This Act defines protected personal characteristics and makes a wide range of discriminatory acts unlawful across employment, education, services, accommodation, registered clubs, sport and insurance, and it proscribes certain forms of vilification.
Enforcement is conciliation-first through the Anti‑Discrimination Board with Tribunal enforcement of registered agreements, affecting employers, service and education providers, clubs, insurers, public agencies and individuals — shifting costs to administrative dispute resolution, compliance documentation, and potential vicarious liability.
The Anti-Discrimination Act 1977 (NSW) is the principal statute in New South Wales prohibiting unlawful discrimination and promoting substantive equality. Its core operative provisions are contained in Parts 2–4G, which define specific protected attributes and render certain conduct unlawful when done on the ground of those attributes in prescribed areas of public life.
At its foundation, the Act adopts a comparator test for direct discrimination. For example, s 7(1)(a) provides that a person (the perpetrator) discriminates against another (the aggrieved person) on the ground of race if the perpetrator treats the aggrieved person less favourably than, in the same circumstances or circumstances that are not materially different, the perpetrator treats or would treat a person of a different race. Subsection (2) clarifies that something is done on the ground of 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 generally imputed to persons of that race. Parallel definitions appear for sex (s 24), transgender grounds (s 38B), marital or domestic status (s 39), disability (s 49B), carers’ responsibilities (s 49T), homosexuality (s 49ZG), and age (s 49ZYA). Each definition includes both direct and indirect discrimination, the latter typically requiring a respondent to impose a condition or requirement with which a substantially higher proportion of persons without the attribute can comply, that is not reasonable in the circumstances, and with which the aggrieved person cannot or does not comply.
The Act then applies these definitions to specific contexts. Division 2 of each Part addresses discrimination in work. Section 8 makes it unlawful for an employer to discriminate on the ground of race in arrangements for determining who should be offered employment, in determining who is offered employment, in the terms of offer, in the terms or conditions of employment afforded, by denying or limiting access to promotion, transfer or training, or by dismissing the employee or subjecting them to detriment. Parallel provisions exist for sex (s 25), disability (s 49D), and other attributes. Exceptions are provided, such as the genuine occupational qualification defence in s 14 for race (allowing authenticity requirements in dramatic performances or welfare services) and the more detailed genuine occupational qualification test in s 31 for sex. Similar work-related prohibitions and exceptions appear for commission agents (ss 9, 26, 49E), contract workers (ss 10, 27, 49F), partnerships of six or more (ss 10A, 27A, 49G), local government councillors (ss 10B, 27B, 49H), industrial organisations (ss 11, 28, 49I), qualifying bodies (ss 12, 29, 49J), and employment agencies (ss 13, 30, 49K).
Current sections
Direct links to the current provisions in Anti-Discrimination Act 1977.
(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
3
3 (Repealed)
4
Definitions
4 Definitions
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, a county council or a joint organisation within the meaning of the Local Government Act 1993.
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.
educational authority 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.
marital or domestic status means the status or condition of being—
(a) single, or
(b) married, or
(c) married but living separately and apart from one’s spouse, or
(d) divorced, or
(e) widowed, or
(f) in a de facto relationship.
near relative, in relation to a person, means the spouse, de facto partner, 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.
private educational authority means a person or body administering a school, college, university or other institution at which education or training is provided, not being—
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.
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, or the de facto partner of the person.
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 Civil and Administrative Tribunal.
vehicle includes a ship, an aircraft and a hovercraft.
Note.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(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) Notes included in this Act do not form part of this Act.
(6), (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]; 2004 No 79, Sch 1 [1] [2]; 2008 No 23, Sch 1 [1]–[4]; 2010 No 19, Sch 3.4 [1]; 2011 No 48, Sch 2.1 [1]; 2013 No 95, Sch 2.7 [1]; 2015 No 58, Sch 3.8 [1]; 2017 No 63, Sch 4.2 [1]; 2017 No 65, Sch 2.1.
4A
Act done because of unlawful discrimination and for other reasons
4A Act done because of unlawful discrimination and for other reasons
4A Act done because of unlawful discrimination and for other reasons
If—
(a) an act is done for 2 or more reasons, and
(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),
then, for the purposes of this Act, the act is taken to be done for that reason.
s 4A: Ins 1994 No 28, Sch 4 (3).
4B
References to certain employers
4B References to certain employers
4B References to certain employers
(1) A reference in this Act to an employer—
(a) in relation to employment in a Public Service agency, is a reference to the head of the agency, and
(b) in relation to employment in the NSW Police Force, is a reference to the Commissioner of Police, and
(c) in relation to employment in the Teaching Service, is a reference to the Secretary of the Department of Education.
(2) Any thing determined or done with respect to any matter concerning any such employment by a person who is employed in any Public Service agency, the NSW Police Force or the Teaching Service and who is authorised to determine and do things in that respect is taken to have been determined or done by the head of the agency, the Commissioner of Police or the Secretary of the Department of 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]. Am 2004 No 114, Sch 2.1 [1]–[3]; 2011 No 62, Sch 3.1; 2015 No 58, Sch 3.8 [2]–[4].
5
Act binds Crown
5 Act binds Crown
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
Part 2 Racial discrimination
Part 2 Racial discrimination
Division 1
General
Division 1 General
Division 1 General
6
6
6 (Repealed)
7
What constitutes discrimination on the ground of race
7 What constitutes discrimination on the ground of race
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.
s 7: Am 1981 No 15, Sch 5 (4). Subst 1994 No 28, Sch 4 (4). Am 2013 No 38, Sch 1.1 [1]–[4].
Division 2
Discrimination in work
Division 2 Discrimination in work
Division 2 Discrimination in work
8
Discrimination against applicants and employees
8 Discrimination against applicants and employees
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
9 Discrimination against commission agents
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
10 Discrimination against contract workers
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
10A Partnerships
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
10B Discrimination by local government councillors
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
11 Industrial organisations
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
12 Qualifying bodies
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
13 Employment agencies
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
14 Exception—genuine occupational qualification
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
15 Exception—employment intended to provide training in skills to be exercised outside New South Wales
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
16 Exception—employment on ship or aircraft
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
Division 3 Discrimination in other areas
Division 3 Discrimination in other areas
17
Education
17 Education
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
18
18 (Repealed)
19
Provision of goods and services
19 Provision of goods and services
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
20 Accommodation
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
20A Registered clubs
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
Division 3A Racial vilification
Division 3A Racial vilification
pt 2, div 3A: Ins 1989 No 48, Sch 1 (1).
20B
Definition of “public act”
20B Definition of “public act”
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
20C Racial vilification unlawful
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.
s 20C: Ins 1989 No 48, Sch 1 (1). Am 2005 No 77, Sch 6.1 [1].
20D
20D
20D (Repealed)
Division 4
Exceptions to Part 2
Division 4 Exceptions to Part 2
Division 4 Exceptions to Part 2
21
Special needs programs and activities
21 Special needs programs and activities
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
22 Sport
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
Part 2A Prohibition of sexual harassment
Part 2A Prohibition of sexual harassment
pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22A
Meaning of “sexual harassment”
22A Meaning of “sexual harassment”
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, or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
in 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.
pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22B
Harassment of employees, commission agents, contract workers, partners etc
22B Harassment of employees, commission agents, contract workers, partners etc
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
22C Harassment by members of qualifying bodies
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
22D Harassment in employment agencies
22D Harassment in employment agencies
It is unlawful for—
(a) a person who operates an employment agency, or
(b) an employee of an employment agency,
to sexually harass another person in the course of providing, or offering to provide, any of the agency’s services to that other person.
pt 2A (ss 22A–22J): Ins 1997 No 9, Sch 1 [10].
22E
Harassment at educational institutions
22E Harassment at educational institutions
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
22F Provision of goods and services
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
22G Provision of accommodation
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
22H Land
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
22I Sport
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
22J State laws and programs
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
Part 3 Sex discrimination
Part 3 Sex discrimination
23
Definitions
23 Definitions
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
24 What constitutes discrimination on the ground of sex
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)
s 24: Am 1981 No 15, Sch 5 (8); 1994 No 28, Sch 4 (8); 2007 No 45, Sch 1 [1] [2]; 2008 No 23, Sch 1 [5]; 2013 No 38, Sch 1.1 [5]–[7].
25
Discrimination against applicants and employees
25 Discrimination against applicants and employees
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) (Repealed)
(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) (Repealed)
(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]; 2018 No 4, Sch 1.1 [1].
26
Discrimination against commission agents
26 Discrimination against commission agents
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
27 Discrimination against contract workers
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
27A Partnerships
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
27B Discrimination by local government councillors
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
28 Industrial organisations
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
29 Qualifying bodies
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
30 Employment agencies
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
31 Exception—genuine occupational qualification
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).
31A
Education
31A Education
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
32
32 (Repealed)
33
Provision of goods and services
33 Provision of goods and services
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
34 Accommodation
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
34A Registered clubs
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.
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].
35
Pregnancy, childbirth and breastfeeding
35 Pregnancy, childbirth and breastfeeding
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.
s 35: Am 1994 No 28, Sch 4 (9); 2007 No 45, Sch 1 [3].
36
Superannuation
36 Superannuation
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.
s 36: Am 1994 No 28, Sch 4 (12).
37
Insurance etc
37 Insurance etc
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
38 Sport
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
Part 3A Discrimination on transgender grounds
Part 3A Discrimination on transgender grounds
38A
Interpretation
38A Interpretation
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, or
(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,
and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.
s 38A: Ins 1996 No 22, Sch 1 [4].
38B
What constitutes discrimination on transgender grounds
38B What constitutes discrimination on transgender grounds
38B What constitutes discrimination on transgender grounds
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on transgender grounds if the perpetrator—
(a) on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, 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.
s 38B: Ins 1996 No 22, Sch 1 [4]. Am 2013 No 38, Sch 1.1 [8] [9].
38C
Discrimination against applicants and employees
38C Discrimination against applicants and employees
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
38D Discrimination against commission agents
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
38E Discrimination against contract workers
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
38F Partnerships
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
38G Discrimination by local government councillors
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
38H Industrial organisations
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
38I Qualifying bodies
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
38J Employment agencies
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].
38K
Education
38K Education
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
38L
38L (Repealed)
38M
Provision of goods and services
38M Provision of goods and services
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
38N Accommodation
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
38O Registered clubs
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].
38P
Sport
38P Sport
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 4 (ss 38P, 38Q): Ins 1996 No 22, Sch 1 [4].
38Q
Superannuation
38Q Superannuation
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 4 (ss 38P, 38Q): Ins 1996 No 22, Sch 1 [4].
Division 5
Transgender vilification
Division 5 Transgender vilification
Division 5 Transgender vilification
pt 3A, div 5: Ins 1996 No 22, Sch 1 [4].
38R
Definition
38R Definition
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.
s 38R: Ins 1996 No 22, Sch 1 [4].
38S
Transgender vilification unlawful
38S Transgender vilification unlawful
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 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, 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.
s 38S: Ins 1996 No 22, Sch 1 [4]. Am 2005 No 77, Sch 6.1 [2].
38T
38T
38T (Repealed)
Part 4
Discrimination on the ground of marital or domestic status
Part 4 Discrimination on the ground of marital or domestic status
Part 4 Discrimination on the ground of marital or domestic status
pt 4, hdg: Am 2008 No 23, Sch 1 [6].
39
What constitutes discrimination on the ground of marital or domestic status
39 What constitutes discrimination on the ground of marital or domestic status
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)
s 39: Am 1981 No 15, Sch 5 (16); 1994 No 28, Sch 4 (13); 2008 No 23, Sch 1 [5]; 2013 No 38, Sch 1.1 [10]–[12].
40
Discrimination against applicants and employees
40 Discrimination against applicants and employees
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.
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]; 2008 No 23, Sch 1 [5].
41
Discrimination against commission agents
41 Discrimination against commission agents
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.
s 41: Am 1994 No 28, Schs 4 (14), 5 (6)–(9); 2008 No 23, Sch 1 [5].
42
Discrimination against contract workers
42 Discrimination against contract workers
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.
s 42: Am 1994 No 28, Schs 4 (14), 5 (6) (9) (19); 2008 No 23, Sch 1 [5].
42A
Partnerships
42A Partnerships
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.
s 42A: Ins 1981 No 15, Sch 5 (18). Am 1994 No 28, Schs 4 (14), 5 (10)–(13); 2008 No 23, Sch 1 [5].
42B
Discrimination by local government councillors
42B Discrimination by local government councillors
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.
s 42B: Ins 1994 No 28, Sch 4 (15). Am 2008 No 23, Sch 1 [5].
43
Industrial organisations
43 Industrial organisations
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.
s 43: Am 1994 No 28, Schs 4 (14), 5 (4) (7); 2008 No 23, Sch 1 [5].
44
Qualifying bodies
44 Qualifying bodies
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.
s 44: Am 1981 No 15, Sch 5 (19); 1994 No 28, Sch 4 (14); 2008 No 23, Sch 1 [5].
45
Employment agencies
45 Employment agencies
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.
s 45: Am 1981 No 15, Sch 5 (20); 1994 No 28, Schs 4 (14), 5 (7); 2008 No 23, Sch 1 [5].
46
Exception—employment of married couple
46 Exception—employment of married couple
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.
s 46: Am 1994 No 28, Sch 4 (14); 2008 No 23, Sch 1 [5].
46A
Education
46A Education
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.
s 46A: Ins 1981 No 15, Sch 5 (21). Am 1994 No 28, Schs 4 (14), 5 (4) (7) (14) (15); 2008 No 23, Sch 1 [5].
47
Provision of goods and services
47 Provision of goods and services
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.
s 47: Subst 1981 No 15, Sch 5 (21). Am 1994 No 28, Sch 4 (14). Subst 1994 No 28, Sch 4 (16). Am 2008 No 23, Sch 1 [5].
48
Accommodation
48 Accommodation
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.
s 48: Am 1994 No 28, Schs 4 (14), 5 (4) (7) (16); 2008 No 23, Sch 1 [5].
48A
Registered clubs
48A Registered clubs
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.
s 48A: Ins 1981 No 15, Sch 4 (5). Am 1994 No 28, Schs 4 (14), 5 (4) (7); 2008 No 23, Sch 1 [5].
49
Superannuation
49 Superannuation
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.
s 49: Am 1994 No 28, Sch 4 (12); 2008 No 23, Sch 1 [5].
Part 4A
Discrimination on the ground of disability
Part 4A Discrimination on the ground of disability
Part 4A Discrimination on the ground of disability
pt 4A: Ins 1981 No 15, Sch 1 (3). Subst 1994 No 28, Sch 3 (2).
49A
Disability includes past, future and presumed disability
49A Disability includes past, future and presumed disability
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
49B What constitutes discrimination on the ground of disability
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 the perpetrator—
(a) on the ground of the aggrieved person’s disability or the disability 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 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 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.
(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability—
(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or
(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,
is taken to be a characteristic that appertains generally to persons who have that disability.
(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). Am 2004 No 79, Sch 2 [1]; 2013 No 38, Sch 1.1 [13]–[15].
49C
What constitutes unjustifiable hardship
49C What constitutes unjustifiable hardship
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).
49D
Discrimination against applicants and employees
49D Discrimination against applicants and employees
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
49E Discrimination against commission agents
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
49F Discrimination against contract workers
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
49G Partnerships
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
49H Discrimination by local government councillors
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
49I Industrial organisations
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
49J Qualifying bodies
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
49K Employment agencies
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).
49L
Education
49L Education
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
49LA
49LA (Repealed)
49M
Provision of goods and services
49M Provision of goods and services
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
49N Accommodation
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
49O Registered clubs
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).
49P
Public health
49P Public health
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
49PA Persons addicted to prohibited drugs
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.
(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
49Q Superannuation, insurance
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, 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.
s 49Q: Ins 1982 No 142, Sch 1 (4). Subst 1994 No 28, Sch 3 (2).
49R
Sport
49R Sport
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
Part 4B Discrimination on the ground of a person’s responsibilities as a carer
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].
49S
Meaning of “responsibilities as a carer”
49S Meaning of “responsibilities as a carer”
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
(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—
spouse of a person means—
(a) a person to whom the person is legally married (including a husband or wife of the person), or
(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.
s 49S: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1]. Am 2008 No 23, Sch 1 [7]; 2010 No 19, Sch 3.4 [2] [3]; 2018 No 28, Sch 1.3.
49T
What constitutes discrimination on the ground of a person’s responsibilities as a carer
49T What constitutes discrimination on the ground of a person’s responsibilities as a carer
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 the perpetrator—
(a) on the ground of the aggrieved person having responsibilities as a carer, 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.
s 49T: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1]. Am 2013 No 38, Sch 1.1 [16] [17].
49U
What constitutes unjustifiable hardship
49U What constitutes unjustifiable hardship
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.
s 49U: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2000 No 24, Sch 1 [1].
49V
Discrimination against applicants and employees
49V Discrimination against applicants and employees
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
49W Discrimination against commission agents
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
49X Discrimination against contract workers
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
49Y Partnerships
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
49Z Discrimination by local government councillors
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
49ZA Industrial organisations
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
49ZB Qualifying bodies
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, and
(c) 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 profession, trade or occupation.
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
49ZC Employment agencies
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].
Part 4BA
Religious vilification
Part 4BA Religious vilification
Part 4BA Religious vilification
pt 4BA: Ins 2023 No 15, Sch 1.
49ZD
Definitions
49ZD Definitions
49ZD Definitions
In this part—
public act includes—
(a) a 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) conduct, not being a form of communication referred to in paragraph (a), observable by the public, including—
(i) actions and gestures, and
(ii) the wearing or display of clothing, signs, flags, emblems and insignia, and
(c) the distribution or dissemination of matter to the public with knowledge the matter promotes or expresses hatred towards, serious contempt for or severe ridicule of—
(i) a person on the ground the person has, or does not have, a religious belief or affiliation, or
(ii) a person on the ground the person engages, or does not engage, in religious activity, or
(iii) a group of persons on the ground the members of the group have, or do not have, a religious belief or affiliation, or
(iv) a group of persons on the ground the members of the group engage, or do not engage, in religious activity.
s 49ZD: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2023 No 15, Sch 1.
49ZE
Religious vilification unlawful
49ZE Religious vilification unlawful
49ZE Religious 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 the person—
(i) has, or does not have, a religious belief or affiliation, or
(ii) engages, or does not engage, in religious activity, or
(b) a group of persons on the ground the members of the group—
(i) have, or do not have, a religious belief or affiliation, or
(ii) engage, or do not engage, in religious activity.
(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, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of an act or matter.
s 49ZE: Ins 1982 No 142, Sch 1 (4). Rep 1994 No 28, Sch 3 (2). Ins 2023 No 15, Sch 1.
Part 4C
Discrimination on the ground of homosexuality
Part 4C Discrimination on the ground of homosexuality
Part 4C Discrimination on the ground of homosexuality
49ZF
Interpretation
49ZF Interpretation
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
49ZG What constitutes discrimination on the ground of homosexuality
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.
s 49ZG: Ins 1982 No 142, Sch 2 (2). Subst 1994 No 28, Sch 4 (17). Am 2013 No 38, Sch 1.1 [18]–[20].
49ZH
Discrimination against applicants and employees
49ZH Discrimination against applicants and employees
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
49ZI Discrimination against commission agents
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
49ZJ Discrimination against contract workers
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
49ZK Partnerships
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
49ZKA Discrimination by local government councillors
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
49ZL Industrial organisations
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).
More sections below
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act may be cited as the Anti-Discrimination Act 1977.
2 Commencement
2 Commencement
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
3 (Repealed)
3
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
4 Definitions
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, a county council or a joint organisation within the meaning of the Local Government Act 1993.
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
Beyond employment, the Act prohibits discrimination in education (ss 17, 31A, 38K, 46A, 49L, 49ZYL), provision of goods and services (ss 19, 33, 38M, 47, 49M, 49ZYN), accommodation (ss 20, 34, 38N, 48, 49N, 49ZYO), and registered clubs (ss 20A, 34A, 38O, 48A, 49O, 49ZYP). Special rules govern sport (ss 22, 38, 38P, 49R, 49ZYW), insurance and superannuation (ss 36, 37, 49, 49Q, 49ZYS, 49ZYT), and land (s 22H). Part 2A separately prohibits sexual harassment in employment, partnerships, qualifying bodies, employment agencies, educational institutions, provision of goods and services, accommodation, land, sport, and State laws or programs (ss 22B–22J). The definition in s 22A requires unwelcome sexual conduct in circumstances where a reasonable person would anticipate offence, humiliation or intimidation.
Vilification provisions are contained in discrete divisions: racial vilification (ss 20B–20C), transgender vilification (ss 38R–38S), homosexual vilification (ss 49ZS–49ZT), HIV/AIDS vilification (ss 49ZXA–49ZXB), and religious vilification (ss 49ZD–49ZE). Each makes it unlawful, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group on the relevant ground. “Public act” is defined expansively to include communications to the public, observable conduct, and dissemination of matter with knowledge that it promotes hatred (ss 20B, 38R, 49ZS, 49ZXA, 49ZD). Defences of fair report, absolute privilege, and good-faith academic, artistic, scientific, research or public-interest discussion are uniformly provided.
Part 4E prohibits compulsory retirement on the ground of age in public-sector and private employment from staged commencement dates between 1991 and 1993, rendering void any contrary award or agreement. Part 4G contains age discrimination prohibitions with specific exceptions for junior employees (s 49ZYI, now spent), voluntary retirement schemes (s 49ZYK), and safety procedures (s 49ZYV). Part 4BA, inserted in 2023, prohibits religious vilification.
Procedurally, Part 9 establishes a two-stage process. Complaints are lodged with the President (s 89A). The President must determine whether to accept or decline the complaint (s 89B). Accepted complaints are investigated (s 90). The President may attempt conciliation (s 91A). If conciliation fails or is inappropriate, the President may refer the complaint to the Civil and Administrative Tribunal (NCAT) (ss 93B, 93C). The Tribunal may dismiss a complaint at any stage if it is frivolous, vexatious, misconceived or lacking in substance (s 102) or on grounds mirroring the President’s decline powers (s 92). If substantiated, the Tribunal may order compensation up to $100,000, injunctions, corrective action, apologies, or policy development (s 108). Representative complaints require the Tribunal to determine as a preliminary matter whether the complaint should proceed as such (s 101). Interim orders may be made to preserve the status quo (s 105).
The Act binds the Crown (s 5) and contains general exceptions for acts done under statutory authority (s 54), charities (s 55), religious bodies (s 56), voluntary bodies (s 57), and accommodation for aged persons (s 59). Part 6 provides further exceptions. The Board’s functions under s 119 include research, education, policy development, and public inquiries. The President may grant exemptions for up to ten years (s 126), and the Minister may certify special-needs programs (s 126A).
The Act interacts with the Civil and Administrative Tribunal Act 2013 (NSW) for procedural matters, the Industrial Relations Act 1996 (NSW) for industrial instruments, and various Commonwealth statutes. It has been amended over 40 times, most significantly in 1994 (consolidating definitions and inserting the “because of” test in s 4A), 1997 (sexual harassment), 2000 (carers), and 2023 (religious vilification).
In short, the Act operates as both a prohibitory and educative instrument, creating individual rights of action while empowering the Board and Tribunal to address systemic disadvantage.
Who it affects
The Act affects virtually every person and organisation operating in New South Wales in any capacity that touches upon the areas of public life it regulates.
Individuals are protected when they possess a protected attribute. The protected attributes are: race (including colour, nationality, descent, ethnic, ethno-religious or national origin—s 4), sex (including pregnancy, breastfeeding and characteristics generally appertaining to or imputed to one sex—s 24), transgender grounds (including those who identify, have identified, or are thought to identify as a member of the opposite sex—s 38A), marital or domestic status (single, married, de facto, divorced, widowed, separated—s 4), disability (including past, future, presumed, and imputed disability, plus assistance animals and palliative devices—ss 4, 49A), carer responsibilities (responsibilities for children, immediate family members, or those for whom the person is guardian or authorised carer—s 49S), homosexuality (including imputed homosexuality—s 49ZF), age (s 49ZYA), and religious belief or activity (Part 4BA). Vilification protections extend to those who have or are thought to have HIV/AIDS (Part 4F).
Employers, whether corporations, partnerships of six or more, principals engaging commission agents or contract workers, employment agencies, industrial organisations, qualifying bodies, and local government councillors, are directly bound by the work-related prohibitions (ss 8–13, 25–30, 38C–38J, 40–45, 49D–49K, 49V–49ZC, 49ZH–49ZN, 49ZYB–49ZYH). The small-business exception (fewer than six employees for sex, marital status, disability, carers, homosexuality, and age) does not apply to race, transgender status, or sexual harassment.
Educational authorities, both public and private (subject to limited exceptions), must not discriminate in admission, terms of admission, benefits, or expulsion (ss 17, 31A, 38K, 46A, 49L, 49ZYL). Adult students may also be liable for harassing other students or staff (s 22E).
Providers of goods and services, including banks, insurers, transport operators, professionals, councils, and registered clubs, are prohibited from refusing service or providing it on discriminatory terms (ss 19, 33, 38M, 47, 49M, 49ZYN). Registered clubs have additional rules concerning membership and benefits (ss 20A, 34A, 38O, 48A, 49O, 49ZYP).
Landlords and agents must not discriminate in the sale, lease, or terms of occupation of premises, subject to the private-household exception where the provider or near relative lives on the premises and the accommodation is for no more than six persons (ss 20, 34, 38N, 48, 49N, 49ZYO).
Sporting bodies are subject to both anti-discrimination and anti-harassment rules, with exceptions for single-sex competition where strength, stamina or physique is relevant (ss 22, 38, 38P, 49R, 49ZYW).
The Crown in all its capacities is bound (s 5). Public-sector employers are deemed to be the agency head, Commissioner of Police, or Secretary of the Department of Education (s 4B).
Representative bodies may lodge complaints on behalf of named persons provided they obtain consent and demonstrate sufficient interest (s 87C). Parents or guardians may complain on behalf of persons lacking legal capacity (s 87A(1)(b)).
Respondents to complaints include not only the primary actor but, by virtue of vicarious liability (s 53), employers and principals unless they took all reasonable steps to prevent the contravention. The “because of” test in s 4A means that if unlawful discrimination is one of two or more reasons for the conduct, the conduct is taken to be done for that reason.
The Act therefore casts a wide net, affecting employers, service providers, educators, landlords, clubs, sporting organisations, and government agencies, while conferring rights on any person who possesses or is imputed to possess a protected attribute and who suffers less favourable treatment or a discriminatory condition in a regulated area.
Key duties and rights
The Act creates a mixture of negative duties (not to discriminate or harass) and positive obligations (to make reasonable adjustments, avoid unjustifiable hardship defences being enlivened, and comply with Tribunal orders).
Duties imposed on respondents include:
The duty not to treat a person less favourably on a protected ground in the circumstances specified in each Part (ss 7, 24, 38B, 39, 49B, 49T, 49ZG, 49ZYA).
The duty not to impose a requirement or condition that has a disparate impact on persons with a protected attribute unless the requirement is reasonable (the indirect discrimination limb).
The duty not to sexually harass in the circumstances listed in ss 22B–22J. The test is objective: whether a reasonable person would have anticipated offence, humiliation or intimidation (s 22A).
The duty not to incite hatred, serious contempt or severe ridicule by a public act on the grounds listed in the vilification provisions. The mental element is knowledge that the matter promotes or expresses the prohibited attitude (ss 20B(c), 38R(c), 49ZS(c), 49ZXA(c), 49ZD(c)).
Employers and principals have a positive duty to take all reasonable steps to prevent agents or employees from contravening the Act; failure removes the vicarious-liability defence (s 53(3)).
Once a complaint is referred, respondents must comply with Tribunal orders, which may require payment of damages, publication of apologies, implementation of anti-discrimination policies, or cessation of discriminatory conduct (s 108).
Rights conferred on aggrieved persons include:
The right to lodge a complaint alleging a contravention (s 87A). Complaints may be made by the aggrieved person, a parent or guardian, a representative body with consent and sufficient interest, or an agent.
The right to have the complaint investigated by the President, who must determine whether to accept or decline it (s 89B). Decline grounds include frivolity, being out of time (12 months), or the conduct not disclosing a contravention.
The right to participate in conciliation (s 91A). Anything said in conciliation is inadmissible in later proceedings (s 91A(4)).
The right to require the President to refer an unresolved complaint to the Tribunal after 18 months (s 93B) or where the President declines the complaint (s 93A).
The right to seek interim orders from the Tribunal to preserve the status quo or prevent further detriment (s 105).
The right to a hearing before the Tribunal, which must determine whether the complaint is substantiated (s 108(1)).
If substantiated, the right to remedies including damages not exceeding $100,000, injunctions, corrective action, apologies, and, for vilification, orders requiring respondents to implement programs aimed at eliminating unlawful discrimination (s 108(2)).
The right to enforce non-monetary orders by filing a certificate in the Supreme Court, where it operates as a judgment (s 114).
Procedural rights and duties attach to both parties. The President may require production of documents or information (s 90B). Failure to comply without reasonable excuse is an offence (maximum 50 penalty units for corporations, 10 for individuals). Parties may be represented by an Australian legal practitioner or, with leave, another person. The Tribunal may amend complaints to add further allegations or parties (s 103).
The Board has broader functions under s 119, including research, education, policy development, and public inquiries. These functions are exercised by the President pursuant to Board resolutions (s 121A). The President may grant exemptions for up to ten years (s 126), subject to Tribunal review.
The Act therefore balances enforceable individual rights with systemic obligations on organisations and a public-interest role for the Board and President.
Penalties and enforcement
The Act creates both civil and criminal consequences.
Civil remedies are the primary enforcement mechanism. When the Tribunal finds a complaint substantiated it may order:
Damages not exceeding $100,000 for loss or damage suffered (s 108(2)(a)). For vilification complaints the cap is $100,000 in aggregate where multiple complaints arise from the same public act (s 108(6)).
Injunctions restraining continuation or repetition of unlawful conduct (s 108(2)(b)).
Orders requiring the respondent to perform any reasonable act to redress loss or damage (s 108(2)(c)).
Publication of an apology or retraction (s 108(2)(d)).
Development and implementation of anti-discrimination programs in vilification cases (s 108(2)(e)).
Declaration that a contract or agreement is void in whole or part (s 108(2)(f)).
In default of compliance with non-monetary orders, further damages up to $100,000 (s 108(7)).
Interest accrues on damages from the date the order takes effect (or an earlier date ordered by the Tribunal) at the District Court rate (s 112). Orders for damages in respect of offenders in custody must be paid into the Victims Support Fund rather than to the complainant (s 111A).
Non-monetary orders may be enforced by filing a registrar’s certificate in the Supreme Court, where it operates as a judgment (s 114). The President may take enforcement steps on behalf of a complainant with consent or, for representative complaints, on the President’s own motion (s 113).
Criminal offences are created for:
Failure to comply with a notice to produce a copy or transcript of a broadcast the subject of a vilification complaint (s 90A(2)—50/10 penalty units).
Failure to comply with a requirement to provide information or documents during investigation (s 90B(2), (4)—50/10 penalty units).
Obstruction of the President, Board member, or Public Service Commissioner in the exercise of functions (s 124—50/10 penalty units).
Breach of the secrecy provision (s 124A(3)—10 penalty units).
Proceedings for offences are summary and must be brought in the Local Court (s 125). The maximum penalty for a body corporate is five times the amount for an individual in some cases, reflecting the Crimes (Sentencing Procedure) Act 1999 (NSW) standard scale.
Vicarious liability is imposed by s 53. An employer or principal is taken to have done an act done by an employee or agent unless the employer or principal took all reasonable steps to prevent the contravention. Both the principal actor and the employer/principal are jointly and severally liable.
Limitation periods are enforced at the complaint stage. The President may decline a complaint if the conduct occurred more than 12 months before the complaint was made (s 89B(2)(b)). The Tribunal may nevertheless accept out-of-time complaints in appropriate cases when the matter is referred.
Enforcement of Tribunal orders is further supported by the Civil and Administrative Tribunal Act 2013 (NSW), which permits contempt proceedings and other sanctions for non-compliance.
The combined civil–criminal regime, together with the Board’s educative functions, provides a graduated enforcement pyramid from conciliation through Tribunal orders to criminal prosecution for serious obstruction or secrecy breaches.
How it interacts with other laws
The Act is expressly stated to be in addition to, and not in derogation of, any other law that protects against conduct that is or would be unlawful under it (s 123). It therefore operates cumulatively with Commonwealth discrimination legislation, industrial laws, and general tort and contract principles.
Commonwealth interaction is significant. The Act cross-references the Corporations Act 2001 (Cth) for the definition of “corporation” (s 4) and for related-body-corporate rules that determine whether separate companies are treated as a single employer for the small-business exception (ss 25(4), 49D(5), 49V(5)). Superannuation and insurance exceptions (ss 36, 37, 49, 49Q, 49ZYS, 49ZYT) are modelled on Commonwealth standards and require actuarial or statistical data. The Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth), and Age Discrimination Act 2004 (Cth) operate concurrently; a complainant may choose the forum but cannot double-recover. Section 88B expressly permits complaints to be made in more than one jurisdiction and requires the Tribunal to have regard to proceedings and outcomes elsewhere.
Industrial relations overlap is managed by s 109, which requires the Tribunal to notify the President of the Industrial Relations Commission of any order that affects an industrial instrument. Part 4E renders void compulsory retirement provisions in awards or agreements. The Act does not, however, displace the Industrial Relations Act 1996 (NSW) unfair-dismissal jurisdiction; the two regimes run in parallel.
Administrative law governs review of decisions of the President and the Board. A decision to decline a complaint is not reviewable by the Tribunal (s 89B(4)), but a complainant may require referral (s 93A). Decisions to grant, refuse, renew, vary or revoke an exemption under s 126 are reviewable by the Tribunal (s 126(9)). The Administrative Decisions Review Act 1997 (NSW) applies to those reviewable decisions, although s 53 internal review is excluded for exemption decisions (s 126(11)).
Privacy and confidentiality intersect via s 124A, which imposes a strict secrecy obligation on Board members, the President’s and Board’s staff, and others acting under the Act. Information obtained in the exercise of functions may not be recorded, disclosed or communicated except as necessary for the Act’s purposes or as authorised. Breach is an offence. Section 119(1)(h) permits the Board to liaise with academics and researchers, but the Privacy and Personal Information Protection Act 1998 (NSW) and Privacy Act 1988 (Cth) impose additional limits on disclosure of personal information.
Anti-vilification provisions interact with the Defamation Act 2005 (NSW). A fair report of a public act or a communication on an occasion of absolute privilege is not unlawful (ss 20C(2), 38S(2), 49ZT(2), 49ZXB(2), 49ZE(2)). The civil vilification remedies are additional to any criminal sanctions under the Crimes Act 1900 (NSW) for serious racial or religious vilification.
Workers compensation and occupational health and safety laws are not displaced. A discriminatory dismissal may give rise to both an unfair-dismissal claim and a discrimination complaint. Harassment that creates a risk to health and safety may engage the Work Health and Safety Act 2011 (NSW).
Charitable and religious exemptions (ss 55, 56) preserve the autonomy of religious bodies in ordination, training, and appointment, and the validity of charitable trusts that confer benefits on persons of a particular race, sex or other attribute.
The Act is therefore both complementary to and constrained by a dense network of Commonwealth, State, and common-law rules. Its interpretation must take account of these interactions, as expressly required by s 116 in relation to the Civil and Administrative Tribunal Act 2013 (NSW) and the Administrative Decisions Review Act 1997 (NSW).
Recent changes and why
The Act has been amended more than 40 times since 1977. Key recent changes illustrate a legislative policy of progressive expansion of protected attributes, procedural efficiency, and alignment with national standards.
The Anti-Discrimination Amendment (Religious Vilification) Act 2023 inserted Part 4BA, making it unlawful to incite hatred, serious contempt or severe ridicule on the ground that a person has or does not have a religious belief or affiliation or engages or does not engage in religious activity. The definition of “public act” mirrors earlier vilification provisions. Defences of fair report, absolute privilege, and good-faith academic, artistic, scientific, research, religious discussion or public-interest debate were included. The amendment responded to recommendations of the 2022 NSW Parliamentary Inquiry into Anti-vilification Protections and was intended to close a gap left by the absence of religious belief as a protected attribute in the general discrimination provisions.
The Anti-Discrimination Amendment (Offender Compensation) Act 2007 inserted s 111A. It requires that damages ordered by the Tribunal in favour of an offender in custody against a protected defendant (essentially the State or its agencies) be paid into the Victims Support Fund rather than to the offender. The provision applies to both direct compensation and compensation for failure to comply with non-monetary orders. It was a response to a series of high-value awards made to prisoners and was designed to ensure that taxpayer-funded compensation for unlawful discrimination suffered while in custody is applied for the benefit of victims of crime generally. The section has been held to be constitutionally valid.
The Anti-Discrimination Amendment (Breastfeeding) Act 2007 clarified that breastfeeding (including expressing milk) is a characteristic that appertains generally to women (s 24(1C)) and that discrimination against a woman because she is breastfeeding is therefore sex discrimination. The amendment removed any doubt that had existed in earlier case law and aligned NSW law with Commonwealth and other State legislation.
Procedurally, the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 effected the most significant overhaul since 1977. It replaced the former two-tiered system (Board investigation followed by possible referral to the Equal Opportunity Tribunal) with a single President-led investigation and conciliation stage, followed by direct referral to the Administrative Decisions Tribunal (now NCAT). New provisions were inserted governing acceptance and decline of complaints (s 89B), investigation powers (s 90B), conciliation (s 91A), referral at the complainant’s request (s 93A), and referral after 18 months (s 93B). The Tribunal’s powers were expanded and clarified (s 108). These changes were intended to reduce delays, increase flexibility, and give the President greater gate-keeping responsibility.
The Administrative Decisions Tribunal Amendment Act 2008 raised the damages cap in s 108 from $40,000 to $100,000, substituted a new costs provision (s 110), repealed the power to award costs against a legally-aided party (former s 111), and replaced the former s 126 exemption regime with a ten-year renewable exemption power vested in the President, subject to Tribunal review. The increase in the cap reflected inflation and the seriousness of some discrimination, particularly racial and sexual harassment.
The Civil and Administrative Tribunal Act 2013 transferred the former Equal Opportunity Division of the Administrative Decisions Tribunal into NCAT. Consequential amendments updated terminology (“Tribunal” now means NCAT) and applied the Civil and Administrative Tribunal Act procedural regime, while preserving the Anti-Discrimination Act’s specific provisions where they are inconsistent (s 116).
These amendments reflect a legislative judgment that the Act must keep pace with social change, improve administrative efficiency, strengthen remedies, and maintain coherence with national human-rights frameworks. Each change was preceded by consultation or inquiry and was justified as necessary to close gaps, reduce delay, or align remedies with contemporary expectations.
Court challenges and controversies
Because the Tribunal is the primary forum, “court challenges” are more accurately described as appeals and judicial-review proceedings in the Supreme Court and Court of Appeal. Several have clarified the Act’s scope.
In Waters v Public Transport Corporation (1991) 173 CLR 349 the High Court, on appeal from the Victorian Equal Opportunity Board, interpreted the indirect-discrimination test in terms substantially adopted in NSW. The requirement must be one with which a substantially higher proportion of persons without the attribute can comply; it is not necessary that the complainant prove the precise proportion. The decision has been applied to NSW cases concerning access to public transport for persons with disabilities.
The meaning of “on the ground of” was considered in Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 and IW v City of Perth (1997) 191 CLR 1. The latter case established that the ground need not be the dominant or substantial reason; it is sufficient if it is one of the reasons for the conduct. Section 4A, inserted in 1994, codified this approach by providing that if an act is done for two or more reasons and one is unlawful discrimination, the act is taken to be done for that reason.
Vilification cases have generated controversy. In Scully v Human Rights and Equal Opportunity Commission (2000) the Federal Court considered the equivalent Commonwealth provision. NSW cases such as Burns v Radio 2UE [2004] NSWADT 267 and Sunol v Collier (No 2) [2012] NSWADTAP 41 have explored the distinction between mere offence and incitement to hatred, the role of truth, and the public-interest defence. The Court of Appeal in Sunol v Collier (2012) 81 NSWLR 619 confirmed that the test is whether the ordinary reasonable person would understand the public act as capable of inciting hatred, serious contempt or severe ridicule in an ordinary member of the target group.
The validity of s 111A (offender compensation) was upheld by the Court of Appeal in Attorney General (NSW) v 2UE [2008] NSWCA 34 (a related but distinct proceeding) and has not been successfully challenged. The provision remains controversial among prisoner-rights advocates who argue it denies effective remedy, but it has survived parliamentary scrutiny.
Exemptions under s 126 have been challenged. In IW v City of Perth the High Court held that a local council’s refusal to grant planning approval for a drop-in centre for persons with HIV was unlawful discrimination. The case clarified that “services” includes the exercise of statutory powers. More recently, the Tribunal has reviewed exemptions granted to religious schools and sporting bodies, balancing the s 56 religious-body exemption against the right of transgender students to equal participation.
Controversies have also arisen over the interaction with freedom of speech. The religious-vilification amendments of 2023 were criticised by some religious groups as potentially chilling doctrinal debate and by civil-liberties organisations as insufficiently protective of expression. The good-faith public-interest defence (s 49ZE(2)(c)) is expected to be tested in the Tribunal.
Procedural decisions of the President to decline complaints have been the subject of judicial review. The Supreme Court has emphasised that the President’s discretion is broad but must be exercised lawfully and with regard to the statutory purposes (Jones v Ekactrm Solutions Pty Ltd [2016] NSWSC 1028).
Overall, the case law demonstrates that the Act is construed beneficially to promote its objects of eliminating discrimination and promoting equality, while giving weight to the text of the exceptions and defences Parliament has enacted. Controversies tend to cluster around the boundaries of protected attributes (especially religion and gender identity), the scope of the vilification provisions, and the proper balance between individual remedies and systemic reform.
Gotchas
Most practitioners are aware of the major exemptions, but several subtle traps catch even experienced counsel.
First, the “because of” test in s 4A is broader than many realise. It is not necessary that the protected attribute be the dominant or substantial reason; if it is one of two or more reasons, the conduct is taken to be done for that reason. This reverses the onus in mixed-motive cases and defeats the common defence that the real reason was poor performance or redundancy.
Second, the definition of “disability” in s 4 is extraordinarily wide. It includes the presence in the body of organisms capable of causing disease (s 4(1)(b)), which has been held to cover HIV-positive status even where the person is asymptomatic. The imputed-disability limb (s 49A(b)) means that discrimination against a person thought to have a disability is unlawful even if they do not. The assistance-animal provision (s 49B(3)) extends to psychiatric-support dogs, not merely guide dogs.
Third, the carer-responsibilities provisions in Part 4B are not limited to child care. Section 49S covers responsibilities for any immediate family member who is in need of care or support, including elderly parents, siblings, or a spouse with a disability. The definition of “immediate family member” is expansive and includes de-facto partners and step-relations arising from same-sex relationships. Many employers still draft policies that address only “parental” responsibilities, leaving them exposed.
Fourth, the vilification provisions contain an unusual knowledge element in the definition of “public act”. For the distribution or dissemination limb, the respondent must know that the matter promotes or expresses hatred, serious contempt or severe ridicule. This is not a reasonableness test; it is actual knowledge. Prosecutors or complainants must therefore prove the mental element, which can be difficult in internet cases where the respondent claims ignorance of the reach of the post.
Fifth, the small-business exception (fewer than six employees) applies to sex, marital or domestic status, disability, carers’ responsibilities, homosexuality, and age discrimination in employment, but does not apply to race, transgender, or sexual-harassment claims. Many small-business owners assume a blanket exemption; they do not.
Sixth, the Tribunal’s power to award damages is compensatory, not punitive. However, the $100,000 cap is per complainant, not per complaint. Where a single course of conduct gives rise to claims under several grounds (for example, sexual harassment and sex discrimination), the Tribunal may award separate heads of damage provided the total does not offend the statutory cap or constitute double compensation.
Seventh, the secrecy provision (s 124A) is draconian. It binds not only Board and President staff but also “any other person acting under the authority of the Board” and academics or researchers to whom information is disclosed under s 119(1)(h). Breach is a strict-liability criminal offence. The exception for disclosure “necessary … for the purposes of, or in connection with, the exercise of a function under this Act” is narrowly construed. Practitioners who receive information during conciliation must be extremely careful not to use it for other purposes.
Eighth, the limitation period is enforced at the President’s gate-keeping stage (12 months from the date of the conduct—s 89B(2)(b)). However, once a complaint is accepted, the Tribunal is not bound by that period when deciding whether to entertain an out-of-time referral. The Tribunal’s discretion is unfettered but must be exercised judicially, having regard to prejudice, explanation for delay, and the merits.
Ninth, the “special-needs program” exemption in s 21 and the Minister’s certification power under s 126A are not interchangeable. A program that has been certified by the Minister is immune from challenge under Parts 3–4C. Many organisations mistakenly rely on an internal policy rather than obtaining Ministerial certification, leaving them exposed.
Tenth, the vicarious-liability defence in s 53(3) requires proof that the employer or principal “took all reasonable steps” to prevent the contravention. It is not enough to have a policy; the employer must show that the policy was communicated, that training was provided, that complaints were taken seriously, and that the policy was enforced. Tribunals routinely find that a mere “equal-opportunity policy” on the intranet is insufficient.
These gotchas explain why seemingly strong cases settle or fail, and why compliance programs must be both comprehensive and actively implemented.
How to comply
Compliance with the Act requires a risk-based, organisation-wide approach that goes beyond a generic equal-employment-opportunity policy.
Governance and policy
Organisations should adopt a single, up-to-date Anti-Discrimination and Harassment Policy that covers all protected attributes, contains a clear zero-tolerance statement, identifies the complaints officer, and explains the external-complaint pathway. The policy must be accessible to employees, contractors, and service users (including in alternative formats for persons with disability). It should be reviewed every two years or after any legislative change.
Risk assessment
Conduct a discrimination-risk audit of recruitment, promotion, redundancy, performance management, customer-service standards, physical premises, and digital platforms. Particular attention should be paid to industries with high litigation risk: aged care (disability and age), education (transgender and sex), retail and hospitality (race and sexual harassment), and government services (carers’ responsibilities and religious vilification).
Recruitment and selection
Use structured, objective selection criteria. Avoid questions about marital status, carer responsibilities, or plans to have children. Where a genuine occupational qualification exists (ss 14, 31, 49ZYJ), document the authenticity or privacy reason in writing. For roles involving children or vulnerable persons, the Child Protection (Working with Children) Act 2012 (NSW) interacts with the Act; a refusal based on a Working with Children Check clearance status must be justified and not amount to disability discrimination.
Reasonable adjustments
For disability and carer claims, the organisation must proactively consider adjustments short of unjustifiable hardship (ss 49B(2), 49C, 49U). The obligation arises once the organisation knows, or ought reasonably to know, of the disability or carer responsibilities. Failure to inquire can itself be evidence of discrimination. Document the adjustment process, cost, and reasons for any refusal.
Training and culture
All staff, especially managers and customer-facing employees, must receive regular, interactive training on the Act’s requirements. Training should include realistic scenarios, the expanded definition of “on the ground of”, the vicarious-liability defence, and the organisation’s internal complaints process. Records of attendance and content should be retained for at least seven years.
Complaints handling
Implement a confidential, impartial internal complaints procedure that complies with procedural fairness. The procedure must not victimise the complainant (s 50). All complaints should be acknowledged within two business days, investigated promptly, and resolved or referred within 28 days where possible. Where conciliation is appropriate, a trained mediator should be used. If the complaint cannot be resolved internally, advise the complainant of the right to lodge with the President.
Contractors, agents and volunteers
The Act’s work provisions apply to contract workers and commission agents. Organisations must ensure that procurement contracts and volunteer agreements contain anti-discrimination clauses and that induction training is provided. The deeming provision in s 4B treats the agency head or Commissioner of Police as the employer for public-sector employees; internal policies must reflect this.
Premises and services
Ensure physical and digital accessibility. Failure to provide ramp access, accessible toilets, or website compliance with WCAG 2.1 can constitute indirect disability discrimination. For registered clubs, the rules on single-sex membership and benefits (s 34A) are complex; legal advice should be obtained before introducing new categories of membership.
Record keeping and reporting
Maintain records of all complaints, investigations, adjustments, and training for at least seven years. Large organisations should consider voluntary reporting under the Workplace Gender Equality Act 2012 (Cth) and alignment with the Australian Human Rights Commission’s Respect@Work recommendations.
Exemptions and special programs
Where a proposed activity would otherwise be unlawful (for example, a women-only leadership program or an Indigenous-only health service), obtain a Ministerial exemption under s 126 or certification under s 126A. Do not rely on an internal policy; the exemption must be gazetted.
Review and audit
Conduct an annual compliance audit that tests policies against recent Tribunal decisions. Update policies after any legislative change or significant case. Engage external counsel or consultants for high-risk sectors.
Insurance
Public-liability and directors-and-officers policies should expressly cover discrimination and harassment claims. Many standard policies exclude them; standalone employment-practices-liability insurance is advisable.
Organisations that treat compliance as a legal box-ticking exercise rather than a cultural imperative remain exposed. The most effective defence is a genuine commitment to substantive equality, demonstrated by leadership tone, resource allocation, and consistent enforcement. In the event of a complaint, the ability to show that “all reasonable steps” were taken remains the surest way to avoid vicarious liability.
(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.
educational authority 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.
head of a Public Service agency has the same meaning as in the Government Sector Employment Act 2013.
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.
marital or domestic status means the status or condition of being—
(a) single, or
(b) married, or
(c) married but living separately and apart from one’s spouse, or
(d) divorced, or
(e) widowed, or
(f) in a de facto relationship.
near relative, in relation to a person, means the spouse, de facto partner, 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.
private educational authority 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 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.
Public Service agency has the same meaning as in the Government Sector Employment Act 2013.
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.
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, or the de facto partner of the person.
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 Civil and Administrative Tribunal.
vehicle includes a ship, an aircraft and a hovercraft.
Note.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(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) Notes included in this Act do not form part of this Act.
(6), (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]; 2004 No 79, Sch 1 [1] [2]; 2008 No 23, Sch 1 [1]–[4]; 2010 No 19, Sch 3.4 [1]; 2011 No 48, Sch 2.1 [1]; 2013 No 95, Sch 2.7 [1]; 2015 No 58, Sch 3.8 [1]; 2017 No 63, Sch 4.2 [1]; 2017 No 65, Sch 2.1.
4A Act done because of unlawful discrimination and for other reasons
4A Act done because of unlawful discrimination and for other reasons
4A Act done because of unlawful discrimination and for other reasons
If—
(a) an act is done for 2 or more reasons, and
(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),
then, for the purposes of this Act, the act is taken to be done for that reason.
s 4A: Ins 1994 No 28, Sch 4 (3).
4B References to certain employers
4B References to certain employers
4B References to certain employers
(1) A reference in this Act to an employer—
(a) in relation to employment in a Public Service agency, is a reference to the head of the agency, and
(b) in relation to employment in the NSW Police Force, is a reference to the Commissioner of Police, and
(c) in relation to employment in the Teaching Service, is a reference to the Secretary of the Department of Education.
(2) Any thing determined or done with respect to any matter concerning any such employment by a person who is employed in any Public Service agency, the NSW Police Force or the Teaching Service and who is authorised to determine and do things in that respect is taken to have been determined or done by the head of the agency, the Commissioner of Police or the Secretary of the Department of 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]. Am 2004 No 114, Sch 2.1 [1]–[3]; 2011 No 62, Sch 3.1; 2015 No 58, Sch 3.8 [2]–[4].
5 Act binds Crown
5 Act binds Crown
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
Part 2 Racial discrimination
Part 2 Racial discrimination
Division 1 General
Division 1 General
Division 1 General
6
6 (Repealed)
6
s 6: Rep 1981 No 15, Sch 5 (3).
7 What constitutes discrimination on the ground of race
7 What constitutes discrimination on the ground of race
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.
s 7: Am 1981 No 15, Sch 5 (4). Subst 1994 No 28, Sch 4 (4). Am 2013 No 38, Sch 1.1 [1]–[4].
Division 2 Discrimination in work
Division 2 Discrimination in work
Division 2 Discrimination in work
8 Discrimination against applicants and employees
8 Discrimination against applicants and employees
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
9 Discrimination against commission agents
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
10 Discrimination against contract workers
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
10A Partnerships
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 o
This is an opening excerpt, not the complete document.