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Where am I now? Lawlink > Law Reform Commission > Publications > Appendix A: Draft Anti-Discrimination Bill 1999 - Chapter 2
Report 92 (1999) - Review of the Anti-Discrimination Act 1977 (NSW)
Appendix A: Draft Anti-Discrimination Bill 1999 - Chapter 2
7 Unlawful discrimination—generally
It is unlawful to discriminate against a person because of an irrelevant characteristic specified in Chapter 3 in an area of activity specified in Chapter 4 unless:
(a) a particular exception specified in Chapter 4 applies in relation to the area of activity, or
(b) a general exception or exemption under Chapter 5 applies.
8 Forms of unlawful discrimination
For the purposes of this Act, unlawful discrimination may consist of direct discrimination (section 9) or indirect discrimination (section 10).
9 Direct discrimination
(1) A person (the first person) discriminates directly against another person (the second person) if, in doing an act that adversely affects the second person, the first person relies on, requires compliance with or takes into account an irrelevant characteristic of the second person.
(2) For the purposes of subsection (1), an act adversely affects the second person if it causes or is likely to cause that person to suffer a detriment or disadvantage.
(3) For the purposes of subsection (2), a detriment or disadvantage includes:
(a) the loss of an opportunity to obtain a benefit or thing, and
(b) an effect that the second person reasonably considers to be detrimental or disadvantageous to his or her interests.
Example. If male employees are required to do "dirty work", but are paid more to do it, both male and female employees could suffer a detriment or disadvantage. Males may reasonably consider the work to be a detriment to them because it is "dirty work" despite increased remuneration. Females may reasonably consider the loss of an opportunity to obtain increased remuneration to be a detriment to them.
(4) For the purposes of subsection (1), the first person does not discriminate against a second person by relying on or taking into account an attribute commonly imputed to persons having a particular irrelevant characteristic if:
(a) the second person in fact has the attribute, and
(b) the attribute is a relevant consideration in the circumstances, and
(c) the first person acts in good faith on a reasonably held belief that the first person had the attribute.
Note. An irrelevant characteristic may include an attribute: see section 16 (3).
Example. Dishonesty may be generally imputed to a particular group. Where honesty is relevant in the choice of an employee for a particular position, the employer may reject a member of the group, not because of a stereotyping assumption, but because the employer knows of a conviction of the member for an offence of dishonesty.
10 Indirect discrimination
(1) A person (the first person) discriminates indirectly against another person (the second person) if, in doing an act that adversely affects the second person, the first person relies on, requires compliance with or takes into account a factor that is not itself an irrelevant characteristic, if:
(a) so acting adversely affects a class of persons having the same irrelevant characteristic as the second person disproportionately to the adverse effects (if any) on persons not having the irrelevant characteristic, and
(b) it is not reasonably necessary for the first person to rely on or require compliance with the factor, or to take the factor into account, having regard to:
(i) the actual or likely benefit sought to be obtained by the first person, and
(ii) the actual or likely adverse effects on persons having the irrelevant characteristic, and
(iii) the availability to the first person of other options that:
(A) could reasonably have been taken by the first person, and
(B) would have avoided or lessened the adverse effects on the second person, or on the second person and other persons having the irrelevant characteristic.
(2) If a second person asserts that it was not reasonably necessary for the first person to rely on or require compliance with the factor, or to take the factor into account, the burden of establishing that it was reasonably necessary lies on the first person.
Note. If a person proposes to do an act that would be unlawful discrimination under this Act, because it involves an irrelevant characteristic, but that characteristic is believed to be a matter that it is reasonable to take into account, an application for an exemption may be sought from the President: see section 69.
11 What constitutes "doing an act"?
For the purposes of this Act, a person does an act if the person:
(a) does or omits to do anything, or
(b) makes or fails to make a decision, or
(c) undertakes or fails to undertake a course of conduct.
12 What constitutes "relying on, taking into account, or requiring compliance with, an irrelevant characteristic"?—generally
(1) For the purposes of this Chapter, a person (the first person) relies on or takes into account an irrelevant characteristic of another person (the second person) if the presence or absence of the characteristic is a material or significant consideration in the doing of an act by the first person in relation to the second person.
(2) For the purposes of this Chapter, the first person requires compliance with an irrelevant characteristic if it is a condition or requirement of obtaining a benefit or opportunity, or avoiding a detriment or disadvantage, that the second person have or not have the irrelevant characteristic, whether alone or in combination with, or as an alternative to, other characteristics, qualifications or attributes.
(3) For the purposes of this Chapter, if the first person is a body or group of persons that acts by the decision or determination of a proportion of its members, it relies on or takes into account an irrelevant characteristic if:
(a) for a majority of its members participating in the act, the characteristic is a material or significant consideration in doing the act, or
(b) in the case of an act done as the result of a majority decision, the characteristic is a material or significant consideration for so many of the majority as, had they not so decided, would have resulted in a different decision.
13 What constitutes "relying on, taking into account, or requiring compliance with, an irrelevant characteristic"?—transgender persons
For the purposes of this Chapter, a person (the first person) relies on, requires compliance with or takes into account an irrelevant characteristic of another person (the second person) if the first person does an act on the basis that the second person, being a recognised transgender person, is of his or her former sex.
14 Unlawful discrimination—obligation to accommodate needs of persons having special characteristics
(1) A person (the first person) discriminates against another person (the second person) who has a special characteristic if:
(a) the first person fails to take reasonable steps to accommodate those needs of the person that result from having the special characteristic, and
(b) the taking of those steps would allow the person to obtain a relevant benefit or avoid a relevant detriment.
Note. Special characteristics are defined in section 17.
(2) Steps are not reasonable steps for the purposes of subsection (1) if they would impose unjustifiable hardship on the first person.
(3) For the purposes of subsection (2), unjustifiable hardship is imposed on the first person if the detriment or disadvantage to the first person (including financial expenditure) involved in taking the steps:
(a) is significant in all the circumstances, and
(b) is disproportionate to any benefit that may be obtained by the first person in the circumstances (including that resulting from any particular qualities of the second person), and
(c) is not justifiable, despite the benefit to the second person and any public interest in taking the steps.
(4) A person who asserts that any steps required to accommodate those needs would not be reasonable bears the burden of establishing unjustifiable hardship.
(5) If a person takes or offers to take reasonable steps to accommodate the needs of a second person with a special characteristic, those steps do not constitute an act of unlawful discrimination:
(a) against any other person, or
(b) against the second person, if the second person accepts the steps taken.
Example. In relation to an application for employment by a person with a physical disability, an employer may be able to show that the cost of any necessary changes to the work-place or work practices would involve significant cost or inconvenience (including that which may result to other employees); that no particular benefit would flow to the employer (because there were many applicants for the job, which required no special abilities, and the disability was rare); and that it was unlikely that people with those disabilities would be excluded from the social benefits of employment generally.
15 Unlawful discrimination under secs 9 and 10—relatives and associates
(1) For the purposes of sections 9 and 10, it is unlawful to discriminate against a person because he or she is a relative of, or associates with, another person and because that other person has an irrelevant characteristic.
Note. Relative is defined in the Dictionary.
(2) A person, being an incorporated body, associates with another person if the other person is a member or officer of the incorporated body.
Example. If an incorporated association applies for a lease of premises and is refused the lease because its officers are homosexual, or of a particular race, the lessor will have discriminated unlawfully against the incorporated association.
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