6.1 The philosophy underlying anti-discrimination law is that the proscribed grounds should be irrelevant considerations in relation to any activity occurring within defined areas. However, that proposition may not be universally correct: where a ground is a legitimate consideration, that fact should be identified as an exception to the general proscription. Such exceptions may be classified into general exceptions that apply to all grounds and special exceptions that apply to some grounds or in relation to particular areas of operation only. In addition, the Anti-Discrimination Act 1977 (NSW) (“ADA”) also makes provision for the granting of exemptions in respect of a person or class of persons or activity or class of activities on a case by case basis. This chapter deals with all the general exceptions, the power to grant exemptions and the special exceptions that have not been previously considered in relation to particular areas. Those “exceptions” that arise in defining the areas of operation have been dealt with in Chapter Four.

6.2 The present exceptions are both too limited and inflexible in some areas and too broad or simply inappropriate in others. Because discrimination law protects fundamental human rights, the prohibitions should not be lightly displaced. There must be good justification for any genuine exception. Many of the original exceptions included in the ADA in 1977 reflected the prevailing social attitudes at the time of its introduction, and reflected caution and a desire to minimise disruption to public life at a time when the legislation was seen as radical and innovative. Many derogate from the international conventions which Australia has ratified. For instance, Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) declares that the right to work is an inalienable right of all human beings, and parties are called upon to prohibit dismissal because of pregnancy, maternity leave and marital status. The exceptions in the ADA for private educational authorities and small businesses find no equivalent in international covenants nor in the Federal legislation.

6.3 With the passage of time, there has been a general acceptance in the community of the need for anti-discrimination legislation.¹ In fact, of the submissions which the Commission received, only two did not support the overall concept of anti-discrimination legislation.² Many of the exceptions seem anachronistic after almost two decades of anti-discrimination legislation in Australia. The Federal discrimination legislation in the areas of race, sex and disability contain fewer exceptions and reflect the growing acceptance of the need for anti-discrimination legislation with broad application.

6.4 While general exceptions will be justified in some circumstances, there are other situations where it would be more appropriate to deal with the matter by way of a specific exception. Some submissions supported the lifting of all specific and general exceptions to the ADA, with the President of the Anti-Discrimination Board (“ADB”) retaining the power to grant exemptions on individual application. The ADB itself preferred to retain some exceptions, but to limit the scope of operation of the existing provisions.

General Exceptions

6.5 Apart from the exceptions provided in relation to specific grounds, some of which apply to a number of grounds, the ADA provides for general exceptions in Part 6. As presently defined, the general exceptions cover:

• acts done under statutory authority;³
• the conferral of charitable benefits;⁴
• religious bodies;⁵
• voluntary bodies;⁶ and
• establishments providing housing accommodation for aged persons.⁷

Statutory authority

Definition

6.6 Section 54 of the ADA provides an exception in the following terms:

s 54(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of –

(a) any other Act, whether passed before or after this Act;

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act;

(c) an order of the Tribunal;

(d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment.

Legislative history

6.8 An exception in similar form was included in the ADA from the first stages of drafting. However, it is clear from the parliamentary debates on the Anti-Discrimination Bill 1976 (NSW) that it was only meant to be a temporary measure pending a review of other legislation to identify discriminatory provisions. The then Premier, the Hon Neville Wran QC, in his Second Reading Speech, said:

Many of the statutes in their present form are discriminatory. It is, therefore, proposed in clause 130 [see s 119(d) of the ADA] that the Anti-Discrimination Board be established to undertake a review of the legislation of the State, and of governmental policies and practices, to identify discriminatory provisions, and to report these matters to the Government. Clause 65 [see s 54 of the ADA] provides that in the meantime this Act shall not apply to provisions of other Acts, or to instruments made or approved under any other Act.⁹

Scope of the exception

6.10 In its original form, the exception provided that “nothing in this Act affects anything done by a person in compliance with ... any other Act”. This wording was clearly too wide and could virtually negate the purported operation of the ADA altogether, since it could be argued that all public activity is, to some extent, legislatively regulated.¹¹ This problem was exemplified in Director General of Education v Breen¹² where it was held that discretionary action done in compliance with an instrument was sufficient to bring an impugned activity within the section. Consequently, following repeated submissions by the ADB, the words “if it was necessary for the person to do it” were inserted in 1982 in place of the phrase “in compliance with”.¹³ The EOT has since applied the exception more narrowly,¹⁴ and has held that the mere exercise of a discretion¹⁵ or policy¹⁶ is no longer protected. Although it is now limited to acts that are necessary, rather than merely convenient or within the operation of a statutory discretion, the exception still has considerable breadth. That fact is partly recognised by the provision that the s 54 exception itself does not apply to compulsory retirement under the ADA.¹⁷

Other jurisdictions

6.11 Other jurisdictions in Australia and overseas adopt different approaches to acts done in compliance with other statutes. Some overseas and Australian anti-discrimination legislation, including the Racial Discrimination Act 1975 (Cth) (“RDA”), provide no equivalent exception.¹⁸

6.12 The Sex Discrimination Act 1984 (Cth) (“SDA”), Disability Discrimination Act 1992 (Cth) (“DDA”) and the Equal Opportunity Act 1984 (WA) (“EOA (WA)”), on the other hand, have partial exceptions, insofar as legislation which is specifically stipulated in the Act or in regulations is exempt.¹⁹ The DDA allowed a three year sunset period that has now lapsed. All legislation is now subject to the DDA without exception unless it is prescribed under s 47(2).

6.13 The Queensland Anti-Discrimination Act 1991 (“ADA (Qld)”) exempts acts done in compliance with provisions of other Acts, awards or individual agreements which were in existence when the section commenced, court orders and orders of the Anti-Discrimination Tribunal.²⁰

6.14 Sections 69 and 70 of the Equal Opportunity Act 1995 (Vic) (“EOA (Vic)”) exempt any act done by a person if it was necessary in order to comply with any statute, or an instrument made by or approved under any other statute, or an order of the Equal Opportunity Board or any other court or tribunal.²¹ However, the legislation provides that the Minister must undertake a review of all Victorian legislation to identify discriminatory provisions in that State’s legislation.²²

Submissions

6.15 Many submissions expressed concern at the breadth of the s 54 exception and the status which it accords anti-discrimination legislation in the overall framework of legislative regulation.²³ The generality of this exemption was said to undermine the integrity of the legislation:

Not only has anti-discrimination legislation not been given an entrenched status, as is the case with constitutional guarantees, but the usual principle of statutory construction in which the most recent enactment overrules the former has been waived in some legislation.²⁴

All other legislation still prevails over the Anti-Discrimination Act – this should not continue. There should now be a final review of what can be addressed and a sunset provision put in place to ensure that discriminatory legislation becomes invalid, to the extent that it is discriminatory, by a particular date.²⁵

6.17 The effect of s 54(1) is that the usual tenets of statutory interpretation are overturned:

• the ADA does not impliedly repeal the earlier Acts;
• regulations can override the ADA; and
• other general laws can override the specific provisions of the ADA.

Section 40 throws into sharp relief the debate about whether an Act protecting human rights legislation is an Act that can be overridden by another Act of Parliament because of the supremacy of Parliament, or whether it is different in that it sets a standard with which other legislation should comply.²⁶

6.20 In 1991 a new s 40A was added which provides for mandatory Ministerial review of the operation of the exceptions contained in subsections 40(2) and (3) and for recommendations as to whether the subsections should be repealed.²⁹

6.21 The ADB has submitted that the ADA should set a standard with which other legislation should comply and has, on several occasions, recommended that all State legislation should be consistent with the ADA unless an exemption can be justified on policy grounds.³⁰ To add to its 1978 review, the ADB has also identified many areas of life where gay and lesbian people are discriminated against under various Acts. This review was included in its submission to the Commission.³¹

6.22 As the Victorian Law Reform Commission and the Victorian Scrutiny of Acts and Regulations Committee have argued, a law should only be exempt if a clear decision has been taken that it should be exempt. This view was also supported by many submissions, including those from the ADB and the Law Society.³²

Operation of the s 54 exception

6.23 Impact of s 54(1)(a) and (b). The equivalent provision in the EOC (Vic) was considered by the High Court in Waters v Public Transport Corporation.³³ The Court adopted a narrow interpretation providing no protection of the exercise of discretionary powers by way of ministerial directives which did not constitute formal instruments made under an Act. As noted by Chief Justice Mason and Justice Gaudron:

Anything that it is necessary to do in order to comply with an exercise of statutory power can, as a matter of language, be said to be necessary “in order to comply with” the legislative “provision” conferring (and expressly and impliedly requiring obedience to) the statutory power. On the other hand, and depending upon context, a reference to what is necessary to comply with “a provision of ... any other Act” can be construed as referring only to what it is necessary to do in order to comply with a specific requirement directly imposed by the relevant provision as distinct from a requirement imposed by some person in the exercise of some power conferred by the provision ... If the relevant words fell to be construed in isolation, we would favour the wide construction of them. When par (e)(ii) is construed in its context in the Act, however, it appears to us that the narrow construction is the preferable one.³⁴

6.25 The cases suggest that s 54 operates principally in the area of employment on the ground of disability, where employers have sought to rely upon s 54 on the basis that their action was necessary in order to comply with the provisions of the Occupational Health and Safety Act 1983 (NSW) (“OH&SA”), in particular s 15 and 16. For example, in Kitt v Tourism Commission,³⁷ the complainant suffered from epilepsy. He argued that his employer, the Tourism Commission, discriminated against him because of his physical impairment by refusing to give him a permanent job as a guide in the Jenolan Caves. The employer argued that if the complainant suffered an epileptic seizure at work, the safety of visitors and other employees would be endangered. The EOT looked at the likelihood of the complainant suffering from a seizure at work and the likely consequences if he did so and decided that in the circumstances of the case, there was no objective evidence that continuing to employ Mr Kitt would expose visitors to the caves to any safety risks.

6.26 In Hawes v NSW Ambulance Service,³⁸ the complainant was an ambulance officer whose employment was terminated on medical grounds after he suffered an epileptic seizure. The EOT found that the complainant was subject to an “unacceptably high risk of further seizures” and because of the nature of his work, the consequences could be severe not only for himself but also for fellow employees and the community at large. Accordingly, the EOT found that it was necessary for the Ambulance Service to discriminate in order to comply with the requirements of the OH&SA.

6.27 In Burrows v Commissioner of Police,³⁹ the complainant, a Transit Police Officer who suffered from insulin dependent diabetes, was denied a transfer to the New South Wales Police Service on the basis of his illness. The respondent contended that it was obliged not to employ a person with a congenital but foreseeable risk of suffering impaired cognitive function while engaged in dangerous activities. Rejecting this argument, the EOT stated:

such a strict interpretation of the consequences of the sections is not the intention of the legislation. Were such a narrow and restrictive interpretation given, then effectively any employee who was not physically perfect, working in the police force would effectively be covered... These sections impose only a general obligation on an employer and not a specific requirement which would authorise conduct which would otherwise be unlawful under the Act.⁴⁰

6.29 Finally, broad statutory exemptions have been relied upon in relation to protective legislation. Insofar as age discrimination provisions may now impact on legislation designed to protect children, this matter will be dealt with below.⁴³ The other major area of protective legislation has been in relation to women in employment. For example, there is currently a provision in force in New South Wales which prohibits the employment of women (and males under 18 years of age) in certain areas of the lead processing industry.⁴⁴ There has for decades been legislation which “protected” women from engagement in jobs which involved lifting more than 16 kg.⁴⁵

6.30 The history of such protective provisions suggests that they are frequently the product of social circumstances which may reflect discriminatory practices or policies. If such laws are to have continued operation, they should be the subject of careful justification in relation to the circumstances in which they purport to operate. Consideration of such justifications is properly the function of the body responsible for considering an exemption under s 126. A case study of the benefits of adopting this approach may be found in relation to the employment of women in the lead industry in South Australia. An exemption was granted by the EOT for a three year period on the basis that the company required time to develop its programs and facilities for women at its plant. In particular, the effect of the exemption was to identify areas where there was a significant risk of lead contamination and adopt programs designed to restrict or minimise the risks and, in particular, identify job classifications which were not subject to significant risk.⁴⁶ The matter was further considered at the expiration of the three year period of the first exemption. A further application was made on a more restricted basis. In considering the application, the EOT noted that:

the applicant is to be congratulated on its efforts to make its plant a safer workplace for all its workers and, in particular, a safer and more accessible workplace for potential and existing women employees.⁴⁷

The granting of the various exemptions is not to be taken as an acceptance of the status quo but rather as an opportunity for the continuation of the well-ordered and safe introduction of women into this particular industry. We are concerned that, unless the relevant parties are diligent in their efforts, progress towards the employment of women in the industry may continue to be slow.⁴⁸

6.33 Impact of s 54(1)(c) and (d). In relation to s 54(1)(c) and (d), neither the cases nor the submissions indicate a need to preserve them. There is no equivalent provision in any of the Commonwealth legislation and, in other Australian jurisdictions, only the EOA (Vic) has a similar provision.⁴⁹

Conclusion

6.34 In relation to Acts, delegated legislation and statutory instruments, there appears to be no justification for a universal overriding exception. Accordingly, s 54, in its present form, should be repealed. As a matter of principle, the law should define with specificity its area of operation and whether its application is universal or otherwise. The key policy considerations were clearly enunciated by Justice McHugh in Waters. Discussing the power given to the Minister under s 31(1) of the Transport Act 1983 (Vic), his Honour stated:

The power of the Minister to give directions under s 31(1) is subject to the operation of the general law. By the general law, I mean the body of common law and equitable rules which are supplemented or amended by statutes and regulations and other instruments having the force of law. Section 31(1) therefore, would not authorise a direction that the corporation commit a crime or a tort or breach a contract or by-law. Nor would it authorise a direction that the corporation commit a breach of a statute such as the Act. These propositions, though not directly expressed in the Transport Act are self-evident. They are self-evident because, under a Government of laws and not of men and women it is axiomatic that, in the absence of express words or necessary intendment, Parliament does not intend the recipient of the power to authorise a Minister, statutory body or Government official to break the general law of the land.⁵⁰

6.36 The ADB has proposed that agencies responsible for various Acts of Parliament should be given a period of time, between six months and two years, in which to make a submission to a parliamentary committee as to why any Act or regulation which breaches the ADA should be preserved. The committee would then determine on the basis of arguments put by the agency concerned and the ADB and other concerned organisations, whether the discriminatory provision should remain or be repealed or amended. Any provisions of Acts or regulations which the committee decides should be exempt from the ADA could then be contained in a schedule to the ADA or, alternatively, a s 126 exemption be granted in respect of those provisions.⁵¹

6.37 The Commission has given careful consideration to the possibility that unintended consequences may flow from the proposed repeal of s 54. However, there are grounds for thinking that this would be unlikely. First, the legislation has now been in force for almost two decades and there are only a handful of cases in which s 54 has been relied upon successfully.⁵² Secondly, the Act has been amended to remove the exception in relation to awards and industrial agreements⁵³ and current industrial legislation seeks to ensure that all such instruments comply with the principles of the ADA.⁵⁴

6.38 Thirdly, the exception in relation to an order of a court or tribunal seems to be unnecessary. Again, so far as the Commission is aware, it has never been relied on in the EOT, is not available in all jurisdictions and has never, to the Commission’s knowledge, given rise to any serious issue. It is difficult in principle to see that any real issue could arise where conduct was undertaken in order to comply with a court order: the necessary preconditions for a contravention of the ADA would simply not be satisfied.

6.39 Finally, administrative arrangements can be made to ensure that offending provisions, if any, are identified after publication of this Report.

6.40 Operation of s 54(3). This provision is curiously worded:

(3) Except as provided by this section, this Act has effect notwithstanding anything contained in:

(a) the Co-operation Act 1923;

(b) the Financial Institutions (New South Wales) Act 1992;

(c) the Friendly Societies Act 1989;

(c1) the Co-operatives Act 1992;

(d) the Gaming and Betting Act 1912;

(e) (Omitted by No 9 of 1997 Sch 1(20));

(f) the Registered Clubs Act 1976; or

any instrument of whatever nature made or approved thereunder.

6.42 Impact of proposed repeal of s 54 on particular grounds under the ADA. As mentioned above, a number of reviews of State legislation have been undertaken by the ADB to identify legislative provisions which are inconsistent with the ADA. The 1978 review covered race, sex and marital status discrimination. In 1994, a number of Acts which appear to discriminate against persons in a homosexual relationship were identified. Also, as part of the moratorium provided under the DDA, the Attorney General’s Department conducted a review of New South Wales legislation which was inconsistent with the DDA. Reviews have not been undertaken in respect of the new grounds of age and transgender status discrimination, but it is proposed below that an equivalent exception apply in relation to age. The Commission does not believe that any separate issues arise in relation to transgender status, as that ground is currently defined.

6.43 In relation to sex discrimination, the exception is used most frequently to protect discriminatory provisions contained in laws relating to occupational health and safety and insurance and superannuation. The Commission believes that legislation should generally be drafted with principles of gender equality in mind, and only in special circumstances should legislation treat one sex differently from the other. There are examples in the area of health and safety laws which seek to use sex as an excuse for poor workplace practices and show how stereotyping and discriminatory legislation can be detrimental, not only to those discriminated against, but also to other people.

6.44 Exceptions may, however, need to be made in some circumstances, particularly in relation to disability discrimination. For example, it has been suggested that forms of HIV/AIDS-related discrimination are made necessary by the operation of other Acts, such as occupational health and safety laws.⁵⁵ While such discrimination should not be arbitrary, there may be situations, particularly in certain kinds of employment, where being HIV positive may expose others to risks. These circumstances justify a public health exception and are discussed further below.⁵⁶

6.45 The repeal of s 54 will have only a limited impact on the discriminatory treatment of persons in a gay or lesbian relationship whilst such relationships are not recognised at law in the same way as heterosexual relationships. If, however, the Commission’s recommendation to extend the definition of “marital status” to cover homosexual relationships is approved, the repeal of s 54 may have a potential impact in a variety of areas. Although there may be some areas where exemptions on this ground can be justified, it is important that these areas should be dealt with on an individual basis, if not already covered by a specific exception in the ADA, rather than by a general exception as is currently the case. The same principle should apply in relation to other grounds under the ADA.

6.46 Because the effect of the proposed repeal of the universal exception could have unintended consequences, its operation should be delayed for 12 months. The intention is not that further amendments be made, but that, if considered necessary, exemptions be granted under s 126 (as to which see below) in relation to specific activity.

Recommendation 43

Repeal s 54 (general exception for acts done under statutory authority) with effect from 12 months after the commencement of the new Act.

Draft Anti-Discrimination Bill 1999: cl 63

Recommendation 44

All new legislation should be scrutinised to ensure compliance with the ADA.

Definition

6.47 Section 55 of the ADA is in the following terms:

(1) Nothing in this Act affects –

(a) a provision of a deed, will or other instrument, whether made before or after the day appointed and notified under section 2(2), that confers charitable benefits or enables charitable benefits to be conferred on persons of a class identified by reference to any one or more of the grounds of discrimination referred to in this Act; or

(b) an act which is done in order to give effect to such a provision.

(2) In this section “charitable benefits” means benefits for purposes that are exclusively charitable according to the law in force in any part of Australia.

Other jurisdictions

6.49 The RDA,⁵⁸ SDA⁵⁹ and DDA⁶⁰ provide exceptions for charitable benefits, which mirror the ADA provision. All States⁶¹ and the Northern Territory⁶² provide an exception for charitable benefits in similar terms.

Submissions

6.50 The ADB submitted that this provision has not caused any difficulties and supported the retention of s 55 on the basis that individuals should have the right to leave their property or bestow a gift on whomever they see fit.⁶³ Other submissions suggested the repeal of this exception.⁶⁴ It has been suggested that this exception is unnecessary because it is unlikely that a deed or will which establishes a charitable trust will not have a beneficial public purpose. A trust which furthered a racist, sexist or other such purpose is unlikely to be charitable or lawful.

Discussion

6.51 Section 55 is conceptually inappropriate. It refers to provisions in instruments and activities which occur to give effect to a deed, will or other instrument: this is not in itself an area of proscribed conduct. Similarly, it envisages the conferral of “charitable benefits”, a phrase which is defined as “benefits for purposes that are exclusively charitable”. Again, the criterion does not mesh readily with the conceptual framework of the ADA.

6.52 However, the exemption is important for two reasons. First, it seeks to ensure that the scope of the legislation does not extend into the private sphere; secondly, the exemption provided is of greater relevance in the light of the recommendation in Chapter Four that the ADA be extended to cover disposal of land. However, in its present form, the exemption appears to be both too wide and too narrow.

6.53 Further, it is not clear what relevant consequences the provision could have. For example, a body which provides services which are beneficial to a disadvantaged group in the community will not contravene the ADA. Accordingly, a gift to such a body for its purposes, which may well be charitable, would not contravene the ADA either. On the other hand, if there were charitable purposes which were otherwise discriminatory, and therefore unlawful under the ADA, it is not clear why a person should be allowed to make a bequest to a body for a purpose which would be unlawful and could not therefore be carried out by the recipient. It is difficult to understand what policy would support the right of the body to carry out that purpose in so far as it received a bequest under will or other instrument, but not otherwise. On the other hand, since any purpose could be carried out pursuant to an instrument, if there are charitable purposes which contravene the ADA, this provision could allow the ADA to be avoided.

6.54 Looked at from a different perspective, bequests may be made for otherwise charitable purposes, but subject to an unlawful condition. Sophisticated rules have been developed to deal with these circumstances. There is no reason why those rules should not apply to conduct rendered unlawful by the ADA. For example, a bequest may be made to a Roman Catholic school to employ a gardener on condition that the gardener is a practising Catholic. If, in accordance with the provisions of the ADA, the school is not entitled to require a particular religious conviction in respect of the employment of gardeners, it should not be able to avoid that consequence by obtaining the necessary funds pursuant to an “instrument”. It does not follow that the bequest will fail, but merely that the unlawful element of the condition will be severed. This is the appropriate result.

6.55 Accordingly, the Commission is not satisfied that s 55 in its present form serves any useful purpose, but to the contrary, considers that, if it has any effect, it is subversive of the protection of fundamental human rights which is the primary purpose of the ADA.

6.56 On the one hand, the legitimate scope of the provision is to preclude a challenge to a will which leaves property to a charity or for charitable purposes, on the basis that the selection of the charitable purposes involved a distinction based on a prohibited ground. For example, it should not be unlawful for an individual to leave property to benefit one ethnic group, rather than another, so long as the means of providing the benefit is otherwise lawful. A school which provided educational services solely for the benefit of Aboriginal children or for blind children would not, by excluding other children, be acting unlawfully because the service provision would almost certainly constitute a special measure. Accordingly, a bequest for such a purpose should also be permitted.

6.57 On the other hand, there is no particular reason to limit the exemption to charitable purposes: the exemption should extend to any purpose which does not contravene the ADA. The concept of charitable purpose is only indirectly relevant and should be abandoned.

6.58 Further, the provision of a benefit by way of a gift under a will should be excepted more generally. The devolution of property by will is generally a matter which operates in the private sphere and not the public sphere. A parent should be entitled to leave property by will to a daughter to the exclusion of a son, without fear of contravening the ADA. (Such a disposal of property may be challengeable under the Family Provisions Act 1982, but on entirely separate grounds). The purpose of the prohibition on discrimination in relation to disposal of land is intended to cover disposal by way of sale, which is an activity in the public sphere of life. Accordingly, a sale of land by trustees under a will should be covered by the ADA, but not a transfer pursuant to a specific device.

6.59 This conclusion leads to a further question, namely, whether gifts provided otherwise than pursuant to a will should be covered by the ADA. Although the problem is likely to be raised in relation to the disposal of land, it could theoretically have arisen in the past in relation to the provision of goods. For example, if a parent gave a motor vehicle to a daughter, but not to a son, the gift would arguably have been a provision of goods within the prohibition contained in the current ADA. For similar reasons, the gift should not be caught by the prohibitions on discrimination. While s 55 presently exempts an inter vivos gift where it is made by instrument for a charitable purpose, it does not cover the provision of cash or other forms of gift. Again, there is no reason to limit the restriction in this way.

Recommendation 45

Replace s 55 (general exception for charities) with an exception covering the provision of goods or disposal of property by inter vivos gift or by will to a specific recipient or recipients.

Draft Anti-Discrimination Bill 1999: cl 61

Definition

6.60 Section 56 of the ADA provides an exception in the following terms:

Nothing in this Act affects –

(a) the ordination or appointment of priests, ministers of religion or members of any religious order;

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;

(c) the appointment of any other person in any capacity by a body established to propagate religion; or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

6.62 In 1994 paragraph (d) was amended to cover one-off acts which conform to religious doctrine. Previously, practices in accordance with religious doctrine were covered, but it was not clear whether a single act was covered.

Other jurisdictions

6.63 Victoria, Queensland, Western Australia, the Australian Capital Territory and the Northern Territory all prohibit discrimination on the ground of religious belief or activity and provide a general exception in relation to religious bodies.⁶⁵ The exception in each of these Acts is couched in similar terms to the ADA exception, except that it covers selection and appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice. To this extent it appears to be more limited than the corresponding provision in the ADA, which excepts the appointment of a person “in any capacity”.

6.64 The Equal Opportunity Act 1984 (SA) (“EOA (SA)”) excepts religious bodies but only in relation to the grounds of sex, sexuality, marital status or pregnancy.⁶⁶ The provision is drafted along the lines of the ADA exception, but does not extend to the appointment of any other person apart from priests and ministers.

Submissions

6.65 The Commission received many submissions from religious organisations which stated that anti-discrimination law has no place in regulating the appointment of religious personnel.⁶⁷ The United Nations Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief specifically affirms the right to appoint religious personnel as one of the freedoms of belief covered by the Charter.⁶⁸

6.66 However, as the ADB submitted, that principle is narrower than s 56, which covers all appointments, whether or not the appointment involves the performance of functions in relation to religious observance or practice. Most other jurisdictions cover selection and appointment, but limit the exception to the performance of functions in relation to a religious observance or practice.

6.67 The ADB submitted that:

This exception is excessively broad. A “body established to propagate religion” is not defined in the Act. It is conceivable that a body of people who practised a religion with doctrines that support the superiority of particular races or the sexual harassment of women would have practices based on these doctrines excepted from the Act. The Board does not accept that this was the intent of the legislature when it included this section... The Board submits that the exception should be narrowed so that harassment on any ground under the Act will not be excepted, even if the harassment does conform to the doctrines of a body established to propagate religion or would be necessary to avoid offending the religious susceptibilities of people of that religion.⁶⁹

It is obviously wholly acceptable to most Australians that churches and religious communities should be entitled to discriminate on religious grounds where religion is relevant, eg in the choice of their personnel, the establishment of colleges and the provision of instruction to their members. But it is equally obvious that discrimination on religious grounds should not be tolerated where the conduct impugned is irrelevant to the practice or propagation of a religion ... it scarcely seems justifiable to confine staff in the college kitchen to members of the religion, unless they are obliged to observe religious rituals in the preparation of food.⁷⁰

Conclusion

6.70 The Commission is satisfied that s 56 (a) and (b) should be retained, but that the terminology of these sections should be appropriate to the religious personnel of other faiths and not focus on the Christian faith alone. If the recommendation to include religion as a ground of discrimination is accepted, the selection and appointment of non-religious personnel can be dealt with by way of a genuine occupational qualification exception. In this way, only those positions properly requiring a commitment to the tenets of the particular religion concerned will be covered by the exception.

6.71 While this section guarantees the right of religious groups to practise their beliefs, and to that extent should be retained, this protection should not be something which religious groups are allowed to hide behind in cases where harassment or vilification of a particular group occurs, and it should be narrowed to reflect this principle. Religion should not be able to be used as an excuse for unlawful conduct. In the words of Chief Justice Mason and Justice Brennan of the High Court:

The freedom to act in accordance with one’s religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them. Religious conviction is not a solvent of legal obligation.⁷²

Recommendation 46

Amend s 56 (general exception for religious bodies) to:

• refer to the religious personnel of all faiths;
• provide that the exception only covers positions requiring a commitment to the tenets of the particular religion concerned; and
• repeal s 56(d).

Draft Anti-Discrimination Bill 1999: cl 66

Definition

6.73 Section 57 provides a general exception for certain bodies in terms of admission to membership and the benefits, facilities or services they offer to members. There is no exception in the area of employment, nor as to the provision of goods and services to non-members.

6.74 To come within the definition of “voluntary body” in s 57(1), the activities of the body must be carried on otherwise than for profit and the body must not be established by an Act. Registered clubs, credit unions, building societies and financial institutions which are registered under the Co-operation Act 1923 (NSW) or the Friendly Societies Act 1989 (NSW) are specifically excluded.⁷³

Legislative history

6.75 When originally enacted, the ADA contained a general exception for both voluntary bodies and registered clubs in relation to the admission of members and the benefits, facilities and services available to members. At the time, there was limited debate in Parliament over whether these bodies should be made subject to the ADA. But following many inquiries and complaints to the ADB about discrimination by clubs and associations, and despite industry opposition, the exception for registered clubs was removed in 1981.

6.76 The exception in relation to voluntary bodies was retained for a number of reasons which were summarised by the ADB in 1981 as:

principally because they have no legal status and there are legal difficulties associated with instituting and enforcing any form of legal action against an association or its members. Also, many unincorporated associations are small, local organisations and their activities are such as not to be the concern of anti-discrimination legislation, which is quite properly principally concerned with the major areas of public life.⁷⁴

6.78 It should be noted that the exception covers bodies which may be incorporated under an Act so long as they are not “established by” an Act.

Other jurisdictions

6.79 Federal laws. The SDA provides a broad exception for non-profit associations, whether incorporated or not, in scope and terms similar to, though not identical with, s 57 of the ADA.⁷⁸ Such associations remain subject to the prohibitions in relation to employment and the provision of goods and services. By contrast, there is no exception for voluntary bodies in the RDA⁷⁹ or in the DDA.⁸⁰ While the RDA does not contain a specific area of operation pertaining to clubs and associations as such, it is framed broadly to prohibit any form of racial discrimination in public life. The DDA, on the other hand, specifically prohibits discrimination in membership and access to benefits by clubs and incorporated associations.⁸¹ It defines a club as:

an association (whether incorporated or unincorporated) of persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that provides and maintains its facilities, in whole or in part, from the funds of the association.⁸²

6.81 State and Territory laws. Only Western Australia and the Australian Capital Territory provide an exception for voluntary bodies.⁸³ No other State law provides a general exception for voluntary bodies as such. However, most non-profit bodies are excluded from the operation of the relevant statutes because of the defined areas in which the various Acts operate. For example, the EOA (Vic) makes it unlawful for a club to discriminate in the admission to membership and access to benefits by members, but it excepts private clubs. These are any social, recreational, sporting and community service clubs or organisations that do not occupy Crown land or receive public funding. Similarly, Queensland anti-discrimination law is confined to profit-making clubs thus impliedly excepting all non-profit bodies.

6.82 The Northern Territory law covers only those clubs, whether incorporated or not, of 30 persons or more which are established for a lawful purpose, provide and maintain facilities from their own funds and sell or supply liquor for consumption on their premises. The EOA (SA) prohibits discrimination by associations but does not define the term. It specifically excepts non-profit associations from the provisions prohibiting sex and marital status discrimination in accommodation, presumably to protect accommodation services which are established to meet the special needs of women, such as women’s refuges.⁸⁴

Submissions

6.83 The majority of submissions received by the Commission in response to DP 30 have questioned the continued need for this exception.⁸⁵ The Ministry for the Advancement and Status of Women submitted:

The exception for ... voluntary organisations on the basis that they are part of the private sphere does not stand close scrutiny since they often receive substantial government funds or financial benefits such as exemptions from full taxes, charges or rates and may themselves generate profits.

As with other Commonwealth funded bodies who provide a service to the community, there is an expectation that the service will be done in a manner which is consistent with community standards of practice.⁸⁶

They are now required to comply with the Affirmative Action (Equal Opportunity for Women) Act. Often, these bodies are insufficiently careful about their responsibilities as employers and there is no basis for their employees having a lesser level of social and human rights than employees of other organisations.⁸⁷

The fact that these bodies are not specifically created by an Act, but are registered under particular Acts makes it confusing. Because of the wording “not established by an Act” in section 57(1), it is not clear whether an organisation will be outside the definition of voluntary if it is registered pursuant to an Act or only if it is specifically constituted by an Act.⁸⁸

Conclusion

6.87 In the light of these submissions, it was clear that the liability of voluntary bodies under the ADA requires reassessment. A threshold issue is whether and to what extent these bodies should be allowed to discriminate in deciding who can join, the kind of membership they can have, and the terms and conditions which apply to the benefits, services or facilities it provides.

6.88 The Commission has considered this issue in detail in Chapter Four, where it concluded that the area in which the law operates, presently confined to registered clubs, is too narrow and needs to be redefined.⁹⁰ The Commission has recommended that the ADA specifically prohibit discrimination in relation to membership and access to benefits by all incorporated associations whose membership is open to the public or to a section of the public.⁹¹ Any club or association that does not fall within the redefined area would clearly not be liable under the ADA. The retention of an exception for voluntary bodies is therefore unnecessary and inappropriate. Accordingly, the Commission recommends its repeal.

Recommendation 47

Repeal s 57 (general exception for voluntary bodies).

Definition

6.89 Section 59 of the ADA provides an exception for:

any rule or practice of an establishment which provides housing accommodation for aged persons, whether by statute or otherwise, whereby admission is restricted to persons of a particular sex, marital status or race.

Legislative history

6.90 This exception did not exist in the original Bill and was added to the ADA after much debate. It was argued that protection should be provided so that the atmosphere and living environment for aged persons would be safeguarded, and that aged people had a right to spend their final days in an environment where their backgrounds, beliefs and identity were not threatened.⁹² The government had envisaged that bodies wishing to discriminate in their rules, practices or admission criteria would apply for an exemption under s 126.

6.91 The exception as enacted in 1977 covered housing accommodation and ancillary services for aged persons and applied to any rule or practice of an institution which restricted admission to any class, type, sex, race or age of applicant and the provision of benefits, facilities or services to such persons. This section was criticised by the ADB in its reports on both age and religious discrimination, both of which recommended its repeal.⁹³ In its Report on age discrimination, the ADB stated that:

there could be no justification for rendering [aged] people even more powerless by denying them he protection of a law which is available to others.⁹⁴

Other jurisdictions

6.93 Federal legislation has no specific corresponding provision, thereby rendering the current section inoperative.

6.94 The only other jurisdiction that provides an exception for housing accommodation for the aged is Western Australia.⁹⁵ It also covers applicants of any religious or political conviction. Persons with an impairment are specifically excluded and discrimination on the ground of age in the provision of benefits, facilities or services is not allowed.

Conclusion

6.95 The Commission accepts that the process of moving into accommodation for the aged can be traumatic and difficult, and that an environment where individuals are surrounded by persons of similar cultural and racial background can be helpful. War widows, people of various cultural or linguistic groups and some religious groups are examples of people who may be said to benefit from such protection. At the same time, the arbitrary exclusion of a person from accommodation because of a person’s race, sex or marital status should not be allowed. A distinction may need to be drawn between a facility open to the general public, which seeks to exclude individuals from one or more selected groups, and a facility which provides services to a particular group and wishes to exclude all others. The latter approach may be justifiable, whereas the former, in principle, is not. Measures other than a wide-ranging general exception are appropriate to achieve this end.⁹⁶

6.96 Clearly, if the concept of housing specifically for the aged is to be retained, there must be an exception in relation to age as a condition of admission. The “special measures” exception should be available wherever necessary to accommodate the needs of particular groups.⁹⁷ Further, the original idea of permitting specific exemptions for aged person homes under s 126 remains. This would allow for a general non-discriminatory policy for aged housing, but still allow those who wish to cater for special groups to provide for the benefit of that group, whilst being accountable for and being required to justify the bases of exclusion or preference.

Recommendation 48

Repeal s 59 (general exception for establishments providing housing accommodation for aged persons).

6.97 There are provisions relating to “special measures” in most Australian and New Zealand equal opportunity legislation.⁹⁸ In all legislation, except the SDA, special measures are couched in the form of an exception to the provisions prohibiting discrimination. This is because of the tension created by the purpose of special measures with the concept of direct discrimination. On the one hand, the direct discrimination provisions based on formal equality would preclude the specified grounds of unlawful discrimination being used as bases for differential treatment. On the other hand, special measures aimed at achieving substantive equality provide for differential treatment on those very grounds. The resulting situation in most jurisdictions is that special measures are considered discriminatory, but exempt. This was considered an unsatisfactory situation by the Sex Discrimination Commissioner, as it has resulted in narrow interpretations by courts and restricted the achievement of substantive equality.⁹⁹ A similar query has been raised as to the appropriateness of treating the RDA’s special measures provision as an exception.¹⁰⁰

6.98 Gerhardy v Brown¹⁰¹ and Proudfoot v ACT Board of Health¹⁰² are examples of cases where the special measures exceptions in the RDA and SDA were relied on. Although the decisions reached are accepted as correct, a number of commentators have criticised the conceptual basis of the High Court’s understanding of equality in Gerhardy¹⁰³ and the Human Rights and Equal Opportunity Commission’s (“HREOC”) reasoning in Proudfoot¹⁰⁴ on the basis that special measures should be considered not to involve discrimination, rather than being considered as an exception to a general prohibition of discrimination on the assumption that any distinction is discriminatory and therefore invalid.

6.99 The SDA has been amended to ensure that special measures are understood as non-discriminatory. The amendment recognises that measures which aim to achieve equality between a disadvantaged group and those who are not disadvantaged do not constitute discrimination, but rather are a crucial means of preventing and eliminating it.¹⁰⁵ The new provision has been relocated from the exemptions division of the SDA to the definitions division and is found in s 7D. This provision states that special measures taken to achieve substantive equality are not discriminatory and that such measures include, but are not limited to, measures taken to achieve equality of opportunity, equality of treatment and equality of outcomes. A special measure ceases to be protected by s 7D after substantive equality between the relevant groups has been achieved.

6.100 As already noted, the ADA is not limited to the protection of disadvantaged groups in the community. Nevertheless, the ADA should not constitute an impediment to attempts to achieve substantial equality for disadvantaged groups, and should allow for practices and programs which have that purpose. Accordingly, where special needs are identified, conduct which is designed to cater for such needs, which does so in a manner which is appropriate to the need identified and which is reasonably designed to achieve that effect, should not be unlawful. In keeping with the proposed definition of discrimination, such conduct will not constitute unlawful discrimination in relation to the class intended to benefit. However, because the provision of benefits to one class may be seen as excluding others from those benefits, the conduct may constitute adverse discrimination against the other class or classes. Accordingly, such provisions need to be expressly excluded from the prohibition.

6.101 The appropriateness of such an exception in relation to race seems undoubted. For example, the effect of the dispossession of Aboriginal people from their traditional lands is well documented and is now widely accepted in the Australian community. There is a question, however, whether the special needs of the Aboriginal people constitute an example of a more general principle, or should be treated as a special case.

6.102 The view of the Commission is that the disadvantage suffered by Aboriginal people, although perhaps the most dramatic instance of disadvantage based on race in our community, is not unique. At various times in the history of New South Wales, and for a variety of reasons, other racial groups have also suffered disadvantage and discrimination. The ethnic composition of our community, the social attitudes in relation to various ethnic groups and their perceived needs vary over time. The appropriateness of a general exception based on special needs can readily be justified, although the conduct which may fall within its scope may vary. This flexibility seems desirable rather than inappropriate.

6.103 On the basis that such an exception is appropriate, should there be temporal limits in relation to its operation? For example, the “special measures” exception found in s 8 of the RDA picks up the terminology of the Convention on the Elimination of Racial Discrimination (“CERD”) on which the RDA is based. According to Article 1(4) of CERD, special measures should not:

lead to the maintenance of separate rights for different racial groups and ... shall not be continued after the objectives for which they were taken have been achieved.

6.105 However, it is necessary to accept that some purposes may be satisfied within a time frame and it is appropriate to make express the limitation that a special measure is not authorised once its legitimate purpose is achieved.¹⁰⁷

6.106 A further concern is how the purpose of a particular act should be identified. The SDA identifies the relevant purpose as that of “achieving substantive equality” between groups defined on a prohibited ground. Further, it is sufficient that the act is done “for that purpose as well as other purposes”.¹⁰⁸ These provisions have the great benefit of simplicity, but are potentially unsatisfactory, depending upon how they are interpreted by the Courts, for three reasons.

6.107 First, where the purpose of achieving substantive equality is not the sole purpose, any other purpose must be a non-discriminatory purpose. For example, an employer who puts into place a scheme for considering applications for a position which gives preference to Indigenous people should not be allowed, on one view, to adopt such an approach if one of his or her purposes is to exclude women, homosexuals or persons with some other protected attribute. That she or he may of course have another legitimate purpose, such as the maintenance of a competent work-force, is entirely acceptable.

6.108 Secondly, the test of “purpose” appears to be a subjective one. As a result, it is not necessary as a matter of law for the person pursuing the purpose to establish that there was a need for the measure nor, if the burden of proof be otherwise on the complainant, does it assist the complainant to establish that objectively there was no need requiring such a measure. As a matter of evidence, such material might help to cast doubt on the bona fides of the purpose, but it is at least arguable that a person pursuing a measure, which would otherwise be considered unlawful, should establish at least reasonable grounds for believing that the measure was necessary. For example, it is important that discriminatory employment practices, which may be partly motivated by “customer preference” cannot be dressed up as special measures. A stronger approach would require the employer, if challenged, to justify the measure on objective grounds.

6.109 Thirdly, there is a danger that the operation of a special measures exception may permit an inappropriate level of paternalism. Thus, in some circumstances, one might be entitled to query why a particular employer, who was not a member of the disadvantaged group, should be able to adjust practices, which may possibly be beneficial to his or her personal or commercial interests, to make judgments as to what is needed or for the benefit of a particular group. As noted by Justice Brennan in Gerhardy v Brown:

The purpose of securing advancement for a racial group is not established by showing that the branch of government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group does not seek or wish to have the benefit. The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement. The dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them.¹⁰⁹

The difference between land rights and apartheid is the difference between a home and a prison. Land rights are capable of ensuring that people exercise and enjoy equally with others their human rights and fundamental freedoms: apartheid destroys that possibility.¹¹⁰

6.112 One course is to limit the exception to those cases where an appropriate body has approved or certified the special measure. This is similar to the approach adopted under the current ADA in relation to exemptions.¹¹¹ However, in the absence of abuse, such an approach appears unduly bureaucratic. Further, on the basis that unlawful discrimination will not cover what is sometimes known as “benign discrimination”, the requirement of approval or certification in advance is inconsistent with the principles on which the legislation is based. It is in accordance with the policy underlying the ADA to encourage the achievement of substantive equality: the need for an exception for special measures is simply a working out of that policy. So long as the preconditions are clearly defined, and can be subject to appropriate review by the EO Division where complaints are lodged and reliance is placed upon the exception, the need for a specific power of exemption in advance is negated.

6.113 The issue is then narrowed to consideration of the appropriate preconditions for the exception to operate.

6.114 The first requirement of the SDA is that the measure be directed to “achieving substantive equality”. The simplicity of this phrase is, as noted above, attractive. It recognises that “in order to treat some persons equally, we must treat them differently”.¹¹² However, differential treatment must be squarely based on factual differences of circumstance. In other words, difference must be based on sound judgment, as must the measures conducive to achieving equality in the circumstances. One question which then arises is whether the group sought to be benefited must be limited to those persons who have suffered unlawful discrimination in the past or can otherwise establish a level of relative social disadvantage.

6.115 The Commission is of the view that victims of past discrimination are legitimate beneficiaries of special measures, but that they should not be the sole beneficiaries. Where a particular group has been excluded from employment in a particular area, it should not be necessary for the beneficiaries of the measure to be limited to those who had made application for employment in that area in the past.

6.116 The response should be proportional to the circumstances: this requires identification of the relevant need and adoption of a measure which is capable of removing the inequality which has been identified. To satisfy these tests, the measure should be justifiable in objective terms.

6.117 Finally, as noted above, the Commission is conscious that some measures may be justifiable on a permanent basis. However, the dangers implicit in such circumstances require that they be defined with relative precision. The examples which readily come to mind are those which involve the maintenance of a distinctive culture or social identity of a particular minority group. In those circumstances, there is merit in the approach adopted by Justice Brennan in his interpretation of the CERD, that the group itself must seek or wish to have the benefit provided.

6.118 Particular problems can arise when such provisions are used to protect adherents to particular religious sects which hold to doctrines inconsistent with general human rights reflected in the ADA. Generally speaking, such balancing exercises can only be undertaken on a case by case basis. Once the criteria have been specified with reasonable precision, the task of determining complaints in relation to such measures must be left to the EO Division.

6.119 Once it is accepted that special measures should be a general exception to the prohibition against discrimination, it is appropriate to permit that where particular welfare services are required, they should be capable of provision by members of the particular group, if that is the most effective means of delivering them.

Recommendation 49

Insert a general exception for special measures.

Draft Anti-Discrimination Bill 1999: cl 68

6.120 The ADA presently provides for exemptions in two circumstances:

• granted by the Minister on the recommendation of the ADB; and
• by way of special needs programs and activities certified by the Minister.

Exemptions granted by the Minister

6.122 The Ministerial power to grant exemptions was included in the ADA when it was enacted in 1977 and is found in s 126. Subsection 126(1) provides that:

The Minister, on the recommendation of the Board, may, by order published in the Gazette, grant an exemption from this Act, or the regulations or such parts of this Act or the regulations as are specified in the order in respect of –

(a) a person or class of persons;

(b) an activity or class of activities; or

(c) any other matter or circumstance specified in the order.

6.124 The provision was designed to allow a specified period of time within which persons would be able to make the necessary arrangements before being compelled to comply with the ADA, where compelling such compliance immediately would be unreasonable.¹¹⁵ It was on this basis that, for example, the Attorney General granted the New South Wales Fire Brigade an exemption from the compulsory retirement provisions of the ADA for nine months. During this period, the Fire Brigade intended to develop a non-discriminatory method of assessing performance so that there would be no automatic assumption that at age 65 people are unable to do their job.

6.125 While it seems that this provision was introduced merely as a means of easing the legislation in and covering transitional situations, it has been retained for twenty years and operates in other circumstances. For instance, this power is regularly used “where a program seeks to discriminate in a positive fashion on any ground covered by the ADA which is not covered by the special needs program and activities exceptions”.¹¹⁶ Thus, organisations administering programs involving employment opportunities have sought exemptions under s 126, on the basis that the special measures provisions may not cover particular employment opportunities.¹¹⁷ Examples include the designation of positions at various universities and in various government departments for Aboriginal and Torres Strait Islander employees.¹¹⁸

6.126 According to the ADB, applications for exemptions fall into three main categories:

• those from organisations wanting to provide programs or initiatives which are designed to help a particular disadvantaged group in the community;
• those from individuals or organisations that argue they cannot comply with the discrimination law at this stage because they do not have the necessary programs in place; and
• those where, as a matter of policy, the ADA should not apply.¹¹⁹

Other jurisdictions

6.128 The SDA provides that the HREOC may, on application, grant an administrative exemption for periods not exceeding five years.¹²¹ According to the Sex Discrimination Commissioner, this power is exercised in a way which is as consistent as possible with the objects of the SDA. Accordingly, the exemptions are rarely granted and are strictly limited to carefully defined situations. Once a decision is made, the HREOC must publish its decision in the Commonwealth Gazette referring to the evidence on which the findings were based and the reasons for making the decision. An additional level of scrutiny is provided by making the decision reviewable by the AAT. The DDA¹²² contains similar provisions to the SDA.

6.129 In Queensland,¹²³ South Australia¹²⁴ and Western Australia¹²⁵ such exemptions are granted by the Tribunal. In the Australian Capital Territory¹²⁶ and the Northern Territory¹²⁷ they are granted by the Discrimination Commissioner who may consider “the desirability, where relevant, of certain discriminatory actions being permitted for the purpose of redressing the effects of past discrimination”. The length of time for which exemption may be granted varies between three to five years, renewable for a further period of three or five years.

Issues for consideration

6.130 A notable feature of s 126 is that its availability is almost unlimited. With respect to its availability, one commentator has observed that:

the right of individual applicants represents yet another example of public policy operating at an ad hoc and quasi private level depending on the resources of the particular applicant, the calibre of the arguments presented by counsel.¹²⁸

Exemption for special needs programs and activities

6.132 Section 126A of the ADA was introduced in 1994. It is in form a cross between a general exception and an exemption provision. It provides an exception from prescribed grounds for “anything done by a person in good faith for the purposes of, or in the course of, any program or activity for which certification is in force under this section as a special needs program or activity”.¹³⁰

6.133 The exception relates to all grounds of unlawful discrimination except race and age (including compulsory retirement). It applies to transgender discrimination, although that part was introduced after s 126A. Whilst it may have been inappropriate in relation to age and compulsory retirement, it is not entirely clear why race was an excluded ground, especially given the views taken by the ADB and perhaps others in government that s 21 does not extend to employment programs. In fact, the section currently has practical application only for the grounds of sex and marital status. The grounds of homosexuality and disability provide protection for minority groups rather than a general protection for people of any sexual preference or for people without disabilities.

6.134 Although exemptions under s 126 are granted by the Minister on the recommendation of the ADB, certification of programs under s 126A is undertaken solely by the Minister administering the section or, in cases where there is a government department or public or local authority responsible for the program, the Minister responsible for that Department or authority. In those cases where there is such specific responsibility, the Minister responsible for the department or authority is required to certify the program or activity. In neither case is there any involvement of the ADB. Further, certification is not required to be for any specific period, nor indeed need any period be specified.

6.135 Introducing the amending Bill, the then Attorney General said:

This procedure [of certifying the exemption] recognises that positive actions aimed at meeting the special needs of persons protected by the ADA should not be regarded as unlawful discrimination, and provides the safeguard of ministerial approval to ensure that only appropriate programs and activities are exempted.¹³¹

its purpose or primary purpose is the promotion of access, for members of a group of persons affected by any form of unlawful discrimination to which this Act applies in an area of discrimination to which this Act applies, to facilities, services or opportunities to meet their special needs or the promotion of equal or improved access for them to facilities, services and opportunities.

6.138 The types of programs and activities which have been certified under s 126A have been restricted, but include the following:

• each New South Wales women’s domestic violence court assistance scheme;
• all New South Wales women’s refuges;
• any information, training or career development program for one sex; and
• all “women’s only” gyms.

6.139 It must be noted that while s 126A provides an exemption for special needs programs by certification, s 21 and 49ZYR provide specific exceptions for similar programs, which require no certification, in relation to race and age respectively. This inconsistency can create confusion in the community. The Commission can see no justification for requiring special needs programs and activities for women, men or people of a particular marital status to be certified by the Minister. The ADB believes that the certification program is cumbersome to administer.

6.140 The 1994 amendment, inserting s 126A, is designed to provide for special measures to improve the circumstances of persons affected by unlawful discrimination. However, for reasons set out in the discussion relating to “special measures”, the Commission is of the view that a more general exclusion is required in relation to such special needs programs and activities. In those circumstances, the specific provisions of s 126A will become unnecessary. Further, that section does not provide any additional power to that contained in s 126, which the Commission recommends, subject to appropriate changes, should be retained. The overlap caused by the existence of the two sections, together with the limited scope of s 126A, suggests that the latter section should be repealed, even where there was no specific provision for special measures.

6.141 In relation to s 126, the Commission is of the view that the power of exemption should be retained, but that it should be subject to appropriate procedures to ensure that there is transparency in the process for granting exemptions, that the public is properly notified of the existence of an exemption and that both the granting of an exemption and any conditions which may apply to it may be the subject of review by the Administrative Decisions Tribunal (“ADT”).

6.142 In these circumstances, the Commission is also of the view that the power to grant exemptions should not properly be a function of the Minister. The justification for giving the power to the Minister is to ensure a high level of responsibility and ultimately accountability in Parliament for any decisions taken. However, if, as seems desirable, the procedures for considering exemptions should be open to public participation and the decisions subject to review, it seems both inappropriate and unnecessary to place the power to grant the exemption with a Minister of the Crown. Accordingly, but in keeping with the importance of restricting exemptions to appropriate circumstances, the power should be vested either in the ADB, or in the President of the ADB.¹³³ The Commission is of the view that the ADB itself is not the appropriate body to exercise discretionary power of this kind. Rather, the power should be exercised by the head of the agency who is a full time senior Government officer and who has the day-to-day administration of the ADA.

6.143 The power to grant exemptions should be dependent upon the satisfaction of the President as to specified criteria. In short, the ADA should itself set out the circumstances in which its operation can be limited by executive fiat. Secondly, the public should be given notice in a specified manner of the intention of the President to grant an exemption. Some applications which are lodged with the President may be rejected in full. In that case, the applicant should have an opportunity for review before the ADT, but there is no need for public notification of the application. However, where the President is minded to grant an application, public notice of the general nature of the application and any conditions proposed should be given, together with a reasonable opportunity to make written submissions to the President. The President should be required to consider any submissions made within the time allowed and, if still satisfied that the exemption and conditions as proposed, or as varied following the receipt of submissions and further consultation with the applicant, should be made, public notice of the exemption should be given. Any person having a sufficient interest in the exemption should have the right to have it reviewed by the ADT.

6.144 Consistently with these principles, the relevant criteria for consideration by the President, which are of considerable importance, are set out in the Draft Bill which accompanies this Report.¹³⁴

Recommendation 50

Retain power to grant exemptions but amend to provide that:

• the power to grant an exemption be vested in President of the ADB;
• the President be required to consider specified criteria listed in exercising such power;
• the public be notified in a specified manner of the existence of an exemption;
• the granting of the exemption and any conditions which may apply should be subject to review by the ADT at the request of any person having sufficient interest in the existence or absence of the exemption.

Draft Anti-Discrimination Bill 1999: cl 69, 70

Recommendation 51

Repeal s 126A (exemption for special needs programs and activities).

6.145 Having considered various general exceptions to the prohibitions contained in the ADA and having considered the general power to grant exemptions, it is now necessary to consider specific exceptions provided in relation to specific grounds. Although some exceptions may apply to a number of grounds, such as the case of genuine occupational qualification in relation to the area of employment, the circumstances of its application may differ from ground to ground. As a result, it is necessary to consider each separately below, but, wherever possible, the discussion of underlying principles will be dealt with on the first occasion on which the matter arises.

Race

6.146 The concept of race is the ground least susceptible to genuine exceptions from disadvantageous treatment. Further, as this ground is covered by the RDA, care must be taken to ensure that, so far as reasonably possible, exceptions will not be nugatory as a result of the absence of any equivalent exceptions in the Commonwealth law.

Genuine occupational qualification

6.147 Where a prohibited ground may be considered a genuine qualification for work or employment, an exception may be appropriate. However, it is necessary to be aware of stereotyped assumptions, even in this area. For example, Shakespeare would not have expected the leading role in Othello to be played by a Moor. Nevertheless, authenticity for the purpose of a dramatic performance is sometimes assumed to be a classic example of a genuine occupational qualification.¹³⁵

6.148 Section 14 of the ADA provides an exception in four circumstances, the first three of which are based on reasons of authenticity, namely participation in a dramatic performance or other entertainment, participation as a model for an artist or photographer or employment in a place where food or drink is provided. The fourth category involves the provision of services to persons of a particular race, being a category closely related to the recognition of special needs of the people for whom the service is provided.

6.149 In developing options for reform of this provision, three approaches may be considered as potentially appropriate. First, a general exception may be provided on the grounds of “genuine occupational qualification” without any attempt to define its application. Alternatively, an approach may be adopted which expressly identifies the areas in which the exception applies: this is the current New South Wales approach. Or thirdly, the ADA may simply be silent in relation to genuine occupation qualification.

6.150 The Commission does not favour a general exception for two reasons. First, no clear guidelines as to when the exception may apply are provided, thus making it difficult for employers to know whether or not they are complying with the law. Secondly, as already noted, the ground of race is one in relation to which exceptions should be narrowly defined. Accordingly, a course which provides no exception or a specific and limited exception is preferred. There will, of course, always be a power vested in the relevant statutory authority to grant special purpose exemptions if other areas of need are identified.

6.151 While the need for “ethnic” authenticity in particular areas may accord with modern day practices and expectations, maintenance of the present exception may be ineffective while there is no similar exception under the RDA. The Commonwealth law must be one which gives effect to the CERD, which does not expressly refer to such an exception. However, the exception is more likely to favour than disadvantage minority races. It is found in other jurisdictions¹³⁶ and may appropriately be retained in the ADA.

Membership of clubs

6.152 Registered clubs are prohibited from discriminating on racial grounds in relation to admission of members, and in relation to benefits available to members, unless the club’s principal object is the provision of benefits for persons of a specified race, provided the race is defined otherwise than by reference, direct or indirect, to colour.¹³⁷ The ADA sets out the factors which must be considered when determining whether the principal object of the club is indeed to provide benefits for persons of a particular racial group.¹³⁸

6.153 The exception appears to have a legitimate basis as many ethnic groups maintain their cultural identity by forming clubs and associations. However, it presents some problems in terms of its scope. The intention of Parliament was to allow genuine ethnic clubs to continue to operate for the benefit of persons of the particular race for which they were established, to the exclusion of others.¹³⁹ However, it has been argued that the exception may be construed broadly so that it would allow ethnic clubs to discriminate against some people who fall within the racial group for whose benefit the club was established. For example, s 20A(3) could be used by a club, set up for the benefit of persons of Spanish origin or descent and their families, to exclude a Chilean national of Spanish descent. Similarly, a club set up for the benefit of Jewish people may deny membership to a Jewish person from Ukraine. Provided that the distinguishing criterion is not colour, s 20A(3) permits racial discrimination by ethnic clubs.

6.154 Although the exception is not reflected in the RDA, raising some doubts as to the validity of the New South Wales provision, a similar exception applies in all other State and Territory jurisdictions. However, other provisions make clear that their object is similar to a special needs exception. For instance, Victoria, Queensland and the Northern Territory permit the exclusion from membership on racial grounds where the club was established to prevent or reduce disadvantage suffered by people of a particular group or to preserve a minority culture.¹⁴⁰ Western Australia¹⁴¹ and the Australian Capital Territory¹⁴² provide an exception in similar terms to the ADA, while South Australia provides an exception where the club is “established principally for the purpose of promoting social intercourse between members of a particular racial or ethnic group”.¹⁴³

6.155 Several issues arise: first, is the exception operative in light of its absence in Federal race discrimination laws; secondly, is a specific exception necessary if the ADA provides a general special measures exception; and thirdly, is there a need to reconsider or clarify the operation of the current exception?

6.156 Given the lack of a general exception in the RDA, and the appropriateness of the exception to the extent that it constitutes a special measure, it is justified in this limited role.¹⁴⁴

6.157 In relation to the second issue, it is arguable that not all ethnic clubs and associations will be able to prove special needs, and that it is not appropriate to require them to do so. For example, clubs and associations which are set up for the benefit of persons of Irish descent may not qualify as special measures, whereas an association for Laotian people may. In the Commission’s view, clubs and associations which are set up to preserve and maintain the cultural identity of people of a particular racial group should be permitted to operate only for persons of that group regardless of whether the club or association can prove special needs. Accordingly, the Commission believes that a specific exception is justifiable in practical terms.

6.158 However, the exception should be framed more narrowly than at present, so that genuine ethnic clubs may discriminate on racial grounds only in the area of admission to membership. Their ability to exclude from membership persons who fall outside the racial or ethnic group for which the club was established is consistent with the object of the exception to make special provision for clubs set up to maintain and promote a specific cultural identity. The exception should not be able to be used to exclude from membership persons who do come within the particular racial group for whose benefit the club was set up. There is certainly no justification for ethnic clubs to discriminate on racial grounds against particular members of the club in the provision of and access to benefits or facilities of the club. Thus, s 20A(3) should be limited to the admission to membership of an ethnic club and should apply only in respect of persons without the attribute of those for whom the club was established.

6.159 In Chapter Four, the Commission recommends that the ADA should also cover incorporated associations whose membership is open to the public or to a section of the public.¹⁴⁵ The Commission’s conclusions as to the current exceptions apply equally to the new area, as redefined in Chapter Four.

Recommendation 52

Repeal s 20A(3) and (4), but permit a club which operates principally to prevent or reduce disadvantage suffered by people of a particular cultural identity or to preserve a minority culture, to exclude applicants for membership who are not members of that cultural identity.

Draft Anti-Discrimination Bill 1999: cl 55

6.160 Section 22 of the ADA presently provides an exception where anything done on the grounds of “nationality, place of birth or length of time for which a person has been resident in a particular place or area” where that is a qualification for selection or eligibility to compete in any sport or game. Neither the RDA nor any of the States or Territories have a similar exception for sport in relation to race.

6.161 The exception is somewhat anomalous in that it picks up only two criteria, namely nationality and place of birth, which fall within the definition of race. Period of residence is not in its terms within the definition of race, although it is conceivable that it might form a ground of indirect discrimination.¹⁴⁶ For example, an Italian soccer club might wish to restrict its membership to persons of Italian nationality or place of birth, but include, in addition, people who have lived in Italy for a particular period of time. Alternatively, it may be thought that there is indirect discrimination where a club selects on the basis of residence in a particular suburb of Sydney which has a disproportionate representation of people of a particular ethnic background.

6.162 The primary purpose of this exception, according to the Department of Sport and Recreation, is to allow sporting groups based on national identity to exclude persons of different national origins: it is not to regulate the number of foreign players allowed to compete in sporting activities.¹⁴⁷ Nor is it particularly concerned with eligibility to participate in national or state competitions.

6.163 The justification for this exception is therefore similar to that in relation to registered clubs. In fact, the area of sporting activity is only covered by the ADA to the extent that it constitutes the provision of a service, or involves membership of an incorporated body. The appropriate result should be achieved consistently in each area. If people of a particular race or national identity seek to play sport together, it is often because that sport is a part of their cultural identity. However, because sporting competitions are a public activity and are not, in general, limited to particular ethnic groups, there is a danger that the formation of clubs on racial grounds could have broader effects of a detrimental nature. Accordingly, the Commission considers that the exception should be limited to those areas where the purpose is to maintain or reflect an element of cultural identity: this may be achieved by the proposed exception in relation to clubs.

Recommendation 53

Repeal s 22 (exception for sport in relation to the ground of race).

Other exceptions

6.164 The ADA presently provides exceptions in relation to training for employment wholly outside New South Wales and in respect of employment on ships or aircraft where the person was engaged for the employment outside New South Wales. Each of these exceptions is anomalous in that there is no equivalent exception in relation to any other ground in the ADA.

6.165 The latter exception (in relation to ships and aircraft) reflects a similar exception in the RDA.¹⁴⁸ Generally speaking, it appears each exception was designed to limit the possible effect of New South Wales law on extra-territorial activities. In each case, however, the specific exemption is either unnecessary or inappropriate. No other State or Territory has any similar express provision. Further, the Commission is unaware that either has had any particular impact in practice.

6.166 In the circumstances, the Commission recommends the abolition of both exceptions, being mindful that should a real need be identified the matter can be dealt with by an application for a specific exemption if the circumstances appear to justify that course.

Recommendation 54

Repeal s 15 (exception for employment intended to provide training in skills to be exercised outside New South Wales) and s 16 (exception for employment on ship or aircraft).

6.167 The ground of sex is the subject of more complaints to the ADB than any other ground and, indeed, than most other grounds put together. This fact may indicate that such discrimination is widespread and continuing. However, it may also indicate a higher level of consciousness, at least on the part of the victims, of the unacceptability of sex discrimination. It is probable that over the last two decades since the commencement of the ADA, there has been a significant increase in the understanding of the nature of sexual stereotyping and of its unacceptability.

6.168 Whilst biology may have a more limited relevance in areas covered by the ADA than was appreciated in the past, nevertheless men and women are biologically different and therefore it is necessary to identify areas in which such differences are relevant. Once identified, appropriate exceptions should be provided so as to limit the prohibitions in the ADA to areas where gender-based differences are truly irrelevant.

Genuine occupational qualification

6.169 In relation to the area of work, there is extensive provision for exceptions on the basis of sex as a genuine occupational qualification for a job.¹⁴⁹ Section 31, which was substantially reformulated in 1994, provides in subsection (1) for a general exception on this basis. Subsection (2) identifies certain requirements which will qualify as genuine occupational qualifications. Subsection (3) then permits the prescription of a job or class of jobs as involving a genuine occupational qualification, which power is expressly stated not to be limited by the requirements identified in subsection (2).¹⁵⁰

6.170 On the face of the section, it is not entirely clear whether the drafter intended the listed requirements to be an exclusive list and hence to provide a definition of the phrase “genuine occupational qualification for a job” in subsection (1) or whether the list in subsection (2) is intended not to be exclusive, but to identify conclusively specified requirements as, in all such cases, sufficient to satisfy the exception.

6.171 The list is extensive and provides:

31(2) Being a person of a particular sex is a genuine occupational qualification for a job where any one or more of the following requirements is satisfied:

(a) the essential nature of the job calls for a person of that sex for reasons of physiognomy or physique, excluding physical strength or stamina, or, in dramatic performances or other entertainment, for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a person of the opposite sex; or

(b) the job needs to be held by a person of that sex to preserve decency or privacy because it involves the fitting of a person’s clothing; or

(c) the job requires the holder of the job to enter a lavatory ordinarily used by persons of that sex while it is used by persons of that sex; or

(d) the job requires the holder of the job to research persons of that sex; or

(e) the job requires the holder of the job to enter areas ordinarily used by persons of that sex while in a state of undress or while bathing or showering; or

(f) the job requires the holder of the job to live on premises provided by the employer and:


(i) those premises are not equipped with separate sleeping accommodation for persons of the opposite sex and sanitary facilities which could be used by persons of the opposite sex in privacy from persons of that sex; and

(ii) it is not reasonable to expect the employer either to equip those premises with accommodation and facilities of that kind or to provide other premises for persons of the opposite sex; or


(g) the job requires the holder of the job to keep persons of that sex in custody in a prison or other institution or in part of a prison or other institution; or

(h) the holder of the job provides persons of that sex with personal services relating to their welfare or education, or similar personal services, and they or a substantial number of them might reasonably object to its being carried out by a person of the opposite sex; or

(i) the job is one of two to be held by a married couple.

6.173 The current exception follows in general terms, though not the precise wording of, a similar exception in the SDA. However, the ADA includes three additional requirements, being those identified in paragraphs (g), (h) and (i) above.

6.174 Because the definition in the SDA is expressly stated to be inclusive, there may be no inconsistency by the addition of these three requirements, but the issue remains uncertain.

6.175 The existence of a similar exception in the SDA argues in favour of retaining in the State Act a provision to the same effect. Although the list of circumstances which will justify inclusion as a genuine occupational qualification in subsection (2) appears to be lengthy, the employment covered is relatively confined in scope. One of the broader classes is that contained in paragraph (a). However, there are not likely to be many positions which can only be performed by someone having characteristics unique to one sex. There will, however, be circumstances where a position is advertised without limitation as to sex, but an applicant of one particular sex is chosen because of a characteristic appertaining generally to that sex (but not unique to it) being an attribute not enjoyed by any of the applicants of the other sex. This example would not fall within paragraph (a) and hence justifies the broader principle outlined in subsection (1).

6.176 In relation to such classes of job as those requiring cleaners to enter lavatories, the Commission is aware that in many circumstances, one cleaner is required to clean lavatories for each sex. Although this may give support for limiting the specific classes covered by subsection (2), the Commission accepts that there may be circumstances in which an employer may wish to use cleaners of the same sex as the user of the particular lavatory and can see no reason to disregard that preference. The rationale for avoiding discrimination on the grounds of sex in the area of employment is that where gender is irrelevant, it should not be allowed to limit the opportunities of one class of persons, as against another. However, as toilets are generally provided for persons of each sex, the use of different cleaners for each set of toilets is not likely to have any adverse impact on employment opportunities. A similar justification can be accepted in relation to prison staff, although again, both men and women are employed in gaols holding persons of the other sex.

6.177 The ADB recommended that the exception in s 31(2)(i) for jobs which are one of two to be held “by a married couple” should be repealed.¹⁵³ As already noted, that exception is not contained in the SDA. It also appears to permit discrimination on the ground of marital status, which is otherwise unlawful under the ADA. It is anachronistic and should be removed from s 31(2).

6.178 The other provision which has no specific counterpart in the SDA is para (h), which relates to personal services. Victoria and the Australian Capital Territory¹⁵⁴ have a provision which relates to welfare services and is expressed in terms of such services being “most effectively” provided by persons of that sex. This appears to be a more appropriate form and should be adopted in relation to all characteristics as a reflection of the special measures exception.

6.179 What is of greater concern to the Commission is that, in some circumstances, employers may seek to rely upon the availability of an exception under s 31, where such reliance is not bona fide but masks an ulterior and impermissible purpose. Accordingly, the Commission recommends that the exception should be limited by a requirement that the discrimination be based on a bona fide belief on the part of the employer that sex is a genuine occupational qualification for the job. If this restriction is included, the Commission is fortified in its view that it is appropriate to retain s 31 in its current relatively broad terms.

6.180 The retention of the general provision in subsection (1), together with the power to grant an exemption under s 126, makes it unnecessary to vest a specific and further power in the Governor to make regulations prescribing particular jobs or classes of jobs. Accordingly, subsections (3) and (4) may be removed.

Recommendation 55

Include in the genuine occupational qualification exception in respect of employment a requirement that the employer act in good faith.

Draft Anti-Discrimination Bill 1999: cl 28(6)

Recommendation 56

In relation to the genuine occupational qualification exception, repeal s 31(2)(h) and (i).

Recommendation 57

In relation to the genuine occupational qualification exception, repeal s 31(3) and 31(4).

Single-sex schools

6.181 Section 31A of the ADA makes it unlawful for an educational authority to discriminate against a person (which includes a child) by refusing or failing to accept his or her application for admission as a student. The section also makes it unlawful to deny someone accepted as a student access to any benefit provided by the educational authority or to subject the student to any detriment. An exception is provided by s 31A(3)(b), but is limited to a refusal or failure to accept an application for admission by “a school, college, university or other institution which is conducted solely for students of the opposite sex to the sex of the applicant”.

6.182 The principle underlying the prohibition in this area of discrimination is that boys and girls should receive equal opportunity in relation to educational services. The exception does not excuse inequality, at least in the case of a single educational authority (such as the Department of Education) which provides separate educational facilities for boys and girls in similar circumstances.¹⁵⁵ Given the danger that inequality may arise where services are provided on a segregated basis, care must be taken to identify the justification for such segregation.

6.183 At least in relation to children above the age of adolescence, although views are divided on this issue, there is a reputable body of literature that some boys and girls perform better in a single sex school.¹⁵⁶ Accordingly, the Commission is satisfied that the exception should continue in relation to secondary schooling.

6.184 The justification in relation to single sex institutions for primary (including preschool) and tertiary education is less clear. However, in relation to primary education, the justification may be a practical one. Primary schools are often part of a single institution which provides for education throughout primary and secondary levels. It would be inconvenient and potentially disruptive to require different rules to apply to each level. Further, the precise stage at which the justification for single sex schools commences is not readily defined. Accordingly, these various pragmatic considerations suggest that the exemption should be retained in relation to primary and secondary schooling.

6.185 The justification for permitting sex segregation at a tertiary level is less readily justified. Further, in a country which led the way in opening up university education for women, it seems a retrograde step to allow universities to be established for one sex only. In the past, there may have been a justification for single sex tertiary institutions for women only, to rectify circumstances of social disadvantage. It is unlikely that such a justification could properly be advanced in relation to any area of tertiary education today and, if it could, it would fall within the special needs exception. Accordingly, the Commission recommends the limitation of the exception so that it applies only to primary and secondary schooling.

6.186 In relation to the provision of residential accommodation, however, the Commission is of the view that there are greater justifications for allowing an exception to the general provisions of the ADA. As a result, the Commission recommends that educational institutions at any level which provide residential accommodation which is segregated on the basis of sex should, to that extent, be exempt from the ADA.

6.187 As already noted, the provision of education appears to be a subcategory of goods and services. Accordingly, the exception for single sex schools should apply both to the provision of services and to discrimination in the area of education.

Recommendation 58
• Limit the exception in relation to education on the ground of sex in s 31A(3)(b) to primary schools (including pre-schools, but not child care centres) and secondary schools in relation to admission.

Draft Anti-Discrimination Bill 1999: cl 43
• Continue to provide a general exception at all levels for residential accommodation which is segregated on the basis of sex.

Draft Anti-Discrimination Bill 1999: cl 51(1)

Membership of clubs

6.188 The ADA prohibits sex discrimination by a registered club in relation to admission to membership and access to benefits or facilities provided by the club. This prohibition is subject to exceptions for single-sex clubs and clubs where the equal or simultaneous use or enjoyment of benefits by both sexes is impractical.

6.189 Single-sex clubs. First, an exception applies in respect of both admission to membership and access to benefits “if membership of the registered club is available to persons of the opposite sex only”.¹⁵⁷ That this exception should apply to that subsection which prohibits sex discrimination against members, as opposed to applicants for membership, is, in the Commission’s view, anomalous. The reference to subsection (2) should therefore be deleted.

6.190 In New South Wales, the term “registered club” is defined to have the same meaning as in the Registered Clubs Act 1976 (NSW).¹⁵⁸ As already noted, the general exceptions relating to acts done with statutory authority and by voluntary bodies do not cover registered clubs. The intention of the present legislation is therefore to subject registered clubs to the prohibitions in the ADA, except in so far as exceptions which may be justified in particular circumstances and in relation to particular grounds.

6.191 The exception for single sex clubs appears to allow unlimited operation to the right of people to register a club for members of one sex only. The exception has been criticised by some commentators who argue that it perpetuates women’s continued exclusion from important areas of social, economic and political life.¹⁵⁹

6.192 The number of remaining single-sex clubs is quite small, according to the Registered Clubs Association, and no new ones have been established since the ADA was passed.¹⁶⁰ However, the number of single-sex clubs potentially covered by the ADA may increase if, as has been recommended, the Act is extended to cover all incorporated associations. The exception for single-sex clubs will thus take on greater relevance as some of these associations may have reasons for wishing to continue to exclude from membership people who are not members of the sex for whose benefit the association was set up.

6.193 The SDA contains a similar exception for single-sex clubs,¹⁶¹ as in fact, do most other State laws with the exception of Queensland and Victoria.¹⁶² In these two jurisdictions, the exception is more limited. A single-sex club must prove that it operates principally to prevent or reduce disadvantage suffered by people of the sex for which it was set up, in order to justify the exclusion of members of the opposite sex.¹⁶³ This area of operation would, under the Commission’s present recommendations, be justifiable as falling within the exception for special measures.

6.194 The current exception in s 34A(3) is, in the Commission’s view, inappropriate as it gives people an unrestricted power to thwart the appropriate operation of the non-discrimination principle. That is not to say that an exception should not apply in some form for those clubs which operate principally for the benefit of members of one sex for legitimate reasons. In the Commission’s opinion, this can be best achieved by repealing the exception in s 34A(3) and allowing those organisations which cannot satisfy the special measures exception, but which believe they should be excused from the operation of the ADA, to apply for an exemption under s 126.

6.195 Use or enjoyment of benefits by both sexes impractical. The second limb of the exception is limited to the use or enjoyment of benefits provided by registered clubs. Under s 34A(4), it is not unlawful for registered clubs to discriminate against members of the club on the ground of sex if it is not practicable to offer the benefit or services of the club to persons of both sexes simultaneously or to the same extent. However, this exception only applies if the same or an equivalent benefit is available to both separately or if each is entitled to a reasonable proportion of the use and enjoyment of the benefit. Subsection 34A(5) provides a list of relevant circumstances which may be considered in determining the application of subsection (4). A similar exception applies in the SDA¹⁶⁴ and in other State jurisdictions.¹⁶⁵

6.196 This exception is subjective and wide-ranging. It has been argued that the exception effectively gives clubs a licence to argue that the cost and disruption involved in accommodating the other sex (almost invariably women) renders it “impractical” for them to offer the benefits to both sexes simultaneously or to the same extent.¹⁶⁶ However, the exception appears to have been relied upon in only one case, under the SDA.¹⁶⁷ In that case, the HREOC found that it was not impracticable for men’s and women’s golf competitions to be played on the Club’s course at the same time. The Commission has not identified any case in which the exception has been invoked in New South Wales. The absence of reliance on the exception may flow from the relatively stringent requirement of the “separate but equal” constraint on its application.

6.197 The generality of the circumstances potentially covered suggests that the exception is likely to cover circumstances which are not restricted to registered clubs. For example, its terms would cover the provision of toilet and bathing facilities. No such general exception is thought necessary in relation to employment. It is probably unnecessary to have such a provision in relation to clubs in similar circumstances. However, there may be some legitimate situations, other than situations where decency considerations are involved, when men and women cannot use a benefit or facility at the same time. Given that the exception requires an equivalent benefit to be available, equal treatment is largely retained. Further, as the Commission recommends extending the area to cover incorporated associations and limiting the single-sex clubs exception, it believes that this exception in s 34A (4) should presently be retained. The exception may be useful in some circumstances, such as those involving sporting competitions and gymnasiums.

Recommendation 59

Repeal s 34A(3) in relation to single sex clubs.

6.198 One of four specific exceptions from the operation of the sex discrimination provisions relates to “participation in any sporting activity”.¹⁶⁸ The exception does not cover coaching, nor the administration of a sporting activity. There is also power to prescribe particular sporting activities which are not covered by the exception. However, none has been prescribed.

6.199 The purpose of the exception is not to exclude persons from competing in sporting activities because of their sex, but to ensure fair competition between persons who have different levels of strength, stamina or physique on account of their sex, although the provision is not currently so limited.¹⁶⁹

6.200 Definition of “sporting activity”. The ADA contains no definition of “sport” or “sporting activities”. The exception assumes that participation in a sporting activity comes within the scope of the ADA. Because it does not itself constitute a defined area, sporting activity must be implicitly covered by one of the specified areas in order for the exception to be relevant. The potentially relevant areas include employment, education, the provision of services and membership of clubs. It is possible that exclusion from sporting activities could also occur indirectly through exclusion from accommodation or places where liquor is sold.

6.201 Other jurisdictions. By contrast, sport is a specific area of operation under the recent Victorian legislation. “Sport” and “sporting activity” are defined to include a game or pastime. “Competitive sporting activity” is defined to include any exhibition or demonstration of a sport, but not coaching, umpiring, refereeing, administration of a sporting activity or non-competitive sport. “Participation in a sporting activity” is defined to include coaching, umpiring or refereeing or participating in the administration of a sporting activity.¹⁷⁰ The exception is limited to exclusion from participation in a competitive sporting activity in which “the strength, stamina or physique of the competitors is relevant”.¹⁷¹

6.202 The SDA provides an equivalent exception to the Victorian provision, but one which is significantly narrower than the New South Wales provision.¹⁷² First, it merely permits the exclusion of persons of one sex from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.¹⁷³ Secondly, the exception does not apply to coaching and administration, nor to umpiring or refereeing nor to participation by children under 12 years of age.¹⁷⁴ In effect, the Commonwealth law therefore excepts playing competitive sport where strength, stamina or physique is relevant.

6.203 The wording of the SDA is curious: it is difficult to imagine, for example, that physical strength would ever exclude one from administration activities. On the other hand, physical strength might exclude one from umpiring. More significantly, the test of “strength, stamina or physique” seems relevant in some cases only in inconsequential ways. For example, in non-contact sports, strength may give rise to differential levels of achievement: male javelin throwers may, as a class, exceed female throwers. Thus, there is a justification for having women-only competitions in athletic endeavours. It is not clear that the argument applies the other way: the differential in strength does not give rise to any obvious reason for excluding the weaker group from competing with the stronger, at least in non-contact sports.

6.204 The SDA exception specifically does not apply to participation in sport by children under 12 years. Some organisations, such as the Little Athletics Association, are concerned that this may be unfair to girls. It claims that strength, stamina and physique among boys and girls under the age of 12 years can be quite distinct, particularly in running events, and that therefore single-sex events should be permitted even in under-12 competitions. Similarly, in a submission to the Lavarch inquiry, the Women’s Sport Promotion Unit noted that 12 is an arbitrary age as some children reach puberty sooner than others. Since 1987, the policy of the New South Wales Education Department has been to give girls the choice of competing in open competitions or girls-only events.

6.205 The Lavarch Committee. The issue of gender inequality in sport was considered in great detail by the Lavarch Committee in its report, Halfway to Equal.¹⁷⁵ Recognising the under-representation of women in all facets of sport, including participation, administration and media coverage, the Committee recommended the development and adoption of numerous pro-active strategies to improve gender equity in sporting activities.

6.206 The Committee acknowledged that the provisions of the SDA designed to counter discrimination in sport were under-utilised, primarily because many sporting clubs are exempt from the SDA under s 25 (clubs exception) or under s 39 (voluntary bodies exception). However, it made no recommendation in respect of either exception. Nor did it recommend any changes to the specific exception for sport because it found that there were measurable benefits to be gained by women from single-sex events.

Conclusion

6.207 The Commission’s recommendations to extend the ADA’s coverage to incorporated associations whose membership is open to the public and to repeal the exception for voluntary bodies will bring many sporting bodies, previously exempt from anti-discrimination laws, within the scope of the ADA. This will go some way to address the sex-based discrimination in sport noted above.

6.208 An exception in relation to sport, however, can be justified on two bases. First, where one group is physically less able than the other, there is justification for allowing it to maintain its own competition, just as there is justification for permitting age groups to compete amongst themselves. Secondly, in contact sports, there are decency considerations which tend to limit public acceptance of competitions, although such attitudes are by no means universal and are probably declining. Both of these factors are relevant and should be the basis upon which an appropriate exception is formulated. Other factors should be excluded. There is no need in these circumstances to identify any specific age as a limitation on the reach of the exception in relation to children’s sport.

6.209 This is consistent with the view of the Commission in relation to other areas. For example, the right of particular groups to maintain their own competition to the exclusion of others is consistent with the principle of “special needs”. Similarly, the principle of protecting decency is recognised in the “genuine occupational qualification” exceptions. The Commission therefore recommends that an exception for sport be retained. However, the exception should reflect the more limited exception contained in the SDA.

Recommendation 60

Limit the exception for sport in relation to sex discrimination consistently with the SDA criteria of strength, stamina and physique of competitors.

Draft Anti-Discrimination Bill 1999: cl 56(3)

6.210 The ADA originally contained a blanket exception for superannuation schemes from the sex (and marital status) discrimination provisions. The exception was narrowed in 1994. Funds can now only discriminate in their terms and conditions if such discrimination is based on reasonable actuarial data or, where there is no such data, the terms and conditions are reasonable having regard to other relevant factors and any data or other relevant factors relied upon are disclosed to the EO Division if required.¹⁷⁶

6.211 Other jurisdictions. Since 1994, the SDA has not permitted superannuation schemes to discriminate on the ground of sex unless one of the exemptions set out in s 41A, relating to new fund conditions, or s 41B, relating to existing fund conditions, applies. Essentially, the SDA allows superannuation funds to continue to discriminate in their terms and conditions if the fund conditions existed before 25 June 1993, the fund is closed to new members and existing members have been given an option to transfer to a non-discriminatory scheme.¹⁷⁷ Section 41A permits discriminatory terms and conditions in new funds where such discrimination:¹⁷⁸

• is based on data about the average life expectancy of women and men as groups; or
• relates to the rules governing vesting, preservation and transferability of benefits; or
• confers benefits on a person who was an existing member of the fund under s 41B.

• may retain an existing discriminatory fund condition in relation to a person who was a member of the fund at the commencement of the section; and
• may discriminate on the grounds of sex (or other grounds) if the discrimination is permitted under the SDA or DDA.

6.214 Application of the SDA to New South Wales public sector schemes. Although the SDA is stated to bind the Crown in the right of a State,¹⁸¹ the prohibition on discrimination in relation to employment and superannuation specifically does not apply in relation to employment by an instrumentality of a State.¹⁸² Accordingly, the ADA will have full operation in relation to such employment and the benefits available to employees.

6.215 The SDA may apply, however, to discretions exercised by trustees of State superannuation funds under s 14(4) as the s 13 exception is limited to employment. It does not expressly extend to the provision of services, such as superannuation.¹⁸³ Responsibility for ensuring that funds are not discriminatory and that liability, which may arise if they are, will depend on how the fund is set up. The trustees may be liable for discriminatory decisions in areas where they have discretion.

6.216 Actuarial statistics. Actuarial statistics used in superannuation are different from those used in insurance, primarily because superannuation funds generally cover groups of people where it is possible to apply some averaging of risks. In contrast, individual insurance policies, including personal superannuation and annuities, generally have to be priced according to the risk being insured. Most sex differentiation in superannuation therefore occurs in the calculation of pension benefits or annuities. Although not a significant feature of superannuation today, this may well change in the light of government policies designed to encourage superannuants to take superannuation benefits in the form of annuities rather than lump sums.¹⁸⁴

6.217 Women who pay the same for annuities as men receive a lower benefit on average on the basis of statistics which show that as a group, women live longer than men. This differentiation is not unlawful under anti-discrimination legislation to the extent that there are gender-based actuarial tables which justify it.¹⁸⁵ However, gender-based actuarial tables are being challenged on several fronts. In a submission to the Senate Select Committee on Superannuation, the Sex Discrimination Commissioner asked:¹⁸⁶

... why do we use sex-based actuarial data at all? It has never been considered reasonable to use data based on the links between race and longevity, or data based on the links between economic class and longevity. If this were so, upper class whites would have to pay more into annuity-based pensions and poor blacks would pay less. Yet it seems to be accepted as part of the natural order of things that the links between sex and longevity should provide a basis for actuarial data.

6.219 It is further argued that gender-based actuarial tables are in direct conflict with the purpose of sex discrimination laws.¹⁹⁰ Indeed, on the basis that the purpose of sex discrimination laws is to make sex an irrelevant consideration in employment, United States cases have held that sex-based actuarial tables cannot be validly used to discriminate on the ground of sex in occupational pensions.¹⁹¹

6.220 Gender-based actuarial tables have also been criticised on the basis of doubts about their accuracy and objectiveness. One commentator, for example, states:¹⁹²

... actuarial statistics are like other statistics: the results you get depend on which statistics you use and how you use them. In deducing contributions to and the benefits from superannuation schemes, it seems that actuarial data are used selectively and inconsistently.

6.222 In its report on superannuation, the ADB opposed the treatment of men and women as groups for the purpose of actuarial tables.¹⁹³ The Women’s Advisory Council, the ADB and the Sex Discrimination Commissioner all support the removal of the reasonable actuarial data exception from sex discrimination provisions.¹⁹⁴ The Gay and Lesbian Rights Lobby also submitted that the ADA should be amended so that it is unlawful for superannuation funds or insurers to discriminate in the terms and conditions of a fund or policy except where they can show that the discriminatory behaviour is reasonably based on objectively assessed, genuine and accurate actuarial data.¹⁹⁵

6.223 Submissions. Submissions received by the Commission argued that the broad exception for superannuation funds under the ADA is not justifiable.¹⁹⁶ The National Pay Equity Coalition, for example, submitted that the exception from the ADA’s sex discrimination provisions is “one of the reasons that women make up an increasing proportion of the aged poor” and “should most certainly be removed”.¹⁹⁷ The ADB submitted that it is not convinced that “there is an acceptable rationale for discriminating on the ground of sex in the provision of superannuation”.¹⁹⁸

6.224 The Commission notes that the blanket exception for superannuation in the early State laws and in the SDA was a temporary exemption pending inquiries to address the concerns of the superannuation and insurance industry.¹⁹⁹ Several inquiries have since been conducted, including an inquiry by the ADB shortly after the ADA came into operation.²⁰⁰ A report was released in 1978 which recommended that, with some qualifications, superannuation should be treated like any other term or benefit of employment. The ADB took the view that any scheme which treated men and women differently in their application for membership was discriminatory. It also opposed the practice of treating men and women as separate classes, basing scheme requirements on stereotyped assumptions about women’s working patterns and calculating contribution and benefit rates according to statistical predictions of women’s longevity. The ADB argued that the isolation of risks associated with men and women was taking place in the absence of other equally relevant factors such as smoking and drinking.²⁰¹ A report of the Victorian Equal Opportunity Anti-Discrimination Board came to the same conclusions.²⁰²

6.225 The Lavarch Committee also found that women were significantly disadvantaged by the design of superannuation schemes which were predominantly geared towards unbroken full-time work-force patterns:

[a]s a result of restrictive standards covering vesting of employer contributions and inadequate portability and preservation arrangements, women have received fewer benefits than men from employer sponsored superannuation. Women ... have been shown to be less likely than men to collect a benefit by remaining in a scheme until retirement ... Consequently, women who join superannuation schemes but do not ultimately claim a retirement benefit effectively subsidise those (mostly male) members who do. Even when women do claim a retirement benefit they receive, on average, a smaller benefit than men.²⁰³

6.227 The Association of Superannuation Funds of Australia (“ASFA”) has advised the Sex Discrimination Commissioner that it sees no major problems for the superannuation industry to comply with the requirements of the SDA even if many of the existing exemptions are removed.²⁰⁵ In a similar submission to the Attorney General’s Department in relation to the recent amendments to the ADA to cover transgender persons, the ASFA claimed that most schemes are now non-discriminatory, and do not use gender as a distinguishing factor.²⁰⁶

6.228 Conclusion. Although the 1992 amendments to the SDA, coupled with the introduction of the Superannuation Guarantee Charge,²⁰⁷ have increased women’s access to superannuation, there continue to be significant areas where superannuation schemes can and do discriminate against women with impunity. The changes to the SDA, for example, have not assisted in removing persistent forms of indirect discrimination and for this reason, both the Sex Discrimination Commissioner²⁰⁸ and the Senate Standing Committee on Superannuation have called for further reform.²⁰⁹ The ADB has also submitted that portability, vesting and preservation requirements should be non-discriminatory.²¹⁰

6.229 There is much to be said for the Victorian approach of adopting the Federal exception in that it recognises a legitimate industry concern that the terms on which the schemes are permitted should not vary from jurisdiction to jurisdiction and avoids any danger of inconsistency between State and Federal laws. The submission of the ASFA argued that the desirability of a uniform national approach to the regulation of superannuation “cannot be over emphasised”.²¹¹ However, it seems that gender is gradually being abandoned as a relevant discrimen in the area of superannuation. Further, while consistency is an important principle, the SDA is not intended “to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently”.²¹² In the Commission’s view, inconsistency is unlikely to arise where State anti-discrimination law prohibits a greater range of conduct than does the SDA.

6.230 Accordingly, the Commission proposes that the ADA be amended to remove the s 36 exception based on reasonable actuarial or other data. Section 36 should be replaced with an exception for existing fund conditions in similar terms to those found in the SDA. There should be no exception from the sex discrimination provisions for new fund conditions. If a superannuation fund wishes to discriminate in its terms and conditions, after the commencement of the relevant section, the fund should have to apply for an exemption from the ADA under s 126. There should also be no exception for discriminatory terms and conditions relating to the vesting, portability or preservation of benefits, except to the extent that the exception for existing terms or conditions applies.

Recommendation 61

Replace s 36 in relation to the exception for superannuation on the ground of sex with an exception in relation to existing funds in the same terms as the SDA.

Draft Anti-Discrimination Bill 1999: cl 39

Insurance

6.231 The ADA provides that it is unlawful for an insurer to make risk assessment classifications, calculate premiums and set terms of policies based on one of the prohibited grounds of discrimination under the ADA except in relation to sex, disability and age.²¹³ But those exceptions are only available to the extent that there is actuarial or other statistical data to support the discriminatory classifications or calculations. In particular, s 37 provides that sex discrimination in the terms on which an insurance policy is issued or offered is not unlawful if it is based on actuarial data from a source on which it is reasonable to rely and which is reasonable having regard to the data and any other relevant factors and if the source on which the actuarial data is based is disclosed to the EO Division if required. Curiously, the ADA does not expressly require disclosure of the data.

6.232 The exception operates only in relation to the terms on which an insurance policy is offered or issued. It does not extend to refusal to provide insurance at all, which remains subject to the prohibitions in the ADA.

6.233 Other jurisdictions. Section 41 of the SDA differs from the ADA in that it requires the insurer, at the client’s request, to provide the client with a document outlining the data on which it relies or at least allow the client to see and copy the document containing the data, unless an exemption has been granted under s 44.

6.234 Other State and Territory laws virtually replicate the SDA in relation to sex discrimination.²¹⁴

6.235 Is the actuarial exception justifiable? Actuarial statistics are commonly used by life insurers and insurers offering disability insurance. According to actuaries and insurers, these statistics show that the most significant factors are age and gender for death, and age, gender and occupation for disablement. However, because of Australia’s relatively small population, local data tend to be insufficient to produce reliable industry statistics so insurers use a mix of local and overseas data and their own experience when setting premium rates.

6.236 Actuarial tables do not cover every conceivable risk insured against. Most decisions in relation to general insurance products are, in fact, based on a combination of previous claims experience, medical evidence and general community assumptions, none of which are flawless or immutable. Indeed, one of the major criticisms of statistical data is that such data may not be accurate or reliable, and will not be if the source of the data is biased. Although the actuarial exceptions for sex, disability and age confine the defence to “reasonable” actuarial data, this limitation has never been tested.

6.237 According to the Sex Discrimination Commissioner, sex-based data should not be the basis of actuarial tables:²¹⁵

distinctions made on the grounds of sex, if any are to exist, must be very narrowly and precisely constrained to reflect demonstrable risk, but nothing else. The onus should be squarely on the insurer to justify any differential treatment according to sex. Arbitrary differentials and those that might be struck to serve marketing or other purposes should not be permitted.

6.239 While the Commission accepts that insurance companies should be able to assess risks and make decisions based on actuarial data for economic reasons, they should not be able to discriminate on the basis of unreviewable assumptions about classes of people.²¹⁷ There is a strong argument that insurers should no longer continue to benefit from an automatic exception from the sex discrimination provisions. Like race, gender is a suspect category, and should not be relied upon when classifying risks and setting premiums unless there are compelling reasons for doing so. Under the current regime, the onus is on an individual to challenge an insurer’s decision to discriminate, inevitably precluding any reasonable basis for complaint. Not surprisingly, few complaints relating to insurance ever proceed to the EO Division.

6.240 The options available in relation to this exception may be summarised as follows:

(a) retain the exception from unlawful discrimination in its present terms;

(b) replace the exception with one which mirrors s 41 of the SDA and which requires the insurer to provide the client with the data relied on;

(c) replace the exception with a defence, which would require the insurer to justify a discriminatory practice; or

(d) remove the exception entirely and require the insurer to justify its conduct for the purposes of obtaining an exemption under s 126 if it wishes to pursue a discriminatory practice.

6.241 The Commission is satisfied that, at the very least, the ADA should adopt the position found in the SDA. The effect of s 41 of the SDA is to exclude otherwise discriminatory conduct from the prohibition only where the terms on which the policy is available are discriminatory, the discrimination is based on actuarial or statistical data from a source on which it is reasonable to rely, the discrimination is objectively reasonable having regard to the data and, if requested, the insurer makes the data available to the person aggrieved.

6.242 The Commission thinks that it is appropriate to take the matter one stage further by requiring the insurer to bear the burden of establishing that its conduct is reasonable. In practice it is likely that the insurer would bear the burden in any respect, but complaints should not be discouraged by the appearance that the complainant would have to negate the reasonableness of the insurer’s conduct.

6.243 The Commission has given careful consideration to the exclusion of the exception and the effective imposition on insurers of the burden of obtaining an exemption under s 126. Whilst the Commission sees merit in this position as a matter of principle, it is concerned that, in order to ensure that exemptions are only granted on appropriate grounds, it would be necessary to retain provisions similar to s 41 of the SDA as criteria upon which an exemption may be granted. In the present circumstances, it is satisfied that the preferred course is to provide a defence in terms consistent with s 41 of the SDA.

Recommendation 62

Replace s 37 in relation to the exception for insurance on the ground of sex with an exception in similar terms to s 41 of the SDA and which requires the insurer to justify discriminatory terms.

Draft Anti-Discrimination Bill 1999: cl 37

Employment of married couple

6.244 Section 46 of the ADA provides an exception in relation to a job which is one of two to be held by a married couple. A similar exception is also provided in s 31(2)(i) of the Act, in relation to sex discrimination where the requirement that a job is one of two to be held by a married couple is considered a genuine occupational qualification. Both provisions were included in the Act as originally enacted and have never been significantly amended.

6.245 There is no similar exception under the SDA. The ADA (Qld) provides an exception to the ground of marital status where the work is one of two positions to be held concurrently by a married couple and they are required to live in accommodation that is supplied.²¹⁸ While the ADA merely provides an exception, the ADA (Qld) goes further in specifying the particular areas in which the exception applies, namely, the arrangements made for deciding and actually deciding who should be offered work, the terms of work, the failure to offer work or the dismissal of the worker. The EOA (WA)²¹⁹ provides a similar exception to the ADA as does the Discrimination Act 1991 (ACT) (“DA (ACT)”),²²⁰ except that instead of using the term “married couple” it refers to “a couple in a bona fide domestic relationship”.

6.246 The operation of this exception arose for consideration in Graham v Norlyn Investments Pty Ltd²²¹ and the decision in that case has raised some issues of concern. The complaint concerned a woman employed as a manager of a motel who was dismissed from employment because the company decided they would prefer a married couple to manage the motel. Accordingly, the company advertised and recruited a married couple for the position. The issue before the EOT was whether the exception in s 46 applied. In the decision, the EOT also referred to s 31(2)(i) and observed that both sections are similar in that they are both expressed in general terms and require a general assessment of the circumstances relating to the job. Having considered the evidence, the Tribunal was satisfied that “the position required the appointment of a married couple to properly fulfil its functions” and consequently dismissed the complaint. The operation of this exception resulted in the dismissal of a single person who was concededly doing her job competently.

6.247 The ADB is of the opinion that there is no continuing justification for the exceptions in s 46 and 31(2)(i), on the basis that it is inconsistent with the rights of people in de facto and same-sex relationships to include exceptions which discriminate between married and non-married couples on the basis of marital status and homosexuality. The ADB view is that if there is sufficient work for two persons then those people should be recruited on the basis of merit and not on the basis of an assumption that a couple will automatically be able to do the job better than two single people. If a couple was required, the nature of their relationship should not be a determining factor.

6.248 The Commission’s view is that this exception should not allow a single person to be dismissed to give way to a married couple, but there may be rare circumstances where it may be acceptable to require that the work be undertaken by a couple, rather than two single people. An example may be where the employer provides accommodation and the only accommodation available is that appropriate for a couple. Nevertheless, the argument in favour of such an exception is reminiscent of complaints by employers many years ago that if they had to hire women they would have to provide more toilets. Further, the exception should only be available where there is a reasonably grounded need, and not merely a preference on the part of the employer. The requirement that the couple be a “married couple” should be removed in favour of the Australian Capital Territory terminology, namely that the persons be in a “bona fide domestic relationship”.

Recommendation 63

Amend s 46 regarding the employment of a married couple to provide that the exception only applies where there is a reasonably grounded need and to substitute the requirement that the couple be a married couple to that the couple be in “a bona fide domestic relationship”.

Draft Anti-Discrimination Bill 1999: cl 29

Superannuation

6.249 The ADA makes it unlawful for employers to deny or limit a person’s access to superannuation on the ground of their marital status. It also makes it unlawful for a superannuation fund or trustee to refuse to provide superannuation cover to a person or to offer it with discriminatory terms and conditions because of that person’s marital status.

6.250 These prohibitions are subject to a specific exception for funds and trustees if:²²²

• the terms and conditions are based on reasonable actuarial or statistical data; or
• where there is no such data, the terms and conditions are reasonable having regard to other relevant factors; and
• the source on which any data relied upon is based, is produced to the EO Division if required.

6.251 Other jurisdictions. The SDA specifically permits new funds to discriminate against persons who have no spouse (including a de facto spouse) or any children by providing no benefits or less generous superannuation benefits in the event of a member’s death or to someone other than the member in the event of the member’s physical or mental incapacitation.²²⁴ Unlike the ADA, it does not require that the discrimination be based on reasonable actuarial data. The SDA also allows an exception for existing fund conditions provided certain conditions are met.²²⁵

6.252 Broad exceptions for superannuation funds are available in most other Australian equal opportunity jurisdictions.²²⁶ Some State Acts, such as the Victorian and Queensland Acts, specifically permit discrimination in superannuation on the ground of marital status to the extent that it is permitted by the SDA.²²⁷

6.253 Application of the SDA to public sector superannuation schemes. Section 13 of the SDA provides that the Act does not apply in relation to employment by an instrumentality of a State. This essentially means that the ADA will have exclusive coverage over public employment. However, the exemption in the SDA does not necessarily extend to the trustees of New South Wales public sector superannuation schemes, and New South Wales public sector funds may be partly covered under both Federal and State anti-discrimination laws.

6.254 Effect of the current exception. The s 49 exception permits both existing and new superannuation funds to discriminate against members on the basis of their marital status. Such discrimination generally takes the form of no benefits or less generous benefits to single members or members in same sex relationships. For example, the Superannuation Industry Supervision Act 1993 (Cth) (“SIS Act”) provides that when a member dies, the trustee should pay a reversionary benefit to the dependents of the member. It defines dependent in s 10 inclusively as the spouse or any child of the member. Spouse is, in turn, defined as the legally married spouse or the de facto spouse of the member. Similar provisions apply in public sector schemes.²²⁸

6.255 Definition of dependent: Most funds interpret the provisions of the SIS Act to exclude the payment of benefits to a same sex partner. They commonly argue that the same sex partner does not satisfy the definition of dependent in s 10 and therefore the payment of benefits to a same sex partner would compromise the fund’s complying status under s 62.

6.256 Although defined inclusively in the SIS Act, “dependent” has consistently been interpreted narrowly in relation to superannuation benefits to mean completely financially dependent.²²⁹ The EOT, however, has held that this is an outdated notion given that partners in a relationship, whether heterosexual or homosexual, frequently both work and are thus financially “independent”. The EOT has construed “dependent” as:

an ordinary word having normal connotations of reliance and need, trust, confidence, favour and aid in sickness and in health including social and financial support and its normal meaning is not limited to financial dependence ... The mere fact that one member of a household couple is in receipt of earnings does not mean that he or she is not a dependent of the other or that they may not be mutually dependent.²³⁰

6.258 Definition of spouse: Heterosexual partners are automatically considered to be dependent, whether married or in a de facto relationship with the contributor. In a recent challenge against a trustee’s decision to refuse to pay a superannuation benefit to a same sex partner, the court was asked to consider whether the definition of “spouse” is capable of a same sex construction.²³¹ The AAT held that it was not but added:

It gives us no joy to do so. There is no doubt that the applicant and Mr [ ] had a close marriage-like relationship and that they conformed to the requirements of section 8A in all respects except for their gender.

The outcome of this case clearly indicates that the SIS Act and the Superannuation Act 1976 (Cth) and all other Acts governing superannuation schemes of the Commonwealth, need amendment to ensure that a person living in a bona fide domestic same sex relationship with a contributor is entitled to payment of a death benefit on the death of a contributor, regardless of the gender of either the contributor or the partner or their sexual preference.

6.261 Limitation of benefits to single persons and adult children: The limitation on the payment of benefits to a “dependent” also discriminates against some single persons and some children of the member, who, once aged 18 years, do not qualify as a dependent of the member, even where they may actually continue to be financially dependent.²³⁴

6.262 Submissions. The Commission received many submissions advocating the non-discriminatory treatment of same sex couples across all areas of law, including superannuation.²³⁵ A major argument in support of this reform was the inconsistency of the treatment of same sex couples by superannuation laws on the one hand, and social security and industrial relations laws, on the other.

6.263 The argument has received support in the decision of the EOT in Hope v NIB Health Funds Ltd,²³⁶ referred to above. In addition, the Senate Select Committee on Superannuation recommended that superannuation regulations be amended so that persons “in bona fide domestic relationships (including same sex partners) and single people are treated in the same manner as married and de facto superannuants”.²³⁷

6.264 The ASFA advocates strongly for a national uniform approach. It points out that the SDA’s “carefully limited exemptions” and the ADA’s exceptions for superannuation funds are not directly comparable. In cases where there are Federal discrimination laws affecting superannuation, the ASFA submits that the States should vacate the area.²³⁸

6.265 Implications of Commission’s recommendations in relation to s 54 and the definition of marital status for NSW public sector schemes. Issues of marital status discrimination mostly arise in the older State superannuation schemes. The Commission’s recommendations to remove the s 54 exception and extend coverage to same sex couples under the new ground of “domestic status” will be a cause of concern for public sector employers and funds, who currently obtain relief from compliance with the ADA under s 54.

6.266 Although it may be argued that New South Wales anti-discrimination law which prohibits conduct that is excepted under the SDA is inconsistent and therefore inoperative, that argument has little force in relation to a Commonwealth law which seeks to pursue a protective purpose, but without covering the field, and where protection would be greater under the State Act. It is more likely that the new ground of domestic status will be inconsistent with the SIS Act and therefore invalid in so far as it purports to extend to regulated funds.²³⁹ It is not likely to be rendered inoperative with respect to New South Wales public sector schemes, which are not regulated funds under Commonwealth law.

6.267 Conclusions. The removal of s 54 and the extension of coverage to same sex partners will have the effect of requiring public employers and public sector superannuation schemes to provide superannuation cover on equal terms to persons regardless of their domestic status. Under current law, funds may be able to claim an exception if they can produce reliable statistical data to justify any discrimination.

6.268 The Commission believes that superannuation benefits should be provided on a non-discriminatory basis to all members, regardless of their marital status. Ideally, consensus is required at the Federal and State level to amend all relevant legislation, including tax laws, to enable non-discriminatory terms and conditions in superannuation. In the interim, the Commission has considered other options to ensure that, at the very least, New South Wales public sector schemes provide non-discriminatory superannuation cover and benefits to all contributors. Given the growing view in favour of such a result, it is clearly open to New South Wales, as the most populous state, to provide a lead in this area.

6.269 One way of ensuring non-discriminatory conditions is for the trustees to be required to pay all superannuation benefits to the estate of the member, as is provided under the First State Superannuation scheme established in 1992. This option has certain advantages in that it ensures equal treatment of members regardless of their marital status and is not inconsistent with s 62 of the SIS Act and will therefore not affect the scheme’s complying status. The disadvantage is that it does not, nor can it, address the issue of inequitable treatment in the division of estates, the narrow definition of dependent and the higher tax charges which apply to estate benefits. These are matters for the Commonwealth and State governments to resolve under superannuation, tax and de facto relationships laws.

6.270 In relation to the old schemes, the Commission accepts that the threat of losing tax concession status and the potential financial burden in removing the discriminatory provisions warrant a savings provision, as has been discussed in relation to sex discrimination in superannuation funds above. Accordingly, the Commission recommends that it should not be unlawful for existing funds to retain existing discriminatory provisions provided the fund is closed to new members and existing members are offered an option to transfer to new non-discriminatory schemes.²⁴⁰ New schemes should not benefit from any specific exception under the ADA. Rather, the onus should be on each new scheme, if they believe they can justify domestic status discrimination, to obtain a s 126 exemption from the President of the ADB. Accordingly, the Commission proposes the repeal of s 49.

Recommendation 64

Repeal s 49 in relation to the exception for superannuation on the ground of marital status.

Recommendation 65

Insert a saving provision allowing existing funds to retain provisions which discriminate on the ground of domestic status provided the scheme is closed and existing members have been offered an option to transfer to a non-discriminatory scheme.

Draft Anti-Discrimination Bill 1999: cl 39, 40

6.271 Various exceptions limit the application of the ground of disability in relation to specific areas of operation as well as generally across all grounds. In all areas of operation there is an implicit obligation to accommodate a disability so long as it does not impose an unjustifiable hardship on the employer, educational authority, service provider etc as the case may be. In relation to employment there is a requirement that the person be able to carry out the inherent duties of the job, and if reasonable accommodation is required to do so, that such accommodation should not cause unjustifiable hardship. The definitional and practical difficulties arising from these concepts are dealt with in both Chapter Three and Chapter Five of this report. Particular exceptions that apply in relation to disability are dealt with below. In their submission to the Commission in response to DP 30, the Disability Council of New South Wales argued for the repeal of all general and specific exemptions to the ADA allowing for the grant of exemptions by the President of the ADB only on application from the person seeking the particular exemption.²⁴¹

Public health

6.272 Section 49P of the ADA provides that it is not unlawful to discriminate against a person with an “infectious disease” if it is reasonably necessary to protect “public health”. Thus, the rule applied by most schools that any child with chicken pox must stay away from school until the infectious period has passed, does limit access to benefits, but does not contravene the ADA. This exception is necessary to ensure that the spread of infectious diseases is controlled.

6.273 The DDA provides an exception for infectious diseases in identical terms to the ADA. Victoria provides for a health or safety exception,²⁴² while Queensland provides a general public health exception as well as a workplace health and safety exception.²⁴³ In Western Australia, infectious diseases are dealt with by way of regulation which provides that particular provisions shall not have effect in relation to a person suffering from an infectious disease.²⁴⁴ The Australian Capital Territory²⁴⁵ and the Northern Territory²⁴⁶ Acts contain provisions similar to the ADA.

6.274 The ADA presently contains no definition of the term “infectious disease”. Further, it is not a term upon which the protective provisions of the Public Health Act 1991 (NSW) are based. Nor is the term “public health” a defined term in the Act. Finally, although protection against inappropriate measures may be found in the requirement that the exception only applies where the act is “reasonably necessary” to protect public health, generally speaking, members of the public at large are not in a good position to make judgments about such matters.

6.275 Although it may be necessary to take steps in relation to persons who have an infection or other condition which is readily transmissible, it is now well understood that effective public health measures often demand preventive treatment, such as immunisation or vaccination. These measures are usually directed towards sections of the population who are not identified on the basis of any ground prohibited under the ADA, except, generally speaking, age.

6.276 On one view, an employer, service provider or other person covered by the Act might be unwise to rely on this exception in the absence of appropriate medical opinion to support the action. However, if that is the appropriate course for people to follow, arguably that should be made express by the terms of the exception. The control of infectious and other diseases often involves complex matters of public policy. For example, the provision of services to people with particular conditions may require that the services be available at particular places or by particular means. Finally, there is a danger in allowing members of the public to make decisions, albeit subject to a requirement that they be “reasonably necessary”, without adequate knowledge of what conditions are transmissible and how. For example, there has, in the recent past, been a level of unacceptable discrimination against people infected with HIV in circumstances where such people provided no real risk to members of the public. The submission of the AIDS Council of New South Wales specifically noted the practice in some hospitals of requiring HIV patients to wear distinguishing armbands. It was argued that such a requirement exposes HIV patients to discrimination and is out of all proportion with the risks actually presented.²⁴⁷ Further, there is an issue as to what is involved in “protection of the public”. Is a measure designed to protect a small work-force, or children in a small school, covered by such a purpose?

6.277 The ADB has argued that:

There should be a public health exemption in relation to infectious diseases where discriminatory measures are necessary to protect public health. This exception should be construed as narrowly as possible to ensure that any discrimination is absolutely necessary in the interests of public health.²⁴⁸

Recommendation 66

Provide a public health exception for an act where:

• the disability of a person concerned involves a condition which is transmissible in the circumstances which may arise if the act is not done;
• the act is done on the basis of medical or other expert opinion on which it is reasonable to rely in the circumstances; and
• the measures taken are not disproportionate to the risks involved.

Provide an exception for acts done for the purpose of giving effect to a requirement of, or made under, the Public Health Act 1991 (NSW) or the Mental Health Act 1990 (NSW).

Draft Anti-Discrimination Bill 1999: cl 67

Educational institutions conducted solely for students with a disability

6.280 Section 49(L)(3) of the ADA provides an exception in relation to admission by an educational authority where the institution is “conducted solely for students who have a disability which is not the same as that of the applicant”. The effect of this exception is that an educational authority administering a school, college, university or other institution which is conducted solely for students who have a particular disability, is not required to admit an applicant without that disability.²⁴⁹ The submission of the ADB expressed its general support for such an exemption.²⁵⁰

6.281 This provision gives rise to a number of difficulties. First, there is no reason to require that the institution be conducted “solely” for students with a particular disability. This involves the removal of such students from the potential benefit of associating with other students without the disability. This is unnecessary and counter-productive.

6.282 Secondly, the provision allows discrimination against a person with a disability which is “not the same as” that for which the institution caters. The absolute nature of this terminology also gives rise to inflexibility which seems unnecessary in the circumstances and actually leads to some confusion. For example, it is not clear whether an institution can properly distinguish between children with mild, moderate and severe hearing impairments.

6.283 Similar exceptions apply in other jurisdictions. The DDA provides an exception for educational institutions established “wholly or primarily for students who have a particular disability”.²⁵¹ In Victoria, the terminology refers to “an educational institution or program” which is operated “wholly or mainly” for students with a “general or particular impairment”.²⁵² The distinction between institution or program seems preferable to the New South Wales terminology. The distinction between a general or particular impairment is not entirely clear. Other States and the Territories adopt similar terminology.

6.284 Despite the general availability of such an exception, its rationale is obscure. Institutions which accept students with a particular disability only, discriminate against those without that disability. However, it is not unlawful under the ADA to discriminate against able bodied people, nor to discriminate against disabled people on the ground of lack of a particular disability; and even if it were, it would be justifiable as a special measure.

6.285 Secondly, the fact that an institution caters for students with a particular disability does not give rise to any obvious reason for allowing it to discriminate unlawfully against those with other disabilities. For example, it is not readily apparent why, as a matter of general principle, an institution which provides education or services to the blind should automatically be entitled to exclude blind students in wheelchairs. The appropriateness of such conduct should depend upon the unjustifiable hardship test, as with other institutions. Accordingly, the exception should be repealed.

Recommendation 67

Repeal s 49L(3)(b) in relation to the exception applicable to educational institutions conducted solely for students with a particular disability.

6.286 Prior to 1994, it was not unlawful under the ADA for a superannuation provider to discriminate on the ground of disability even where the risk was exactly the same for a person without a disability. Now, however, a superannuation or insurance provider can discriminate on the ground of disability in the terms and conditions of a superannuation fund or an insurance policy if the discrimination is reasonable having regard to actuarial or statistical data on which it is reasonable to rely, and any other relevant factors, and the source of such data is disclosed to the Tribunal if required.²⁵³

6.287 Other jurisdictions. The DDA, by comparison, permits a superannuation fund to refuse membership to a person with a disability and allows an insurer to refuse to offer an insurance policy to a person with a disability. It also allows a superannuation fund and an insurer to discriminate on the ground of disability in the terms and conditions of the fund or insurance policy.²⁵⁴ The preconditions mirror the ADA, except that there is no express requirement to disclose the source.

6.288 Similar exceptions for superannuation and insurance are also provided in other State jurisdictions.²⁵⁵

6.289 Scope of the exception. The ADA appears to offer better protection to persons with a disability than the DDA which allows persons to be refused membership of a fund or insurance cover because of their disability. The ADA exception, on the other hand, applies only to the terms and conditions of a superannuation fund or insurance policy. This may however be an academic distinction if the insurance policy has such a broad exclusion clause that it is tantamount to a refusal to cover.

6.290 In relation to insurance, it is not clear whether the ADA applies to all forms of insurance. In AMP v Goulden,²⁵⁶ the High Court held in 1986 that the ADA was inconsistent with the Life Insurance Act 1945 (Cth) insofar as it purported to affect the ability of registered life insurance companies to classify risks and fix premiums according to actuarial and prudential standards. However, the reasoning depended upon the operation of s 78 of the Life Insurance Act 1945 (Cth), which provided that life insurance policies be issued according to a risk classification and the rate of premium be fixed by the company upon actuarial advice. That requirement was held to be incompatible with any State law which purported to make it unlawful to take account of a particular physical impairment in decisions concerning the issue of policies and the fixing of premiums. Such a State law would alter, impair or detract from the Commonwealth law and hence would be inoperative pursuant to s 109 of the Commonwealth Constitution.

6.291 Since that decision in 1986, the scheme of prudential regulation of life insurance companies has changed significantly with the introduction of the Life Insurance Act 1995 (Cth). Whilst any direct inconsistency between State and Commonwealth law would still result in the State law being inoperative, the 1995 Act declares that “it is the intention of the Parliament that this Act does not apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act”.²⁵⁷ The interaction of the 1995 Act with the Commonwealth’s own DDA, which contains a similar provision protective of State laws, requires a reconsideration of the issue determined by Goulden. As a result, the extent to which the ADA is able to regulate life insurance policies in New South Wales remains an open question. To the extent that it offers the same protection as does the DDA, the effectiveness of the protection will depend upon the extent to which the DDA and Life Insurance Act 1995 (Cth) can stand together. To the extent that it offers additional protection to that available under the DDA, the protection is likely to be effective so long as it is not directly inconsistent with the requirements of the Commonwealth law.²⁵⁸

6.292 The ADA also operates, however, in relation to health insurance and other insurance (such as CTP and workers compensation) which are not covered by Commonwealth regulatory laws. It should also apply to an insurer’s decision whether or not to issue a policy of general insurance and, to the extent that they are not covered by the Insurance Contracts Act 1984 (Cth), to the terms and conditions on which a general insurance policy is issued or offered.

6.293 Uniformity with Federal laws is appropriate where Federal law offers better protection or where the State law is likely to be otherwise inoperative. In this instance, the Commission does not consider uniformity with the DDA desirable or necessary for two reasons. First, it is unlikely that s 49Q of the ADA will be inoperative, as it affords better protection to persons with a disability than the DDA. Secondly, uniformity would mean winding back the protection afforded under the ADA.

Sport

6.294 Section 49R provides that it is not unlawful to exclude a person with a disability from a sporting activity:

(a) if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity; or

(b) if the persons who participate or are to participate in the sporting activity are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other; or

(c) if the sporting activity is conducted only for persons who have a particular disability and the person does not have that disability.

6.296 The Commission recommends the repeal of s 49R.

Recommendation 68

Repeal s 49R (exception for sport on the ground of disability).

Membership of clubs

6.297 Section 49O prohibits discrimination by registered clubs in relation to admission to membership and access to benefits. The section provides that:

(1) It is unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of disability:

(a) by refusing or failing to accept the person’s application for membership; or
(b) in the terms on which it is prepared to admit the person to membership.

(2) It is unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of disability:

(a) by denying the person access, or limiting the person’s access, to any benefit provided by the registered club; or

(b) by depriving the person of membership or varying the terms of the person’s membership; or

(c) by subjecting the person to any other detriment.

(5) Nothing in sub-section 2(a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the registered club.

6.300 The provisions in other Australian jurisdictions can be divided into two camps: Victoria, Queensland and the Northern Territory all except clubs which are established for the benefit of disadvantaged persons but the exception applies only in relation to the admission of persons to membership of the club.²⁶³ No unjustifiable hardship exception is provided in relation to members’ access to a club benefit. The Western Australian and Australian Capital Territory anti-discrimination laws, on the other hand, are modelled on the DDA provisions.²⁶⁴

6.301 At present the unjustifiable hardship exception in s 49O(5) only applies in relation to the provision of benefits.²⁶⁵ The exception should logically apply to the terms and conditions of membership and the treatment of members generally. Thus, if one of the purposes for which a club is established is to conduct sporting activities, the club should be entitled to restrict those activities to persons who are, by reason of a disability, unable to participate in the normal way. Thus, an athletics club may have a separate class of membership for those who are unable to participate, with appropriately reduced subscriptions. The terms and the restrictions should, in accordance with general principles, be proportionate to the relevant disability and not based on stereotyping assumptions.

6.302 In Chapter Four, the Commission recommended that the current area of “registered clubs” be substituted by a new area of “clubs and associations”.²⁶⁶ The above analysis would apply equally to this area.

Recommendation 69

Extend the unjustifiable hardship exception in s 49O(5) in relation to the provision of benefits by a club to apply to all aspects of the prohibition in s 49O(2).

Draft Anti-Discrimination Bill 1999: cl 14, 52

6.303 There are no specific exceptions to the ground of homosexuality. The only exceptions that currently apply to this ground are the general exceptions discussed above and the limitations on the public sphere of operation discussed in Chapter Four. If the Commission’s proposal as to a new ground is accepted, homosexuality will be included within the wider ground of sexuality and will no longer be a separate ground.²⁶⁷ However, this change will not require the inclusion of any new specific exceptions.

Age

6.304 The practical difficulties associated with defining age as a ground of discrimination, discussed in Chapter Five of this Report,²⁶⁸ have resulted in an increased focus on the role of the exceptions. Currently, this ground is subject to more exceptions than any of the other grounds of discrimination. In addition to the general exceptions to which all grounds are subject, there are specific exceptions that limit the coverage of particular areas of operation in which age discrimination is prohibited. Additionally, there are other exceptions that apply to age discrimination across all areas of operation.

6.305 To repeat briefly the problems identified in Chapter Five, the concept of age is not an entirely irrelevant consideration in many areas of public activity. The difficulty is to identify those areas where it is entirely irrelevant and to distinguish them from those areas where it is not. For example, taking the important area of employment, we treat it as a matter of pride that we protect our children from the labour force and require them to have educational opportunities. Similarly, in other areas, there are laws relating to the legal capacity and welfare of people under 18 years which provide legitimate protection to children.

6.306 The ADA presently provides numerous general exceptions to Part 4G including exceptions in relation to laws:

• relating to the legal capacity and welfare entitlements of children;²⁶⁹
• programs providing for the special needs of people of particular ages;²⁷⁰ and
• regulation of fitness to control a vehicle.²⁷¹

6.308 Whilst age can be an arbitrary measure, in many areas it is largely accurate and provides a practical approach to what otherwise might require a mass of individual assessments. Pragmatic judgments based on a criterion such as age, as to abilities and weaknesses are not necessarily correct in relation to each individual, but individual assessment is not immune from arbitrary variation. Questions of degree are involved.

6.309 The principles which the Commission has sought to apply in the following consideration of the exceptions are as follows:

(1) if age is truly an arbitrary distinction, no exception should apply;

(2) if age can be identified on a pragmatic basis as a rough guide to abilities or disabilities, an exception to the general prohibition should be considered;

(3) the justification for an exception will depend upon:

(a) the extent to which relevant disabilities or abilities can be identified as age-related; and

(b) the difficulties which might be associated by requiring individual assessment of the relevant ability or disability.

6.310 As noted in the discussion relating to the general exception provided by s 54 of the current ADA, the Commission considers it appropriate to retain a general exception relating to compliance with statutory provisions in relation to the ground of age. The reason for this approach is reflected in the general exceptions now contained in relation to this ground, particularly those relating to the legal capacity and welfare of children²⁷² and safety procedures.²⁷³ Generally, the statutory provisions, the operation of which is retained by these exceptions, reflect a policy decision that age is an appropriate basis for regulating particular kinds of conduct. Without having conducted a comprehensive review of the provisions, it appears to the Commission that, generally, that approach is legitimate in the areas where it has been adopted. Nevertheless, the Commission recommends that a review be undertaken of such legislation and that any future legislation which may introduce age-based criteria, should be the subject of scrutiny by a Parliamentary Committee. The purpose of such scrutiny should be to ensure that age is not being used as a short-cut to an appropriate consideration of individuals on their merits. Such an approach is readily justifiable where individual assessment would involve a largely impressionistic or subjective decision made in a vast number of cases, where the intrusion on individual rights is not likely to be disproportionate to the benefits sought to be achieved by the form of regulation imposed, and where the link with age is reasonably clear.

Recommendation 70

Provide a general exception to the ground of age where an act is necessary to comply with another Act, regulation or other statutory instrument.

Draft Anti-Discrimination Bill 1999: cl 65

Work

6.311 Qualifying bodies. Qualifying bodies which are responsible for conferring, renewing or extending trade, professional or occupational qualifications are allowed to impose a “reasonable and appropriate minimum age under which an authorisation or qualification will not be conferred”.²⁷⁴ Thus, for example, the New South Wales Boxing Association, which does not confer a trainer’s boxing licence until the age of 18, will not be discriminating on the ground of age against those under 18. Clearly, the focus is, in principle, on whether the minimum age set is “reasonable and appropriate”. The rationale for this exception is that people must be suitably qualified to obtain a qualification and the ability to obtain such qualifications is often linked to age via levels of education and experience. In relation to a sporting activity, it may also be concerned with physical development, which also tends to be linked to age.

6.312 The Commission has been troubled by this exception for two reasons. First, if it is appropriate to impose a minimum age before which a particular employment qualification cannot be granted, why is it not appropriate to allow the imposition of a maximum age up to which the qualification can be held? Secondly, the area of authorisations and qualifications is usually treated as one to which assessment of specific competence is readily applicable. For example, a minimum age for qualification as a medical practitioner is likely to be dictated by the time taken to satisfy the training requirements. On the other hand, the holding of a trainer’s boxing licence, referred to above, may be thought to be dependent upon a level of maturity and judgment, which, like other aspects of legal capacity, can appropriately be expected only of persons above a specified age.

6.313 The Commission is not inclined to recommend the abolition of this exception. Rather, it believes that, consistently with the rationale for the exception, qualifying bodies should be entitled to require groups identified by age to undergo differential requirements for renewal or extension of the relevant authority or qualification. This would allow the assessment of competence and skills by imposing relevant testing, for example, to an older age bracket, without unnecessarily retesting everyone. In principle, there can be no objection to a hospital requiring surgeons to undergo skills based testing after they reach, say, 60 years of age. To impose such a requirement is to ensure that people do not retain jobs for which they are no longer competent, without requiring younger people who are not likely to lose their particular skills in the absence of accident or disease routinely to undergo re-testing for no good purpose.

Recommendation 71

Extend the exception in s 49ZYG(2) to allow qualifying bodies to require groups identified by age to undergo differential requirements for renewal or extension of the relevant authority or qualification.

Draft Anti-Discrimination Bill 1999: cl 34

6.314 Junior employees. Section 49ZYI of the ADA provides an exception from the age discrimination provisions for employers in relation to offering employment and terms of employment for people under 21 years. The section as originally inserted in 1993 excepted junior employees from discrimination in the terms and conditions of employment “if those terms and conditions were in accordance with an award”. However, the section was amended in 1994 to remove any reference to awards. The exception is to apply for at least two years from proclamation of the age discrimination amendments (ie from 1 July 1994) and will continue until it is lifted by proclamation.

6.315 The issue of whether employers should be able to pay a lower wage to workers under 21 years is a contentious one. On the one hand, there is concern that the abolition of youth wages would lead to an increase in youth unemployment and reduce the opportunities for young workers to gain experience. On the other hand, it has been suggested that workers should be paid according to merit and productivity and that a “training wage” would be a more appropriate option for an inexperienced worker. Wage discrimination against young people is considered by some to be just as offensive as wage discrimination against women or Aboriginal people.²⁷⁵ Many of the justifications used to deny women equal pay have been used to deny fair treatment in the workplace for juniors: they are not good workers, they need more training, they do not need the money, they have no dependents to support etc.²⁷⁶ Although none of these arguments is convincing, attempts to change the practice have been unsuccessful due to fears of significant economic ramifications.²⁷⁷ Reviews of age discrimination in the Australian Capital Territory, Western Australia, South Australia and Victoria have recommended that, in the absence of conclusive evidence of the effects of youth wages on youth employment, it is inappropriate to prohibit youth wages.²⁷⁸ It has also been argued that the system of youth wages should not be altered by anti-discrimination law, but rather in the industrial arena in line with the policy of equal pay for work of equal value.

6.316 When considering this issue in New South Wales, the Attorney General’s Department suggested three possible options:²⁷⁹

• providing an open-ended exception for junior wage rates which would meet the concerns of employers for containing costs and providing jobs for young people, but ignoring the merit principle;
• making junior wage rates unlawful on the basis that it is inappropriate for young people to be paid less than adult workers; and
• phasing out an exception for junior wage rates over a period of two years to provide employers time to plan for and assess the impact of the removal of junior wage rates.

6.318 The purpose of incorporating the phasing-out option was to give employers time to plan for the removal of this exception, given that one of the major concerns of employers was that the removal of this exception would result in a significant impact on teenage employment. An issue discussed at length in the White Paper was the implementation of competency-based training wages to replace age-based wages. It was suggested that such an approach would not increase youth unemployment if wage rates are linked to agreed levels of experience, training or skill. While this approach would be advantageous to teenagers in sectors where junior rates do not exist, such as in the main building and construction awards, its overall value as a replacement for age-based rates would depend largely on the development of appropriate competency standards. However, even that approach could be indirectly discriminatory, unless justifiable. In policy terms, it would be necessary to consider whether the reasonableness of the rates was to be assessed by the EO Division (in the absence of an express exception in the ADA) or by some other body.

6.319 Federally, s 120B of the Workplace Relations Act 1996 (Cth) requires that the Full Bench must prepare a report on the feasibility of replacing junior rates with non-discriminatory alternatives by June 1999.²⁸¹

6.320 Consistent with the recommendations of reviews into age discrimination, all existing age discrimination legislation in Australia, except the Northern Territory, makes some provision for youth wages. Victoria²⁸² and Queensland²⁸³ have a blanket exception, while South Australia,²⁸⁴ Western Australia²⁸⁵ and the Australian Capital Territory²⁸⁶ except junior wages fixed in accordance with an industrial award or agreement.

6.321 Although the current exception is difficult to justify in terms of justice or equity, the Commission is reluctant to recommend repealing the exception while the matter is being considered in the industrial arena and federally. However, given that the exception is now operating beyond the target date, the Commission recommends that a further target date be set to ensure that alternatives are considered and change is not permanently resisted. The target date should be December 2000.²⁸⁷

Recommendation 72

Amend s 49ZYI(3) in relation to junior employees by stating that the section ceases to operate in December 2000.

Draft Anti-Discrimination Bill 1999: cl 32

6.322 Genuine occupational qualification. Section 49ZYJ provides an exception where being of a particular age or age group is a genuine occupational qualification for the job. The section reads as follows:

(1) Nothing in this Division renders unlawful discrimination against a person on the ground of the person’s age if being a person of a particular age or age group is a genuine occupational qualification for the job.

(2) Being a person of a particular age or age group is a genuine occupational qualification for a job if either of the following requirements is satisfied:


(a) in dramatic performances or other entertainment, the essential nature of the job calls for a person of that age or age group for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a person of another age or age group;
(b) the holder of the job provides persons of that age or age group with services for the purpose of promoting their welfare or furthering their education and those services can most effectively be provided by a person of a particular age or age group.

6.324 The genuine occupational qualification exception to age applies in all States and Territories which have legislated against age discrimination. In Victoria, it applies in relation to “a dramatic or an artistic performance, entertainment, photographic or modelling work or any other employment, if it is necessary to do so for reasons of authenticity or credibility”.²⁹⁰ In Queensland,²⁹¹ South Australia²⁹² and the Northern Territory,²⁹³ the exception is even more open ended with no specific circumstances prescribed in the legislation. The exception applicable in Western Australia²⁹⁴ and the Australian Capital Territory²⁹⁵ is a combination of the New South Wales and Victorian provisions.

Recommendation 73

Repeal the regulation making power regarding the genuine occupational qualification exception on the ground of age in s 49ZYJ(3) and 49ZYJ(4).

6.325 Voluntary retirement and severance schemes. Retirement or severance schemes which are based solely on age and are not voluntary, are presently unlawful under the compulsory retirement provisions of the ADA. However, s 49ZYK provides that where the retirement or severance scheme is voluntary, it is not unlawful to use length of service as a basis for offering an employee, commission agent, contract worker or partner participation in such a scheme.

6.326 The rationale behind this exception was outlined in the Second Reading Speech which noted that:

[a]lthough the Government is of the view that voluntary retirement and other similar schemes based solely upon an employee’s age are discriminatory on the ground of age, it is acknowledged that some voluntary redundancy schemes validly enable employees to take advantage of redundancy packages which recognise length of service.²⁹⁶

• it is a common feature of the industrial landscape;
• long service should be rewarded; and
• employees have relied on expectations that certain benefits will flow after a period of time.

6.329 The only other jurisdiction in Australia that excepts voluntary retirement schemes from age discrimination is Western Australia.³⁰¹

6.330 On balance, the Commission is not satisfied that the link between age and length of service requires that length of service be rejected absolutely. The exception should therefore be retained. Further, if it is to be reconsidered it raises policy issues which may properly be dealt with in the context of relevant industrial laws.

Education

6.331 In May 1992 the Attorney General’s Department stated in its Green Paper that the main areas of age discrimination in education were as follows:³⁰²

• providing an upper age limit for completion of school education;
• restricted admissions to courses for certain ages;
• upper age limits specified for scholarships; and
• age limits for qualifications, for example upper age limits for tertiary degrees and specified ages for re-qualification in the various professional areas.

6.333 The current exceptions³⁰⁵ to the area of education are set out in s 49ZYL. They provide that:

(3) Nothing in this section applies to or in respect of:

(a) the admission of, or the refusal of admission to, a person to a school, college, university or other institution if the level of education or training sought by the person is provided only for students above a particular age; or

(b) a private educational authority; or

(c) an education authority prescribed by the regulations in relation to such circumstances (if any) as may be so prescribed.


(4) Nothing in this section applies to or in respect of a refusal by an educational authority to enrol at a government school or registered non-government school a child who is not of or above the age of 6 years. In this subsection, “registered non-government school” has the same meaning as in the Education Reform Act 1990.

(5) Nothing in this section applies to or in respect of benefits, including concessions, provided in good faith to a student by reason of his or her age.

6.335 The Commission does not have concerns in relation to minimum age requirements. Of greater difficulty are the circumstances in which admission is not available to people in older age groups. There are two situations in which they may arise. First, and by way of example, a university may wish to reserve a specific number of available places for mature age students and a further number for high school graduates. There may then be a pool available for persons who are not recent high school graduates, and do not satisfy the special mature age entry requirements. Such an arrangement may well be discriminatory, at least indirectly, on the ground of age because high school graduates tend to be approximately 18 years of age. However, to give preference in any way to high school graduates is to discriminate in favour of students below a particular age. Secondly, some university programs restrict their availability to persons under a higher age, perhaps 55 years. Again, the restriction can be justified on social policy grounds. There is a high public investment in providing university education. For a person to commence medical training, which he or she will not complete until over 60 years of age, may be an inappropriate allocation of limited resources. In theory, the example could be justified where the older person paid the full cost of the course. However, to require that of older people would itself be discriminatory and in any event might not leave space available for additional younger entrants.

6.336 The Commission considers that the Victorian Act, which excepts selection of students subject to a minimum qualifying age or by imposition of quotas in relation to students of different ages or age groups has much to recommend it.³¹² That however, does not cater for a maximum age requirement. The latter problem falls into a different category. While the Commission has been able to identify some examples which satisfy it that such a requirement should not necessarily be unlawful, it cannot be sure that there may not be areas where a maximum age is applied inappropriately. The proper course in these circumstances is to require that institutions and programs seeking to impose a maximum age justify their policy to the ADB and obtain an exemption in appropriate circumstances.

6.337 In addition to these considerations, the Commission is concerned that there is, in this area as in other areas, a curious exception in relation to the provision of “benefits or concessions” on the basis of age. This involves a direct contradiction of the prohibition against “denying or limiting access to any benefit” on the ground of age. It may also involve a contradiction of the prohibition on discriminating in the terms on which a person is admitted as a student. It may be that the intention, also reflected in the exception in relation to goods and services, is to permit concessions on fares and fees for people under or over a particular age. However, the exception is not so limited. The requirement that the benefit be provided “in good faith” is presumably intended to prevent the imposition of fees or other burdens which effectively exclude students from particular programs or services. The difficulty is that the exception leaves the matter to the educational authority or service provider to make a decision as to the circumstances in which age-based discrimination will be appropriate. The effect of the exception is to swallow up a large part of the prohibition.

6.338 The dilemma revealed by this exception is simply a further reflection of the fact that age is often considered relevant in our society and the broad prohibition, in standard form, causes many difficulties. The Commission is of the view that this dilemma can only be resolved by accepting that other policies may validly override the prohibition but requiring that, unless those policies find expression in legislative form, they must be the subject of a precisely worded exception or the conduct will need to be the subject of an exemption from the ADB. The particular exception in question should be limited to the obvious areas of intended application, namely the provision of benefits or services at concessional rates based on age.

6.339 Finally, there appears to be a difficulty in relation to the prohibition with respect to educational services which is not covered by the present exceptions, except in so far as the exceptions with respect to “benefits” is sufficient to cover almost anything. The prohibition on admission concerns admission “as a student” and “the terms on which” a person is admitted as a student. Most educational institutions operate at different levels which, particularly in relation to school children, are often age-based. There may be legitimate reasons why a school would wish to make certain benefits available to children at a particular age or at a particular level, which itself will reflect a particular age group. Where a school provides a particular benefit, such as a form excursion or right to undertake particular extra-curricular activities, to a particular grade or level, the discrimination may be indirect and the institution may be able to justify its requirements on a reasonableness basis. However, given the general acceptability of schools working on the basis of age groups, the Commission considers that it would be preferable to accept that age discrimination simply should not apply to the provision of education at least up to and including secondary schooling and associated services.

Recommendation 74

Provide an exception in relation to age discrimination in relation to:

• the provision of educational services up to and including secondary schooling; [Draft Anti-Discrimination Bill 1999: cl 45(a)]
• the provision of goods or services at concessional rates based on age; [Draft Anti-Discrimination Bill 1999: cl 38]
• the imposition of a minimum age requirement on a particular educational program and quotas in relation to students of different ages. [Draft Anti-Discrimination Bill 1999: cl 45(c)]

In relation to the imposition of a maximum age requirement, an educational authority should be required to seek an exemption from the President of the ADB.

Draft Anti-Discrimination Bill 1999: cl 69

6.340 Until earlier this year, the ADA provided an exception which allowed discrimination in the area of access to places and vehicles.³¹³ The matter is now covered within the definition of “services” by adding 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.³¹⁴

Provision of goods and services

6.342 There are three specific exceptions that limit the operation on the ground of age.³¹⁵ They are:

• any benefits or concessions provided in good faith based on a person’s age;
• holiday tours offered or provided to persons of a particular age or age group; and
• disposal of goods by way of a gift or through a will.³¹⁶

6.344 According to the ADB, benefits and concessions provided in good faith include Senior Citizen prizes awarded at competitions conducted for people within certain age groups and age-based discounts on travel, cinema, hairdressing or other retail products.

6.345 Benefits or concessions provided in good faith. For reasons already identified, the provision of benefits and concessions either falls within the definition of provision of services or it does not. If it does not, no exception is required. If it does, there is no obvious reason why a service which constitutes a benefit should be the subject of a specific exception.

6.346 The reasoning behind the exception may be that the rationale of the exception is similar to that in relation to gifts, namely that people should be entitled to discriminate on the ground of age, in the provision of free benefits or gifts. Nevertheless, the justification remains obscure. If the purpose of the free service is to provide for a peculiarly disadvantaged group, then there will be no unlawful discrimination, at least within the definition proposed by the Commission. In other cases, the restriction to a particular group may be designed, for commercial purposes, to target a specific sector of the community, arguably not because it is disadvantaged but because it has ready access to funds which may lead to increased sales. However, again, the exception seems to destroy the rule. If it is to be unlawful to sell the same goods at differential prices, depending on the age of the buyer, in principle it should also be unlawful to offer discounts based on the age of the buyer. If such conduct is thought to be acceptable, the proper course is to remove the prohibition on age discrimination in the area of provision of goods and services. Whilst the prohibition remains, there is no basis for maintaining the exception.

6.347 Holiday tours and gifts. Again, the reason for the exception is probably because it is difficult to see anything inherently undesirable in providing recreational services to a particular age group. Indeed, since retired people may constitute a distinct group for legitimate reasons, it is difficult to understand why the prohibition should be imposed in the first place. For example, elderly people are more likely to be retired, and therefore have greater time at their disposal for recreational purposes and, at the same time, may be less physically adept and hence may wish to take longer to undertake a particular activity.

6.348 Disposal of goods by way of gift or will. The Commission is of the view that a gift or bequest is not, in usual terminology, the provision of a service. In so far as a gift may be associated with the provision of a service, the comments in relation to benefits and concessions are apposite.

6.349 Conclusions. The Commission is firmly of the view that none of these three categories of exceptions should be retained. If they are thought to have merit, and the Commission is of the view that they may well have merit, that conclusion flows from the fact that age is a relevant consideration and would justify withdrawal of the area of provision of goods and services from the prohibition in relation to age discrimination.

Other exceptions

6.350 In the Northern Territory, the carrying out of an artificial fertilisation procedure is specifically excluded from the coverage of provision of services. There have been decisions in different jurisdictions around Australia exposing the stark contradictions between laws governing reproductive technologies and laws which prohibit discrimination. The primary consideration underlying IVF legislation generally is the best interests of the child. On the other hand, anti-discrimination legislation focuses on the person who claims to be unfairly discriminated against. An example cited by the head of reproductive biology at the Royal Women’s Hospital in Melbourne sums up the conflicting values: “If a 70 year old woman wants a child – medically there is not a problem with that, but it would cause an outrage. Yet (most State) anti-discrimination legislation says we should not discriminate on the basis of age”.³¹⁸

6.351 Medical services. Age is often a relevant consideration in relation to the provision of medical services including surgical procedures and prescription of drugs. Some procedures involve risks of complications which can only be assessed in practical terms on the basis of age. Other procedures, such as those relating to fertility, are widely thought to be inappropriate for people over a particular age.

6.352 The Commission is not satisfied that this matter can properly be dealt with by way of an exception. The circumstances in which age may be relevant in relation to the provision of medical services are too complex to be readily defined. In some situations (though rarely) legislation, or regulations made under legislation, may authorise the conduct, in which case the general exception will apply. In many other circumstances, age is taken into account, not for the purpose of refusing a treatment, but as a basis for recommending that a particular treatment should or should not be availed of. As a practical matter, questions of discrimination by a medical practitioner may therefore not arise as frequently as might be expected. On the other hand, where they do arise, it is not possible legislatively to resolve a dispute as to whether or not a particular factor is medically relevant. Nor is it useful, within the structure of the present ADA, to prescribe a requirement that judicial or administrative exemption be retained before such a decision, based on age, can lawfully be made.

Recommendation 75

Repeal s 49ZYN(2) and 49ZYN(3) in relation to the provision of goods and services on the ground of age.

Accommodation

6.353 In addition to the general exceptions relating to the provision of accommodation,³¹⁹ there is an additional exception which relates to concessions provided in good faith based on age.³²⁰ However, it has been erroneously added onto s 49ZYO(3) with the word “and” rather than “or”, as was the original intention.

6.354 The Commission sees no reason for this provision on the basis that the circumstances can be covered by a general special measures exception. The same argument was used to recommend the repeal of the exception applicable to establishments providing housing accommodation for aged persons in s 59 of the ADA.³²¹

6.355 In Victoria, there is a general exception that applies to age-based benefits and concessions³²² and specific exceptions where the accommodation is provided in a hostel or similar institution established wholly or mainly for persons of a particular age or in an educational institution established for students of a particular age.³²³ In Queensland, age is a lawful consideration in relation to accommodation only if the accommodation is provided by a body established for charitable purposes.³²⁴ In South Australia, there are exceptions that apply to persons of a particular age group if the accommodation is provided by a non-profit organisation or where the accommodation is provided for recreational purposes to persons of a particular age group.³²⁵ Western Australia provides an exception in relation to accommodation that allows benefits and concessions on the ground of age.³²⁶ The Australian Capital Territory provides an exception that allows the provision of benefits and concessions on the ground of age to all areas of operation.³²⁷ The age-based exceptions to accommodation in the Northern Territory are limited to those established for a charitable purpose.

Recommendation 76

Repeal s 49ZYO(3) in relation to to the exception for age based accommodation.

Registered clubs

6.356 It is unlawful for registered clubs to discriminate against a person who is over 18 years old, on the basis of age in respect of whether and on what terms it admits that person to membership of the club or to deny or restrict that person’s access to benefits provided by the club. However, the ADA provides a broad exception for those registered clubs whose principal object is to provide benefits to persons of a particular age or age group.³²⁸ It also provides that clubs can retain different categories of membership for members of different ages or age groups.³²⁹ Because the terminology refers to the “retention” of different age categories of membership, this exception implicitly provides a defence only for those clubs which had different age categories prior to the commencement of the age discrimination provisions on 1 July 1994. Clubs which did not differentiate between members on the basis of age prior to that date cannot rely on this exception.

6.357 The prohibition of age discrimination by registered clubs specifically does not apply to persons who are under 18 years of age. Thus, a club may exclude persons who are under 18 or admit them as members on different terms from persons who are aged 18 years or over. If, for example, a term or condition of junior (under 18) membership is that a person cannot use or participate in some activities of the club, the junior member will have no recourse under the ADA against the club because such a restriction was a condition of membership.

6.358 A major problem for clubs is in the area of concessions provided to members on the basis of age, years of membership or income status. For example, some clubs provide discounts to members who are aged over 60 years, who are on an aged pension or who have 15 years’ membership with the club. Unless these concessions fall within the exception relating to existing age categories of membership, they may in some cases constitute discrimination, either directly or indirectly. For instance, a discount on membership fees for people who are on an aged pension could be directly discriminatory against people under the age of 65 years. A discount for members who have had 15 years’ membership, on the other hand, may be considered indirect discrimination against younger members (who would be unable to comply with the condition) unless the club could prove that the condition was reasonable.

6.359 These issues give rise to interesting analogies with a leading case on sex discrimination in the United Kingdom, James v Eastleigh Borough Council.³³⁰ In that case, a retired couple, both 61 years of age, sought admission to a leisure centre operated by the Local Council. Being of pensionable age, the wife was admitted free but the husband was required to pay a fee. The House of Lords held that the conduct constituted discrimination on the ground of sex. Because the Social Security Act determined pensionable age on a discriminatory basis on the ground of sex, the Council discriminated on the ground of sex by adopting the statutory scheme provided by the Social Security Act. Had there been a prohibition on age discrimination, that would also no doubt have been contravened by the approach adopted by the Council.

6.360 A similar problem arises in relation to the operation of State and Territory legislation in Australia, where the Social Security Act 1991 (Cth) applies differentially on the ground of age and, being Commonwealth legislation, cannot be affected by State or Territory laws.³³¹ The general exception for compliance with a statutory provision will not apply where the adoption of the pensionable age criterion is not itself required by an Act.

6.361 An extension of the coverage of the ADA to include other incorporated associations will exacerbate the problems raised by this ground. For example, bodies such as the Bar Association may set practising certificate fees (and hence membership fees) by reference to seniority. Because most people increase their incomes with age and experience, such scales have a rational basis. Such conduct will involve indirect discrimination, but will not be unlawful, if reasonable.

6.362 The Commission’s recommendation to provide a general “statutory authority” exception in relation to the age discrimination provisions will resolve the problem of conflict between the ADA and other legislation.³³² Otherwise, the Commission does not recommend any change in this area.

Legal capacity and welfare of children

6.363 Under s 49ZYQ of the ADA, a general exception to the age discrimination provisions is provided in relation to laws which affect the legal capacity and welfare of children. There are many laws that relate to the legal capacity and welfare of a person under 18, including criminal laws, all of which would override the provisions of the ADA pursuant to this exception as well as the proposed general statutory authority exception in relation to age. Examples of statutory requirements based on age are as follows:

• Section 6B of the Traffic Act 1909 (NSW) prohibits persons under the age of 16 from driving on a public street;
• Section 28 of the Children (Care and Protection) Act 1987 (NSW) prevents tattooing of persons under 18 years;
• Section 19 of the Children (Protection and Parental Responsibility) Act 1997 (NSW) allows a police officer to remove a person under the age of 16 from a public place under certain circumstances; and
• Section 17 of the Minors (Property and Contracts) Act 1970 (NSW) provides that where a minor participates in a civil action, the action is not binding on him or her except in accordance with the provisions of the Act.

Special needs programs

6.365 Section 49ZYR deals with an exception relating to age specific special needs programs and activities. The Commission has recommended that special needs programs be a general exception under the ADA applicable to all prohibited grounds of discrimination.³³³ Accordingly, this exception is rendered unnecessary by the Commission’s recommendation.

Recommendation 77

Repeal s 49ZYR in relation to the exception for age specific special needs programs and activities.

Superannuation

6.366 In relation to superannuation, age discrimination will occur when a trustee treats a member or any other beneficiary less favourably than another person of a different age in the same circumstances unless an exception applies.

6.367 Section 49ZYS of the ADA provides that it is not unlawful to treat a person less favourably because of their age in the terms and conditions of a superannuation fund if:

• the discrimination occurs because of the application of a standard under the Occupational Superannuation Standards Act 1987 (Cth) or under the Superannuation Industry (Supervision) Act 1993 (Cth);
• the discrimination is required in order to comply with, obtain a benefit from, or avoid a penalty under any other Commonwealth laws;
• the discrimination is based on reasonable actuarial or statistical data, or where there is no such data, it is based on other data on which it is reasonable to rely;
• if none of the above apply, the discrimination is reasonable having regard to any other relevant factors; and/or
• the discrimination is based on an existing condition and relates to a person who became a member of the fund before the commencement of this section or not more than 12 months after its commencement.

6.369 Age related factors in superannuation funds. Age related factors influence the design of superannuation funds. These factors are not, as one might expect, related to actuarial principles but rather tend to reflect government policy and community attitudes, for example:

• different pension age entitlements for men and women, set by government;³³⁷
• early retirement schemes encouraged by government based on the rationale that older workers should make way for younger employees; and
• compulsory preservation requirements for superannuation contributions which aim to defer the payment of superannuation benefits until genuine retirement.³³⁸

• set upper and lower age limits which restrict a person’s eligibility to join a fund;
• pay different benefits to members depending on their age: for example, most funds pay the maximum benefit to a member when he or she reaches a specified retiring age, generally 65;
• fix contribution levels according to a member’s age, often requiring higher contributions as the member gets older because it is thought that an older person has more disposable income and providing for retirement has become a higher priority; and
• use age as a factor to calculate the value of a lump sum when converting it to a pension and vice versa: these calculations are generally based on actuarial or statistical data.

6.372 Accepting contributions from members aged over 65. Previously, Commonwealth superannuation laws did not permit funds to accept contributions from members aged over 65.³³⁹ This was a source of great concern for many older workers, women in particular, who, because of broken work-force patterns, may not have accumulated enough superannuation savings by the age of 65 to provide for a reasonable retirement income.

6.373 This rule was also inconsistent with New South Wales government policy to remove compulsory retirement provisions. Thus, New South Wales public employers and fund trustees were placed in an unenviable position of being unable to comply with the ADA by making contributions on behalf of, or allowing members aged over 65 to make their own contributions to a superannuation fund, without jeopardising the fund’s tax concession status under Commonwealth law.³⁴⁰

6.374 This issue was addressed by the Federal Government in 1996 with the announcement that it would amend the SIS Act to allow funds to accept contributions made by or on behalf of members who are aged up to 70 years provided the contributor works for more than 10 hours per week. The change came into effect on 1 July 1997.

6.375 Submissions. It is argued that not allowing exceptions from the age discrimination provisions may lead to changes to the design of funds, some of which may have unintended and undesirable consequences. For example, if funds are not permitted to set or vary premiums for death and disability benefits according to age, they may cease to provide these benefits altogether.³⁴¹

6.376 Conclusion. There is an argument that discrimination in superannuation and insurance should be acceptable where such discrimination is based on reasonable actuarial or statistical data or, in the absence of such data, it is based on other available data on which it is reasonable to rely and which is reasonable having regard to other relevant factors. Threatening the viability of a superannuation fund, thus adversely affecting all members, is not a desirable outcome.

6.377 The Commission accepts that, pending further research into actuarial data and, particularly, what is meant by “reasonable actuarial data”, the actuarial exception should remain for age discrimination in superannuation. Also, in view of the desirability of uniform discrimination laws, the Commission recommends no further amendments to the superannuation exception for age discrimination.

Insurance

6.378 Section 49ZYT provides that it is not unlawful to discriminate on the ground of age in the terms on which an insurance policy is offered or may be obtained if the discrimination is based on actuarial data or, where there is no such data, on other reasonable data. In each case, the data must be from a reasonably reliable source, which must be disclosed to the EO Division if required. Essentially this permits insurers to use age as a criterion when making risk assessment classifications and calculating premiums, but only to the extent that there is actuarial or other data on which it is reasonable to rely. Similar exceptions apply in other jurisdictions.³⁴²

6.379 While there is actuarial data to suggest that age is a significant factor when assessing risks in life and disability insurance, such data does not generally cover the types of risk insured against in general insurance products. Instead, most decisions in relation to general insurance are based on a combination of previous claims experience, medical evidence and general community assumptions. It is in this area that most complaints of age discrimination against insurers are brought. For example, people over 65 years of age have complained that they have been denied travel insurance or have been required to produce medical certificates in order to obtain car insurance.

6.380 The current exception represents an attempt by Parliament to balance the objectives of anti-discrimination laws with the commercial interests of the insurance industry to be able to classify risks and set premiums. While it appears wide, the Commission notes that the exception has not yet been tested. Most insurance complaints are settled or withdrawn. The ADA has, however, had an educative effect on the industry. The ADB reports that in a number of complaints that have been settled, insurers have agreed to alter their policies in relation to their treatment of older persons seeking general insurance.³⁴³

6.381 In view of this and the complexity of the issues involved, the Commission does not propose amendment of s 49ZYT except to make it consistent with other similar provisions which impact on other grounds.

6.382 Credit applications. The ADA contains an exception to the age discrimination provisions in relation to credit applications in similar terms to that provided for the provision of insurance. Section 49ZYU states that it is not unlawful to discriminate on the ground of age with respect to the criteria on which an application for credit is assessed, or the terms on which credit is offered, if the discrimination is based on actuarial data from a reasonably reliable source or, where there is no such data, on other data. In each case, the source of any such data must be disclosed to the EO Division if required. The only other State legislation which provides a similar exception is that of Victoria.³⁴⁴

6.383 This exception was introduced at the same time as the exceptions relating to superannuation and insurance.³⁴⁵ The Second Reading Speech on the introduction of these provisions merely stated that:

[t]he approach adopted by the bill in this regard has been reached in consultation with peak bodies in the areas of superannuation, insurance and credit provision, and it is based on equivalent provisions elsewhere in the Anti-Discrimination Act and relevant Commonwealth legislation.³⁴⁶

6.385 As the Commission is not recommending repeal of the equivalent exceptions in relation to superannuation and insurance, and the exception is limited by the requirement of reliance on appropriate data, this provision should be retained.

Safety procedures

6.386 Section 49ZYV of the ADA permits discrimination on the ground of age in assessing a person’s fitness to control a vehicle and the terms and conditions upon which a licence is issued, provided the manner of assessment or terms and conditions are imposed to meet safety considerations that are reasonable.

6.387 There are many other aspects of public safety that are closely linked with age considerations. For instance, the issue of whether a medical doctor should be permitted to conduct particular forms of surgery, such as eye or open heart surgery at the age of 70 or whether a pilot should be permitted to fly at a similar age may raise serious public safety issues even if the risk of accident is only very slim. To prevent pilots flying or medical doctors from operating when they reach a particular age would clearly be age discrimination. However, such discrimination must be balanced against the real risk to the public. One way of dealing with this issue may be to re-introduce compulsory retirement in relation to certain types of employment that pose a particular risk to public safety based on available data. In this context, it is worth considering two cases brought under the unfair dismissal provisions in the Federal Industrial Commission.

6.388 In Christie v Qantas Airways Ltd,³⁴⁷ the right to retire pilots compulsorily at the age of 60 years was challenged. The case was brought under s 170DF(1)(f) of the Industrial Relations Act 1988 (Cth) which prohibits termination for prescribed reasons including age. A defence to the claim is whether it is based on the “inherent requirements of the particular position”. Mr Christie’s original employment contract with Qantas contained no condition about the duration of his employment. Mr Christie’s employment was terminated on account of his age. However, many countries apply a rule to their own pilots and pilots using their airports, or even overflying their territories, that says a pilot must not be aged over 60 years. It was argued that the result of these restrictions would cause problems for Qantas in allocating flights to Mr Christie. Consequently, it was decided that being under the age of 60 was an inherent requirement of a position as a B747-400 captain. On appeal to the Industrial Relations Court of Australia,³⁴⁸ it was held that the requirement to retire at 60 years was a condition imposed on his position rather than an inherent requirement of the job. The High Court reversed the decision on appeal and upheld the judgment of the trial judge.³⁴⁹

6.389 In Allman v Australian Airlines Ltd,³⁵⁰ it was decided that being less than 60 years is not an inherent requirement of being a pilot with a domestic carrier. It was suggested that examples of inherent requirements include the possession of an appropriate current licence and medical fitness, in accordance with the standard prescribed for pilots. This case supports the position that inherent requirements of a job need to be defined in terms of appropriate skill, accreditation and medical fitness, not by reference to age.

6.390 In relation to the ground of disability, the Commission accepts the appropriateness of an exception designed to protect public health. That exception reflects the fact that a disability may itself constitute a relevant hazard to public health. There is a question as to whether a general exception should be provided in relation to age to protect public health and safety.

6.391 While age is not a factor which itself constitutes a risk to public health and safety (as opposed to the health and safety of the individual), both youth and old age correlate in varying degrees with impaired judgment, physical capacity and intellectual skills. Where possible, those forms of capacity should be assessed and stereotyped judgments avoided. Statistically we may know that increased age is associated with an increased risk of incapacitating illness, without being able to predict in individual cases on the basis of physical assessment whether there is a reason to suppose that the increased risk attaches to the individual. Where the risk to the public is insignificant, medical assessment may be required at any age. In some circumstances, such as the risk attaching to the issue of a licence for driving a private motor vehicle, it may be thought impracticable to carry out a medical assessment on every individual every year. With bus drivers, train drivers or pilots, medical assessment may be required regularly or at various ages. The higher the risk and the greater the danger if the risk is realised, the greater the justification for permitting restrictions on employment by age, regardless of individual circumstances.

6.392 Given these considerations, the Commission considers that there should be a general exception in relation to statutory measures designed to protect public health or safety. This could be achieved by an expansion of s 49ZYV. Alternatively, it could be achieved by use of the general exception relating to compliance with statutory requirements. Since s 49ZYV was included in the ADA whilst there was, in any event, a general exception with respect to statutory compliance, it appears that Parliament then considered that a further exception was necessary. In the Second Reading Speech to the Bill which introduced the section to the ADA, it was stated that the exception for safety procedures:

has been included to ensure that certain discretionary procedures of the Roads and Traffic Authority aimed at achieving road safety are not affected by the legislation. For example, drivers’ licence requirements for persons above 80 years of age are often dependent upon such persons undergoing regular testing to assess their continued ability to drive safely.³⁵¹

Recommendation 78

Repeal s 49ZYV in relation to the exception for age based safety procedures.

Sport

6.394 Section 49ZYW provides that it is not unlawful to exclude persons of particular ages from participation in any sporting activity. However, the exception does not apply to coaching, sport administration or to any prescribed sporting activity.

6.395 A similar but narrower exception applies in other jurisdictions which prohibit age discrimination.³⁵² The exception is narrower in these jurisdictions in two ways: first, it applies only to competitive sporting activity where the competition is permitted between persons of particular age groups and, secondly, it does not apply to coaching, umpiring or refereeing or sport administration.³⁵³

6.396 The age exception for sport in the ADA is broad and is intended to allow sporting events to be limited to persons of particular age groups in order to preserve fair competition. However, age distinctions can be arbitrary and need not necessarily reflect the level of skill or ability relevant to the sporting activity. In rugby competitions for example, a rule which prevents a relatively small 16 year old male from competing in an under-14 team, and yet will allow a big 14 year old male to compete does not necessarily ensure fair competition. A better criterion might well be weight to height ratio, or, as has been recommended in relation to sex discrimination in sport, strength, stamina or physique.³⁵⁴

6.397 Again, the arbitrariness of using age as a determinant may be justified by the difficulty of identifying an appropriate alternative. It is not the role of the ADA to specify how competitive sport is established, but rather to identify areas in which age is an illegitimate criterion. In this area, age is by no means irrelevant; rather, it is an imprecise but straightforward mechanism for governing wide areas of social activity. Further, it is a mechanism which has widespread social acceptance. Accordingly, the exception is not inappropriate in principle.

6.398 As already noted in relation to sport and other grounds, the area of sport is not expressly covered by the ADA, but only indirectly through coverage of service provision and incorporated associations. The exception should be retained but redrafted so as to reflect the formulation used in relation to other grounds.

Recommendation 79

Amend s 49ZYW in relation to the exception for age based sport to provide that it applies only to competitive sporting activities, where the strength, stamina or physique of the competitors is relevant.

Draft Anti-Discrimination Bill 1999: cl 54(3)

6.399 Discrimination on transgender grounds is prohibited in areas of public life and is currently subject to the standard private exceptions which apply across other grounds of discrimination. These exceptions have been dealt with in Chapter Four.

6.400 Part 3A of the ADA creates two specific exceptions from the prohibition of discrimination on transgender grounds in relation to the participation of transgender persons in sport and in relation to the administration of a superannuation or provident fund or scheme.³⁵⁵ It is convenient to deal with superannuation first.

Superannuation

6.401 Legal recognition of post-operative transgender persons specifically does not extend to superannuation.³⁵⁶ It is not unlawful, in the administration of a superannuation or provident fund, to treat a transgender person (whether or not a recognised transgender person) as a member of the transgender person’s former sex. For example, reliance on the assumed or established fact that women live longer and have a higher propensity to become ill or disabled, will continue to apply to a transgender person, including those who have undergone gender reassignment surgery.

6.402 According to the ASFA, the sex of a person may be a relevant factor in the determination of a contribution rate or benefit level, commutation factors, and insurance charges.³⁵⁷ Gender may also be a relevant factor in the payment of a death benefit. But as this relates more to whether the superannuation benefit is payable to same-sex couples, it is only marginally relevant to transgender persons. The ASFA further submits that many superannuation funds do not make any distinction on the basis of gender. Therefore, the inclusion of transgender status as a ground of discrimination under the ADA should not present problems that a superannuation fund manager cannot resolve administratively once made aware of the changed circumstances of a transgender person.³⁵⁸

6.403 In view of these circumstances and in the light of the Commission’s recommendations in relation to sex discrimination in the superannuation and insurance areas,³⁵⁹ the Commission recommends that the exception for superannuation funds be removed.

Recommendation 80

Repeal s 38Q in relation to the exception for superannuation on the ground of transgender status.

Sport

6.404 Section 38P provides that it is not unlawful to exclude a transgender person from participating in sporting activities for members of the sex with which the transgender person identifies. The exception applies equally to recognised and non-recognised transgender persons. Thus, legal recognition of recognised transgender persons does not extend to participation in sport.

6.405 The exception does not apply to coaching duties, administration of any sporting activity or to prescribed sporting activities.³⁶⁰ This approach was adopted in order to clarify the law for sporting bodies and avoid placing them in conflict with the rules of national or international affiliate bodies.³⁶¹

6.406 The current provision, as enacted, is radically different from that proposed by the ADB, following extensive consultation with peak transgender and sporting groups. The ADB suggested the following provision:

(1) It is unlawful for a person or body to discriminate against a recognised transgender person on transgender grounds by:

(a) refusing or failing to select the transgender person in a sporting team for members of the sex with which the transgender person identifies, or

(b) by excluding the transgender person from participating in any sporting event for members of the sex with which the transgender person identifies.


(2) However, nothing in subsection (1) renders unlawful discrimination by a person or body against a recognised transgender person on transgender grounds if the transgender person:

(a) is required by a national or international sporting body or organisation to undergo a biological sex test to determine eligibility for selection in a sporting team or participation in a national or international sporting event, and

(b) does not satisfy the requirements of any such test.


(3) The admission of a transgender person to a sporting team or the participation of a transgender person in a sporting event does not affect the status of the team or event as a team or event for persons of the same sex.

6.408 This suggestion was opposed by the Minister for Sport and Recreation who argued that it would, in most cases, compromise fair competition between sports persons.³⁶² The Department argued that as most recognised transgender persons are male to female, they retain the strength, stamina and physique of men, who tend to be bigger and stronger than women. Allowing such persons to compete in women’s teams or women-only events would give them an unfair advantage over people who are biologically female.

6.409 In response to the argument that there would be few recognised transgender persons who would even want to compete in competitive sports, the Department said that the current prohibition has kept numbers small. It claimed that by removing the barrier, more recognised transgender persons would be encouraged to come forward. The Department argues that the current exception should stand. Individual sporting clubs and associations would then have a choice as to what policy they wished to adopt in relation to transgender persons. The current broad exception would protect the right of those clubs and associations which wished to discriminate on transgender grounds.

6.410 The issue of transgender persons competing in sporting teams and events for members of the sex with which they identify has always attracted a great deal of controversy and even notoriety in some cases. While it is true that the numbers of persons likely to be involved is very small, this does not mean that the issue does not warrant proper consideration and resolution. The issue to be resolved is whether there should be an exception for sport from discrimination against transgender persons, including non-recognised transgender persons, and, if so, its scope.

6.411 The first point to be considered in relation to this potential exception is the scope of the area concerned, namely sport. As has been stated on a number of occasions, the ADA does not contain a particular area which covers all sport. However, most sporting or recreational clubs are, or are likely to become, incorporated in order to be eligible for grants.³⁶³ Competitive sport generally involves a regional or national structure and often involves an international component. The view of the Commission is that the current exception is correct in principle, in that it recognises the legitimate distinction made between male and female competitions, at least after the onset of puberty. The Commission has accepted this as the basis for an exception in relation to gender. Although transgender persons who undergo hormone treatment may change their physical characteristics, there is a legitimate concern that they will retain the physical characteristics of their former sex and accordingly may achieve an unfair advantage in competitive sport. As a practical matter, it does not seem sensible to require sporting bodies which regulate gender-based competition to assume that a transgender person has the physical characteristics of his or her new sex. However, the weakness of the proposal put forward by the ADB is that it allows the exception only in cases where there is a national or international requirement of biological sex testing to determine eligibility. This element may impose a higher level of regulation, expense and intrusions on privacy than is warranted by the scope of the problem. No such restrictive requirement is imposed in relation to legitimising separate sex sporting competitions generally.

6.412 It has also been suggested that the real area of unfairness is in relation to male-female gender change. However, while people who were formerly men may retain certain physical male characteristics, such as strength or stamina, those are not the only characteristics relevant to sporting activity. Females have certain characteristics which may give them a particular advantage in relation to some sports. The discussion tends to focus on the former category, because they are by far the more numerous. At a practical level, this is not an irrelevant consideration. In all the circumstances, the Commission does not think it appropriate to differentiate between male-female and female-male.

Recommendation 81

The exception applicable to transgender persons for participation in sporting activities in s 38P should be consistent with the exception permitted in relation to sex generally.

Draft Anti-Discrimination Bill 1999: cl 56

6.413 The grounds of political opinion and “religious belief” involve both holding and expressing views which are either an essential element in a free and democratic society (in the case of political opinion) or an inherent part of the culture, dignity and self-identity of a person, whether individually or as a member of a community (in the case of religious belief). The value of protecting such beliefs has been recognised in many countries with political and legal systems similar to our own. In many cases, including both Canada and the United States of America, such values are constitutionally entrenched. The acts of government, including legislative acts, are subject to the dictates of the constitutional protection. However, the jurisprudence of these countries demonstrates the need to qualify the protections given.

6.414 The reason for the qualification is obvious: the fact that a democratic society is based on freedom of political belief does not require it to accommodate beliefs which are inconsistent with its own existence. Where constitutional protection applies, it will, inevitably, be necessary to provide a level of discretion in relation to legislation which impinges upon the protected area. Thus, general statutes providing protection in the areas of health, safety and welfare will usually be upheld, even though they may incidentally intrude upon the protected area. Depending on the importance placed on the protection, varying levels of scrutiny may be applied to legislative activity which appears to impinge on the protection.

6.415 It is also important to deal with possible conflicts, which may arise even within a protected area. Thus, protection given to political opinion or religious belief may involve both protection of a “right” on the one hand and a freedom on the other. For example, the “right” of an employer to choose employees on the basis of their religious beliefs may impinge upon the freedom of a particular employee not to be treated adversely on the ground of his or her beliefs. In a Canadian case, R v Zundel,³⁶⁴ the Court stated:

A “right” is defined positively as what one can do. A “freedom”, on the other hand, is defined by determining first the area which is regulated. The freedom is then what exists in the unregulated area – a sphere of activity within which all acts are permissible. It is a residual area in which all acts are free of specific legal regulation and the individual is free to choose. The regulated area will include restrictions for purposes of decency or public order, and specifically with respect to the freedom of expression, prohibitions concerning criminal libel and sedition.

6.417 The difficult judgment required where basic principles conflict is well illustrated by the ADA itself. Thus, it is necessary to determine whether a political or religious belief which is inconsistent with the equality of the races or of the sexes should be tolerated. The answer presently provided by the ADA is that it should not. Thus, the prohibition on race discrimination does not presently include an exception for those who seek to discriminate on the basis of religious belief or political opinion. The only way in which an exception may exist is pursuant to the limitations imposed upon the prohibitions presently contained in the Act.

6.418 The Commission starts from the premise that it is appropriate to maintain the present state of the law in that regard, subject to the reforms suggested elsewhere in this Report. Accordingly, the introduction of the new grounds of political opinion and religious belief must be subject to recognition of the priority given to the maintenance of recognised human rights and fundamental freedoms.

Political opinion

6.419 Discrimination on the ground of “political opinion” or its equivalent is currently included in the anti-discrimination legislation of five Australian jurisdictions, namely Victoria,³⁶⁵ Queensland,³⁶⁶ Western Australia,³⁶⁷ the Australian Capital Territory³⁶⁸ and the Northern Territory,³⁶⁹ as well as that of New Zealand.³⁷⁰ Nevertheless the protection offered by such prohibitions is not absolute. Legislation in each jurisdiction contains some exceptions. These exceptions are either particular to the ground of political opinion or its equivalent, or may be more general, applying to numerous grounds. In practice, however, the exceptions have rarely been the subject of dispute or litigation.

Genuine occupational qualification – political employment

6.420 Except for the Northern Territory, all jurisdictions which contain a ground of political opinion discrimination, or its equivalent, have provided a specific exception to it for “political employment”. Whilst most Acts specify the exact nature of political employment in the form of the position that the person must hold, or at least require that employment must be similar to the positions listed,³⁷¹ the Western Australian legislation provides merely that the position be “politics-related” and thus could theoretically be more broadly interpreted.³⁷² The Northern Territory on the other hand provides no specific exception in relation to political employment, and only contains the more general exception of lawful discrimination based upon a genuine occupational qualification.³⁷³

6.421 The ADB in its submission to the Commission suggested that an exception based on a genuine occupational qualification was justified by ILO Convention 111³⁷⁴ which allows for distinction, exclusion or preference based on the inherent requirements of a particular job.³⁷⁵

6.422 Government activities. The Victorian and Queensland Acts provide for an exception to the unlawfulness of discrimination based on political belief or activity in the area of local government. The Victorian Act provides that discrimination against another councillor, or against a member of a committee of the council in the performance of his or her public functions on the basis of political belief or activity is not unlawful.³⁷⁶ Similarly in Queensland, discrimination based on this ground by a local government member against another member in the performance of official functions will not be unlawful.³⁷⁷ However, in Victoria and Queensland, the area of conduct is defined as internal council activity. It is not proposed to include such an area in New South Wales. The exception is therefore not relevant. Public services available from such bodies or persons should certainly not be distributed on the basis of political opinion.

Clubs established for persons of a particular political belief or affiliation

6.423 The ADB recommended that clubs established for persons of a particular political belief or affiliation should also benefit from an exception to the prohibition of discrimination based on the ground of political conviction.³⁷⁸ In other jurisdictions, Victoria permits the exclusion of people from private clubs on any of the prohibited grounds.³⁷⁹ The Northern Territory provides that discrimination based on political conviction by non-profit associations providing goods, services and facilities and established for various purposes including political, are exempt from the provisions prohibiting discrimination based on political conviction.³⁸⁰

Discussion

6.424 The Commission accepts that a politician and local government councillor should be entitled to select staff who share his or her political beliefs. That principle should also apply to other employees providing services (such as research) on a political basis, and to clubs which provide services or support on a political basis. The promotion and propagation of political beliefs may properly involve distinctions on this ground.

General exceptions

6.425 The recommendations made in relation to general exceptions earlier in this chapter will apply to this ground. Thus, religious bodies³⁸¹ will be generally excepted from discrimination on this ground and the new special measures exception³⁸² will also be applicable. It should be noted that the Commission is recommending the repeal of the existing general exceptions in relation to statutory authority, charitable benefits and voluntary bodies.³⁸³

6.426 Apart from the above, there should be no other specific exceptions applicable to this ground except for the private exceptions dealt with in Chapter Four applicable to all other grounds. Thus, the exception applicable to domestic employment, that is, employment in the home of the employer, should also be available to the ground of political opinion.³⁸⁴ This exception is available in all jurisdictions which contain the ground.³⁸⁵ So also, the exception applicable to domestic accommodation, that is accommodation in the owner’s or near relative’s residence, should be available for this ground.³⁸⁶ This exception has also been included by all jurisdictions which contain the ground.³⁸⁷

Recommendation 82

Provide an exception to discrimination on the ground of political opinion in relation to political and local government employment.

Draft Anti-Discrimination Bill 1999: cl 30

Recommendation 83

Provide an exception to discrimination on the ground of political opinion in relation to clubs established for persons of a particular political persuasion.

Draft Anti-Discrimination Bill 1999: cl 57

6.427 Discrimination on the ground of religion or its equivalent is currently included in the anti-discrimination legislation of Victoria,³⁸⁸ Queensland,³⁸⁹ Western Australia,³⁹⁰ the Australian Capital Territory³⁹¹ and the Northern Territory,³⁹² as well as that of New Zealand³⁹³ and Canada.³⁹⁴ In each case, the protection offered is limited by a number of important exceptions. The ADB submitted that exceptions to this ground “should recognise the right of individuals to associate in groups, to make instruments of charitable intent and to educate on the basis of a shared belief”.³⁹⁵ The ADB argues that the need for such exceptions is in accordance with international human rights standards, in particular those detailed in Articles 5 and 6 of the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. This rationale is apparent to a varying extent in the legislative exceptions discussed below.

6.428 The exceptions suggested by the ADB were:³⁹⁶

• religion or belief as a genuine occupational qualification;
• educational or health related institutions with religious purposes or accommodation with religious purposes if discrimination is in accordance with doctrine and necessary to avoid offending religious sensitivities of people of the religion;
• clubs established for persons of a particular religion;
• domestic employment;
• domestic accommodation; and
• religious bodies in relation to training and appointment of religious personnel.

Genuine occupational qualification

6.430 The ADB recommended that there should be an exception based on the inherent requirements of the job.³⁹⁷ A number of other submissions also expressed the view that religious organisations should be permitted to discriminate on religious grounds in the selection of their staff.³⁹⁸ There are, however, a range of views on the extent to which such discrimination should be allowed to occur. Some submissions have argued that religious organisations should be permitted to discriminate on religious grounds in the selection of all staff (including cleaners, gardeners etc),³⁹⁹ while others have argued that the exception should be limited to the religious personnel of the organisation.⁴⁰⁰

6.431 The Queensland and Canadian Acts contain a general exception for discrimination in the work area based on genuine occupational requirements which could, in practice, apply to discrimination based on religion or belief.⁴⁰¹ Other Acts which contain a genuine occupational qualification provision do not allow for such a qualification based on religion.⁴⁰² However, some Acts contain specific exceptions to allow for discrimination in employment requiring the applicant or employee to hold some particular religious or other belief.

6.432 Religious schools in Victoria are exempt with respect to employment of people where such discrimination is in accordance with relevant religious beliefs or principles.⁴⁰³ Queensland provides that religious discrimination is not unlawful in relation to employment with an educational or health-related institution established for religious purposes and where such discrimination is in accordance with the doctrine of the religion and is necessary so as not to offend the religious sensibilities of the adherents of that religion.⁴⁰⁴ Western Australia allows discrimination in employment by private educational authorities and by religious bodies in the health field, if the duties of the employment are for the purposes of, or in connection with the participation of the employee in any religious observance or practice.⁴⁰⁵ Western Australia also contains more general exceptions for educational institutions established for religious purposes with respect to employment of staff and contract workers and the provision of education or training.⁴⁰⁶ The Australian Capital Territory permits discrimination in connection with the employment of a staff member of an educational institution or the appointment of a contract worker involved in work in an educational institution established for religious purposes.⁴⁰⁷ There is a further exception regarding employment in an educational institution or a hospital if the duties of the employee involve working in the teaching, observance or practice of the relevant religion.⁴⁰⁸ New Zealand also allows differential treatment based on religious or ethical belief with respect to employment as a teacher in a private school, or where the position would be one of teacher or propagator of the religion or belief, or as a social worker working for an organisation whose members are solely or principally adherents to that belief.⁴⁰⁹

6.433 In Chapter Four the Commission recommended that the genuine occupational qualification defence should be available in relation to employment in a religious private educational institution, where discrimination is in good faith and necessary to avoid conflict with the tenets of the religion.⁴¹⁰ Thus, existing exceptions already recognise in some measure the need to accommodate religious beliefs which may be inconsistent with the protection of other human rights and fundamental freedoms. To that extent, religious beliefs will be given priority. Otherwise, as already noted, both political opinions and religious beliefs will not be permitted to override existing prohibitions. Genuine occupational qualification in employment provides one example of this principle, religious schools provide a second.

School admission

6.434 An issue that arose for consideration in the context of education in private educational institutions was whether religious schools should be allowed to discriminate in admitting students. The Commission accepted that they should be where the school is established and operated wholly or mainly for students of a particular religion. A religious school may also seek to discriminate on other grounds to avoid conflict with the tenets of the religion. A number of submissions to the Commission from religious organisations supported the view that religious schools should continue to remain exempt from the ADA on specified grounds.⁴¹¹

6.435 In Victoria,⁴¹² Queensland⁴¹³ and the Northern Territory⁴¹⁴ an exception is provided for educational institutions for particular groups. In the Australian Capital Territory⁴¹⁵ there is a specific exception for educational institutions conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed. These exceptions reflect the principle accepted by the Commission.

Clubs established for persons of a particular religion or belief

6.436 The Commission has recommended that genuine ethnic groups should be able to discriminate on the grounds of race or ethnicity with respect to membership of their clubs.⁴¹⁶ It would appear anomalous to prohibit religious groups from so discriminating, especially considering the overlap in many groups between ethnicity and religion. The ADB believes that clubs established for persons of a particular religion or belief, which discriminate with respect to eligibility for membership against people of different beliefs, should not be prohibited from so doing.⁴¹⁷

6.437 Other jurisdictions which prohibit discrimination on the ground of religious belief do not exempt clubs based on religious membership. None contain specific exceptions, and the only potentially relevant exception in Victoria, Queensland and the Northern Territory is that which provide for clubs which operate to preserve a minority culture or prevent or reduce disadvantage suffered by a particular group.⁴¹⁸ These provisions serve only to protect “minority” cultures or disadvantaged groups and therefore do not afford the same rights to all religious clubs. To benefit from these provisions as a “minority culture”, a religious group would need to be able to establish some form of cultural homogeneity such that it may constitute a “culture”, which may be difficult for religious groups whose membership comprises many different ethnic, racial and language groups. A mainstream church club, such as a Catholic or Anglican club, might be unable to benefit from such an exception.

6.438 The Commission considers that there should be an exception with respect to clubs and associations, consistent with that in relation to genuine ethnic groups.

Accommodation

6.439 In Victoria,⁴¹⁹ Queensland⁴²⁰ and the Northern Territory⁴²¹ there is an exception where accommodation is provided for students in a religious educational institution. The Queensland⁴²² and Northern Territory⁴²³ legislation also provide a specific exception for accommodation established for religious purposes and the Victorian Act provides an exception in relation to accommodation established wholly or mainly for the welfare of persons of a particular religious belief.⁴²⁴ In the Northern Territory,⁴²⁵ accommodation for a charitable purpose is also made exempt from the operation of the various grounds of discrimination.⁴²⁶

6.440 The Commission considers that the Victorian and Queensland model should be adopted.

Access to places

6.441 In addition, the Queensland and Northern Territory laws provide an exception which allows the restriction of access to sites of cultural or religious significance where the restriction is in accordance with the doctrines of the religion concerned and is necessary to avoid offending cultural or religious sensitivities of the people of the culture or religion.⁴²⁷ In Queensland this exception also extends to the disposal of interests in land or buildings with cultural or religious significance.⁴²⁸

6.442 These exceptions are acceptable in principle but the Commission is not satisfied that they should be adopted in New South Wales. Their main practical application is in relation to Aboriginal sites, protection of which will readily fall within the special measures exception. The need for a further exception is not apparent.

General exceptions

6.443 The ADB recommended, in its submission to the Commission, that the exception which applies to other grounds with regard to employment in the home of the employer should be available in relation to the ground of religion.⁴²⁹ This exception is available in all jurisdictions which contain the ground.⁴³⁰ In its submission, the ADB also recommended that exceptions should be made for domestic accommodation, in the owner’s or near relative’s residence.⁴³¹ This exception has also been included by all other jurisdictions which contain the ground.⁴³² As discussed in Chapter Four,⁴³³ these exceptions should continue to apply.

The Victorian and Western Australian Acts continue to provide an exception to the anti-discrimination provisions for small businesses,⁴³⁴ but, consistently with the Commission’s general recommendation in relation to repeal of the small business exception,⁴³⁵ this exception should not be available in relation to the ground of religion.

Recommendation 84

Provide an exception to discrimination on the ground of religion on the basis of a genuine occupational qualification.

Draft Anti-Discrimination Bill 1999: cl 28(5)

Recommendation 85

Provide an exception to discrimination on the ground of religion in relation to admission to educational institutions established for particular religious groups.

Draft Anti-Discrimination Bill 1999: cl 44

Recommendation 86

Provide an exception to discrimination on the ground of religion in relation to clubs established for persons of a particular religion or belief.

Draft Anti-Discrimination Bill 1999: cl 58

Recommendation 87

Provide an exception to discrimination on the ground of religion in relation to accommodation established for religious purposes, similar to that contained in the Victorian and Queensland legislation.

Draft Anti-Discrimination Bill 1999: cl 51(2)

Recommendation 88

An exception to discrimination on the ground of religion in relation to access to sites of religious significance is supported but is covered by the special measures exception.

Draft Anti-Discrimination Bill 1999: cl 68

6.444 Conduct which discriminates on the ground of family or carer responsibilities is currently prohibited by anti-discrimination legislation in all Australian jurisdictions except New South Wales and South Australia.⁴³⁶ In Chapter Five the Commission recommended the introduction of the ground of carer responsibilities to the ADA in relation to the area of employment.⁴³⁷ Under the Commission’s recommendation, the ground applies only in the area of employment and requires that employers make reasonable accommodation for people with carer responsibilities (subject to a defence of unjustifiable hardship).

Genuine occupational qualification

6.445 In Queensland an employer may limit the offering of employment on the basis of “parental status” or its equivalent if it is a genuine occupational requirement of the employment.⁴³⁸ However, the Queensland provisions are based on a general prohibition of discrimination on the ground of “parental status” in the area of employment. As the Commission is recommending that an employer be required to make reasonable accommodation on the ground of carer responsibilities, subject to a defence of unjustifiable hardship, a defence of genuine occupational qualification would be superfluous. The genuine occupational qualification provisions of the other jurisdictions do not provide exceptions on the ground of family responsibilities or its equivalent.

General exceptions

6.446 The recommendations made in relation to general exceptions earlier in this chapter will apply to this ground. As the Commission is not recommending that the ground of carer responsibilities be introduced in relation to any area other than employment, exceptions which exist in other jurisdictions in relation to other areas, such as education and accommodation,⁴³⁹ are not considered.

Footnotes
1. See Chapter 1 at para 1.5-1.9.

2. Call to Australia, Submission 1 at 2 and M Hains, Submission.

3. ADA s 54.

4. ADA s 55.

5. ADA s 56.

6. ADA s 57.

7. ADA s 59. ADA s 58 was repealed in 1981.

8. Section 54(3) provides that:

Except as provided in this section; this Act has effect notwithstanding anything contained in –

(b) the Financial Institutions (NSW) Act 1992;

(c) the Friendly Societies Act 1989;

(c1) the Co-operatives Act 1992;

(d) the Gaming and Betting Act 1912;

(e) the Registered Clubs Act 1976

or any instrument of whatever nature made or approved thereunder.

Section 54(2) was repealed in 1994.

10. New South Wales, Anti-Discrimination Board, Part 1: Discrimination in Legislation; Part II: Discrimination in Government Policies and Practices; Part III: Discrimination in Superannuation (Sydney, May, 1978).

11. M Thornton, The Liberal Promise – Anti-Discrimination Legislation in Australia (Oxford University Press, Melbourne, 1990) at 133.

12. [1982] 2 IR 93 (NSW CA).

13. Anti-Discrimination (Amendment) Act 1982 (NSW).

14. See Nadjovska v Australian Iron and Steel [1985] EOC 92-140, where the EOT refused to allow the respondent to rely on s 36 of the Factories Shops and Industries Act 1962 (NSW) which limited the weights lifted by women.

15. Clinch v Commissioner of Police [1984] EOC 92-115.

16. Anderson v Director-General of Education [1978] 2 NSWLR 423; Gavaghan v Chairman, Public Service Board of NSW [1985] EOC 92-143.

17. ADA s 49ZW(3).

18. RDA; EOA (SA); Sex Discrimination Act 1975 (UK) – however, acts done in order to comply with the requirements of an award or industrial agreement in relation to employment on the grounds of age are exempted; EOA (SA) s 85(f)(4).

19. SDA s 40(2) and 40(3): these sections are subject to review under SDA s 40A; DDA s 47(1); EOA (WA) s 69.

20. ADA (Qld) s 106.

21. Victorian Law Reform Commission, Review of the Equal Opportunity Act (Report 36, 1990) at 29 and the Victoria, Scrutiny of Acts and Regulations Committee, Review of the Equal Opportunity Act 1984: Final Report (1993) recommended that acts done on the basis of statutory authority should be exempt only if specifically provided for by regulation, or specifically authorised. However, the recommendations were not adopted in the EOA (Vic).

22. EOA (Vic) s 207.

23. Disability Discrimination Legal Centre, Submission at 6; Gay and Lesbian Rights Lobby, Submission at 2; P Jenkin, Submission at 2; Law Society of NSW, Submission at 4; National Pay Equity Coalition, Submission at 3; NSW Department of Industrial Relations, Employment, Training and Further Education, Submission at 11; NSW Independent Teachers’ Association, Submission at 1; NSW Women’s Advisory Council, Submission at 4. It should be noted, however, that the submission of the Catholic Education Commission specifically rejected the repeal of the statutory authority exception: Catholic Education Commission NSW, Submission at 19.

24. M Thornton, The Liberal Promise – Anti-Discrimination Legislation in Australia (Oxford University Press, Melbourne, 1990) at 132-133.

25. National Pay Equity Coalition, Submission at 3.

26. Sex Discrimination Commissioner, Sex Discrimination Act 1984: A Review of Exemptions (AGPS, Canberra, 1992) at para 6.29.

27. SDA s 40 has been amended by the following Acts: Statute Law (Miscellaneous Provisions) Act 1988 (Cth); Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth); Social Security (Rewrite) Transition Act 1991 (Cth); Sex Discrimination Amendment Act 1991 (Cth); Income Tax (International Agreements) Amendment Act 1995 (Cth); Sex Discrimination Amendment Act 1995 (Cth); Workplace Relations and Other Legislation Amendment Act 1996 (Cth).

28. In addition, subsection (3) provides exemptions for compliance with any regulations, rules, by-laws, determinations or directions made under several of the Acts listed in subsection (2). Subsection (4) also provides that for three years from the commencement of the subsection, the sex discrimination prohibitions contained in the Act will not apply to a scheme established under the Student and Youth Assistance Act 1973 (Cth) or a current special educational assistance scheme within the meaning of that Act.

29. Section 40A introduced by the Sex Discrimination Amendment Act 1991 (Cth). Subsection (1) provides that the Minister’s review and recommendations should take place before 1 June 1996. This review was co-ordinated by the Attorney-General’s Department in 1996 and and the report was tabled in Parliament on 26 June 1996. The report recommended that s 40 be amended but the recommendations have not been implemented as at 1 August 1999.

30. Anti-Discrimination Board, Submission 1 at 112.

31. Anti-Discrimination Board, Submission 1 Attachment 5 at 298.

32. Anti-Discrimination Board, Submission 1 at 111-112; Law Society of NSW, Submission at 4.

33. (1991) 173 CLR 349. See EOA (Vic) s 39(e).

34. Waters v Public Transport Corporation (1991) 173 CLR 349 at 368; see also Brennan J at 381, Dawson and Toohey JJ at 388-390, and McHugh J at 413-414. The minority in Waters disagreed that the exception was confined to specific obligations to discriminate imposed directly by the Act. They took the view that the exception would cover any discrimination that was necessary in order to carry out a third person’s directions under the legislation. Despite the difference in opinion, the reasoning does reinforce that the exception refers to necessity and that an employer who has a discretion is not covered by the exception.

35. [1984] EOC 92-115.

36. [1994] EOC 92-654. See also Kinley v East Sydney Area Health Service [1994] EOC 92-559 where the EOT found that the applicable regulation did not require the action complained of and hence there was no question of a need for compliance.

37. [1987] EOC 92-196.

38. [1994] EOC 92-586.

39. [1994] EOC 92-654.

40. [1994] EOC 92-654 at 77,448.

41. See Kitt v Tourism Commission [1987] EOC 92-169 and 92-209.

42. See below at para 6.276.

43. See below at para 6.363.

44. Lead Regulations 1956 (NSW) reg 2. These regulations were created under the Factories Shops and Industries Act 1962 (NSW) and were due to be repealed under the Subordinate Legislation Act 1989 (NSW) on 1 September 1994. However, yearly postponement of their repeal has been granted since this time.

45. Such a provision, to be found in the Factories Shops and Industries Act 1962 (NSW) s 36, was the subject of judicial consideration by the EOT in Nadjovska v Australian Iron and Steel (1985) EOC 92-140. A brief history of that legislation may be found in a report by Dr Chloe Refshauge (Mason): New South Wales, Anti-Discrimination Board, Protective Legislation at Work: A Case Study of the “Weight Limit” on Manual Handling (Sydney, 1984).

46. See In the Matter of an Application for Exemption by Broken Hill Associated Smelters Pty Ltd [1987] EOC 92-210.

47. In the Matter of an Application for Exemptions by Pasminco Metals – BHAS Ltd [1991] EOC 92-384 at 78, 640.

48. In the Matter of an Application for Exemptions by Pasminco Metals at 78, 640.

49. EOA (Vic) s 70.

50. Waters v Public Transport Corporation (1991) 173 CLR 349 at 413-414.

51. Anti-Discrimination Board, Submission 1 at 111-112. The time suggested by the ADB for agencies to make submissions was three years.

52. Hawes v NSW Ambulance Service [1994] EOC 92-586; Kitt v Tourism Commission of NSW [1987] EOC 92-209; Public Service Board of NSW v Napier [1984] EOC 92-116; Director-General of Education v Breen (1982) 2 IR 93.

53. Anti-Discrimination (Amendment) Act 1994 (NSW) Sch 4 (23) removed s 54(1)(e).

54. One of the stated objects of the IRA 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”: s 3(f). Furthermore, s 169 of the IRA requires the IRC to take into account the principles embodied in the ADA when making determinations and provides that an award may be varied at any time to remove unlawful discrimination. In addition to this s 9 of the IRA required that the IRC undertake a three yearly review of all awards and in so doing must take into account a range of factors including any issue of discrimination under the award.

55. New South Wales, Anti-Discrimination Board, Discrimination the Other Epidemic: Report of the Inquiry Into HIV and AIDS Related Discrimination (Sydney, 1992) at 91.

56. See below at para 6.272.

57. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 23 November 1976 at 3341.

58. RDA s 8(2).

59. SDA s 36.

60. DDA s 49.

61. EOA (Vic) s 74; ADA (Qld) s 110; EOA (SA) s 45, 64, 80 and 85n; EOA (WA) s 70.

62. ADA (NT) s 52.

63. Anti-Discrimination Board, Submission 1 at 117.

64. J Clementson, Submission at 1; Gay and Lesbian Rights Lobby, Submission at 9; NSW Ministry for the Status and Advancement of Women, Submission at 24; National Pay Equity Coalition, Submission at 2; NSW Independent Teachers’ Association, Submission at 1.

65. EOA (Vic) s 75; ADA (Qld) s 109; EOA (WA) s 72; DA (ACT) s 32 and ADA (NT) s 51.

66. EOA (SA) s 50.

67. Anglican Church of Australia (Diocese Sydney), Submission at 2; The Brethren (Universal Christian Fellowship), Submission at 2; Catholic Education Commission NSW, Submission at 3; NSW Council of Churches, Submission at 1; Presbyterian Church of Australia, Submission at 1; Seventh-Day Adventist Church, Submission at 3; Wesley Mission, Submission at 3. See also P Fitzgerald, Submission at 10; M Hains, Submission at 1; J Hollier, Submission at 2; M Kirby, Submission at 20; K & M McKenzie & Co, Submission at 2; B O’Farrell, Submission at 1.

68. Article 6.

69. Anti-Discrimination Board, Submission 1 at 119.

70. M Kirby, Submission at 20.

71. Wesley Mission, Submission at 2.

72. The Church of the New Faith v The Commissioner of Pay-roll Tax (Victoria) (1983) 154 CLR 120 at 135-136.

73. ADA s 57(1).

74. New South Wales, Anti-Discrimination Board, Annual Report 1980/1981 at 129.

75. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 25 March 1981 at 5107.

76. Sex Discrimination Commissioner, Sex Discrimination Act 1984: A Review of Exemptions (AGPS, Canberra, 1992) at 89.

77. See also Chapter 4 at para 4.236.

78. SDA s 39.

79. This may mean that the ADA and the RDA are inconsistent with each other and that the Federal law will prevail under s 109 of the Federal Constitution. Section 6A of the RDA also provides that other State and Territory laws can operate concurrently with RDA which is not meant to exclude or limit their operation. Presently, the Board refers any race discrimination complaints about voluntary bodies which are outside the jurisdiction of the ADA to the HREOC.

80. See Chapter 4 at para 4.244.

81. DDA s 27(1).

82. DDA s 4.

83. EOA (WA) s 71(1) (however, the exception does not apply in relation to discrimination on the ground of impairment or age if the voluntary body is incorporated: s 71(2)) and DA (ACT) s 31.

84. EOA (SA) s 40(4).

85. Anonymous Submission 1; 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. See also A Norton, Submission at 1.

86. NSW Ministry for the Advancement and Status of Women, Submission at 24.

87. National Pay Equity Coalition, Submission at 2.

88. Anti-Discrimination Board, Submission 1 at 117.

89. Anti-Discrimination Board, Submission 1 at 118.

90. See Chapter 4 at para 4.249.

91. See Chapter 4 Recommendation 27.

92. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 23 March 1977 at 5244.

93. New South Wales, Anti-Discrimination Board, Discrimination and Age (Sydney, 1980) at 214-215; New South Wales, Anti-Discrimination Board Discrimination and Religious Conviction (Sydney, 1984) at 480-46 (Recommendation 36).

94. Anti-Discrimination Board, Discrimination and Age at 215.

95. EOA (WA) s 74.

96. This would appear to accommodate, for example, the concerns of the Seventh-Day Adventist Church, who argued that the exception should be retained in its current form: Seventh-Day Adventist Church, Submission at 2.

97. See below at para 6.97.

98. RDA s 8; SDA s 7D; DDA s 45; HREOC Act s 11(2); ADA s 21, 49ZYR and 126A; EOA (Vic) s 39(f); ADA (Qld) s 104 and 105; EOA (SA) s 46, 47, 65, 82 and 85p; EOA (WA) s 28, 31, 35K, 51 and 66ZP; DA (ACT) s 27 and 37; ADA (NT) s 57; Human Rights Act 1993 (NZ) s 73.

99. Australia, Human Rights and Equal Opportunity Commission, 1996 Guidelines for Special Measures under the Sex Discrimination Act 1984 (Sydney, 1996) at 13.

100. S Pritchard, “Special Measures” in Australia – Race Discrimination Commissioner, Racial Discrimination Act 1975: A Review (AGPS, Canberra, 1995) at 230-231.

101. (1985) 159 CLR 70.

102. [1993] EOC 92-417.

103. W Sadurski, “Gerhardy v Brown: Reflections on the Landmark Case that Wasn’t” (1986) 11 Sydney Law Review 5 and S Pritchard, “Special Measures”.

104. J Morgan, “Equality Rights: A Feminist Assessment” in P Alston (ed), Towards and Australian Bill of Rights (Centre for International and Public Law, Sydney and Canberra, 1994) at 137-139.

105. S Walpole, “Foreword” in Australia, Human Rights and Equal Opportunity Commission, 1996 Guidelines for Special Measures under the SDA (Sydney, 1996) at 6.

106. See discussion in Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (ALRC 31, 1986) Vol 1 at para 149-151.

107. See SDA s 7D(4).

108. SDA s 7D(3).

109. (1985) 159 CLR 70 at 135.

110. Gerhardy v Brown at 136.

111. See discussion of s 126A below at para 6.132.

112. Blackmun J in University of California Regents v Bakke (1978) 438 US 265 at 407 quoted by Brennan J in Gerhardy v Brown at 131.

113. ADA s 126(2) and 126(3).

114. Amended by the Anti-Discrimination Amendment Act 1997 (NSW).

115. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 23 November 1976 at 3346.

116. New South Wales, Anti-Discrimination Board, Annual Report 1995/1996 at 52.

117. The special measures provisions under ADA s 21, 49ZYR and 126A cover programs or activities that provide access or promote equal or improved access to facilities, services or opportunities. However, “opportunities” has been interpreted by the Board as not including employment opportunities (targeted positions).

118. For examples see New South Wales, Anti-Discrimination Board, Annual Report 1995/96 at 52; Annual Report 1994/95 at 95-96 and Annual Report 1993/94 at 57.

119. Anti-Discrimination Board, Submission 1 at 123.

120. Disability Council of NSW, Submission at 4; Gay and Lesbian Rights Lobby, Submission at 9; National Children’s and Youth Law Centre, Submission at 3; NSW Independent Teachers’ Association, Submission at 1; NSW Women’s Advisory Council, Submission at 8.

121. SDA s 44.

122. DDA s 55.

123. ADA (Qld) s 248.

124. EOA (SA) s 92.

125. EOA (WA) s 135.

126. DA (ACT) s 109.

127. ADA (NT) s 59.

128. M Thornton, The Liberal Promise – Anti-Discrimination Legislation in Australia (Oxford University Press, Melbourne, 1990) at 142.

129. Anti-Discrimination Board, Submission 1at 123-124.

130. ADA s 126A(1).

131. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 4 May 1994 at 1832.

132. The ADB’s view is consistent with the Crown Solicitor’s advice on this issue.

133. Two submissions also specifically argued that the power to grant exemptions should be vested in either the ADB or the President: Gay and Lesbian Rights Lobby, Submission at 9; D Robertson, Submission at 16.

134. See Appendix A at p 789.

135. See ADA (Qld) s 25; and EOA (Vic) s 21(4)(b).

136. See EOA (Vic) s 17(3) and ADA (Qld) s 25.

137. ADA s 20A.

138. ADA s 20A(4).

139. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 25 March 1981 at 5106.

140. EOA (Vic) s 61; ADA (Qld) s 97; and ADA (NT) s 47(1).

141. EOA (WA) s 48(3).

142. DA (ACT) s 43.

143. EOA (SA) s 57(2).

144. Special measures are themselves exempt from the prohibitions in the RDA: RDA s 8.

145. See Chapter 4 Recommendation 27.

146. See Tocigl v Aitco Pty Ltd [1996] EOC 92-775.

147. Governing sporting bodies and associations commonly set down eligibility rules to govern the number of “foreign” or restricted players to compete in a team. For instance, the rules of the National Basketball League require a person to have resided in Australia for a continuous period of three years following naturalisation in order to qualify as a non-restricted player. These rules were found not to constitute race discrimination: Henderson v National Basketball League Management Limited [1992] EOC 92-435.

148. RDA s 9(3) and 15(4).

149. ADA s 31.

150. ADA s 31(3) and (4).

151. [1996] EOC 92-846.

152. The Tribunal stated, somewhat curiously, that the situation may have been different if the position were filled by appointment, rather than election: see Brennan v NSW Fire Brigades [1996] EOC 92-846 at 79,256.

153. Anti-Discrimination Board, Submission 1 at 66.

154. See EOA (Vic) s 19; and DA (ACT) s 34 (2)(i).

155. Leves v Haines [1986] EOC 92-167 at 76, 631.

156. E Jimenez and M Lockheed, “Enhancing Girls Learning through Single-Sex Education: Evidence and a Policy Conundrum” (1989) 11(2) Educational Evaluation and Policy Analysis 117; S Sampson, “Are Boys a Barrier for Girls in Science?” in G Leder and S Sampson (eds), Educating Girls (Allen and Unwin, Sydney, 1989) at 139-143; K Rowe, “Single-Sex and Mixed Classes: The Effects of Class Type on Student Achievement, Confidence and Participation in Mathematics” (1988) 32(2) Australian Journal of Education 180. However, for a discussion of the limitations of single-sex schooling, see: J Kenway and S Willis, “On Overcoming Sexism in Schooling: To Marginalise or Mainstream” (1986) 30(2) Australian Journal of Education 132.

157. ADA s 34A(3).

158. ADA s 4(2).

159. M Thornton, The Liberal Promise – Anti-Discrimination Legislation in Australia (Oxford University Press, Melbourne, 1990) at 130; K Dempsey, “Women’s Leisure, Men’s Leisure: A Study in Subordination and Exploitation” (1989) 25 Australia and New Zealand Journal of Sociology 27.

160. Information supplied by Adam Jones, Research Officer, Registered Clubs Association (June 1995).

161. SDA s 25(3).

162. EOA (WA) s 22(3); DA (ACT) s 40(1); ADA (NT) s 47(3)(a); and EOA (SA) s 35(1).

163. EOA (Vic) s 61(a); and ADA (Qld) s 97(b).

164. SDA s 25(4) and (5).

165. EOC (Vic) s 63; ADA (Qld) s 98; EOC (SA) s 35(2); EOC (WA) s 22(4); DA (ACT) s 40(2); ADA (NT) s 47(3)(b); and SDA (Tas) s 26(2).

166. M Thornton, “The Public/Private Dichotomy” (1991) 18 Journal of Law and Society 448 at 455-456.

167. Corry v Keperra Country Golf Club [1986] EOC 92-150.

168. ADA s 38.

169. The submission of the Commissioner for Equal Opportunity (SA) argued that the NSW exclusion should be “limited to cases where physique or strength are relevant” as under the EOA (SA): Commissioner for Equal Opportunity (SA), Submission at 4.

170. EOA (Vic) s 64. However, the Commission has not recommended the extension of the ADA to include such an area, except to the extent that it is covered by the activities of incorporated associations.

171. EOA (Vic) s 66.

172. SDA s 42.

173. SDA s 42(1). Emphasis added.

174. SDA s 42(2).

175. 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 (“Lavarch Report”) (AGPS, Canberra, 1992).

176. ADA s 36(a) and (b).

177. Or the fund could obtain a temporary exemption from the requirement to make the offer to members: SDA s 44.

178. See Australia, Human Rights and Equal Opportunity Commission, Sex Discrimination Commissioner, Superannuation and the Sex Discrimination Act 1984: Current Status and Future Directions (AGPS, Canberra, 1994) at 2.

179. EOA (Vic) s 72-73.

180. SDA (Tas) s 29 (gender, marital status, pregnancy, parental status, family responsibilities); ADA (Qld) s 59 (sex, marital status), s 60-65 (age or impairment); EOA (WA) s 34 (sex, marital status, pregnancy), s 66ZL (age), s 66P (disability); DA (ACT) s 29 (all grounds); ADA (NT) s 49 (all grounds); the EOA (SA) is most unwieldy (s 42 allows discriminatory commutation factors and rates and benefits in employer schemes, s 44 allows discrimination on the ground of marital status in the payment of benefits and s 49 excepts insurance from sex discrimination provisions and other grounds).

181. SDA s 12(1).

182. SDA s 13(1).

183. Australia, Human Rights and Equal Opportunity Commission, Sex Discrimination Commissioner, Superannuation and the Sex Discrimination Act 1984: Current Status and Future Directions (AGPS, Canberra, 1994) at 21.

184. Superannuation benefits taken in the form of a pension receive more favourable tax treatment. Also, annuitants can organise their assets and income in such a way as to still qualify for a part social security pension.

185. ADA s 36; SDA s 41A; see also para 6.231 on insurance.

186. Australia, Human Rights and Equal Opportunity Commission, Sex Discrimination Commissioner, Submission from the Sex Discrimination Commissioner to the Senate Select Committee on Superannuation (1995) at 9.

187. Institute of Actuaries, Submission to ADB (21 December 1995) at 8.

188. Note, however, that in many cases, the occupation classification has an implicit allowance for smoking: Institute of Actuaries, Submission to ADB (21 December 1995) at 5.

189. Institute of Actuaries, Submission to ADB (21 December 1995) at 8.

190. See City of Los Angeles Department of Water and Power v Manhart 435 US 702 (1978), referred to in Australia, Human Rights and Equal Opportunity Commission, Superannuation and the SDA: Current Status and Future Directions at 9-10.

191. Australia, HREOC, Superannuation and the SDA: Current Status and Future Directions at 10.

192. M Owen, “Discrimination was not Meant for Women” (1984) 56 Australian Quarterly 363 at 368-370 quoted in J Scutt (ed), Women and the Law (Law Book Co, Sydney, 1990) at 73.

193. New South Wales, Anti-Discrimination Board, Discrimination in Superannuation (Sydney, 1978).

194. Anti-Discrimination Board, Submission 1 at 67; NSW Women’s Advisory Council, Submission at 8 and Australia, HREOC, Superannuation and the SDA: Current Status and Future Directions at 15.

195. Gay and Lesbian Rights Lobby, Submission at 6.

196. Anti-Discrimination Board, Submission 1 at 66; NSW Ministry for the Status and Advancement of Women, Submission at 26; National Pay Equity Coalition, Submission at 2; NSW Women’s Advisory Council, Submission at 8.

197. National Pay Equity Coalition, Submission at 2.

198. Anti-Discrimination Board, Submission 1 at 67.

199. Australia, Parliamentary Debates (Hansard) Senate, 20 October 1983, the Hon G Evans at 1893; New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 23 November 1976, the Hon NK Wran, Premier, Second Reading Speech at 3340; New South Wales, Parliamentary Debates (Hansard) Legislative Council, 24 November 1976, the Hon D P Landa at 3392. In the Second Reading Speech of the ADA in the Legislative Assembly, it was specifically stated that:

it is the government’s intention in due course to make unlawful discrimination in respect of wages, salaries and superannuation because of sex or any other ground and to bring it within the purview of the general intention of the legislation (at 3340).

201. New South Wales, Anti-Discrimination Board, Discrimination in Superannuation at 47.

202. Victoria, Equal Opportunity Board, Discrimination in Superannuation and Pension Schemes (Melbourne, 1980).

203. Lavarch Report at 97-100.

204. Lavarch Report at 104-105.

205. Australia, Human Rights and Equal Opportunity Commission, Superannuation and the SDA: Current Status and Future Directions at 16.

206. Association of Superannuation Funds of Australia, Submission to Attorney General’s Department (5 March 1996) at 1.

207. Introduced on 1 July 1992, it requires employers to contribute a fixed percentage of a worker’s wage in a superannuation fund in respect of any person who earns more than $450 per month. Employer contributions under the SGC and under any award schemes vest immediately in the employee and are fully preserved until retirement. The same applies to company funds since the changes to operating standards in 1994.

208. Australia, HREOC, Superannuation and the SDA: Current Status and Future Directions at 2.

209. Australia, Senate Standing Committee on Superannuation, Super and Broken Work Patterns (Report 17, 1995).

210. Anti-Discrimination Board, Submission 1 at 67.

211. Association of Superannuation Funds of Australia, Submission at 2.

212. SDA s 10(3).

213. ADA s 37 (sex); s 49Q (disability); and s 49ZYT (age).

214. See, for example, EOA (Vic) s 43.

215. Australia, Human Rights and Equal Opportunity Commission, Insurance and the Sex Discrimination Act 1984 (AGPS, Canberra, 1990) at 2.

216. S Coates, Submission at 1; Disability Council of NSW, Submission at 5; Gay and Lesbian Rights Lobby, Submission at 6; National Pay Equity Coalition, Submission at 2; M Santin, Submission at 1.

217. See, for example, New South Wales, Anti-Discrimination Board, Discrimination – the Other Epidemic: Report of the Inquiry into HIV and AIDS Related Discrimination (Sydney, 1992) at 65.

218. ADA (Qld) s 31.

219. EOA (WA) s 30.

220. DA (ACT) s 35.

221. [1996] EOC 92-783.

222. ADA s 49.

223. See above at para 6.210.

224. SDA s 41A.

225. SDA s 41B. See also discussion concerning sex discrimination above at para 6.210.

226. See EOC (SA) s 44; EOA (WA) s 34; and DA (ACT) s 29.

227. EOA (Vic) s 73(2)(a); and ADA (Qld) s 59.

228. Superannuation Act 1916 (NSW) s 30 and 31. The estate of members who die leaving no legally recognised spouse or child receives only the sum of contributions without interest.

229. Benney v Jones (1991) 23 NSWLR 559; Re Fitzpatrick and Commissioner for Superannuation (1995) 38 ALD 767; Re Scott and Commissioner of Superannuation (1989) 19 ALD 208; Re Johnson and Commissioner for Superannuation (1979) 2 ALD 825; Re Bonny [1986] 2 QdR 80. The Commonwealth is trying to argue that a beneficiary must be substantially financially dependent on the member.

230. Hope v NIB Health Funds Ltd [1995] EOC 92-716.

231. See decision of AAT in Re Brown and Commissioner for Superannuation (1995) 38 ALD 344.

232. Gay and Lesbian Rights Lobby, Submission at 6.

233. Gay and Lesbian Rights Lobby Inc, Superannuation and Same-Sex Relationships (1995).

234. See Pope v Lawler (1996) 41 ALD 127.

235. Anti-Discrimination Board, Submission 1 at 69, 96-97 and 298-301; Gay and Lesbian Rights Lobby, Submission at 10; NSW Ministry for the Status and Advancement of Women, Submission at 26.

236. [1995] EOC 92-716.

237. Australia, Senate Select Committee on Superannuation, Super and Broken Work Patterns (Report 17, 1995) Recommendation 14.

238. Australian Superannuation Fund of Australia, Submission at 2.

239. See s 62 which requires regulated funds to be maintained solely to provide benefits to the member or the member’s legal personal representative or dependents on the member’s death or incapacitation. Dependent is defined inclusively as the married or de facto spouse of the member.

240. See discussion above concerning sex discrimination at para 6.210.

241. Disability Council of NSW, Submission at 5.

242. EOA (Vic) s 80.

243. ADA (Qld) s 107 and 108.

244. EOA (WA) s 66U.

245. DA (ACT) s 56.

246. ADA (NT) s 55.

247. Aids Council of NSW, Submission at 1.

248. Anti-Discrimination Board, Submission 1 at 86.

249. ADA s 49L(3)(b).

250. Anti-Discrimination Board, Submission 1 at 92.

251. DDA s 22(3).

252. EOA (Vic) s 38.

253. ADA s 49Q.

254. DDA s 46(1) and 46(2).

255. EOA (Vic) s 73(2)(b) and 43(1)(a); DA (Qld) s 60-65 and s 74-75; EOA (SA) s 43(c), 44(2) and 49; EOA (WA) s 66P and 66T; DA (ACT) s 29 and 28 (in relation to superannuation and insurance respectively). The exceptions in s 49(1) of the ADA (NT) apply to both insurance and superannuation and s 49(2) to superannuation alone.

256. (1986) 160 CLR 330.

257. Section 233(1).

258. It should be noted that the submission of the ASFA argued for uniformity of Commonwealth and State legislation in the area of the superannuation: Australian Superannuation Funds of Australia, Submission at 1-2.

259. DDA s 28.

260. ADA s 49O(3).

261. ADA s 49O(4).

262. DDA s 27(3).

263. EOA (Vic) s 61; ADA (Qld) s 97.

264. EOA (WA) s 66M(3) and (5); DA (ACT) s 55(1) and (3).

265. See ADA s 49O(2)(a).

266. See Chapter 4 at para 4.272.

267. See Chapter 5 at para 5.106.

268. See Chapter 5 at para 5.117.

269. ADA s 49ZYQ.

270. ADA s 49ZYR.

271. ADA s 79ZYV.

272. ADA s 49ZYQ.

273. ADA s 49ZYV.

274. ADA s 49ZYG(2)

275. Youth Action and Policy Association, “Junior Wages Update – January 1996”.

276. National Children’s and Youth Law Centre, “Youthism: age discrimination and young people” Discussion Paper (July 1995). The submission of the National Children’s Youth Law Centre also argued for the abolition of the junior wage rates exception on the basis that: “if the same job is performed by people of different ages essentially it should be paid at the same range according to an Award or registered agreement”: National Children’s and Youth Law Centre, Submission at 3. The submission of the National Pay Equity Coalition also opposed the exception, arguing that: “Training wages can be provided in awards and agreements with provisions ensuring access to training. Age is no indicator of competence nor of need for income and should not be a permissible basis for pay discrimination”: National Pay Equity Coalition, Submission at 3.

277. New South Wales, Attorney General’s Department, Age Discrimination Options for NSW: A Discussion Paper (“Green Paper”) (Sydney, 1992).

278. Western Australia, Equal Opportunity Commissioner, Age Discrimination and Equal Opportunity Legislation (Discussion Paper 1, 1989); South Australia, Report of the Task Force Monitoring Age Discrimination (1989); Victorian Law Reform Commission, Review of the Equal Opportunity Act (Report 36, 1990); Australian Capital Territory, Issues and Options for Age Discrimination Law in the ACT (Discussion Paper, Canberra, 1993).

279. Green Paper at 30.

280. New South Wales, Attorney General’s Department, Age Discrimination Legislation for NSW (Sydney, 1993) (“White Paper”).

281. Since writing this Report, the Full Bench of Australian Industrial Relations Commission has reported on this issue and concluded that “none of the non-discriminatory alternatives were feasible”. The Full Bench further stated that:

“Well designed junior rate classifications framed to reduce the capacity to exploit the use of them, may justifiably be used for creating or protecting employment opportunities for young employees”: Australian Industrial Relations Commission, Junior Rates Inquiry – Report of the Full Bench Inquiring under section 120B of the Workplace Relations Act 1996, 4 June 1999.

283. ADA (Qld) s 33.

284. EOA (SA) s 85f(4).

285. EOA (WA) s 66ZS.

286. DA (ACT) s 57B.

287. This recommendation may need to be reconsidered in view of the Report of the Australian Industrial Relations Commission’s Junior Rates Inquiry, which was not available to the Commission at the time of writing.

288. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 November 1993 at 5709.

289. ADA s 49ZYJ(3) and (4).

290. EOA (Vic) s 17(3).

291. ADA (Qld) s 25. The section includes examples to illustrate “genuine occupational requirements”.

292. EOA (SA) s 85f(2).

293. ADA (NT) s 35(1)(b).

294. EOA (WA) s 66ZQ.

295. DA (ACT) s 57A.

296. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 November 1993 at 5709.

297. See Chapter 2 at para 2.34.

298. An example of the kinds of employment practices which have been rendered unlawful by anti-discrimination laws is provided in the case of Kemp v Minister for Education [1991] EOC 92-340. In that case the EOC in Western Australia decided that a requirement that an appointee have a minimum total length of service and seniority was indirectly discriminatory on the ground of sex. The Commission found that a greater number of women than men were likely to be out of the work force for periods of time for purposes of child bearing and child rearing and that the requirement was not reasonable in the circumstances.

299. Australian Bureau of Statistics, Labour Mobility in Australia (February 1998)

300. Australian Bureau of Statistics, Labour Mobility in Australia, See Table 4: “Worked during the year ending February 1998: Job Mobility” at 15.

301. EOA (WA) s 66ZN(1). The basis for offering participation in such a scheme is age and not length of service. It is also noteworthy that the temporary exception with regard to compulsory retirement is included in the retirement exception to age.

302. Green Paper at 31.

303. White Paper at 17.

304. New South Wales, Anti-Discrimination Board, Discrimination and Age: Outline of Proposals (Sydney, 1985). Based on the ADB’s research published in New South Wales, Anti-Discrimination Board, Discrimination and Age (Sydney, 1980) and subsequent developments. The exceptions proposed were:

• services, programs or treatment designed to meet the special needs of a particular age group;
• mature age admission schemes;
• private educational authorities;
• anything done in compliance with other legislation; and
• refusal to admit children to school under age 6 years.

306. EOA (Vic) s 38 and 41.

307. ADA (Qld) s 43.

308. EOA (SA) s 85i(3).

309. EOA (WA) s 66ZD(4).

310. DA (ACT) s 57E.

311. DA (ACT) s 57H.

312. See EOA (Vic) s 41.

313. ADA s 49ZYM(2). The provision stated that: “[n]othing in this section applies to or in respect of benefits, including concessions, provided in good faith to a person by reason of his or her age”.

314. Anti-Discrimination Amendment Act 1997 (NSW).

315. ADA s 49ZYN(2) and 49ZYN(3).

316. See Chapter 4 at para 4.274.

317. Information supplied by the Legal and Policy Division of the ADB.

318. D Carrick, “Reproductive Technology, Legislation and Discrimination” (1997) 32(4) Australian Lawyer 14.

319. See above at para 6.95 and Chapter 4 at para 4.206.

320. ADA s 49ZYO(3).

321. See above at para 6.96 and Recommendation 48.

322. EOA (Vic) s 81.

323. EOA (Vic) s 55 and 56.

324. ADA (Qld) s 91.

325. EOA (SA) s 85I(4) and (5).

326. EOA (WA) s 66ZG(3).

327. DA (ACT) s 57H.

328. ADA s 49ZYP(3)(a). The Act sets out the factors that should be taken into account when determining what is the principal object of the club.

329. ADA s 49ZYP(3)(b).

330. [1990] 2 AC 751.

331. Under the provisions of the Social Security Act 1991 (Cth), the pensionable age for women is 60 years and men is 65 years: s 23(5A) and 23(5B).

332. See above at para 6.310 and Recommendation 70.

333. See above at para 6.97.

334. In a submission to the Martin Report, in 1994, the Equal Opportunity Commissioner recommended the retention of the age discrimination provisions pending further research: see South Australia, Legislative Review of the Equal Opportunity Act 1984 (1994) (“Martin Report”) Appendix (iv).

335. The Human Rights and Equal Opportunity Commission Regulations which came into operation on 1 January 1990 provide that discrimination on a number of grounds, including age, constitute discrimination for the purposes of the HREOC Act. The effect of this is that complaints alleging age discrimination can be brought to the HREOC which has the power to investigate and conciliate the complaint.

336. Workplace Relations and Other Legislation Amendment Act 1996 (Cth) s 3.

337. Social Security Act 1991 (Cth) s 23(5A) and 23(5B). Transitional provisions are in place to equalise the age (65) at which men and women will be entitled to receive the age pension by 2002.

338. R Harris, “Age Discrimination and Superannuation” (1989-90) 120 Superfunds 13 at 13.

339. Under the Superannuation Industry (Supervision) Regulations, regulated super funds can accept contributions on behalf of members who are over 65 if those contributions are mandated employer contributions under the superannuation guarantee scheme or under an industrial agreement or award: regs 7.04 and 7.05.

340. ADA s 49ZYS appears to offer protection to the trustee of the super fund and the employer.

341. Association of Superannuation Funds of Australia, Submission at 2.

342. EOA (Vic) s 43(b); ADA (Qld) s 74 and 75; EOA (SA) s 85r(1) and (2); EOA (WA) s 66ZR; DA (ACT) s 28; and ADA (NT) s 49(1)(d)-(f).

343. Information supplied by Nancy Hennessy, Anti-Discrimination Board (27 August 1997).

344. EOA (Vic) s 44.

345. Anti-Discrimination (Age Discrimination) Amendment Act 1993 (NSW) s 3.

346. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 November 1993, Second Reading Speech on the Anti-Discrimination (Age Discrimination) Amendment Act 1993 (NSW) at 5711.

347. (1995) 60 IR 17.

348. (1996) 68 IR 248.

349. Qantas Airways v Christie (1998) 72 ALJR 634.

350. (1995) 60 IR 17.

351. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 18 November 1993, Second Reading Speech on the Anti-Discrimination (Age Discrimination) Amendment Act 1993 (NSW) at 5711.

352. EOA (Vic) s 66(2) and (3); ADA (Qld) s 111(c); EOA (SA) s 85q; EOA (WA) s 66ZJ(3) and (4); DA (ACT) s 57M.

353. Emphasis added.

354. See above at para 6.209.

355. ADA s 38P and 38Q.

356. ADA s 38Q.

357. The Association of Superannuation Funds of Australia Limited, Submission to the Attorney General’s Department (14 August 1996).

358. Association of Superannuation Funds of Australia Limited, Submission to the Attorney General’s Department (14 August 1996).

359. See above at para 6.210.

360. Section 38P(2). No sporting activities have been prescribed.

361. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 2 May 1996 at 644.

362. Information supplied by Legal Division, NSW Department of Sport and Recreation.

363. See Chapter 4 at 4.259.

364. (1987) 35 DLR (4th) 338.

365. EOA (Vic) s 6(g) refers to discrimination on the ground of “political belief or activity”.

366. ADA (Qld) s 7(j) refers to “political belief or activity”.

367. EOA (WA) s 53 refers to “political conviction”.

368. DA (ACT) s 7(h) refers to “political conviction”.

369. ADA (NT) s 19(1)(n) refers to “political opinion, affiliation or activity”. The South Australian, Tasmanian and Commonwealth anti-discrimination provisions do not prohibit discrimination on the basis of political conviction.

370. Human Rights Act 1993 (NZ) s 21(1)(j) refers to “political opinion, which includes the lack of a particular political opinion or any political opinion” as a ground of prohibited discrimination. Other overseas jurisdictions such as Canada and the United Kingdom do not have an equivalent ground of discrimination based on political conviction.

371. EOA (Vic) s 18 provides an exception to the appointment of ministerial advisers, members of staff of a political party, the electoral staff or similar positions. Under the ADA (Qld), s 25 provides for an exception to apply to the employment of an adviser to a political party or a worker in the office of a member of Parliament. The DA (ACT) s 45 provides an exception for the employment of an adviser to, or a member of the staff of, a Minister, the Speaker of the Legislative Assembly or a member of the Legislative Assembly; an officer or employee of, or a worker for, a political party; a member of the electoral staff of a person; or a person involved in any other similar employment or work. Similarly, the Human Rights Act 1993 (NZ) s 31 provides an exception for employment of a political adviser or secretary to a member of Parliament; a political adviser to a member of a local authority or a candidate seeking election to the House of Representatives or to a local authority; or a member of staff of a political party.

372. EOA (WA) s 66(2).

373. ADA (NT) s 35(1)(b).

374. Discrimination (Employment and Occupation) Convention 1958 Art 1.2.

375. Anti-Discrimination Board, Submission 1 at 146.

376. EOA (Vic) s 68.

377. ADA (Qld) s 102(2).

378. Anti-Discrimination Board, Submission 1 at 147.

379. EOA (Vic) s 3 defines “club” to include only organisations which occupy crown land or receive public funding.

380. ADA (NT) s 41(2).

381. See above at para 6.70.

382. See above at para 6.97-6.119.

383. See Recommendations 43, 45 and 47.

384. See also Anti-Discrimination Board, Submission 1 at 147.

385. EOA (Vic) s 16; ADA (QLD) s 26; EOA (WA) s 54(4)(a); DA (ACT) s 24; ADA (NT) s 35(2) and Human Rights Act 1993 (NZ) s 27(2) all provide exceptions for employees who work to perform domestic duties in the residence of the employer. DA (ACT) s 25 and ADA (Qld) s 27 provide a further specific exception for care of children in the employer’s home.

386. Anti-Discrimination Board, Submission 1 at 147.

387. The exceptions contained in EOA (Vic) s 54; ADA (Qld) s 87; EOA (WA) s 63(3); DA (ACT) s 26; ADA (NT) s 40(1), and Human Rights Act 1993 (NZ) s 54 allow for discrimination in deciding who shall reside in accommodation in which the person or near relative lives.

388. EOA (Vic) s 6(j) refers to discrimination on the ground of “religious belief or activity”.

389. ADA (Qld) s 7(i) refers to “religion”.

390. EOA (WA) s 53 refers to “religious conviction”.

391. DA (ACT) s 7(h) refers to “religious conviction”.

392. ADA (NT) s 19(1)(m) refers to “religious belief or activity”. The South Australian and Tasmanian anti-discrimination provisions do not prohibit discrimination on the basis of religion or its equivalent.

393. Human Rights Act 1993 (NZ) s 21(1)(c) refers to “religious belief” and s 21(1)(d) to “ethical belief, which means the lack of religious belief, whether in respect of a particular religion or religions or all religions”. Other overseas jurisdictions such as the United Kingdom do not have an equivalent ground of discrimination based on religion or religious conviction.

394. “Religion” is a prohibited ground of discrimination under s 3(1) of the Canadian Human Rights Act RSC 1985 c H6 (enacted 1976-1977).

395. Anti-Discrimination Board, Submission 1 at 141. Furthermore, a number of submissions from church groups which argued that religion should not be included as a separate ground under the Act did so on the basis of a concern that such a ground would not fully recognise the communal nature of religious practice and that it would impinge on the autonomy of religious bodies: Anglican Church of Australia (Diocese Sydney), Submission at 2; Catholic Education Commission NSW, Submission at 1-2; NSW Council of Churches, Submission at 2-3; Wesley Mission, Submission at 1. See also Chapter 5 at para 5.150.

396. Anti-Discrimination Board, Submission 1 at 141-142.

397. Anti-Discrimination Board, Submission 1 at 141, relying on Art 1.2 of ILO Convention 111.

398. Anglican Church of Australia (Diocese Sydney), Submission at 2; The Brethren (Universal Christian Fellowship), Submission at 2; Catholic Education Commission NSW, Submission at 3; NSW Council of Churches, Submission at 1; Presbyterian Church of Australia, Submission at 1; Seventh-Day Adventist Church, Submission at 3; Wesley Mission, Submission at 3. See also P Fitzgerald, Submission at 10; M Hains, Submission at 1; J Hollier, Submission at 2; M Kirby, Submission at 20; K & M McKenzie & Co, Submission at 2; B O’Farrell, Submission at 1.

399. For example, the submission of the Wesley Mission specifically stated that “[p]eople providing even menial tasks come into contact with the general public ... and so at times can be as crucial to the smooth operation of an organisation as the Chairperson of the Board”: Wesley Mission, Submission at 2.

400. The submission of Justice Kirby stated that “it scarcely seems justifiable to confine staff in the college kitchen to members of the religion, unless they are obliged to observe religious rituals in the preparation of food”: M Kirby, Submission at 20.

401. ADA (Qld) s 25(1); Canadian Human Rights Act RSC 1985, c H6 s 15(a).

402. See EOA (Vic) s 17(2); Human Rights Act 1993 (NZ) s 27(1).

403. EOA (Vic) s 76.

404. ADA (Qld) s 29(1)(a).

405. EOA (WA) s 66(1).

406. EOA (WA) s 73.

407. DA (ACT) s 33. Under the ACT legislation, employment agencies are also free to discriminate in their selection of candidates where, had the proposed employer so discriminated against the person, it would not have been unlawful: DA (ACT) s 26A.

408. DA (ACT) s 44.

409. Human Rights Act 1993 (NZ) s 22. The New Zealand legislation also provides that a qualifying body can discriminate in selection of candidates where the authorisation or qualification facilitates engagement in a profession or calling for the purposes of an organised religion and is limited to persons of that religious belief: Human Rights Act 1993 (NZ) s 39(1).

410. See Chapter 4 at para 4.128.

411. Anglican Church of Australia (Diocese Sydney), Submission at 1-2; Catholic Education Commission NSW, Submission at 4-5; NSW Council of Churches, Submission at 2; Presbyterian Church of Australia, Submission at 2; Seventh-Day Adventist Church, Submission at 4.

412. EOA (Vic) s 38.

413. ADA (Qld) s 41.

414. ADA (NT) s 30.

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

416. See paras 6.152-6.159 above.

417. Anti-Discrimination Board, Submission 1 at 141.

418. EOA (Vic) s 61; ADA (Qld) s 97; and ADA (NT) s 47.

419. EOA (Vic) s 56 and 76.

420. ADA (Qld) s 89.

421. ADA (NT) s 40(2).

422. ADA (Qld) s 90.

423. ADA (NT) s 40(3). In addition to this, the Human Rights Act 1993 (NZ) s 55 also provides a specific exception where accommodation is provided for people of the same religious or ethical belief.

424. EOA (Vic) s 55.

425. ADA (NT) s 40(4).

426. See also Anti-Discrimination Board, Submission 1 at 141.

427. ADA (Qld) s 48 and ADA (NT) s 43.

428. ADA (Qld) s 80.

429. Anti-Discrimination Board, Submission 1 at 142.

430. EOA (Vic) s 16; ADA (Qld) s 26; EOA (WA) s 54(4)(a); DA (ACT) s 24; ADA (NT) s 35(2) and Human Rights Act 1993 (NZ) s 27(2), all provide exceptions for employees who work to perform domestic duties in the residence of the employer. Sections 25 of the DA (ACT) and 27 of the ADA (Qld) provide a further specific exception for care of children in the employer’s home.

431. Anti-Discrimination Board, Submission 1 at 147.

432. The exceptions contained in EOA (Vic) s 54; ADA (Qld) s 87; EOA (WA) s 63(3); DA (ACT) s 26; ADA (NT) s 40(1) and Human Rights Act 1993 (NZ) s 54 allow for discrimination in deciding who shall reside in accommodation in which the person or near relative lives.

433. Chapter 4 at para 4.223.

434. EOA (Vic) s 21 provides an exception for businesses with no more than five full time employees (ie five or less), whereas EOA (WA) s 54(4)(b) requires that there be less than five employees (full-time/ part time status not specified).

435. See Chapter 4 at para 4.94.

436. SDA s 7A “family responsibilities”; ADA (Qld) s 7(1)(d) “parental status”; SDA (Tas) s 16(d) and (e) “parental status” and “family responsibilities”; EOA (Vic) s 6(1) “status as a parent or carer”; EOA (WA) s 35A “family responsibility or family status”; DA (ACT) s 7(1)(e) “status as a parent or carer” and ADA (NT) s 19(1)(g) “parenthood”. Note that a Bill to introduce the ground is currently being considered in NSW Anti-Discrimination Amendment (Pregnancy and Carers’ Responsibility) Bill 1997 (NSW).

437. For further discussion see Chapter 5 at 5.185-5.220.

438. ADA (Qld) s 25. In Victoria, an employer may also limit the offering of employment on the basis of “status as a parent or carer” provided the discriminatory requirement constitutes a reasonable term of employment: EOA (Vic) s 23.

439. Exceptions which apply in other jurisdictions include the following: