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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 04:50)
Part 4C
Part 4C Discrimination on the ground of homosexuality
Division 1 General
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.
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 the perpetrator:
(a)  on the ground of the aggrieved person’s homosexuality or the homosexuality 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 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 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.
Division 2 Discrimination in work
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.
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.
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.
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.
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.
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.
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.
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.
Division 3 Discrimination in other areas
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.
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.
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.
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.
Division 4 Homosexual vilification
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.
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 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, 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.
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.