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Contents (1977 - 48)
Anti-Discrimination Act 1977 No 48
Current version for 8 December 2016 to date (accessed 19 November 2017 at 11:57)
Part 2
Part 2 Racial discrimination
Division 1 General
6   (Repealed)
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 the perpetrator:
(a)  on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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)  on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
18   (Repealed)
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.
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.
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.
Division 3A Racial vilification
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.
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 on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) 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.
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.
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.
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.