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Contents (1977 - 48)
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Anti-Discrimination Act 1977 No 48
Current version for 8 December 2016 to date (accessed 23 September 2017 at 01:22)
Part 3
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 the perpetrator:
(a)  on the ground of the aggrieved person’s sex or the sex 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 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 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.
(1C)  For the purposes of this section, but without limiting the generality of this section, the fact that a woman is breastfeeding or may breastfeed is a characteristic that appertains generally to women. For the purposes of this Act, breastfeeding includes the act of expressing breast milk.
(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 or domestic status, or
(c)  are a woman who is breastfeeding and a man.
(3)    (Repealed)
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
32   (Repealed)
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.
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.
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, or
(ii)  to the same extent,
by both men and women, and
(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.
Division 4 Exceptions to Part 3
35   Pregnancy, childbirth and breastfeeding
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, childbirth or breastfeeding.
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, or
(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,
and 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.
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.
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.