Part IIProhibition of discrimination etc.

An Act relating to discrimination on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy, breastfeeding or family responsibilities, and relating to discrimination involving sexual harassment, harassment on the ground of sex or hostile workplace environments Recognising the need to prohibit, so far as is possible, discrimination against people on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs: Affirming that every individual is equal before and under the law, and has the right to the equal protection and equal benefit of the law, without discrimination on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: ## Part I—Preliminary #### 1 Short title This Act may be cited as the Sex Discrimination Act 1984. #### 2 Commencement This Act shall come into operation on a day to be fixed by Proclamation. #### 3 Objects The objects of this Act are: (a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and to provisions of other relevant international instruments; and (b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and (ba) to eliminate, so far as possible, discrimination on the ground of family responsibilities in the area of work; and (c) to eliminate, so far as is possible, discrimination involving sexual harassment, and discrimination involving harassment on the ground of sex, in the workplace, in educational institutions and in other areas of public activity; and (ca) to eliminate, so far as is possible, discrimination involving subjecting persons to workplace environments that are hostile on the ground of sex; and (d) to promote recognition and acceptance within the community of the principle of the equality of men and women; and (e) to achieve, so far as practicable, substantive equality between men and women. #### 4 Interpretation (1) In this Act, unless the contrary intention appears: > accommodation includes residential and business accommodation. > ACNC type of entity means an entity that meets the description of a type of entity in column 1 of the table in subsection 25‑5(5) of the Australian Charities and Not‑for‑profits Commission Act 2012. > breastfeeding has a meaning affected by subsections 7AA(3) and (4). > club means an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that: (a) provides and maintains its facilities, in whole or in part, from the funds of the association; and (b) sells or supplies liquor for consumption on its premises. > Commission means the Australian Human Rights Commission. > commission agent means a person who does work for another person as the agent of that other person and who is remunerated, whether in whole or in part, by commission. > Commissioner means the Sex Discrimination Commissioner appointed under section 96. > committee of management, in relation to a club or a registered organisation, means the group or body of persons (however described) that manages the affairs of that club or organisation, as the case may be. > Commonwealth administrative office means: (a) an office established by, or an appointment made under, a law of the Commonwealth; or (b) an office established by, or an appointment made under, a law of a Territory; or (c) an appointment made by the Governor‑General or a Minister otherwise than under a law of the Commonwealth or of a Territory (including the Australian Capital Territory and the Northern Territory); or (d) an appointment as a director of an incorporated company that is a public authority of the Commonwealth; but does not include: (e) an office of member of the Assembly, member of the Executive, or Minister within the meaning of the Australian Capital Territory (Self‑Government) Act 1988; or (f) an office of member of the Legislative Assembly, member of the Council or Minister of the Territory, within the meaning of the Northern Territory (Self‑Government) Act 1978; or (g) an office or appointment in the Australian Public Service; or (h) an office of member of either House of the Parliament; or (i) an office of a person employed under the Members of Parliament (Staff) Act 1984; or (j) a Commonwealth judicial office. > Note: A person who holds an office or appointment mentioned in paragraph (g), (h), (i) or (j) is covered by the definition of Commonwealth employee. > Commonwealth agency means an agency within the meaning of the Privacy Act 1988. > Commonwealth employee means a person who: (a) is appointed or engaged under the Public Service Act 1999; (b) holds a Commonwealth administrative office; (c) is employed by a public authority of the Commonwealth; (d) holds an office or appointment in the Commonwealth Teaching Service or is employed as a temporary employee under the Commonwealth Teaching Service Act 1972; (e) is employed under the Australian Security Intelligence Organisation Act 1979 or the Commonwealth Electoral Act 1918; or (f) is a member of the Defence Force; or (g) is a member of either House of the Parliament; or (h) is a person employed under the Members of Parliament (Staff) Act 1984; or (i) is a person who holds a Commonwealth judicial office. > Note: See also section 108. > Commonwealth‑funded aged care means: (a) funded aged care services (within the meaning of the Aged Care Act 2024); or (b) activities carried out in accordance with an arrangement made under subsection 265(1) of the Aged Care Act 2024 for a purpose mentioned in paragraph 265(2)(d) or (e) of that Act; or (c) care or services of a class prescribed by the regulations for the purpose of this paragraph. > Commonwealth judicial office means: (a) an office of a Justice of the High Court; or (b) an office of a judge or justice of a court created by the Parliament. > Commonwealth law means: (a) an Act, or a regulation, rule, by‑law or determination made under or pursuant to an Act; (b) an Ordinance of a Territory, or a regulation, rule, by‑law or determination made under or pursuant to an Ordinance of a Territory; or (c) an order or award made under or pursuant to a law referred to in paragraph (a) or (b). > Commonwealth program means a program conducted by or on behalf of the Commonwealth government. > contract worker means a person who does work for another person pursuant to a contract between the employer of the first‑mentioned person and that other person. > de facto partner has the meaning given by the Acts Interpretation Act 1901. > Department means an Agency within the meaning of the Public Service Act 1999. > disability has the same meaning as in the Disability Discrimination Act 1992. > educational authority means a body or person administering an educational institution. > educational institution means a school, college, university or other institution at which education or training is provided. > employment includes: (a) part‑time and temporary employment; (b) work under a contract for services; and (c) work as a Commonwealth employee; and (d) work as a State employee of a State. > Note 1: Other parts of speech and grammatical forms of “employment” (for example, “employer” and “employee”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901). > Note 2: See also sections 108 (Commonwealth employee) and 109 (State employee). > employment agency means any person who or body that, whether for payment or not, assists persons to find employment or other work or assists employers to find employees or workers, and includes the Commonwealth Employment Service. > enactment has the same meaning as in the Australian Human Rights Commission Act 1986. > family responsibilities has the meaning given by section 4A. > function includes duty. > gender identity means the gender‑related identity, appearance or mannerisms or other gender‑related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth. > harass on the ground of sex has the meaning given by section 28AA. > Note: Other parts of speech and grammatical forms of “harass on the ground of sex” (for example, “harassment on the ground of sex”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901). > institution of tertiary education means a university, college of advanced education, technical and further education institution or other institution at which tertiary education or training is provided. > intersex status means the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male. > marital or relationship status means a person’s status of being any of the following: (a) single; (b) married; (c) married, but living separately and apart from his or her spouse; (d) divorced; (e) the de facto partner of another person; (f) the de facto partner of another person, but living separately and apart from that other person; (g) the former de facto partner of another person; (h) the surviving spouse or de facto partner of a person who has died. > near relative, in relation to a person, means: (a) a parent, child, grandparent, grandchild, brother or sister of the person; or (b) the spouse or de facto partner of the first‑mentioned person or of a person referred to in paragraph (a). > Parliament of a State: (a) in a case where the State is the Australian Capital Territory—means the Legislative Assembly for the Australian Capital Territory; or (b) in a case where the State is the Northern Territory—means the Legislative Assembly of the Northern Territory. > person conducting a business or undertaking has the same meaning as in the Work Health and Safety Act 2011. > potential pregnancy has a meaning affected by section 4B. > President means President of the Commission. > principal means: (a) in relation to a commission agent—a person for whom the commission agent does work as a commission agent; and (b) in relation to a contract worker—a person for whom the contract worker does work pursuant to a contract between the employer of the contract worker and the person. > principal executive, in relation to a Commonwealth agency, has the same meaning as in Part V of the Privacy Act 1988. > proposed enactment has the same meaning as in the Australian Human Rights Commission Act 1986. > public authority of a State means: (a) a body that: (i) is incorporated (whether before or after the commencement of this definition) for a public purpose by a law of the State; and (ii) employs staff on its own behalf; or (b) an authority or body that: (i) is not a body corporate; and (ii) is established (whether before or after the commencement of this definition) for a public purpose by, or in accordance with the provisions of, a law of the State; and (iii) employs staff on its own behalf; or (c) an incorporated company over which the State, or a body or authority referred to in paragraph (a) or (b), is in a position to exercise control. > public authority of the Commonwealth means: (a) a body incorporated, whether before or after the commencement of this Act, for a public purpose by a law of the Commonwealth or a law of a Territory, being a body corporate employing staff on its own behalf; (b) an authority or body, not being a body corporate, established, whether before or after the commencement of this Act, for a public purpose by, or in accordance with the provisions of, a law of the Commonwealth or a law of a Territory, being an authority or body employing staff on its own behalf; or (c) an incorporated company over which the Commonwealth, or a body or authority referred to in paragraph (a) or (b), is in a position to exercise control. > registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act. > registered organisation means an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009. > relevant international instrument means: (a) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 (\[1983\] ATS 9) (a copy of the English text of which is set out in the Schedule); or (b) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 (\[1980\] ATS 23); or (c) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 (\[1976\] ATS 5); or (d) the Convention on the Rights of the Child done at New York on 20 November 1989 (\[1991\] ATS 4); or (e) ILO Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value done at Geneva on 29 June 1951 (\[1975\] ATS 45); or (f) ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation done at Geneva on 25 June 1958 (\[1974\] ATS 12); or (g) ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities done at Geneva on 23 June 1981 (\[1991\] ATS 7); or (h) ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer done at Geneva on 22 June 1982 (\[1994\] ATS 4). > Note: In 2010, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). > 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 the kind provided by the members of any profession or trade; and (e) services of the kind provided by a government, a government authority or a local government body. > sexually harass has the meaning given by section 28A. > Note: Other parts of speech and grammatical forms of “sexually harass” (for example, “sexual harassment”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901). > sexual orientation means a person’s sexual orientation towards: (a) persons of the same sex; or (b) persons of a different sex; or (c) persons of the same sex and persons of a different sex. > State, except in subsections 9(15), (16), (17) and (18), includes the Australian Capital Territory and the Northern Territory. > State administrative office of a State means: (a) an office established by, or an appointment made under, a law of the State; or (b) an appointment made by: (i) the Governor of the State; or (ii) the Administrator of the State; or (iii) a Minister of the State; otherwise than under a law of the State; or (c) an appointment as a director of an incorporated company that is a public authority of the State; but does not include: (d) an office or appointment under a law of the State that corresponds to the Public Service Act 1999; or (e) an office of member of the Parliament of the State; or (f) an office of a member of the staff of a member of the Parliament of the State; or (g) a State judicial office of the State. > Note: A person who holds an office or appointment mentioned in paragraph (d), (e), (f) or (g) is covered by the definition of State employee. > State employee of a State means a person who: (a) is appointed or engaged under a law of the State that corresponds to the Public Service Act 1999; or (b) holds a State administrative office of the State; or (c) is employed by a public authority of the State; or (d) is a member of the Parliament of the State; or (e) is a member of the staff of a member of the Parliament of the State; or (f) is a person who holds a State judicial office of the State. > Note: See also section 109. > State judicial office of a State means: (a) an office of a judge or justice of a court of the State; or (b) an office of a magistrate of a court of the State. > superannuation benefit, in relation to a member of a superannuation fund, means a benefit that is payable, under the terms and conditions relating to the fund: (a) in the event of the member’s death—to the estate of the deceased or to someone other than the deceased; or (b) in the event of the member’s physical or mental incapacity—to the member or to someone other than the member. > superannuation fund means a superannuation or provident fund or scheme. > superannuation fund conditions, in relation to a superannuation fund, means the terms and conditions that relate to membership of, or benefits payable from, the superannuation fund. > surviving spouse or de facto partner of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died. > technical and further education institution has the same meaning as that expression has in the Employment, Education and Training Act 1988. > Territory, except in subsections 9(17) and (18), does not include the Australian Capital Territory and the Northern Territory. > voluntary body means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include: (a) a club; (b) a registered organisation; (c) a body established by a law of the Commonwealth, of a State or of a Territory; or (d) an association that provides grants, loans, credit or finance to its members. > worker has the same meaning as in the Work Health and Safety Act 2011. > worker in a business or undertaking has the meaning given by section 28AB. > workplace has the same meaning as in the Work Health and Safety Act 2011. (2) For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to a refusal or failure to do an act. #### 4A Meaning of family responsibilities (1) In this Act, family responsibilities, in relation to a person, means responsibilities of the person to care for or support: (a) a dependent child of the person; or (b) any other immediate family member who is in need of care and support. (2) In this section: > child: without limiting who is a child of a person for the purposes of this section, each of the following is the child of a person: (a) an adopted child, stepchild or exnuptial child of the person; (b) someone who is a child of the person within the meaning of the Family Law Act 1975. > dependent child means a child who is wholly or substantially dependent on the person. > immediate family member includes: (a) a spouse of the person; and (b) an adult child, parent, grandparent, grandchild or sibling of the person or of a spouse of the person. > parent: without limiting who is a parent of a person for the purposes of this section, someone is the parent of a person if the person is his or her child because of paragraph (b) of the definition of child in this subsection. > spouse includes a former spouse, a de facto partner and a former de facto partner. > stepchild: without limiting who is a stepchild of a person for the purposes of this section, someone is the stepchild of the person if he or she would be the person’s stepchild except that the person is not legally married to the partner. (3) For the purposes of this section, if one person is the child of another person because of paragraph (b) of the definition of child in subsection (2), relationships traced to or through the person are to be determined on the basis that the person is the child of the other person. #### 4B Meaning of potential pregnancy A reference in this Act to potential pregnancy of a woman includes a reference to: (a) the fact that the woman is or may be capable of bearing children; or (b) the fact that the woman has expressed a desire to become pregnant; or (c) the fact that the woman is likely, or is perceived as being likely, to become pregnant. #### 5 Sex discrimination (1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of: (a) the sex of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex. (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person. (3) This section has effect subject to sections 7B and 7D. #### 5A Discrimination on the ground of sexual orientation (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s sexual orientation if, by reason of: (a) the aggrieved person’s sexual orientation; or (b) a characteristic that appertains generally to persons who have the same sexual orientation as the aggrieved person; or (c) a characteristic that is generally imputed to persons who have the same sexual orientation as the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different sexual orientation. (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s sexual orientation if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same sexual orientation as the aggrieved person. (3) This section has effect subject to sections 7B and 7D. #### 5B Discrimination on the ground of gender identity (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if, by reason of: (a) the aggrieved person’s gender identity; or (b) a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or (c) a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity. (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person. (3) This section has effect subject to sections 7B and 7D. #### 5C Discrimination on the ground of intersex status (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s intersex status if, by reason of: (a) the aggrieved person’s intersex status; or (b) a characteristic that appertains generally to persons of intersex status; or (c) a characteristic that is generally imputed to persons of intersex status; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who is not of intersex status. (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s intersex status if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of intersex status. (3) This section has effect subject to sections 7B and 7D. #### 6 Discrimination on the ground of marital or relationship status (1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the marital or relationship status of the aggrieved person if, by reason of: (a) the marital or relationship status of the aggrieved person; or (b) a characteristic that appertains generally to persons of the marital or relationship status of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the marital or relationship status of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital or relationship status. (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the marital or relationship status of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same marital or relationship status as the aggrieved person. (3) This section has effect subject to sections 7B and 7D. #### 7 Discrimination on the ground of pregnancy or potential pregnancy (1) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if, because of: (a) the aggrieved woman’s pregnancy or potential pregnancy; or (b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or (c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant; the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant. (2) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are pregnant or potentially pregnant. (3) This section has effect subject to sections 7B and 7D. #### 7AA Discrimination on the ground of breastfeeding (1) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s breastfeeding if, by reason of: (a) the aggrieved woman’s breastfeeding; or (b) a characteristic that appertains generally to women who are breastfeeding; or (c) a characteristic that is generally imputed to women who are breastfeeding; the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not breastfeeding. (2) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s breastfeeding if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are breastfeeding. (3) To avoid doubt, a reference in this Act to breastfeeding includes the act of expressing milk. (4) To avoid doubt, a reference in this Act to breastfeeding includes: (a) an act of breastfeeding; and (b) breastfeeding over a period of time. (5) This section has effect subject to sections 7B and 7D. #### 7A Discrimination on the ground of family responsibilities For the purposes of this Act, an employer discriminates against an employee on the ground of the employee’s family responsibilities if: (a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and (b) the less favourable treatment is by reason of: (i) the family responsibilities of the employee; or (ii) a characteristic that appertains generally to persons with family responsibilities; or (iii) a characteristic that is generally imputed to persons with family responsibilities. #### 7B Indirect discrimination: reasonableness test (1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 5A(2), 5B(2), 5C(2), 6(2), 7(2) or 7AA(2) if the condition, requirement or practice is reasonable in the circumstances. (2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include: (a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and (b) the feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice. #### 7C Burden of proof In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act. #### 7D Special measures intended to achieve equality (1) A person may take special measures for the purpose of achieving substantive equality between: (a) men and women; or (aa) people who have different sexual orientations; or (ab) people who have different gender identities; or (ac) people who are of intersex status and people who are not; or (b) people who have different marital or relationship statuses; or (c) women who are pregnant and people who are not pregnant; or (d) women who are potentially pregnant and people who are not potentially pregnant; or (e) women who are breastfeeding and people who are not breastfeeding; or (f) people with family responsibilities and people without family responsibilities. (2) A person does not discriminate against another person under section 5, 5A, 5B, 5C, 6, 7, 7AA or 7A by taking special measures authorised by subsection (1). (3) A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken: (a) solely for that purpose; or (b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one. (4) This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved. #### 8 Act done for 2 or more reasons A reference in subsection 5(1), 5A(1), 5B(1), 5C(1), 6(1), 7(1) or 7AA(1), section 7A or subsection 28AA(1) to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act. #### 8A Workplace environment that is hostile for 2 or more reasons For the purposes of this Act, a workplace environment may be offensive, intimidating or humiliating to a person by reason of: (a) the sex of the person; or (b) a characteristic that appertains generally to persons of the sex of the person; or (c) a characteristic that is generally imputed to persons of the sex of the person; if it is offensive, intimidating or humiliating by reason of 2 or more matters that include the sex or the characteristic, whether or not the sex or the characteristic is the dominant or substantial reason. #### 9 Application of Act (1) In this section: > Australia includes the external Territories. > prescribed provisions of Division 3 of Part II means the provisions of Division 3 of Part II other than sections 28D and 28L. > prescribed provisions of Part II means the provisions of Divisions 1 and 2 of Part II other than sections 19, 26 and 27. (2) Subject to this section, this Act applies throughout Australia. (3) This Act has effect in relation to acts done within a Territory. (4) The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect as provided by subsection (3) of this section and the following provisions of this section and not otherwise. (5) Sections 14, 15 and 16 have effect in relation to discrimination against: (a) Commonwealth employees in connection with their employment as Commonwealth employees; and (b) persons seeking to become Commonwealth employees. (5A) Section 28B has effect in relation to sexual harassment, or harassment on the ground of sex, of: (a) Commonwealth employees in connection with their employment as Commonwealth employees; and (b) persons seeking to become Commonwealth employees. (6) Section 18 has effect in relation to discrimination by an authority or body in the exercise of a power under a Commonwealth law to confer, renew, extend, revoke or withdraw an authorization or qualification. (6A) Section 28C has effect in relation to sexual harassment, or harassment on the ground of sex, by an authority or body in the exercise of a power under a Commonwealth law to confer, renew, extend, revoke or withdraw an authorisation or qualification. (7) The prescribed provisions of Part II have effect in relation to acts done, by or on behalf of: (a) the Commonwealth or the Administration of a Territory; or (b) a body or authority established for a public purpose by a law of the Commonwealth or a law of a Territory; in the exercise of a power conferred by a law of the Commonwealth or a law of a Territory. (8) The prescribed provisions of Division 3 of Part II have effect in relation to acts done by a person exercising, by or on behalf of: (a) the Commonwealth or the Administration of a Territory; or (b) a body or authority established for a public purpose by a law of the Commonwealth or a law of a Territory; a power conferred by a law of the Commonwealth or a law of a Territory, being acts done by the person in connection with the exercise of that power. (9) The prescribed provisions of Division 3 of Part II have effect in relation to acts done by or in relation to a person who is a Commonwealth employee in connection with the person’s duties as a Commonwealth employee or done by or in relation to a person who is a member of the staff of an educational institution established by a law of the Commonwealth or a law of a Territory in connection with the person’s duties as a member of the staff of such an educational institution. (10) The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect to the extent that the provisions give effect to a relevant international instrument. (11) The prescribed provisions of Part II have effect in relation to discrimination by a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth, or by or in relation to a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation. (12) The prescribed provisions of Division 3 of Part II have effect in relation to acts done, by or in relation to a person who is an officer or employee of a foreign corporation, or of a trading or financial corporation formed within the limits of the Commonwealth, in connection with the person’s duties as such an officer or employee. (13) Without prejudice to the effect of subsection (11), the prescribed provisions of Part II have effect in relation to discrimination by a trading or financial corporation formed within the limits of the Commonwealth, or by or in relation to a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation, to the extent that the discrimination takes place in the course of the trading activities of the trading corporation or the financial activities of the financial corporation, as the case may be. (14) Without prejudice to the effect of subsection (12), the prescribed provisions of Division 3 of Part II have effect in relation to acts done, by or in relation to a person who is an officer or employee of a trading or financial corporation formed within the limits of the Commonwealth, in connection with any of the person’s duties as such an officer or employee that relate to the trading activities of the trading corporation or the financial activities of the financial corporation, as the case may be. (15) The prescribed provisions of Part II have effect in relation to discrimination in the course of, or in relation to, the carrying on of the business of: (a) banking, other than State banking not extending beyond the limits of the State concerned; or (b) insurance, other than State insurance not extending beyond the limits of the State concerned. (16) The prescribed provisions of Division 3 of Part II have effect in relation to acts done in the course of, or in relation to, the carrying on of the business of: (a) banking, other than State banking not extending beyond the limits of the State concerned; or (b) insurance, other than State insurance not extending beyond the limits of the State concerned. (17) The prescribed provisions of Part II have effect in relation to discrimination in the course of, or in relation to, trade or commerce: (a) between Australia and a place outside Australia; (b) among the States; (c) between a State and a Territory; or (d) between 2 Territories. (18) The prescribed provisions of Division 3 of Part II have effect in relation to acts done in the course of, or in relation to, trade or commerce: (a) between Australia and a place outside Australia; (b) among the States; (c) between a State and a Territory; or (d) between 2 Territories. (19) The prescribed provisions of Part II have effect in relation to discrimination within Australia involving persons or things, or matters arising, outside Australia. (20) The prescribed provisions of Division 3 of Part II have effect in relation to acts done within Australia involving persons or things, or matters arising, outside Australia. (21) The prescribed provisions of Division 3 of Part II have effect in relation to acts done using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution). #### 10 Operation of State and Territory laws (1) A reference in this section to this Act is a reference to this Act as it has effect by virtue of any of the provisions of section 9 other than subsection 9(10). (2) A reference in this section to a law of a State or Territory is a reference to a law of a State or Territory that deals with work health and safety, discrimination on the ground of sex, discrimination on the ground of sexual orientation, discrimination on the ground of gender identity, discrimination on the ground of intersex status, discrimination on the ground of marital or relationship status, discrimination on the ground of pregnancy or potential pregnancy, discrimination on the ground of breastfeeding or discrimination on the ground of family responsibilities. (3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act. (4) Where: (a) a law of a State or Territory deals with a matter dealt with by this Act; and (b) a person has made a complaint, instituted a proceeding or taken any other action under that law, other than a claim for workers compensation, in respect of an act or omission in respect of which the person would, but for this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II of this Act; the person is not entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II of this Act. (5) Where: (a) a law of a State or Territory deals with a matter dealt with by this Act; and (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act; the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission. #### 11 Operation of State and Territory laws that further objects of relevant international instruments (1) A reference in this section to this Act is a reference to this Act as it has effect by virtue of subsection 9(10). (2) A reference in this section to a law of a State or Territory is a reference to a law of a State or Territory that deals with work health and safety, discrimination on the ground of sex, discrimination on the ground of sexual orientation, discrimination on the ground of gender identity, discrimination on the ground of intersex status, discrimination on the ground of marital or relationship status, discrimination on the ground of pregnancy or potential pregnancy, discrimination on the ground of breastfeeding or discrimination on the ground of family responsibilities. (3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that furthers the objects of a relevant international instrument and is capable of operating concurrently with this Act. (4) Where: (a) a law of a State or Territory that furthers the objects of a relevant international instrument deals with a matter dealt with by this Act; and (b) a person has made a complaint, instituted a proceeding or taken any other action under that law, other than a claim for workers compensation, in respect of an act or omission in respect of which the person would, but for this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II of this Act; the person is not entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part II of this Act. (5) Where: (a) a law of a State or Territory that furthers the objects of a relevant international instrument deals with a matter dealt with by this Act; and (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act; the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission. #### 12 Crown to be bound (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to be prosecuted for an offence. #### 13A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. ## Part II—Prohibition of discrimination etc. ### Division 1—Discrimination in work #### 14 Discrimination in employment or in superannuation (1) It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) in the arrangements made for the purpose of determining who should be offered employment; (b) in determining who should be offered employment; or (c) in the terms or conditions on which employment is offered. (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) in the terms or conditions of employment that 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; (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. (3) Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides. (4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex, sexual orientation or marital or relationship status of the member or that other person. (5) Subsection (4) does not apply if section 41B applies to that member in respect of that fund. (6) In this section: > member, in relation to a superannuation fund, includes a person who has been a member of the fund at any time. #### 15 Discrimination against commission agents (1) It is unlawful for a principal to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (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 or conditions on which the person is engaged as a commission agent. (2) It is unlawful for a principal to discriminate against a commission agent on the ground of the commission agent’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) in the terms or conditions that the principal affords the commission agent as a commission agent; (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 the position as a commission agent; (c) by terminating the engagement; or (d) by subjecting the commission agent to any other detriment. #### 16 Discrimination against contract workers It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) in the terms or conditions 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 the contract worker’s access, to any benefit associated with the work in respect of which the contract with the employer is made; or (d) by subjecting the contract worker to any other detriment. #### 17 Partnerships (1) It is unlawful for 6 or more persons, being persons who are proposing to form themselves into a partnership, to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) in determining who should be invited to become a partner in the partnership; or (b) in the terms or conditions on which the person is invited to become a partner in the partnership. (2) It is unlawful for any one or more of the partners in a partnership consisting of 6 or more partners to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) in determining who should be invited to become a partner in the partnership; or (b) in the terms or conditions on which the person is invited to become a partner in the partnership. (3) It is unlawful for any one or more of the partners in a partnership consisting of 6 or more partners to discriminate against a partner in the partnership on the ground of the partner’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) by denying the partner access, or limiting the partner’s access, to any benefit arising from being a partner in the partnership; (b) by expelling the partner from the partnership; or (c) by subjecting the partner to any other detriment. #### 18 Qualifying bodies It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorization or 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 the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) by refusing or failing to confer, renew or extend the authorization or qualification; (b) in the terms or conditions on which it is prepared to confer the authorization or qualification or to renew or extend the authorization or qualification; or (c) by revoking or withdrawing the authorization or qualification or varying the terms or conditions upon which it is held. #### 19 Registered organisations under the Fair Work (Registered Organisations) Act 2009 (1) It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person, on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) by refusing or failing to accept the person’s application for membership; or (b) in the terms or conditions on which the organisation is prepared to admit the person to membership. (2) It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person who is a member of the registered organisation, on the ground of the member’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) by denying the member access, or limiting the member’s access, to any benefit provided by the organisation; (b) by depriving the member of membership or varying the terms of membership; or (c) by subjecting the member to any other detriment. #### 20 Employment agencies It is unlawful for an employment agency to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a) by refusing to provide the person with any of its services; (b) in the terms or conditions on which it offers to provide the person with any of its services; or (c) in the manner in which it provides the person with any of its services. ### Division 2—Discrimination in other areas #### 21 Education (1) It is unlawful for an educational authority to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding: (a) by refusing or failing to accept the person’s application for admission as a student; or (b) in the terms or conditions 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 the student’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding: (a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; (b) by expelling the student; or (c) by subjecting the student to any other detriment. (3) Nothing in this section applies to or in respect of a refusal or failure to accept a person’s application for admission as a student at an educational institution where: (a) the educational institution is conducted solely for students of a different sex from the sex of the applicant; or (b) except in the case of an institution of tertiary education—education or training at the level at which the applicant is seeking education or training is provided by the educational institution only or mainly for students of a different sex from the sex of the applicant. #### 22 Goods, services and facilities It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; (b) in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person. #### 23 Accommodation (1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding: (a) by refusing the other person’s application for accommodation; (b) in the terms or conditions on which accommodation is offered to the other person; or (c) by deferring the other person’s application for accommodation or according to the other 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 the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding: (a) by denying the other person access, or limiting the other person’s access, to any benefit associated with accommodation occupied by the other person; (b) by evicting the other person from accommodation occupied by the other person; or (c) by subjecting the other person to any other detriment in relation to accommodation occupied by the other person. (3) Nothing in this section applies to or in respect of: (a) the provision of accommodation in premises if: (i) 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 (ii) the accommodation provided in those premises is for no more than 3 persons other than a person referred to in subparagraph (i) or near relatives of such a person; or (b) accommodation provided by a religious body; or (c) accommodation provided by: (i) an entity registered under the Australian Charities and Not‑for‑profits Commission Act 2012; or (ii) a not‑for‑profit entity that is not an ACNC type of entity; solely for persons of one sex or solely for persons of one or more particular marital or relationship statuses. (3A) Paragraph (3)(b) does not apply to accommodation provided by a religious body in connection with the provision, by the body, of Commonwealth‑funded aged care. #### 24 Land (1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding: (a) by refusing or failing to dispose of an estate or interest in land to the other person; or (b) in the terms or conditions on which an estate or interest in land is offered to the other person. (2) This section does not apply in relation to a disposal of an estate or interest in land by will or by way of gift. #### 25 Clubs (1) It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a person who is not a member of the club on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding: (a) by refusing or failing to accept the person’s application for membership; or (b) in the terms or conditions on which the club is prepared to admit the person to membership. (2) It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a person who is a member of the club on the ground of the member’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding: (a) in the terms or conditions of membership that are afforded to the member; (b) by refusing or failing to accept the member’s application for a particular class or type of membership; (c) by denying the member access, or limiting the member’s access, to any benefit provided by the club; (d) by depriving the member of membership or varying the terms of membership; or (e) by subjecting the member to any other detriment. (3) Nothing in subsection (1) or (2) renders it unlawful to discriminate against a person on the ground of the person’s sex if membership of the club is available to persons of a different sex only. (4) Nothing in subsection (1), other than paragraph (1)(a), or subsection (2) renders it unlawful to discriminate against a person on the ground of the person’s sex if the discrimination occurs in relation to the use or enjoyment of any benefit provided by the 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 club is established; (b) the membership of the club, including any class or type of membership; (c) the nature of the benefits provided by the club; (d) the opportunities for the use and enjoyment of those benefits by men and women; and (e) any other relevant circumstances. #### 26 Administration of Commonwealth laws and programs It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding, in the performance of that function, the exercise of that power or the fulfilment of that responsibility. #### 27 Requests for information (1) It is unlawful for a person (the first person) to request or require another person (the other person) to provide information (whether by way of completing a form or otherwise) if: (a) the information is requested or required in connection with, or for the purposes of, the first person doing a particular act; and (b) under Division 1 or this Division, it would be unlawful in particular circumstances for the first person, in doing that act, to discriminate against the other person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities; and (c) persons: (i) of a different sex; or (ia) who have a different sexual orientation; or (ib) who have a different gender identity; or (ic) who are not of intersex status; or (ii) who have a different marital or relationship status; or (iii) who are not pregnant or potentially pregnant; or (iv) who are not breastfeeding; or (v) without family responsibilities; as the case requires, would not be requested or required to provide the information in circumstances that are the same or not materially different. > Note: Example: Under section 14 of Division 1, it is unlawful to determine not to offer employment to a woman because she is pregnant or might become pregnant. Under this section, it is therefore also unlawful to ask a woman during a job interview whether she is pregnant or intends to become pregnant if that information is requested in connection with determining whether to offer her employment. (2) Nothing in subsection (1) renders it unlawful for a person to request or require: (a) a person of a particular sex to provide information concerning such part of the last‑mentioned person’s medical history as relates to medical conditions that affect persons of that sex only; or (b) a person who is pregnant to provide medical information concerning the pregnancy. > Note: Information obtained under this subsection may be used provided the use is not for the purpose of a discriminatory act that is unlawful under any other section of this Act. For example, an employer may use such information for a purpose connected with occupational health and safety, but only if doing so does not amount to unlawful discrimination. ### Division 3—Harassment etc. #### 28A Meaning of sexual harassment (1) For the purposes of this Act, a person sexually harasses another person (the person harassed) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. (1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following: (a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed; (b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct; (c) any disability of the person harassed; (d) any other relevant circumstance. (2) In this section: > conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing. #### 28AA Meaning of harassment on the ground of sex (1) For the purposes of this Act, a person harasses another person (the person harassed) on the ground of sex if: (a) by reason of: (i) the sex of the person harassed; or (ii) a characteristic that appertains generally to persons of the sex of the person harassed; or (iii) a characteristic that is generally imputed to persons of the sex of the person harassed; the person engages in unwelcome conduct of a demeaning nature in relation to the person harassed; and (b) the person does so in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. > Note: See also section 8 (acts done for 2 or more reasons). (2) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following: (a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed; (b) the relationship between the person harassed and the person who engaged in the conduct; (c) any disability of the person harassed; (d) any power imbalance in the relationship between the person harassed and the person who engaged in the conduct; (e) the seriousness of the conduct; (f) whether the conduct has been repeated; (g) any other relevant circumstance. (3) In this section: > conduct includes making a statement to a person, or in the presence of a person, whether the statement is made orally or in writing. #### 28AB Meaning of worker in a business or undertaking For the purposes of this Act, if a person (the first person) is a worker because the first person carries out work for a person conducting a business or undertaking, the first person is a worker in the business or undertaking. #### 28B Employment, partnerships etc. (1) It is unlawful for a person to sexually harass or harass on the ground of sex: (a) an employee of the person; or (b) a person who is seeking to become an employee of the person. (2) It is unlawful for an employee to sexually harass, or harass on the ground of sex, a fellow employee or a person who is seeking employment with the same employer. (3) It is unlawful for a person conducting a business or undertaking to sexually harass, or harass on the ground of sex: (a) a worker in the business or undertaking; or (b) a person who is seeking to become a worker in the business or undertaking. (4) It is unlawful for a worker in a business or undertaking to sexually harass, or harass on the ground of sex: (a) a fellow worker; or (b) a person who is seeking to become a worker in the business or undertaking. (5) It is unlawful for a person (the first person) who is: (a) a worker; or (b) a person conducting a business or undertaking; to sexually harass, or harass on the ground of sex, a person if the harassment occurs in connection with the first person being: (c) a worker; or (d) a person conducting a business or undertaking. (6) It is unlawful for a person to sexually harass, or harass on the ground of sex, a person (the second person) who is: (a) a worker; or (b) a person conducting a business or undertaking; if the harassment occurs in connection with the second person being: (c) a worker; or (d) a person conducting a business or undertaking. (7) It is unlawful for a person (the first person) who is: (a) an employee; or (b) an employer; to sexually harass, or harass on the ground of sex, a person if the harassment occurs in connection with the first person being: (c) an employee; or (d) an employer. (8) It is unlawful for a person to sexually harass, or harass on the ground of sex, a person (the second person) who is: (a) an employee; or (b) an employer; if the harassment occurs in connection with the second person being: (c) an employee; or (d) an employer. #### 28C Members of bodies with power to grant etc. occupational qualifications etc. (1) It is unlawful for a member of an authority or body that has power to take action in connection with an occupational qualification to sexually harass, or harass on the ground of sex, 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 that is needed for, or facilitates: (a) practising a profession; or (b) carrying on a trade; or (c) engaging in an occupation. #### 28D Registered organisations It is unlawful for: (a) a member of a registered organisation; or (b) a member of the staff of a registered organisation; to sexually harass, or harass on the ground of sex, a member of the organisation, or a person who is seeking to become a member of the organisation. #### 28E Employment agencies It is unlawful for: (a) a person who operates an employment agency; or (b) a member of the staff of an employment agency; to sexually harass, or harass on the ground of sex, another person in the course of providing, or offering to provide, any of the agency’s services to that other person. #### 28F Educational institutions (1) It is unlawful for a member of the staff of an educational institution to sexually harass or harass on the ground of sex: (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 or harass on the ground of sex: (a) a person who is a student at the institution; or (b) a member of the staff of the institution. (2A) It is unlawful for a person (the first person) who is a member of the staff of an educational institution (the first educational institution) to sexually harass, or harass on the ground of sex, a person who is a student at another educational institution if the sexual harassment, or harassment on the ground of sex, occurs in connection with the first person being a member of staff of the first educational institution. (2B) It is unlawful for a person (the first person) who is an adult student at an educational institution (the first educational institution) to sexually harass or harass on the ground of sex: (a) a person who is a student at another educational institution; or (b) a member of the staff of another educational institution; if the sexual harassment, or harassment on the ground of sex, occurs in connection with the first person being a student at the first educational institution. (3) In this section: > adult student means a student who has attained the age of 16 years. #### 28G Goods, services and facilities (1) It is unlawful for a person to sexually harass, or harass on the ground of sex, another person in the course of providing, or offering to provide, goods, services or facilities to that other person. (2) It is unlawful for a person to sexually harass, or harass on the ground of sex, another person in the course of seeking, or receiving, goods, services or facilities from that other person. #### 28H Provision of accommodation (1) It is unlawful for a person to sexually harass, or harass on the ground of sex, 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 to a near relative. #### 28J Land It is unlawful for a person to sexually harass, or harass on the ground of sex, 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. #### 28K Clubs It is unlawful for a member of the committee of management of a club to sexually harass, or harass on the ground of sex, a member of the club or a person seeking to become a member of the club. #### 28L Commonwealth laws and programs It is unlawful for a person: (a) in the course of performing any function, or exercising any power, under a Commonwealth law or for the purposes of a Commonwealth program; or (b) in the course of carrying out any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program; to sexually harass, or harass on the ground of sex, another person. #### 28M Hostile workplace environments (1) It is unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex. (2) A person (the first person) subjects another person (the second person) to a workplace environment that is hostile on the ground of sex if: (a) the first person engages in conduct in a workplace where the first person or the second person, or both, work; and (b) the second person is in the workplace at the same time as or after the conduct occurs; and (c) a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the second person by reason of: (i) the sex of the person; or (ii) a characteristic that appertains generally to persons of the sex of the person; or (iii) a characteristic that is generally imputed to persons of the sex of the person. > Note: See also section 8A in relation to workplace environments that are offensive, intimidating or humiliating for 2 or more reasons. (3) For the purposes of subsection (2), the circumstances to be taken into account include, but are not limited to, the following: (a) the seriousness of the conduct; (b) whether the conduct was continuous or repetitive; (c) the role, influence or authority of the person engaging in the conduct; (d) any other relevant circumstance. (4) In this section: > conduct includes making a statement, whether the statement is made orally or in writing. ### Division 4—Exemptions #### 30 Certain discrimination on ground of sex not unlawful (1) Nothing in paragraph 14(1)(a) or (b), 15(1)(a) or (b) or 16(b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with a position as an employee, commission agent or contract worker, being a position in relation to which it is a genuine occupational qualification to be a person of a different sex from the sex of the other person. (2) Without limiting the generality of subsection (1), it is a genuine occupational qualification, in relation to a particular position, to be a person of a particular sex (in this subsection referred to as the relevant sex) if: (a) the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of a different sex from the relevant sex; (b) the duties of the position involve performing in a dramatic performance or other entertainment in a role that, for reasons of authenticity, aesthetics or tradition, is required to be performed by a person of the relevant sex; (c) the duties of the position need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothing for persons of that sex; (d) the duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex; (e) the occupant of the position is required to enter a lavatory ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex; (f) the occupant of the position is required to live on premises provided by the employer or principal of the occupant of the position and: (i) the premises are not equipped with separate sleeping accommodation and sanitary facilities for persons of each sex; (ii) the premises are already occupied by a person or persons of the relevant sex and are not occupied by any person of a different sex from the relevant sex; and (iii) it is not reasonable to expect the employer or principal to provide separate sleeping accommodation and sanitary facilities for persons of each sex; (g) the occupant of the position is required to enter areas ordinarily used only by persons of the relevant sex while those persons are in a state of undress; or (h) the position is declared, by regulations made for the purposes of this paragraph, to be a position in relation to which it is a genuine occupational qualification to be a person of a particular sex. #### 31 Pregnancy, childbirth or breastfeeding Nothing in Division 1 or 2 renders it unlawful for a person to discriminate against a man on the ground of his sex by reason only of the fact that the first‑mentioned person grants to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding. #### 32 Services for members of one sex Nothing in Division 1 or 2 applies to or in relation to the provision of services the nature of which is such that they can only be provided to members of one sex. #### 34 Accommodation provided for employees or students (1) Nothing in Division 1 or 2 renders it unlawful for an employer who provides accommodation to employees of the employer to provide accommodation of different standards to different employees where: (a) the standard of the accommodation provided to each employee is determined having regard to the number of persons in the household of the employee; and (b) it is not reasonable to expect the employer to provide accommodation of the same standard for all employees. (2) Nothing in Division 1 or 2 applies to or in relation to the provision of accommodation, where the accommodation is provided solely for persons of one sex who are students at an educational institution. #### 35 Residential care of children (1) Nothing in paragraph 14(1)(a) or (b) or 16(b) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex in connection with a position as an employee or contract worker, where the duties of the position involve the care of a child or children in the place where the child or children resides or reside. (2) Nothing in paragraph 14(1)(a) or (b), 14(2)(c) or 16(b) renders it unlawful for a person to discriminate against another person on the ground of the other person’s marital or relationship status in connection with a position as an employee or contract worker of a particular employer or principal, where: (a) the duties of the position involve the care of a child or children in the place where the child or children resides or reside; and (b) it is intended that the spouse or de facto partner of the occupant of the position would also occupy a position as an employee or contract worker of that employer or principal. #### 36 Charities Divisions 1 and 2 do not: (a) affect a provision (whether made before or after the commencement of this Part) of the governing rules (within the meaning of the Australian Charities and Not‑for‑profits Commission Act 2012) of a registered charity, if the provision: (i) confers benefits for charitable purposes; or (ii) enables such benefits to be conferred; wholly or in part on persons of a class identified by reference to any one or more of the grounds of discrimination referred to in this Act; or (b) make unlawful any act done to give effect to such a provision. #### 37 Religious bodies (1) Nothing in Division 1 or 2 affects: (a) the ordination or appointment of priests, ministers of religion or members of any religious order; (b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; (c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or (d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion. (2) Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if: (a) the act or practice is connected with the provision, by the body, of Commonwealth‑funded aged care; and (b) the act or practice is not connected with the employment of persons to provide that aged care. #### 38 Educational institutions established for religious purposes (1) Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first‑mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed. (2) Nothing in paragraph 16(b) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with a position as a contract worker that involves the doing of work in an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first‑mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed. (3) Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first‑mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed. #### 39 Voluntary bodies Nothing in Division 1 or 2 renders it unlawful for a voluntary body to discriminate against a person, on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding or family responsibilities, in connection with: (a) the admission of persons as members of the body; or (b) the provision of benefits, facilities or services to members of the body. #### 40 Acts done under statutory authority (1) Nothing in Division 1 or 2 affects anything done by a person in direct compliance with: (c) a determination or decision of the Commission; (d) an order of a court; or (e) an order, determination or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment; or (g) an instrument (an industrial instrument) that is: (i) a fair work instrument (within the meaning of the Fair Work Act 2009); or (ii) a transitional instrument or Division 2B State instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009). > Note: A person does not comply with an industrial instrument for the purpose of this subsection if that person purports to comply with a provision of that instrument that has no effect. Accordingly, the exemption under this subsection for acting in direct compliance with such an instrument would not apply in such circumstances. (2) Nothing in Division 1 or 2 affects anything done by a person in direct compliance with any of the following as in force on 1 August 1984: (a) the Gift Duty Assessment Act 1941; (b) the operation of: (i) the definition of pensioner in subsection 4(1); or (ii) the definition of concessional beneficiary in subsection 84(1); of the National Health Act 1953; (c) the Income Tax Assessment Act 1936; (d) the International Tax Agreements Act 1953; (e) the Papua New Guinea (Members of the Forces Benefits) Act 1957; (f) the Sales Tax (Exemptions and Classifications) Act 1935; (h) the Social Security Act 1947; (i) the Taxation (Unpaid Company Tax) Assessment Act 1982; (j) the Social Services Act 1980 of Norfolk Island. (2A) A minister of religion (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if any of the circumstances mentioned in paragraph 47(3)(a), (b) or (c) of the Marriage Act 1961 apply. (2AA) A religious marriage celebrant (as defined in subsection 5(1) of the Marriage Act 1961) may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if: (a) the identification of the person as a religious marriage celebrant on the register of marriage celebrants has not been removed at the time the marriage is solemnised; and (b) the circumstances mentioned in subsection 47A(1) of the Marriage Act 1961 apply. (2AB) A chaplain in the Defence Force may refuse to solemnise a marriage despite anything in Division 1 or 2, as applying by reference to section 5A, 5B, 5C or 6, if any of the circumstances mentioned in paragraph 81(2)(a), (b) or (c) of the Marriage Act 1961 apply. > Note: Paragraph 37(1)(d) also provides that nothing in Division 1 or 2 affects any act or practice of a body established for religious purposes that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion. (2B) Nothing in Division 1 or 2, as applying by reference to section 5A, 5B or 5C, affects anything done by a person in direct compliance with a law of the Commonwealth, or of a State or Territory, that is prescribed by the regulations for the purpose of this subsection. (3) Nothing in Division 1 or 2, as applying by reference to section 6, affects anything done by a person in direct compliance with any regulations, rules, by‑laws, determinations or directions made under the Gift Duty Assessment Act 1941, the Income Tax Assessment Act 1936 or the Sales Tax (Exemptions and Classifications) Act 1935. (4) Nothing in Division 1 or 2, as applying by reference to section 6, affects anything done by a person for the purposes of the administration of the AUSTUDY scheme or the ABSTUDY scheme. (6) Nothing in Division 1 or 2 affects anything done by a person in compliance with a provision of a law of the Commonwealth, of a State or of a Territory, being a provision that is included for the purpose referred to in subsection 7D(1). > Note: See also subsection 98(6A) of the Civil Aviation Act 1988, which allows regulations made under that Act to contain provisions relating to medical standards that are inconsistent with this Act if the inconsistency is necessary for the safety of air navigation. #### 41 Insurance (1) Nothing in Division 1 or 2 makes discrimination by one person (in this subsection called the insurer) against another person (in this subsection called the client) unlawful if: (a) the discrimination is on the ground of the client’s sex; and (b) the discrimination is in the terms on which an insurance policy is offered to, or may be obtained by, the client; and (c) the discrimination is based on actuarial or statistical data from a source on which it is reasonable for the insurer to rely; and (d) the discrimination is reasonable having regard to the data; and (e) if the client gives the insurer a written request for access to the data—either: (i) the insurer gives the client a document containing the data; or (ii) the insurer: (A) makes a document containing the data available for inspection by the client at such time or times, and at such place or places, as are reasonable; and (B) if the client inspects the document—allows the client to make a copy of, or take extracts from, the document. (1A) Paragraph (1)(e) does not apply if the Commission has, under section 44, granted an exemption from the operation of that paragraph. (2) In this section: > insurance policy includes an annuity, a life assurance policy, an accident insurance policy and an illness insurance policy. #### 41A New superannuation fund conditions (1) Nothing in Division 1 or 2 makes discrimination in relation to a superannuation fund by one person (in this subsection called the discriminator) against another person (in this subsection called the aggrieved person) unlawful if: (a) the discrimination is on the ground of the aggrieved person’s sex, marital or relationship status or family responsibilities; and (b) the discrimination arises only because of one or more of the following: (i) the superannuation fund conditions include a provision that: (A) is based on actuarial or statistical data from a source on which it is reasonable for the discriminator to rely; and (B) is reasonable having regard to those data and any other relevant factors; (ii) in the case of a member who has no spouse or de facto partner or has no child—the superannuation fund conditions: (A) do not provide for superannuation benefits in the event of the member’s death; or (B) provide for less generous superannuation benefits in the event of the member’s death; or (C) do not provide for superannuation benefits to someone other than the member in the event of the member’s physical or mental incapacity; or (D) provide for less generous superannuation benefits to someone other than the member in the event of the member’s physical or mental incapacity; (iii) the superannuation fund conditions include a provision that relates to: (A) the vesting in members or other persons of benefits arising directly or indirectly from amounts contributed to the fund; or (B) the preservation of benefits arising directly or indirectly from amounts contributed to the fund; or (C) the portability of benefits arising directly or indirectly from amounts contributed to another superannuation fund; if the inclusion of that provision results in only indirect discrimination against the aggrieved person on the ground of that person’s sex, marital or relationship status or family responsibilities; (iv) the superannuation fund conditions include a provision that confers particular benefits, or more generous benefits, only on a person to whom subsection 41B(3) or (4) applies. (2) For the purposes of this section: (a) discrimination on the ground of a person’s sex is taken to be indirect if paragraph 5(1)(b) or (c) or subsection 5(2) applies to the discrimination; and (b) discrimination on the ground of a person’s marital or relationship status is taken to be indirect if paragraph 6(1)(b) or (c) or subsection 6(2) applies to the discrimination. (3) This section does not apply to a person in respect of a superannuation fund if subsection 41B(3) or (4) applies to that person. (4) In this section: > member, in relation to a superannuation fund, includes a person who has been a member of the fund at any time. #### 41B Existing superannuation fund conditions (1) This section applies to a person (in this section called the member) if: (a) the person was a member of a superannuation fund immediately before the commencement of this section; and (b) unless the Commission has, under section 44, granted an exemption from the operation of this paragraph—before the commencement of this section, the person: (i) had been given an option to obtain non‑discriminatory benefits; and (ii) had not exercised the option in accordance with subsection (5). (2) This section applies to a person (in this section also called the member) if: (a) at any time before the commencement of this section, the person became a member of a superannuation fund; and (b) at a later time before that commencement, the person ceased to be a member of the fund. (3) Nothing in Division 1 or 2 makes discrimination against the member unlawful if the discrimination: (a) is on the ground of the member’s sex, marital or relationship status or family responsibilities; and (b) is in the superannuation fund conditions. (4) Nothing in Division 1 or 2 makes discrimination against a person unlawful if: (a) the person derives, or would, apart from the discrimination, derive, benefits because the member is or was a member of the superannuation fund; and (b) the discrimination: (i) is on the ground of the sex, marital or relationship status or family responsibilities of the member or the person; and (ii) is in the superannuation fund conditions. (5) If the administrators of the fund required the member to exercise the option referred to in subsection (1) before the end of a particular period, subsection (1) does not apply unless that period was at least 2 months long and ended before the commencement of this section. (6) For the purposes of this section, the member is taken to obtain non‑discriminatory benefits where, if section 41A applied to the member in respect of the fund, the superannuation fund conditions that relate to the benefits would not give rise to discrimination that is unlawful under Division 1 or 2. #### 42 Sport (1) Nothing in Division 1 or 2 renders it unlawful to discriminate on the ground of sex, gender identity or intersex status by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant. (2) Subsection (1) does not apply in relation to the exclusion of persons from participation in: (a) the coaching of persons engaged in any sporting activity; (b) the umpiring or refereeing of any sporting activity; (c) the administration of any sporting activity; (d) any prescribed sporting activity; or (e) sporting activities by children who have not yet attained the age of 12 years. #### 43A Requests for information and keeping of records: not allowing for identifying as being neither male nor female (1) The making of a request for information is not unlawful under Division 1 or 2 merely because the request does not allow for a person to identify as being neither male nor female. (2) Nothing in Division 1 or 2 makes it unlawful to make or keep records in a way that does not provide for a person to be identified as being neither male nor female. #### 44 Commission may grant exemptions (1) The Commission may, on application by: (a) a person, on that person’s own behalf or on behalf of that person and another person or other persons; (b) 2 or more persons, on their own behalf or on behalf of themselves and another person or other persons; or (c) a person or persons included in a class of persons on behalf of the persons included in that class of persons; by instrument in writing, grant to the person, persons or class of persons, as the case may be, an exemption from the operation of a provision of Division 1 or 2, or paragraph 41(1)(e), or paragraph 41B(1)(b), as specified in the instrument. (2) The Commission may, on application by a person to, or in respect of, whom an exemption from a provision of Division 1 or 2, or paragraph 41(1)(e), has been granted under subsection (1), being an application made before the expiration of the period for which that exemption was granted, grant a further exemption from the operation of that provision. (3) An exemption, or further exemption, from the operation of a provision of Division 1 or 2, or paragraph 41(1)(e) or paragraph 41B(1)(b): (a) may be granted subject to such terms and conditions as are specified in the instrument; (b) may be expressed to apply only in such circumstances, or in relation to such activities, as are specified in the instrument; and (c) shall be granted for a specified period not exceeding 5 years. #### 45 Review by Administrative Review Tribunal Applications may be made to the Administrative Review Tribunal for review of decisions made by the Commission under section 44. #### 46 Notice of decisions to be published (1) The Commission shall, not later than one month after it makes a decision under section 44, cause to be published in the Gazette a notice of the making of the decision: (a) containing a statement of reasons (within the meaning of the Administrative Review Tribunal Act 2024) for the decision; and (b) containing a statement to the effect that, subject to that Act, application may be made to the Administrative Review Tribunal for a review of the decision to which the notice relates by or on behalf of any person or persons whose interests are affected by the decision. (2) Any failure to comply with the requirements of subsection (1) in relation to a decision does not affect the validity of the decision. #### 47 Effect of exemptions Nothing in Division 1 or 2 renders it unlawful for a person who has been granted an exemption from a provision of that Division, or a person in the employment or under the direction or control of a person who has been granted such an exemption, to do an act in accordance with the provisions of the instrument by which the exemption was granted. ### Division 5—Victimisation #### 47A Victimisation (1) It is unlawful for a person to commit an act of victimisation against another person. > Note 1: See also section 94 (offence of victimisation). > Note 2: See also the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986. (2) For the purposes of subsection (1), a person (the first person) commits an act of victimisation against another person if the first person subjects, or threatens to subject, the other person to any detriment on the ground that the other person: (a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or (b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or (c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or (d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or (e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or (f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or (g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part (other than subsection (1)); or (h) has made an allegation that a person has contravened a provision of Part IIA; or on the ground that the first person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (h), inclusive. (3) In a proceeding for a contravention of subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation mentioned in paragraph (2)(g) or (h), it is a defence if it is proved that the allegation was false and was not made in good faith. ## Part IIA—Duty to eliminate unlawful sex discrimination etc. #### 47B Simplified outline of this Part An employer or a person conducting a business or undertaking must take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct. Division 4A of Part II of the Australian Human Rights Commission Act 1986 confers functions on the President in relation to this duty, including inquiring into compliance, giving compliance notices and accepting undertakings. #### 47C Duty to eliminate unlawful sex discrimination etc. Positive duty (1) An employer or a person conducting a business or undertaking (the duty holder) must take reasonable and proportionate measures to eliminate, as far as possible: (a) conduct covered by subsection (2) by persons covered by subsection (3); and (b) conduct covered by subsection (4). Conduct by duty holder, employees, workers and agents (2) For the purposes of subsection (1), this subsection covers the following conduct: (a) discrimination on the ground of a person’s sex that is unlawful under any of the following provisions: (i) subsection 14(1) or (2) (employment); (ii) section 15 (commission agents); (iii) section 16 (contract workers); (iv) section 17 (partnerships); (b) sexual harassment, or harassment on the ground of sex, that is unlawful under section 28B; (c) conduct that is unlawful under section 28M (hostile workplace environments); (d) acts of victimisation (within the meaning of section 47A) that relate to complaints, proceedings, assertions or allegations in relation to conduct mentioned in any of paragraphs (a) to (c) of this subsection. (3) For the purposes of paragraph (1)(a), this subsection covers the following persons: (a) the duty holder; (b) if the duty holder is an employer—the duty holder’s employees; (c) if the duty holder is a person conducting a business or undertaking—workers in the business or undertaking; (d) the duty holder’s agents. Other conduct towards employees and workers by any person (4) For the purposes of subsection (1), this subsection covers the following conduct: (a) sexual harassment, or harassment on the ground of sex, of persons covered by subsection (5) that is unlawful under subsection 28B(6) or (8); (b) conduct in workplaces where persons covered by subsection (5) work that is unlawful under section 28M (hostile workplace environments); (c) acts of victimisation (within the meaning of section 47A) against persons covered by subsection (5) that relate to complaints, proceedings, assertions or allegations in relation to conduct mentioned in any of paragraphs (2)(a) to (c). (5) For the purposes of subsection (4), this subsection covers the following persons: (a) if the duty holder is an employer—the duty holder’s employees; (b) if the duty holder is a person conducting a business or undertaking—workers in the business or undertaking. Matters to be taken into account (6) The following matters are to be taken into account in determining whether a duty holder complies with subsection (1): (a) the size, nature and circumstances of the duty holder’s business or undertaking; (b) the duty holder’s resources, whether financial or otherwise; (c) the practicability and the cost of measures to eliminate conduct covered by subsection (2) or (4); (d) any other relevant matter. Other duties not limited or otherwise affected (7) This section does not limit, or otherwise affect, a duty that a duty holder has under: (a) the Work Health and Safety Act 2011; or (b) a law of a State or Territory that deals with work health and safety. (8) Paragraph (7)(b) does not limit the operation of section 10 or 11. ## Part III—Functions of the Australian Human Rights Commission ### Division 1—Preliminary #### 48 Functions of the Commission (1) The following functions are hereby conferred on the Commission: (c) to exercise the powers conferred on it by section 44; (d) to promote an understanding and acceptance of, and compliance with, this Act; (e) to undertake research and educational programs, and other programs, on behalf of the Commonwealth for the purpose of promoting the objects of this Act; (f) to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments are, or would be, inconsistent with or contrary to the objects of this Act, and to report to the Minister the results of any such examination; (g) on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to discrimination on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities; (gaaa) on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to discrimination involving: (i) sexual harassment; or (ii) harassment on the ground of sex; or (iii) subjecting a person to a workplace environment that is hostile on the ground of sex; (ga) to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of discrimination on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities; (gaa) to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of discrimination involving: (i) sexual harassment; or (ii) harassment on the ground of sex; or (iii) subjecting a person to a workplace environment that is hostile on the ground of sex; (gb) where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve issues of discrimination on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities; (gc) where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve issues of discrimination involving: (i) sexual harassment; or (ii) harassment on the ground of sex; or (iii) subjecting a person to a workplace environment that is hostile on the ground of sex; (h) to do anything incidental or conducive to the performance of any of the preceding functions. > Note: For the provisions about inquiries into complaints of discrimination and conciliation of those complaints: see Part IIB of the Australian Human Rights Commission Act 1986. (2) The Commission shall not regard an enactment or proposed enactment as being inconsistent with or contrary to the objects of this Act for the purposes of paragraph (1)(f) by reason of a provision of the enactment or proposed enactment that is included for the purpose referred to in subsection 7D(1). ## Part IV—Offences #### 85 Unlawful act not offence unless expressly so provided Except as expressly provided by this Part, nothing in this Act makes it an offence to do an act that is unlawful by reason of a provision of Part II or IIA. #### 86 Advertisements (1) A person shall not publish or display an advertisement or notice that indicates, or could reasonably be understood as indicating, an intention to do an act that is unlawful by reason of a provision of Part II. Penalty: 10 penalty units. (2) For the purposes of subsection (1), advertisement includes every form of advertisement or notice, whether to the public or not, and whether in a newspaper or other publication, by television or radio, by display of notices, signs, labels, showcards or goods, by distribution of samples, circulars, catalogues, price lists or other material, by exhibition of pictures, models or films, or in any other way, and the reference in that subsection to publish or display, in relation to an advertisement, shall be construed accordingly. #### 87 Failure to provide actuarial or statistical data (1) Where a person has engaged in an act of discrimination that would, apart from subsection 41(1), be unlawful, the President or the Commission may, by notice in writing served on the person as prescribed, require the person, within 28 days after service of the notice on the person, to disclose to the President or to the Commission, as the case may be, the source of the actuarial or statistical data on which the act of discrimination was based and, where the President or the Commission, as the case may be, makes such a requirement of a person, the person shall not fail to comply with the requirement. Penalty: 10 penalty units. (2) Subsection (1) does not apply if the person has a reasonable excuse. > Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). (3) Subsection (1) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. #### 92 Particulars of complaints not to be communicated (1) Subject to subsection (2), where a complaint alleging that a person has done an act that is unlawful under Division 3 of Part II is lodged with the Commission under section 46P of the Australian Human Rights Commission Act 1986, a person shall not make a record of, or divulge or communicate to any other person, any particulars of that complaint until: (a) the President has commenced to inquire into the act; or (ab) the complaint is withdrawn under section 46PG of the Australian Human Rights Commission Act 1986; or (b) the President terminates the complaint under section 46PE or 46PH of the Australian Human Rights Commission Act 1986. Penalty: 10 penalty units. (1A) Subsection (1) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. (2) Nothing in subsection (1) prohibits: (a) the President, a member of the Commission, a member of the staff assisting the Commission or a person acting under the direction or authority of the Commission or of the President or pursuant to a delegation under section 104 from making a record of, or divulging or communicating, any particulars of a complaint in the performance of a duty under or in connection with this Act or in the performance or exercise of a function or power under this Act; or (b) a person from divulging or communicating any particulars of a complaint to any person in accordance with an arrangement in force under section 16 of the Australian Human Rights Commission Act 1986; or (c) a person from divulging or communicating any particulars of a complaint to: (i) the complainant or a person on whose behalf the complaint was made; or (ii) the person alleged to have done the act to which the complaint relates; or (iii) the legal representative of a person referred to in subparagraph (i) or (ii); or (iv) the employer or principal of the person referred to in subparagraph (i) or (ii); or (d) a person who has made a complaint in respect of a particular matter from divulging or communicating any particulars of the complaint to: (i) a person to whom, or an officer of a body to which, the complainant is making a complaint or application in respect of the same matter; or (ii) an officer of a tribunal in which the complainant is instituting proceedings, or to which the complainant is making an application, in respect of the same matter; or (iii) a near relative of the complainant; or (iv) a person from whom the complainant is seeking or receiving professional treatment, counselling or advice; or (e) a person (in this paragraph referred to as the relevant person) on whose behalf a complaint has been made in respect of a particular matter from divulging or communicating any particulars of the complaint to: (i) a person to whom, or an officer of a body to which, the relevant person is making a complaint or application in respect of the same matter; or (ii) an officer of a tribunal in which the relevant person is instituting proceedings, or to which the relevant person is making an application, in respect of the same matter; or (iii) a near relative of the relevant person; or (iv) a person from whom the relevant person is seeking or receiving professional treatment, counselling or advice; or (f) a person to whom particulars of a complaint may be divulged or communicated under paragraph (b), (c), (d) or (e) from making a record of those particulars. #### 94 Victimisation (1) A person shall not commit an act of victimisation against another person. Penalty: (a) in the case of a natural person—25 penalty units or imprisonment for 3 months, or both; or (b) in the case of a body corporate—100 penalty units. (2) For the purposes of subsection (1), a person shall be taken to commit an act of victimisation against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person: (a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or (b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or (c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or (d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or (e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or (f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or (g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II; or (h) has made an allegation that a person has contravened a provision of Part IIA; or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (h), inclusive. (3) It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation mentioned in paragraph (2)(g) or (h) if it is proved that the allegation was false and was not made in good faith. #### 95 Obstruction etc. (1) A person shall not insult, hinder, obstruct, molest or interfere with a person exercising a power or performing a function under this Act. Penalty: 10 penalty units. (2) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance, that a person is exercising a power or performing a function under this Act. > Note: For strict liability, see section 6.1 of the Criminal Code. ## Part V—Sex Discrimination Commissioner #### 96 Sex Discrimination Commissioner (1) There shall be a Sex Discrimination Commissioner, who shall be appointed by the Governor‑General. (2) A person must not be appointed under subsection (1) as the Sex Discrimination Commissioner unless the Minister is satisfied that: (a) the person has appropriate qualifications, knowledge or experience; and (b) the selection of the person for the appointment is the result of a process that: (i) was merit‑based; and (ii) included public advertising of the position. (3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Sex Discrimination Commissioner under a previous appointment under subsection (1). #### 97 Terms and conditions of appointment (1) Subject to this section, the Commissioner holds office for such period as is specified in the instrument of the person’s appointment, but is eligible for re‑appointment. (2) A person must not be appointed as the Sex Discrimination Commissioner under section 96 for a period if the sum of the following exceeds 7 years: (a) that period; (b) any periods of previous appointment of the person as the Sex Discrimination Commissioner under that section. (3) The Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General. #### 98 Remuneration of Commissioner (1) The Commissioner shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Remuneration Tribunal is in operation, the Commissioner shall be paid such remuneration as is prescribed. (2) The Commissioner shall be paid such allowances as are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973. #### 99 Leave of absence (1) The Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal. (2) The Minister may grant the Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines. #### 100 Outside employment The Commissioner shall not, except with the approval of the Minister, engage in paid employment outside the duties of the office of Commissioner. #### 101 Resignation The Commissioner may resign from the office of Commissioner by writing delivered to the Governor‑General. #### 102 Termination of appointment (1) The Governor‑General may terminate the appointment of the Commissioner by reason of misbehaviour or of physical or mental incapacity. (2) The Governor‑General shall terminate the appointment of the Commissioner if the Commissioner: (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; (b) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any period of 12 months; or (c) engages in paid employment outside the duties of the office of Commissioner otherwise than with the consent of the Minister. #### 103 Acting Commissioner The Minister may appoint a person to act as Commissioner: (a) during a vacancy in the office of Commissioner, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Commissioner is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office of Commissioner. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. ## Part VI—Miscellaneous #### 104 Delegation (1) The Commission may by writing under its seal, delegate to a member of the Commission, the Commissioner, a member of the staff of the Commission or another person or body of persons all or any of the powers conferred on the Commission under this Act. (2) The Commissioner may, by writing signed by the Commissioner, delegate to: (a) a member of the staff of the Commission; or (b) any other person or body of persons; approved by the Commission, all or any of the powers exercisable by the Commissioner under this Act. #### 105 Liability of persons involved in unlawful acts A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2, 3 or 5 of Part II shall, for the purposes of this Act, be taken also to have done the act. #### 106 Vicarious liability etc. (1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent: (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or (b) an act that is unlawful under Division 3 of Part II; this Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph. #### 107 Acts done on behalf of bodies (1) Where, for the purposes of this Act, it is necessary to establish that a body corporate has done an act on a particular ground, it is sufficient to establish that a person who acted on behalf of the body corporate in the matter so acted on that ground. #### 108 Commonwealth deemed to be employer For the purposes of this Act, all Commonwealth employees shall be deemed to be employed by the Commonwealth. #### 109 State taken to be employer For the purposes of this Act, a State employee of a State is taken to be employed by the State. #### 110 Unlawful act not basis of civil action unless expressly so provided Except as expressly provided by this Act, nothing in this Act confers on a person any right of action in respect of the doing of an act that is unlawful by reason of a provision of Part II or IIA. #### 111 Protection from civil actions (1A) Subsection (1) applies in relation to any of the following persons: (a) the Commission; (b) the Commissioner or another member of the Commission; (c) a person acting under the direction or authority of: (i) the Commission; or (ii) the Commissioner or another member of the Commission; (d) a person acting under a delegation under section 104. (1) The person is not liable to an action or other proceeding for damages for or in relation to an act done, or omitted to be done, in good faith in the performance, or purported performance, of any function, or in the exercise or purported exercise of any power or authority, conferred on the Commission, the Commissioner or the other member of the Commission. (2) If a submission has been made, a document or information has been given, or evidence has been given, to the Commission or the Commissioner, a person is not liable to an action, suit or other proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that submission was made, the document or information was furnished or the evidence was given. #### 112 Non‑disclosure of private information (1) A person who is, or has at any time been, the Commissioner, a member of the Commission or a member of the staff assisting the Commission or is, or has at any time been, authorized to perform or exercise any function or power of the Commission or the Commissioner or any function or power on behalf of the Commission or the Commissioner, being a function or power conferred on the Commission or on the Commissioner under this Act, shall not, either directly or indirectly: (a) make a record of, or divulge or communicate to any person, any information relating to the affairs of another person acquired by the first‑mentioned person by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person being or having been so authorized; or (b) make use of any such information as is mentioned in paragraph (a); or (c) produce to any person a document relating to the affairs of another person furnished for the purposes of this Act. Penalty: 50 penalty units or imprisonment for 1 year, or both. (2) A person who is, or has at any time been, the Commissioner, a member of the Commission or a member of the staff assisting the Commission or is, or has at any time been, authorized to perform or exercise any function or power of the Commission or the Commissioner or any function or power on behalf of the Commission or the Commissioner, being a function or power conferred on the Commission or on the Commissioner under this Act, shall not be required: (a) to divulge or communicate to a court any information relating to the affairs of another person acquired by the first‑mentioned person by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person being or having been so authorized; or (b) to produce in a court a document relating to the affairs of another person of which the first‑mentioned person has custody, or to which that person has access, by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person being or having been so authorized; except where it is necessary to do so for the purposes of this Act. (3) Nothing in this section prohibits a person from: (a) making a record of information that is, or is included in a class of information that is, required or permitted by an Act to be recorded, if the record is made for the purposes of or pursuant to that Act; or (b) divulging or communicating information, or producing a document, to any person in accordance with an arrangement in force under section 16 of the Australian Human Rights Commission Act 1986; or (c) divulging or communicating information, or producing a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by an Act to be divulged, communicated or produced, as the case may be, if the information is divulged or communicated, or the document is produced, for the purposes of or pursuant to that Act. > Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code). (3AA) Subsection (1) does not prevent a person from making a record of, divulging, communicating or making use of information, or producing a document, if the person does so: (a) in the performance of a duty under or in connection with this Act; or (b) in the performance or exercise of a function or power conferred on the Commission or on the Commissioner under this Act. > Note: A defendant bears an evidential burden in relation to the matter in subsection (3AA) (see subsection 13.3(3) of the Criminal Code). (3A) Nothing in subsection (2) prevents a person from being required, for the purposes of or pursuant to an Act, to divulge or communicate information, or to produce a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by that Act to be divulged, communicated or produced. (4) In this section: > court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. > produce includes permit access to. #### 113 Information stored otherwise than in written form Where information is recorded or stored by means of a mechanical, electronic or other device, any duty imposed by this Act to produce the document recording that information shall be construed as a duty to provide a document containing a clear reproduction in writing of the information. #### 114 Commissioner to furnish information The Commissioner shall furnish to the Commission such information relating to the operations of the Commissioner under this Act as the Commission from time to time requires. #### 116 Regulations The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.