Anti-Discrimination Act 1977 (NSW)

Anti-Discrimination Act 1977 No 48 An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons. Part 1 Preliminary 1 Name of Act This Act may be cited as the Anti-Discrimination Act 1977. 2 Commencement (1) This section and section 1 shall commence on the date of assent to this Act. (2) Except as provided in subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 (Repealed) 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— accommodation includes residential or business accommodation. associate of a person means— (a) any person with whom the person associates, whether socially or in business or commerce, or otherwise, and (b) any person who is wholly or mainly dependent on, or a member of the household of, the person. Board means the Anti-Discrimination Board constituted under this Act. commission agent means an agent who is remunerated by commission. contract worker means an employee who, under a contract of employment performs work for an employer who has undertaken to perform that work for another person. corporation has the same meaning as in the Corporations Act 2001 of the Commonwealth. council means a council, a county council or a joint organisation within the meaning of the Local Government Act 1993. disability means— (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. educational authority means a person or body administering a school, college, university or other institution at which education or training is provided. employment includes work under a contract for services. employment agency means a person who, for profit or not, provides services for the purpose of finding work or employment for others or for supplying employers with workers or employees. functions includes powers, authorities and duties. head of a Public Service agency has the same meaning as in the Government Sector Employment Act 2013. homosexual means male or female homosexual. industrial organisation means an industrial organisation within the meaning of the Industrial Relations Act 1996 or an organisation registered under the Industrial Relations Act 1988 of the Commonwealth. marital or domestic status means the status or condition of being— (a) single, or (b) married, or (c) married but living separately and apart from one's spouse, or (d) divorced, or (e) widowed, or (f) in a de facto relationship. near relative, in relation to a person, means the spouse, de facto partner, parent, child, grandparent, grandchild, brother or sister of the person. President means the President of the Board. principal means— (a) in relation to a commission agent, a person for whom work is done by that commission agent, or (b) in relation to a contract worker, a person for whom a contract worker performs work otherwise than under a contract of employment. private educational authority means a person or body administering a school, college, university or other institution at which education or training is provided, not being— (a) a school, college, university or other institution established under the Education Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or (b) an agricultural college administered by the Minister for Agriculture. Public Service agency has the same meaning as in the Government Sector Employment Act 2013. race includes colour, nationality, descent and ethnic, ethno-religious or national origin. recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction. registered club has the same meaning as in the Registered Clubs Act 1976. regulation means a regulation made under this Act. relative of a person means any person to whom the person is related by blood, marriage, affinity or adoption, or the de facto partner of the person. services includes— (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (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. Tribunal means the Civil and Administrative Tribunal. vehicle includes a ship, an aircraft and a hovercraft. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A reference in this Act to the exercise of a function includes, where that function is a duty, a reference to the performance of that duty. (3) For the purposes of this Act, the fact that a race may comprise two or more distinct races does not prevent it from being a race. (4) A reference in this Act to the conferring, renewing or extending of an authorisation or a qualification, in relation to an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation, includes a reference to the conferring, renewing, extending, granting, awarding, approving, issuing or accepting of a recognition, registration, enrolment, approval or certification by such an authority or such a body or to the admission of a person to membership of such an authority or such a body. (5) Notes included in this Act do not form part of this Act. (6), (7) (Repealed) 4A Act done because of unlawful discrimination and for other reasons If— (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. 4B References to certain employers (1) A reference in this Act to an employer— (a) in relation to employment in a Public Service agency, is a reference to the head of the agency, and (b) in relation to employment in the NSW Police Force, is a reference to the Commissioner of Police, and (c) in relation to employment in the Teaching Service, is a reference to the Secretary of the Department of Education. (2) Any thing determined or done with respect to any matter concerning any such employment by a person who is employed in any Public Service agency, the NSW Police Force or the Teaching Service and who is authorised to determine and do things in that respect is taken to have been determined or done by the head of the agency, the Commissioner of Police or the Secretary of the Department of Education, respectively. (3) Subsection (2) includes anything determined or done with respect to— (a) any offer of employment, or (b) the terms and conditions on which employment is offered, or (c) the opportunity afforded for promotion, transfer, training or other benefits associated with employment, or (d) dismissal from employment. 5 Act binds Crown This Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. Part 2 Racial discrimination Division 1 General 6 (Repealed) 7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator— (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. Division 2 Discrimination in work 8 Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of race— (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of race— (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment for the purposes of a private household. 9 Discrimination against commission agents (1) It is unlawful for a principal to discriminate against a person on the ground of race— (a) in the arrangements the principal makes for the purpose of determining who should be engaged as a commission agent, (b) in determining who should be engaged as a commission agent, or (c) in the terms on which the principal engages the person as a commission agent. (2) It is unlawful for a principal to discriminate against a commission agent on the ground of race— (a) in the terms or conditions which the principal affords him or her as a commission agent, (b) by denying him or her access, or limiting his or her access, to opportunities for promotion, transfer or training, or to any other benefits associated with his or her position as a commission agent, or (c) by terminating his or her engagement or subjecting him or her to any other detriment. 10 Discrimination against contract workers It is unlawful for a principal to discriminate against a contract worker on the ground of race— (a) in the terms on which the principal allows him or her to work, (b) by not allowing him or her to work or continue to work, (c) by denying him or her access, or limiting his or her access, to any benefit associated with the work in respect of which the contract with his or her employer is made, or (d) by subjecting him or her to any other detriment. 10A Partnerships (1) It is unlawful for a firm consisting of 6 or more partners, or for any one or more of 6 or more persons proposing to form themselves into a partnership, to discriminate against a person on the ground of race— (a) in the arrangements made for the purpose of determining who should be offered a position as partner in the firm, (b) in determining who should be offered a position as partner in the firm, or (c) in the terms on which the person is offered a position as partner in the firm. (2) It is unlawful for a firm consisting of 6 or more partners to discriminate against a partner on the ground of race— (a) by denying the partner access, or limiting the partner's access, to any benefit arising from membership of the firm, (b) by expelling the partner from the firm, or (c) by subjecting the partner to any other detriment. 10B Discrimination by local government councillors It is unlawful for any member or members of a council of a local government area when acting (whether alone or together) in the course of his, her or their official functions to discriminate against another member of the council on the ground of race. 11 Industrial organisations (1) It is unlawful for an industrial organisation to discriminate against a person who is not a member of the industrial organisation on the ground of race— (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 an industrial organisation to discriminate against a person who is a member of the industrial organisation on the ground of race— (a) by denying the person access, or limiting the person's access, to any benefit provided by the industrial organisation, (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. 12 Qualifying bodies It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of race— (a) by refusing or failing to confer, renew or extend the authorisation or qualification, (b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or (c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held. 13 Employment agencies It is unlawful for an employment agency to discriminate against a person on the ground of race— (a) by refusing to provide the person with any of its services, (b) in the terms on which it offers to provide the person with any of its services, or (c) in the manner in which it provides the person with any of its services. 14 Exception—genuine occupational qualification Nothing in this Division applies to or in respect of any work or employment where that work or employment involves any one or more of the following— (a) participation in a dramatic performance or other entertainment in a capacity for which a person of a particular race is required for reasons of authenticity, (b) participation as an artist's or photographic model in the production of a work of art, visual image or sequence of visual images for which a person of a particular race is required for reasons of authenticity, (c) working in a place where food or drink is, for payment or not, provided to and consumed by persons in circumstances in which a person of a particular race is required for reasons of authenticity, or (d) providing persons of a particular race with services for the purpose of promoting their welfare where those services can most effectively be provided by a person of the same race. 15 Exception—employment intended to provide training in skills to be exercised outside New South Wales Nothing in this Division applies to or in respect of anything done by an employer in or in connection with the employment in New South Wales of a person not ordinarily resident in New South Wales where that employment is intended to provide the person with training in skills to be exercised by the person wholly outside New South Wales. 16 Exception—employment on ship or aircraft Nothing in this Division applies to or in respect of the employment of a person on a ship or an aircraft in New South Wales if that person was engaged for that employment outside New South Wales. Division 3 Discrimination in other areas 17 Education (1) It is unlawful for an educational authority to discriminate against a person on the ground of race— (a) by refusing or failing to accept the person's application for admission as a student, or (b) in the terms on which it is prepared to admit the person as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of race— (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment. (3) Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed. 18 (Repealed) 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race— (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 20 Accommodation (1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race— (a) by refusing the person's application for accommodation, (b) in the terms on which the person offers the person accommodation, or (c) by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation. (2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race— (a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or (b) by evicting the person or subjecting the person to any other detriment. (3) Nothing in this section applies to or in respect of the provision of accommodation in premises if— (a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and (b) the accommodation provided in those premises is for no more than 6 persons. 20A Registered clubs (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 race— (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 race— (a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club, (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. (3) Nothing in subsection (1) or (2) applies to or in respect of a registered club if the principal object of the registered club is to provide benefits for persons of a specified race defined otherwise than by reference to— (a) colour, or (b) a description which has the effect of excluding persons of that race who are of a different colour from those persons, or the majority of those persons, who do not come within that description. (4) In determining whether the principal object of a registered club is as referred to in subsection (3), regard shall be had to— (a) the essential character of the registered club, (b) the extent to which the affairs of the registered club are so conducted that the persons primarily enjoying the benefits of membership are of the race specified in the principal object, and (c) any other relevant circumstance. Division 3A Racial vilification 20B Definition of "public act" In this Division, public act includes— (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. 20C Racial vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful— (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 20D (Repealed) Division 4 Exceptions to Part 2 21 Special needs programs and activities Nothing in this Part applies to or in respect of anything done in affording persons of a particular race access to facilities, services or opportunities to meet their special needs or to promote equal or improved access for them to facilities, services and opportunities. 22 Sport Nothing in this Part applies to or in respect of anything done on the grounds of a person's nationality or place of birth or length of time for which the person has been resident in a particular place or area— (a) in selecting one or more persons to represent a place or an area in any sport or game, or (b) in pursuance of the rules of any competition in so far as they relate to eligibility to compete in any sport or game. Part 2A Prohibition of sexual harassment 22A Meaning of "sexual harassment" For the purposes of this Part, a person sexually harasses another person if— (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 22B Harassment of employees, commission agents, contract workers, partners etc (1) It is unlawful for an employer to sexually harass— (a) an employee, or (b) a person who is seeking employment with the employer. (2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer. (3) It is unlawful for a person to sexually harass— (a) a commission agent or contract worker of the person, or (b) a person who is seeking to become a commission agent or contract worker of the person. (4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker. (5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership. (6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons. (7) It is unlawful for a member of either House of Parliament to sexually harass— (a) a workplace participant at a place that is a workplace of both the member and the workplace participant, or (b) another member of Parliament at a place that is a workplace of both members. (8) It is unlawful for a workplace participant to sexually harass a member of either House of Parliament at a place that is the workplace of both the member and the workplace participant. (9) In this section— place includes a ship, aircraft or vehicle. workplace means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant. workplace participant means any of the following— (a) an employer or employee, (b) a commission agent or contract worker, (c) a partner in a partnership, (d) a person who is self-employed, (e) a volunteer or unpaid trainee. (10) Without limiting the definition of workplace, the workplace of a member of either House of Parliament is taken to include the following— (a) the whole of Parliament House, (b) any ministerial office or electoral office of the member, (c) any other place that the member otherwise attends in connection with his or her Ministerial, parliamentary or electoral duties. 22C Harassment by members of qualifying bodies (1) It is unlawful for a member or an employee of an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to sexually harass a person seeking action in connection with an occupational qualification. (2) In this section— action in connection with an occupational qualification means conferring, renewing, extending, revoking or withdrawing an authorisation or qualification. 22D Harassment in employment agencies It is unlawful for— (a) a person who operates an employment agency, or (b) an employee of an employment agency, to sexually harass another person in the course of providing, or offering to provide, any of the agency's services to that other person. 22E Harassment at educational institutions (1) It is unlawful for a member of the staff of an educational institution to sexually harass— (a) a person who is a student at the institution, or (b) a person who is seeking to become a student at the institution. (2) It is unlawful for a person who is an adult student at an educational institution to sexually harass— (a) a person who is a student at the institution, or (b) a member of the staff of the institution. (3) If a complaint under subsection (2) is found to have been substantiated after an inquiry under Part 9, the Tribunal may make any order that it is empowered to make under section 113 (1) (b). However, if the respondent student was over the age of 16, but under the age of 18, when the unlawful conduct occurred, the Tribunal may not make an order requiring the student to pay damages under section 113 (1) (b) (i). (4) In this section— adult student means a student who has attained the age of 16 years. educational institution means a school, college, university or other institution at which education or training is provided. 22F Provision of goods and services It is unlawful for a person to sexually harass another person in the course of— (a) receiving, or seeking to receive, goods or services from that other person, or (b) providing, or offering to provide, goods or services to that other person. 22G Provision of accommodation (1) It is unlawful for a person to sexually harass another person in the course of providing, or offering to provide, (whether as principal or agent) accommodation to that other person. (2) This section does not apply to anything done by a person in the course of providing, or offering to provide, accommodation in a private household. 22H Land It is unlawful for a person to sexually harass another person in the course of dealing (whether as principal or agent) with that other person in connection with— (a) disposing of, or offering to dispose of, an estate or interest in land to the other person, or (b) acquiring, or offering to acquire, an estate or interest in land from the other person. 22I Sport (1) It is unlawful for a person engaged in a sporting activity to sexually harass another person engaged in a sporting activity. (2) For the purposes of this section, a person is engaged in a sporting activity if— (a) the person is involved in an organised sporting competition, (b) the person is coaching a person or team, or is being coached, for the purposes of an organised sporting competition, (c) the person is carrying out an activity relating to the administration of a sport or an organised sporting competition, (d) the person is officiating at an organised sporting competition or carrying out related duties or functions, (e) the person is officially involved in a function relating to a sport or an organised sporting competition. 22J State laws and programs (1) It is unlawful for a person to sexually harass another person— (a) in the course of performing any function under a State law or for the purposes of a State program, or (b) in the course of carrying out any other responsibility for the administration of a State law or the conduct of a State program. (2) In this section— State law means— (a) an Act, a statutory rule, or a determination made under or pursuant to an Act, or (b) an order or award made under or pursuant to such a law. State program means a program conducted by or on behalf of the State Government. Part 3 Sex discrimination Division 1 General 23 Definitions In this Part— man means a member of the male sex irrespective of his age. woman means a member of the female sex irrespective of her age. 24 What constitutes discriminati