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Where am I now? Lawlink > Law Reform Commission > Publications > Appendix A: Draft Anti-Discrimination Bill 1999 - Chapter 4
Report 92 (1999) - Review of the Anti-Discrimination Act 1977 (NSW)
Appendix A: Draft Anti-Discrimination Bill 1999 - Chapter 4
Note. This Chapter identifies the areas of activity in relation to which the prohibition against discrimination set out in section 7 applies.
Part 1 The area of work
Division 1 The area covered
21 Applicants for work
The area of work covers acts done by an employer or other person intending to provide work to a second person in determining:
(a) the arrangements to be for the purpose of offering work, and
(b) who should be offered work, and
(c) the terms and conditions on which work is offered.
22 Persons engaged in work
The area of work also covers acts done by an employer or other person who has a work relationship with a second person in:
(a) determining the terms and conditions of the work relationship, and
(b) determining the access to opportunities for promotion, transfer, training or retraining or to any other benefits connected with the work, and
(c) deciding on the promotion, transfer or admission of the second person to any benefit connected with the work, and
(d) denying the second person an apprenticeship training program or other occupational training or retraining program, and
(e) dismissing the second person or otherwise terminating his or her work relationship, and
(f) subjecting the second person to any other detriment in relation to the work relationship.
23 Partnerships
The area of work also covers acts done by:
(a) a person who intends to establish a partnership in determining the terms on which another person is invited to become a partner, and
(b) a partnership in determining:
(i) the arrangements to be made for the purpose of determining who should be offered a position as a partner, and
(ii) who should be offered a position as a partner, and
(iii) the terms on which a person is offered a position as a partner, and
(c) a partnership in relation to a partner of that firm in:
(i) determining the access by the partner to any benefit arising from partnership in the firm, and
(ii) expelling the partner from the firm, and
(iii) subjecting the partner to any other detriment.
24 Qualifying bodies
(1) The area of work also covers acts done by a qualifying body in:
(a) determining whether or not to confer, renew or extend an occupational qualification, and
(b) determining the terms on which it confers, renews or extends an occupational qualification, and
(c) varying the terms on which an occupational qualification is held, and
(d) revoking or withdrawing an occupational qualification, and
(e) subjecting a person seeking, or seeking the renewal or extension of, an occupational qualification to any other detriment.
(2) In this section, a reference to a qualifying body includes a reference to each member of the qualifying body.
25 Accommodating persons with special characteristics
(1) For the purposes of section 14 in the area of work, the reasonable steps to be considered in relation to a person with a special characteristic include:
(a) changes to the physical conditions of the work place, and
(b) changes to work practices, and
(c) variations in the terms and conditions under which the work would otherwise be undertaken, and
(d) the provision of special services or facilities,
so as to permit the person to perform adequately the essential requirements of the work.
(2) In determining for the purposes of subsection (1) whether or not a person can or could adequately perform the essential requirements of the work, all relevant factors and circumstances must be considered, including:
(a) the person's training, qualifications and experience, and
(b) the person's current performance in the employment, if applicable.
Note. Special characteristics are defined in section 17.
26 Definitions
In this Part:
contract work means work done by a person for a principal under a contract between the person's employer and the principal.
employer includes:
(a) a person who employs another person under a contract of service, and
(b) a person who engages another person under a contract for services, and
(c) a person who engages another person to perform any work the remuneration for which is based wholly or partly on commission.
employment includes being:
(a) employed under a contract of service, and
(b) employed under the Public Sector Management Act 1988 or appointed to a statutory office, and
(c) engaged under a contract for services, and
(d) engaged to perform any work the remuneration for which is based wholly or partly on commission,
but does not include being an unpaid worker or volunteer.
occupational qualification means an authorisation or qualification that is needed for, or facilitates:
(a) practising a profession, or
(b) carrying on a trade or business, or
(c) engaging in any other occupation or employment.
principal means a person who contracts with another person for work to be done by employees of the other person.
work includes:
(a) employment under a contract of service, and
(b) employment under the Public Sector Management Act 1988 or under a statutory appointment, and
(c) engagement under a contract for services, and
(d) work that is remunerated wholly or partly on commission, and
(e) work done by a trainee, and
(f) work done on a voluntary or an unpaid basis.
work-relationship includes a relationship:
(a) of employment, and
(b) of contract work, and
(c) where work is done by a volunteer, trainee or unpaid worker,
and includes services and benefits (other than superannuation) provided in the course of or in relation to that relationship.
Division 2 Particular exceptions
27 General: work in dwelling
This Part does not cover a work-relationship or selection for work if the work is to be done in a dwelling occupied by:
(a) the person who seeks to have the work done, or
(b) a relative of the person.
28 Genuine occupational requirements
(1) It is not unlawful under this Act to offer work only to people of one sex if it is a genuine occupational requirement of the work that a person undertaking the work be of that sex.
(2) Without limiting subsection (1), it is a genuine occupational requirement to be a person of a particular sex if:
(a) the work can be performed only by a person having particular physical characteristics (not including strength or stamina) that are possessed only by people of that sex, or
(b) the work needs to be performed by a person of that sex to preserve decency or privacy because it involves the fitting of clothing for people of that sex, or
(c) the work requires searching the clothing or bodies of people of that sex, or
(d) the person undertaking the work will be required to enter a lavatory ordinarily used by people of that sex while it is in use by people of that sex, or
(e) the person undertaking the work will be required to enter areas ordinarily used only by people of that sex while those people are in a state of undress.
Note. The President may, in granting an exemption under section 69, authorise an employer to limit the offering of employment to people of one sex if they will be required to live in communal accommodation provided by the employer that is not suitable for occupation by people of both sexes.
(3) It is not unlawful under this Act for a person to offer work to, or select for work requiring a dramatic or an artistic performance, entertainment, photographic or modelling work:
(a) persons of a particular age, sex or race, or
(b) persons with or without a particular disability,
if it is necessary to do so for reasons of authenticity or credibility.
(4) In relation to the provision of services for the promotion of the welfare or advancement of people with a particular characteristic, it is not unlawful under this Act to offer or select for work a person with the same characteristic if those services can be provided most effectively by a person with that characteristic.
(5) It is not unlawful under this Act for a person on behalf of a body or institution (the offeror) to decline to offer work to a person:
(a) who holds or does not hold a particular religious belief, or
(b) who is, or is not, pregnant, or of a particular sex, domestic status, sexuality or transgender status,
if to do so, with respect to the particular work to be done,
(c) is necessary to comply with the doctrines, tenets or beliefs of a particular religion, and
(d) the offerer is:
(i) a body established for the purposes of that religion, or
(ii) a private educational authority under the direction, control or administration of such a body.
Note. In relation to a doctrine, tenet or belief of a particular religion, see s. 18 (2).
(6) The exceptions in subsections (1)–(5) are satisfied only if the offeror acted on a bona fide belief that it was necessary to so act.
29 Domestic status
It is not unlawful under this Act to discriminate against a second person on the irrelevant characteristic of domestic status in relation to a job that is one of two to be held by a couple in a bona fide domestic relationship.
30 Political employment
It is not unlawful under this Act for a person to act on the basis of political opinion in offering work to another person as an adviser to, or a member of staff of, a politician or a political party, a councillor (within the meaning of the Local Government Act 1993) or a member of the electoral staff of any person.
31 Judicial officers: age
Nothing in this Part applies to the compulsory retirement on the basis of age, or the failure to appoint a person on the basis of age, as a judicial officer within the meaning of the Judicial Officers Act 1986.
32 Youth wages
(1) It is not unlawful under this Act for an employer to pay an employee who is under the age of 21 years according to the employee's age.
(2) This section ceases to operate on 31 December 1999.
33 Early retirement schemes
(1) It is not unlawful under this Act for a person to take into account age:
(a) in determining to offer a person or class of persons an incentive to resign or retire from a work-relationship, and
(b) in determining the terms of such an offer.
(2) For the avoidance of doubt, subsection (1) permits an employer or other person providing work to take account of other factors that are related to age, including the eligibility of a person for a benefit under a work-related superannuation scheme, the value of such a benefit, the length of service in the work and related considerations.
34 Qualifying bodies
A qualifying body may set reasonable terms in relation to an occupational qualification or make reasonable variations to those terms, to take into account any special limitations that a person's age impose on his or her capacity to practise the profession, carry on the trade or business or engage in the occupation or employment to which the qualification relates.
Part 2 The area of goods and services
Division 1 The area covered
35 Provision of goods and services
(1) The area of goods and services covers acts done by a person in relation to the provision of goods and services to a second person in:
(a) determining whether to provide goods or services to the second person, and
(b) deciding the terms on which goods or services are provided to the second person, and
(c) determining the manner in which goods or services were provided, and
(d) terminating the provision of goods or services, or subjecting the second person to any detriment in connection with the provision of goods or services.
(2) This section applies whether or not the goods or services are provided for payment or reward.
36 Definitions
(1) In this Part:
goods means things, money and choses in action.
employment agent means a person who carries on a business of providing services for the purpose of finding employment for people seeking to be employed or procuring employees for people seeking to employ them, or both.
services includes, but is not limited to:
(a) access to and use of a place, facility or vehicle that members of the public are permitted to enter or use, and
(b) financial services, including the provision of loans or finance, financial accommodation, credit and the taking of security and guarantees, and
(c) the provision of superannuation insurance, and
(d) the provision of health and welfare services, and
(e) provision of entertainment, recreation or refreshment, and
(f) services connected with transportation or travel, and
(g) services of any profession, trade or business, including those of an employment agent, and
(h) services provided by a government department, public authority, State owned corporation or body constituted under the Local Government Act 1993, but does not include:
(i) education or training by an educational institution, or
(j) accommodation, or
(k) services covered by Part 1 of this Chapter.
(2) In this Part, a reference to provision of a service includes, where relevant, a reference to authorising or permitting access to or use of a place, facility or vehicle.
Division 2 Particular exceptions
37 Insurance
It is not unlawful under this Act for an insurer to discriminate against a second person by refusing to provide an insurance policy to the second person, or in the terms on which an insurance policy is provided:
(a) if the discrimination is:
(i) based on actuarial or statistical data from a source on which it is reasonable for the insurer to rely, and
(ii) reasonable having regard to that data, and
(b) if the second person, or the President, gives the insurer a written request for access to the data, the insurer:
(i) provides a document containing the data, or
(ii) makes such a document available for inspection and allows the person requesting it to make a copy of the document or any part of the document.
38 Age: concessional rates and credit
(1) It is not unlawful under this Act for a person to provide goods and services to a second person at concessional rates based on the age of the second person or a relative or associate of the second person.
(2) It is not unlawful under this Act for a person to discriminate on the ground of age in relation to the provision of credit, or the terms on which credit is provided:
(a) if the criteria upon which an application is assessed or terms imposed are:
(i) based on actuarial or statistical data from a source on which it is reasonable for the credit provider to rely, and
(ii) reasonable having regard to that data, and
(b) if the second person, or the President, gives the credit provider a written request for access to the data, the credit provider:
(i) provides a document containing the data, or
(ii) makes such a document available for inspection and allows the person requesting it to make a copy of or take extracts from the document.
39 Superannuation: existing fund conditions
(1) It is not unlawful under this Act for a person to discriminate against a second person on the irrelevant characteristic of sex or domestic status by retaining an existing superannuation fund condition if:
(a) the President has granted an exemption to the person in relation to the condition, or
(b) section 41B of Sex Discrimination Act 1984 of the Commonwealth applies.
(2) In this section, existing superannuation fund condition means, in relation to a superannuation fund, a condition of the fund, or of membership of the fund, that is in operation at the commencement of this section.
40 Superannuation: new fund conditions
(1) A person (the first person) may discriminate against another person (the second person) on the basis of age by imposing conditions in relation to a superannuation fund if:
(a) the discrimination occurs in the application of standards in force under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, or
(b) the discrimination is required to comply with, obtain benefits, or avoid penalties under any other Commonwealth Act, or
(c) the discrimination is based on:
(i) actuarial or statistical data from a source on which it is reasonable to rely, or
(ii) if there is no such data, other data on which it is reasonable to rely,
and is reasonable having regard to that data and any other relevant factors, or
(d) if paragraph (a), (b) or (c) does not apply, the discrimination is reasonable having regard to any other relevant factors, or
(e) the discrimination is based on an existing condition and relates to a person who became a member of the fund or scheme, or the discrimination happened, before 1 July 1995.
(2) If a person relies on subsection (1)(c) or (d) and the second person, or the President, makes a written request for access to the data or factors relied on, the exception only applies if the first person, on the written request of the second person, or the President, for access to the data:
(a) provides a document containing the data, or
(b) makes such a document available for inspection and allows the person requesting it to make a copy of or take extracts from the document.
(3) Nothing in this Act makes unlawful an act done in relation to the provision of superannuation:
(a) on the basis of sex or domestic status, if the act is permitted under section 41A of the Sex Discrimination Act 1984 of the Commonwealth, or
(b) on the basis of disability, if the act is permitted under section 46 of the Disability Discrimination Act 1992 of the Commonwealth.
Part 3 The area of education
Division 1 The area covered
41 Provision of education
(1) The area of education covers acts done by an educational authority in relation to an application by a person for admission as a student, in:
(a) determining whether to accept, a person's application for admission as a student, and
(b) deciding who should be admitted as a student, and
(c) determining the terms on which a person is admitted as a student.
(2) The area of education also covers acts done by an educational authority, in relation to a student, in:
(a) denying or limiting access to any benefit provided by the authority, and
(b) expelling the student, and
(c) subjecting the student to any other detriment.
42 Definitions
In this Part:
educational authority means a person or body administering a kindergarten, school, college, university or other institution, the primary purpose of which is to provide education or training.
private educational authority means a person or body administering a school, college, university or other institution at which education or training is provided, not being:
(a) a school, college, university or other institution established under the Education Reform Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or
(b) an agricultural college administered by the Minister for Agriculture.
Division 2 Particular exceptions
43 Single sex schools
It is not unlawful under this Act for an educational authority that operates an educational institution, being a kindergarten, primary school or secondary school, or a program provided at such an institution, for students of one sex to exclude people who are not of that sex from that institution or program.
44 Religious schools
It is not unlawful under this Act for a private educational authority that operates an educational institution or program in accordance with the doctrines, tenets or beliefs of a particular religion to exclude persons on the irrelevant characteristics of sex, domestic status, sexuality, transgender status or religion if the exclusion is reasonably necessary to comply with the doctrines, tenets or beliefs of that religion.
45 Age
It is not unlawful under this Act for an educational authority to discriminate against persons on the irrelevant characteristic of age in relation to:
(a) the provision of educational services up to and including secondary schooling, or
(b) the imposition of a minimum age requirement on a particular educational program, or
(c) the imposition of quotas for students of different ages.
Part 4 The area of accommodation
Division 1 The area covered
46 Provision of accommodation
The area of accommodation covers acts done by a person in relation to the provision of accommodation in:
(a) determining whether to accept a second person's request or application for accommodation, and
(b) determining the terms on which accommodation is offered to the second person, and
(c) varying the terms on which accommodation is provided to the second person, and
(d) denying or limiting access by the second person to any benefit associated with accommodation, and
(e) evicting the second person from accommodation, and
(f) refusing to extend or renew accommodation provided to the second person, and
(g) determining the terms on which the provision of accommodation to the second person is extended or renewed, and
(h) subjecting the second person to any other detriment in connection with the provision of accommodation to that person.
47 Allowing alterations
A person who provides accommodation to a second person must allow the second person, if he or she has a disability, to make reasonable alterations to the accommodation to meet his or her special needs if:
(a) the alterations are done at the expense of the second person, and
(b) the alterations do not require alterations to the premises of another occupier, and
(c) the action required to restore the accommodation to the condition it was in before the alterations were made is reasonably practicable in the circumstances, and
(d) the second person agrees to restore the accommodation to its previous condition before leaving it and it is reasonably likely that he or she will do so.
48 Persons with guide dogs
(1) A person must not refuse to provide accommodation to a person with a visual, hearing or mobility impairment because that person has a guide dog.
(2) A person must not require, as a term of providing accommodation to a person with a visual, hearing or mobility impairment who has a guide dog:
(a) that the dog be kept elsewhere, or
(b) that the person pay an extra charge because of the dog.
(3) This section does not affect the liability of the person with the guide dog for any damage caused by the dog.
49 Definitions
In this Part:
accommodation includes:
(a) residential premises, being:
(i) any premises or part of premises (including any land occupied with premises), and
(ii) any moveable dwelling (within the meaning of the Local Government Act 1993) or the site on which a movable dwelling situated or intended to be situated (including any land occupied or intended to be occupied with the moveable dwelling),
used or intended to be used as a place of residence, and
(b) a hotel or motel, or part of a hotel or motel, and
(c) a camping site, and
(d) any premises or part of premises (including any land occupied with the premises) used or intended to be used for business purposes.
guide dog means a dog that is trained to assist a person who has a visual, hearing or mobility impairment.
Division 2 Particular exceptions
50 Private home
(1) This Part does not apply to the provision of residential accommodation:
(a) that is the main home in which the person or a near relative of the person lives and intends to continue to live, and
(b) that is reasonably capable of occupation by no more than 6 people in addition to the people referred to in paragraph (a),
unless the accommodation is provided in a self-contained dwelling or flat.
51 Other accommodation
(1) It is not unlawful under this Act for an educational authority that operates an educational institution wholly or mainly for students of a particular sex to provide accommodation that is limited to students of that sex.
(2) It is not unawful under this Act for a person to refuse to provide accommodation to a second person in a hostel or similar institution established wholy or mainly for the welfare of persons of a particular religion if the second person is not of that religion.
Part 5 The area of clubs and associations
Division 1 The area covered
52 Membership
The area of clubs and associations covers acts done by a club or association, the committee or other governing body of the association, or a member of the committee or other governing body of the club or association:
(a) in relation to applications for membership, in:
(i) determining the terms of categories or types of membership of the association, and
(ii) the arrangements made for deciding who should be offered membership, and
(iii) determining a person's application for membership, and
(iv) determining the terms on which the person is admitted as a member, and
(b) in relation to members in:
(i) determining a member's application for a different category or type of membership, and
(ii) determining access to any benefit provided by the club or association, and
(iii) varying the terms of membership, and
(iv) depriving the member of membership, and
(v) subjecting the member to any other detriment.
53 Definitions
In this Part:
club or association means:
(a) a registered club within the meaning of the Registered Clubs Act 1976, and
(b) an industrial organisation within the terms of the Industrial Relations Act 1996 or an organisation registered under the Workplace Relations Act 1996 of the Commonwealth, and
(c) a society registered under the Co-operation Act 1923, the Co-operatives Act 1992, or the Friendly Societies (NSW) Code, and
(d) an association incorporated under the Associations Incorporation Act 1984, and
(e) a building society or credit union, and
(f) a body registered or incorporated under the equivalent law of any other State or Territory.
Division 2 Particular exceptions
54 Clubs and benefits for particular age groups
(1) It is not unlawful under this Part for a club or association or a member of the committee or other governing body of a club or association, to exclude a person from membership if:
(a) the club or association exists principally to provide benefits for people of a particular age group, and
(b) the person is not in that age group.
(2) It is not unlawful under this Part for a club or association or a member of the committee or other governing body of a club or association to restrict a benefit to members who are members of a particular age group, if it is reasonable to do so in the circumstances.
(3) In relation to sporting activities conducted or arranged by a club or association, subsection (2) only applies in relation to competitive sporting activities where the reason for the restriction is the strength, stamina or physique of the participants.
55 Clubs and benefits for persons of particular cultural identity
It is not unlawful under this Part for a club or association or a member of the committee or other governing body of a club or association, to exclude from membership a person who is not a member of the group of people with an attribute for whom the club or association is established if the club or association operates principally:
(a) to prevent or reduce disadvantage suffered by people of that group, or
(b) to preserve a minority culture.
56 Separate access to benefits for men and women and persons of transgender status
(1) A club or association or a member of the committee or other governing body of a club or association may limit a member's access to a benefit on the basis of the member's sex:
(a) if it is not practicable for men and women to enjoy the benefit at the same time, and
(b) if:
(i) access to the same or an equivalent benefit is provided for men and women separately, or
(ii) men and women are each entitled to a fair and reasonably equivalent opportunity to enjoy the benefit, and
(c) if it is reasonable to do so in the circumstances.
(2) It is not unlawful under this Part for a club or association or a member of the committee or other governing body of a club or association to limit a member’s access to a benefit, in the case of a member who is a transgender person, on the basis of the member’s former sex:
(a) if the requirements of subsection (1) (a) and (b) are satisfied, and
(b) if it is reasonable to do so in the circumstances.
(3) In relation to sporting activities conducted or arranged by a club or association, this section applies only in relation to competitive sporting activities where the reason for the restriction is the strength, stamina or physique of the participants.
57 Political opinion
It is not unlawful under this Part for a club or association or a member of the committee or other governing body of a club or association, to exclude a person from membership if:
(a) the club or association exists principally to provide benefits for people of a particular political opinion, and
(b) the person is not of that political opinion.
58 Religion
It is not unlawful under this Part for a club or association or a member of the committee or other governing body of a club or association, to exclude a person from membership if:
(a) the club or association exists principally to provide benefits for people of a particular religion, and
(b) the person is not of that religion.
Part 6 The area of disposal of interests in land
Division 1 The area covered
59 Interests in land
(1) The area of disposal of interests in land covers acts done by a person in:
(a) determining whether to dispose of any land to a second person, and
(b) determining the terms on which any land is offered or disposed of to the other person.
(2) This section does not apply to the disposal or offering of an interest in land for the purpose of accommodation that is covered by Part 4.
(3) This section applies despite anything to the contrary in any document affecting or relating to the land.
(4) A person is not personally liable for breach of any covenant or obligation contained in any document referred to in subsection (3) if the person would have contravened this section if the person had complied with the covenant or obligation.
60 Definitions
In this Part:
dispose, in relation to land, includes sell, assign, lease, sublease, license, mortgage and create or transfer an interest in land in or to another person.
interest in land means:
(a) a legal or equitable estate or interest in the land, or
(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over or in connection with:
(i) the land, or
(ii) an estate or interest in the land, or
(c) a restriction on the use of the land, whether or not annexed to other land.
land includes an interest in land.
Division 2 Particular exception
61 Charities and relatives
This Part does not apply to the disposal of an interest in land to:
(a) a charity, or
(b) a relative of the person disposing of the interest,
if the interest was not made available, directly or indirectly, to the public or a section of the public by the person disposing of the interest at any time before the interest was disposed of by that person.
Part 7 The area of government activities
62 Government activities
(1) The area of government activities covers acts done in the course of:
(a) exercising any function under a law of the State, and
(b) carrying out any responsibility for the administration of a State law or the conduct of a State program.
(2) In this Act:
State law means:
(a) an Act, regulation, a statutory instrument, or made under or pursuant to an Act, or
(b) a determination, order or award made under or pursuant to such an Act, regulation or statutory instrument.
State program means a program conducted by or on behalf of:
(a) the State Government, or
(b) a council established under the Local Government Act 1993.
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