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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Sexuality and Gender
Identity Discrimination Bill 2003
No. ,
2003
(Senator Greig)
A
Bill for an Act to prohibit discrimination on the ground of sexuality,
transgender identity or intersex status, and for related
purposes
Contents
A Bill for an Act to prohibit discrimination on the
ground of sexuality, transgender identity or intersex status, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Sexuality and Gender Identity
Discrimination Act 2003.
This Act commences on the day on which it receives the Royal
Assent.
The object of this Act is to eliminate, as far as possible,
discrimination against people on the grounds of sexuality, transgender identity,
or intersex status.
(1) This Act applies throughout Australia and the external territories to
the extent that this Act:
(a) gives effect to:
(i) the International Covenant on Civil and Political Rights; or
(ii) the International Covenant on Economic, Social and Cultural Rights;
or
(iii) the Convention Concerning Discrimination in Respect of Employment
and Occupation, 1958; or
(iv) a prescribed treaty or international agreement; or
(b) relates to matters external to Australia; or
(c) relates to matters of international concern.
(2) This Act applies to things done by or for the Commonwealth or a public
authority of the Commonwealth.
(3) This Act applies to:
(a) Commonwealth employees in connection with their employment as
Commonwealth employees; and
(b) people seeking to become Commonwealth employees.
(4) This Act applies to things done 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.
(5) This Act applies to things done by or for:
(a) the Commonwealth or the government 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.
(6) This Act applies to things done by a person in connection with
exercising a power conferred by a law of the Commonwealth or a law of a
Territory.
(7) This Act applies to things done by:
(a) a person who is a Commonwealth employee in connection with the
person’s duties as a Commonwealth employee; or
(b) 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 the
institution.
(8) This Act applies to:
(a) things done by a foreign corporation; or
(b) things done by a trading or financial corporation formed within the
limits of the Commonwealth for the purpose of its trading or financial
activities.
(9) This Act applies to things done in the course of 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.
(10) This Act applies to things done in the course of trade or
commerce:
(a) between Australia and a place outside Australia; or
(b) among the States; or
(c) between a State and a Territory; or
(d) between 2 Territories.
(11) This Act applies to things done within Australia involving people or
things, or matters arising, outside Australia.
In this Act:
accommodation includes residential and business
accommodation.
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; 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 of member of the Legislative Assembly within the meaning of
the Norfolk Island Act 1979; or
(h) an office or appointment in the Australian Public Service or the
Australian Parliamentary Service.
agency has the same meaning as in the Public Service Act
1999.
androgyne means someone who identifies as not exclusively
male or female who is not intersexed.
associate of a person means:
(a) another person with whom the person associates, whether socially, in
business or otherwise; or
(b) another person who is a partner of, or who is wholly or mainly
dependent on a partner, or on a member of the household of, the
person.
class member, in relation to a representative complaint,
means any of the people on whose behalf the complaint was lodged, but does not
include a person who has withdrawn his or her complaint.
club means an association (whether incorporated or
unincorporated) of at least 30 people 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 Human Rights and Equal Opportunity
Commission established by the Human Rights and Equal Opportunity Commission
Act 1986.
commission agent means a person who does work for another
person as the agent of the other person and who is remunerated, wholly or
partly, by commission.
Commissioner means the Sex Discrimination Commissioner
appointed under section 96 of the Sex Discrimination Act
1984.
Commonwealth agency means an agency within the meaning of the
Privacy Act 1988.
Commonwealth employee means a person who:
(a) holds an office or appointment in the Australian Public Service or the
Australian Parliamentary Service or is employed in a temporary capacity in an
agency; or
(b) holds an administrative office; or
(c) is employed by a public authority of the Commonwealth; or
(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; or
(e) is employed under the Australian Security Intelligence Organisation
Act 1979, the Commonwealth Electoral Act 1918, the Supply and
Development Act 1939 or the Naval Defence Act 1910; or
(f) is a member of the Defence Force.
Commonwealth law means:
(a) an Act, or an instrument made under an Act; or
(b) an Act or Ordinance of a Territory, or an instrument made under an Act
or Ordinance of a Territory; or
(c) an order or award made under a law referred to in paragraph (a)
or (b).
Commonwealth program means a program conducted by or for the
Commonwealth government.
contract worker means a person who does work for another
person under a contract between them.
de facto spouse of a person means another person who is
not married to the person but lives with the person on a bona fide domestic
basis.
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; and
(b) work under a contract for services; and
(c) work as a Commonwealth employee; and
(d) work as an employee of a State or an instrumentality of a
State.
employment agency means a person who or body that, whether
for payment or not, assists people to find employment or other work or assists
employers to find employees or workers, and includes Centrelink.
homosexuality means the identity of being gay, lesbian or
homosexual.
intersex means a condition where a person is born with
reproductive organs and/or sex chromosomes which are not exclusively male or
female.
near relative of a person means:
(a) a parent, child, grandparent, grandchild, brother or sister of the
person; or
(b) the spouse or de facto spouse of the person or of a person
referred to in paragraph (a).
President means the President of the Commission.
principal means:
(a) for a commission agent, a person for whom the commission agent works
as a commission agent; and
(b) for a contract worker, a person for whom the contract worker does work
under a contract between them.
principal executive, in relation to a Commonwealth agency,
has the same meaning as in Part V of the Privacy Act 1988.
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 that employs staff on its own behalf; or
(b) an unincorporated authority or body established, whether before or
after the commencement of this Act, for a public purpose by or under a law of
the Commonwealth or a law of a Territory, being an authority or body that
employs 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.
reassignment procedure means:
(a) a medical or surgical procedure, or a combination of medical and
surgical procedures, to alter the genitals and other sexual characteristics of a
person who was identified by birth certificate as male or female in a way that
the person will be identified as a person of the opposite sex; or
(b) in relation to a person under 18, such a procedure or combination of
procedures to correct or eliminate ambiguities in the person’s sexual
characteristics.
registered organisation means an organisation within the
meaning of the Workplace Relations Act 1996.
relative of a person means another person to whom the person
is related by blood, marriage, affinity or adoption.
representative complaint means a complaint where the people
on whose behalf the complaint was made include people other than the
complainant, but does not include a complaint that the Commission has decided
should no longer be continued as a representative complaint.
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 a profession or trade;
(e) services of the kind provided by a government, a government agency or
a local government body.
sexuality means heterosexuality, homosexuality, bisexuality
and asexuality that presently exists, existed in the past or may exist in the
future.
State, except in subsections 4(11) and (12), includes the
Australian Capital Territory and the Northern Territory.
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 another person.
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.
trade union means:
(a) an organisation of employees that is a registered organisation;
or
(b) a trade union within the meaning of a State Act or a law of a
Territory; or
(c) another similar body.
transgender person means a person originally of one sex
who:
(a) identifies and lives or seeks to live as a member of the other sex;
and
(b) assumes the characteristics of the other sex on a full time basis or
as much as is reasonable in the circumstances; and
(c) includes a transsexual; and
(d) for the purposes of this Act, includes those of androgyne identity;
and
a reference to transgender status includes a reference to part or future
status or perceived status.
transsexual person means a person who:
(a) has undergone, or is in the process of undergoing, a surgical
reassignment procedure; and
(b) who identifies and lives or seeks to live as a member of the sex to
which he or she has been reassigned or seeks to be reassigned.
(1) A person (the discriminator) discriminates against
another person (the aggrieved person) on the ground of sexuality
if, because of the actual or perceived sexuality of the aggrieved person or of a
relative or associate of the aggrieved person, the discriminator treats the
aggrieved person less favourably than, in the same circumstances or in
circumstances that are not materially different, the discriminator treats or
would treat a person of a different sexuality or who had a relative or associate
of a different sexuality.
(2) A person (the discriminator) also discriminates against
another person (the aggrieved person) on the ground of sexuality
if the discriminator requires the aggrieved person to comply with a requirement
or condition:
(a) with which a substantial proportion of people of the same sexuality as
the aggrieved person cannot comply; and
(b) that, on the balance of probabilities, is considered to cause
disadvantage to the aggrieved person or group.
(3) A person (the discriminator) discriminates against
another person (the aggrieved person) on the ground of transgender
identity or intersex status if, because the aggrieved person or a relative or
associate of the aggrieved person is transgender or is thought to be transgender
or intersex, the discriminator treats the aggrieved person less favourably than,
in the same circumstances or in circumstances that are not materially different,
the discriminator treats or would treat a person who is not transgender or
intersex or who had a relative or associate who is not transgender or
intersex.
(4) A person (the discriminator) also discriminates against
another person (the aggrieved person) on the ground of transgender
identity or intersex status if the discriminator requires the aggrieved person
to comply with a requirement or condition that, on the balance of probabilities,
is considered to have a disadvantageous effect on the complainant
group.
(5) For the purposes of this section, a complainant group is
restricted to transgender people of a particular gender, regardless of
reassignment procedures.
(6) Discrimination includes harassment, which is an act reasonably likely,
in all the circumstances, to offend, insult, humiliate or intimidate a person or
an associate or relative of the person.
(7) Harassment of a person on the ground of transgender identity or
intersex status includes harassment of a person by refusing to acknowledge that
he or she wishes to be known as a member of a specific gender and has made this
preference clear.
(8) Harassment of a person on the grounds of bisexuality includes a
refusal to accept bisexuality as a distinct sexuality.
(9) Discrimination includes a failure to offer or continue employment, or
to provide access to goods and services, on the basis that a person’s
dress or appearance suggests he or she is of a particular sexuality or is a
transgender or intersex person, or is thought to be of a particular sexuality or
to be a transgender or intersex person, or has a relative or associate who
appears to be, or is thought to be, of a particular sexuality or a transgender
or intersex person.
(10) In determining whether or not a person engages in discrimination, the
person’s motive is irrelevant.
(1) In this section:
law of a State or Territory means a law of a State or
Territory that deals with discrimination on the ground of sexuality, transgender
identity or intersex status.
(2) 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.
(3) If:
(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 other
action under that law about an act or omission; and
(c) the person would, apart from this subsection, be entitled to make a
complaint under this Act about the act or omission;
the person is not entitled to make a complaint or institute a proceeding
under this Act about that act or omission.
(4) If:
(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 or under
this Act, but this subsection does not render a person liable to be punished
more than once for the same act or omission.
This Act does not prevent a person from taking action to stop another
person from engaging in unlawful behaviour.
(1) This Act binds the Crown in right of the Commonwealth, of each State
and Territory.
(2) This Act does not render the Crown in right of the Commonwealth, of a
State or Territory liable to be prosecuted for an offence.
(1) It is unlawful to discriminate on the ground of sexuality, transgender
identity or intersex status against an employee or an applicant for employment,
including but not limited to persons seeking employment or working as employees,
commission agents, contract workers and volunteers, in:
(a) the offering of employment;
(b) the terms and conditions afforded an employee;
(c) the payment of a superannuation benefit;
(d) the issue of an authorisation or qualification necessary for or to
facilitate the practice of an occupation;
(e) the provision of services by an employment agency;
(f) the consideration of application for membership or the access to
benefits of a registered organisation under the Workplace Relations Act
1988;
(g) the invitation to become a partner or the terms of a
partnership.
(2) Paragraph (1)(a) does not make it unlawful for a person to
discriminate in the offering of employment to another person on the ground of
sexuality, transgender identity or intersex status when that employment
is:
(a) to perform domestic duties at the premises at which the
first-mentioned person resides; or
(b) as a member of the staff of an educational institution that is
conducted in accordance with the tenets, beliefs or teachings of a particular
religion or creed.
(1) This section applies to a law of the Commonwealth that:
(a) confers a right or entitlement on a person, or imposes an obligation
on a person; or
(b) applies to a person in a particular way;
because of the person living together with another person of the opposite
sex on a genuine domestic basis although not married to the other
person.
(2) After commencement, this Act:
(a) confers the same right or entitlement, or imposes the same obligation,
on a person who lives together with another person of the same sex, or when
either or both are transgender, on a genuine domestic basis; or
(b) applies to such people in the same way.
(3) The regulations may provide that this section does not apply to a
specified law of the Commonwealth.
(4) The operation of this Act is to be reported on, including with
statistical and analytical information on all cases coming before the Commission
under this Act, in a separate section of the Annual Report of the Human Rights
and Equal Opportunity Commission.
(1) It is unlawful for a person, authority, agency or association to
discriminate on the ground of sexuality, transgender identity or intersex
status, against a person, including:
(a) in education by any educational authority;
(b) in the provision of goods and services or facilities, whether for
payment or not, and including but not restricted to the provision of
accommodation, or the disposal of an estate or interest in land;
(c) in the membership of a club or incorporated association;
(d) in relation to a sporting activity;
(e) in the administration or conduct of a Commonwealth program, or in the
conduct of an organisation receiving Commonwealth funding.
(2) Paragraph (1)(b) does not make it unlawful for a person to
discriminate against a person on the ground of sexuality, transgender identity
or intersex status:
(a) in providing accommodation, if 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 not more than four people will be
provided with accommodation at the premises; or
(b) in the disposal of an estate or interest in land by will or by way of
gift.
It is unlawful for a person to request or require that a person of
transsexual identity or intersex status, or who has a relative or associate of
that identity or status, to provide information, by way of completing a form or
otherwise, that a person who is not transgender or of a different sexuality
would not be requested or required to provide.
(1) This section applies to a person who has been issued with a
certificate under a law of a State that specifies that the person is of the sex
stated in the certificate.
(2) It is unlawful for a person who is responsible for issuing an official
document, such as a passport or a driver’s licence, to refuse to recognise
in the document the sex of a person to whom this section applies as specified in
the certificate.
(1) In this section:
public act includes:
(a) any form of communication to the public, including speaking, writing,
printing, displaying notices, broadcasting, telecasting, screening and playing
tapes or other recorded material; and
(b) other conduct observable by the public, including actions and gestures
and the wearing or display of clothing, signs, flags, emblems and
insignia.
(2) It is unlawful for a person, by a public act, to incite hatred
towards, serious contempt for, or severe ridicule of, a person or group of
persons on the ground of the sexuality, transgender identity or intersex status
of the person or members of the group.
(3) This section does not make unlawful:
(a) a fair report of a public act referred to in subsection (2);
or
(b) a public act, done reasonably and in good faith, for academic,
artistic, religious instruction, scientific or research purposes or for other
purposes in the public interest, including discussion or debate about, and
expositions of, an act or matter.
(4) A review of this section is to be completed, either by the Human
Rights and Equal Opportunity Commission or by an appropriately qualified
organisation or review panel, within 2 years from the commencement of the Act,
with a view to determining if the provisions regarding incitement to hatred
should be retained, modified or repealed.
This Part does not make it unlawful to do an act that is reasonably
intended to:
(a) ensure that persons of a particular sexuality, transgender identity or
intersex status have equal opportunities with other persons in circumstances in
relation to which provision is made by this Act; or
(b) afford persons of a particular sexuality, transgender identity or
intersex status, equal opportunities in relation to:
(i) employment, education, accommodation, clubs or sport; or
(ii) the provision of goods, services or facilities; or
(iii) the administration of Commonwealth laws and programs; or
(c) afford persons of a particular sexuality, transgender identity or
intersex status, grants, benefits or programs, whether direct or indirect, to
meet their special needs in relation to:
(i) employment, education, accommodation, clubs or sport; or
(ii) the provision of goods, services, facilities or land; or
(iii) the making available of facilities; or
(iv) the administration of Commonwealth laws and programs.
Subject to section 18, Divisions 1 and 2 of this Part do not
affect an 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,
including:
(a) the ordination, appointment or employment of priests, ministers of
religion or members of a religious order; or
(b) the training or education of persons seeking ordination, appointment
or employment as priests, ministers of religion or members of a religious order;
or
(c) the selection, appointment or employment of persons to perform duties
or functions for the purpose of or in connection with, or otherwise to
participate in, a religious observance or practice.
(1) Divisions 1 and 2 of this Part do not affect anything done by a
person in direct compliance with:
(a) a determination or decision of the Commission; or
(b) an order of a court.
(2) Divisions 1 and 2 of this Part do not affect anything done by a
person in direct compliance with a law of the Commonwealth.
(1) This Part does not make it unlawful for a person to discriminate
against another person on the ground of sexuality, transgender identity or
intersex status by refusing to offer the other person:
(a) an annuity; or
(b) a life insurance policy; or
(c) a policy of insurance against accident or any other policy of
insurance; or
(d) membership of a superannuation or provident fund; or
(e) membership of a superannuation or provident scheme;
if the discrimination:
(f) is based on relevant actuarial and statistical data; and
(g) is reasonable, having regard to other available relevant
material.
(2) If a person refuses to offer another person a service listed in
paragraph (1)(a), (b), (c), (d) or (e), the other person may appeal to the
Human Rights and Equal Opportunity Commission for an assessment of the basis of
the decision, and must be provided with the information on which the decision
was based.
(3) This Part does not make it unlawful for a person to discriminate
against another person, on the ground of sexuality, transgender identity or
intersex status, in respect of the terms or conditions on which:
(a) an annuity; or
(b) a life insurance policy; or
(c) a policy of insurance against accident or any other policy of
insurance; or
(d) membership of a superannuation or provident fund; or
(e) membership of a superannuation or provident scheme;
is offered to, or may be obtained by, the other person if the
discrimination:
(f) is based on actuarial or statistical data on which it is reasonable
for the person to rely; and
(g) is reasonable having regard to the data and other relevant
factors.
(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; or
(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
an exemption from the operation of a provision of Division 1 or 2 of this
Part, 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 of this Part has been
granted under subsection (1), being an application made before the end of
the period for which that exemption was granted, grant a further exemption from
the operation of that provision.
(3) An exemption under subsection (1), or a further exemption under
subsection (2):
(a) may be granted subject to terms and conditions specified in the
instrument; and
(b) may be expressed to apply only in circumstances, or in relation to
activities, specified in the instrument; and
(c) must be granted for a specified period that does not exceed 5 years;
and
(d) must not be granted until the Commission has advertised the fact that
it proposes to grant the exemption or further exemption and has given interested
persons a reasonable opportunity of not less than 14 days after the publication
of the advertisement to make written submissions opposing the grant.
(4) The President of the Commission must arrange for an organisation with
appropriate legal qualifications and experience in the field of human rights
legislation to review and report on all exemptions, other than those subject to
specific review, within three years from the commencement of the Act.
(5) The President of the Commission must provide a copy of the report of
the review prepared under subsection (4) to the Minister.
(6) The Minister must cause a copy of the report received in accordance
with subsection (5) to be tabled in both Houses of the Parliament within 15
sitting days of receipt.
Applications may be made to the Administrative Appeals Tribunal for
review of decisions made by the Commission under section 20.
(1) The Commission must, not later than one month after it grants an
exemption in relation to a complaint of discrimination in accordance with this
Act, cause to be published in the Gazette a notice of the granting of the
exemption:
(a) setting out its findings on material questions of fact; and
(b) referring to the evidence on which the findings were based;
and
(c) giving the reasons for the granting of the exemption; and
(d) containing a statement to the effect that, subject to the
Administrative Appeals Tribunal Act 1975, application may be made to the
Administrative Appeals Tribunal for a review of the granting of the exemption to
which the notice relates by or for any person or people whose interests are
affected by the granting of the exemption.
(2) A failure to comply with the requirements of subsection (1) in
relation to the granting of an exemption does not affect the validity of the
exemption.
Divisions 1 and 2 of this Part do not make it unlawful for a person
who has been granted an exemption from a provision of Division 1 or 2 of
this Part, 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 exemption.
It is the intention of this Act to confer full jurisdiction on the Human
Rights and Equal Opportunity Commission to receive, investigate and in all ways
deal to the full extent of its powers with any complaint arising from rights
bestowed by this Act.
(1) The following additional functions are conferred on the
Commission:
(a) to inquire into alleged infringements of Part 2 of this Act, and
endeavour by conciliation to effect a settlement of the matters to which the
alleged infringements relate;
(b) to inquire into, and make determinations on, matters referred to it by
the Minister or of its own motion;
(c) to promote an understanding and acceptance of, and compliance with,
this Act;
(d) to undertake research and educational programs, and other programs,
for the Commonwealth for the purpose of promoting the object of this
Act;
(e) to examine enactments, and (when requested to do so by the Minister or
a House of the Parliament) proposed enactments, for the purpose of establishing
whether the enactments or proposed enactments are, or would be, inconsistent
with or contrary to the object of this Act, and to report to the Minister or
that House the results of any such examination;
(f) on its own initiative or when requested by the Minister, or when
requested by a House of the Parliament, to report to the Minister, or that
House, as the case may be, 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 sexuality, transgender identity or intersex
status;
(g) to prepare, and to publish in such manner as the Commission considers
appropriate, guidelines for the avoidance of discrimination on the ground of
sexuality, transgender identity or intersex status;
(h) if 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 sexuality, transgender identity or intersex status;
(i) 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
Human Rights and Equal Opportunity Commission Act 1986.
(2) In this section:
enactment has the same meaning as in the Human Rights and
Equal Opportunity Commission Act 1986.
proposed enactment has the same meaning as in the Human
Rights and Equal Opportunity Commission Act 1986.
(1) The Sex Discrimination Commissioner is to assume responsibility for
issues of sexuality and gender identity discrimination.
(2) Within two years of the commencement of this Act, the President of the
Commission is to report on the management of sexuality and gender identity
complaints, including the appropriateness of the Sex Discrimination Commissioner
continuing to have responsibility for sexuality and gender identity
discrimination issues, and if there is a demonstrated need for additional
resources.
(1) A complaint alleging that a person has done an act that is unlawful
because of a provision of Part 2 of this Act may be lodged with the Human
Rights and Equal Opportunity Commission in accordance with Part IIB of the
Human Rights and Equal Opportunity Commission Act 1986.
(2) A complaint made under subsection (1) must be handled by the
Commission in accordance with Parts IIB and IIC of the Human Rights and Equal
Opportunity Commission Act 1986.
Except as expressly provided by this Part or the Human Rights and
Equal Opportunity Commission Act 1986, this Act does not make it an offence
to do an act that is unlawful because of a provision of Part 2.
(1) A person must not publish or display, or cause or permit to be
published or displayed, an advertisement or notice that indicates, or could
reasonably be understood as indicating, an intention to do an act that is
unlawful because of a provision of Part 2.
Maximum penalty: 10 penalty units.
(2) In 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, radio, internet or e-mail, 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, is to be construed accordingly.
(1) A person must not commit an act of victimisation against another
person.
Maximum penalty: 25 penalty units.
(2) For the purposes of subsection (1), a person commits 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
(b) has brought, or proposes to bring, proceedings under this Act against
any person; or
(c) has provided or proposes to provide information, or has produced or
proposes to produce documents, to a person exercising or performing any power or
function under this Act; or
(d) has appeared, or proposes to appear, as a witness before the
Commission in a proceeding under this Act; or
(e) has reasonably asserted, or proposes to assert, any rights of the
person or the rights of any other person under this Act; or
(f) has made an allegation that a person has done an act that is unlawful
because of a provision of Part 2 of this Act;
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 (f), 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 in paragraph (2)(f) if it is proved
that the allegation was false and was not made in good faith.
(1) In this section:
public act has the same meaning as in
section 15.
(2) A person must not, by a public act, incite hatred towards, serious
contempt for, or severe ridicule of, a person or group of persons on the ground
of the sexuality, transgender identity or intersex status of the person or
members of the group by means that include:
(a) threatening physical harm to, or to property of, the person or members
of the group; or
(b) inciting others to threaten physical harm to, or to property of, the
person or members of the group.
Maximum penalty: 50 penalty units or imprisonment for 6 months, or
both.
A person must not insult, hinder, obstruct, molest or interfere with a
person exercising a power or performing a function under this Act.
Maximum penalty: 10 penalty units.
Nothing in this Act makes it lawful to do a thing that would be unlawful
apart from this Act.
(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 people all or any of the powers conferred on the
Commission under this Act, other than powers in connection with the performance
of the functions that, under section 26, are to be performed by the
Commissioner for the Commission.
(2) The Commissioner may, by writing signed by the Commissioner, delegate
to a member of the staff of the Commission approved by the Commission, all or
any of the powers exercisable by the Commissioner under this Act.
A person who causes, instructs, induces, aids or permits another person
to do an act that is unlawful under Division 1 or 2 of Part 2 is, for
the purposes of this Act, taken also to have done the act.
(1) Subject to subsection (2), if 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, an act that would, if it were done by the person, be
unlawful under Division 1 or 2 of Part 2 (whether or not the act done
by the employee or agent is unlawful under Division 1 or 2 of Part 2),
this Act applies 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 subsection (1) 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
subsection.
If, 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 for the body corporate in the matter so acted
on that ground.
For the purposes of this Act, all Commonwealth employees are taken to be
employed by the Commonwealth.
This Act is a prescribed Act for the purposes of section 121 of the
Workplace Relations Act 1996.
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
because of a provision of Part 2.
(1) The Commission, a member of the Commission, the Commissioner or a
person acting under the direction or authority of the Commission or of the
Commissioner or under a delegation under this Part 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 a function, or
in the exercise or purported exercise of any power or authority, conferred on
the Commission or the Commissioner.
(2) If:
(a) a complaint has been made to the Commission; or
(b) a submission has been made, a document or information has been
provided, 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 the complaint or submission was made, the document or information was
provided or the evidence was given.
(1) This section applies to a person who is, or has at any time
been:
(a) the Commissioner; or
(b) a member of the Commission or a member of the staff assisting the
Commission; or
(c) authorised to perform or exercise a function or power of the
Commission or the Commissioner or a function or power for the Commission or the
Commissioner, being a function or power conferred on the Commission or on the
Commissioner under this Act.
(2) A person to whom this section applies must not, either directly or
indirectly, except in the performance of a duty under or in connection with this
Act or in the performance or exercise of a function or power referred to in
paragraph (1)(c):
(a) make a record of, or divulge or communicate to any person, any
information relating to the affairs of another person acquired by the person
because of that person’s office or employment under or for the purposes of
this Act or because of the person being or having been so authorised;
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 provided for the purposes of this Act.
Maximum penalty: 50 penalty units, or imprisonment for 1 year, or
both.
(3) A person to whom this section applies must not be required:
(a) to divulge or communicate to a court information relating to the
affairs of another person acquired by the person because of the person’s
office or employment under or for the purposes of this Act or because of the
person being or having been so authorised; or
(b) to produce in a court a document relating to the affairs of another
person of which the person has custody, or to which that person has access,
because of the person’s office or employment under or for the purposes of
this Act or because of the person being or having been so authorised;
except where it is necessary to do so for the purposes of this
Act.
(4) 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 under that Act; or
(b) divulging or communicating information, or producing a document, to a
person in accordance with an arrangement in force under section 16 of the
Human Rights and Equal Opportunity 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.
(5) Subsection (3) does not prevent a person from being required, for
the purposes of 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.
(6) In this section:
court includes a tribunal, authority or person having power
to require the production of documents or the answering of questions.
produce includes permit access to.
If 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 is a duty to provide a document containing a clear reproduction
in writing of the information.
The Commissioner must give to the Commission such information relating to
the operations of the Commissioner under this Act as the Commission from time to
time requires.
The Human Rights and Equal Opportunity Commission Act 1986 is
amended as set out in the Schedule.
The Governor-General may make regulations 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.
1 Subsection 3(1) (at the end of the definition of
unlawful discrimination)
Add:
; or (g) Part 2 of the Sexuality and Gender Identity
Discrimination Act 2003.
2 Paragraph 11(1)(a)
After “1984”, insert “, the Sexuality and
Gender Discrimination Act 2003”.
3 Subsection 11(3)
After “1984”, insert “, the Sexuality and
Gender Identity Discrimination Act 2003”.
4 Subsection 14(8)
After “1984”, insert “, the Sexuality and
Gender Identity Discrimination Act 2003”.
5 Subsection 16(2A)
After “1984”, insert “, the Sexuality and
Gender Identity Discrimination Act 2003”.
4 Subsection 19(6)
After “1984”, insert “, the Sexuality and
Gender Identity Discrimination Act 2003”.