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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 17:47)
Part 4
Part 4 Discrimination on the ground of marital or domestic status
Division 1 General
39   What constitutes discrimination on the ground of marital or domestic status
(1)  A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of marital or domestic status if the perpetrator:
(a)  on the ground of the aggrieved person’s marital or domestic status or the marital or domestic status 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 marital or domestic status or who does not have such a relative or associate of that marital or domestic 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 or domestic status, or who do not have a relative or associate of that marital or domestic 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 or domestic status if it is done on the ground of the person’s marital or domestic status, a characteristic that appertains generally to persons of that marital or domestic status or a characteristic that is generally imputed to persons of that marital or domestic status.
(2)  For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of a different marital or domestic 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(3)    (Repealed)
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 or domestic 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 or domestic 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.
41   Discrimination against commission agents
(1)  It is unlawful for a principal to discriminate against a person on the ground of marital or domestic 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 or domestic 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.
42   Discrimination against contract workers
It is unlawful for a principal to discriminate against a contract worker on the ground of marital or domestic 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.
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 or domestic 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 or domestic 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.
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 or domestic status.
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 or domestic 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 or domestic 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.
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 or domestic 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.
45   Employment agencies
It is unlawful for an employment agency to discriminate against a person on the ground of marital or domestic 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.
46   Exception—employment of married couple
Nothing in this Division renders unlawful discrimination against a person on the ground of marital or domestic status in relation to a job which is one of two to be held by a married couple.
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 or domestic 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 or domestic 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.
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 or domestic 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.
48   Accommodation
(1)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of marital or domestic 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 or domestic 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.
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 or domestic 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 or domestic 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.
Division 4 Exception to Part 4
49   Superannuation
Nothing in this Part renders unlawful discrimination on the ground of marital or domestic 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, 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.