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Where am I now? Lawlink > Law Reform Commission > Publications > Appendix A: Draft Anti-Discrimination Bill 1999 - Chapter 5
Report 92 (1999) - Review of the Anti-Discrimination Act 1977 (NSW)
Appendix A: Draft Anti-Discrimination Bill 1999 - Chapter 5
63 Things done with statutory authority
(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:
(a) an Act, other than this Act, or
(b) an instrument made under any other Act, or
(c) an order of the Tribunal, or
(d) an order of any other tribunal or any court.
(2) This section ceases to have effect from the day following the expiration of one year from the commencement of this section.
64 Judicial orders
An act done in order to comply with an order, judgment or decree of any court or tribunal, including courts and tribunals established under a law of the Commonwealth or a State or Territory, is not covered by any area identified in Chapter 4.
65 Statutory authority: age
(1) It is not unlawful under this Act to discriminate on the irrelevant characterisitc of age by the doing of an act:
(a) that is required by, or
(b) that it is necessary for a person to do in order to comply with a requirement of, or
(c) that is expressly permitted by,
any other Act or an instrument made under any other Act.
(2) Nothing in this Act affects any law in relation to the legal capacity or incapacity of any person or the age of majority.
66 Religious appointments
It is not unlawful under this Act to discriminate in relation to:
(a) the selection, ordination or appointment, or
(b) the training or education for selection, ordination or appointment,
of persons to perform functions in relation to a religion if the discrimination is necessary in order to comply with the doctrines, tenets or beliefs of that religion.
67 Health related acts
(1) It is not unlawful under this Act to do an act in relation to a person with a disability that is necessary to protect the health or safety of any person or the public generally if:
(a) the disability of the person involves a condition (including any infectious or contagious disease) that is transmissible in circumstances that may arise if the act is not done, and
(b) the act is done on the basis of medical or other expert opinion on which it is, in all the circumstances, reasonable to rely, and
(c) the act involves measures the severity of which is not disproportionate to the risk involved.
(2) It is not unlawful under this Act to do an act in relation to a person with a disability that is necessary in order to comply with, or give effect to, a requirement under the Public Health Act 1991 or the Mental Health Act 1990.
68 Special measures
It is not unlawful under this Act for a person to do an act if:
(a) it is not done for the purpose of causing detriment or disadvantage to any other person or class of other persons on the ground of an irrelevant characteristic, and
(b) it is done in good faith for the beneficial purpose of:
(i) securing the advancement of members of a particular class of persons, or
(ii) protecting the welfare or interests of such person, and
(c) some or all of the particular class of person, needed such advancement or protection:
(i) because they were in a position of social isolation or disadvantage, either generally, or in a particular respect, including by reason of prior discriminatory treatment, and
(ii) sought or would be likely to accept the benefit offered, and
(d) the act was reasonably capable of achieving its beneficial purpose, and
(e) the act would not continue:
(i) indefinitely, unless the purpose sought to be achieved so required, or
(ii) beyond a period reasonably necessary to achieve the beneficial purpose.
Examples.
(1) A program designed to remedy a level of gender imbalance in a work-place might involve offering certain positions only to women. Such a program would not be unlawful discrimination against men if it complied with the requirements of this section. It would need to cease operating when the gender imbalance was rectified, unless there was reason to think that the imbalance would reappear in the absence of the program.
(2) A program designed to promote the use of an Aboriginal language as a means of preserving a culture may need to continue indefinitely, at least while the language is under threat. The need may disappear only if the program is unsuccessful.
69 Exemptions by the President
(1) The President, by notice published in the Gazette, may grant an exemption from any of the provisions of this Act specified in the notice in relation to:
(a) a person or class of people, or
(b) an activity or class of activities.
(2) An exemption remains in force for the period, not exceeding 5 years, that is specified in the notice.
(3) An exemption is subject to such terms and conditions as may be specified in the notice.
(4) The President, by notice published in the Gazette, may:
(a) renew an exemption from time to time for the period, not exceeding 3 years, specified in the notice, or
(b) vary or revoke an exemption with effect from the date specified in the notice, which must be a date not less than 3 months after the date the notice is published.
(5) If the President varies or revokes an exemption granted on the application of a person it must notify that person in writing at least 3 months before the date on which the variation or revocation is to come into effect.
(6) A decision of the President:
(a) to grant or renew an exemption for a specified period, or
(b) to grant or renew an exemption subject to conditions, or
(c) to refuse to grant or renew an exemption, or
(d) to vary or revoke an exemption,
may be reviewed by the Administrative Decisions Tribunal on the application of a person with a sufficient interest.
70 Criteria to be considered
(1) The President may decide to grant or renew an exemption under section 69, only if President is satisfied:
(a) that the activity for which exemption is sought would or might constitute a contravention of this Act, and
(b) that:
(i) the exemption is sought to allow the applicant to make the necessary arrangements for the applicant to comply with the Act, or
(ii) the irrelevant characteristic sought to be relied on or taken into account by the applicant is a relevant consideration in the particular circumstances, or
(iii) the activity for which the exemption is sought has a legitimate and beneficial purpose that is consistent with the objects of this Act and may contravene this Act only to a limited extent or in a relatively insignificant respect, and
(c) if the activity may contravene a law of the Commonwealth or a State or Territory having similar objects to this Act, an exemption from the terms of that law has been granted or will be sought, and
(d) it is in the public interest to do so.
(2) In considering whether to vary or revoke an exemption, the President is to take into account:
(a) whether the circumstances in which the exemption was granted have changed, and
(b) whether any conditions applying to the exemption have been contravened, and
(c) any other circumstance the President considers relevant.
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