Queensland: Anti-Discrimination Act 1991 (Qld)

Anti-Discrimination Act 1991 An Act to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct Preamble Parliament's reasons for enacting this Act are— 1 The international community has long recognised the need to protect and preserve the principles of dignity and equality for everyone. 2 This is reflected in a number of international human rights instruments that the Commonwealth has ratified, including— • the International Convention on the Elimination of All Forms of Racial Discrimination • the Convention on the Elimination of All Forms of Discrimination Against Women • the International Labour Organisation Convention No. 111—Discrimination (Employment and Occupation) • the International Labour Organisation Convention No. 156—Workers with Family Responsibilities • the International Covenant on Civil and Political Rights • the Convention on the Rights of the Child • the Declaration on the Rights of Mentally Retarded Persons • the Declaration on the Rights of Disabled Persons. 3 The Parliament is supportive of the Commonwealth's ratification of these international instruments. 4 In fulfilling its obligations under these international instruments the Commonwealth has enacted certain human rights legislation. 5 The Parliament is satisfied that there is a need— (a) to extend the Commonwealth legislation; and (b) to apply anti-discrimination law consistently throughout the State; and (c) to ensure that determinations of unlawful conduct are enforceable in the courts of law. 6 The Parliament considers that— (a) everyone should be equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination; and (b) the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society; and (c) the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone. 7 It is, therefore, the intention of the Parliament to make provision, by the special measures enacted by the Act, for the promotion of equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct. Chapter 1 Preliminary 1 Short title This Act may be cited as the Anti-Discrimination Act 1991. 2 [Repealed] 3 Act binds Crown This Act binds— (a) the Crown in right of Queensland; and (b) the Crown in all its other capacities so far as the legislative power of the Parliament allows. 3A Application of Act to ships connected with Queensland (1) Without limiting the extent to which this Act may otherwise apply, it is declared that this Act applies to acts done on ships connected with Queensland. (2) However, subsection (1) does not limit the laws of Queensland providing for the application of the criminal law to offences committed at sea. (3) For this section, a ship is a ship connected with Queensland if— (a) it is registered under the Shipping Registration Act 1981 (Cwlth) with a home port in Queensland; or (b) it is, or is required to be, registered or licensed under the Transport Operations (Marine Safety) Act 1994 or another Act; or (c) it is owned or chartered by— (i) an individual whose place of residence, or principal place of residence, is in Queensland; or (ii) a person whose place of business, or principal place of business, is in Queensland; or (iii) a person whose principal place of business for managing the ship's operations is in Queensland. 4 Definitions The dictionary in schedule 1 defines particular words used in this Act. 4A [Repealed] 4B [Repealed] 4C [Repealed] 5 Meaning of unjustifiable hardship Whether the supply of special services or facilities would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example— (a) the nature of the special services or facilities; and (b) the cost of supplying the special services or facilities and the number of people who would benefit or be disadvantaged; and (c) the financial circumstances of the person; and (d) the disruption that supplying the special services or facilities might cause; and (e) the nature of any benefit or detriment to all people concerned. Example of application in the work area ( section 35 )— Company R refuses to employ A who uses a wheelchair because there is no appropriate access to the place of employment. R may only discriminate against A on the basis of impairment if supplying access would be very expensive or would impose another significant hardship on R. Chapter 2 Discrimination prohibited by this Act (complaint) Part 1 Act's anti-discrimination purpose 6 Act's anti-discrimination purpose and how it is to be achieved (1) One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. (2) This purpose is to be achieved by— (a) prohibiting discrimination that is— (i) on a ground set out in part 2; and (ii) of a type set out in part 3; and (iii) in an area of activity set out in part 4; unless an exemption set out in part 4 or 5 applies; and (b) allowing a complaint to be made under chapter 7 against the person who has unlawfully discriminated; and (c) using the agencies and procedures established under chapter 7 to deal with the complaint. Part 2 Prohibited grounds of discrimination 7 Discrimination on the basis of certain attributes prohibited The Act prohibits discrimination on the basis of the following attributes— (a) sex; (b) relationship status; (c) pregnancy; (d) parental status; (e) breastfeeding; (f) age; (g) race; (h) impairment; (i) religious belief or religious activity; (j) political belief or activity; (k) trade union activity; (l) sex work activity; (m) gender identity; (n) sexuality; (o) sex characteristics; (p) family responsibilities; (q) association with, or relation to, a person identified on the basis of any of the above attributes. 8 Meaning of discrimination on the basis of an attribute Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of— (a) a characteristic that a person with any of the attributes generally has; or (b) a characteristic that is often imputed to a person with any of the attributes; or (c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or (d) an attribute that a person had, even if the person did not have it at the time of the discrimination. Example of paragraph (c)— If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have. Part 3 Prohibited types of discrimination 9 Discrimination of certain types prohibited The Act prohibits the following types of discrimination— (a) direct discrimination; (b) indirect discrimination. 10 Meaning of direct discrimination (1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. Example— R refuses to rent a flat to C because— • C is English and R doesn't like English people • C's friend, B, is English and R doesn't like English people • R believes that English people are unreliable tenants. In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct. (2) It is not necessary that the person who discriminates considers the treatment is less favourable. (3) The person's motive for discriminating is irrelevant. Example— R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C. (4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. (5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant. 11 Meaning of indirect discrimination (1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term— (a) with which a person with an attribute does not or is not able to comply; and (b) with which a higher proportion of people without the attribute comply or are able to comply; and (c) that is not reasonable. (2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example— (a) the consequences of failure to comply with the term; and (b) the cost of alternative terms; and (c) the financial circumstances of the person who imposes, or proposes to impose, the term. (3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination. (4) In this section— term includes condition, requirement or practice, whether or not written. Example 1— An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it. Example 2— An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress. Part 4 Areas of activity in which discrimination is prohibited Division 1 Part's structure 12 Explanatory provision (structure) (1) This part specifies the areas of activity in which discrimination is prohibited and the exemptions that apply in relation to those areas. (2) Part 5 specifies general exemptions that apply to all the areas. Division 2 Work and work-related areas Subdivision 1 Prohibitions in work and work-related areas 13 Explanatory provision (prohibitions) (1) A person must not discriminate in the work or work-related area if a prohibition in sections 14 to 23 applies. (2) This subdivision does not apply to discrimination in connection with superannuation or insurance. (3) Discrimination in connection with superannuation or insurance is dealt with in sections 52 to 75. 14 Discrimination in the pre-work area A person must not discriminate— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in the terms of work that is offered, including, for example, a term about when the work will end because of a person's age; or (d) in failing to offer work; or (e) by denying a person seeking work access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or (f) in developing the scope or range of such a program. 15 Discrimination in work area (1) A person must not discriminate— (a) in any variation of the terms of work; or (b) in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or (c) in dismissing a worker; or (d) by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or (e) in developing the scope or range of such a program; or (f) by treating a worker unfavourably in any way in connection with work. (2) In this section— dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise. 15A Discrimination by principals (1) This section applies if a person (the worker) does work, or is to do work, for another person (the principal) under or because of— (a) a contract between the principal and a third person; or (b) another arrangement, or a series of arrangements, involving the principal and a third person, whether or not the arrangement or series of arrangements also involves other persons. (2) The principal must not discriminate against the worker— (a) in the terms in which the principal allows the worker to work; or (b) by not allowing the worker to work or continue to work; or (c) by denying or limiting access by the worker to any benefits connected with the work; or (d) by treating the worker unfavourably in any way in connection with the work. (3) This section does not limit section 15. 16 Discrimination by proposed partnership in pre-partnership area Six or more people who propose to form themselves into a partnership must not discriminate— (a) in deciding who should be invited to become a partner; or (b) in the terms on which a person is invited to become a partner. 17 Discrimination by existing partnership in pre-partnership area A partner in a partnership that consists of 6 or more people must not discriminate— (a) in deciding who should be invited to become a partner; or (b) in the terms on which a person is invited to become a partner. 18 Discrimination by existing partnership in partnership area A partner in a partnership that consists of 6 or more people must not discriminate— (a) in any variation of the terms of the partnership; or (b) in denying or limiting access by another partner to any benefit arising from the partnership; or (c) in expelling another partner from the partnership; or (d) by treating another partner unfavourably in any way in connection with the partnership. 19 Discrimination by industrial, professional, trade or business organisation in pre-membership area (1) An organisation of workers, employers, or people who carry on an industry, profession, trade or business must not discriminate— (a) in failing to accept a person's application for membership of the organisation; or (b) in the arrangements made for deciding who may join; or (c) in deciding who may join; or (d) in the terms on which a person may join. (2) Subsection (1) does not apply to discrimination on the basis of trade union activity if the Industrial Relations Act 2016, chapter 12, part 9, division 2 or part 10 applies. 20 Discrimination by industrial, professional, trade or business organisation in membership area (1) An organisation of workers, employers, or people who carry on an industry, profession, trade or business must not discriminate— (a) in any variation of the terms of membership of the organisation; or (b) in denying or limiting access to any benefit arising from the membership; or (c) in depriving a person of membership; or (d) by treating a person unfavourably in any way in connection with the membership. (2) Subsection (1) does not apply to discrimination on the basis of trade union activity if the Industrial Relations Act 2016, chapter 12, part 9, division 2 or part 10 applies. 21 Discrimination by qualifying body in pre-qualification area A person who has power to grant, renew or extend a qualification or authorisation that (whether by itself or together with other qualifications or authorisations) is needed for, or facilitates, the practice of a profession, or the carrying on of a trade or business must not discriminate— (a) in granting, renewing or extending a qualification or authorisation or failing to do so; or (b) in the terms on which a qualification or authorisation is granted, renewed or extended. 22 Discrimination by qualifying body in qualification area A person who has power to grant, renew or extend a qualification or authorisation that (whether by itself or together with other qualifications or authorisations) is needed for, or facilitates, the practice of a profession, or the carrying on of a trade or business must not discriminate against another person— (a) in any variation of the terms on which a qualification or authorisation was granted, renewed or extended; or (b) in revoking or withdrawing a qualification or authorisation or failing to do so; or (c) by treating the other person unfavourably in any way in connection with the grant, renewal or extension of a qualification or authorisation. 23 Discrimination in employment agency area A person who carries on a business (whether or not for reward or profit) of introducing people seeking work to employers must not discriminate— (a) by failing to supply a service of the business, whether to a person seeking work or an employer seeking a worker; or (b) in the terms on which a service is offered or supplied; or (c) in the way in which a service is supplied; or (d) by treating a person seeking work or an employer seeking a worker unfavourably in any way in connection with a service. Subdivision 2 Exemptions for discrimination in work and work-related areas 24 Explanatory provision (exemptions) It is not unlawful to discriminate in the work or work-related area if an exemption in sections 25 to 36 or part 5 applies. 25 Genuine occupational requirements (1) A person may impose genuine occupational requirements for a position. Examples of genuine requirements for a position— Example 1— selecting an actor for a dramatic performance on the basis of age, race or sex for reasons of authenticity Example 2— using membership of a particular political party as a criterion for a position as an adviser to a political party or a worker in the office of a member of Parliament Example 3— considering only women applicants for a position involving body searches of women Example 4— employing persons of a particular religion to teach in a school established for students of the particular religion (2) Subsection (3) applies in relation to— (a) work for an educational institution (an employer) under the direction or control of a body established for religious purposes; or (b) any other work for a body established for religious purposes (also an employer) if the work genuinely and necessarily involves adhering to and communicating the body's religious beliefs. (3) It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if— (a) the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer's religious beliefs— (i) during a selection process; or (ii) in the course of the person's work; or (iii) in doing something connected with the person's work; and Example for paragraph (a)— A staff member openly acts in a way contrary to a requirement imposed by the staff member's employer in his or her contract of employment, that the staff member abstain from acting in a way openly contrary to the employer's religious beliefs in the course of, or in connection with the staff member's employment. (b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person's work, act in a way consistent with the employer's religious beliefs. (4) Subsection (3) does not authorise the seeking of information contrary to section 124. (5) For subsection (3), whether the discrimination is not unreasonable depends on all the circumstances of the case, including, for example, the following— (a) whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person's actions; (b) the consequences for both the person and the employer should the discrimination happen or not happen. (6) Subsection (3) does not apply to discrimination on the basis of age, race or impairment. (7) To remove any doubt, it is declared that subsection (3) does not affect a provision of an agreement with respect to work to which subsection (3) applies, under which the employer agrees not to discriminate in a particular way. (8) In this section— religion includes religious affiliation, beliefs and activities. selection process means a process the purpose of which is to consider whether to offer a person work. 26 Residential domestic services (1) It is not unlawful for a person to discriminate— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in failing to offer work; or (d) in dismissing a worker; if the work is to perform domestic services at the person's home. (2) Subsection (1) does not apply to discrimination on the basis of race. 27 Residential childcare services (1) It is not unlawful for a person to discriminate— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in failing to offer work; or (d) in dismissing a worker; if the work is to care for the person's children at the person's home. (2) Subsection (1) does not apply to discrimination on the basis of race. 28 [Repealed] 29 [Repealed] 30 Single sex accommodation (1) It is not unlawful for a person to discriminate on the basis of sex against another person with respect to a matter that is otherwise prohibited under subdivision 1 if the other person is required to live in accommodation supplied by the first person and— (a) the accommodation is not equipped with separate sleeping accommodation for people of each sex; and (b) the accommodation is already occupied by a person or people of one sex and is not occupied by anyone of the opposite sex; and (c) the supply of separate sleeping accommodation for people of each sex would impose unjustifiable hardship on the first person. (2) Whether the supply of separate sleeping accommodation for people of each sex would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example— (a) the nature of the accommodation; and (b) the cost of supplying the separate sleeping accommodation and the number of people who would benefit or be disadvantaged; and (c) the financial circumstances of the person; and (d) the disruption that supplying the separate sleeping accommodation might cause; and (e) the nature of any benefit or detriment to all people concerned. 31 Workers are to be married couple It is not unlawful for a person to discriminate on the basis of relationship status— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in the terms of work that is offered; or (d) in failing to offer work; or (e) in dismissing a worker; if— (f) the work is for one of 2 positions that the person wants held concurrently by— (i) a married couple; or (ii) 2 persons each of whom is the de facto partner of the other; or (iii) 2 persons each of whom is the civil partner of the other; and (g) the workers are required to live in accommodation supplied by the person. 32 Retiring age for partners (1) It is not unlawful in deciding who should be invited to become a partner in a partnership for a person to discriminate on the basis of age against someone else through a requirement that the other person— (a) must not be more than a specified age; or (b) must retire from a partnership at a specified age. (2) It is not unlawful in any variation of the terms of a partnership for a person to discriminate on the basis of age against someone else through a requirement that the other person— (a) must not be more than a specified age; or (b) must retire from a partnership at a specified age. 33 Youth wages A person may remunerate a worker who is under 21 years of age according to the worker's age. 34 Special terms if job capacity is restricted by impairment A person may fix reasonable terms in relation to the holder or prospective holder of a position who, because of an impairment— (a) has a restricted capacity to do work genuinely and reasonably required for the position; or (b) requires special conditions in order to be able to do the work. 35 Special services or facilities required (1) It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the other person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the first person. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. 36 Circumstances of impairment (1) It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if the circumstances of the impairment would impose unjustifiable hardship on the first person. (2) Whether the circumstances of the impairment would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example— (a) the nature of the impairment; and (b) the nature of the work or partnership. Division 3 Education area Subdivision 1 Prohibitions in education area 37 Explanatory provision (prohibitions) An educational authority must not discriminate in the education area if a prohibition in section 38 or 39 applies. 38 Discrimination by educational authority in prospective student area An educational authority must not discriminate— (a) in failing to accept a person's application for admission as a student; or (b) in the way in which a person's application is processed; or (c) in the arrangements made for, or the criteria used in, deciding who should be offered admission as a student; or (d) in the terms on which a person is admitted as a student. 39 Discrimination by educational authority in student area An educational authority must not discriminate— (a) in any variation of the terms of a student's enrolment; or (b) by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority; or (c) by excluding a student; or (d) by treating a student unfavourably in any way in connection with the student's training or instruction. Subdivision 2 Exemptions for discrimination in education area 40 Explanatory provision (exemptions) It is not unlawful for an educational authority to discriminate in the education area if an exemption in sections 41 to 44 or part 5 applies. 41 Single sex, religion, etc. educational institution An educational authority that operates, or proposes to operate, an educational institution wholly or mainly for students of a particular sex or religion, or who have a general or specific impairment may exclude— (a) applicants who are not of the particular sex or religion; or (b) applicants who do not have a general, or the specific, impairment. 42 [Repealed] 43 Age-based admission scheme An educational authority may select students for an education program on the basis of an admission scheme that has a minimum qualifying age. 44 Special services or facilities required (1) Subject to the Education (General Provisions) Act 2006, it is not unlawful for an educational authority to discriminate on the basis of impairment against a person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the educational authority. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. Division 4 Goods and services area Subdivision 1 Prohibition in goods and services area 45 Explanatory provision (prohibition) (1) A person must not discriminate in the goods and services area if the prohibition in section 46 applies. (2) This subdivision does not apply to discrimination in connection with superannuation or insurance. (3) Discrimination in connection with superannuation or insurance is dealt with in sections 52 to 75. 45A [Repealed] 46 Discrimination in goods and services area (1) A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person— (a) by failing to supply the goods or services; or (b) in the terms on which goods or services are supplied; or (c) in the way in which goods or services are supplied; or (d) by treating the other person unfavourably in any way in connection with the supply of goods and services. (2) In this section, a reference to a person who supplies goods and services does not include an association that— (a) is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and (b) does not carry out its purposes for the purpose of making a profit. Subdivision 2 Exemptions for discrimination in goods and services area 47 Explanatory provision (exemptions) It is not unlawful to discriminate in the goods and services area if an exemption in sections 48 to 51 or part 5 applies. 48 Sites of cultural or religious significance A person may restrict access to land or a building of cultural or religious significance by people who are not of a particular sex, age, race or religion if the restriction— (a) is in accordance with the culture concerned or the doctrine of the religion concerned; and (b) is necessary to avoid offending the cultural or religious sensitivities of people of the culture or religion. 49 Age-based benefits A person may supply benefits and concessions on the basis of age with respect to a matter that is otherwise prohibited under subdivision 1. Example 1— A bus operator may give travel concessions to people under the age of 12 or over the age of 70. Example 2— The Government may supply, on an age basis, Seniors' Cards that give entitlements to concessions. 50 Children to be accompanied by an adult A person may require, as a term of supplying goods and services to a minor, that a minor be accompanied by an adult if there would be a reasonable risk that a minor may cause a disruption or endanger himself or herself or others if not accompanied by an adult. Example— The operator of a rifle range may require a minor who wants to use the range to be accompanied by an adult. 51 Special services or facilities required (1) It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the other person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the person supplying the goods or services. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. Division 5 Superannuation area Subdivision 1 Prohibitions in superannuation area 52 Explanatory provision (prohibitions) A person must not discriminate in the superannuation area if a prohibition in sections 53 to 57 applies. 53 Discrimination in superannuation area (goods and services) A person must not discriminate— (a) by failing to supply superannuation; or (b) in the terms on which superannuation is supplied; or (c) in the way in which superannuation is supplied. 54 Discrimination in superannuation area (pre-work) A person must not discriminate against another person, who is seeking work with the person, in the terms of any work that is offered that relate to superannuation. 55 Discrimination in superannuation area (work) A person must not discriminate against another person who works for the person— (a) in any variation of the terms of the work that relate to superannuation; or (b) in denying or limiting the other person's access to any benefit to a worker that relates to superannuation; or (c) by treating the other person unfavourably in any way in connection with superannuation. 56 Discrimination in superannuation area (pre-partnership) A person must not discriminate against another person, who is invited to become a partner of the person in a partnership that consists, or will consist, of 6 or more people, in the terms relating to superannuation on which the other person is invited to become a partner. 57 Discrimination in superannuation area (partnership) A partner in a partnership that consists of 6 or more people must not discriminate against another partner— (a) in any variation of the terms of the partnership that relate to superannuation; or (b) in denying or limiting the other partner's access to any benefit arising from the partnership that relates to superannuation; or (c) by treating the other partner unfavourably in any way in connection with superannuation. Subdivision 2 Exemptions for discrimination in superannuation area 58 Explanatory provision (exemptions) It is not unlawful to discriminate in the superannuation area if an exemption in sections 59 to 65 or part 5 applies. 59 Commonwealth exemption (sex or relationship status) It is not unlawful to discriminate on the basis of sex or relationship status with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination is permitted under the Sex Discrimination Act 1984 (Cwlth). 60 Retention of existing superannuation fund conditions (age or impairment) (1) It is not unlawful to discriminate on the basis of age or impairment by retaining an existing superannuation fund condition in relation to a person who became a member of the fund before the commencement of section 53. (2) In this section— existing superannuation fund condition means a superannuation fund condition in existence at the commencement of section 53. 61 New superannuation fund conditions—actuarial or statistical data (age or impairment) It is not unlawful for a person to discriminate on the basis of age or impairment by imposing a superannuation fund condition after the commencement of section 53 in relation to another person, irrespective of— (a) whether the superannuation fund was in existence before the commencement of section 53; and (b) when the other person became, or becomes, a member of the fund; if— (c) the condition is based on reasonable actuarial or statistical data from a source on which it is reasonable for the person to rely; and (d) the condition is reasonable having regard to the data and any other relevant factors. 62 New superannuation fund conditions—other data (age or impairment) It is not unlawful for a person to discriminate on the basis of age or impairment by imposing a superannuation fund condition after the commencement of section 53 in relation to another person, irrespective of— (a) whether the superannuation fund was in existence before the commencement of section 53; and (b) when the other person became, or becomes, a member of the fund; if— (c) there is no reasonable actuarial or statistical data from a source on which it is reasonable for the person to rely; and (d) the condition is based on other reasonable data from a source on which it is reasonable for the person to rely; and (e) the condition is reasonable having regard to the other data and any other relevant factors. 63 New superannuation fund conditions—no data (age or impairment) It is not unlawful for a person to discriminate on the basis of age or impairment by imposing a superannuation fund condition after the commencement of section 53 in relation to another person, irrespective of— (a) whether the superannuation fund was in existence before the commencement of section 53; and (b) when the other person became, or becomes, a member of the fund; if— (c) there is no reasonable actuarial, statistical or other data from a source on which it is reasonable for the person to rely; and (d) the condition is reasonable having regard to any other relevant factors. 64 Application of Commonwealth occupational superannuation standard It is not unlawful to discriminate on the basis of age or impairment with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination happens because of the application of a standard prescribed under the Superannuation Industry (Supervision) Act 1993 (Cwlth). 65 Compliance etc. with Commonwealth legislation It is not unlawful to discriminate on the basis of age or impairment with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination happens in order— (a) to comply with a Commonwealth Act (other than the Superannuation Industry (Supervision) Act 1993); or (b) to obtain a benefit or avoid a penalty under such an Act. Division 6 Insurance area Subdivision 1 Prohibitions in insurance area 66 Explanatory provision (prohibitions) A person must not discriminate in the insurance area if a prohibition in sections 67 to 71 applies. 67 Discrimination in insurance area (goods and services) A person must not discriminate— (a) by failing to supply insurance; or (b) in the terms on which insurance is supplied; or (c) in the way in which insurance is supplied. 68 Discrimination in insurance area (pre-work) A person must not discriminate against another person, who is seeking work with the person, in the terms of any work that is offered that relate to insurance. 69 Discrimination in insurance area (work) A person must not discriminate against another person who works for the person— (a) in any variation of the terms of the work that relate to insurance; or (b) in denying or limiting the other person's access to any benefit to a worker that relates to insurance; or (c) by treating the person unfavourably in any way in connection with insurance. 70 Discrimination in insurance area (pre-partnership) A person must not discriminate against another person, who is invited to become a partner of the person in a partnership that consists, or will consist, of 6 or more people, in the terms relating to insurance on which the other person is invited to become a partner. 71 Discrimination in insurance area (partnership) A partner in a partnership that consists of 6 or more people must not discriminate against another partner— (a) in any variation of the terms of the partnership that relate to insurance; or (b) in denying or limiting the other partner's access to any benefit arising from the partnership that relates to insurance; or (c) by treating the other partner unfavourably in any way in connection with insurance. Subdivision 2 Exemptions for discrimination in insurance area 72 Explanatory provision (exemptions) It is not unlawful to discriminate in the insurance area if an exemption in sections 73 to 75 or part 5 applies. 73 Commonwealth exemption (sex) It is not unlawful to discriminate on the basis of sex with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination is permitted under the Sex Discrimination Act 1984 (Cwlth). 74 Actuarial or statistical data (age or impairment) It is not unlawful for a person to discriminate on the basis of age or impairment with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination— (a) is based on reasonable actuarial or statistical data from a source on which it is reasonable for the person to rely; and (b) is reasonable having regard to the data and any other relevant factors. 75 No actuarial or statistical data (age or impairment) It is not unlawful for a person to discriminate on the basis of age or impairment with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) there is no reasonable actuarial or statistical data from a source on which it is reasonable for the person to rely; and (b) the discrimination is reasonable having regard to any other relevant factors. Division 7 Disposition of land area Subdivision 1 Prohibition in disposition of land area 76 Explanatory provision (prohibition) A person must not discriminate in the disposition of land area if the prohibition in section 77 applies. 77 Discrimination in disposition of land area A person must not discriminate against another person— (a) by failing to dispose of an interest in land to the other person; or (b) in the terms on which an interest in land is offered to the other person. Subdivision 2 Exemptions for discrimination in disposition of land area 78 Explanatory provision (exemptions) It is not unlawful to discriminate in the disposition of land area if an exemption in section 79 or 80 or part 5 applies. 79 Disposition by will or gift It is not unlawful to discriminate with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination is by way of a testamentary disposition or gift. 80 Sites of cultural or religious significance It is not unlawful to discriminate on the basis of sex, age, race or religion with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the relevant interest in land is an interest in land or a building of cultural or religious significance; and (b) the discrimination— (i) is in accordance with the culture concerned or the doctrine of the religion concerned; and (ii) is necessary to avoid offending the cultural or religious sensitivities of people of the culture or religion. Division 8 Accommodation area Subdivision 1 Prohibitions in accommodation area 81 Explanatory provision (prohibitions) A person must not discriminate in the accommodation area if a prohibition in sections 82 to 85 applies. 82 Discrimination in pre-accommodation area A person must not discriminate against another person— (a) by failing to accept an application for accommodation; or (b) by failing to renew or extend the supply of accommodation; or (c) in the way in which an application is processed; or (d) in the terms on which accommodation is offered, renewed or extended. 83 Discrimination in accommodation area A person must not discriminate against another person— (a) in any variation of the terms on which accommodation is supplied; or (b) in denying or limiting access to any benefit associated with the accommodation; or (c) in evicting the other person from the accommodation; or (d) by treating the other person unfavourably in any way in connection with the accommodation. 84 Discrimination by refusing to allow reasonable alterations A person must not discriminate by refusing to allow another person with an impairment to alter accommodation to meet the other person's special needs if— (a) the alteration is at the expense of the other person; and (b) the alteration does not require an alteration to the premises of another occupier; and (c) the action required to restore the accommodation to its previous condition is reasonably practicable; and (d) the other person undertakes to restore the accommodation to its previous condition before leaving it, and it is reasonably likely that the other person will do so. 85 Discrimination by refusing to allow guide, hearing or assistance dog (1) A person must not discriminate by doing any of the following— (a) refusing to rent accommodation to another person because the other person has an impairment and relies on a guide, hearing or assistance dog; (b) requiring the other person to keep the dog elsewhere; (c) requesting or requiring the other person to pay an extra charge because the dog lives at the accommodation. (2) This section does not affect the liability of the person with the dog for any damage caused by the dog. Subdivision 2 Exemptions for discrimination in accommodation area 86 Explanatory provision (exemptions) It is not unlawful to discriminate in the accommodation area if an exemption in sections 87 to 92 or part 5 applies. 87 Shared accommodation It is not unlawful for a person to discriminate in deciding who is to reside in accommodation that— (a) forms part of, and is intended to continue to form part of, the main home of the person or a near relative; and (b) is for no more than 3 people other than a person mentioned in paragraph (a) or near relatives of such a person. 88 Accommodation for workers A person who supplies accommodation for the person's workers may provide accommodation of different standards to different workers if— (a) it is not reasonable to expect the person to supply accommodation of the same standard for all workers; and (b) the standard of the accommodation supplied to each worker is determined having regard to— (i) the number of people in the worker's household; or (ii) the class of work performed, or the nature of the position held, by the worker. 89 Accommodation for students An educational authority that operates, or proposes to operate, an educational institution wholly or mainly for students of a particular sex or religion, or who have a general or specific impairment, may provide accommodation wholly or mainly for— (a) students of the particular sex or religion; or (b) students who have a general, or the specific, impairment. 90 Accommodation with religious purposes It is not unlawful to discriminate with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the accommodation concerned is under the direction or control of a body established for religious purposes; and (b) the discrimination— (i) is in accordance with the doctrine of the religion concerned; and (ii) is necessary to avoid offending the religious sensitivities of people of the religion. 91 Accommodation with charitable purposes It is not unlawful to discriminate on the basis of sex, relationship status or age with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the accommodation concerned is under the direction or control of a body established for charitable purposes; and (b) the discrimination is in accordance with the particular purposes for which the accommodation was established by the body. 92 Special services or facilities required (1) A person may discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the other person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the first person. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. Division 9 Club membership and affairs area Subdivision 1 Prohibitions in club membership and affairs area 93 Explanatory provision (prohibitions) A club must not discriminate in the club membership and affairs area if a prohibition in section 94 or 95 applies. 94 Discrimination by club in prospective membership area A club must not discriminate— (a) in determining the terms of a particular category or type of membership of the club; or (b) in failing to accept a person's application for membership of the club; or (c) in the way in which a person's application is processed; or (d) in the arrangements made for deciding who should be offered membership; or (e) in the terms on which a person is admitted as a member. 95 Discrimination by club in membership and affairs area A club must not discriminate— (a) in any variation of the terms of membership of the club; or (b) in failing to accept a member's application for a different category or type of membership; or (c) by denying or limiting access to any benefit, arising from membership, that is supplied by the club; or (d) in depriving a member of membership; or (e) by treating a member unfavourably in any way in connection with the membership or the affairs of the club. Subdivision 2 Exemptions for discrimination in club membership and affairs area 96 Explanatory provision (exemptions) It is not unlawful to discriminate in the club membership and affairs area if an exemption in sections 97 to 100 or part 5 applies. 97 Club established for minority cultures and disadvantaged people A club may exclude applicants for membership of the club who are not members of the group of people with an attribute for whom the club was established if the club operates wholly or mainly— (a) to preserve a minority culture; or (b) to prevent or reduce disadvantage suffered by people of that group. 98 Reasonable sex discrimination permitted It is not unlawful for a club to discriminate on the basis of sex by limiting access to any benefit, arising from membership, that is provided by the club if— (a) it is not practicable for males and females to enjoy the benefit at the same time; and (b) either of the following subparagraphs apply— (i) access to the same or an equivalent benefit is supplied for the use of males and females separately; (ii) access arrangements offer males and females a reasonably equivalent opportunity to enjoy the benefit. 99 Reasonable risk of injury A club may exclude an applicant for membership who is a minor if there is a reasonable risk of injury to a minor or other people. 100 Special services or facilities required (1) It is not unlawful for a club to discriminate on the basis of impairment in failing to accept a person's application for membership if— (a) the person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the club. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. Division 10 Administration of State laws and programs area 101 Discrimination in administration of State laws and programs area A person who— (a) performs any function or exercises any power under State law or for the purposes of a State Government program; or (b) has any other responsibility for the administration of State law or the conduct of a State Government program; must not discriminate in— (c) the performance of the function; or (d) the exercise of the power; or (e) the carrying out of the responsibility. Division 11 Local government area 102 Discrimination by local government member (1) A member of a local authority must not discriminate against another member in the performance of official functions. (2) Subsection (1) does not apply to discrimination on the basis of political belief or activity. Part 5 General exemptions for discrimination 103 Explanatory provision (exemptions) It is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4 if an exemption in sections 104 to 113 applies. 104 Welfare measures A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act. Example 1— It is not unlawful for a bus operator to give travel concessions to pensioners or to give priority in seating to people who are pregnant or frail. Example 2— It is not unlawful to restrict special accommodation to women who have been victims of domestic violence or to frail, older people. Example 3— It is not unlawful to establish a high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks. 105 Equal opportunity measures (1) A person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with this Act. (2) Subsection (1) applies only until the purpose of equal opportunity has been achieved. 106 Acts done in compliance with legislation etc. (1) A person may do an act that is necessary to comply with, or is specifically authorised by— (a) an existing provision of another Act; or (b) an order of a court; or (c) an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or (d) an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or (e) an order of the Anti-Discrimination Tribunal. (2) In this section— existing provision means a provision in existence at the commencement of this section. 106A Compulsory retirement age under legislation etc. (1) This Act has no effect on the imposition of a compulsory retirement age on— (a) a Supreme Court judge; or (b) a District Court judge; or (c) a magistrate; or (d) a member of the Land Court; or (e) the president, the vice-president or a deputy president (court) of the Industrial Court; or (f) a deputy president appointed under the Industrial Relations Act 2016, section 441 or an industrial commissioner; or (h) a fire officer within the meaning of the Fire Services Act 1990; or (k) a police officer; or (m) a director of a public company or subsidiary of a public company; or (n) another person prescribed by regulation. (2) Subsection (1) applies if the compulsory retirement age is imposed on or before 30 June 1994 under— (a) an Act; or (b) an industrial instrument under the Industrial Relations Act 2016; or (c) a policy, standard or other instrument of a previous unit of the public sector applying to an employee of the unit. (3) If the compulsory retirement age is imposed under something mentioned in subsection (2)(b) or (c), then, by force of this subsection, a person mentioned in subsection (1) is required, and is taken always to have been required, to retire in accordance with the compulsory retirement age imposed. (4) In this section— previous unit of the public sector means an entity that was a unit of the public sector on 30 June 1994 under the repealed Public Sector Management Commission Act 1990. 106B Citizenship or visa requirements imposed under State government policies etc. (1) This Act does not apply in relation to— (a) the inclusion of a prescribed eligibility provision in a relevant policy; or (b) the performance of a function by a person in connection with a prescribed eligibility provision. (2) In this section, a reference to performing a function includes a reference to exercising a power or carrying out a responsibility. (3) In this section— government entity— (a) means an entity mentioned in the Public Sector Act 2022, section 276(1); but (b) does not include— (i) a GOC, other than to the extent the GOC is directed to perform an obligation under the Government Owned Corporations Act 1993 or another Act; or (ii) an entity mentioned in the Public Sector Act 2022, section 276(2)(a), (b), (c), (d), (e), (f), (g), (i) or (j). prescribed eligibility provision, of a relevant policy, means— (a) a provision requiring that a person must have a particular citizenship or visa status to be eligible for financial or other assistance, services or support under the policy; or (b) a provision under which persons who have a particular citizenship or visa status are treated more favourably than other persons in relation to their eligibility for financial or other assistance, services or support under the policy. relevant policy means a policy of a government entity— (a) that relates to any area of activity set out in part 4; and (b) under which persons are provided with financial or other assistance, services or support. visa see the Migration Act 1958 (Cwlth), section 5. 106C [Repealed] 107 Public health A person may do an act that is reasonably necessary to protect public health. 108 Workplace health and safety A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work. 109 Religious bodies (1) The Act does not apply in relation to— (a) the ordination or appointment of priests, ministers of religion or members of a religious order; or (b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or (c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice; or (d) unless section 90 (Accommodation with religious purposes) applies—an act by a body established for religious purposes if the act is— (i) in accordance with the doctrine of the religion concerned; and (ii) necessary to avoid offending the religious sensitivities of people of the religion. (2) An exemption under subsection (1)(d) does not apply in the work or work-related area or in the education area. 110 Charities A person may include a discriminatory provision in a document that provides exclusively for charitable benefits, and may do an act that is required to give effect to such a provision. 111 Sport (1) A person may restrict participation in a competitive sporting activity— (a) to either males or females, if the restriction is reasonable having regard to the strength, stamina or physique requirements of the activity; or (b) to people who can effectively compete; or (c) to people of a specified age or age group; or (d) to people with a specific or general impairment. (2) Subsection (1)(a) does not apply to a sporting activity for children who are less than 12 years of age. (3) Subsection (1) does not stop participation in a competitive sporting activity being restricted on the basis of gender identity, if the restriction is reasonable having regard to the strength, stamina or physique requirements of the activity. (4) In this section— competitive sporting activity does not include— (a) the coaching of people engaged in a sporting activity; or (b) the umpiring or refereeing of a sporting activity; or (c) the administration of a sporting activity; or (d) a sporting activity prescribed by regulation. 112 Legal incapacity A person may discriminate against another person because the other person is subject to a legal incapacity if the incapacity is relevant to the transaction in which they are involved. Example— It is not unlawful for a person to refuse to enter into a contract with a minor, or a person who has impaired capacity for the contract within the meaning of the Guardianship and Administration Act 2000, if the contract can not be legally enforced. 113 Tribunal (1) The tribunal, on application by— (a) a person, on the person's own behalf, or on behalf of the person and another person or other people; or (b) 2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or (c) a person or people included in a class of people on behalf of the people in that class; may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act. Note— See also section 174C in relation to the tribunal's powers for deciding the application. (2) Before deciding an application, the tribunal must— (a) give the commissioner a copy of the application and a copy of the material filed in support of the application; and (b) have regard to any submission made by the commissioner on the application, including a submission on the process for considering the application. (3) Matters the commissioner may make a submission on in relation to the process for considering an application include, but are not limited to, the following— (a) whether the application should be considered by way of public hearing; (b) identification of persons who may be affected by a decision to grant the application; (c) whether the public should be consulted; (d) how consultation with identified persons or the public should be conducted. (