4.1 The particular issue addressed in this chapter is the identification of the areas in which discrimination law should operate. As one critic pointed out, the Anti-Discrimination Act 1977 (NSW) (“ADA”) presently reflects a threshold division between the public and private spheres.¹ This division renders aspects of public life subject to regulation, but cordons off the private sphere from scrutiny. Although there may be a useful distinction between public and private areas, it is necessary to consider whether the dividing line has been correctly drawn.

4.2 If discrimination at a private level is not controlled, a society may not give full effect to the norms of non-discrimination and equality. On the other hand, forbidding discrimination by individuals and private bodies involves interfering with their personal choice, thought and expression and can intrude into intimate relationships. Deciding on the proper ambit of discrimination law therefore involves a consideration of competing interests and rights and striking a careful balance between them.

MODELS OF OPERATION

Public and private arenas

4.3 There are three models for the operation of discrimination law. First, there is the model which is primarily adopted in the present ADA, that is to provide that discrimination in specified areas of public life is unlawful. Generally speaking, the present Act identifies those areas as work, public education, the provision of goods and services, accommodation, and membership of registered clubs. These are specifically identified as being of public concern due to their intimate relationship with the socio-economic rights of the individual and are therefore recognised as being of sufficient public importance to warrant protection provided by the State.

4.4 The second model is reflected in the prohibition found in s 9 of the Racial Discrimination Act 1975 (Cth) (“RDA”). In that provision the area of operation in relation to racial discrimination is defined as “the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”. The relevant “fields” gain meaning through the content of the phrase “any human right or fundamental freedom”, which is in turn defined to include any right of a kind referred to in Article 5 of the Convention on the Elimination of all forms of Racial Discrimination (“CERD”). Article 5 provides as follows:

(a) The right to equal treatment before the tribunals and all other organs administering justice;

(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by an individual, group or institution;

(c) Political rights, in particular the rights to participate in elections – to vote and to stand for election – on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

(d) Other civil rights, in particular:


(i) The right to freedom of movement and residence within the border of the State;

(ii) The right to leave any country, including one’s own, and to return to one’s country;

(iii) The right to nationality;

(iv) The right to marriage and choice of spouse;

(v) The right to own property alone as well as in association with others;

(vi) The right to inherit;

(vii) The right to freedom of thought, conscience and religion;

(viii) The right to freedom of opinion and expression;

(ix) The right to freedom of peaceful assembly and association;


(e) Economic, social and cultural rights, in particular:

(i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

(ii) The right to form and join trade unions;

(iii) The right to housing;

(iv) The right to public health, medical care, social security and social services;

(v) The right to education and training;

(vi) The right to equal participation in cultural activities;


(f) The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks.

4.6 In the context of a general prohibition, the coverage provided by the CERD differs, at least in the terms in which it is expressed, from that provided by the Convention on the Elimination of all forms of Discrimination Against Women (“CEDAW”). While the former restricts its coverage to “public life”, the latter leaves coverage open to “any distinction, ... in the political, economic, ... or any other field”.³

4.7 In addition to the broad provision in s 9, the RDA also prohibits discrimination in specified areas.⁴ This approach is similar to that adopted in the Draft Model Law on Racial Discrimination.⁵ The reason for this apparent duplication, according to the Race Discrimination Commissioner, is that “there is considerable normative value in having a specific section which, while not detracting from the general proscription, renders discrimination unlawful in a particular area of operation”.⁶ The specific provisions in s 11 to 17 of the RDA are, however, less detailed than the corresponding provisions in the Sex Discrimination Act 1984 (Cth) (“SDA”) and the Disability Discrimination Act 1992 (Cth) (“DDA”).

4.8 The third model of coverage is to make the prohibition unlimited as to area in the same way that tortious or criminal conduct is, generally speaking, unlimited. This approach has been adopted by the Anti-Discrimination Act 1991 (Qld) (“ADA (Qld)”) with respect to unlawful sexual harassment.⁷ The question of whether sexual harassment, broadly described as unsolicited or unwelcome conduct of a sexual nature, properly belongs within discrimination legislation is discussed in Chapter Seven.

4.9 The existence of these models gives rise to the question whether the approach adopted in the ADA is the correct approach.

Retaining the public/private distinction

4.10 As the Anti-Discrimination Board (“ADB”) noted,⁸ strenuous arguments have been put at the international level to the effect that the restriction of anti-discrimination laws to the public arena reflects the male understanding of the need for protection. By contrast, it is argued that women suffer discrimination which will not be caught by violations of civil and political rights. The ADB quotes Charlesworth and Chinkin⁹ to the following effect:

The same importance has not been generally accorded to economic and social rights which affect life in the private sphere, the world of women, although these rights are addressed to States. This is not to assert that when women are victims of violations of civil and political rights they are not accorded the same protection, but that these are not the harm from which most women need protection.

The above arguments are supportive of a shift away from the present “public rights” approach of anti-discrimination laws. Perhaps the Queensland model in broadening the sexual harassment provisions is an appropriate one to follow. Indeed, it would also be interesting to explore the impact of similarly broadening the sex discrimination provisions of the ADA generally or, indeed, restructuring the Act so that all grounds of discrimination would be unlawful in areas of both public and private life. Of course, much thought would need to be directed to the kinds of exceptions and exemptions which would be necessary in such legislation otherwise its scope would be virtually unlimited and perhaps unworkable.¹⁰

4.13 Furthermore, it is not entirely clear what is the gravamen of the ADB’s arguments that “the deepest level of the public/private dichotomy operates with regard to gender to the disadvantage of women.” The examples which follow include (perhaps relevantly to Australia) the feminisation of poverty, domestic violence, sexual assault and murder. These examples suggest that the problem is identified as the structure of social relationships, which may be, at least in part, within the definition in the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) and, in part, dependent upon the internalisation of attitudes and beliefs within a culture. To the extent that this latter category of issues can be dealt with by the law, it is not clear that it is properly addressed by discrimination law as we presently understand it. In any event, the Commission was provided with no model which would satisfactorily overcome the difficulties of abandoning the public/private dichotomy.

4.14 A number of other submissions received by the Commission in response to Review of the Anti-Discrimination Act 1977 (NSW) (“DP 30”)¹² also addressed the issue of regulation of the private sphere. The New South Wales Ministry for the Advancement and Status of Women submitted that:

the private sphere of activity is where some of the most serious and systemic discrimination against women (such as non-recognition of unpaid work and domestic violence) takes place. This area of life is not currently covered by the ADA, which designates areas of public activity such as employment and the provisions of goods and services. If the fundamental nature of discrimination against women is to be addressed, the private sphere cannot be excluded.¹³

Whilst acknowledging that inequality exists in the private sphere, the Act is not useful. Education would serve as a more effective model to change practices and attitudes. Where the law does intrude into the private sphere such as with rape and domestic violence, it is more a legal issue.¹⁴

4.17 As foreshadowed in relation to the discussion of the issues raised by the ADB, the Commission accepts the general principle that the distinction between the public and the private areas of life should be maintained and that the ADA should operate only in the public area. This conclusion is not simply a pragmatic limitation on legal intervention in private affairs, but follows from the underlying political and philosophical principles which justify the existence of the ADA. Once it is accepted that a legitimate purpose of the ADA is to protect freedom of political and religious belief, the Act is extending its protections beyond inherent characteristics to the protection of factors which are, at least in part, the product of private choice. That protection, like protection which might be given by a Bill of Rights, recognises a sphere of privacy and may even provide for a legal right to privacy.

4.18 It does not follow that abusive behaviour, such as domestic violence, should be immune from State intervention because it may occur in a domestic or private arena: the proper conclusion is purely that a distinction between public and private life, the boundaries of which may be differently drawn for different purposes, remains a valid and important consideration.

Value of a general prohibition

4.19 The preceding discussion deals with the justification for the approach adopted in the ADA, which currently seeks to draw a line between public areas, which are appropriately subject to anti-discrimination law, and private areas, which are not. In the next section consideration is given to identified areas of operation as set out in the present ADA. Certain recommendations are made for clarification and extension of those areas.

4.20 The principle which the Commission has sought to identify in the current Federal and State legislation is that discrimination law should appropriately apply to all conduct in the public arena. As will appear from the following discussion concerning identified areas of operation, the ADA currently achieves most of the required coverage to satisfy that principle. For example, the areas of work and the provision of goods and services alone go a long way to satisfying the principle. The question is then whether there is merit in formulating a general prohibition along the lines of s 9 of the RDA which outlaws discrimination in relation to “any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.” Further, if such a general provision were thought appropriate, there would arise a consequential question as to the need to retain the current identified areas of operation.

4.21 Given the breadth of coverage of the ADA, there is an attraction in formulating a provision in general terms. The attraction is not merely intellectual: the identification and definition of particular areas of operation may give rise to unintended or inappropriate omissions. Thus, in IW v City of Perth¹⁶ Chief Justice Brennan and Justice McHugh made the following comments¹⁷ in relation to the Western Australian Equal Opportunity Act 1984:

The Act is not a comprehensive anti-discrimination or equal opportunity statute. The legislature of Western Australia, like other legislatures in Australia and the United Kingdom, has avoided use of general definitions of discrimination ...

Those legislatures have also deliberately confined the application of anti-discriminatory legislation to particular fields and particular activities within those fields.

No doubt most anti-discrimination statutes are legislative compromises, resulting from attempts to accommodate the interests of various groups such as traders, employers, religious denominations and others to the needs of the victims of discrimination. As the evils of discrimination in our society have become better understood, legislatures have extended the scope of the original anti-discrimination statutes. Many persons think that anti-discrimination law still has a long way to go.

4.23 For three reasons the Commission is not satisfied that a general provision along the lines of s 9 of the RDA is desirable in the ADA. First, the generality of the terminology is in some respects deceptive. As already noted, the areas identified as human rights or fundamental freedoms are not entirely unrestricted, but are defined to include any right of a kind referred to in Article 5 of the CERD.¹⁸ The scope of Article 5 has already been considered and, given that the definition is only an inclusive one, the identification of particular areas may not provide a significant restraint on the scope of the provision. However, the difficulties of interpretation are illustrated by the difference in views as to its operation to be found in the judgments of Chief Justice Gibbs and Justice Brennan respectively in Koowarta v Bjelke-Petersen.¹⁹ The case involved a refusal by the Queensland government to transfer a pastoral lease to the Aboriginal Land Fund Commission for the benefit of Aborigines living in the areas. The plaintiff asserted that the refusal was a decision based on race which deprived him and other Aboriginal people from occupying and using lands which were part of their traditional lands. In considering whether the matter complained of fell within s 9 of the RDA, Chief Justice Gibbs was of the view that it did not. His Honour commented:

However, it is doubtful whether section 9 has any application to the facts alleged. That section is very widely drawn and its width produces considerable uncertainty as to its effect.

...

A more serious question is whether the refusal to consent to the transfer of the lease impaired the exercise of Mr Koowarta’s right to “own” property. The consent sought was to the transfer of the lease to the Commission, not to Mr Koowarta ... Although the word “own” in Art 5(d)(v) should no doubt be given a wide meaning, it seems to be going too far to hold that the right to “own” property includes a right to mere possession under a licence to occupy.²⁰

4.25 A different approach is adopted by Justice Brennan.

His Honour stated:

The enjoyment of a licence to use property is undoubtedly a “civil right” within the meaning of that term in par (d) of Art 5

...

But no licence was granted to the plaintiff. He acquired no right which he was entitled to enjoy. Is he “aggrieved” by the refusal of permission to transfer the lease to the Commission because he has lost an expectancy of a licence, albeit an expectancy which was not founded upon any legal or equitable right vested in him? It is unusual for a statute to impose a duty not to prevent another from getting, having or using a mere opportunity to obtain a legal right; it is unusual for a statute to confer a statutory right reciprocal to such a duty. Nevertheless, as that appears to be the object and purpose of the Convention, it is the effect of the Act. The essence of the problem which the Convention sets out to remedy is not merely the denial of equality in the enforcement of legal rights but the denial of an opportunity to acquire legal rights or to avoid the incurring of legal liabilities when that denial of opportunity is based on race ... The effect of section 9 of the Act ... would be small indeed if “the recognition enjoyment or exercise, on an equal footing, of any human right or fundamental freedom” related only to rights which might be enforced or freedoms which might be defended under the laws otherwise in force.²¹

4.27 Secondly, there is a practical difficulty in adopting broad terminology. In those areas where an attempt has been made to define the scope of the ADA, careful attention has been given to the boundaries of the area so as to improve the level of certainty in respect of conduct covered by the Act. That exercise must necessarily be abandoned, at least in part, if a broad prohibition in the terms of s 9 is adopted. These practical difficulties may be least apparent in relation to racial discrimination, which is an area which invites few exceptions. The difficulties will multiply in relation to other grounds which may constitute undesirable discrimination based on prejudice and stereotyping in some contexts but may constitute a legitimate consideration in others.

4.28 Thirdly, as a practical matter, there appear to have been few cases in which s 9 of the RDA has been relied upon to the exclusion of identified areas of operation. Even in Koowarta the majority of the Court appeared to have relied upon s 12 as being a sufficient basis for the claim. Further, the educational value of defining the areas of operation and the fact that defined areas have been in the ADA for some 20 years suggests that it would be quite inappropriate to remove them at this stage. To retain defined areas and provide a general prohibition would reduce the significance of the general prohibition. It might even have the undesirable effect of distracting attention from the appropriate scope of the defined areas because it would be treated as a safety net.

4.29 For all these reasons, the Commission is satisfied that the introduction of a general prohibition would not be appropriate. The ground with respect to which such a general prohibition would most readily be justified is race: however, the RDA provides for such a prohibition in relation to that ground and no particular departure from the scheme of the ADA is necessary to provide such legal protection to the residual areas to which s 9 of the RDA provides sole protection. In relation to other grounds, the conceptual and practical difficulties are significant. By contrast, the Commission believes the appropriate means of ensuring adequate coverage of the ADA is to address the defined areas of operation and, where they appear to be unduly limited, to amend them accordingly.

IDENTIFIED AREAS OF OPERATION

4.30 Within the public arena, there is (as concluded above) value in identifying particular areas of operation, even if in the broadest terms. Members of the community, including potential transgressors and potential victims, are entitled to a level of precision in the definition of the areas covered by their legal rights and obligations.

4.31 The areas currently covered under the ADA are:

• work;
• provision of goods and services;
• education;
• access to places and vehicles;
• accommodation; and
• registered clubs.

WORK

4.33 Work is probably the most important area of operation under the ADA. It is important not only because it has a direct effect on an individual’s lifestyle and social status, but also because it has consistently constituted the largest area of complaints received by the ADB.²²

Coverage under the ADA

4.34 The ADA prohibits discrimination in work on all prohibited grounds. The type of work covered under the Act is detailed in the following table:

Areas of work currently covered under the ADA

	Race	Sex	Marital Status	Disability	Homosexuality	Age
applicants & employees	s 8	s 25	s 40	s 49D	s 49H	s49ZYB
commission agents	s 9	s 26	s 41	s 49E	s 49ZI	s 49ZYC
contract workers	s 10	s 27	s 42	s 49F	s 49J	s 49ZYD
partnerships	s 10A	s 27A	s 42A	s 49G	s 49ZK	s 49ZYE
local government councillors	s 10B	s 27B	s 42B	s 49H	s 49ZKA
industrial organisations	s 11	s 28	s 43	s 49I	s 49ZL	s 49ZYF
qualifying bodies	s 12	s 29	s 44	s 49J	s 49ZM	s 49ZYG
employment agencies	s 13	s 30	s 45	s 49K	s 49ZN	s 49ZYH

 
Coverage in other jurisdictions

4.35 Other Australian jurisdictions cover most types of work covered in New South Wales. The RDA provides a general prohibition in s 9 as well as specific prohibitions in respect of particular areas of operation. In relation to employment, the RDA only covers applicants and employees, contract workers and employment agencies.²³ However, the RDA’s general prohibition is meant to have an extremely wide coverage as it prohibits “any act involving a distinction, ... in the political, economic, social, cultural or any other field of public life” and consequently has the potential to cover a much wider area within the public sphere. Victoria is the only State (apart from New South Wales) that covers municipal councillors. New South Wales is the only State that intends to cover junior employees on the ground of age.²⁴ However, they are currently excepted from the age discrimination provisions as is the case in most other jurisdictions around Australia.²⁵

The definition of “employment”

4.36 The common law meaning of “employment” has been modified in the ADA in the following ways:

• Section 4(1) defines employment to include work under a contract for services. Thus, the ADA covers employment under a contract of employment and independent contractors.
• Section 4B interprets references to the employer of people in the Public Service, Police Service or Education Teaching Service to mean Department Head, Commissioner of Police and Director General of the Department of School Education, respectively.²⁶
• The employment provisions relating to discrimination on the grounds of sex, marital status, disability and homosexuality provide that for the purpose of determining the number of persons employed by an employer, a corporation shall be regarded as the employer of the employees of other corporations which are related corporations within the meaning of the Companies Code (NSW).
• Part 4E of the ADA (which prohibits compulsory retirement) contains a specific definition of “employed in the public sector”. Under this Part, the definition of “employee” includes a commission agent and a contract worker but not partners. Also, the definition makes no reference to the inclusion of a contract for services as does s 4(1) of the Act.

4.37 The ADA covers part-time, full-time and casual employment as the common law definition of employment includes these forms of work. Some jurisdictions have, however, specifically defined employment to include these forms of work.²⁷ Apart from work relationships in the common law sense, the ADA covers other work relationships, including commission agents, partnerships etc, as listed above in the table.

Coverage of volunteers and unpaid workers

4.38 The ADA has recently been amended to prohibit sexual harassment of volunteers and unpaid trainees by including them within the definition of a “workplace participant”.²⁸ However, they are not covered for the purposes of the prohibition against discrimination in the absence of a contract of employment, the “consideration” for which usually takes the form of wages or salary in return for the work performed.

4.39 The Implementation Committee of the Report on Gender Bias and the Law²⁹ cited the example of law students who routinely do placements as part of their undergraduate courses or work as volunteers in law firms, government and community agencies, as persons who currently have no redress if discriminated against.

4.40 In Queensland, the definition of “work” includes student work experience, vocational industry placement, voluntary or unpaid work, paid or unpaid work by a person with an impairment in a sheltered workshop and work under a guidance, apprenticeship or occupational training or retraining program.³⁰ The Northern Territory covers work in a sheltered workshop and vocational training programs. South Australia and the ACT cover unpaid work.³¹ Tasmania (in relation to sex discrimination) covers employment or occupation in any capacity, with or without remuneration.³² Only Victoria specifically excludes unpaid and voluntary work.³³

4.41 From the point of view of the student, trainee or volunteer, there are significant benefits of an educational or work experience kind. Future employers may look for such experience. Accordingly, it is at least arguable that such circumstances fall within the area of the provision of services.³⁴ It is unfortunate that the trainee or volunteer is not expressly covered, but must rely on the definition of “services”, which, though not limited to services provided for payment, is an ill-defined concept whose application may depend on the precise circumstances of the case.

4.42 From the point of view of the employer, while there may be no requirement that the trainee or volunteer undertake work, there may be direct or indirect benefits flowing to the employer. However, it should not be necessary for the trainee or volunteer to prove such benefits to obtain the protection of the ADA, nor indeed will the provision of such benefits by the trainee or volunteer necessarily attract the protection of the Act. The protection should be available because the circumstances of the trainee or volunteer require the protection of human rights in relation to conduct in the public sphere.

4.43 In their responses to DP 30, the submissions of the ADB and the Disability Council of NSW both argued that the ADA should be amended to cover volunteer workers and people working in sheltered workshops.³⁵

4.44 The Commission recommends that these forms of workplace relationships should be expressly covered by the ADA as an aspect of work within the definition of work.

Recommendation 9

Include work done by volunteers, trainees or unpaid workers within the definition of work.

Draft Anti-Discrimination Bill 1999: cl 26

Coverage of members of Parliament including Ministers

4.45 Until recently, Ministers and members of Parliament were not liable for any breach of the ADA in relation to their staff because they are not legally the employer. However, the Anti-Discrimination Amendment Act 1997 (NSW) made Ministers and members of Parliament liable for sexual harassment, by the member or Minister, of workplace participants or other members of Parliament. The Bill originally imposed liability for any form of unlawful discrimination on Ministers and members of Parliament, but this provision was removed by amendment in the Legislative Council.³⁶

4.46 While the new amendments cover Ministers and members of Parliament for sexual harassment, they cannot be held vicariously liable for the sexual harassment of one staff member by another staff member because they are not the employer. The employer is the Speaker of the House and, ultimately, the Crown.

4.47 The problem, identified in relation to the 1996 complaints of sexual harassment against the Minister for Police and Emergency Services Terry Griffiths, was that the Minister responsible for the conduct was, legally, an independent third party. He was neither the employer, nor a co-employee of his own staff. In practice, however, the Minister is often personally responsible for employment and dismissal decisions, and may be responsible in part for the nature of the working environment and hence the terms and conditions of employment.

4.48 Accordingly, two questions arise. First, should the employer of Ministerial staff (the Speaker or the Crown) be responsible for the conduct of the Minister? Secondly, should the Minister be responsible?

4.49 In principle, there is no reason to exclude Ministerial staff from the protection of the ADA. Consistently with this principle, the law should accommodate the facts of that particular workplace and impose legal liability on the employer for discriminatory conduct directed at such staff. While the Minister may not be an agent or employee of the Crown, the circumstances of public administration which lead to this special arrangement do not justify leaving the staff without legal protection available to other employees. Accordingly, the Crown should be deemed to be responsible for the acts of Ministers in such circumstances.

4.50 The liability of the Minister or member of Parliament personally is less clear. In a company employment case, the liability of the individual officer responsible for a particular decision will not in practical terms be important, if the company is vicariously liable to make good any loss caused and the company is solvent. A similar result will be achieved in practical terms by making the Crown liable for unlawful discriminatory conduct against Ministerial staff. Further, where a government officer or a Minister is sued for things done in an official capacity, the Government will generally support the defence of the case financially. Thus the liability of the Minister or member of Parliament will generally be of symbolic significance.³⁷

4.51 That is not to say that the symbolic significance is unimportant: it would be unfortunate if those who make the laws were seen to be exempt from their operation in circumstances where private citizens would otherwise be liable.

4.52 In principle, there does not appear to be any justification for exempting Ministers and members of Parliament from appropriate liability: the exigencies of office do not exempt them from the application of other general laws imposing civil or criminal liability for misconduct. In so far as they have control or exercise power in the workplace, and thereby cause or permit discriminatory conditions of employment to arise, liability would be attracted by the provisions of the ADA.³⁸ This principle was adopted in relation to sexual harassment.³⁹ In principle, it is the correct approach.

Recommendation 10

Provide that the Crown should be liable for conduct of members of Parliament and Ministers involving discrimination under the ADA.

Draft Anti-Discrimination Bill 1999: cl 6

4.53 The three aspects of employment covered by the ADA are:

• recruitment;
• conditions and benefits of employment (including internal appointment and promotion); and
• termination of employment.

Recruitment

4.55 It is unlawful for an employer to discriminate on any of the prohibited grounds against an applicant in relation to:

(a) the arrangements the employer makes for the purpose of determining who should be offered employment;

(b) in determining who should be offered employment; or

(c) in the terms on which the employment is offered.⁴²

4.57 However, an exception to these provisions applies in relation to the ground of sex, where a woman is pregnant at the time of applying for a position or at the time of the interview (unless she could not reasonably have been expected to know of her pregnancy at that time).⁴³ No similar exception exists under the SDA and it has been suggested by a number of submissions to the Commission that this provision is too broad and should be repealed.⁴⁴ This issue is dealt with in Chapter Five, where the Commission recommends that pregnancy should form a separate ground under the ADA and be subject to a requirement of reasonable accommodation, with a corresponding defence of undue hardship.⁴⁵

4.58 The prohibition of discrimination on all the prohibited grounds against applicants for employment also applies to the engaging of commission agents and choice of partners in partnerships consisting of more than six partners.⁴⁶ Prospective employees are protected from discrimination by industrial organisations in that such organisations are also prohibited from refusing or failing to accept for membership and from discriminating in the terms on which they are prepared to admit the person to membership. Similarly qualifying bodies are prohibited from refusing or failing to confer, renew or extend an authorisation or qualification or in the terms on which it is prepared to confer such authorisation to facilitate the practice of a profession, trade or occupation. Employment agencies are also prohibited from discriminating by refusing to provide their services and in the terms or manner in which they provide their services.

Conditions of employment

4.59 Once employed, the ADA prohibits discrimination on all grounds in relation to the following:⁴⁷

• the terms or conditions of employment which the employer affords the employee;
• by denying the employee access, or limiting the employee’s access to opportunities for:
  
  (a) promotion,

  (b) transfer, or

  (c) training,

• by denying the employee access, or limiting the employee’s access to opportunities for any other benefits associated with employment; and
• by subjecting the employee to any other detriment.

4.61 Terms or conditions of employment are not limited to those included in an award or contract of employment. It has been held that they include all substantial demands and requirements, benefits and concessions relating to the employment with which the employee must comply or which the employee accepts during the course of that employment.⁴⁸ Superannuation is an important condition of employment provided to many employees. However it is subject to various exceptions which are discussed in Chapter Six. Terms and conditions can also include physical facilities such as equipment and offices as well as accessibility of toilets etc.

4.62 It is apparent that the approach adopted under the ADA has been accepted across the country: with the exception of the recommendation that coverage be extended to volunteers and unpaid workers, the Commission recommends that no substantial change is required to the Act in this particular matter. There are, however, some changes in drafting which are desirable to clarify the operation of the law. For example, it will be necessary to ensure that the definition of “employer” is appropriate to accommodate the protection given to volunteers and unpaid workers.

Termination of employment

4.63 The ADA renders it unlawful for an employer to discriminate against an employee or independent contractor by dismissing the person on any of the prohibited grounds of discrimination. This area also covers the imposition of “any other detriment”. Similar provisions exist in relation to the related areas already identified.

4.64 In relation to “termination”, a question arises as to whether it covers the failure to renew a fixed term contract. The question has not often arisen in practice, presumably because a failure to renew, involving a discriminatory ground, will often fall within the area of appointment. However, the inclusion of the prohibition on compulsory retirement and the further ground of age discrimination, require this issue to be addressed. As the question arises only in relation to that specific ground, and concerns the operation of that ground, it is addressed in Chapters Five and Six below.⁴⁹

4.65 The concept of “any other detriment” has been broadly interpreted, consistently with the breadth of the related concept, namely the provision of a “benefit”. In the United Kingdom a “detriment” has been identified as any aspect of employment practices which could reasonably be viewed by the person affected as being detrimental to his or her interests. Thus the exclusion of women from particular “dirty work” was accepted as capable of constituting a detriment, because the women were precluded from obtaining the higher rates of pay for that work.⁵⁰ As one member of the Court noted, this practice could probably have been viewed as a “detriment” by both men and women.⁵¹ Such a conclusion would not be anomalous, but merely reflected the dangers in attempting to divide work on the ground of gender.

Inter-relationship with State Industrial Relations legislation

4.66 While industrial law is not concerned with pre-employment issues, it is an area that closely overlaps with discrimination law in respect of the employment relationship. The inter-relationship with Commonwealth industrial relations laws has been dealt with in Chapter Two.

4.67 In New South Wales, the Industrial Relations Act 1996 (NSW) (“IRA”) has incorporated principles of anti-discrimination, reiterating the need to protect workers from discrimination.⁵² It “includes a range of measures designed to eliminate discrimination and promote equal opportunity at the workplace”,⁵³ by incorporating anti-discrimination principles as an object of the legislation, so as specifically to address anti-discrimination and pay equity.⁵⁴ It defines an “industrial matter” with reference to discrimination in employment on a ground to which the ADA applies⁵⁵ and by means of other specific provisions.

4.68 In relation to dismissal or threatened dismissal, no specific grounds of discrimination are listed. However the test of whether the dismissal was “harsh, unreasonable or unjust” may cover dismissal for a discriminatory reason.

4.69 The IRA places specific responsibilities on the Industrial Relations Commission (“IRC”) to ensure that it takes its objects and the public interest into account in the exercise of its functions.⁵⁶ The IRC must also take into account the principles in the ADA.⁵⁷ The IRC must ensure that every award it makes provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.⁵⁸ An award may be varied at any time to remove unlawful discrimination on the application of a party to the instrument or the President of the ADB with leave of the IRC.⁵⁹ The IRC is required to undertake a three yearly review of awards and in so doing must take account of various factors including any issue of discrimination under the awards.⁶⁰ This will provide a mechanism to remove entrenched industrial traditions of a discriminatory nature.

4.70 Under the IRA, enterprise agreements have no effect unless they are approved by the IRC. In giving approval the IRC must take account of the objects of the IRA.⁶¹ Such approvals can only be granted if the agreement complies with all statutory requirements, including the ADA.⁶²

4.71 As is the case with awards, an enterprise agreement can also be varied if it is unlawfully discriminatory. In order to establish an effective regime for the approval of enterprise agreements, an industrial organisation, a State peak council or the President of the ADB may appear or be represented in the approval proceedings. The regulations will provide that State peak councils and the President of the ADB would be notified of negotiations, thereby allowing an opportunity to be heard if there is a matter of significance emerging from the application. However, to date there have not been any regulations enacted.

4.72 Procedurally, an important provision from an anti-discrimination perspective is that the President of the ADB may intervene in any proceedings of the Commission and make submissions where the President determines that the proceedings concern unlawful discrimination under the ADA.⁶³ The President may also appeal from a decision of the Commission constituted by a single member to a full bench.

4.73 Changes have also been made to provisions relating to parental leave, which is now available to employees as of right.

4.74 In addition to the reforms in the industrial jurisdiction, the ADA no longer exempts industrial awards from its operation, allowing the Equal Opportunity Division of the Administrative Decisions Tribunal (“EO Division”) (formerly the Equal Opportunity Tribunal (“EOT”)) to scrutinise awards for discriminatory provisions.⁶⁴

4.75 Unions, which were previously denied an active role in the anti-discrimination jurisdiction, are now permitted to bring a claim on behalf of a member (because it is a representative body that has genuine concern about the conduct complained of).⁶⁵

4.76 Recognition of anti-discrimination principles in the industrial jurisdiction and in particular the new role given to the President of the ADB, provides a potentially powerful mechanism for elimination of direct and indirect discrimination in awards and enterprise agreements. It also provides an avenue for addressing industrial matters which have discriminatory implications. This power of intervention should allow systemic discrimination to be tackled at the source, and may address the reactive, piecemeal approach for which the ADA has occasionally been criticised.

4.77 The unfair dismissal provisions of the IRA apply to State public sector employees⁶⁶ and other employees except:

• an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $66,200;⁶⁷
• trainees or apprentices;
• employees engaged as casuals for a short period except those who are engaged on a regular basis for a sequence of periods during a period of at least six months and who would have a reasonable expectation of continuing employment;⁶⁸
• employees engaged under a contract of employment for a specified period of time if the time is less than six months;
• employees engaged under a contract for a specific task; or
• employees serving a period of probation or qualifying period, determined in advance, if the maximum duration is three months or less. If a greater period of probation is provided then the exemption applies for that period if the longer period is reasonable given the circumstances.

4.79 To prevent “double dipping” and “forum shopping”, the IRA provides that the IRC is precluded from determining an application in relation to unfair dismissal if the applicant is entitled to obtain redress under another Act or statutory instrument and the applicant has commenced proceedings under that Act or instrument, or has not given an undertaking not to do so.⁷¹ The decision in Johnston v Department of Mineral Resources⁷² dealt with the operation and potential interaction between the prohibition on forum shopping and the general obligations under the IRA. The IRC concluded that s 90 precluded it from determining the claims because of the proceedings before the EOT which provided “for redress in relation to the dismissal”.

4.80 The ADA does not specifically prohibit a person who has been compensated under the IRA from lodging a complaint with the ADB, and the ADB is not prohibited from accepting a complaint of discrimination after the matter is heard in the IRC.⁷³ However, the EO Division must give leave for an employee to commence proceedings on an issue that is the subject of proceedings before the IRC or the Industrial Court,⁷⁴ although this would appear to apply only to concurrent and not to subsequent proceedings before the EO Division of the ADT. It may be argued that the President of the ADB may take into account the fact that the complaint has been dealt with by the IRC in deciding whether to decline a complaint,⁷⁵ as may the EO Division in considering whether to dismiss a complaint.⁷⁶

4.81 The remedies available in the two jurisdictions are not identical. The IRC can make orders for reinstatement, re-employment, remuneration or compensation in relation to applications for unfair dismissal. Where a complaint of discrimination in employment has been established before the EO Division, it can order the payment of damages, including damages for non-economic loss,⁷⁷ performance of any reasonable act to redress any loss or damage or enjoin the respondent from continuing or repeating behaviour which is unlawful under the ADA.⁷⁸ Although the EO Division has (as the did the former EOT) the power to order reinstatement in employment related matters, in practice, it has declined to make such orders.⁷⁹

4.82 Some submissions have argued that the industrial jurisdiction alone should deal with all such employment related discrimination, but most submissions on this issue argued that both the industrial and human rights jurisdictions should be involved.⁸⁰ None supported either the merger or transfer of jurisdictions. Indeed one of the notable advantages of preserving a dual regime is that the ADB and the EO Division provide a forum for the investigation and resolution of complaints about discrimination in the workplace which may not have been recognised or challenged in the IRC.⁸¹ Given the reforms in the New South Wales industrial relations system which aim to remove anomalies, facilitate better coordination between the two jurisdictions and ensure more comprehensive protection against discrimination in employment, the Commission does not consider that there is a need to provide a single forum for resolution of employment issues. Indeed, an attempt to excise part of the area from the ADA would almost inevitably promote confusion and avid jurisdictional disputes.

4.83 Any duplication can be resolved in other ways. The strategy adopted in South Australia is that workers who elect to pursue redress in one jurisdiction forgo whatever right they may have to process their complaint through the other jurisdiction.⁸² Such a requirement may seem easier to impose if the redress available is identical in both jurisdictions. The view preferred by the Commission is that where the rights to take action and the redress available are not identical, as is the case currently in New South Wales, complainants could be allowed to take advantage of the remedies available under both jurisdictions, so long as the relief obtained is not the same in each jurisdiction, and the granting of different relief does not cause undue prejudice to the respondent.⁸³ The Commission considers that the present s 95A is appropriate, but should provide expressly that it be a condition of granting leave under that section that any relief received previously is not duplicated and that granting the relief sought under the ADA would not cause undue prejudice to the respondent.

4.84 Apart from the strategies introduced by the recent reforms, which are yet to be tested, and those suggested below, other means of improving cooperation and coordination between the two jurisdictions may include introducing administrative initiatives which can be implemented by personnel in both jurisdictions, better community education⁸⁴ and the establishment of a specialist legal centre to provide potential claimants with appropriate advice and assistance.⁸⁵

Recommendation 11

In relation to the terms of the present s 95A, provide expressly that it should be a condition of granting leave under that section that any relief received previously is not duplicated and that granting the relief sought under the ADA would not cause undue prejudice to the respondent.

4.85 It is now necessary to turn to the exceptions in relation to the area of work in order to consider whether they appropriately reflect the division between public and private areas of activity discussed in the first part of this chapter. One factor which needs to be noted is that the present exceptions are not uniform in relation to the various grounds. The different considerations applicable in relation to different grounds will be considered, as appropriate, below and in Chapter Six. The relevant exceptions are as follows:

• employment in a private household on all grounds;
• where there are five or fewer employees, on grounds of sex, marital status, disability, transgender and homosexuality;
• in partnerships of fewer than six persons on all grounds; and
• by a private educational authority, on grounds of sex, marital status, disability, homosexuality and transgender.

Employment in a private household

4.86 This exception was included in the ADA when it was first enacted and applies to discrimination on all the prohibited grounds.⁸⁶ A similar exception applies in most other jurisdictions.⁸⁷ Some jurisdictions make specific provision for excepting discrimination in employment relating to child care duties in the child’s residence,⁸⁸ although this does not appear to extend the operation of the exception.

4.87 The effect of the exception in New South Wales is that, for example, it is not against the law for a member of a household to refuse to employ a male nanny or a homosexual person as a housekeeper because such employment is for the purposes of a private household.

4.88 Although no specific mention was made of the rationale for this exception when it was originally introduced, there appear to be public policy reasons for allowing a householder to employ whomever he or she wishes on the basis that discrimination law should not limit such personal choices. Thus, the ability to decide who may enter one’s home is seen as a justifiable reason for the exception.

4.89 It may be argued that employment within a home does not constitute so significant an area of employment as to intrude significantly upon opportunities for employment generally. This is not, of course, an absolute consideration, but is a matter which can legitimately be weighed in the balance. Subject to the comments which appear below, the Commission is satisfied that the present exception is justifiable.⁸⁹

4.90 The ADB has pointed out that it is difficult to determine the exact meaning of “purposes of a private household” and whether this exception also covers the recruitment practices of an agency which provides cleaners, gardeners, nannies etc for work in a private household. The ADB’s suggestion was to clarify the Act so that it only applies to situations where the people in the household are the employers. The Commission disagrees with this suggestion as there appears to be no reason why an employment agency should be liable for discrimination in circumstances where the agency is merely the agent of the employer who is allowed to discriminate in relation to employment for the purposes of a private household. In the Australian Capital Territory, employment agencies are specifically excepted from the employment provisions where, “had the proposed employer so discriminated against the person, that discrimination would not have been unlawful”.⁹⁰ This approach is correct in principle.

4.91 The principal concern in relation to the present exception is that it is expressed to apply to “employment for the purposes of a private household.” What is really in issue is not the purpose of the employment, but the place where the work is undertaken. That approach is more accurately reflected by the exception in the RDA which provides as follows:

Nothing in this section renders unlawful an act in relation to employment, or an application for employment, in a dwelling house or flat occupied by the person who did the act or a person on whose behalf the act was done or by a relative of either of those persons.⁹¹

4.93 There is a further question as to whether a person should be entitled to discriminate on a prohibited ground once a person has been employed. Currently the harassment of an employee, which includes the creation of a racially or sexually hostile working environment, is dealt with as a form of discrimination and is therefore subject to the ‘employment in a private household’ exception. Although there may be a justification for allowing people to discriminate in who they choose to allow into their homes, there is no similar rationale for allowing the employer to harass their employees once they have chosen to employ them. The Commission, therefore, recommends that the exception provided for discrimination in employment in a private household not apply in the case of unlawful harassment.

Recommendation 12

In relation to the exception for employment in a private household, re-define to refer to employment, or an application for employment, which requires work to be done in a dwelling occupied by the employer or by a relative of the employer.

Draft Anti-Discrimination Bill 1999: cl 27

Recommendation 13

Exclude sexual harassment from the exception for discrimination in employment in a private household.

Small business exception

4.94 This exception applies to discrimination in employment on the grounds of sex, marital status, disability, transgender and homosexuality, where the number of persons employed does not exceed five. It was included in the ADA when it was first enacted. The rationale for this exception as stated in the Second Reading Speech introducing the Act (in relation to sex) was as follows:

This provision is intended to relieve an employer with a small staff from incurring the expense of making extra facilities available for members of both sexes where such an imposition would be unreasonable.⁹²

4.96 According to a report compiled by BIS Shrapnel Pty Ltd for the New South Wales Small Business Development Corporation in 1992, just over 50% of small businesses in New South Wales employ fewer than five people and small business accounts for 46.3% of business employment in New South Wales.⁹⁴ The exception therefore excludes a significant number of employees from the Act’s protection. A large number of the submissions received by the Commission in response to DP 30 argued for the removal of the exception.⁹⁵

4.97 The most persuasive arguments in favour of the exception are based on privacy and economics. The privacy argument in this case is based on the view that relationships within small businesses are more personal and closer to family or household concerns than is the case in larger businesses. Accordingly, the freedom of choice in personal matters should be extended, even though it is here concerned with workplace relationships. The argument is entitled to consideration, although clearly the weight which should be given to this consideration is less than in the case of employment in the home.

4.98 The economic considerations are less readily defined. Although the Second Reading Speech noted above referred to the possible need for “extra facilities” (presumably referring to male and female toilets primarily) that argument would not have general application. If this assumption in relation to gender is correct, it would not apply to other grounds. Further, and unlike general concerns about the costs of regulation in respect of small businesses, the application of the ADA need not involve any administrative costs. There is no requirement to pay any impost, make returns to any regulatory authority nor to engage in any additional internal book-keeping. The present grounds do not involve any intrusion of union or other third party activities into the workplace. These matters should involve no more serious costs than the need to ensure that employees themselves comply with the general law of the State and Commonwealth.

4.99 Taking into consideration the significance of small businesses in terms of employment opportunities generally, the absence of significant economic consequences of the application of the law and the relatively limited intrusion on personal relationships, the Commission is not satisfied that the exception should be retained.

4.100 It is fortified in this view by the fact that in the areas covered by the RDA, the SDA and the DDA, there is no such exception. In these areas, the exceptions contained in the current ADA will not be effective, as employers will be subject to the Commonwealth laws.

Recommendation 14

Repeal the small business exception.

Partnerships of fewer than six persons

4.101 This exception now applies to all grounds of discrimination. It was first introduced in 1981 when the ADA was extended to cover partnerships consisting of six or more partners. A similar exception applies in Queensland, Victoria and Western Australia.⁹⁶

4.102 The rationale for this exception is akin to the small business exception. It may be argued that a partnership relationship is a more personal relationship than one of employer and employee and therefore gives rise to a stronger privacy argument. On the other hand, a partnership of five persons is likely to be larger than a small business with five employees and, therefore, relationships generally are likely to be more formal and professional than personal. Further, anomalies are likely to arise if a partnership of five persons is not entitled to discriminate in its choice of employees, but may discriminate in relation to its own membership. It is commonly the case that professional employees will have legitimate expectations of partnership opportunities if they are successful. If, however, a partnership of four men were entitled to refuse to consider a woman for partnership, it might well mean that women employed by the firm would have less scope for promotion and progression than would men.

4.103 The Commission is not persuaded that the circumstances of small partnerships are substantially different from those of small businesses generally. For the reasons stated above in relation to the small business exception, the Commission believes that this exception should be repealed, thus extending the operation of the ADA to all partnerships irrespective of their size.

Recommendation 15

Repeal the exception applicable to partnerships of fewer than six persons.

Employment by a private educational authority

4.104 When the ADA commenced, it covered private educational authorities. However, expressions of concern from private schools and mainstream churches resulted in an exception being introduced in 1981⁹⁷ in relation to sex and marital status, and to the other grounds as they were added. The exception now applies to the grounds of sex, marital status, disability, homosexuality and transgender status.

4.105 The rationale for the exception appears to be reluctance to interfere with the private sphere, although many of the institutions affected receive Government funding and are required to comply with various other Acts. In New South Wales, the exception does not apply in relation to the grounds of race or age, presumably on the basis that there are no moral or religious reasons to justify it. The Commission can also see no justification for the exception in relation to disability.

4.106 By definition and application, this exception is extremely broad. Private educational authorities include all non-government educational institutions, some of which are religious and others of which have no religious affiliation. The exception also applies to business colleges and other private post-secondary institutions, unless they are established under an Act of incorporation. In 1996, there were 867 non-government educational institutions in New South Wales employing 19,892 teaching staff.⁹⁸ In addition, the exception applies not only to teaching staff but also to support and administrative staff.

4.107 The SDA and Queensland, South Australia (only on the ground of sexuality), Tasmania (only on the ground of sex), Victoria and the Australian Capital Territory legislation provide a limited exception in relation to educational institutions established for religious purposes.⁹⁹ The exception in the SDA applies only if the person discriminates “in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”.

4.108 Overseas, Canadian federal and provincial discrimination legislation permit discrimination by religious schools only to the extent of a bona fide occupational qualification defence. In the United Kingdom, the Sex Discrimination Act¹⁰⁰ protects discrimination in relation to employment for the “purposes of an organised religion” where “employment is limited to one sex so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers”.

4.109 In evaluating this exception in New South Wales, there are essentially two issues for consideration. The first is whether there remains any justification for continuing this exception. Secondly, if there is, should its terms be modified?

4.110 These issues were considered at length in the Federal sphere in relation to s 38 of the SDA, both by the Sex Discrimination Commissioner in her Report on the Review of Exemptions¹⁰¹ and in the Lavarch Committee Report,¹⁰² albeit in a slightly narrower context in relation to educational institutions established for religious purposes. The Lavarch Committee concluded:

While the Committee accepts the right of religious schools to set standards of behaviour for teachers and staff, it cannot accept that there should be a double standard between men and women employed in such schools or that the rights of teachers between government and church schools should be significantly different.¹⁰³

4.112 In her 1992 Report, the Sex Discrimination Commissioner recommended that the exemption in s 38 be removed “to ensure protection against discrimination to all Australians including the large number of teachers employed in the non-government school system”. The Commissioner’s “less desirable but satisfactory” solution was to adopt the proposal that “any discrimination must be reasonable in addition to being in good faith”. This test is unattractive because of its vagueness.

4.113 It is useful to note the issues identified by the ADB in its research report Discrimination and Religious Conviction¹⁰⁴ which also assisted the Sex Discrimination Commissioner in her Report. The issues as summarised by the Sex Discrimination Commissioner were:

• separation of church and state;
• autonomy of religious institutions;
• role of religious school in faith community (including parents and parish priest);
• church doctrine on marriage and family;
• role of teacher as exemplar;
• public knowledge of individual’s lifestyle; and
• congruence of private practice and public expectation.¹⁰⁵

• discrimination breaches fundamental rights;
• a teacher’s private life is not a work related matter;
• loss of employment is a non-job related issue;
• disciplinary action not caused by poor job performance;
• pressure for dismissal primarily from parents and parish; and
• disruption of students’ education for non-school related reasons.¹⁰⁶

4.116 In contrast to such submissions, a number of religious organisations expressed concerns that the removal of the exception may lead to an erosion of the constitutional right to freedom of religion.¹¹⁰ The submission of the Seventh Day Adventist Church specifically stated that the Church does:

not consider that the genuine occupational qualification exception is sufficient protection for private schools and neither is section 56 adequate for preserving the special character of church schools for which they have been established.¹¹¹

4.118 The arguments in relation to this particular exception may usefully be considered separately in relation to religious educational institutions and others. Dealing first with non-religious institutions, it is necessary to set aside concerns relating to religious doctrine and the sensitivities of persons who adhere to a particular faith. Adopting that course, there is an absence of persuasive argument in favour of maintaining the exception. Indeed, there is some force to the proposition that the law would be inconsistent if it permitted those who educate children to be exempt from application of important principles relevant to human rights in their employment practices whilst hopefully inculcating appropriate and accepted non-discriminatory values in their pupils. Further, it cannot be said that private educational institutions are in some exceptional position because their funding comes from parents. Some level of parental funding is also to be found in government schools and significant levels of government assistance are available to most private schools. Accordingly, the Commission is satisfied that the exception in relation to non-religious educational institutions is unjustifiable.

4.119 The question of employment in religious educational institutions involves different considerations to the extent that the imposition of discrimination laws may intrude upon or impair freedom of religious belief and the exercise of such beliefs. On one view, a religious school providing education in the secular world and receiving any funding and tax benefits from the Government should be subject to secular regulation proportionate to the degree of secularity of its activities.¹¹³ Many submissions to the SDA Review echoed this view. This raises the question of the degree of connection between the school and the religion, and the degree to which the tenets and beliefs of the religion are integral to the general philosophy and operation of the school. For example, many such schools are not established for the propagation of a particular religion, but operate by the tenets of the religion and are linked to the parent religious body via articles of association, governing bodies and property holdings.

4.120 The underlying doctrines and tenets of various religions may have a discriminatory effect in some circumstances. For instance, some Christian schools refuse to employ homosexual persons as such a lifestyle is considered contrary to the tenets of the Christian religion. In the United Kingdom, the Sex Discrimination Act 1975¹¹⁴ protects discrimination in relation to employment for “the purposes of an organised religion” where employment is limited to one sex so as to comply with the doctrines of the religion”. Depending on the interpretation given to “purposes” of an organised religion, employment in a school for Moslem girls may be limited to women.¹¹⁵

4.121 Three further distinctions need to be made. First, the treatment of employment in seminaries or institutions whose dominant or primary purpose is the inculcation of religious beliefs or preparation for a religious career may need to be dealt with separately from general educational institutions which have a religious foundation or philosophy. Secondly, it is necessary to determine how widely any exception should apply. In relation to each category of institution, if the exemption is legitimate in respect of teaching staff, is it also legitimate or justifiable in respect of administrative or other staff, including secretaries and gardeners? Thirdly, there is a question as to the precise nature of the exception: should it extend to employment practices where compliance with the ADA would contravene the doctrines, tenets, beliefs or teachings of a particular religion or creed or should it extend to practices which, if carried out in compliance with the Act, would cause injury to the “religious susceptibilities” of adherents to that religion or creed? These three issues are dealt with in turn.

Nature of institution

4.122 The question of religious institutions, such as seminaries, is dealt with separately, in Chapter Six.¹¹⁶ The concern here is limited to general private educational institutions, being institutions other than those which have a dominant or primary purpose of providing religious education.

Nature of employment

4.123 Although a school may have general educational purposes, some teachers may be required for religious instruction. If a tenet of the religion requires that religious instruction be given by males, it is reasonable that the general provision prohibiting discrimination on the ground of sex should not apply. Whether or not such a tenet would operate in relation to the teaching of secular subjects may not give rise to any clear answer and may depend upon whether one looks merely to the tenets of the religion or looks also to the susceptibilities of its adherents who may wish their children to be taught at a school which is generally run in accordance with religious principles. Thus, for example, a religion which is opposed to homosexuality as a lifestyle may deem it inappropriate to have teachers, even in relation to secular subjects, who are homosexual, on the basis that they wield influence over students and are often seen as role models. Of course, whether the sexual preference is known or likely to be known may be a relevant consideration.

4.124 In relation to non-teaching staff, the significance of influence is likely to be greatly reduced. In such cases, the issue may depend upon the level of contact between employee and student or between employee and teaching staff, to the extent that that is relevant.

Formulation of exception

4.125 In the next chapter, the Commission recommends that the ADA provide protection from discrimination on the ground of religious belief.¹¹⁷ As a result, conflicts may arise in the operation of the prohibition with respect to employment on other grounds and the doctrines of a particular religion. The SDA presently provides a limited exception for educational institutions where: the institution is conducted in accordance with the “doctrines, tenets, beliefs or teachings of a particular religion or creed”; and the discrimination is “in good faith to avoid injury to the religious susceptibilities of adherents of the religion or creed”.¹¹⁸

4.126 While a direct conflict must be appropriately resolved by an exception, there is greater difficulty in expanding the exception in order to “avoid injury to the religious susceptibilities of adherents of the religion or creed”. First, the reference to “religious susceptibilities” is so imprecise as to be unhelpful in discrimination law. Secondly, it is not clear what the extension is intended to achieve: if the employment of a woman in a particular position does not contravene the doctrines of the religion or creed, it is not clear in what way it could legitimately affect “religious susceptibilities” of followers of those doctrines. In the Commission’s view, the exception should be limited to those practices which can fairly be described as resulting in conflict between the ADA and doctrines of a religion. Accordingly, the exception should be limited to the first limb of the terminology noted above.

4.127 There is, however, a further question as to how any appropriate exception should apply. Within many religions there is disagreement as to the relevance of particular factors. In some cases, religious beliefs appear to undergo liberalisation and may result in increased tolerance, reflecting changing views of the society in which they operate. These developments are reflected in the debates in some Christian denominations as to the appropriateness of the ordination of women and as to the role of homosexual persons in the church and its ministry. There is a danger that the courts may get embroiled in these debates. This process can be undesirable and can lead to the appearance that the law is intruding inappropriately into religious disputes. Accordingly, it is desirable that the exception, where available, should apply if the EO Division is satisfied that the employer has acted in a bona fide belief that the doctrines of the religion are being complied with, so long as the belief, if not generally adhered to within the religion, or not supported by majority of the adherents of the creed, is nevertheless treated as a respectable view by members of that particular religious group.

4.128 There then arises a question as to how the exception should properly be framed. Because of the variety of circumstances to which it applies, the Commission considers it is most appropriately dealt with as a genuine occupational qualification defence. The exception should apply to the grounds of sex, marital status [proposed domestic status], homosexuality [proposed sexuality] and transgender status. It should also apply to the proposed ground of pregnancy. However, there appears no justification for such an exception applying to allow discrimination on the grounds of race and age, or on the proposed grounds of political opinion or carer responsibilities. In relation to the proposed ground of religion, as the Commission is recommending a “genuine occupational qualification” exception to apply to all employment situations¹¹⁹ a specific exception in relation to employment in religious schools is not necessary. Accordingly, the Commission recommends that the defence be formulated in keeping with the following principles.

Recommendation 16

For religious educational authorities, substitute for the current exception for employment in a private educational authority, an exception based on a genuine occupational qualification. The exception should provide that:

• it only applies to the grounds of sex, pregnancy, domestic status, sexuality and transgender status [Draft Anti-Discrimination Bill 1999: cl 28(5)(b)];
• the educational institution must be conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed [Draft Anti-Discrimination Bill 1999: cl 28(5)(c)];
• the employer must act on a bona fide belief that the discrimination was required in order to comply with the tenets of the particular religion or creed [Draft Anti-Discrimination Bill 1999: cl 28(6)]; and
• if the existence or operation of the tenet of the particular religion or creed is disputed by some adherents of that religion or creed, it is sufficient if the view is one which is treated as a reasonable view by the adherents of that religion or creed [Draft Anti-Discrimination Bill 1999: cl 18(2)].

4.129 Discrimination in the provision of goods and services is, and has been for a considerable time, the second largest area of inquiry and complaint in New South Wales.¹²⁰ This indicates that it is an area of considerable importance. However, some commentators have expressed scepticism about the effectiveness of the prohibition on the basis that arguments of economic rationalism have given rise to significant exceptions and have limited the application of the prohibition in this area. For example, one commentator concludes that:

While some institutional policy changes have been effected in respect of women’s financial dealings, this area [of goods and services] has not constituted a major locus of social change.¹²¹

• the definitions and terminology used in other jurisdictions; and
• judicial interpretation of the provision in New South Wales and elsewhere.

4.132 The theoretical problem only becomes a practical issue if different exceptions apply. For example, if there is an exception in relation to the conduct of Church schools, that exception should not be able to be avoided by bringing a complaint on the basis of failure to provide services. This difficulty can be overcome by ensuring that the exceptions, which have application to particular areas, are phrased so as to apply to the particular conduct, even if the conduct itself may be identified as falling within two or more areas.

Coverage under the ADA

4.133 Discrimination in the provision of goods and services was an area included in the ADA when it was originally enacted in 1977. Since then, it has been included as an area of discrimination in relation to all grounds progressively added. Until recently,¹²² the prohibition on the ground of race was couched in different terms to the prohibition on other grounds.¹²³ This anomaly has now been removed by amending s 19 to be consistent with the language of analogous provisions in respect of other types of discrimination. The prohibition applies to:

• the refusal to provide goods or services; and
• the terms on which the goods or services are provided,

4.134 The scope of the area depends largely on the interpretation of the terms “goods” and “services”. The ADA does not define the term “goods”. The term “services” is interpreted inclusively in s 4 which provides a list of the “most obvious situations”¹²⁴ in which services may be provided.¹²⁵ In 1997, this definition was amended for the first time, expanding it to include:

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.¹²⁶

4.136 An analysis of the types and grounds of goods and services complaints received in New South Wales shows that they have remained largely consistent over the past few years. In 1996, the majority of goods and services complaints were complaints of age discrimination,¹²⁸ followed by complaints of race discrimination.¹²⁹

4.137 In 1994/95 the ADB found that, of the complaints of race discrimination received, 29% were complaints against entertainment and recreation providers and 17% were complaints about the provision of services by public authorities. Complaints by lesbians and gay men in the goods and services area related predominantly to the provision of services by public authorities, insurance providers and trade and business operators.¹³⁰ Disability discrimination complaints tend to spread evenly across most categories of goods and services such as transport, the provision of goods, public authorities, public access and insurance.¹³¹ The largest number of complaints in relation to goods and services related to the provision of entertainment.¹³²

Coverage in other jurisdictions

United Kingdom

4.138 The ADA’s definition of services is largely based on the United Kingdom model. The relevant provisions in the Sex Discrimination Act 1975 (UK)¹³³ and the Race Relations Act 1976 (UK)¹³⁴ prohibit discrimination in “the provision (for payment or not) of goods, facilities, or services to the public or a section of the public” and provide a list described as “examples”.¹³⁵

Australia

4.139 All Australian jurisdictions prohibit discrimination in the provision of goods and services. However, the extent of coverage varies.

4.140 Section 13 of the RDA prohibits a person who supplies goods and services to the public or a section of the public from refusing or failing to supply those goods and services on demand or by supplying the goods and services on less favourable terms. The definition of “services” is less expansive than that in the ADA; it states that it includes “the provision of facilities by way of banking or insurance or of facilities for grants, loans, credit or finance”. There are separate provisions which specifically deal with access to places, vehicles and facilities¹³⁶ and services associated with the disposition of land, housing and business or residential accommodation.¹³⁷ Apart from these specific provisions, the general prohibition in s 9 gives effect to the CERD which specifically covers “the right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks”.¹³⁸

4.141 The SDA and DDA prohibit discrimination in the provision of goods, services and facilities.¹³⁹ The expression is similar to the ADA except that they also refer to the manner in which goods and services are provided and facilities made available. Like the RDA, services associated with the disposition of land are dealt with in separate sections,¹⁴⁰ as are services associated with administering Commonwealth laws and programs.¹⁴¹ The inclusive list defining “services” is almost identical to the list in the ADA with the addition under the SDA and DDA of “services provided by a government”.

4.142 In Victoria, in addition to referring to supply of, and the terms of supplying, goods and services, there is also a provision referring to “subjecting a person to any other detriment in connection with the prohibition of goods and services”.¹⁴² The definition of services is identical to New South Wales and includes the access to and use of any place that members of the public are permitted to enter.

4.143 In Queensland, the prohibition is a combination of the SDA and Victorian provisions. It covers failure to supply goods and services, the terms on which they are supplied, the way in which they are supplied and any unfavourable treatment connected with such supply.¹⁴³ The prohibition applies in relation to all grounds. Breastfeeding is identified as an attribute only in the area of goods and services.¹⁴⁴ As is the case under the SDA, there is a specific prohibition against discrimination in the administration of any State law and program which will extend the area of the provision of goods and services.¹⁴⁵ Insurance and superannuation are specifically excluded from the definition of services and are dealt with as separate areas under the ADA.¹⁴⁶ The ADA (Qld) does, however, include access to and use of any place, vehicle or facilities and the provision of scholarships, prizes or awards.

4.144 In South Australia, the prohibition covers goods, services and facilities¹⁴⁷ and is couched in quite different terms to the corresponding prohibition in New South Wales. Unlike other jurisdictions, where the definition of “services” is inclusive, the Equal Opportunity Act 1984 (SA) (“EOA (SA)”) provides an exclusive list thereby restricting the coverage to the services listed in the definition. Additional services mentioned in the definition are access to places, services provided by an employment agency, the provision of a scholarship, prize or award, services provided by an introduction agency, provision of coaching or umpiring in sport, and services provided by a Government department, instrumentality or agency.

4.145 Like the SDA, DDA and South Australia, in Western Australia the prohibition covers goods, services and facilities¹⁴⁸ and covers refusal to supply, terms of supply and manner of supply. In Western Australia it applies in relation to all prohibited grounds except family responsibility. The definition of services is very similar to the corresponding definition in New South Wales, but includes services provided by government and a government authority. Separate provisions exist prohibiting discrimination in relation to access to places and vehicles,¹⁴⁹ disposition of land¹⁵⁰ and sport in relation to impairment and age (with some limitations).¹⁵¹

4.146 The prohibition in the Australian Capital Territory applies to goods, services and facilities and is very similar to the above with a few variations.¹⁵² The definition of services includes government and the provision of scholarships, prizes and awards.

4.147 In the Northern Territory, the prohibition covers goods, services and facilities¹⁵³ and is in similar terms to the corresponding provision under the ADA (Qld). The definition of services is expressed in terms which are more extensive than most other jurisdictions. The additional services described are loans, credit guarantees, hire purchase schemes or any other type of financial accommodation, recreation, including entertainment, sports, tourism and the arts, services provided by a government or local government council, statutory corporation, and company or other body corporate controlled by government. Insurance and superannuation are specifically excluded from the definition of “services” and, like the ADA (Qld), are dealt with as a separate area of operation. Artificial fertilisation procedures are excluded from the definition of services and consequently from the coverage of the Northern Territory Act.¹⁵⁴

4.148 In Tasmania, the grounds covered are gender, marital status, pregnancy, parental status and family responsibilities.¹⁵⁵ The provision of facilities, goods and services is an identified area of activity¹⁵⁶ and the definition of services includes access to and use of any place and disposition of land.¹⁵⁷

4.149 It is evident from the above that, coverage in the area of “goods and services” is fairly consistent around Australia. However, although the definition of “services” under the ADA is stated to be inclusive, two major areas which are not specifically mentioned, and which do appear in the legislation of other States, are the areas of superannuation and sporting activities. Complaints in these areas are generally dealt with as “goods and services” complaints under the ADA.¹⁵⁸ In relation to sporting activities, the basic area under which these will fall in the future is that of clubs and associations. The Commission recommends that the area of superannuation be specifically included within the definition of “services” within the ADA.

4.150 As the definition of “services” under the ADA is stated to be inclusive, it is necessary to consider judicial interpretation of the term “services”, given its broad coverage.

The scope of the ADA

4.151 The definition of “services” appearing in the EOA (WA)¹⁵⁹ in terms similar to the current definition in the ADA was considered by the High Court in IW v City of Perth.¹⁶⁰ One question raised in that case was whether the City discriminated against the appellant, who had an impairment, namely being infected with HIV, in refusing to give planning approval for a drop-in centre for persons who were infected with HIV. This question involved the scope of the area identified as provision of services. The meaning of “services” was considered by Chief Justice Brennan and Justice McHugh in a joint judgment,¹⁶¹ by Justices Dawson and Gaudron in a joint judgment,¹⁶² by Justices Toohey,¹⁶³ Gummow¹⁶⁴ and Kirby.¹⁶⁵ A majority considered that the word was, in the terminology of Justices Dawson and Gaudron, “apt to include the administration and enforcement by the City of Perth of the Planning Scheme”. Their Honours continued:

That being so, the Tribunal was correct in holding that “in administering a town planning scheme ..., regulating the use of land ..., securing provision for traffic ..., and generally implementing or enforcing measures directed to the amenity of the area, ... the City of Perth [was] providing a service to residents.¹⁶⁶

4.153 In addition to this, it is also necessary to consider the basis upon which Chief Justice Brennan and Justice McHugh took a different view to the majority in relation to the definition of “services”. Whilst accepting that the term “services” had a wide meaning, in the ordinary sense of the word,¹⁶⁹ their Honours added:

As the evils of discrimination in our society have become better understood, legislatures have extended the scope of the original anti-discrimination statutes. Many persons think that anti-discrimination law still has a long way to go. In the meantime, courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope. But when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive or beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory.¹⁷⁰

Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act ... Such “legislative” acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community.

Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual.

There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions.¹⁷¹

Access to places

4.157 A further issue which arises in relation to the definition of “services” is that of whether access to places, vehicles and facilities is best dealt with as an aspect of the provision of services, or whether it should form a separate area. Currently the definition of “services” under the ADA includes access to places, vehicles and facilities.¹⁷⁴ This matter is discussed below, under the heading “Access to places, vehicles and facilities”.¹⁷⁵

Definition of “goods”

4.158 A notable feature in the anti-discrimination legislation considered above is the absence of a definition of the term “goods”. One definition of the term “goods” is found in the Sale of Goods Act 1923 (NSW) which provides that “goods” include:

all chattels personal other than things in action or money

A chose in action is a thing of which a person has not the present enjoyment, but merely a right to recover it (if withheld) by action. Thus, money at a bank or money due on a bond is a chose in action.¹⁷⁷

Provision of “benefits”

4.161 There is no mention of “benefits” within the goods and services provision. In contrast, the provisions dealing with registered clubs specifically include a reference to “access to benefits” as do the provisions relating to education.

4.162 In L v Registrar of Births Deaths and Marriages,¹⁷⁸ the benefits derived from the functions of a registrar in keeping a register and recording particulars¹⁷⁹ were linked to the services provided by the Registrar, even though it is obligatory to avail oneself of these benefits. In Woods v Wollongong City Council,¹⁸⁰ the EOT referred to a decision of the Victorian Board in Byham v Preston City Council¹⁸¹ which found that the Council had unlawfully discriminated against an elderly man, who required the assistance of elbow crutches, by imposing a requirement that he obtain access to the first floor of the Municipal offices via a staircase. The Victorian Board identified two services provided by the Council, namely the benefit of participating in local government and the means by which that benefit might be achieved, which supported the proposition that access involving the use of a staircase was a service. The EOT in Woods disagreed with the Victorian Board’s reasoning in that it included the provision of benefits of the complex as being within the ordinary meaning of the term “services”. It was therefore unnecessary to consider whether the means of access to the complex was a “service” within the meaning of the Act or not. In City of Perth v DL (Representing the Members of People Living with AIDS (WA) Inc),¹⁸² it was held that:

A person provides a service or services to another ... when the first person does something which provides to the second a benefit or a result which is of assistance to or desired by the second person, whether the benefit or assistance is provided directly or indirectly.

4.163 The question is whether the provision of services should be defined to include the provision of benefits, which may not be limited to some form of interest in real or personal property or money. In the view of the Commission, this is not necessary. The present inclusive definition of services includes the kind of benefits which may flow from providing, for example, entertainment or recreation. The fact that the definition is expressed to be inclusive should be sufficient to provide the necessary coverage. The term “benefits” is so vague as to be uninstructive in terms of identifying specific areas which may be covered and neither extends nor gives substance to the present definition. The Commission is not satisfied that the addition of this concept in this area is either necessary or desirable.

Recommendation 17

In the area of provision of goods and services, include the manner in which the goods and services are provided.

Draft Anti-Discrimination Bill 1999: cl 35(1)(c)

Recommendation 18

Include in “services” a specific reference to superannuation.

Draft Anti-Discrimination Bill 1999: cl 36(1)(c)

Recommendation 19

Include in the definition of “goods” a chose in action and money.

Draft Anti-Discrimination Bill 1999: cl 36(1)

4.164 Education as an area of operation is only concerned with discrimination by educational authorities against students or prospective students. Although it is not one of the main areas of complaint,¹⁸³ it is an important area in the context of the general social problem of discrimination. Education may significantly determine a person’s future opportunities in many respects and occupies a substantial portion of a normal life span. It can also be a means of changing attitudes and hence patterns of discrimination in society. As one writer has argued:

education is a powerful instrument of social control which serves to reproduce cultural norms and existing social inequalities. On the other hand, the liberal vision suggests that the hope for a better society, where prejudice against women and minorities has been eliminated, rests with education rather than prescriptive legislation.¹⁸⁴

Coverage under the ADA

4.166 The ADA prohibits discrimination on all grounds by a public educational authority against prospective students and current students. The four situations identified are:

• admission;
• access to benefits;
• expulsion; and
• subjection to any other detriment.

• by refusing or failing to accept the person’s application for admission as a student; or
• in the terms on which it is prepared to admit the person as a student.

4.169 The term “benefits” has wide coverage. The obvious benefits include access to library, computer or other facilities and tuition and counselling services. Discrimination can also occur in the curriculum offered, which is a benefit provided by the educational authority. The design of the curriculum, that is the courses which are offered, the content of those courses and the materials which are used to teach those courses are all significant areas covered by the ADA.

4.170 A benefit may also include other facilities, such as an environment conducive to study. In Metwally v University of Wollongong,¹⁸⁶ it was held that isolating a student by subjecting him to a racially hostile environment was discrimination on the ground of race. Similarly, creating a hostile environment to, for instance, homosexual students such that they are unable to enjoy available benefits on equal terms, may amount to discrimination on the ground of homosexuality, even though technically the benefits or facilities are available to all students.

4.171 Another aspect of discrimination in access to benefits arises where entry to courses is determined in a discriminatory way. Curriculum streaming on the basis of sex is a classic example. In Leves v Haines¹⁸⁷ the complainant attended a girls’ high school and her twin brother attended a boys’ high school. The complainant had a limited range of elective subjects to choose from, while her brother had the opportunity of a wider choice. The EOT held that the educational authority had discriminated because less favourable treatment had occurred on the basis of sex: the complainant had less access to the benefit of scholastic and vocationally relevant skills than was available to the boys in the boys’ high school. The elective courses were benefits provided by the educational authority. The unavailability of such benefits could be based on legitimate considerations, such as lack of funding, but not on assumptions based on sex. This decision was upheld by the New South Wales Court of Appeal.¹⁸⁸ Even where there is no curriculum streaming, teaching itself can be done in a discriminatory manner with the teacher, for example, devoting more attention to girls than boys or vice versa, in a co-educational class.

4.172 Facilities and services provided by schools may be another focus of concern. Expenditure patterns on teaching or sports equipment, library or counselling facilities which, for instance, ignore the needs of girls or ethnic minorities could be discriminatory in denying some students equal effective access to those benefits. Similarly, the failure to provide adequate facilities to students with a disability could have the effect of denying those students access to benefits that the school provides.

4.173 In addition to the prohibition on discrimination in admission or access to benefits, it is also unlawful under the ADA to discriminate in education by expelling a student or subjecting the student to any other detriment on any of the prohibited grounds. Thus, for example, a high school student cannot be expelled for getting married or falling pregnant or for being homosexual.

4.174 Queensland and the Northern Territory use different terminology by making it unlawful to treat a student less favourably (or “unfavourably” in Queensland) in any way in connection with the student’s training or instruction. All other jurisdictions deal with expulsion and subjection to any other detriment as two separate limbs.

4.175 No change is recommended to the area of education as currently defined. However, it is necessary to address the current limitation to public education.

Coverage in other jurisdictions

4.176 Discrimination in education is specifically covered by all Australian anti-discrimination legislation (except the RDA) in very similar terms to New South Wales.¹⁸⁹ Although there is no specific mention of discrimination in education in the RDA, the general provision prohibiting any act of discrimination covers education, as it is a relevant area for the purposes of the governing CERD.¹⁹⁰

4.177 The SDA covers the same situations as New South Wales. Additionally, in giving effect to the CEDAW, the provisions specifically dealing with education in Article 10 of that Convention are relevant to all educational authorities covered by the SDA and provide valuable guidance and direction on what is meant to be achieved by the less detailed prohibition in the legislation.

Exception – education in a private educational authority

4.178 The current exception concerning employment by a private educational authority has already been discussed above. Education in a private educational authority is also currently exempt from the provisions of the ADA. This exception was first introduced in 1981, together with the private educational authority exception in relation to employment. Thus, the general prohibition against discrimination in relation to admission of students, the terms and conditions of such admission, access to benefits provided and expulsion do not apply to private educational institutions if such discrimination is on the grounds of sex, marital status, disability, homosexuality, age or transgender status.

4.179 Although the exception does not apply to race discrimination, s 17(3) allows an educational authority to be exempt from the general prohibition against race discrimination in education in prescribed circumstances. None are presently prescribed.

4.180 Exceptions in relation to education exist in the SDA in relation to religious institutions,¹⁹¹ in Queensland in relation to non-State school authorities,¹⁹² in South Australia in relation to sexuality where an educational institution is administered in accordance with the precepts of a particular religion,¹⁹³ in Western Australia if the discrimination is in good faith in favour of adherents of a particular religion on any prohibited ground except race, impairment or age or by prescription in regulations in relation to race, religious or political conviction,¹⁹⁴ and in the Australian Capital Territory in relation to religious institutions.¹⁹⁵

4.181 The rationale for the current exception is that the State should not interfere with education in the private sphere. As stated above, the inclusion of this exception was mooted by the private school lobby group and mainstream churches. As with restricting private educational authorities in employment, there seems little justification in giving private educational authorities as they are currently defined such a broad exception in relation to the services they provide. Educational bodies, whether public or private, provide a service which, except for certain carefully justified circumstances, should be free from unlawfully discriminatory criteria. The exceptions provided in other jurisdictions suggest that the only area in which an exception may be justified is in relation to religious schools, where discrimination may be needed to cater to particular religious doctrines. This is consistent with the conclusion reached above in relation to the area of employment.

4.182 The purpose of excluding prescribed private educational authorities from the prohibition against race discrimination was to cover situations like “certain schools ... designed to provide language classes for migrants both in the English language and the languages and cultures of their home country”.¹⁹⁶ Such situations will be covered by the proposed special measures provision and do not warrant an exception by prescription.

4.183 The Commission is not satisfied that, in the important area of education, discrimination should be permitted except to the extent necessary to resolve a conflict with other fundamental human rights or freedoms. The only basis on which the Commission is satisfied that such a conflict exists is in relation to religious freedom. Furthermore, the Commission can see no justification for providing such an exception, even for religious educational institutions, in relation to the grounds of race, age or disability or in relation to sexual or other forms of harassment.¹⁹⁷

4.184 In principle, this approach should not give rise to any broad areas of disputation. For example, if the tenets of a particular religion require that boys be educated separately from girls or, indeed, that girls not be provided with education, a private educational institution based upon those precepts would be entitled to exclude female students entirely. Adherents to that faith would presumably accept that result and would not seek to have their daughters educated within the religious education system. Those who do not adhere to such a precept would either be dissident members of the faith or non-believers. It is not considered necessary that discrimination laws should provide protection to dissidents within a particular religion or creed, nor should non-believers be entitled to impose their views upon adherents to the particular faith. Accordingly, the exception is supportable in so far as it is limited, as with the question of employment, to private educational institutions with a religious foundation.

Recommendation 20

Repeal the exception for private educational authorities in relation to education on all grounds.

Recommendation 21

Repeal the exception for prescribed educational authorities from the prohibition on race discrimination in education.

Recommendation 22

Provide a limited exception for educational institutions which operate in accordance with religious tenets for the grounds of sex, domestic status, sexuality, transgender status and religion.

Draft Anti-Discrimination Bill 1999: cl 44

Legislative development

4.185 When first enacted in 1977, the ADA included a prohibition against discrimination on the ground of race in relation to access to places and vehicles and a prohibition on the ground of sex in relation to access to places where liquor is sold.¹⁹⁸ Thus (in relation to race) s 18 provided that it was unlawful to discriminate as follows:

(a) by refusing access to or use of any place or vehicle that the public or a section of the public was entitled to use or access, for payment or not;

(b) in the terms on which access or use of such place or vehicle was allowed;

(c) by refusing the use of any facilities in such place or vehicle that the public or section of the public was entitled or allowed to use;

(d) in the terms on which the use of such facilities was allowed;

(e) by requiring the person to leave or cease the use of any such place, vehicle or facility.

4.187 In 1993, when the age discrimination provisions were included in the ADA, a provision mirroring the race discrimination prohibition in relation to access to places and vehicles²⁰⁰ was included in relation to age. In 1996, when the transgender amendments were made, an access to places and vehicles provision²⁰¹ was included.

4.188 These provisions²⁰² have, however, been recently repealed²⁰³ and some aspects have been incorporated within the amended definition of “services”, which applies to all grounds of discrimination. The amendment to the definition of “services” has added the following paragraph:

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

It seems to me as pointed out in Pearce that in a number of respects the Act, for instance, section 18, makes specific reference to discrimination in relation to the use of places in contradistinction to the provision of services. As it seems to me, the material before the Tribunal does no more than indicate that the respondent, at the highest, restricted access to a place, namely, the swimming pool which is the subject of these proceedings, under its control.²⁰⁵

Coverage in other jurisdictions

4.191 The definitions of services in the United Kingdom’s Sex Discrimination Act 1975 and Race Relations Act 1976, which were used as sources in formulating the definition of services in the ADA, contain a list of examples of services which include access to places, accommodation in a hotel, boarding house or similar establishment and facilities for education. A conscious decision appears to have been made by the draftsperson to adopt a different approach in New South Wales by dealing with each of these areas separately in the ADA.

4.192 All Australian anti-discrimination legislation, except the SDA, make provision for access to places and facilities either as a separate area or within the definition of services. The RDA contains a very similar provision²⁰⁷ to the ADA’s previous provision in relation to race, in addition to a separate provision relating to goods and services.²⁰⁸ The SDA only prohibits discrimination in the provision of goods, services and facilities²⁰⁹ and makes no reference to access to places. Understandably, access to premises is a specific area in the DDA²¹⁰ as it is a crucial issue for people with physical disabilities. The contents of the provision are very similar to the prohibition contained in the now repealed s 18 of the ADA. In addition, the DDA also covers discrimination in the provision of means of access to such facilities.

4.193 In Victoria, Queensland, South Australia and Tasmania (in relation to sex) the definition of services includes access to and use of places that members of the public are permitted to enter. In the Northern Territory the definition of services includes “access to or use of any land, place, vehicle or facility that members of the public are or a section of the public is, permitted to use”. In Western Australia, discrimination in the area of access to places and vehicles is prohibited on the grounds of race, sex, marital status and pregnancy, impairment and age in similar terms to the now repealed s 18 of the ADA in addition to the prohibition in relation to the provision of goods, services and facilities. The position is similar in the Australian Capital Territory in that there are two separate provisions dealing with access to premises and the provision of goods, services and facilities. The terminology for access to premises is couched in almost identical terms to the corresponding provisions in the DDA.

Judicial consideration

4.194 In Pearce v The Glebe Administration Board,²¹¹ the EOT was concerned with a case involving a request for permission made on behalf of a group of homosexuals to use two sections of vacant land for an assembly point, demonstration and rally. One part of the land belonged to the Anglican Church, which refused permission. The complainant alleged that discrimination had occurred on the ground of homosexuality in relation to the refusal to provide a service, being access to and use of vacant land. The EOT’s decision that the term “service” did not extend to cover access to land was based on the existence of separate coverage for access to places and vehicles for race (at that time) and the absence of such express coverage in relation to homosexuality. The judgment also suggested that the grant of a bare permission to use land, entirely dissociated from any other activity is outside the concept of “services”.

4.195 Similarly, in Woods v Wollongong City Council the complaint was about a retail shopping centre which was under construction and which the complainant alleged, discriminated against people with disabilities in relation to access to the building. The EOT decided that because the shopping centre had not yet been opened, no provision of services had occurred.

Conclusion

4.196 Although the new paragraph included in the definition of services covers access to and the use of any place or vehicle which the public or section of the public is entitled to use, the substantive prohibitions have not been redrafted to cover the terms on which access to or use of any place, vehicle or facility is allowed, nor to cover the situation where a person is required to leave or cease the use of any place, vehicle or facility, matters which were covered by the now repealed s 18, 38L and 49ZYM. There is also no express reference to discrimination in the provision of means of access to facilities, as is the case under the DDA.

4.197 In relation to discrimination on the ground of disability, a number of the submissions to the Commission in response to DP 30 specifically identified lack of consultation at the planning stage of development as a major barrier to access to public places for people with disabilities.²¹² The Commission has recommended that a complaint of apprehended contravention of the Act should be permitted to cover situations such as that which arose in Woods v Wollongong City Council and that the EO Division should be permitted to grant appropriate relief.²¹³ A number of the submissions received by the Commission in response to DP 30 also advocated the inclusion of access to places, vehicles and facilities as a separate area across all grounds of discrimination.²¹⁴

4.198 The Commission is satisfied that it is appropriate to make express reference to access to or use of a place, facility or vehicle. The principal question is whether this should be dealt with as an aspect of the provision of services, or whether it should form a separate area. If it is to be treated as an aspect of services, then it will be necessary to ensure that the terminology of the prohibition is appropriate to have clear application to the extended concepts. On the other hand, to develop a separate area covering access to places is likely to give rise to other forms of confusion. Frequently the provision of services includes permitting the use of a facility or access to a place, such as a cinema for the purposes of seeing a film. The ease of application of the ADA is not improved by multiplying areas. Accordingly, the Commission is satisfied that the present form of coverage, namely by including access to places as part of the current definition of services, is a satisfactory approach. Some minor changes to the wording of the prohibition can ensure that the concepts may readily be applied.

Recommendation 23

Include in the area of goods and services:

• access to any place, vehicle or facility which members of the public are entitled to use;
• the terms on which such access is allowed;
• the provision of means of access; and
• the requirement to leave or cease the use of any such place, vehicle or facility.

Draft Anti-Discrimination Bill 1999: cl 35, 36

4.199 Discrimination on all grounds is prohibited under the ADA in the provision of accommodation.²¹⁵ It is an area in which discrimination has been prohibited since the Act commenced in 1977. Although it has never been one of the main areas of complaint,²¹⁶ it is nevertheless an area in which discrimination does occur.

4.200 “Accommodation” is defined to include residential or business accommodation.²¹⁷ In some other jurisdictions “accommodation” is defined more specifically. For instance, in Victoria it is defined by reference to the premises and includes “business premises, a house or flat, a hotel or motel, a boarding house or hostel, a caravan or caravan site, a mobile home or mobile home site, a camping site”. Queensland and the Northern Territory do the same and also include a “building or construction site”.

4.201 Such discrimination is prohibited in relation to applicants for accommodation as well as occupiers, and by both owners and agents.

Coverage under the ADA

4.202 The specific forms of conduct on discriminatory grounds covered by the ADA are:

• refusing an application for accommodation;
• the terms on which accommodation is offered;
• deferring an application or according a lower order of precedence in any list of applicants;
• denying or limiting access to benefits associated with accommodation occupied by a person; and
• evicting or subjecting the person to any other detriment.

4.204 To ensure that the ADA’s coverage does not intrude into the private sphere of activity, there are exceptions that apply where the provider or a near relative of the provider resides on the premises or where the accommodation is for no more than six persons.²¹⁹ Charitable bodies or other bodies that do not distribute profits to members and which provide accommodation to persons with a particular disability are also excepted from the operation of the prohibition.²²⁰

4.205 In relation to providing accommodation for a person with a disability, it is inevitable that in many cases special facilities or services will be required. Similarly, where a person with a disability is already in occupation but requires a benefit associated with accommodation to be provided in a special manner, it will not be discriminatory to deny or limit such access to the benefit in particular circumstances.²²¹

4.206 The ADA also contains a general exception for establishments providing housing accommodation for aged persons whereby admission is restricted to persons of a particular sex, marital status or race.²²² However, it is recommended in Chapter Six of this Report that this exception be repealed as the same effect can be achieved by other means.²²³

Coverage in other jurisdictions

4.207 All Australian jurisdictions prohibit discrimination in accommodation. The RDA prohibits discrimination in relation to disposal of land and accommodation on the ground of race in the same provision.²²⁴ The prohibition in relation to discrimination in accommodation applies to refusal to permit a person to occupy any residential or business accommodation and termination of the right to such occupation. It is also unlawful to impose any terms or conditions that limit the class of persons that may be the invitees or licensees of the occupier.

4.208 Other jurisdictions that prohibit discrimination in the disposal of land and accommodation make provision for the two in separate sections.²²⁵

4.209 The SDA prohibits discrimination in accommodation²²⁶ in almost identical terms to New South Wales. The exceptions are also similar, with the addition of an exception for accommodation provided by a religious body.

4.210 The DDA’s prohibition against discrimination in accommodation²²⁷ is similar to the New South Wales provision in relation to disability. In addition, however, it prohibits the refusal of permission to an occupier to make reasonable alterations, provided the accommodation is restored to its previous condition when the occupier leaves, and it is done at the occupier’s expense.²²⁸

4.211 Victoria covers the issues covered in New South Wales and mirrors the DDA provision allowing the occupier to make reasonable alterations. It also prohibits discrimination by varying terms on which accommodation is provided²²⁹ and refusing to extend or renew the provision of accommodation and the terms of such extension or renewal.²³⁰ Victoria is the only State Act that provides that the provisions in relation to accommodation apply despite anything to the contrary in any other Act or any document affecting or relating to the land.²³¹

4.212 Coverage of discrimination in accommodation in Queensland,²³² Western Australia²³³ and the Northern Territory²³⁴ are similar to Victoria except that the provisions do not have an express overriding effect in relation to other conflicting Acts. South Australia²³⁵ and the Australian Capital Territory²³⁶ are more akin to New South Wales in that neither of them prohibits the refusal to make reasonable alterations in relation to impairment. Like New South Wales, South Australia also has a catch-all provision prohibiting subjection to “any other detriment”. Detriment is specifically defined to include “humiliation or denigration”.

Grounds and occurrence of accommodation complaints

4.213 According to the ADB’s Annual Reports most of the complaints in accommodation are on the grounds of race, age and marital status.²³⁷ Discrimination on the ground of race is a frequent occurrence particularly for Aborigines and people from non-English speaking backgrounds. It is claimed that the requirement that prospective tenants must be able to meet their obligations to pay rent and maintain the property is often used as a mask for other reasons.²³⁸ It is noteworthy that in New Zealand, the Human Rights Act 1993 provides that “employment status” is one of the grounds on which discrimination in accommodation is prohibited. It is defined to mean “being unemployed or being in receipt of a benefit or compensation under the Social Security Act 1964 or the Accident Rehabilitation and Compensation Insurance Act 1992”.

4.214 Because apparently legitimate reasons are given, discrimination in accommodation is difficult to prove. The exceptional circumstances of Lamb v Samuels Real Estate Pty Ltd²³⁹ provide a recent case in point. In this case, the complainant, an Aboriginal woman, alleged that she had been refused accommodation on the ground of her race, although the reason given by the agent was that there was no rental accommodation that suited her needs. When a Caucasian friend of the complainant went to the office and asked for identical accommodation, she was told that there was accommodation available. The EOT upheld the complaint.

4.215 Within the complaints received on the ground of age are complaints from people refused accommodation because of their young children (often based on assumptions about children’s behaviour)²⁴⁰ and from young and old people, based on assumptions about financial position. The ADB also receives complaints from young high school and university students who have been refused holiday accommodation.²⁴¹ The young often claim to be stereotyped as unreliable and unable to pay rent because of their low or erratic incomes. This is also alleged by new migrants. Older people often complain that they are assumed to be on a pension, unable to afford rent or look after themselves or the property.

4.216 Discrimination in accommodation on the basis of marital status can affect single people of both sexes. As one commentator has observed “single women with children are perceived as deviant because they do not conform to the stereotype of the nuclear family with a wage earning father and dependent mother”.²⁴² Single men are also subject to disadvantage because they are seen as the converse of the stereotype of the “houseproud” woman. There have also been instances where a policy preference based on need in relation to public housing may result in what appears to be discrimination on the basis of marital status.²⁴³

4.217 The purpose of the prohibition is clearly to ensure that property owners and agents do not take irrelevant considerations into account when letting or leasing accommodation. The prohibition inhibits a property owner’s freedom of choice²⁴⁴ and many owners and agents are circumspect about what they tell unwanted tenants, making a case of discrimination difficult to establish. The Tenants Union of New South Wales has suggested that much of the discrimination in accommodation is not reported to anti-discrimination bodies. In a submission to the National Housing Strategy,²⁴⁵ the Tenants Union stated that most tenants “do not know where to complain, they do not think such action would achieve anything or they fear retaliation by the owner or agent”. This fear is particularly apparent in small country towns, but in such places discrimination may have a particularly severe impact on people who are socio-economically or racially more vulnerable.²⁴⁶

The Commission’s view

4.218 One problem with the current provisions of the ADA is that the definition of “accommodation” is not sufficiently comprehensive, merely stating that it includes “residential or business accommodation”. The Residential Tenancies Act 1987 (NSW) defines “residential premises” to mean:

(a) any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence; and

(b) includes a moveable dwelling or the site on which a moveable dwelling is situated or intended to be situated (or both the moveable dwelling and the site), if the moveable dwelling is used or intended to be used as a place of residence”.

4.220 In relation to the substantive provisions in the area of accommodation, while the Commission is of the view that discrimination in accommodation is more of a problem than is evidenced by the number of complaints received by the ADB, there does not appear to be any particular legislative change that will improve the situation. The remedy lies in increasing awareness of the law and, in appropriate cases, assisting people to bring complaints and in reducing discrimination by education.²⁴⁸

4.221 However, one area where the legislative provisions may be improved is in relation to disability discrimination. Although the current disability provisions in relation to accommodation have not caused any particular problems in known cases, the Commission favours amendment to mirror the DDA provision by incorporating the prohibition on refusal to permit reasonable alterations. Given the difficulty in getting owners to make any alterations, however minor they may be, it is probable that occupiers would prefer to make the alterations themselves if permitted to do so. However, in including this provision, care must be taken to ensure that the provider of accommodation is not conveniently relieved of the duty to make reasonable alterations and adjustments themselves.

4.222 This approach is sound in principle and would bring the ADA in line with the DDA and other State legislation. As a result the Commission recommends that the ADA be amended specifically to include such a prohibition.

Recommendation 24

Insert a definition of accommodation in the ADA in the terms of that contained in the Residential Tenancies Act 1987 (NSW).

Draft Anti-Discrimination Bill 1999: cl 49

Recommendation 25

Amend the provisions relating to discrimination in accommodation on the ground of disability to prohibit a refusal to permit a person to make reasonable alterations to a premises occupied by that person.

Draft Anti-Discrimination Bill 1999: cl 47

4.223 The ADA currently excepts discrimination on all grounds in respect of the provision of accommodation where the person providing the accommodation or a near relative resides on the premises and the accommodation is provided for no more than six persons. The exception was in the ADA when it was first enacted in 1977. The rationale for this exception is that one is entitled to decide who to live with as that is, and should be, entirely dependent on personal choice. Again, this is an instance of the private area being cordoned off from the scrutiny of the ADA.

4.224 A similar exception is provided for in Federal legislation and in all States and Territories, with only minor variations. The RDA provides an exception in relation to shared accommodation in a dwelling house,²⁴⁹ although no limitations are specified in terms of numbers. The SDA,²⁵⁰ the DDA,²⁵¹ Queensland,²⁵² and Western Australia²⁵³ provide a similar exception to New South Wales, but limited to accommodation provided to no more than three people. Victoria,²⁵⁴ South Australia²⁵⁵ and the Australian Capital Territory²⁵⁶ provide an almost identical exception to New South Wales. In Tasmania, shared accommodation for fewer than five adult persons (in relation to sex discrimination) is excepted²⁵⁷ and in the Northern Territory, the exception applies if the accommodation is in the main home of the person or near relative of the person irrespective of numbers.²⁵⁸

4.225 The ADB submitted that the ADA should be consistent with the DDA and the SDA and limit the exception to circumstances where the accommodation is provided for no more than three people. It also made the point that:

In most situations where people take boarders into their home or rent out a self-contained flat attached to their house, the accommodation will be for less than three people. Where more people are accommodated it is more likely to operate as a business and the Board considers that it is inappropriate to exclude businesses from the ambit of the Act.²⁵⁹

4.227 However, it is the view of the Commission that the exception should not cover a self-contained flat attached to the main house. The Commission believes that the appropriate scope for this exception is to cover a person’s right to determine who should live in the same premises, meaning the main home, not who should be the person’s neighbour, unless entrance is through a common door. As such, the Commission suggests modifying the exception to mirror the Northern Territory legislation which refers to accommodation in the main home.

Recommendation 26

Retain the exception for accommodation in a private household but specify that the accommodation must be in the main home.

Draft Anti-Discrimination Bill 1999: cl 50

4.228 As noted previously, the aim of anti-discrimination law is to regulate those areas of activity that fall within the “public” sphere. The right to associate freely is a basic democratic right with which the State is often reluctant to interfere. It is common, therefore, for anti-discrimination laws to be restricted to those clubs and associations which operate in the public domain. In New South Wales, the area is currently confined to those clubs which are already regulated by the State under the Registered Clubs Act 1976 (NSW).²⁶⁰

Coverage under the ADA

4.229 Under the ADA, registered clubs are prohibited from discriminating against persons on any of the grounds covered under the Act in determining whether, or on what terms, to admit them as members. They are also prohibited from discriminating against members of the club:

• by denying or limiting the member’s access to any benefit provided by the club;
• by depriving the member of membership or varying the terms of membership; or
• by subjecting the person to any other detriment.

Definition of registered clubs

4.231 A “registered club” is a club which is registered under the Registered Clubs Act 1976 (NSW).²⁶⁴ To be registered, a club must be incorporated²⁶⁵ and must satisfy the requirements set out in s 10 of the Registered Clubs Act, including those concerning membership numbers, the purposes for which the club is established, accommodation, book-keeping and the financial entitlements of club members and employees. Registered clubs must operate on a not-for-profit basis which means that the profits cannot be distributed to members. They must, instead, be used for the promotion of the aims and objectives of the club.

4.232 Clubs seek registration under the Registered Clubs Act principally in order to obtain liquor and gaming licences from which they can generate income. Examples of registered clubs include leagues clubs, bowling clubs, golf clubs, ethnic clubs and returned servicemen’s clubs. The number of registered clubs is slowly declining because of falling membership numbers, the restructure of the industry which has led to the amalgamation of many clubs, and increased competition.²⁶⁶

Access to places where liquor is sold

4.233 Section 32 of the ADA used to make it unlawful for a person who holds a licence, permit or authority under the Liquor Act 1912 (NSW) to discriminate against another person on the ground of sex by denying or refusing the person access to or use of a place where liquor is sold. This effectively covered other bodies which sell liquor which may not have come within the definition of registered clubs. For example, it would have proscribed discrimination by some sporting clubs and community service organisations which had a function licence under the Liquor Act 1912 (NSW) but which were not registered under the Registered Clubs Act 1976 (NSW).

4.234 The section, however, applied only to the ground of sex. Because of this inconsistency, s 32 was repealed by the Anti-Discrimination Amendment Act 1997 and is now intended to be covered by the amended definition of “services” which applies equally across all grounds under the ADA.

Membership of industrial organisations

4.235 Industrial organisations, including employee unions and employer bodies as defined under relevant industrial relations legislation, are prohibited from discriminating against a person on any of the grounds covered under the ADA, by refusing or restricting a person’s admission to membership or by denying or limiting a member’s access to any benefits provided by the organisation.²⁶⁷

Membership of sporting and recreational clubs

4.236 Membership of sporting clubs which are registered clubs is covered under the ADA. Participation, or eligibility to participate, in a sporting activity is also covered if it can be classified as a benefit or facility provided by a registered club.

4.237 The issues, however, are not always so simple. In some cases, the relevant sporting activity is controlled not by the registered sports club of which an individual is a member, but by the peak sporting association, of which the club is a member body or which individual club members can join. In these cases, it is the peak body which sets the competition rules, including eligibility to participate in a sporting event, and the discriminatory acts of the peak sporting association may be outside the operation of the Act, because the association is a “voluntary body”.²⁶⁸

Voluntary bodies

4.238 Voluntary bodies are defined as bodies which operate on a not-for-profit basis and which are not created by a statute.²⁶⁹ They are excepted from the provisions of the ADA, except in relation to employment, primarily on the basis that they are considered to be “private” in nature and regulation of them would be seen as an encroachment on the right of freedom of association.²⁷⁰

4.239 This broad exception effectively allows many clubs and associations to discriminate in determining whether to admit persons as members and in deciding who has access, and on what terms, to benefits provided by the club or association. There are a large number of voluntary bodies, established to meet a variety of community needs including sporting, social, cultural, political and economic needs. Examples include community service organisations such as Apex and Rotary International, charitable or benevolent institutions, sports clubs, political associations, business or trade groups (including chambers of commerce), environmental action groups and ethnic community groups. Many have large memberships and provide significant benefits to sections of the public.

4.240 In Chapter Six of this Report, the Commission has recommended the repeal of the current exception for voluntary bodies.²⁷¹

Coverage in other jurisdictions

4.241 Discrimination by clubs and associations is prohibited in all other Australian equal opportunity laws to varying extents depending on how a “club” or an “association” is defined. Some draw the distinction at the number of members, whether or not the body is incorporated and whether or not the body sells liquor, occupies Crown land or receives any public funding or assistance. While some provide exceptions for voluntary non-profit associations, most other jurisdictions provide greater coverage than the ADA.

4.242 Section 25 of the SDA makes it unlawful for a club, the committee of management of a club or a member of such a committee to deny or restrict a person’s admission to membership of the club or to limit a member’s access to any benefits of the club because of the person’s sex, marital status or pregnancy. The SDA defines “club” as an association, whether incorporated or not, of at least 30 persons who associate for social, literary, cultural, political, sporting, athletic or other lawful purpose and which:

• provides and maintains its facilities, wholly or partly, from its own funds; and
• sells or supplies liquor for consumption on its premises.²⁷²

4.244 More extensive coverage is provided under the DDA. Section 27 of that Act makes it unlawful for a club or an incorporated association to deny or restrict a person’s membership or to limit a member’s access to any benefits provided by the club because of the person’s disability.²⁷⁴ A “club” is defined as an association, whether incorporated or not, of persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purpose that provides and maintains its facilities, wholly or partly, from the funds of the association.²⁷⁵ There is no requirement for a minimum number of members, nor does the club have to sell or supply liquor. Section 27 also expressly applies to associations which are incorporated. Voluntary bodies are not excepted.

4.245 The RDA does not specifically prohibit discrimination by clubs and associations, but it does prohibit discrimination in access to places, and facilities within those places, which members of the public can enter or use.²⁷⁶ Also relevant is s 9 which prohibits any form of racial discrimination which affects the enjoyment or exercise of human rights and fundamental freedoms set out in the CERD. They include a person’s right to participate equally in cultural activities and have access to any public place or service such as transport, hotels, restaurants, cafes, theatres and parks.²⁷⁷ Like the DDA, the RDA draws no distinction between clubs and voluntary bodies.²⁷⁸

4.246 State equal opportunity laws vary substantially. In Victoria, clubs may not discriminate in admission to membership and access to benefits if they occupy any Crown land or receive any public funding. A club or organisation which does not occupy any Crown land or receive public funding is a “private club” and is exempt.²⁷⁹ Whether or not a club is incorporated or operates on a non-profit basis is irrelevant.

4.247 The Western Australian, Northern Territory and Tasmanian legislation reflects the definition of “club” contained in the SDA.²⁸⁰ However, Western Australia provides a general exception for voluntary bodies which does not apply to disability or age discrimination if the voluntary body is incorporated.²⁸¹ The Australian Capital Territory legislation defines a “club” as one that holds a liquor licence and excepts voluntary bodies.²⁸²

4.248 Uniquely, the ADA (Qld) provides that a club must be a profit-making venture.²⁸³ The EOA (SA) prohibits discrimination by associations but does not define “associations”.

The case for redefining the area

4.249 Registered clubs appear to have been singled out for inclusion as an area within the ADA in 1981 for two reasons. First, they were considered to form an important part of public life, providing a wide range of services to the community including bars, restaurants, sporting and gaming activities.²⁸⁴ That many had large memberships and reported annual turnovers of millions of dollars was also considered to have removed them from the “private” arena.²⁸⁵ The second reason was that accountability structures were already in place, making registered clubs easily identifiable for the purpose of enforcement. Voluntary non-profit organisations, on the other hand, many of which were unincorporated in 1981, would have presented problems in terms of legal accountability.

4.250 Circumstances have since changed and there appears to be a general consensus that the area should not be confined to registered clubs.²⁸⁶ A number of persuasive arguments have been put to the Commission in support of adding to the area of operation of the ADA those other clubs and associations whose activities place them in the public domain, many of which are currently excepted as voluntary bodies.²⁸⁷

4.251 The ADB submitted that not all voluntary bodies merit the exception as not all fall wholly within the private domain. Many, in fact, “have a significant ancillary role in relation to the political and commercial life within society which brings them very much into the public domain”.²⁸⁸ A large number perform valuable community functions for which they often receive substantial public funds and should, for this reason, be subject to anti-discrimination law.²⁸⁹ It has also been argued that it is anomalous that the public activities of non-profit bodies are becoming increasingly accountable to government regulators in terms of their funding, registration and reporting requirements yet they still enjoy a broad exception under the ADA.²⁹⁰

4.252 It is also significant that large numbers of voluntary non-profit bodies are now incorporated under the Associations Incorporation Act 1984 (NSW).²⁹¹ Incorporation offers them certain advantages: it gives the association a legal status in its own right and it limits the liability of members for any debts of the association. Many are also choosing to become incorporated in order to be eligible for public funding. By comparison, the number of registered clubs has been slowly declining.²⁹²

4.253 There are more than 26,000 incorporated voluntary bodies compared to 1,525 registered clubs.²⁹³ These figures suggest that an increasing number of people who have dealings with incorporated non-profit associations have little or no protection under the ADA.²⁹⁴ This may be borne out by the ADB’s own statistics. In the year to 30 June 1996, for example, it handled over 500 inquiries about discrimination in clubs and associations but received only 45 written complaints. A large number of inquiries probably concerned clubs and associations which were not registered clubs and therefore fell outside the ADA’s jurisdiction.

4.254 The broad exception for voluntary bodies effectively sanctions discrimination by many clubs and associations which are not operating exclusively in the private sphere. Those bodies which fall within the public domain should be added to the area currently defined by reference to registered clubs.

Defining the new area

4.255 The Commission has considered each of the distinguishing factors used by other jurisdictions to distinguish between “public” and “private” clubs including:

• minimum membership numbers;
• whether the club provides and maintains its facilities, in whole or in part, from its own funds;
• whether the club sells or supplies liquor for consumption on its premises;
• whether the club is incorporated;
• whether the club is a profit-making body;
• whether the club occupies any public land; and
• whether the club receives any form of public funding.²⁹⁵

Incorporation

4.257 The ADB has submitted that bodies which are incorporated should be subject to the ADA in the same way as registered clubs.²⁹⁸ Incorporation signifies an intention by the club or association to become a legal entity, drawing on the benefits that such status brings. It also indicates that the club or association is aware of certain legal obligations associated with becoming incorporated including financial and reporting requirements. Incorporation requires the establishment of a formal mechanism for the operation of the club, with a constitution and rules.

4.258 Requiring an association to be incorporated will bring within the scope of the Act those clubs and associations which are formally established and which therefore can be categorised as “public”. It is likely to exclude the majority of voluntary not-for-profit associations which have no formal mechanisms in place and whose activities are “private” in nature, such as a baby-sitting club.

4.259 Given that incorporation is fast becoming an eligibility requirement for most forms of government funding, it is also likely to cover those clubs and associations which seek or receive any kind of public grant, including the lease or occupation of public land, itself a legitimate criterion for the imposition of minimum standards of legal behaviour.

4.260 Unfortunately, incorporation may also exclude from the purview of the Act some other associations which are not wholly private. One example is political parties. Presently, the major ones are unincorporated and are considered to be voluntary bodies. Some groups argue that they should be covered because they are “public” in nature and receive public funding in a variety of forms.²⁹⁹

4.261 Local sporting and recreational clubs are not likely to be incorporated and therefore would not come within the scope of the ADA on this criterion. However, because of the tiered structure which exists in sport, local clubs may be required to comply with rules relating to equal opportunity and anti-discrimination imposed by the umbrella association which controls the sport concerned.

4.262 Generally speaking, most sport is organised at either a national and/or State level which feeds down to regional and local clubs. The umbrella organisations, mostly at State and regional levels, are responsible for establishing and managing sporting competitions.³⁰⁰ They set down the rules of competition, arrange venues and the refereeing or umpiring of games, collect membership fees and award competition prizes etc. They also apply for government funding to assist with the organisation and promotion of the sport concerned. Players in a sporting team are members of the local club. The local club is, in turn, a member body of the regional or State-based association, depending on the type of sport and competition involved.

4.263 Most umbrella or peak sporting associations are incorporated and those that are not are likely to become incorporated as a result of the introduction of new funding guidelines by the Department of Sport and Recreation which stipulate that sporting and recreational associations must be incorporated in order to be eligible for grants.³⁰¹

Should a different test apply for disability and race discrimination?

4.264 The ADB has submitted that the ADA should be amended in order to provide protection and redress for people discriminated against on the ground of race and disability by clubs and associations consistently with Federal laws.³⁰²

4.265 The DDA covers all incorporated associations and all clubs, whether incorporated or not, which provide and maintain their facilities, partly or wholly, from their own funds. Under the DDA, coverage would apply equally to a small social club (if it owned and maintained any “facilities”) as to a football club with thousands of members. The RDA also provides broad coverage of clubs and associations, based on the right of persons to be free of any racial discrimination in all areas of public life. Neither of these statutes has led to a flood of complaints. The Commission recognises the principle that it is desirable to maintain consistency with Federal laws. However, there is also merit in achieving consistency of coverage across the grounds within the ADA. This is not an issue the Commonwealth laws need to address.

4.266 While the Commission accepts that there may well be unincorporated associations that can be categorised as operating in the public domain, many could not. On balance, the simplicity and transparency of the criterion of incorporation and its close correlation with other relevant factors such as public funding, make it the preferable basis for defining this area. The Commonwealth Acts may provide more extensive coverage in relation to particular grounds, but that is a discrepancy which is acceptable.

What exceptions should apply to incorporated bodies?

4.267 Some incorporated clubs and associations may have valid reasons for wishing to discriminate in who to admit as members and in the access of members to its benefits or facilities. For example, incorporated clubs or associations which are established to promote the interests of people with a particular disability should be able to deny membership to persons who do not have that particular disability and to limit access to its premises accordingly.

4.268 These considerations will need to be addressed in relation to both grounds and areas and are dealt with in Chapter Six.³⁰³

Conclusions

4.269 The Commission has given careful consideration to each of the models presented in other jurisdictions and to the submissions it has received on this issue. There is no easy or fool-proof formula which can be applied to separate “public” from “private” clubs. Regardless of which criteria are used, there will inevitably be some clubs and associations which properly ought to be covered which will fall outside the jurisdiction. On the other hand it is desirable to avoid, so far as reasonably practicable, catching others which should not be covered. The latter category would then have to seek and justify an exemption.

4.270 Mindful of these qualifications, the Commission has concluded that the requirement of incorporation is probably the criterion which will bring most clubs and associations, which it is intended should be subject to anti-discrimination laws, within the purview of the ADA.

4.271 The Commission believes that the area should be defined by reference to an association of persons created for a lawful purpose and that is incorporated under the Corporations Law, the Associations Incorporation Act 1984 (NSW), the Co-operatives Act 1992 (NSW) or an equivalent law in another jurisdiction. Registered clubs need not be singled out. Given that they must be an incorporated body to come within the Registered Clubs Act 1976 (NSW), they would necessarily be covered under the proposed definition.

4.272 The area of operation should be renamed “clubs and associations”.

Recommendation 27

The area currently identified as “registered clubs” should be renamed “clubs and associations” and extended to cover all associations of persons which are incorporated or registered as corporations in Australia.

Draft Anti-Discrimination Bill 1999: cl 53

4.273 The ADA currently has no provision that prohibits discrimination in the disposal of interests in land. Consequently it is not unlawful to refuse to sell a property or other interest in land to a prospective buyer for discriminatory reasons. This is contrary to the position under the RDA, the SDA and the DDA and in most other jurisdictions.³⁰⁴ It was submitted to the Commission that coverage of the ADA should be extended to prohibit discrimination in the disposal of interests in land.³⁰⁵

Coverage in other jurisdictions

4.274 The provisions in the SDA³⁰⁶ and the DDA³⁰⁷ prohibit discrimination by refusing or failing to dispose of an estate or interest in land or in the terms or conditions on which an estate or interest in land is offered to the other person. Both Acts except discrimination in the disposal of an estate or interest in land by will or gift.

4.275 The RDA³⁰⁸ combines the prohibition with the prohibition against discrimination in accommodation. There is no exception for disposition by will or gift. However, it defines “dispose” to include “sell, assign, lease, sub-lease, sub-let, license or mortgage and also includes agree to dispose and grant consent to the disposal of”³⁰⁹ but makes no reference to disposition by will or gift.

4.276 Most State legislation is couched in similar terms to the SDA and DDA. However, Victoria excludes the disposal or offering of a leasehold interest in land for the purpose of accommodation from the general disposition of land prohibition, probably because it is otherwise covered in relation to discrimination in accommodation.³¹⁰ In Queensland, there is an exception that permits discrimination on the grounds of sex, age, race or religion in the disposal of an interest in land or a building of cultural or religious significance where such discrimination is in accordance with the particular culture or religion and is necessary to avoid offending the cultural or religious sensitivities of the people of the culture or religion.³¹¹ The provision in South Australia is identical to the SDA and DDA. In Victoria, Queensland and South Australia it applies to all prohibited grounds. In Western Australia it is unlawful only on the grounds of sex, marital status, pregnancy, race and age. It does not apply to discrimination on the grounds of family responsibility, religious or political conviction or impairment. The Australian Capital Territory and the Northern Territory, like New South Wales, do not make express provision for discrimination in the disposition of land.

4.277 The application of the South Australian provision was considered in Wright v City of Brighton.³¹² In that case a prospective purchaser complained of discrimination on the ground of age, where the property consisting of three small town houses was being sold only to people aged over 55. The Council applied development restrictions for low cost housing for the elderly and had allowed the development prior to the introduction of age discrimination legislation in South Australia. However, the Supreme Court of South Australia held that within the legislation, it is possible to “discriminate for the benefit of a certain age group, whereas it is not permissible to discriminate against a certain age group” and held that it was not discriminatory to restrict the use of certain approved accommodation for people above the age of 55.

4.278 While the result of the case seems to be correct in policy terms, the reasoning is doubtful. The provision of a benefit to one group inevitably discriminates by excluding others. The reasoning, if applied to race, means that it is permissible to provide a benefit to a particular racial group, to the exclusion of all others. That logic would mean that South Australia could limit access to State schools to Anglo-Saxons. The fallacy in this reasoning was exposed in Gerhardy v Brown³¹³ in which the High Court unanimously rejected an argument that granting an area of South Australia to the Pitjantjatjara people and allowing them to exclude all others (including other Aboriginal people) involved no racial discrimination. As Justice Brennan stated:

It was submitted that s 10 [of the RDA] applies only when all the persons who suffer the comparative disadvantage are of the one race, ... and that the section does not apply when those persons are of several races (in the present context, all non-Pitjantjatjara races) and constitute the majority of the community. The submission was founded on the use of the word “particular”. But the submission overlooks the distributive operation of s 10 which provides that each racial group (“persons of a particular race”) should enjoy the right enjoyed by the advantaged racial group (“persons of another race”). If the persons suffering a comparative disadvantage are of different races, s 10 operates so that every disadvantaged racial group enjoys the same right to the same extent as it is enjoyed by the advantaged racial group.³¹⁴

What is an “interest in land”?

4.280 An issue not dealt with in any of the Commonwealth or State legislation is the extent of coverage of an interest in land. In Commonwealth legislation relating to land, an “interest in relation to land” means a legal or equitable estate or interest in the land or any other right, charge, power or privilege over or in connection with the land.³¹⁵

4.281 The Conveyancing Act 1919 (NSW) defines land to include “tenements and hereditaments, corporeal and incorporeal and every estate and interest therein vested or contingent, freehold or leasehold, and whether at law or in equity”.³¹⁶ Tenements and hereditaments mean respectively, whatever can be the subject of tenure and whatever is capable of devolving upon death. In other words, an interest in land must be capable of being transferred.

Strata title

4.282 For the purposes of ownership, land may be divided horizontally, vertically or in any other way. Thus, a strata title, which is a form of title used to divide blocks of high-rise flats and some low-rise townhouse developments, is an interest in land. Strata title in New South Wales is governed by the Strata Titles Act 1973 (NSW).

Tenancy in common

4.283 Tenancy in common requires two or more people to hold title in common in undivided shares in the land and any building on it. Normally the tenants do not have any right to occupy any particular part of the building; instead, the co-owners possess the entire land and building. The agreement between tenants in common may contain prohibitions and restrictions on the rights to transfer their shares. However, a covenant that prohibits a co-owner from selling without the consent of other co-owners may be invalid in some circumstances.³¹⁷

Company title

4.284 This is a form of ownership of a building by a company, the shareholders of which are entitled to exclusive occupation of particular flats within the building by virtue of the rights attached to their shares.³¹⁸ Because it involves the ownership of shares in a company, interests in company title are regulated by the Corporations Law. An important provision commonly found in company title articles of association is the restriction on the right to transfer shares. Sometimes the directors have an unfettered discretion to refuse to register the transfer of shares and other times the discretion is limited to refusal where the purchaser is not a respectable or responsible person.³¹⁹ Section 1094 of the Corporations Law provides that where a company refuses or fails to consent to register a transfer of shares, the court may on the application of the proposed transferee intervene and make appropriate orders. In practical terms, this provision enables existing shareholders to determine who shall be their neighbours. Such decisions can reflect discriminatory attitudes.

Community title

4.285 This is governed by the community titles legislation³²⁰ and in effect fills the gap that existed between conventional land subdivision and strata title subdivision. The main advantage of this scheme is that it provides a mechanism for the construction of small to very large size developments and allows the implementation of multiple uses such as residential and commercial uses within the one development. It also encourages developers to build community facilities for the benefit of purchasers.

Time-shares

4.286 A relatively recent development is the proliferation of time-share schemes. Such schemes permit the purchase of time-based rights in or in relation to land, usually in connection with holiday resorts. Thus, a person may purchase a right to occupy a particular apartment for a certain number of weeks in a year. In some cases, the time of year is specified at the outset; in others it is left open and worked out on the basis of an agreed formula. Most time-share schemes in Australia are title based: that is the purchaser obtains an interest in the realty of the resort either as a tenant in common with all other purchasers in the time-share “intervals”³²¹ or, where the resort is the subject of a strata plan, as a tenant in common in a particular lot.³²² Thus, the purchaser is a tenant in common with a fractional interest in the resort or in a specific strata lot and receives a certificate of title for that fractional interest in the land. In either case, the resort is normally first leased to a management company for a long term. The management company will usually hold the common property of the development and the purchasers become members of the company. The time-share owner’s rights of use and occupation are regulated by the company’s articles of association and are thus both contractual and proprietary.

4.287 There are four other types of time-share schemes that are not title-based.

• A scheme can be a company-based scheme, similar to the company title form of ownership and governed by the Corporations Law.
• It can be a unit trust scheme where the resort is held by trustees on trust for the use and enjoyment of unit holders who have no proprietary interest in the resort.
• A scheme can be based on the issue of redeemable preference shares in a company which confer the right to occupy an apartment but usually confer no right to share in the proceeds of any winding up of the company.
• A scheme can involve the grant of a contractual licence to occupy an apartment for a specified time.

4.288 Interests in retirement villages may be obtained in various ways. The most common method is where a resident takes a lease of a unit for a specified term or for the resident’s life time. The resident is required to pay an “up front” purchase price and obtains a leasehold interest in the village property and an exclusive right to occupy the unit for the agreed time. Alternatively, a resident may purchase a “licence” from the village owner. This is intended to give the resident only a contractual right and not a proprietary interest in the village. Thirdly, a resident may purchase a freehold title to a unit registered under the Strata Titles Act 1973 (NSW) or the community title legislation. Fourthly, a resident may obtain company title by purchasing shares in a home unit company which owns the retirement village.

Conclusions

4.289 The dividing line between the main areas currently covered by the ADA, namely the provision of work, goods, services and accommodation, and those not covered, namely the disposal and transfer of interests in land and some other forms of property is riddled with anomalies. The Commission has already recommended that the definition of goods be extended to cover choses in action and money.³²³ The area of accommodation will cover various forms of residential leases and licences. There is no reason why the transfer of interests in land generally should not be covered. If a landlord is not allowed to discriminate racially in letting premises, nor should the sale of land on racial grounds be permitted. To permit such discrimination might found a legal basis for apartheid.

4.290 Accordingly, the Commission recommends that the approach adopted in other jurisdictions be adopted in New South Wales and the area of disposal or transfer of any interest in land be covered by the ADA.

Recommendation 28

Include “disposal of interests in land” as an area of discrimination.

Draft Anti-Discrimination Bill 1999: cl 59, 60, 61

4.291 Government activities may be broadly described as “the exercise of certain powers and the performance of certain duties by public authorities or officers, together with certain private persons or corporations exercising public functions.”³²⁴ Thus, any person performing any function under a State law or program, or in the course of carrying out any other responsibility for the administration of State law or the conduct of a State program would be considered to be engaged in a government activity.

Coverage under the ADA

4.292 There is currently no specific prohibition against discrimination in the area of government activity. However, some conduct which would fall within the term government activities will also fall within one of the existing areas of operation and such conduct will be covered under the ADA. The most relevant area is the provision of services.³²⁵ Although discrimination is not specifically prohibited under state laws and programs, recent amendments to the Act provide that sexual harassment of another person in the course of performing any function under a State law or for the purposes of a State program, or carrying out any other responsibility for the administration of a State law or State program, is unlawful.³²⁶ For the purposes of the sexual harassment provisions a “State program” is defined to mean “a program conducted by or on behalf of the State Government”.³²⁷

4.293 A further issue to be considered is whether discrimination in local government activities and programs should be covered. Currently, the only reference to local government in the ADA is in relation to the prohibition of discrimination by local government councillors against other councillors “in the course of his, her or their official functions”.³²⁸ Curiously, this provision is included under discrimination in work in relation to all prohibited grounds. The definition of “services” also includes a reference to “services provided by a council or public authority”. Thus, activities of councils have been held to be within the coverage of the ADA in relation to the provision of services in a number of decided cases.³²⁹ In relation to sexual harassment, the extent to which the recently introduced provision covers local government is unclear.

Coverage in other jurisdictions

4.294 Both the Commonwealth and Queensland have legislative provisions covering the area of government activity.

4.295 Section 26 of the SDA provides that discrimination against a person on the grounds of sex, marital status, pregnancy and potential pregnancy by another person in the course of performing any function or exercising any power under a Commonwealth law or for the purposes of a Commonwealth program, or carrying out any other responsibility for the administration of a Commonwealth law or program, is unlawful.

4.296 The scope of this provision was considered in Hough v Caboolture Shire Council.³³⁰ In that case, the complainant was dismissed from her position as a labourer under the Community Employment Program (“CEP”) which was a Commonwealth program within the meaning of s 26. The respondent council argued that s 26 applied only to administration of a program and not to participation in a program or expenditure of funds received under a Commonwealth program. It was held that the respondent was performing functions and exercising powers for the purposes of the CEP on the basis that employment of labour was one of the functions, powers and responsibilities under the CEP. Thus, dismissal on relevant grounds was held to be an act of discrimination “in the performance of the functions” or “in the exercise of” powers or “in the fulfilment” of the responsibilities within the meaning of s 26.

4.297 The scope of s 26 was also considered in another case involving the Caboolture Shire Council, where it was held that s 26 could extend so as to render unlawful discrimination occurring in relation to other areas such as work, goods and services etc, as well as sexual harassment.³³¹ Since these cases, the SDA has been amended to prohibit expressly sexual harassment in the same areas of Commonwealth government activity as those listed in s 26.³³²

4.298 The impact of s 26 of the SDA was more recently considered in Hagar v Minister for Health and Family Services.³³³ In this case, the complainants, being three men who suffered from osteoporosis, asserted that they had been discriminated against on the ground of their sex because a certain drug was unavailable to them under the pharmaceutical benefits scheme administered by the Commonwealth Department of Human Services, whereas it was available to women with a similar condition. This resulted in the men having to pay a higher price for the drug than did women. The complainants argued that this was discrimination in the provision of goods and services under s 22 of the SDA and in the administration of Commonwealth laws and programs. Since the discriminatory conduct constituted the performance of functions and the exercise of power under the National Health Act 1953 (Cth) and for the purposes of a Commonwealth program (being the administration of the pharmaceutical benefits scheme), the Human Rights and Equal Opportunity Commission (“HREOC”) held that the Minister and the Commonwealth had discriminated against the complainants under s 26 of the SDA. On appeal, the Federal Court reversed the decision, but did not suggest that s 26 would not have supplied the relevant area, had the conduct been discriminatory.³³⁴

4.299 Section 29 of the DDA provides that discrimination on the grounds of disability is unlawful in the performance of any functions or the exercise of any power under a Commonwealth law or for the purposes of a Commonwealth program. The wording mirrors that in s 26 of the SDA.

4.300 Section 101 of the ADA (Qld) and s 21 of the Sex Discrimination Act 1994 (Tas) also prohibit discrimination in the administration of State laws and programs. The drafting of the Queensland provision is very similar to the corresponding provisions in the SDA and the DDA: it applies to all prohibited grounds.

Need for a separate area

4.301 It is the public nature of State and local government activity that provides the rationale for consideration of its separate coverage under the ADA. As one commentator has observed:

the government must seek to give the impression that it is non-discriminatory in its own activities in order to ensure its legitimacy as a serious initiator of legislative policy.³³⁵

4.303 The Commission is satisfied that the administration of State and local government laws and programs should be included within the area of operation covered by the ADA. This should be achieved by express provision to that effect.

Recommendation 29

Include the exercise of functions and powers of local government and the administration of State and local government laws and programs as a new area.

Draft Anti-Discrimination Bill 1999: cl 62

Footnotes
1. M Thornton, “The Public/Private Dichotomy: Gendered and Discriminatory” (1991) 18(4) Journal of Law and Society 448 at 448-463.

2. Koowarta v Bjelke-Petersen (1982) 153 CLR 168. See also Mabo v Queensland [No 1] (1988) 166 CLR 186.

3. Emphasis added.

4. RDA s 11-17 prohibits race discrimination in the following areas: access to places and facilities (s 11); disposal or acquisition of land, housing and accommodation (s 12); provision of goods and services (s 13); joining trade unions (s 14); employment (s 15); advertisements (s 16); and inciting or assisting the doing of an act which is unlawful by reason of the foregoing prohibitions (s 17).

5. This was prepared by the Secretary General of the United Nations for the purpose of guiding governments in enacting legislation against racial discrimination as to what is considered “best practice” at the international level. The General Assembly noted the final draft by decision 48/426 (20 December 1993).

6. Race Discrimination Commissioner, The Racial Discrimination Act 1975: A Review (AGPS, Canberra, 1995) at 59.

7. ADA (Qld) s 119.

8. Anti-Discrimination Board, Submission 1 at 33.

9. H Charlesworth and C Chinkin, “The Gender of Jus Cogens” (1993) 15 Human Rights Quarterly 63-76.

10. Anti-Discrimination Board, Submission 1 at 34.

11. ADA s 31; see also Chapter 6 at para 6.169.

12. DP 30.

13. NSW Ministry for the Status and Advancement of Women, Submission at 23.

14. NSW Women’s Advisory Council, Submission at 5 (the reference to a legal issue appears to be a reference to the criminal law).

15. Catholic Education Commission of NSW, Submission at 3; Seventh Day Adventist Church, Submission at 6.

16. (1997) 71 ALJR 943.

17. IW v City of Perth at 949.

18. RDA s 9(2).

19. (1982) 153 CLR 168.

20. Koowarta at 182-184.

21. Koowarta at 266.

22. The ADB Annual Reports from 1987 have detailed statistics of discrimination complaints by ground. The percentage of employment related complaints have varied between 52% of complaints (1989/1990) to 64% of complaints (1986/1987). In both 1995/1996 and 1994/1995 57% of complaints were employment related: See New South Wales – Anti-Discrimination Board Annual Report 1986/1987; Annual Report 1987/1988; Annual Report 1989/1990; Annual Report 1994/1995; Annual Report 1995/1996.

23. RDA s 15.

24. See ADA s 49ZYI(3). The exception for junior employees from the provisions of the ADA was meant to operate until July 1996, after which it could cease to operate on a day appointed by proclamation. However, as yet the exception has not been repealed.

25. See Chapter 6 at para 6.315.

26. Anti-Discrimination Amendment Act 1997 (NSW) Sch 1[7].

27. SDA s 4; DDA s 4; ADA (Qld) s 4; EOA (WA) s 4; ADA (NT) s 4.

28. ADA s 22B.

29. New South Wales, Department for Women and Attorney General’s Department, Gender Bias and the Law: Women Working in the Legal Profession: Report of the Implementation Committee (Sydney, 1996).

30. ADA (Qld) s 4 definition of “work”.

31. EOA (SA) s 4; DA (ACT) s 4.

32. SDA (Tas) s 3 definition of “employment”.

33. EOA (Vic) s 4 definitions of “employer” and “employment”.

34. See below at para 4.129.

35. Anti-Discrimination Board, Submission 1 at 89-90; Disability Council of NSW, Submission at 4.

36. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 5 December 1996 at 7023ff.

37. It should be noted that the submission of the Combined Community Legal Centre Group specifically argued that members of Parliament should be covered in relation to all acts of discrimination under the Act: Combined Community Legal Centre Group NSW, Submission at 8.

38. See ADA s 52 and discussion of aiding and abetting provisions in Chapter 7 at para 7.215.

39. ADA s 22B(7).

40. EOA (Vic) s 13 and 14.

41. ADA (Qld) s 14-19 and 21-22.

42. See, for example, ADA s 8(1) in relation to race discrimination.

43. ADA s 25(1A). A similar exception also applies in relation to the dismissal by an employer of a woman who was pregnant at the time of application or interview for a position: ADA s 25(2A).

44. Anti-Discrimination Board, Submission 1 at 63; Gay and Lesbian Rights Lobby, Submission at 6; NSW Ministry for the Status and Advancement of Women, Submission at 21; National Pay Equity Coalition, Submission at 2.

45. See Chapter 5 at para 5.40.

46. The Commission has however recommended that all partnerships be covered: see Recommendation 15 above.

47. See, for example, ADA s 8(2) in relation to race discrimination.

48. R Hunter, Indirect Discrimination in the Workplace (Federation Press, Sydney, 1992) at 47 referring to O’Callaghan v Loder [No 2] [1984] EOC 92-023; Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 55; C Niland, “The Litigation Trap in EEO” (1989) 3(3) Directions in Government at 38.

49. See Chapter 5 at para 5.111 and Chapter 6 at para 6.388.

50. Ministry of Defence v Jeremiah [1980] 1 QB 87.

51. Ministry of Defence v Jeremiah, per Brightman LJ at 104.

52. See Chapter 2 for impact of Federal industrial legislation.

53. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 23 November 1996 at 3844.

54. IRA s 3(f) specifically provides that one of the objects of the Act is “to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value”.

55. IRA s 6(f).

56. IRA s 146(2).

57. IRA s 169.

58. IRA s 23.

59. IRA s 169(4).

60. IRA s 9.

61. IRA s 33.

62. IRA s 35.

63. IRA s 167.

64. Anti-Discrimination (Amendment) Act 1994 (NSW) Sch 4[23]. For a discussion of the functions of the former EOT and the new EO Division (of the ADT) see Chapter 9 of this Report.

65. ADA s 88(1A) and 88(1B).

66. Despite the fact that Commonwealth award employees are not specifically excluded under the IRA, in the case of Cohen v Government Insurance Office of Australia Ltd (NSW, IRC, Connor C, 30 September 1996, unreported) the IRC decided that the IRA did not intend to cover Commonwealth award employees. A recent decision of the Full Bench of the IRC has confirmed that the IRA does not apply to Commonwealth award employees (Moore v Newcastle City Council (1997) 43 NSWLR 614). However the Commission reached this conclusion through a construction of the terms of s 83 of the IRA, the provision dealing with the application of the legislation. Having found that the s 83 of the IRA did not contemplate coverage of Commonwealth award employees, constitutional arguments did not require resolution (Moore at 14-15).

67. IRA s 83, as indexed by regulations.

68. This and the following points have been added by regulation and apply to relevant employees who enter into an employment agreement from October 1.

69. For example, standing to bring a claim; processes used to bring a claim; procedures, level of formality and rules of evidence; expertise of members of tribunal; type of remedy sought; possible defences to respondent, ie exceptions; and speed and cost. See also NSW Pay Equity Taskforce, A Woman’s Worth: Pay Equity and the Undervaluation of Women’s Skills in NSW (Issues Paper, 1996) at 69 based on J Niland, Transforming Industrial Relations in NSW: A Green Paper (NSW GPO, 1989-1990) Vol 1.

70. See Rebel Liquor Pty Ltd v Best (1996) 40 AILR 9-055.

71. IRA s 90.

72. (1997) 73 IR 267.

73. The Board has received advice from the Crown Solicitor to the effect that a complainant can have the dismissal dealt with in the IRC with the appropriate remedy; when this is completed they can lodge a complaint with the ADB about the discriminatory treatment while employed.

74. ADA s 95A.

75. ADA s 90(2)(a).

76. ADA s 111(1).

77. Currently damages payable cannot exceed $40,000: s 113(1)(b)(i) ADA. However, in Chapter 10 of this Report the Commission recommends that the limit on damages in the EO Division be increased.

78. ADA s 113.

79. See Chapter 10.

80. Anti-Discrimination Board, Submission 1 at 20-21; Commissioner of Equal Opportunity (SA), Submission at 2; Law Society of NSW, Submission at 3; NSW Department of Industrial Relations Employment Training and Further Education, Submission at 11; Public Service Association of NSW, Submission at 1; D Robertson, Submission at 4.

81. For example the AIS case, in which an industrial practice accepted by all parties and long advocated by the union movement, was found to be discriminatory. See AIS v Banovic (1989) 168 CLR 165; AIS v Najdovska (1988) 12 NSWLR 587.

82. EOA (SA) s 100.

83. See Mercedes Benz (Australia) Pty Ltd v Commissioner for Equal Opportunity [1992] EOC 92-465 per Hayne J at 79,329; Anti-Discrimination Board, Submission 1 at 26; ADA (Qld) s 153 and 154.

84. The Department of Industrial Relations, Employment, Training and Further Education in its submission suggested that information should be provided in major community languages and in forms appropriate for workers with disabilities making print communication difficult: NSW Department of Industrial Relations, Employment, Training and Further Education, Submission at 11.

85 The ADB suggested this, modelled on the Disability Discrimination Legal Centre (Inc), having expertise in both employment and discrimination issues. The NSW Working Women’s Centre provides advice to women on employment issues, including discrimination, but could not be expected to fulfil the role of a specialist legal centre for discrimination in employment: Anti-Discrimination Board, Submission 1 at 20-21.

86. Race: s 8(3); sex: s 25(3)(a); marital status: s 40(3)(a); disability: s 49D(3)(a); homosexuality: s 49ZH(3)(a); age: s 49ZYB(3); and transgender: s 38C(3)(a).

87. RDA s 15(5); SDA s 14(3); DDA s 15(3); DA (ACT) s 24; ADA (NT) s 35(2); ADA (Qld) s 26(1); EOA (Vic) s 16; EOA (SA) s 34(1), 56(1), 71 and 85f(1); EOA (WA) s 11(3), 35B(3), 37(3), 54(4)(a), 66B(3) and 66W(3). Many of the jurisdictions refer to “domestic duties” at the person’s home.

88. SDA s 35(1); DA (ACT) s 25; ADA (Qld) s 27(1); EOA (Vic) s 25 (public or private employment relating to care of children); SDA (Tas) s 26(1)(c) (residential care of persons under 18 years).

89. It is noted that the submission of the Ministry for the Advancement and Status of Women advocated the removal of the exception, based on their argument that the operation of the Act should be extended into the private sphere: NSW Ministry for the Advancement and Status of Women, Submission at 26.

90. DA (ACT) s 26A.

91. RDA s 15(5).

92. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 23 November 1976 at 3340.

93. EOA (Vic) s 21.

94. Quoted in the Report of the Inquiry into Pregnancy Discrimination: NSW Anti-Discrimination Board, “Why Don’t You Ever See a Pregnant Waitress” – Report of the Inquiry into Pregnancy Related Discrimination (Sydney, 1993) at 19.

95. Auckland Gay and Lesbian Lawyers Group, Submission at 1; Combined Community Legal Centre Group NSW, Submission at 9; Disability Discrimination Legal Centre, Submission at 6; Gay and Lesbian Rights Lobby, Submission at 6; NSW Ministry for the Status and Advancement of Women, Submission at 26; National Pay Equity Coalition, Submission at 4; NSW Independent Teachers’ Association, Submission at 1.

96. ADA (Qld) s 16-18; EOA (Vic) s 31; EOA (WA) s 14, 35E, 40, 57, 66E and 66Z.

97. Anti-Discrimination (Amendment) Act 1981 (NSW) Sch 5[9(e)] and 17[c].

98. Australian Bureau of Statistics, Schools Australia (1996) Catalogue No. 4221.0, Table 1.

99. SDA s 38; ADA (Qld) s 29; SDA (Tas) s 26(1)(a); EOA (Vic) s 76 and 77; DA (ACT) s 33(1).

100. Sex Discrimination Act 1975 (UK) s 19.

101. Sex Discrimination Commissioner, Report on the Review of Permanent Exemptions under the SDA 1984 (AGPS, Canberra, 1992).

102. Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (AGPS, Canberra, 1992) (“Lavarch Report”).

103. Lavarch Report at 266.

104. NSW Anti-Discrimination Board, Discrimination and Religious Conviction (Sydney, 1984).

105. Sex Discrimination Commissioner, Sex Discrimination Act 1984 – A Review of Exemptions (AGPS, Canberra, 1992) at 70. See also NSW Anti-Discrimination Board, Discrimination and Religious Conviction ch 7.

106. Sex Discrimination Commissioner Review of Exemptions at 71. See also Anti-Discrimination Board Discrimination and Religious Conviction Chapter 7.

107. Blacktown State Electorate Council, Submission at 1; S Coates, Submission at 2; Combined Community Legal Centre Group NSW, Submission at 9; Disability Discrimination Legal Centre, Submission at 6; P Fitzgerald, Submission at 13; Gay and Lesbian Rights Lobby, Submission at 6; J Griffin, Submission at 1; NSW Ministry for the Advancement and Status of Women, Submission at 24; National Pay Equity Coalition, Submission at 2; NSW Independent Teachers’ Association, Submission at 1.

108. NSW Independent Teachers’ Association, Submission at 2.

109. National Pay Equity Coalition, Submission at 2.

110. Catholic Education Commission NSW, Submission at 3; Presbyterian Church of Australia, Submission at 1; Seventh Day Adventist Church, Submission at 4. See also J McEvoy, Submission at 1.

111. Seventh Day Adventist Church, Submission at 5.

112. NSW Parents’ Council, Submission at 2.

113. B N Bagni, “Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organisations” (1979) 79 Columbia Law Review 1514, referred to in Sex Discrimination Commissioner, Sex Discrimination Act 1984 – A Review of Exemptions (AGPS, Canberra, 1992) at para 4.49.

114. Sex Discrimination Act 1975 (UK) s 19.

115. R Townsend-Smith, Sex Discrimination in Employment: Law, Practice and Policy (Sweet and Maxwell, London, 1989) at 134.

116. See Chapter 6 at para 6.60. For a detailed discussion of the Commission’s recommendation to include religion as a new ground of discrimination see Chapter 5 at para 5.141.

117. See Chapter 5 at para 5.157.

118. See SDA s 38.

119. See Chapter 6 at para 6.430.

120. NSW Anti-Discrimination Board, Annual Report 1995/1996 at 20. The ADB Annual Reports from 1987 have detailed statistics of discrimination complaints by ground. The percentage of goods and services related complaints have varied between 16.5% of complaints (1988/1989) to 24% of complaints (1995/1996) and have always been the second largest in number following the area of employment. In 1995/1996, the ADB received 2613 enquiries of goods and services discrimination and 469 (24%) formal complaints. This constituted a 3% increase from the previous year.

121. M Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, Melbourne, 1990) at 126.

122. Anti-Discrimination Amendment Act 1997 (NSW) Sch 1[9].

123. The pre-amended s 19 applied to:

• the refusal to provide goods or services; or
• the refusal to provide goods or services “of the like quality, in the like manner or on the like terms” as are provided to other members of the public or where the person requesting those services belongs to a section of the public, to that section.
The issue of “requesting” the services was also peculiar to this section. When originally enacted, discrimination on the grounds of sex and marital status in the area of provision of goods and services was identical to the original s 19. When the ADA was amended in 1981 to include discrimination on the ground of physical impairment, the goods and services provisions in relation to sex and marital status were amended to conform with the new provisions in relation to physical impairment. Section 19 remained unamended. This issue was considered in Mahmut v Department of Health [1984] EOC 92-646. The EOT took the view that it is important to endeavour to interpret the Act coherently and interpreted the phrase “person requesting” as simply a way of referring to the person alleging discrimination. The amendment has resolved this problem.

125. Until recently, it included only the following:

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance;

(b) services relating to entertainment, recreation or refreshment;

(c) services relating to transport or travel;

(d) services of any profession or trade; and

(e) services provided by a council or public authority.

127. At para 4.185.

128. 187 complaints or 40% of goods and services complaints: NSW Anti-Discrimination Board, Annual Report 1995/1996.

129. 83 complaints of race discrimination: Anti-Discrimination Board, Annual Report 1995/1996.

130. NSW Anti-Discrimination Board, Annual Report 1994/1995 at 35-36.

131. This is particularly so in relation to physical disability: information supplied by Eric Poulos, Policy Officer, ADB. 12% of complaints were made in relation to services provided by a public authority, 10.5% in goods and in transport/travel, 7% in professional services, 6% in public access, 2% in credit/finance and in local government and 1% in insurance/superannuation. All figures are for the 1996-1997 financial year: information supplied by Michael Sparks, ADB.

132. 42% of the goods and services complaints in 1996-1997 were in the provision of entertainment services (information supplied by Michael Sparks, ADB).

133. Sex Discrimination Act 1975 (UK) s 29.

134. Race Relations Act 1976 (UK) s 20.

135. The list of examples in subsection (2) reads as follows:

(a) access to and use of any place which members of the public or a section of the public are permitted to enter;

(b) accommodation in a hotel, boarding house or other similar establishment;

(c) facilities by way of banking or insurance or for grants, loans, credit or finance;

(d) facilities for education;

(e) facilities for entertainment, recreation or refreshment;

(f) facilities for transport or travel; and

(g) the services of any profession or trade, or any local or other public authority.

137. RDA s 12.

138. CERD Art 5(f).

139. SDA s 22; and DDA s 24.

140. SDA s 24; and DDA s 26.

141. SDA s 26. Thus, in Worrall v Belconnen Community Youth Support Scheme [1986] EOC 92-151, discrimination in the operation of a Commonwealth program for unemployed youth came within the scope of this section. The complaint failed for other reasons.

142. EOA (Vic) s 42.

143. ADA (Qld) s 46.

144. ADA (Qld) s 7(2).

145. ADA (Qld) s 101.

146. ADA (Qld) s 53 and 67.

147. EOA (SA) s 5(1), 39, 61, 76 and 85k.

148. EOA (WA) s 20.

149. EOA (WA) s 19.

150. EOA (WA) s 21A.

151. EOA (WA) s 66N and 66ZJ.

152. DA (ACT) s 20.

153. ADA (NT) s 41.

154. ADA (NT) s 4(8).

155. SDA (Tas) s 16.

156. SDA (Tas) s 21.

157. SDA (Tas) s 3.

158. Complaints in the area of superannuation would fall within para (a) of the definition, which includes “services relating to banking, insurance and the provision of grants, loans, credit or finance” and sporting activities would be covered by para (b) of the current definition which includes “services relating to entertainment, recreation or refreshment”.

159. EOA (WA) s 4(1).

160. (1997) 71 ALJR 943.

161. IW v City of Perth at 947-951.

162. IW v City of Perth at 954.

163. IW v City of Perth at 956-957.

164. IW v City of Perth at 964-966.

165. IW v City of Perth at 983-985.

166. IW v City of Perth at 954.

167. IW v City of Perth at 955.

168. See s 49M(1), which contains para (a) (refusal) and (b) (terms) but contains no equivalent to para (c) of s 66K(1) of the WA Act, referring to the manner in which the services are provided.

169. IW v City of Perth at 947.

170. IW v City of Perth at 949.

171. IW v City of Perth at 966.

172. IW v City of Perth at 949.

173. See below at para 4.301.

174. ADA definition of “services”: para (f) provides that “services” include “services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not”.

175. See below at para 4.185.

176. P G Osborn, Osborn’s Concise Law Dictionary (7th edition, Sweet and Maxwell, London, 1983).

177. H N Mozley, Mozley and Whitley’s Law Dictionary (11th edition, Butterworths, 1993).

178. [1985] EOC 92-142.

179. The benefits derived from this service were listed in the judgement and included proof of age proof of identity/age for obtaining a passport, proof of next of kin for inheritance purposes.

180. [1993] EOC 92-486.

181. [1991] EOC 92-377.

182. [1994] EOC 92-634 at 77,380. This was the case known as IW v City of Perth on appeal to the High Court.

183. According to the ADB’s Annual Reports over the last five years, complaints in the area of education have constituted only 3-5% of all complaints received. In 1995/96 it constituted 3% compared with employment, which constituted 55%.

184. G Rowe, “Different Children: Legal Responses to Discrimination in Schools” in R Chisholm (ed), Teachers, Schools and the Law in NSW (NSW University Press, Sydney, 1987) at 116-148.

185. ADA s 4(1) definition of “educational authority” lists the institutions covered.

186. [1984] EOC 92-030.

187. (1987) 8 NSWLR 442.

188. Leves v Haines (1987) 8 NSWLR 442.

189. In NSW the definition of an educational authority also specifies the institutions covered. In all other jurisdictions which specifically prohibit discrimination in employment, there are separate definitions for educational authority and educational institution – however, the content is the same. The exception applicable in NSW to private educational institutions is not as wide in other jurisdictions. See below at para 4.178.

190. CERD Art 5(e)(v) refers to the right to education and training.

191. SDA s 38(3).

192. ADA (Qld) s 42.

193. EOA (SA) s 50(2).

194. EOA (WA) s 73, 44(3) and 61(3).

195. DA (ACT) s 33(2).

196. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 24 November 1976 at 3391.

197. For a further discussion of the changes recommended to the harassment provisions see Chapter 7 at para 7.8.

198. ADA s 32.

199. Butler v Stewart [1995] EOC 92-690.

200. ADA s 49ZYM inserted by Anti-Discrimination (Age Discrimination) Amendment Act 1993 (NSW), repealed by Anti-Discrimination Amendment Act 1997 (NSW).

201. ADA s 38L inserted by Transgender (Anti-Discrimination and Other Act Amendment) Act 1996 (NSW), repealed by Anti-Discrimination Amendment Act 1997 (NSW).

202. ADA s 18, 32, 38L and 49ZYM.

203. The repealing provisions contained in the Anti-Discrimination Amendment Act 1997 (NSW) commenced operation on 4 July 1997.

204. [1995] EOC 92-721.

205. Wolk v Randwick City Council at 78,410.

206. (1997) 71 ALJR 943.

207. RDA s 11.

208. RDA s 13.

209. SDA s 22.

210. DDA s 23.

211. Pearce v Council of the City of Sydney [1985] EOC 92-131.

212. Anti-Discrimination Board, Submission 1 at 87; Australian Quadriplegic Association, Submission at 1; R Brading, Submission at 1; Commissioner for Equal Opportunity (SA), Submission at 6; Disability Council of NSW, Submission at 4; Disability Discrimination Legal Centre, Submission at 1; Family Resource and Network Support Inc, Submission at 1; P Jenkin, Submission at 2. In relation to disability discrimination, the submission of the ADB specifically recommended the introduction of disability standards (similar to those provided under s 31 of the DDA) as a possible solution to this problem: Anti-Discrimination Board, Submission 1 at 87.

213. See Chapter 3 para 3.58 and Recommendation 4.

214. Combined Community Legal Centre Group NSW, Submission at 8; Disability Council of NSW, Submission at 4; Gay and Lesbian Rights Lobby, Submission at 9.

215. ADA s 20 (race), s 34 (sex), s 38N (transgender), s 48 (marital status), s 49N (disability), s 49ZQ (homosexuality) and s 49ZYO (age).

216. In 1995/1996 the Board received 75 complaints regarding discrimination in accommodation which constituted 4% of complaints received: NSW Anti-Discrimination Board, Annual Report 1995/1996. The figures were similar in 1994/1995 (82 complaints) and 1993/1994 (52 complaints). In comparison with the number of complaints received, the Board received 1091 enquiries regarding accommodation discrimination in 1995/1996: NSW Anti-Discrimination Board, Annual Report 1995/1996.

217. ADA s 4.

218. Dealt with below at para 4.289.

219. ADA s 20(3) (race), s 34(3) (sex), s 38N(3) (transsexual), s 48(3) (marital status), s 49N(3) (disabled), s 49ZQ(3) (homosexuality) and s 49ZYO(3) (age).

220. ADA s 49N(5).

221. ADA s 49N(6).

222. ADA s 59.

223. See Chapter 6 at para 6.95.

224. RDA s 12.

225. SDA s 23 and 24; DDA s 25 and 26; EOA (Vic) s 47 and Pt 3 Div 5; ADA (Qld) Pt 4 Div 7 and 8; EOA (SA) s 38 and 40; EOA (WA) s 21 and 21A.

226. SDA s 23.

227. DDA s 25.

228. DDA s 25(2)(d).

229. EOA (Vic) s 50(a).

230. EOA (Vic) s 50(d) and (e).

231. EOA (Vic) s 58.

232. ADA (Qld) s 81-92.

233. EOA (WA) s 21, 26, 32, 35L, 47, 49C, 63, 66L and 66ZG.

234. ADA (NT) s 38-40.

235. EOA (SA) s 40, 62, 77 and 85L. South Australia does not however have an unjustifiable hardship defence to the provision of accommodation in relation to impairment. Instead s 84 excepts discrimination that occurs because the premises are constructed in a way that they are inaccessible or where the owner or occupier of the premises fails to ensure that every part or a particular part is accessible to the person.

236. DA (ACT) s 21.

237. In 1995/1996, 20 (age), 19 (race), 12 (martial status); in 1994/95, 30 (race), 17 (age), 7 (marital status). In 1993/1994, 17 (race), 10 (marital status), age was not a prohibited ground.

238. Information supplied by D Ramsay, Policy Officer, Tenancy Union of NSW (24 June 1997).

239. [1996] EOC 92-790.

240. The Board has even received an application from a real estate agency for exemption from the ADA to allow refusal of applications from people with children documenting damage done by the children of previous tenants to the premises.

241. Note that in South Australia, there is an exception where accommodation is provided for recreational purposes where the use of that accommodation is limited, on a genuine and reasonable basis, to persons of a particular age group: EOA (SA) s 85l(5).

242. M Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, Melbourne, 1990) at 127.

243. Olsen v Public Housing Authority (ADB, February 1980, unreported).

244. Burke v Trallagan [1986] EOC 92-161, where the EOT found that owners who refused to rent a unit to an unmarried couple because of the owner’s religious beliefs had unlawfully discriminated against the couple.

245. Tenants Union of NSW, “Discrimination and the Private Rental Market – Problems Faced by Tenants of NESB”, Submission to the National Housing Strategy (February 1992).

246. M Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, Sydney, 1990) at 129.

247. For example, private dwellings include cabin, houseboat, improvised home, tent, house or flat attached to a shop, office etc and non-private dwellings include nursing home, childcare institution, convent, monastery: ABS Census Dictionary 1996.

248. It is worth noting that the Residential Tenancies Act 1987 (NSW) deals with the rights and obligations of landlords and tenants under residential tenancy agreements. Although the remedies available are limited, the Tenancy Union has suggested that that Act should include a provision making it unlawful to discriminate on the grounds prohibited under the ADA as the complainant will often require a quick resolution which the Residential Tenancies Tribunal is better equipped to provide. (Tenants Union of NSW “Discrimination and the Private Rental Market – Problems Faced by Tenants of NESB” Submission to the National Housing Strategy (February 1992); confirmed by D Ramsay, Policy Officer, Tenancy Union of NSW (24 June 1997)).

249. RDA s 12(3).

250. SDA s 23(3).

251. DDA s 25(3).

252. ADA (Qld) s 87.

253. EOA (WA) s 21(3).

254. EOA (Vic) s 54.

255. EOA (SA) s 40(3).

256. DA (ACT) s 26.

257. SDA (Tas) s 26(1).

258. ADA (NT) s 40(1).

259. Anti-Discrimination Board, Submission 1 at 93.

260. ADA s 4.

261. ADA s 34A(3) and 34A(4).

262. ADA s 20A(3), s 49O(3) and s 49ZR(3) respectively.

263. See Chapter 6 at para 6.152, 6.188, 6.297, 6.356.

264. ADA s 4.

265. Either under the Corporations Law or, if it was registered or applied for registration before the commencement of Pt 10, as a co-operative under the Co-operatives Act 1992 (NSW).

266. New South Wales, Liquor Administration Board (Department of Gaming and Racing), Annual Report 1995-1996 at Appendix 8.

267. For example, ADA s 28(1) and (2) applying to discrimination on the ground of sex.

268. ADA s 57 and see Umina Beach Bowling Club v Ryan [1984] EOC 92-110; Tullamore Bowling and Citizens Club Ltd v Lander [1984] EOC 92-109.

269. ADA s 57. A registered club is not a “voluntary body” under s 57(2).

270. ADB, Submission 2 at 5-7.

271. See Chapter 6 at para 6.73, Recommendation 47.

272. SDA s 4.

273. SDA s 39.

274. The prohibition applies also to a committee of management of a club or incorporated association or a member of such a committee.

275. DDA s 4.

276. RDA s 11.

277. CERD Art 5(e)(vi) and 5(f).

278. This may give rise to issues of inconsistency between the ADA and the RDA. Presently, the ADB refers any race discrimination complaints about voluntary bodies which are outside the jurisdiction of the ADA to HREOC.

279. EOA (Vic) s 78.

280. EOA (WA) s 4; ADA (NT) s 4; and SDA (Tas) s 3.

281. EOA (WA) s 71(1) and 71(2).

282. DA (ACT) s 31.

283. ADA (Qld) s 4.

284. At that time, there were over 1500 registered clubs with a total membership of more than 1.5 million people. Some clubs had memberships of several thousands and reported turnovers of millions of dollars a year: New South Wales, Parliamentary Debates (Hansard) Legislative Council, 25 March 1981 at 5114.

285. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 25 March 1981 at 5114.

286. Anti-Discrimination Board, Submission 2 especially at 16-21; Anti-Discrimination Board Submission 1 at 117-118; J Anderson, Submission at 6; J Clementson, Submission at 1; Combined Community Legal Centre Group NSW, Submission at 9; Disability Discrimination Legal Centre, Submission at 6; Gay and Lesbian Rights Lobby, Submission at 9; NSW Ministry for the Advancement and Status of Women, Submission at 24; National Pay Equity Coalition, Submission at 2; NSW Independent Teachers’ Association, Submission at 1; D Robertson, Submission at 13. It should be noted, however, that the submission of the Seventh Day Adventist Church specifically opposed the repeal of the exception for voluntary bodies from the operation of the Act: Seventh Day Adventist Church, Submission at 5.

287. For a discussion of the Commission’s recommendation to repeal the voluntary bodies exception see Chapter 6 at para 6.87.

288. Anti-Discrimination Board, Submission 2 at 13.

289. National Pay Equity Coalition, Submission at 2.

290. Anti-Discrimination Board, Submission 2 at 13.

291. Statistics from the Department of Fair Trading, which administers the Associations Incorporation Act 1984 (NSW), shows that over the last four years, over 2000 new associations have become incorporated annually. Figures reported by Anti-Discrimination Board, Submission 2 at 12.

292. There were 1525 clubs at 30 June 1996, down from 1558 at 30 June 1992: New South Wales, Liquor Administration Board (Department of Gaming and Racing), Annual Report 1995-1996 at Appendix 8.

293. As at 30 June 1996: Anti-Discrimination Board, Submission 2 at 12-13.

294. NSW Anti-Discrimination Board, Annual Report 1995-1996 at 15.

295. A number of submissions received by the Commission argue that a body which receives public funding for a program from either Federal, State or local government should not be able to discriminate in the area of membership or restrict the benefits, services or facilities that are publicly funded to members: Anti-Discrimination Board, Submission 1 at 118; National Pay Equity Coalition, Submission at 2.

296. Corporations Law s 114.

297. Associations Incorporation Act 1984 (NSW) s 71.

298. Anti-Discrimination Board, Submission 2 at 19.

299. For example, political parties receive $1.50 for every vote obtained, parliamentary salaries are paid from public funds and parties have a certain amount of free access to media advertising during elections to promote their agendas: Women in Politics, an incorporated coalition of women’s organisations, reported in Anti-Discrimination Board, Submission 2 at 18.

300. Many of these would be members of national associations but for the purposes of the ADA, the issue is whether the body carries on activities in NSW.

301. The guidelines are effective in the 1996-1997 financial year.

302. Anti-Discrimination Board, Submission 2 at 19.

303. See Chapter 6 at para 6.152, 6.188, 6.297, 6.356, 6.436.

304. EOA (Vic) s 47; ADA (Qld) Pt 4 Div 7; EOA (SA) s 38 (sex, sexuality, marital status or pregnancy), s 60 (race), s 75 (impairment), s 85j (age); and EOA (WA) s 21A (sex, marital status or pregnancy), s 47A (race), s 66ZH (age).

305. The submission of the Combined Community Legal Centre Group specifically argued that the Act should be amended to cover disposal of interests in land across all grounds of discrimination: Combined Community Legal Centre Group NSW, Submission at 9.

306. SDA s 24.

307. DDA s 26.

308. RDA s 12.

309. RDA s 3.

310. EOA (Vic) s 47. See also EOA (Vic) s 49 and 50. The Victorian prohibition applies despite anything to the contrary in any other Act or document affecting the land.

311. ADA (Qld) s 48.

312. [1991] EOC 92-389.

313. (1985) 159 CLR 70.

314. Gerhardy v Brown at 122.

315. Native Title Act 1993 (Cth) s 253 and see various lands acquisitions acts. See also Maddalozzo v Commonwealth (1978) 34 FLR 332 at 334.

316. Conveyancing Act 1919 (NSW) s 7.

317. P Butt, Land Law (3rd edition, LBC Information Services, Sydney, 1996) at 782.

318. The CCH Macquarie Dictionary of Law (2nd ed, CCH, Sydney, 1993).

319. Butt at 783.

320. Community Land Development Act 1989 (NSW); Community Land Management Act 1989 (NSW); Strata Titles (Community Land) Amendment Act 1989 (NSW); and Miscellaneous Acts (Community Land) Amendment Act 1989 (NSW).

321. For example, if there are 100 apartments in the resort, each with 51 weekly “intervals” for sale, a purchaser of two weeks in one apartment will obtain 2/5100th interest as tenant in common in the real estate of the resort: Butt at 813.

322. Given the same facts as above, the purchaser will obtain a 2/51th interest in Lot 1 (Butt at 813).

323. See above at para 4.160, Recommendation 19.

324. Words and Phrases Legally Defined (3rd ed, Butterworths, London, 1989) Volume 2 at 327.

325. See, for example, Mahmut v NSW Department of Health [1994] EOC 92-646.

326. ADA s 22J (inserted by Anti-Discrimination Amendment Act 1997 (NSW)).

327. ADA s 22J(2).

328. ADA s 4.

329. Woods v Wollongong City Council [1986] EOC 92-174; Gulliver v Council of City of Sydney [1986] EOC 92-185; Byham v Preston City Council [1991] EOC 92-377; Williams v Council of the Shire of Exmouth [1990] EOC 92-296 .

330. Hough v Council of the Shire of Caboolture [1993] EOC 92-480.

331. A v Caboolture Shire Council [1992] EOC 92-403.

332. SDA s 28L.

333. [1997] EOC 92-881; See also Commonwealth v Human Rights and Equal Opportunity Commission (1997) 77 FCR 371.

334. Commonwealth v Human Rights and Equal Opportunity Commission (1997) 77 FCR 371.

335. M Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, Melbourne, 1990) at 132.