INTRODUCTION

4.1 As explained in Chapter 3 of this Paper, the Anti-Discrimination Act 1977 (NSW) (“the Act”) does not impose a general prohibition on discriminatory behaviour. The scope of the Act is limited to the grounds of discrimination defined in the Act in certain areas of operation and subject to special and general exceptions. The discussion in this chapter provides an overview of the scope of the Act and raises some pertinent issues for consideration.

DISCRIMINATION ON THE GROUND OF RACE

Definition

4.2 Part 2 of the Act makes it unlawful to discriminate either directly or indirectly on the ground of race. In the definitions section of the Act, “race” is defined broadly to include “colour, nationality and ethnic or national origin”.

If an employer refuses to hire an otherwise qualified person simply because she is black, this is direct discrimination on the ground of race.

If an employer requires a Sikh to wear a cap as part of a uniform and the wearing of the cap is not essential to the performance of the job, this could be indirect discrimination on the ground of race, since wearing a cap is a condition that cannot be met by Sikhs because it is a religious requirement that they must wear turbans.

Areas of operation

4.3 The areas in which discrimination on the ground of race are prohibited are set out below:

• Work - including applicants and employees, commission agents, contract workers, including partnerships of six or more persons, trade unions, qualifying bodies and employment agencies [s 8-13].
• Education [s 17].
• Access to places and vehicles [s 18].
• Provision of goods and services [s 19].
• Accommodation [s 20].
• Registered clubs [s 20A].
  
  

Exceptions

4.4 There are a large number of exceptions to the prohibition against racial discrimination. Some exceptions apply to specific areas of operation, while others apply to all areas in which discrimination on the ground of race is prohibited.

Exceptions to specific areas of operation

• Work - genuine occupational qualification: there are a number of exceptions to the prohibition against the selection of a particular race for employment, namely the choice of a particular race for authenticity in a dramatic performance or other entertainment, as an artist’s or photographic model or in a restaurant; or where providing a particular race with welfare services where those services can best be provided by a person of the same race [s 14].
  - employment intended to provide training in skills to be exercised outside NSW [s 15].

  - employment on a ship or aircraft if the employee was engaged for employment outside NSW [s 16].

• Education - the prohibition does not apply to a “prescribed educational authority”. This exception could enable prescribed authorities to conduct programs specially designed to benefit certain minority racial groups [s 17(3)].
• Accommodation - the prohibition does not apply if the provider of accommodation or a near relative resides in the premises or where the accommodation provided is for no more than six persons [s 20(3)].
• Registered Clubs - the prohibition does not apply if the principal object of the club is to provide benefits for persons of a specified race [s 20A(3),(4)].

Exceptions to all areas of operation

It is not unlawful to discriminate on the ground of race in any of the specified areas of operation with regard to:

• Special needs - by providing special facilities or services to meet “special needs” of persons of a particular race in relation to their education, training, welfare or other benefits [s 21]; or
• Sport - in selecting persons to represent a place in any sport or game or in applying eligibility criteria based on nationality, place of birth or length of residency in a particular area [s 22].
  
  

  Issues for consideration

  • Divergence between Anti-Discrimination Act 1977 (NSW) and Racial Discrimination Act 1975 (Cth)

Question 47

The Racial Discrimination Act 1975 (Cth) prohibits discrimination by reason of race, colour, national or ethnic origin and in some cases immigration. Some provisions also prohibit discrimination by reason of the race, colour, national or ethnic origin of a person’s relative or associate or by reason that the relative or associate is an immigrant. The Anti-Discrimination Act 1977 (NSW) does not have a comparable provision prohibiting discrimination on the ground of the race of a person’s relative or associate. It has been submitted that this can be a particular problem in the areas of goods and services and accommodation.

Should discrimination on the ground of race include reference to the race of a relative or associate of a person as is the case in the Racial Discrimination Act 1975 (Cth)?

Question 48

Should the provisions prohibiting discrimination on the ground of race mirror the provisions in the Racial Discrimination Act 1975 (Cth)?

• Definition of “race”
Question 49

(a) Is the definition of “race” in the Anti-Discrimination Act 1977 (NSW) adequate?

(b) If not, how should “race” be defined?

(c) Should it include ethno-religious groups, such as Islamic groups, Jews and Sikhs?

(d) Alternatively, should ethno-religious grounds (if included) be included as a basis for the offence of racial vilification only?

• Areas of operation

Question 50

(a) Are the areas of operation adequate?

(b) If not, what other areas should be covered?

• Exceptions

Question 51

Some submissions have suggested that the exceptions undermine the effectiveness of the Act in terms of prohibiting discrimination on the ground of race. Others have suggested that there should be further clarification of the exception relating to “special needs” to make it more effective.

(a) Do the exceptions undermine the effectiveness of the ground?

(b) If so, how?

(c) Should the exception relating to “special needs” be strengthened?

(d) If so, how?

(e) Are there other exceptions that should be included or clarified?

See also Chapters 3 and 5 of this Paper for discussion of other general issues of concern common to all grounds.

RACIAL VILIFICATION

4.5 Racial vilification is dealt with in Division 3A of the Act and has been unlawful since 1 October 1989. Racial vilification means any public act that could encourage racial hatred, serious racial contempt or severe racial ridicule. Racial vilification, being vilification on the ground of race, is based on the Act’s definition of “race”. Unlike other grounds of discrimination, racial vilification is not limited to specific areas of public life. The definition of a “public act” under the Act includes any form of communication to the public, any conduct observable by the public and the distribution of any matter that promotes racial hatred to the public. Thus, a racially offensive remark made in public about a person’s appearance or ethnic origin may be treated as racial vilification. According to the Anti-Discrimination Board’s Annual Report for 1991/92, the majority (61%) of racial vilification complaints during that period were about media reports, divided between print and electronic media.

4.6 The Act creates the criminal offence of “serious racial vilification” which is referred to the Attorney General and may result in criminal prosecution, and the lesser civil offence of “racial vilification”. The Act also provides exceptions to conduct that would otherwise be treated as racial vilification. These include “a fair report of a public act” and acts done “for academic, artistic, scientific or research purposes or for other purposes in the public interest”.

4.7 The New South Wales Government began a Review into the Racial Vilification Amendment in 1992, fulfilling the Government’s undertaking to do so after the amendments had been in place for at least one year. The Report of this review will be considered by the Commission when it becomes available. The Federal Government has also introduced a proposal to make racial vilification unlawful and to create a criminal offence of inciting racial hatred. This proposal is contained in the Racial Vilification Amendment Bill 1992 (Cth) which was introduced in Parliament on 16 December 1992. If passed, it will amend the Racial Discrimination Act 1975 (Cth) making racial vilification unlawful. It will also amend the Crimes Act 1914 (Cth) to create an offence of racial incitement.

DISCRIMINATION ON THE GROUND OF SEX

Definition

4.8 Part 3 of the Act makes it unlawful to discriminate either directly or indirectly on the ground of sex. There is no definition of “sex”, although the Part provides that:

• “man” means a member of the male sex irrespective of his age;
• “woman” means a member of the female sex irrespective of her age.

These definitions make it clear that children are intended to be included under this ground.

4.9 Of importance also is that pregnancy is specifically included as a characteristic that appertains to women (s 24(1A)). Consequently discrimination because of pregnancy will be treated as discrimination on the ground of sex. The Anti-Discrimination Board’s Annual Report for 1991/92 reported a significant increase in the number of women lodging complaints about pregnancy discrimination in relation to employment. In 1991, the Anti-Discrimination Board resolved to conduct a public inquiry into the extent of discrimination against pregnant women and women of child-bearing age in the workforce. This inquiry, the NSW Inquiry into Pregnancy Discrimination and Maternity Leave, is a collaborative effort between the Board, the Women’s Co-ordination Unit and the Department of Industrial Relations and Employment. The Report of this Inquiry will be considered by the Commission when it becomes available.

4.10 Sexual harassment is not specifically included or defined in the Act. However, it was recognised as an important form of sex-based discrimination in the case of O’Callaghan v Loder (1984) EOC 92-022. In attempting to define sexual harassment Judge Mathews said that “a person is sexually harassed if he or she is subjected to unsolicited and unwelcome sexual conduct by a person who stands in a position of power in relation to him or her”. Since the Loder decision sexual harassment is considered to come within the scope of discrimination on the ground of sex. In Hill v Water Resources Commission (1985) EOC 92-127, the Equal Opportunity Tribunal decided that it was sufficient if the harassment produced a hostile working environment which adversely affected the conditions of employment. There was no need for the harasser to be in a supervisory capacity.

4.11 The Sex Discrimination Act 1984 (Cth) is aimed at eliminating discrimination on the grounds of sex, marital status and pregnancy in the federal sphere. Several aspects of the operation of that Act have been recently reviewed by the House of Representatives Standing Committee on Legal and Constitutional Affairs, chaired by Mr Michael Lavarch MP (“the Lavarch Committee”) in its Report “Half Way to Equal” and by the Sex Discrimination Commissioner in the Report “A Review of Exemptions”. Both Reports made substantial recommendations for amending the Sex Discrimination Act, many of which are contained in the Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) and the Human Rights and Equal Opportunity Legislation Amendment Act 1992 (Cth), both assented to on 16 December 1992. The most notable amendments are listed in Chapter 3 of this Paper under the heading “Legislative Developments in Australia”.

Areas of operation

4.12 The areas in which discrimination on the ground of sex are prohibited are similar to those provided for race and are set out below:

• Work - including applicants and employees, commission agents, contract workers, including partnerships of six or more persons, trade unions, qualifying bodies and employment agencies [s 25-30].
• Education [s 31A].
• Access to places where liquor is sold [s 32].
• Provision of goods and services [s 33].
• Accommodation [s 34].
• Registered clubs [s 34A].

Exceptions

4.13 There are a large number of exceptions to the prohibition against sex discrimination. Some exceptions apply to specific areas of operation, while others apply to all areas in which discrimination on the ground of sex is prohibited.

Exceptions to specific areas of operation

• Work - pregnancy at time of application or interview, unless the woman did not know or could not have known of the pregnancy [s 25(2A)].
  
  - employment in a private household, in a business employing less than six people or in a private educational authority [s 25(3)].

  - genuine occupational qualification: there are a number of exceptions to the prohibition against the selection of a particular sex for employment, where the person’s sex is defined as a “genuine occupational qualification” for the job. The Act sets out some of the circumstances in which being of a particular sex is a genuine occupational qualification, including such factors as: available accommodation in a residential job, providing a particular sex with personal educational or welfare services where the persons who receive the services might object to the services being performed by the opposite sex, and where the job requires a particular sex for reason of “physiognomy or physique, excluding physical strength or stamina”, or authenticity in dramatic or other performances. The section also states that a person’s sex may be a “genuine occupational qualification” where the job is one of two to be held by a married couple. It is also possible for the Governor to make regulations setting out situations where being of a particular sex is a genuine occupational qualification for a particular job of a particular class or description [s 31].

• Education - the prohibition does not apply to a “private educational authority” or to the refusal of entry to a male where the institution is solely for females or vice versa [s 31A(3)].
• Provision of goods and services - “where a skill is commonly exercised in a different way in relation to men and women, a person does not ... [discriminate] by exercising the skill in relation to men only, or women only, in accordance with his normal practice” [s 33(2)].
• Accommodation - the Act does not apply to provision of accommodation in premises occupied by the person offering the accommodation or by a near relative of that person or where the accommodation is for no more than six persons [s 34(3)].
• Registered clubs - the prohibition does not apply if membership of the club is available to persons of the opposite sex only [s 34A(3)].
  
  - with regard to the use or enjoyment of the club, it is not unlawful to discriminate in the terms of admission to membership, deny or limit access to benefits provided, deprive membership, vary terms of membership or subject the person to any other detriment, if it is not practicable for the benefit to be enjoyed by both sexes at the same time if they are allowed the benefit of the same or equivalent usage separately [s 34A(4)].

Exceptions to all areas of operation

It is not unlawful to discriminate on the ground of sex in any of the specified areas of operation with regard to:

• Pregnancy or childbirth - by granting a woman rights or privileges in connection with pregnancy or childbirth [s 35];
• Superannuation - in the terms and conditions that apply to a superannuation or provident fund [s 36];
• Insurance - regarding the terms on which an annuity or other insurance policy is offered or obtained as long as the discrimination is based on actuarial or other statistical data and is reasonable [s 37]; or
• Sport - by excluding people from participation in any sporting activity as long as they are not excluded from coaching or administrative positions [s 38].

Issues for consideration
• Sexual harassment

Question 52

It has been suggested that even persistent advances made to members of the opposite sex in the employment area should not be regarded as sex discrimination unless:

- the employer makes it clear that a continuation of employment or current status or access to promotion or other benefit is dependent upon the employee’s response; or

- the sexual advances are so severe and pervasive that they create a hostile work environment.

The Sex Discrimination Act 1984 (Cth) as recently amended, modelled on the parallel provisions in South Australia, the ACT and Queensland has re-defined its definition of “sexual harassment” so that it is no longer linked to proof of detriment or disadvantage in employment.

(a) Should the existing test in New South Wales be brought in line with the test now used in the federal sphere and other jurisdictions as stated above?

(b) Should sexual harassment be a separate ground of discrimination or should it be specifically included within the scope of sex discrimination?

(c) In either case, how should it be defined?

Question 53

If expressly included within the scope of the Act, in what areas should the prohibition against sexual harassment operate?

• Pregnancy discrimination



Question 54

There has been some uncertainty as to whether pregnancy discrimination would always be sex discrimination. Commenting on the case of Webb v EMO Air Cargo (UK) Ltd [1992] IRLR 116, in the Law Society’s Gazette No 18 (13 May 1992) at 19, Professor B W Napier said:

[t]here should be no doubt that pregnancy and gender can be distinguished. While only women can become pregnant, not all women are pregnant. Consider a case where two females apply for a post, one of whom is pregnant. If the employer chooses to offer the job to the woman who is not pregnant and for that reason, it offends common sense to say the unsuccessful candidate suffered on the ground of sex. Sex is the quality which distinguishes men from women, not men from pregnant women or pregnant women from non pregnant. The fact that only women become pregnant does not mean that pregnancy can be identified with gender.

Does discrimination because of pregnancy amount to discrimination on the ground of sex or should pregnancy be a separate ground of discrimination?

Question 55

The Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia called “Half Way to Equal” (the Lavarch Report) recommended that potential pregnancy should be included as a ground of discrimination in the Sex Discrimination Act 1984 (Cth) because:

[w]omen who are discriminated against because they express an intention to become pregnant, or because of the likelihood that they may become pregnant, should be able to lodge a complaint under the SDA [Sex Discrimination Act 1984 (Cth)]. The likelihood of pregnancy may already fall within the definition of sex discrimination under the Act - as an imputed characteristic of women; however, the Committee believes that it would be desirable for it to be specifically stated.

This recommendation is currently being considered by the Commonwealth Attorney General’s Department.

Should potential pregnancy be included within the scope of the Anti-Discrimination Act 1977 (NSW)?

Question 56

Sections 25(1A) and 25(2A) of the Anti-Discrimination Act provide exceptions to pregnancy discrimination in the area of work, if at the time of applying for the job or being interviewed, the woman was pregnant, unless the woman could not have reasonably been expected to know of her pregnancy at that time. The Sex Discrimination Act 1984 (Cth) makes no such exceptions for any form of discrimination in employment on grounds of pregnancy.

Should the Anti-Discrimination Act adopt the federal approach?

• Other forms of sex discrimination

Question 57

A study done in the United States by Dworkin and MacKinnon has argued that pornography is a form of sex discrimination because it promotes the subordination of women.

(a) Should the Act be expanded to include this concept?

(b) Are there other forms of sex discrimination that warrant specific inclusion in the Act?

Discrimination on the ground of family responsibilities is also considered a significant source of direct and indirect discrimination against women.

For discussion relating to the inclusion of “family responsibilities” as a possible ground of discrimination, see Chapter 5 of this Paper.

For a general discussion of the issues relating to indirect sex discrimination, see Chapter 3 of this Paper.

• Other areas of sex discrimination - the private sphere



Question 58

It appears that many areas in which women are disadvantaged are not covered by the provisions of the Act because they occur within the private sphere of activity. The problems associated with the division between public and private life affect other grounds as well and are dealt with in Chapter 5 of this Paper.

Should the scope of the Act be extended to cover discrimination against women in the private/domestic sphere?

• Exceptions

Question 59

(a) Are the exceptions to discrimination on the ground of sex appropriate?

(b) Do any of them tend to prevent the promotion and recognition of equality of men and women in society?

(c) If so, which exceptions do so and why?

For issues relating to the impact of protective legislation on women, see the discussion on “Industrial Relations and Discrimination Legislation” in Chapter 2 of this Paper and the discussion on “General Exceptions” (acts done under statutory authority) later in this Chapter.

See also Chapters 3 and 5 of this Paper for discussion of other general issues of concern common to all grounds.

DISCRIMINATION ON THE GROUND OF MARITAL STATUS

Definition

4.14 Discrimination on the ground of marital status is prohibited in Part 4 of the Act. “Marital status” is defined in the definitions section as:

... the status or condition of being -

(a) single;

(b) married;

(c) married but living separately and apart from one’s spouse;

(d) divorced;

(e) widowed; or

(f) in cohabitation, otherwise than in marriage, with a person of the opposite sex.

The definition does not include homosexual relationships.

4.15 There are two cases of particular relevance to the interpretation of the term “marital status”. They are:

• Boehringer Ingleheim Pty Ltd v Reddrop (1984) EOC 92-108 where it was decided that the term “marital status” is not broad enough to cover the identity of a person’s spouse; and
• Waterhouse v Bell (1991) EOC 92-376 which was significant because it added “corruptibility at the hands of one’s husband as a characteristic imputed to all married women” to the list of characteristics upon which a complaint of discrimination can be based.

The two cases have been distinguished from each other on the basis that in Boehringer, the possibility that Mrs Reddrop may have disclosed confidences to her husband who worked in a rival firm was a characteristic that was peculiar to her and not generally imputed to married women; whereas in Waterhouse, corruptibility was generally imputed to all married women.

Areas of operation

4.16 The areas in which discrimination on the ground of marital status are prohibited are similar to those provided for other grounds and are set out below:

• Work - including applicants and employees, commission agents, contract workers, partnerships of six or more persons, trade unions, qualifying bodies and employment agencies [s 40-46]
• Education [s 46A].
• Provision of services [s 47].
• Accommodation [s 48].
• Registered clubs [s 48A].

Exceptions

4.17 As is the case with other grounds, the prohibition of discrimination on the ground of marital status is subject to exceptions, some of which apply to specific areas of operation and others which apply generally.

Exceptions to specific areas of operation

• Work - employment in a private household, in a business employing less than six people or in a private educational authority [s 40(3)].
  
  - if a job is one of two to be held by a married couple it is not unlawful to discriminate in relation to that job [s 46].
• Education - students in a private educational authority are not covered by the discrimination provisions [s 46A(3)].
• Accommodation - the Act does not apply to provision of accommodation in premises occupied by the person offering the accommodation or by a near relative of that person or where the accommodation is for no more than six persons [s 48(3)].

Exception to all areas of operation

It is not unlawful to discriminate on the ground of marital status in any of the specified areas of operation with regard to:

• Superannuation - in the terms or conditions that apply to a superannuation or provident fund or scheme [s 49].

Issues for consideration
• Scope of the definition of “marital status”

Question 60

It has been submitted that a gap exists between the marital status provisions and the homosexuality provisions in ensuring equality of treatment for homosexual couples. For instance, in Wilson v Qantas Airways Ltd (1985) EOC 92-141, two homosexual airline stewards who were cohabiting complained of discrimination on the ground of marital status because they were not permitted the privilege of being rostered together (whereas heterosexual couples employed by the airline were granted the privilege). The New South Wales Equal Opportunity Tribunal held that homosexuality was not a “marital” status; that the couple were more comparable to “golfing buddies” than to married heterosexual couples.

Should homosexual relationships be included within the scope of discrimination on the ground of marital status?

Question 61

It has been suggested that the effect of the case of Boehringer is inconsistent with that of Waterhouse, despite attempts to distinguish the cases.

(a) Should the legislation clarify the distinction made in the two cases?

(b) Should the definition of “marital status” be extended to include discrimination on the basis of the identity of one’s spouse (as has been recommended by the Report of the Inquiry into Equal Opportunity and Equal Status for Women in relation to the Sex Discrimination Act 1984 (Cth))?

Question 62

Discrimination on the ground of “family status” is considered in Chapter 5 of this Paper.

If discrimination on the ground of family status is to be included in the Act, should it be linked to the ground of marital status?

• Areas of operation

Question 63

Are the areas of operation adequate?

• Exceptions

Question 64

Are the exceptions appropriate?

See also Chapters 3 and 5 of this Paper for discussion of other general issues of concern common to all grounds.

DISCRIMINATION ON THE GROUNDS OF PHYSICAL AND INTELLECTUAL IMPAIRMENT

Definition

4.18 Discrimination, both direct and indirect, on the grounds of physical impairment and intellectual impairment are prohibited in Parts 4A and 4B of the Act. Although the Act deals with the two grounds in separate Parts, this chapter will deal with them together, but will identify issues that are peculiar to each ground. Section 4(1) of the Act contains the following relevant definitions:

“Intellectual impairment”, in relation to a person, means any defect or disturbance in the normal structure and functioning of the person’s brain, whether arising from a condition subsisting at birth or from illness or injury;

“Intellectually handicapped person” means a person who, as a result of disabilities arising from intellectual impairment, is substantially limited in one or more major life activities;

“Physical impairment”, in relation to a person, means any defect or disturbance in the normal structure and functioning of the person’s body, whether arising from a condition subsisting at birth or some illness or injury, but does not include intellectual impairment;

“Physically handicapped person”, means a person who, as a result of having a physical impairment to his body and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in his opportunities to enjoy a full and active life.

4.20 Indirect discrimination relates to setting a term, condition or requirement which has the intentional or unintentional effect of disadvantaging the disabled person, which is not reasonable. Thus, if an employer insists that all employees must be able to reach a certain height where that is not an inherent requirement of the job, the resulting discrimination against people in wheelchairs will be indirect discrimination on the ground of physical impairment.

See also the discussion of direct and indirect discrimination in Chapter 3 of this Paper.

Areas of operation

4.21 The areas in which discrimination on the ground of physical and intellectual impairment are prohibited are set out below:

• Work - including applicants and employees, commission agents, contract workers, partnerships of six or more persons, trade unions, qualifying bodies and employment agencies [s 49B-49I and s 49Q-49X].
• Education [s 49J and s 49Y].
• Provision of goods and services [s 49K and s 49Z].
• Accommodation [s 49L and s 49ZA].
• Registered clubs [s 49LA and s 49ZB].

Exceptions

4.22 Most of the exceptions apply to both physical and intellectual impairment, while a few apply to physical impairment only.

Exceptions to physical and intellectual impairment discrimination in specific areas of operation

• Work - employment in a private household, in a business employing less than six people or in a private educational authority does not come within the ambit of the prohibition against discrimination. So also, in offering employment, and in setting terms and conditions of employment, it is not unlawful for an employer to discriminate, if the person because of the physical or intellectual impairment is unable to carry out the particular work or would require special services or facilities (which cannot reasonably be provided) to carry out the work. This exception also applies to commission agents, contract workers and partners [s 49B(3),s 49I and s 49Q(3), s49X].
• Education - the prohibition does not apply to a private educational authority. It is also not unlawful for an educational authority which administers a school, college or university that caters solely for students who have a particular physical or intellectual impairment to refuse admission to an applicant who has a different impairment to that catered for by the school. Nor is it unlawful if an educational authority cannot reasonably provide services or facilities required by the intellectually or physically handicapped student, which are not required by students who are not physically or intellectually handicapped [s 49J(3) and s 49Y(3)].
• Provision of goods and services - it is not unlawful for a provider of goods or services to refuse provision, if it appears reasonable to the provider to assume that the physically or intellectually impaired person would not be able to use the goods and services because of the particular impairment. Alternatively, it is not discriminatory if, despite assistance to use the goods or services, the person is still unable to do so because of the impairment [s 49K(2) and s 49Z(2)].
• Accommodation - the Act does not apply to provision of accommodation in premises occupied by the person offering the accommodation or by a near relative of that person or where the accommodation is for no more than six persons [s 49L(3) and s 49ZA(3)].
  
  It is also not unlawful to refuse accommodation if it appears on reasonable grounds that the physically or intellectually handicapped persons would only be able to use the accommodation with substantial risk of injury to themselves [s 49L(4)(b) and s 49ZA(4)].
• Registered clubs - it is not unlawful to refuse an application for membership or discriminate against a physically or intellectually handicapped person, if that person requires services and facilities (in order to use benefits and facilities without inconveniencing others) not required by other (non-handicapped) persons, which cannot reasonably be provided or accommodated, depending on the circumstances of the case [s 49LA(5) and s 49ZB(3)].

Exceptions to physical impairment only in specific areas of operation

• Accommodation - it is not unlawful to discriminate against a physically handicapped person if it is considered reasonable for someone to assume that, because of the physical impairment the person would be unable to gain access to the accommodation or benefit associated with the accommodation [s 49L(4)(a)].
• Registered clubs - it is not unlawful to discriminate on the ground of physical impairment if the principal object of the club is to provide benefits only to physically handicapped persons with a particular physical impairment [s 49LA(3)].

Exceptions to physical and intellectual impairment discrimination in all areas of operation

Apart from the above exceptions that apply in particular areas of operation, there are other exceptions that apply generally to discrimination on the grounds of physical and intellectual impairment in all areas of operation with regard to:

• Superannuation - in the terms and conditions that apply to a superannuation fund [s 49M and s 49ZC].
• Insurance - regarding the terms on which an annuity, life assurance, accident or other insurance policy is offered, if the discrimination is based on actuarial, statistical or other information on which it is reasonable to rely [s 49N and s 49ZD].
• Sport - by excluding a physically or intellectually handicapped person from participating in any sporting activity. This exception does not apply to coaching or administration of any sporting activity [s 49O and s 49ZE].

Issues for consideration
• Approaches to disability discrimination

Question 65

Many of the preliminary submissions received by the Commission emphasised the need to recognise that discrimination on the ground of disability raises different questions compared with discrimination on the ground of race or sex. The direct discrimination provisions have been criticised because they require a comparison to be made between the physically or intellectually impaired person and other people “in the same circumstances or in circumstances which are not materially different”. As explained in Chapter 3 of this Paper, such a comparison is particularly difficult in this area of discrimination since a direct comparison between the two cannot be made. People with disabilities often require very different services and may adopt different methods of doing things that cannot be compared with the needs or methods of non-disabled people. Indeed it has been suggested that the requirement of comparability is unrealistic for people with disabilities and may be a barrier to the successful use of the Act.

(a) Should a different approach to the comparability test be adopted?

(b) Would a more appropriate approach be to require an employer to adopt an individualised assessment of the job needs and the person’s functional capacities in relation to a particular job, including an identification of any restrictions or special requirements and making “reasonable accommodation” in response to the person’s special needs?

Question 66

The concept of “reasonable accommodation” has been incorporated in the United States Americans with Disabilities Act 1990 PL 101-336 (Fed). In an attempt to create a balance between the needs of people with disabilities and the interests of others, such as employers and service providers, the United States legislation has tempered the “reasonable accommodation” requirement with an “undue hardship” defence: employers and service providers would discriminate unlawfully if they did not “reasonably accommodate” the impaired person’s requirement, unless to do so would cause “undue hardship”.

(a) Should similar provisions be introduced to impairment discrimination in New South Wales?

(b) If so, should such a “reasonable accommodation” requirement be applicable in all areas of operation or limited to employment only?

(c) Should examples be provided in legislation or elsewhere as a guideline to clarify the meaning of “reasonable accommodation” and “undue hardship”?

Question 67

It is a defence if, in the [subjective] opinion of the employer, based on reasonable grounds, the person would be unable to carry out the work, or if in order to carry out the work the person would require services or facilities which in the [subjective] opinion of the employer, it is not reasonable to provide. There is no distinction made between essential and non-essential parts of the work.

Should there be such a distinction whereby the employer will be obliged to adjust the job description to accommodate the worker’s inability to perform non-essential tasks, if it is reasonable to do so?

Question 68

The reasonableness test found in Parts 4A and 4B is subjective, whereas arguably if it is to be effective it should be objective. In particular, should there be some clarification of the wording in s 49I to ensure that a “reasonable” decision is one based on facts and reality, not fears and prejudices which “appeared to the employer, ... having regard to the circumstances of the case, it was reasonable to rely” on? [emphasis added] It appears from Supreme Court and Court of Appeal decisions, that, as presently drafted, it is what “appeared to the employer” that is important, however misguided the employer’s opinion might be.

Since the term “reasonable” is used so frequently, should it be defined and if so, how?

Question 69

It has been suggested that disability discrimination issues will be more appropriately dealt with in the Disability Services and Guardianship Act 1987 (NSW). This suggestion is based on the German system where the discrimination provisions are built into the German Disability Act instead of in separate discrimination legislation.

Is this a viable option for New South Wales?

• Types of discrimination covered

Question 70

The types of discrimination presently covered are direct and indirect discrimination. The Act does not cover discrimination because of imputed impairment (in the same way as it covers imputed homosexuality). By imputed impairment is meant an impairment which is suspected or presumed, but not actually suffered by the person discriminated against.

Should Parts 4A and 4B also prohibit discrimination because of past, future and imputed impairment and discrimination against a relative or associate of a person with a disability as is the position in some jurisdictions, including the Disability Discrimination Act 1992 (Cth)?

Question 71

It has been suggested that the inclusion of “characteristics generally appertaining to” and “characteristics generally imputed to” in the definitions of physical and intellectual impairment is inappropriate.

Would it be preferable to delete the references to “characteristics generally appertaining” and amend the provisions relating to “characteristics generally imputed” to clarify that they refer only to cases in which the characteristic is not actually possessed?

Question 72

The Act deems that being accompanied by a guide dog is a characteristic that appertains generally to people with a visual impairment. The Discrimination Act 1991 (ACT) has included discrimination against persons with “hearing dogs” for the assistance of a deaf person and “some other aid associated with the impairment” as discrimination on the ground of impairment.

(a) Should the deeming provision in New South Wales be extended to include people who use a guide dog because of a hearing or mobility impairment?

(b) What should be the position with regard to service dogs, ie dogs that do picking up, carrying things etc for disabled people?

(c) Should it also extend to discrimination because a person has a palliative or therapeutic aid, such as wheelchairs, canes etc or because a person is accompanied by another person, who is required to help the person with a disability?

(d) Alternatively, instead of declaring being “accompanied by a guide dog” as a characteristic appertaining to visually impaired people, would it be preferable to expressly define the circumstances in which it would be permissible to exclude guide dogs, and provide for a general prohibition on exclusion of guide dogs and other aids or their owners, in other circumstances.

Question 73

(a) Should there be protection against harassment and/or vilification on the grounds of physical and intellectual impairment?

(b) If so, should it be included in a definition of discrimination or should there be a separate definition of unlawful discrimination to cover harassment/vilification?

Question 74

It has been submitted that discrimination sometimes occurs because of information contained in a medical record - for instance, when a medical record shows that a person had once sought an HIV anti-body test.

Should discrimination on the ground of medical record be included within the Act?

• Indirect discrimination

Question 75

Indirect discrimination has been identified as the commonest form of discrimination on the grounds of physical and intellectual impairment. It raises certain problems in relation to impairment since discrimination on these grounds is treated within the same conceptual framework as discrimination on other grounds. John Basten in a paper presented at a seminar entitled “Indirect discrimination and the Sex Discrimination Act” used the example of discrimination in employment to illustrate the conceptual problems:


... taking the common example of discrimination in employment, where the effect of a disability is to impose demands or restrictions on an employer, it cannot be said that the disability is an inherently irrelevant factor as might be said of race or sex. In that context, it is confusing to talk of treating a disabled person less favourably than in the same circumstances the employer treats or would treat a person who is not physically disabled.



According to John Basten:

The only satisfactory solution to the conceptual problems raised by physical impairment is one which distinguishes between-

(a) disabilities which are truly irrelevant to the circumstances of the case (in which case the beliefs of the discriminator, whether based on reasonable grounds or not, should be irrelevant);

(b) the case where the disability does affect, for example, the work required to be done (where reasonable accommodation may be required); and

(c) the case where the disability significantly affects work performance and the disadvantage cannot reasonably be accommodated.

Does the scheme referred to above provide a satisfactory solution ?

• Definitions of physical and intellectual impairment

Question 76

The definitions of “intellectual impairment” and “intellectually handicapped person” have been criticised by the Equal Opportunity Tribunal, the Anti-Discrimination Board and the Supreme Court. It has been stated that the definitions have been inaccurately adopted from the World Health Organisation’s International Classification of Impairments, Disabilities and Handicaps.

Some of the problems with the definitions that have been identified are:

(i) A person with an intellectual disability needs to be more disabled than a person complaining on the ground of physical impairment. Unlike physically handicapped persons who only need to show limitation in their “opportunities to enjoy life”, an intellectually handicapped person is defined as being “substantially limited in one or more major life activities”. It has been submitted that this causes particular problems for people with multiple disabilities. First, a disabled person may not know which of the disabilities has caused the discrimination and yet to complain it would be necessary to know whether it was because of the physical or intellectual handicap. Secondly, requiring a substantial limitation in a major life activity could mean that people whose impairments are controlled may not be seen to be substantially limited in a major life activity even if they were discriminated because of the impairment. For instance, a person with epilepsy who has not had a seizure for a while, may be discriminated against because of the epilepsy but may not be able to complain because there is no substantial limitation in a major life activity.

(ii) The definitions of “intellectually handicapped person” and “physically handicapped person” require that the person must first be impaired in terms of the definition of “intellectual impairment” or “physical impair-ment” respectively. It has been submitted that the fact that a person is required to demonstrate the existence of an impairment before a complaint can be made is a short-coming in the provisions as it entails an unnecessary two stage test of “impairment” and “handicap”.

(iii) The definition of intellectual impairment makes reference to “structure and functioning of a person’s brain”. This means that, in order to claim the protection of the Act, a person must be able to identify the cause of the disability. However, it has been submitted that in most cases of intellectual disability, although the disability is recognisable, there is no known cause that can be identified.

(iv) A further difficulty with the way intellectual impairment is defined is that conditions which originate from the brain, such as epilepsy and cerebral palsy, are characterised as intellectual impairments rather than physical impairments. It has been submitted that such people have no wish to call themselves “intellectually handicapped” and that such a label is inappropriate and offensive to a person whose disability manifests itself as a dysfunction of the body.

(v) The reference to “structure and functioning” may exclude some types of impairment. For instance, epilepsy affects the functioning but not the structure of the brain and would therefore technically neither come within the definition of physical nor intellectual impairment. (It was however held in Kitt v Tourism Commission (1987) EOC 92-196, that the phrase “normal structure and functioning” denotes a single idea expressed in two words joined by a conjunction. Consequently, any defect in either structure or functioning could constitute a defect in structure and functioning.)

(a) Should physical and intellectual impairment be defined separately?

(b) Alternatively should there be a general “impairment” definition?

(c) If a general impairment definition is favoured, what sorts of impairment should be included in the general definition?

(d) Is the model adopted in the Disability Discrimination Act 1992 (Cth) (which is a single, wide ranging definition of disability) suitable for New South Wales?

Question 77

(a) Is the two stage test of “impairment” and “handicap” necessary?

(b) Would it be preferable to concentrate on whether or not the person has been discriminated against, rather than the type of impairment for the purpose of making a complaint.

Question 78

(a) Is the division between brain and body appropriate?

(b) Should the reference to “structure and functioning” be substituted with a reference to “structure or functioning”?

Question 79

The exclusion of mental illness from the protection of discrimination is a cause of concern among people with a mental illness and their representatives.

(a) Should mental illness be included?

(b) If so, should it be included as part of the general definition of impairment or should it be a separate ground?

(c) Alternatively, should the coverage of mental illness be limited to those who have had a mental illness in the past or are imputed as having a mental illness?

(d) How should mental illness be defined?

Question 80

Although the Anti-Discrimination Board does accept complaints of discrimination because of being HIV positive under the ground of physical impairment, there is considerable doubt as to whether the status of being asymptomatic HIV positive is covered by the definition of physical impairment. There are arguments that a person with asymptomatic HIV infection is neither physically handicapped nor physically impaired.

(a) Should the definition of impairment include provision for the presence of organisms that may cause disease, to clarify the position with regard to HIV?

(b) Alternatively, should discrimination on the ground of being HIV positive be a separate ground?

Question 81

It has been suggested that if the definition of impairment is clarified to include HIV, it should be accompanied by a specific exception for measures reasonably necessary to protect the health and safety of others. This may occur, for example, where discriminatory action is necessary to prevent or minimise the transmission of HIV or other communicable diseases. It has been suggested that this approach will uphold reasonable measures, while actions based on irrational fear or prejudice will be found unlawful. The uncertainty that may arise out of the use of the word “reasonable” may be diminished by reliance on medical knowledge.

(a) Should there be an exception for actions taken in reasonable reliance on medical opinion? (This would be similar to the defence applicable to discrimination in insurance where actions based on actuarial data on which it is reasonable to rely are excepted)

(b) Who should bear the onus of proof?

(c) Should it be up to the complainant to establish that there was no risk of transmission or should the person making the claim show that there was a scientific risk and that there was no alternative non-discriminatory action that could have been taken in the circumstances?

For further discussion, see the Report of the Inquiry into HIV and AIDS Related Discrimination called “Discrimination - The Other Epidemic”. Many of the recommendations made in that Report are currently being considered by the Attorney General. Other reports relevant to HIV/AIDS related law reform are listed in the “Background Reading” section at the end of this chapter.

• Terminology

Question 82

Helen Wilson in an article entitled “A struggle to be waged” has stated that:


[t]he terminology used in the Act - ‘handicap’ and ‘impairment’ - has the effect of placing the disability first and the person second. ... The legislation is remedial and aims at reducing ill founded and prejudicial beliefs held by some members of the community about the way certain disabilities affect a person’s ability to participate in public life. It does not therefore seem appropriate to require people to use language which is suggestive of incapacity to establish their capacity to function in a positive way.

(a) Does the terminology presently used label complainants in a negative fashion?

(b) If so, how can this be improved?

See also the section on “The language of the Act” in Chapter 5 of this Paper.

• Access

Question 83

Access to buildings and the lack of sufficient disabled parking facilities have been identified as major problems for people with disabilities. The problems of access include: inaccessibility due to steps, slippery surfaces that make it difficult for people in wheel chairs and the lack of convenient toilet facilities.

(a) Can these problems be resolved legislatively or otherwise?

(b) Should there be opportunity for people with disabilities to complain about problems of access in relation to proposed buildings, transport and other similar projects at the planning stage, before it becomes prohibitively expensive to provide reasonable access?

(c) If so, should this be a requirement imposed through the mechanism of the Anti-Discrimination Act?

• Areas of operation

Question 84

It has been suggested that “work” for disabled people involves much more effort than it does for other non-disabled people. For instance, it is said to often require more perseverance, consistency and longer travelling time.

Does this comment warrant an amendment to the meaning of “work” for disabled people by making certain allowances in relation to their working conditions or by linking it to the concept of “reasonable accommodation”?

Question 85

Should the provisions relating to employment specifically cover voluntary workers and workers in sheltered workshops?

Question 86

(a) Are the areas of operation wide enough?

(b) Are there other areas that should be included?

• Exceptions

Question 87

(a) Are the exceptions too wide?

(b) If so, in what ways?

Question 88

As is the case with discrimination on the ground of race under the Anti-Discrimination Act , and race, sex and disability under the federal discrimination legislation, should there be a provision which exempts special measures designed to meet the special needs of people with disabilities in New South Wales?

• Complaints mechanisms

Question 89

It has been suggested that persons with physical and intellectual impairments have considerable difficulties making complaints under the Act. One suggestion was to establish an office of Ombudsman exclusively for the disabled.

Is this a viable option for New South Wales?

For discussion relating to the enforcement mechanisms of the Act, see Chapter 6 of this Paper.

See also Chapters 3 and 5 of this Paper for discussion of other general issues of concern common to all grounds.

DISCRIMINATION ON THE GROUND OF HOMOSEXUALITY

Definition

4.23 Part 4C of the Act makes it unlawful to discriminate directly or indirectly on the ground of homosexuality. Although homosexuality is not defined, the Act states that a reference to a person’s homosexuality includes a reference to the person being thought to be a homosexual person, whether or not that is a fact.

Areas of Operation

4.24 The areas in which discrimination on the ground of homosexuality are prohibited are similar to those provided for other grounds and are set out below:

• Work - including applicants and employees, commission agents, contract workers, partnerships of six or more persons, trade unions, qualifying bodies, and employment agencies [s 49ZH-49ZN].
• Education [s 49ZO].
• Provision of goods and services [s 49ZP].
• Accommodation [s 49ZQ].
• Registered clubs [s 49ZR].

Exceptions

4.25 As is the case with the other grounds, there are many exceptions to the prohibition. However, the exceptions only apply to specific areas of operation.

Exceptions to specific areas of operation

• Work - employment in a private household, in a business employing less than six people or in a private educational authority [s 49ZH(3)].
• Education - does not apply to a private educational authority [s 49ZO(3)].
• Accommodation - the Act does not apply to provision of accommodation in premises occupied by the person offering the accommodation or by a near relative of that person or where the accommodation is for no more than six persons [s 49ZQ(3)].

Issues for consideration
• Vilification

Question 90

(a) Should vilification based on perceived or actual homosexuality be made unlawful?

(b) If so, should this be a separate ground of discrimination?

• Requests for information

Question 91

Should there be a prohibition against asking personal, intrusive and discriminatory questions which are not reasonably related to non-discriminatory decision making?

• Personal association

Question 92

Article 2 of the UN Convention on the Rights of the Child provides that children shall not be discriminated against on the basis of their parents’, legal guardians’ or family’s status.

Should there be a prohibition against discrimination on the ground of personal association with a homosexual person, particularly in view of Australia’s ratification of the UN Convention on the Rights of the Child?

Question 93

It has been submitted that the privileges accorded to heterosexual couples are denied to cohabiting homosexual couples because of a refusal to treat the relationship as “marital status”. See Wilson v Qantas Airways Ltd (1985) EOC 92-141, referred to in Issues for consideration in relation to discrimination on the ground of marital status, at Question 60.

(a) Is there an unjustifiable gap between the marital status provisions and the homosexuality provisions in ensuring equality of treatment for homosexual couples?

(b) If so, how should this be resolved - by an amendment to the marital status provisions recognising homosexual relationships; an amendment to the sex discrimination provisions to prohibit discrimination on the ground of the sex of a relative or associate; or some other way?

Question 94

It has been suggested that there is a public perception that homosexuality refers to gay men only and not to lesbians.

(a) Is discrimination on the ground of lesbianism adequately covered by the ground of homosexuality?

(b) Should lesbianism be specifically included in the Act or should a new ground of sexual orientation be included?

For issues concerning AIDS and HIV, see the discussion of discrimination on the grounds of physical and intellectual impairment.

See also Chapters 3 and 5 of this Paper for discussion of other general issues of concern common to all grounds.

COMPULSORY RETIREMENT FROM PUBLIC EMPLOYMENT ON THE GROUND OF AGE

Definition

4.26 Part 4E of the Act makes it unlawful to:

• retire an employee from employment;
• require an employee to retire from employment;
• threaten to retire an employee from employment; or
• engage in conduct with a view to causing an employee to retire from employment on the ground of age.

There is no definition of retirement in the Act. Section 49ZU(3) states that although the “... meaning of retirement may vary according to the particular circumstances”, what does or does not constitute retirement may be specified in the regulations. There are, however, no such regulations presently in force.

Areas of operation

4.27 The prohibition had a staggered commencement ranging from 1 January 1991 to 1 January 1993. The prohibition will, after 1 January 1993 apply to:

• all public sector employees (other than the excepted categories);
• private sector employees (except those employed under Federal Awards that specifically provide for a retirement age); and
• employees of county councils and local councils.

4.28 The effect of the provision is that from 1 January 1993, all employees (other than those excepted) will benefit from the prohibition of compulsory retirement. A recent decision of the Equal Opportunity Tribunal found that the Newcastle and Sydney Universities are “public authorities” under the Anti-Discrimination Act, and that a public sector employee includes anyone employed by a public authority.

Exceptions

4.29 The provisions prohibiting compulsory retirement on the ground of age do not apply to:

• a judicial officer;
• a police officer;
• an officer who is not appointed for a term and who cannot be removed from office except following an address, declaration, resolution or other involvement of either or both Houses of Parliament.

4.30 Section 54 of the Act, which excepts from the operation of the Act acts done under statutory authority, has no effect in relation to the compulsory retirement provisions. Thus, it will be unlawful for an employer to retire a person in accordance with a compulsory retirement age prescribed in an Act, State award or other instrument having statutory authority. However, compulsory retirement ages in federal awards are not affected. Section 49ZU(3) of the Act defines an “award or agreement” to mean one within the meaning of the Industrial Relations Act 1991 (NSW).

Issues for consideration



Question 95

What problems, if any, do the compulsory retirement provisions cause to employers?

Question 96

Should the definition of “public authority” be clarified?

Question 97

Are the exceptions appropriate?

Question 98

Should the general exceptions to the Act, such as those relating to charities and religious bodies, apply to compulsory retirement?

See also Chapters 3 and 5 of this Paper for discussion of other general issues of concern common to all grounds.

OTHER UNLAWFUL ACTS

Introduction

4.31 Apart from prohibiting discrimination on certain grounds in certain areas of activity as described in the preceding section of this Paper, Part 5 of the Act also makes certain other acts generally unlawful without any reference to specific areas of activity. They are:

• victimisation;
• advertising to do an act that is unlawful under the Act;
• aiding unlawful acts; and
• liability of principals and employers.

Victimisation

4.32 Victimisation is not a criminal offence under the Anti-Discrimination Act. It is an unlawful act which can be investigated, conciliated and, if appropriate, referred to the Equal Opportunity Tribunal. Section 50 makes it unlawful for the discriminator to subject the victimised person “to any detriment” because the victimised person has:

(a) brought proceedings against the discriminator under the Act;

(b) given evidence or information in connection with proceedings brought under the Act;

(c) made an allegation against the discriminator; or

(d) done anything under or by reference to the Act in relation to the discriminator or any other person.

4.33 It is also unlawful to subject the victimised person to “any detriment” because the discriminator knows or suspects that the victimised person intends to do any of the above. The Act provides further that where a person is victimised as a result of making an allegation that is false and not made in good faith, there is no unlawful victimisation.

4.34 Under the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth) victimisation is treated as a criminal act, which is prosecuted in a court and attracts specified penalties. The recent amendments to those Acts contained in the Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) now additionally enable complaints of vilification to be considered through a process of conciliation. The effect of the new provisions is the creation of a parallel civil action for unlawful vilification bringing the Racial Discrimination Act and the Sex Discrimination Act into line with the Disability Discrimination Act 1992 (Cth) whereby victimisation is both a criminal offence and an unlawful act.

Issues for consideration
• Scope of “victimisation”

Question 99

Victimisation takes place only if the person victimised is subjected to any detriment. The courts have held that “subjected to” means that the person victimising intended to cause the detrimental consequences.

Should the meaning of “subjected to” be clarified in the legislation?

Question 100

Should it be necessary that the allegation must be false and lacking in good faith to avoid the operation of the victimisation provision?

• Type of offence

Question 101

Should victimisation be a criminal offence as well as an unlawful act?

Advertisements

4.35 Section 51 of the Act makes it unlawful to “publish or cause to be published an advertisement that indicates an intention to do an act that is unlawful under this Act”. Thus, an advertisement inviting job applicants of a particular sex or race may be in breach of the Act if it does not qualify under a specified exception. However, it is a defence if the defendant can prove that he or she believed, on reasonable grounds, that the advertisement was not unlawful under the Act.

4.36 Although the Act states that it is an offence to publish or display an advertisement which is discriminatory, news and other items presented in both the printed and electronic media do not come within the scope of the legislation.

Issues for consideration

• Scope of the Act

Question 102

(a) Should the scope of the Act be broadened to include discrimination in news items in the media?

(b) If so, how should it be framed?

(c) Could it be framed similarly to the definition of “public act” in the racial vilification provisions?

Question 103

Should advertisements based on sex and other stereotypes be unlawful under the Act, even if they are not discriminatory against a particular person?

• Exceptions

Question 104

Should there be a defence based on reasonable belief that the act is not discriminatory?

Question 105

Is it necessary to have exceptions to unlawful advertisements?

• Penalty

Question 106

(a) Should the penalty, currently $1000, be increased?

(b) Should a distinction be made between individuals and corporations for the purposes of the penalty?

(c) If so, what should the penalty be for individuals and corporations?

4.37 Section 52 makes it unlawful to cause, instruct, induce, aid or permit another person to do an act that is unlawful under the Act. A person who does so will be jointly and severally liable with the person who actually did the act.

4.38 In the case of M v R Pty Ltd (1988) EOC 92-229, an employee was held jointly liable with the employer for the sexual harassment perpetrated by the employee against another employee. Applying s 52 of the Act, the Tribunal held that the offending employee caused, induced, aided or permitted the relevant unlawful acts on the part of the employer company.

Issues for consideration

Question 107

(a) Does the provision relating to aiding unlawful acts require amendment?

(b) If so, in what ways?

Liability of principals and employers

4.39 Section 53 of the Anti-Discrimination Act 1977 provides that principals and employers are liable for the acts done by an agent or employee, unless the principal or employer did not authorise the doing of the act, either expressly or impliedly.

4.40 The case of Hill v Water Resources Commission (1985) EOC 92-127, involved alleged incidents of harassment which were perpetrated on the complainant by her co-workers, some who worked under her rather than her supervisors. With regard to the level of the employer’s liability the case established that employers could be held liable for the acts of their employees.

4.41 However, it has been suggested that an employer should not be responsible for the discriminatory actions of managerial and supervisory employees if the employer has acquainted those employees with the requirements of the legislation. In the case of non-managerial / supervisory employees, it has been suggested that the employer should not be responsible under any circumstances, unless those circumstances constitute such a severe invasion as to create a hostile work environment which, though directly notified about, the employer has chosen to ignore.

Issues for consideration



Question 108

Should the employer be responsible for actions of:

(a) a supervisor or manager in relation to an employee for whom

(i) he/she is responsible, or

(ii) he/she is not responsible for directly or indirectly.

(b) a non-supervisory/non-managerial employee in relation to any other employee?

Question 109

Should the employer’s liability in various situations be spelt out in the legislation?

Question 110

What defences should an employer have?

GENERAL EXCEPTIONS

4.42 As explained in Chapter 3 of this Paper, in addition to the specific exceptions that apply to each ground, there are also general exceptions that apply to all grounds established by the Act. The Act contains the following general exceptions:

• Acts done under statutory authority - acts done under any other Act, regulation, ordinance, by-law, rule or other subordinate legislation; an order of the Tribunal; an order of any court, including a wage fixing award; or an industrial agreement [s 54];
• Charities - any document which confers “charitable benefits” on persons of a class [s 55];
• Religious bodies - acts done by religious bodies, including ordination, training or education, appointment of persons by a religious body or any other practice of a religious body that conforms to the doctrines of that religion [s 56];
• Voluntary bodies - in relation to admission to membership and benefits to members of voluntary bodies [s 57]; and
• Establishments providing housing accommodation for aged persons - housing which includes self care units, retirement villages, hostels and nursing homes [s 59].

Issues for consideration



Question 111

It has been stated in submissions that the general exceptions make significant actual as well as symbolic inroads into measures to counter discrimination and promote equality, devaluing the principles of anti-discrimination embodied in the Act.

Should all general exceptions be repealed allowing only for the grant of exemptions by the President of the Anti-Discrimination Board on application by the person seeking the particular exemption?

Question 112

Rather than apply the general exceptions to the whole Act, should the structure of the Act be changed to accommodate them in certain circumstances, within particular grounds and areas of operation only?

Question 113

Is the provision of short-term, temporary exemptions a preferable means of allowing for exceptional circumstances?

Question 114

Are there other ways of approaching exceptional circumstances?

Acts done under statutory authority

Background

4.43 The exception created by s 54 of the Act was considered the “most important” by the Anti-Discrimination Board in its submission to the Niland Inquiry conducted by the Department of Industrial Relations (“Transforming Industrial Relations in New South Wales”). Explaining the effect of this exception in that submission the Board stated:

[s]ection 54 allows discrimination which is necessary to comply with other laws to take effect without contravening the Anti-Discrimination Act. Accordingly, as an exception of significant importance, it limits the jurisdiction of the Anti-Discrimination Act.

Thus, even if an act amounts to unlawful discrimination in terms of the Anti-Discrimination Act, if another law permits it, then it is acceptable and not an offence.

4.44 When the Act was introduced, the intention was that s 54 “should be read in conjunction with” s 121 “which will enable the Board to review all the legislation passed by this Parliament since its inception”. This implies that if the reviews reveal inconsistencies with the principles outlined in the Anti-Discrimination Act, the ordinary course of legislative review will remedy the inconsistencies, enabling the s 54 barrier to be lifted over a period of time. However, almost 15 years down the track, the s 54 barrier remains.

Status of Anti-Discrimination Act in relation to other legislation

4.45 It has been suggested that the controversy surrounding the necessity or otherwise for the s 54 exception should be considered in the light of the status that should be accorded to the Anti-Discrimination Act which has been characterised as a human rights and equal opportunity law.

4.46 The general legal principles of interpretation developed to assign a hierarchy to different forms of legislation include the following:

• Acts of Parliament override regulations;
• where a law deals specifically and comprehensively with a subject, it will normally override laws that refer to the subject in passing; and
• the later in time prevails.

4.47 However, the effect of s 54 changes the status of the Anti-Discrimination Act in the following ways:

• Regulations can override the Act;
• other general laws can override the specific provisions of the Act; and
• laws made after the Act do not need to recognise or reflect its provisions.

Comparison with other jurisdictions

4.48 In the United States of America and Canada, discrimination laws are entrenched so that all other laws must conform with them. In Australia, all the states that have discrimination laws took effect from the proclaimed date of operation; none had retrospective effect. Thus, all laws and regulations in force at the time of the enactment of the discrimination laws continue unchallenged even if they are inconsistent with the discrimination laws. However, not all states are alike in their treatment of laws passed after their respective discrimination laws. For instance, South Australia’s Equal Opportunity Act allows no exception for acts done under legislative authority, while Victoria has a similar exception to New South Wales. When the Sex Discrimination Act 1984 (Cth) came into operation in August 1984, there were a number of discriminatory state and federal Acts. In recognition of the need to provide an opportunity for state and federal governments to review and amend existing legislation and policy, s 40 of that Act provided for a sunset clause to gradually lower the barrier to the review of discriminatory acts done under statutory authority. A two year exemption was provided where a person was acting in direct compliance with any federal or state Act, regulation, rule, by-law or determination in force at the commencement of the Sex Discrimination Act.

Section 54 - a problem?

4.49 In the case of Najdovska v Australian Iron and Steel Pty Ltd (see the discussion of indirect discrimination in Chapter 3) the employer argued that s 36 of the Factories Shops and Industries Act 1926 (NSW), (which specified the weights that women whatever their age and physical capabilities are allowed to handle, thereby precluding them from some occupations) prevented it from hiring women in many job classifications. According to the employer, this meant that no discrimination occurred, and in any case acts done in compliance with other statutory authority were exempt. The Tribunal did not accept the respondent’s argument. Section 36 of the Factories, Shops and Industries Act has since been repealed but the conflict between acts that would normally be unlawful under the Anti-Discrimination Act but exempt because done under statutory authority, continues.

4.50 Occupational health and safety legislation is aimed at providing safe and healthy working conditions. However this legislation has been littered with discriminatory provisions. (See the discussion on impact of occupational health and safety legislation on discrimination legislation in Chapter 2.) They relate to such matters as handling of heavy weights, shiftwork, the provision of special amenities and facilities, lead processing, industrial processes, underground mining and apprenticeship. Many such laws which either prohibit women from doing certain work or limit the circumstances in which they perform such work are indicative of the social values of the day. They have their origin in piecemeal legislation introduced in the late nineteenth and early twentieth centuries. Such legislation was designed to protect those seen to be most vulnerable to exploitation and injury at work, but ironically has now resulted in being the justification for discriminatory practices against those very groups it sought to protect. And yet, reproductive hazards represent a challenge for public policy formulation in this area. For instance, it is well documented that certain exposure to lead can cause miscarriages, foetal abnormalities and developmental defects. Generally speaking, there is no doubt that women, because of their reproductive function, are more vulnerable to reproductive hazards than men. However, the policy of excluding women from employment in these circumstances highlights the conflict between two social goals in the workplace: equal employment opportunity and occupational health and safety. This conflict raises the inevitable question, how far is it possible to resolve the tension between the two, while taking into account business profitability.

4.51 Another area in which the s 54 exception causes particular concern is in relation to state industrial awards, which can override the Anti-Discrimination Act. However, it is understood that the Attorney General is currently considering the removal of awards and industrial agreements from the scope of s 54.

Issues for consideration
• Status of the Anti-Discrimination Act

Question 115

(a) What status should be given to the Anti-Discrimination Act to other legislation?

(b) Should it continue to be subordinate in relation to other legislation, statutory instruments and awards?

• Scope and effect of s 54

Question 116

If the s 54 exception is to continue, should it include a “sunset clause” - ie a specific time frame within which discriminatory provisions in other Acts and statutory instruments will be removed?

• Protective legislation and discrimination legislation

Question 117

(a) Can selectively protective legislation be justified today?

(b) If so, in what areas?

Question 118

(a) Should employers be required or permitted to solve the problem of reproductive hazards by banning members of certain vulnerable groups (eg women) from the hazardous processes?

(b) Alternatively, should employers be required to achieve the same level of safety for all workers?

Question 119

Where does business profitability fit in when striking the balance between equal employment opportunity and occupational health and safety considerations?

Question 120

How should decisions be made in the face of scientific uncertainty, when the risk and the consequences of exposure are not fully documented?

Question 121

What defences should be included in anti-discrimination legislation?

Question 122

The Anti-Discrimination Act 1991 (Qld) includes exemptions for discriminatory acts that are “reasonably necessary” to protect public health and to protect the health and safety of people at a place of work.

Should this form of exemption be considered for New South Wales?

Question 123

There is also some concern that s 54 is an inadequate basis for a defence that an employer’s actions are based on a reasonable concern for occupational health and safety.

Should there be a specific occupational health and safety defence?

See also the discussion of “Industrial Relations and Discrimination Legislation” in Chapter 2 of this Paper.

Charities

4.52 Provisions of any deed or other instruments that confer charitable benefits on a class identified by reference to any of the grounds of discrimination and any acts done to give effect to such provisions are excepted from the operation of the Act. Although the exception is limited to the provisions of deeds and instruments, there has been criticism of this exception.

Voluntary bodies

4.53 Voluntary bodies are excepted from the operation of the Act in relation to admission to membership and the provision of benefits to members. The exception does not apply to other areas of operation, such as employment or provision of services. Despite the limited nature of this exception, there is some concern that while many such organisations do provide valuable support and other services to the community, their activities escape public scrutiny and public accountability as regards discriminatory conduct in relation to membership and benefits.

Issues for consideration



Question 124

Should the exceptions relating to charities and voluntary bodies be repealed, continued or modified in some way?

Religious bodies

4.54 Although religion is not a ground of prohibited discrimination, the Act contains various exceptions that protect the autonomy of religious organisations. Section 56 is one of those exceptions. (For further information see the discussion on the inclusion of religion as a ground of discrimination in Chapter 5.) The effect of this exception is that religious bodies can discriminate on the prohibited grounds (such as race, sex, marital status etc) in the appointment and training of religious personnel and any other practice which conforms to their doctrine or is necessary to avoid injury to the religious susceptibilities of adherents.

Issues for consideration



Question 125

There has been some concern, particularly in the context of the ordination of women priests, about the continuing exemption of religious bodies from sex discrimination provisions. It has been argued that the continuing exemption of religious bodies from sex discrimination is inappropriate, when at the same time such organisations have sought protection from the NSW courts to enforce discrimination.

Should religious bodies continue to be excepted from the operation of the whole Act?

Question 126

The Anti-Discrimination Act provides that it is unlawful to discriminate against a student on the ground of race [s 17]. Although there is no specific exception

relating to private educational authorities on the ground of race, the general exception for religious bodies is said to provide a loophole whereby race discrimination is justified by its connection with religion. This result is also said to be inconsistent with the provisions of the Racial Discrimination Act 1975 (Cth) which applies to private educational authorities.

Should the general exception for religious bodies be reviewed with a view to making it consistent with federal legislation?

Establishments providing housing accommodation for aged persons

4.55 As stated above, there are various types of housing for aged persons. The rights of residents are protected by both federal and state legislation. For instance, the rights of residents of self care units and hostels are generally protected by the terms of the Retirement Villages Act 1989 (NSW) and its Code of Practice. Hostel residents’ rights to care and private nursing home residents’ rights are similarly protected by federal legislation. It has been pointed out that there is now an unacceptable degree of conflict in principle between the users’ rights enunciated under the federal and state legislation on the one hand, and the exclusion of supported accommodation for the aged from the operation of the Anti-Discrimination Act on the other.

4.56 Another criticism of the exception is its actual wording. By using the term “institution” with reference to the establishments providing housing for aged persons, it is alleged that attitudes and stereotypes of the past are being reinforced by the legislation. The trend over the last ten years has been to move away from the concept of institutionalisation towards a process of de-institutionalisation and from the stereotype of the infirm aged as inmates of institutions in favour of the older resident living in a different type of home.

Issues for consideration



Question 127

(a) Should the exception relating to establishments providing housing accommodation for aged persons be repealed or modified?

(b) If modified, how?

Question 128

Is the wording of this exception discriminatory or prejudicial?

MINISTERIAL EXEMPTIONS

4.57 In addition to the special and general exceptions which allow individuals and organisations to be excused from the operation of the Act, the Act also makes provision for exemptions to be granted by the Minister, on the recommendation of the Anti-Discrimination Board. Such exemptions can be granted in respect of:

• a person or class of persons;
• an activity or class of activity; or
• any other matter or circumstance specified in the order.

Exemptions so granted, remain in force for a maximum of five years and can be extended. Exemptions can also be revoked or varied.

4.58 The Annual Report of the Anti-Discrimination Board for 1991/92 states that:

exemptions are likely to be granted where a program or scheme is designed to help a particular disadvantaged group in the community, especially where the disadvantage is the result of past discrimination or stereotyped attitudes. An exemption allows the person or group to provide special programs for the members of the target group, and to advertise the scheme or program. It means that people outside the target group will not be able to claim unlawful discrimination.

4.59 During 1991/92 exemptions were granted to the State Government Employees Credit Union for a period of five years from the operation of s 33(1) and s 51 to provide scholarships for women in the public sector. See Annual Report of the Anti-Discrimination Board for 1991/92 for details of other exemptions granted during the period.

Issues for consideration



Question 129

Do Ministerial exemptions serve a useful purpose?

Question 130

Should the Anti-Discrimination Board be responsible for recommending the exemptions?

Question 131

It has been suggested that the Act should work on the basis of such exemptions rather than special and general exceptions.

Is this a valid suggestion?

BACKGROUND READING

General

AUSTRALIAN AND NEW ZEALAND EQUAL OPPORTUNITY LAW AND PRACTICE, Vol 1 (CCH Australia Ltd)

NEW SOUTH WALES. ANTI-DISCRIMINATION BOARD Annual Reports 1978 to 1991-1992

See also cases cited in (1989-1990) Equal Opportunity Cases (CCH Australia Ltd, 1991) and (1991) Equal Opportunity Cases (CCH Australia Ltd, 1992) in relation to the various grounds of discrimination.

Race

Articles and Books

JAMIESON, P “Discrimination: Ethnic Communities and Equal Opportunity Legislation” (1986) 8 Migration Action 17 (An article based on the report of a project conducted by the Ecumenical Migration Centre for the Equal Opportunity Board of Victoria and prepared by P Jamieson)

LUSTGARTEN, L “Racial Inequality and the Limits of the Law” (1986) 49 Modern Law Review 69

NETTHEIM, G “Justice and Indigenous Minorities: A New Province for International Law” in A Blackshield (ed) Legal Change: Essays in Honour of Julius Stone (Butterworths, Sydney, 1983)

RADIS, M “Legislative Treatment of Vulgar Racism: The Frames of Reference for Social Reform” (1988) 10 Migration Monitor 14

SPERLING, K and MASON, D “Racism in the Media: If Legislation, What Kind?” (1988) 11 Migration Monitor 16

SULLIVAN, G and THOMANN, D “Disqualification on the Basis of Race: A Critical Development in US Racial Relations” (1992) 21 Anglo-American Law Review 20

Racial Vilification

Articles and Books

ALLEN, D and GIBSON, J “The Issue of Racial Vilification” (1990) 64 Law Institute Journal 709

LASTER, K “A Justified Omission?” (1989) 14 Legal Services Bulletin 258

SEEMANN, J “Racial Vilification Legislation and Anti-Semitism in NSW: The Likely Impact of the Amendment” (1984) 12 Sydney Law Review 565

Sex, sexual harassment and pregnancy

Articles and Books

AUSTRALIA. HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION A Review of Exemptions (AGPS, Canberra, 1992)

AUSTRALIA. HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Indirect Discrimination and the Sex Discrimination Act (Occasional Paper 6, 1991)

AUSTRALIA. HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Ten years of the Convention on the Elimination of All Forms of Discrimination Against Women (Occasional Paper 4, 1990)

AUSTRALIA. PARLIAMENT. HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS.[Chairman: Mr M Lavarch] Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (AGPS, Canberra, 1992)

CHARLESWORTH, H “Pornography as Sex Discrimination” (1989) 63 Law Institute Journal 736

CLARKE, L “Pregnancy and Dismissal” (1986) 15 Anglo-American Law Review 310

DU-FEU, V and WILLIAMS, A “The EEC influence in Sex Discrimination Law” (1991) 141 New Law Journal 1220

HARRISON, K “Pregnancy and Discrimination in the Court of Appeal” (1992) 142 New Law Journal 462

HERVEY, T “Justification for Indirect Sex Discrimination in Employment: European Community and United Kingdom Law Compared” (1992) 40 International and Comparative Law Quarterly 807

LIDEN, S “Difference and Exceptionality” (1990) 15 Legal Service Bulletin 118

MACKINNON, C Feminism Unmodified: Discourses on Life and Law (Harvard University Press, Massachusetts 1987)

McCALLUM, R C “Discriminating Against Mothers - Part-time Work, Child Care and the Family” (1985) 59 Law Institute Journal 692

McGINLEY, G P “Judicial Approaches To Sex Discrimination in the United States and the United Kingdom - A Comparative Study” (1986) 49 Modern Law Review 413

NAPIER, B W “Fertile Ground for Discrimination” (1992) 89 (18) Law Society’s Gazette 19

O’DONAVAN, K and SZYSZCAK, E Equality and Sex Discrimination Law (Basil Blackwell, Oxford, 1988)

SCHWARZ, M “Men Win Discrimination Claim” (1990) 15 Legal Services Bulletin 120

SCUTT, J A “Legislating for the Right to be Equal: Women, the Law and Social Policy” in C V Baldock and B Cass (eds) Women, Social Welfare and the State in Australia 223 (Allen & Unwin, Sydney, 1988)

SULLIVAN, R “Sex Equality and the Australian Body Politic” in S Watson (ed) Playing the State: Australian Interventions 173 (Allen & Unwin, Sydney, 1990)

THORNTON, M “(Un)equal Pay for Work of Equal Value” (1981) 23 Journal of Industrial Relations 466

THORNTON, M “Sex Discrimination Legislation In Australia” (1982) 54 Australian Quarterly 393

THORNTON, M The Liberal Promise: anti-discrimination legislation in Australia (Oxford University Press, Melbourne, 1990)

THORNTON, M “The Public/Private Dichotomy: Gendered and Discriminatory” (1991) 18 Journal of Law and Society 448

TIFFIN, S “Against the Odds : Fighting Sexual Harassment Under Anti-Discrimination Legislation” (1984) 27 Refractory Girl 7

TINGLE, L “Protecting Sex and Sensibility” The Australian (October 23, 1992)

Cases

O’Callaghan v Loder (1984) EOC 92-022.

Hill v Water Resources Commission (1985) EOC 92-127

Webb v EMO Air Cargo (UK) Ltd [1992] IRLR 116

Marital Status

Articles and Books

MacCULLUM, S and BRADBROOK, A J “Discrimination Against Families in the Provision of Rented Accommodation” (1978) 6 Adelaide Law Review 439

ROWE, G C “Misunderstanding Anti-Discrimination Law: The New South Wales Court of Appeal in Reddrop” (1986)10 Adelaide Law Review 318

Cases

Boehringer Ingleheim Pty Ltd v Redropp (1984) EOC 92-108

Waterhouse v Bell (1991) EOC 92-376

Wilson v Qantas Airways Ltd (1985) EOC 92-141

Physical and intellectual impairment

Articles and Books

ANDERSON, J “Anti-discrimination laws for people with intellectual disabilities” (1987) 1 (5) Interaction 19

ASTOR, H “Discrimination in Employment on the Ground of Physical Impairment” (1988) 1 Australian Journal of Labour Law 79

ASTOR, H “Anti-Discrimination Legislation and Physical Disability: the Lessons of Experience” (1990) 64 Australian Law Journal 113

ASTOR, H “Indirect discrimination in the provision of government services” (1992) 3 (4) Legal Link 10

ASTOR, H and NOTHDURFT, J “Anti-discrimination law and physical disability: A leap in the dark” (1986) 11 Legal Service Bulletin 250

AUSTRALIA. Commonwealth Disability Anti-Discrimination Legislation Committee National Disability Discrimination Legislation (Discussion Paper, 1991)

AUSTRALIA. DEPARTMENT OF HEALTH, HOUSING AND COMMUNITY SERVICES HIV/AIDS and Anti-Discrimination Legislation (Canberra, February 1991)

AUSTRALIA. DEPARTMENT OF HEALTH, HOUSING AND COMMUNITY SERVICES Final Report of the Legal Working Party of the Intergovernmental Committee on AIDS (Canberra, November 1992)

AUSTRALIA. PRIVACY COMMISSION Report of the Privacy and HIV /AIDS Working Party (Canberra, April 1992)

BROWN, M R “AIDS Discrimination in the Workplace: the Legal Dilemma” (1987) 92 Case & Comment 3

BURDEKIN, B “AIDS and Human Rights Legislation”, paper presented at the 3rd National Conference on AIDS (Hobart, 1988) 693

CARROL, P (of Trowbridge Consulting) AIDS and Superannuation in Australia - the evidence (Commonwealth Department of Health, Housing and Community Services, September 1992)

HODGE, D, SMITH, A and PATTERSON, D “HIV Status, Sexuality and Discrimination in Australia: Whose Turn to (En)act?” (1990)14 (6) National Aids Bulletin 48

INNES, G “The Rhetoric Reality Gap” (1987) 12 Legal Service Bulletin 163

JOHNSTONE, R “Physical Disability in Employment” (1989) 63 Law Institute Journal 728

KLUCK, M J “Prohibiting Employment Discrimination on the basis of Disability: the need to expand California Law” (1981) 14 U C Davis 731 - 65

LARRIERA, A “Minister pledges AIDS laws action” The Sydney Morning Herald (December 2 1992) at 6

NEW SOUTH WALES. ANTI-DISCRIMINATION BOARD Discrimination and Intellectual Handicap (December 1981)

NEW SOUTH WALES. ANTI-DISCRIMINATION BOARD Discrimination - the Other Epidemic Report of the Inquiry into HIV and AIDS Discrimination (Sydney, April 1992)

NOTHDURFT, J and ASTOR, H “Laughing in the Dark - Anti-Discrimination Law and Physical Disability in New South Wales” (1986) 28 Journal of Industrial Relations 336

SIMPSON, J “Law for the Intellectually Handicapped” (1984) 9 Legal Service Bulletin 220

SEEMAN, J A “Disabling or Enabling the Equal Opportunity Act? Waters v The Public Transport Corporation of Victoria” Australian and New Zealand Equal Opportunity Law and Practice 91 - 702

TILLET, G “AIDS, Discrimination and the Law”, paper presented at the 3rd National Conference on AIDS (Hobart, 1988)

WATERS, P “The Coverage of AIDS-related Discrimination Under Handicap Discrimination Laws: the US and Australia compared” (1990) 12 Sydney Law Review 377

WILSON, H “A Struggle to be Waged” (1989) 14 Legal Service Bulletin 20

WILSON, K “AIDS and Discrimination” (1991) 65 Law Institute Journal 908

Cases

Ellis v Metropolitan Transit Authority (1988) EOC 92-232

Jamal v Secretary, Department of Health (1988) EOC 92-234

Kitt v Tourism Commission of New South Wales (1987) EOC 92-196

Waters v Public Transport Corporation (1991) EOC 92-390

Woods v Wollongong City Council (1991) EOC 92-393

Homosexuality

Articles and Books

AMES, J “Anti-discrimination plans inadequate says gay group” (1992) 89 (42) Law Society’s Gazette 9

ATKINSON, M "Homosexual Law Reform" (1992) 11(2) University of Tasmania Law Review 206

Compulsory retirement

Articles and Books

LEWIS D “Academics win right to work beyond 65” The Sydney Morning Herald (November 3, 1992) at 7

MARK, S “Age discrimination and compulsory retirement - how discriminatory are your current employment policies and practices?”, paper presented at the IIR Conference on Age Discrimination and the Abolition of Compulsory Retirement - Implications for Government and Industry (Sydney, 7-8 October 1992)

Other Unlawful Acts

Cases

M v R Pty Ltd (1988) EOC 92-229

Hill v Water Resources Commission (1985) EOC 92-127

General Exceptions

Articles and Books

AUSTRALIA. SEX DISCRIMINATION COMMISSIONER Sex Discrimination Act 1984, A Review of Exemptions (AGPS, Canberra, August 1992)

See also the background reading listed in relation to “Industrial Relations and Discrimination Legislation” in Chapter 2 of this Paper.