation or revocation of any such order.s 89A: Ins 1981 No 15, Sch 2 (8). Am 1982 No 142, Schs 3 (9), 4 (20); 1994 No 28, Sch 5 (32) (33).
89B Prosecution for serious vilification
(1) The President:(a) after investigating a vilification complaint, andshall consider whether an offence may have been committed under section 20D, 38T, 49ZTA or 49ZXC in respect of the matter the subject of the complaint.(b) before endeavouring to resolve the complaint by conciliation,(2) If the President considers that an offence may have been committed under section 20D, 38T, 49ZTA or 49ZXC, the President shall refer the complaint to the Attorney General.(3) The President may only make such a referral within 28 days after receipt of the complaint.(4) On making the referral, the President shall, by notification in writing addressed to the complainant, advise the complainant of:(a) the making of the referral, and(b) the rights of the complainant under section 91 (1).(5) Despite section 96, the Tribunal may stay an inquiry into the complaint until the conclusion of proceedings for the alleged offence under section 20D, 38T, 49ZTA or 49ZXC.s 89B: Ins 1989 No 48, Sch 1 (4). Am 1994 No 28, Sch 4 (28); 1996 No 22, Sch 1 [6]; 1997 No 9, Sch 1 [32].
89C (Repealed)
s 89C: Ins 1993 No 97, Sch 1 (4). Rep 1997 No 9, Sch 1 [33].
90 President may decline to entertain complaint
(1) Where, at any stage of the President’s investigation of a complaint, the President is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, the President may, by notification in writing addressed to the complainant, decline to entertain the complaint.(2) The President shall, in a notification under subsection (1), advise the complainant of:(a) the reason for declining to entertain the complaint, and(b) where section 91 (1) applies to the notification—the rights of the complainant under that subsection.(3) If the President declines under subsection (1) to entertain a complaint for any reason other than that the complaint is vexatious, misconceived or lacking in substance, the complainant may apply to the Tribunal for a review of the President’s decision.s 90: Am 1982 No 142, Schs 3 (9), 4 (21); 1994 No 28, Sch 5 (29) (33); 1998 No 48, Sch 2.1 [1].
90A Withdrawal of complaint
(1) The President may decide not to proceed with a complaint if satisfied that the person or (in the case of a complaint made on behalf of more than one person) each person on whose behalf the complaint was made does not wish to proceed with the complaint, in which case no further action is required to be taken on the complaint.(2) The President may amend a complaint made on behalf of more than one person to remove a person as a person on whose behalf the complaint was made if the President is satisfied that the person does not wish to proceed with the complaint.(3) The President is to give notice in writing of any decision by the President under this section to the complainant and respondent under the complaint concerned and to each person on whose behalf the complaint was made.(4) The President is not required to give a respondent notice of the President’s decision not to proceed with a complaint if the President had not notified the respondent that the complaint had been made.s 90A: Ins 1994 No 28, Sch 4 (29). Am 1997 No 9, Sch 1 [34].
91 Reference of complaint to Tribunal at requirement of complainant
(1) Where the President has given a complainant a notification under section 89B (4) or 90 (1), the complainant may, within 21 days after the date on which that notification was given, by notice in writing served on the President, require the President to refer the complaint to the Tribunal.(1A) Subsection (1) does not apply to a notification in which the President has given, as a reason for declining to entertain a complaint, that what has been alleged in the complaint does not disclose any contravention of this Act.(2) On receipt of a notice under subsection (1), the President shall refer the complaint to the Tribunal together with a report relating to any inquiries made by the President into the complaint.(3) If a notification under section 89B (4) or 90 (1) is given by post, the 21 day period referred to in subsection (1) is taken to run from, and includes, the fourth day after the notification was posted.s 91: Am 1981 No 15, Sch 2 (20); 1982 No 142, Schs 3 (9), 4 (22); 1989 No 48, Sch 1 (5); 1993 No 97, Sch 1 (5); 1994 No 28, Sch 5 (32); 1997 No 9, Sch 1 [35]; 2000 No 53, Sch 1.1 [1] [2].
92 Resolution of complaint by conciliation
(1) Where the President is of the opinion that a complaint, other than a complaint that the President has declined to entertain under section 90 (1), may be resolved by conciliation, the President shall endeavour to resolve the complaint by conciliation.(2) The President may, by notice in writing, require the complainant and the respondent, or either of them, to appear before the President, either separately or together, for the purpose of endeavouring to resolve the complaint by conciliation.(3) A person shall not fail to comply with the terms of a notice under subsection (2).Maximum penalty: 50 penalty units in the case of a body corporate or 10 penalty units in any other case.s 92: Am 1982 No 142, Sch 3 (9); 1993 No 47, Sch 1; 1994 No 28, Schs 4 (30), 5 (32) (33).
93 No right to representation
A complainant or respondent in conciliation proceedings before the President shall not be represented by any other person except by leave of the President.s 93: Am 1982 No 142, Sch 3 (9).
94 Reference of complaints to the Tribunal
(1) Where the President:(a) is of the opinion that a complaint cannot be resolved by conciliation,(b) has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, orthe President shall refer the complaint to the Tribunal together with a report relating to any inquiries made by the President into the complaint.(c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal,(2) Evidence of anything said or done in the course of conciliation proceedings under section 92 shall not be admissible in subsequent proceedings under this Part relating to the complaint.s 94: Am 1981 No 15, Sch 2 (20); 1982 No 142, Sch 3 (9); 1994 No 28, Sch 5 (9) (32) (33).
94A Officers of the President
(1) The President may, with the concurrence of the Minister, designate an officer of the Board for the purposes of this section.(2) The President may, by instrument in writing, delegate to an officer designated for the purposes of this section the exercise of such one or more of the President’s functions under sections 88 (4), 89, 92 and 93 as may be specified in the instrument.(3) An officer who is a delegate of the President under this section is, while the delegation remains unrevoked, an officer of the President.(4) A delegation under this section may be made subject to such conditions or limitations as to the exercise of any of the functions delegated, or as to time or circumstances, as may be specified in the instrument of delegation.(5) The President may, by instrument in writing, revoke wholly or in part a delegation under this section at any time, whether made by the President or not.(6) During a vacancy in the office of President, the Minister may, in like manner, revoke wholly or in part a delegation under this section.(7) A delegation under this section is not revoked by the occurrence of a vacancy in the office of President, except to the extent that the instrument of delegation so provides.(8) Notwithstanding any delegation under this section, the President may continue to exercise any or all of the functions delegated.(9) Any act or thing done or suffered by an officer of the President pursuant to a delegation under this section has the same force and effect as if done or suffered by the President.s 94A: Ins 1982 No 142, Sch 3 (10). Am 1994 No 28, Sch 5 (29) (32).
Division 3 The functions of the Tribunal
pt 9, div 3, hdg: Am 1981 No 15, Sch 2 (9).
95 Reference of matter to the Tribunal by the Minister
The Minister may refer any matter to the Tribunal for inquiry as a complaint under this Part.s 95: Am 1981 No 15, Sch 2 (20).
95A Leave of Tribunal required for inquiry into certain matters
(1) An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.(2) This section does not affect the operation of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1997 in relation to evidence given before, or findings made by, the Industrial Relations Commission.s 95A: Ins 1991 No 34, Sch 3. Subst 1996 No 17, Sch 5. Am 1997 No 77, Sch 2.1 [4].
96 Inquiries into complaints
The Tribunal shall hold an inquiry into each complaint or matter referred to it under section 91 (2), 94 (1) or 95.s 96: Am 1981 No 15, Sch 2 (20).
97 Single inquiry in relation to several complaints
Where the Tribunal is of the opinion that two or more complaints arise out of the same or substantially the same circumstances or subject-matter, it may hold a single inquiry in relation to those complaints.s 97: Am 1981 No 15, Sch 2 (20).
98 Joinder of parties by the Tribunal
(1) Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Tribunal is of the opinion that a person ought to be joined as a party to the inquiry, it may, by notice in writing given to that person, join that person as a party to the inquiry.(2) If a person is joined as a party to the inquiry as a complainant or respondent, the person is for the purposes of this Part taken to be a complainant or respondent (as appropriate) in relation to the complaint concerned.s 98: Am 1981 No 15, Sch 2 (20); 1994 No 28, Sch 4 (31).
99 (Repealed)
s 99: Am 1981 No 15, Sch 2 (20). Rep 1997 No 77, Sch 2.1 [5].
100 Parties to an inquiry
The parties to an inquiry shall be the complainant, the respondent, any person joined by the Tribunal as a party to the inquiry and any person to whom the Tribunal grants leave to appear as a party to the inquiry.s 100: Am 1981 No 15, Sch 2 (10) (20).
101 Right of appearance and to representation
(1) A party to an inquiry:(a) is entitled to appear personally or where the party is a body corporate, by a director, the secretary or an agent of the body corporate, and(b) may, by the leave of the Tribunal, be represented by a solicitor, by counsel or by an agent.(2) No person, other than a solicitor or counsel, is entitled to demand or receive any fee or reward for representing a party to an inquiry.s 101: Am 1981 No 15, Sch 2 (11); 1994 No 28, Sch 5 (34).
101A Officer assisting the Tribunal
(1) The Tribunal may make arrangements with the Board for an officer of the Board to appear at an inquiry to assist the Tribunal.(2) An officer of the Board assisting the Tribunal at an inquiry pursuant to arrangements made under subsection (1) shall, in relation to that inquiry, be subject to the control and direction of the Tribunal.s 101A: Ins 1981 No 15, Sch 2 (12).
101B (Repealed)
s 101B: Ins 1984 No 17, Sch 1 (1). Am 1993 No 47, Sch 1; 1994 No 28, Sch 4 (32). Rep 1997 No 77, Sch 2.1 [5].
102 Determination of representative complaints
At an inquiry held in respect of a representative complaint, the Tribunal shall determine, as a preliminary matter, whether that complaint should be dealt with as a representative complaint.s 102–104: Am 1981 No 15, Sch 2 (20).
103 Matters to be considered in determination of representative complaints
(1) The Tribunal shall not permit a complaint to be dealt with as a representative complaint unless it is satisfied that the complaint is made bona fide and in good faith as a representative complaint.(2) In considering whether a complaint is made bona fide and in good faith as a representative complaint, the Tribunal shall satisfy itself:(a) that:(i) the complainant is a member of a class of persons, the members of which class have been affected, or may reasonably be likely to be affected, by the conduct of the respondent,(ii) the complainant has in fact been affected by the conduct of the respondent,(iii) the class is so numerous that joinder of all its members is impracticable,(iv) there are questions of law or fact common to all members of the class,(v) the claims of the complainant are typical of the claims of the class,(vi) multiple complaints would be likely to produce varying determinations which could have incompatible or inconsistent results for the individual members of the class, and(vii) the respondent has acted on grounds apparently applying to the class as a whole, thereby making relief appropriate for the class as a whole, or(b) that notwithstanding that the requirements of paragraph (a) have not been satisfied, the justice of the case demands that the matter be dealt with and a remedy provided by means of a representative complaint.s 102–104: Am 1981 No 15, Sch 2 (20).
104 Amendment of representative complaints
Where the Tribunal is satisfied:(a) that the complaint could be dealt with as a representative complaint if the class of persons on whose behalf that complaint is lodged is increased, reduced or otherwise altered, the Tribunal may amend the complaint so that the complaint can be dealt with as a representative complaint, or(b) that the complaint has been wrongly made as a representative complaint, the Tribunal may amend the complaint by removing the names of the persons or the class of persons on whose behalf that complaint was lodged so that the complaint can be dealt with as a complaint other than a representative complaint.s 102–104: Am 1981 No 15, Sch 2 (20).
105 Ordinary complaints not precluded by representative complaints
Nothing in this Part shall prevent a person from lodging a complaint, other than a representative complaint, under section 88 (1) or (2), notwithstanding that the conduct in respect of which the complaint is lodged has also been the conduct in respect of which a representative complaint has been lodged.
106 Resolution of complaint by conciliation
The Tribunal:(a) may endeavour, by all such means as to it seem reasonable, to resolve a complaint the subject of an inquiry by conciliation, and(b) shall take all such steps as to it seem reasonable to effect an amicable settlement of a complaint the subject of an inquiry and for this purpose may adjourn an inquiry at any stage to enable the parties to negotiate with a view to settlement of the complaint by amicable arrangements.s 106: Am 1981 No 15, Sch 2 (20).
107, 108 (Repealed)
s 107: Am 1981 No 15, Sch 2 (20); 1982 No 142, Sch 3 (9). Rep 1997 No 77, Sch 2.1 [5].
s 108: Am 1981 No 15, Sch 2 (13) (20); 1982 No 142, Sch 4 (23); 1984 No 17, Sch 1 (2); 1986 No 218, Sch 1 (2). Rep 1997 No 77, Sch 2.1 [5].
109 Proof of exceptions
Where by any provision of this Act or the regulations, conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any inquiry lies upon the respondent.
110, 110A (Repealed)
s 110: Am 1981 No 15, Sch 2 (20). Rep 1997 No 77, Sch 2.1 [5].
s 110A: Ins 1984 No 17, Sch 1 (3). Am 1993 No 47, Sch 1; 1994 No 28, Sch 4 (33). Rep 2000 No 33, Sch 2.1.
111 Tribunal may dismiss frivolous etc complaints
(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.(1A) The Tribunal may dismiss a complaint if satisfied that the person or (in the case of a complaint made on behalf of more than one person) each person on whose behalf the complaint was made does not wish to proceed with the complaint.(1B) The Tribunal may amend a complaint made on behalf of more than one person to remove a person as a person on whose behalf the complaint was made if the Tribunal is satisfied that the person does not wish to proceed with the complaint.(2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry.(3) Nothing in this section limits the generality of the powers conferred on the Tribunal by Chapter 6 of the Administrative Decisions Tribunal Act 1997.s 111: Am 1981 No 15, Sch 2 (20); 1994 No 28, Sch 4 (34); 1997 No 77, Sch 2.1 [6].
112 Making of interim orders
(1) The Tribunal or, where the senior judicial member of the Tribunal is of the opinion that it is expedient that a judicial member of the Tribunal sitting alone should exercise the functions of the Tribunal under this section, the senior judicial member or a judicial member selected by him or her may, on the application of the President under section 89A or on the application of a party to an inquiry at any time after the lodgment of the complaint into which that inquiry is held, make an interim order to preserve:(a) the status quo between the parties to the complaint, orpending determination of the matter the subject of the complaint.(b) the rights of the parties to the complaint,(2) (Repealed)s 112: Am 1981 No 15, Sch 2 (14); 1982 No 142, Schs 3 (9), 4 (24); 1986 No 218, Sch 1 (3); 1994 No 28, Sch 5 (8).
113 Order or other decision of the Tribunal
(1) After holding an inquiry, the Tribunal may:(a) dismiss the complaint the subject of that inquiry, or(b) find the complaint substantiated and do any one or more of the following:(i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,(ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,(iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,(iiia) in respect of a vilification complaint, order the respondent to publish an apology in respect of the matter the subject of the complaint or order the respondent to publish a retraction in respect of the matter (or order both) and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),(iiib) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,(iv) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or(v) decline to take any further action in the matter.(2) The power of the Tribunal to award damages to a complainant shall, in the case of a complaint lodged by a representative body, be taken to be a power to award damages to the person or persons on behalf of whom the complaint is lodged and not to include a power to award damages to the representative body.(3) In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.(4) If 2 or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated, the Tribunal must not make an order or orders for damages under this section that would cause the respondent to pay more than $40,000 in the aggregate in respect of that public act.s 113: Am 1981 No 15, Sch 2 (20); 1982 No 142, Sch 4 (25); 1989 No 48, Sch 1 (6); 1993 No 97, Sch 1 (6), 1994 No 28, Sch 4 (35); 1997 No 9, Sch 1 [36].
114 Costs
(1) Except as provided by section 111 (2) and subsection (2) each party to an inquiry shall pay his or her own costs.(2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.s 114: Am 1981 No 15, Sch 2 (20); 1994 No 28, Sch 5 (9).
115 (Repealed)
s 115: Am 1981 No 15, Sch 2 (20). Rep 1997 No 77, Sch 2.1 [5].
116 Compliance with order of the Tribunal
A person shall not refuse, neglect or for any reason fail to obey or comply with an order referred to in section 113 (b) (ii), (iii), (iiia) or (iiib), or an interim order, of the Tribunal.Maximum penalty: 50 penalty units in the case of a body corporate or 10 penalty units in any other case.s 116: Am 1981 No 15, Sch 2 (20); 1989 No 48, Sch 1 (7); 1993 No 47, Sch 1; 1994 No 28, Sch 4 (36).
117–117B (Repealed)
s 117: Am 1981 No 15, Sch 2 (20). Rep 1997 No 77, Sch 2.1 [5].
s 117A: Ins 1981 No 15, Sch 2 (15). Rep 1997 No 77, Sch 2.1 [5].
s 117B: Ins 1981 No 15, Sch 2 (15). Rep 1997 No 77, Sch 2.1 [5].
118 Appeals to Appeal Panel against decisions and orders of Tribunal
An order or other decision made by the Tribunal under this Act may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 by a party to the proceedings in which the order or decision is made.s 118: Am 1981 No 15, Sch 2 (16) (20). Subst 1997 No 77, Sch 2.1 [7].
Division 4 The functions of the Board
pt 9, div 4, hdg: Am 1981 No 15, Sch 2 (17).
119 General functions of the Board
For the purpose of eliminating discrimination and promoting equality and equal treatment of all human beings, the Board may, by resolution, determine to:(a) carry out investigations, research and inquiries relating to discrimination and in particular discrimination against a person or persons on the ground of:(i) age,(ii) a characteristic that appertains generally to persons of a particular age,(iii) a characteristic that is generally imputed to persons of a particular age,(iv) religious or political conviction,(v) a characteristic that appertains generally to persons of a particular religious or political conviction,(vi) a characteristic that is generally imputed to persons of a particular religious or political conviction,(vii) mental disability,(viii) a characteristic that appertains to persons having a mental disability or any particular mental disability,(ix) a characteristic that is generally imputed to persons having a mental disability or any particular mental disability,(x)–(xii) (Repealed)(xiii) membership or non-membership of an industrial organisation, or(xiv) a characteristic that appertains generally to membership or non-membership of an industrial organisation or a characteristic that is generally imputed to members or non-members of an industrial organisation,(b) acquire and disseminate knowledge on all matters relating to the elimination of discrimination and the achievement of equal rights,(c) arrange and co-ordinate consultations, discussions, seminars and conferences,(d) review, from time to time, the laws of the State,(e) consult with governmental, business, industrial and community groups and organisations in order to ascertain means of improving services and conditions affecting minority groups and other groups which are the subject of discrimination and inequality,(f) hold public inquiries, and(g) develop human rights programmes and policies.s 119: Am 1981 No 15, Sch 1 (4); 1982 No 142, Schs 3 (11), 4 (26).
120 Reference of certain matters to the Board by the Minister
(1) The Minister may refer to the Board for report any matter relating to:(a) a law or a proposed law, orwhich conflicts with or may give rise to conflict with this Act or the regulations.(b) a practice, an alleged practice or a proposed practice of any person or class of persons,(2) The Board shall conduct an examination into any matter referred to it by the Minister under subsection (1) and report to the Minister its findings and conclusions.
121 Review of legislation etc
The Board shall, as soon as possible after the day appointed and notified under section 2 (2), undertake a review of:(a) the legislation of the State,(b) governmental policies and practices, andwith a view to identifying circumstances where discrimination on a ground referred to in this Act occurs, in substance or effect, against any person or class of persons and shall furnish a report of its findings to the Minister within 12 months after that date.(c) the policies and practices of all superannuation funds and pension schemes whether governmental or otherwise,
121A Execution of functions of the Board
Resolutions of the Board relating to:(a) matters referred to in section 119, andshall be implemented by the President.(b) the conduct of an examination under section 120 (2),s 121A: Ins 1982 No 142, Sch 3 (12).
122 Annual report
(1) The Board shall, on or before the thirtieth day of September each year, prepare and present to the Minister a report on:(a) the administration of this Act and the regulations during the period of 12 months ending on the preceding thirtieth day of June, and(b) the research undertaken by the Board during that period and any recommendations that the Board considers appropriate for the elimination or modification of legislative provisions that discriminate on a ground referred to in this Act against any person or class of persons.(1A) The report shall include an account by the President of the administration of Division 2 during that period of 12 months.(2) The Minister shall lay the report, or cause it to be laid, before both Houses of Parliament as soon as practicable after its receipt by the Minister.s 122: Am 1982 No 142, Sch 3 (13); 1994 No 28, Sch 5 (30).
Part 9A Equal Opportunity in Public Employment
pt 9A: Ins 1980 No 67, sec 2 (d).
Division 1 General
122A Definitions
In this Part:means a person, group of persons or body specified in section 122B (1) (a), (b) or (c) or the subject of a proclamation pursuant to section 122B (1) (d).investigation means an investigation under section 122N (1).management plan means an equal employment opportunity management plan referred to in section 122J (1).reference means a matter which has been referred to the Board by the Director under section 122M.s 122A: Ins 1980 No 67, sec 2 (d). Am 1981 No 15, Sch 5 (26).
122B Application of Part 9A—authorities
(1) This Part applies to and in respect of:(a) each Department, and(a1) the Education Teaching Service, and(b) each declared authority within the meaning of the Public Sector Management Act 1988, and(b1) each State owned corporation,(c) the Police Service, and(d) such persons, groups of persons or bodies as the Governor may, by proclamation published in the Gazette, declare to be authorities to which this Part applies.(2) The Governor may, by proclamation published in the Gazette, declare that a proclamation made pursuant to subsection (1) (d) has ceased to have effect.s 122B: Ins 1980 No 67, sec 2 (d). Am 1980 No 70, sec 3 (a); 1990 No 48, Sch 1; 1990 No 118, Sch 3; 1995 No 32, Sch 3; 1997 No 9, Sch 1 [37].
122C Objects
The objects of this Part are:(a) to eliminate and ensure the absence of discrimination in employment on the grounds of race, sex, marital status and physical impairment, andin the authorities to which this Part applies.(b) to promote equal employment opportunity for women, members of racial minorities and physically handicapped persons,s 122C: Ins 1980 No 67, sec 2 (d). Am 1984 No 17, Sch 2 (1).
122D Exercise of functions of authorities under Part 9A
The functions of an authority to which this Part applies, being the functions conferred or imposed on the authority by or under this Part, shall be exercised:(a) in the case of an authority referred to in section 122B (1) (a)—by the Department Head, or(a1) in the case of the authority referred to in section 122B (1) (a1)—by the Director-General of the Department of School Education, or(b) in the case of an authority referred to in section 122B (1) (b)—by the authority, or(b1) in the case of a corporation referred to in section 122B (1) (b1)—by the corporation, or(c) in the case of the authority referred to in section 122B (1) (c)—by the Commissioner of Police, and(d) in the case of an authority the subject of a proclamation under section 122B (1) (d):(i) except as provided by subparagraph (ii)—by the authority, or(ii) where in the proclamation the Governor specifies a person as being the person by whom the functions conferred or imposed on the authority by or under this Part shall be exercised—by the person so specified.s 122D: Ins 1980 No 67, sec 2 (d). Am 1980 No 70, sec 3 (b); 1990 No 118, Sch 3; 1997 No 9, Sch 1 [38].
Division 2 The Director of Equal Opportunity in Public Employment
122E The Director
There shall be a Director of Equal Opportunity in Public Employment.s 122E: Ins 1980 No 67, sec 2 (d).
122F Appointment of Director
(1) The Director shall be appointed by the Governor, on the recommendation of the Minister.(2) The employment of the Director is subject to Part 2A of the Public Sector Management Act 1988, but is not subject to Part 2 of that Act.s 122F: Ins 1980 No 67, sec 2 (d). Am 1989 No 105, Sch 1.
122G–122HD (Repealed)
s 122G: Ins 1980 No 67, sec 2 (d). Rep 1989 No 105, Sch 1.
s 122H: Ins 1980 No 67, sec 2 (d). Am 1981 No 15, Sch 5 (27). Subst 1982 No 142, Sch 3 (14). Rep 1989 No 105, Sch 1.
s 122HA: Ins 1982 No 142, Sch 3 (14). Rep 1989 No 105, Sch 1.
s 122HB: Ins 1982 No 142, Sch 3 (14). Am 1988 No 34, Sch 1. Rep 1989 No 105, Sch 1.
s 122HC: Ins 1982 No 142, Sch 3 (14). Rep 1989 No 105, Sch 1.
s 122HD: Ins 1982 No 142, Sch 3 (14). Rep 1989 No 105, Sch 1.
122HE Acting Director
(1) The Minister may appoint an acting Director during the absence of the Director or during a vacancy in the Director’s office.(2) An acting Director is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the acting Director.(3) No person shall be concerned to inquire whether or not any occasion has arisen requiring or authorising an acting Director to act as Director.(4) A person appointed an acting Director shall, while so acting, be deemed to be the Director and shall have the immunities and functions of the Director.(5) The Minister may, for any cause which to the Minister seems sufficient, remove an acting Director from office.s 122HE: Ins 1982 No 142, Sch 3 (14). Am 1994 No 28, Sch 5 (30) (35).
122HF (Repealed)
s 122HF: Ins 1982 No 142, Sch 3 (14). Rep 1989 No 105, Sch 1.
122HG Staff
(1) Such officers and employees as may be necessary to enable the Director to exercise the Director’s functions may be appointed and employed under and subject to Part 2 of the Public Sector Management Act 1988.(2) A person who is employed for the purposes of subsection (1) is, while the person is so employed, an officer of the Director.s 122HG: Ins 1982 No 142, Sch 3 (14). Am 1994 No 28, Sch 5 (17) (36); 1997 No 9, Sch 1 [23].
122I Functions
(1) The functions of the Director are:(a) to advise and assist authorities in relation to management plans,(b) to evaluate the effectiveness of management plans in achieving the objects of this Part, and(c) to make reports and recommendations, at least once in each year, to the Minister as to:(i) the operation of management plans, and(ii) such matters as the Director thinks appropriate relating to the objects of this Part.(2) The Director may exercise such other functions as are conferred or imposed on the Director by or under this Part.(3) The Director may, in the exercise of the Director’s functions, consult, as the Director thinks fit, with persons or bodies, including the Community Relations Commission, who are concerned with the welfare of women, members of racial minorities or physically handicapped persons.(4) The Director may do all such supplemental, incidental and consequential acts as may be necessary or expedient for the exercise of the Director’s functions.s 122I: Ins 1980 No 67, sec 2 (d). Am 1984 No 17, Sch 2 (2); 1994 No 28, Sch 5 (36) (37); 2000 No 77, Sch 3.3.
Division 3 Equal employment opportunity management plans
122J Preparation and implementation of management plans
(1) Each authority shall prepare and implement an equal employment opportunity management plan in order to achieve the objects of this Part.(2) The management plan of an authority shall include provisions relating to:(a) the devising of policies and programmes by which the objects of this Part are to be achieved,(b) the communication of those policies and programmes to persons within the authority,(c) the collection and recording of appropriate information,(d) the review of personnel practices within the authority (including recruitment techniques, selection criteria, training and staff development programmes, promotion and transfer policies and patterns, and conditions of service) with a view to the identification of any discriminatory practices,(e) the setting of goals or targets, where these may reasonably be determined, against which the success of the management plan in achieving the objects of this Part may be assessed,(f) the means, other than those referred to in paragraph (e), of evaluating the policies and programmes referred to in paragraph (a),(g) the revision and amendment of the management plan, and(h) the appointment of persons within the authority to implement the provisions referred to in paragraphs (a)–(g).(3) The management plan of an authority may include provisions, other than those referred to in subsection (2), which are not inconsistent with the objects of this Part.(4) The preparation of a management plan shall take place and the implementation of the management plan shall commence:(a) in the case of an authority referred to in section 122B (1) (a)—on or before 1 September 1981,(b) in the case of an authority referred to in section 122B (1) (b) or (c)—on or before 1 March 1982, and(c) in the case of an authority the subject of a proclamation under section 122B (1) (d)—on or before such date as is specified in the proclamation.(5) An authority may, from time to time, amend its management plan.(6) Each authority shall send a copy of its management plan or any amendment thereto to the Director as soon as practicable after the management plan or the amendment, as the case may be, has been prepared.s 122J: Ins 1980 No 67, sec 2 (d).
122JA (Repealed)
s 122JA: Ins 1984 No 17, Sch 2 (3). Rep 1997 No 9, Sch 1 [39].
122K Inconsistencies
(1) The provisions of a management plan shall, to the extent of any inconsistency between those provisions and the provisions of this Act, prevail.(2) Subsection (1) does not apply to or in respect of the provisions of a management plan which are the subject of a reference.s 122K: Ins 1980 No 67, sec 2 (d).
122L Annual report to Director
(1) Each authority shall report to the Director at least once in each year after the year in which the implementation of its management plan commenced.(2) A report under subsection (1) shall specify:(a) the activities and programmes undertaken:(i) to eliminate and ensure the absence of discrimination in employment on the grounds of race, sex, marital status and physical impairment, andduring the period to which the report relates,(ii) to promote equal employment opportunity for women, members of racial minorities and physically handicapped persons,(b) the results achieved by the activities and programmes referred to in paragraph (a), including redistributive effects in the workforce, and(c) the proposed activities and specific aims set for the year following the period to which the report relates.(3) A report under subsection (1) shall be made to the Director:(a) in the case of an authority referred to in section 122B (1) (a)—on or before 1 October in each year,(b) in the case of an authority referred to in section 122B (1) (b) or (c)—on or before 1 July in each year, and(c) in the case of an authority referred to in section l22B (1) (d)—on or before each anniversary of the date specified by proclamation in relation to that authority in accordance with section 122J (4) (c).s 122L: Ins 1980 No 67, sec 2 (d). Am 1982 No 142, Sch 4 (27); 1984 No 17, Sch 2 (4).
122M References
Where the Director is dissatisfied with any matter relating to the preparation, amendment or implementation of a management plan by an authority or any failure or omission of an authority with respect to the preparation, amendment or implementation of a management plan, the Director may refer the matter to the Board.s 122M: Ins 1980 No 67, sec 2 (d). Am 1984 No 17, Sch 2 (5).
122N Investigation
(1) The Board shall endeavour to determine a reference and may, for that purpose, hold an investigation into the reference.(2) Except as otherwise provided by this Part, an investigation shall be held in such manner as the Board determines.ss 122N–122S: Ins 1980 No 67, sec 2 (d).
122O Representation
The Director or an authority in respect of which a reference is made is not entitled to be represented by counsel or a solicitor during the holding of an investigation into the reference.ss 122N–122S: Ins 1980 No 67, sec 2 (d).
122P Powers of the Board on an investigation
(1) For the purposes of an investigation, the Board may require the Director and an authority:(a) to answer any question,(b) to give it a statement of information,(c) to produce to it any document or other thing, or(d) to give to it a copy of any document.(2) A requirement under subsection (1):(a) shall be in writing,(b) shall specify or describe the information, document or thing required, and(c) shall specify a time for compliance.(3) The Director or an authority of whom a requirement under subsection (1) is made shall comply with the requirement notwithstanding:(a) any rule of law which, in proceedings in a court of law, might justify an objection to compliance with a like requirement on grounds of public interest,(b) any privilege of the Director or authority, or(c) any duty of secrecy or other restriction on disclosure applying to the Director or authority.(4) Notwithstanding subsection (3), the Board shall set aside a requirement under subsection (1) if it appears to it that the Director or authority of whom the requirement is made has a ground of privilege whereby, in proceedings in a court of law, the Director or authority, as the case may be, might resist a like requirement and it does not appear to the Board that the Director or authority, as the case may be, consents to compliance with the requirement.ss 122N–122S: Ins 1980 No 67, sec 2 (d).
122Q Incriminatory statements
(1) Where, under section 122P, a person is required to give a statement that tends to incriminate that person, neither the requirement nor the statement may be used in any proceedings against that person except proceedings under section 124.(2) Subsection (1) applies whether the person required to give a statement objects to giving it or not.ss 122N–122S: Ins 1980 No 67, sec 2 (d).
122R Conclusion of investigation
At the conclusion of an investigation in relation to a reference, the Board may do either or both of the following:(a) make recommendations to the Director or to the authority in respect of which the reference is made,(b) furnish a report, with or without recommendations, to the Minister in relation to the reference.ss 122N–122S: Ins 1980 No 67, sec 2 (d).
122S Direction to amend management plan
(1) On receipt of a report from the Board under section 122R (b), the Minister may, by instrument in writing, direct an authority to amend its management plan in the manner specified in the instrument.(2) An authority shall comply with a direction given to it by the Minister under subsection (1).ss 122N–122S: Ins 1980 No 67, sec 2 (d).
Part 9B Inter-governmental arrangements
pt 9B: Ins 1985 No 112, Sch 1 (2).
122T Definitions
(1) In this Part:Commonwealth Minister means a Minister of the Crown of the Commonwealth.human rights has the meaning ascribed thereto in section 3 (1) of the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth and includes any rights and freedoms prescribed to be human rights for the purposes of this definition.Human Rights and Equal Opportunity Commission means the Human Rights and Equal Opportunity Commission established under the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.(2) In this Part, a reference to an Act of the Commonwealth is a reference to the Act as amended from time to time and includes a reference to any Act made in substitution for that Act.(3) In this Part, a reference to an officer of the Board includes a reference to an officer of the Board designated for the purposes of section 94A.s 122T: Ins 1985 No 112, Sch 1 (2). Am 1997 No 9, Sch 1 [40] [41].
122U Arrangements relating to human rights
(1) The Minister may make an arrangement with a Commonwealth Minister for or in relation to the performance by the State, or by an authority of the State, on behalf of the Commonwealth of functions (including functions of the Human Rights and Equal Opportunity Commission) relating to the promotion of the observance of human rights.(2) An arrangement under this section may contain such incidental or supplementary provisions as the Minister and the Commonwealth Minister with whom the arrangement is made think necessary.(3) The Minister may arrange with the Commonwealth Minister with whom an arrangement is in force under this section for the variation or revocation of the arrangement.(4) An arrangement under this section, or the variation or revocation of such an arrangement, shall be in writing and a copy of each instrument by which an arrangement under this section has been made, varied or revoked shall be published in the Gazette.s 122U: Ins 1985 No 112, Sch 1 (2). Am 1997 No 9, Sch 1 [42].
122V Exercise of functions by State authorities pursuant to arrangement
Where an arrangement under section 122U is in force, the President, the Board or any officer of the Board may, subject to the terms of the arrangement and to any agreement made or authorisation given pursuant to the arrangement, exercise a function of the Human Rights and Equal Opportunity Commission or a function of a prescribed person within the meaning of section 3 (1) of the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.s 122V: Ins 1985 No 112, Sch 1 (2). Am 1997 No 9, Sch 1 [40] [42].
122W Exercise of functions by State authorities pursuant to delegation etc
The President, the Board or any officer of the Board may exercise a function delegated to or conferred (otherwise than pursuant to an arrangement under section 122U) on the President, the Board or any officer of the Board, as the case may be, pursuant to the provisions of the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth, the Racial Discrimination Act 1975 of the Commonwealth, the Sex Discrimination Act 1984 of the Commonwealth or the provisions of any other law which may be prescribed for the purposes of this section.s 122W: Ins 1985 No 112, Sch 1 (2). Am 1997 No 9, Sch 1 [40].
122X Exercise of certain functions by officers of the Board
(1) Nothing in section 122V or 122W enables an officer of the Board to exercise a function referred to in either of those sections, being a function relating to the investigation and conciliation of complaints, without the approval of the President and the concurrence of the Minister.(2) An approval or concurrence referred to in subsection (1) may be given generally or in any particular case or class or description of cases.s 122X: Ins 1985 No 112, Sch 1 (2).
Part 10 Miscellaneous
123 Effect of contravention of Act
(1) A contravention of this Act shall attract no sanction or consequence, whether criminal or civil, except to the extent expressly provided by this Act.(2) Nothing in subsection (1) prevents an action for defamation.
124 Obstruction
A person shall not, without lawful excuse, wilfully obstruct, hinder or resist:(a) the President, or an officer of the President, in the exercise of his or her functions under Division 2 of Part 9, or(b) a member of the Tribunal, the Registrar, a member of the Board, or the Director or an officer of the Director, in the exercise of his or her functions under this Act or the regulations.Maximum penalty: 50 penalty units in the case of a body corporate or 10 penalty units in any other case.s 124: Am 1980 No 67, sec 2 (e); 1981 No 15, Sch 2 (18). Subst 1982 No 142, Sch 3 (15). Am 1993 No 47, Sch 1; 1994 No 28, Schs 4 (37), 5 (9).
125 Proceedings for offences
Proceedings for an offence against this Act or the regulations shall be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.s 125: Subst 1989 No 48, Sch 1 (8).
126 Granting of exemptions by Minister
(1) The Minister on the recommendation of the Board, may, by order published in the Gazette, grant an exemption from this Act or the regulations or such parts of this Act or the regulations as are specified in the order in respect of:(a) a person or class of persons,(b) an activity or class of activity, or(c) any other matter or circumstance specified in the order.(2) Such an exemption remains in force for the period specified in the order, which cannot be more than 10 years.(3) The Minister may, on the recommendation of the Board, renew any exemption, for no more than 10 years at a time, by making a new order in accordance with subsection (1).(4) The power to make an order conferred by this section includes power, exercisable in the same manner and subject to the same conditions, to vary or revoke any order so made.s 126: Am 1997 No 9, Sch 1 [43].
126A Exemption for special needs programs and activities
(1) Nothing in Parts 3–4C renders unlawful anything done by a person in good faith for the purposes of or in the course of any program or activity for which certification is in force under this section as a special needs program or activity.(2) The Minister may certify a program or activity to be a special needs program or activity if satisfied that its purpose or primary purpose is the promotion of access, for members of a group of persons affected by any form of unlawful discrimination to which this Act applies in an area of discrimination to which this Act applies, to facilities, services or opportunities to meet their special needs or the promotion of equal or improved access for them to facilities, services and opportunities.(3) (Repealed)(4) Certification for a program or activity remains in force for the period specified in the certification or (if no period is specified) until the certification is withdrawn.(5) Certification may be withdrawn by the Minister at any time by giving notice in writing to the person who appears to the Minister to be the person who is in charge of the program or who has responsibility for the activity concerned.(6) A person who is in charge of a program or activity may apply to the Tribunal for a review of a decision of the Minister under this section concerning the certification of the program or activity.s 126A: Ins 1994 No 28, Sch 4 (38). Am 1997 No 9, Sch 1 [44] [45]; 1998 No 48, Sch 2.1 [2].
127 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) Before making a recommendation to the Governor for the making of any regulation, the Minister shall take into consideration any recommendation of the Tribunal or the Board with respect to the subject-matter of the proposed regulation.(3) A regulation shall, unless disallowed by either House of Parliament, take effect upon:(a) the expiration of a period of 14 sitting days after the day or the later day written notice of its making is, pursuant to section 40 of the Interpretation Act 1987, laid before either such House, or(b) a date specified in the regulation which is later than the period determined under paragraph (a).(4) Without limiting the generality of subsection (1), the Governor may make regulations for or with respect to:(a) the forms to be used for the purposes of this Act or the regulations,(b) the fees to be paid in respect of the lodging of any complaint under Part 9,(c) the manner of serving any notice or other document,(d) (Repealed)(e) exempting:(i) any person or class of persons,(ii) any activity or class of activity, orspecified in the regulations from this Act or such parts of this Act as may be so specified.(iii) any other matter or circumstance,(5) The regulations may impose a penalty not exceeding 5 penalty units for an offence arising under the regulations.(6) Regulations may be made so as to apply differently according to such factors as may be specified in the regulations.s 127: Am 1981 No 15, Sch 2 (19) (20); 1982 No 142, Sch 4 (28); 1987 No 48, Sch 32; 1993 No 47, Sch 1; 1997 No 77, Sch 2.1 [8].
128 Savings and transitional provisions
Schedule 1 has effect.s 128: Subst 1994 No 28, Sch 4 (39).
Schedule 1 Savings and transitional provisions
(Section 128)
Part 1 Preliminary
1 Regulations
(1) The regulations may include provisions of a savings or transitional nature consequent on the enactment of the following Acts:(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect from the date of assent to the Act concerned or from a later date.(3) To the extent that a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of the person existing before the date of publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of publication.
2 Definition
In this Part:the amending Act means the Anti-Discrimination (Amendment) Act 1994.
3 Operation of amendments
Except as otherwise provided by this Part:(a) an amendment made by the amending Act does not apply to or in respect of anything done or omitted to be done before the commencement of the amendment, and(b) this Act continues to apply to anything done or omitted before the commencement of such an amendment as if the amendment had not been made.
4 Complaints by representative bodies
The amendments made by the amending Act to sections 87 and 88 extend to apply in respect of an Act done before the commencement of the amendments.
5 Complaints not pursued
Section 90A (as inserted by the amending Act) and the amendments made by the amending Act to section 111 extend to complaints lodged before the commencement of that section and those amendments.
6 Joinder of parties
The amendments made by the amending Act to section 98 extend to notice of joinder given by the Tribunal before the commencement of the amendments.
7 Industrial awards and agreements
The amendments made by the amending Act to section 54 do not apply in respect of any order, award or agreement in force immediately before the commencement of those amendments until the first anniversary of the commencement of those amendments.
8 Superannuation
The amendments made by the amending Act to sections 36 and 49 (Superannuation), and section 49Q (Superannuation) as inserted by the amending Act, are not limited in their operation to superannuation or provident funds or schemes begun after the commencement of those amendments or that section and extend to apply in respect of such a fund or scheme begun before that commencement.
9 Definition
In this Part:the amending Act means the Anti-Discrimination Amendment Act 1997.
10 (Repealed)
11 Complaints relating to sexual harassment
The insertion of Part 2A by the amending Act does not affect any complaint lodged before the commencement of Schedule 1 [10] to the amending Act.
12 Exemptions under sections 126 and 126A
(1) The amendment made to section 126 by the amending Act extends to an exemption in force immediately before the commencement of Schedule 1 [43] to the amending Act.(2) The amendments made to section 126A by the amending Act do not affect the validity of any exemption in force immediately before the commencement of Schedule 1 [44] and [45] to the amending Act.
13 Operation 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.
sch 1: Ins 1994 No 28, Sch 4 (40). Am 1997 No 9, Sch 1 [46]; 1997 No 147, Sch 2.3 [2]; 2000 No 24, Sch 1 [2]–[4].