South Australia: Equal Opportunity Act 1984 (SA)

South Australia Equal Opportunity Act 1984 An Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, race, disability, age or various other grounds; to facilitate the participation of citizens in the economic and social life of the community; and to deal with other related matters. Contents Part 1—Preliminary 1 Short title 5 Interpretation 6 Interpretative provisions 7 Crown is bound Part 2—Commissioner Division 1—Commissioner 8 The Commissioner 9 Staff 10 Administration of Act and Ministerial direction 11 Functions of Commissioner 14 Annual report by Commissioner 15 Power of Commissioner to delegate Part 3—Prohibition of discrimination on ground of sex, sexual orientation or gender identity Division 1—Discrimination to which Part 3 applies 29 Criteria for discrimination on ground of sex, gender identity, sexual orientation or intersex status Division 2—Discrimination against workers 30 Discrimination against applicants and employees 31 Discrimination against agents and independent contractors 32 Discrimination against contract workers 33 Discrimination within partnerships 34 Exemptions Division 3—Discrimination by other bodies 35 Discrimination by associations 36 Discrimination by qualifying bodies Division 4—Discrimination in education 37 Discrimination by educational authorities Division 5—Discrimination in relation to land, goods, services and accommodation 38 Discrimination by person disposing of an interest in land 39 Discrimination in provision of goods and services 40 Discrimination in relation to accommodation Division 7—General exemptions from Part 3 45 Charities 47 Measures intended to achieve equality 48 Sport 49 Insurance etc 50 Religious bodies Part 4—Prohibition of discrimination on ground of race Division 1—Discrimination to which Part 4 applies 51 Criteria for establishing discrimination on ground of race Division 2—Discrimination against workers 52 Discrimination against applicants and employees 53 Discrimination against agents and independent contractors 54 Discrimination against contract workers 55 Discrimination within partnerships 56 Exemptions Division 3—Discrimination by other bodies 57 Discrimination by associations on ground of race 58 Discrimination by qualifying bodies Division 4—Discrimination in education 59 Discrimination by educational authorities Division 5—Discrimination in relation to land, goods, services and accommodation 60 Discrimination by person disposing of an interest in land 61 Discrimination in provision of goods and services 62 Discrimination in relation to accommodation Division 6—Discrimination in relation to superannuation 63 Superannuation schemes and provident funds Division 7—General exemptions from Part 4 64 Charities 65 Act does not apply to projects for benefit of persons of a particular race Part 5—Prohibition of discrimination on ground of disability Division 1—Discrimination to which Part 5 applies 66 Criteria for establishing discrimination on ground of disability Division 2—Discrimination against workers 67 Discrimination against applicants and employees 68 Discrimination against agents and independent contractors 69 Discrimination against contract workers 70 Discrimination within partnerships 71 Exemptions Division 3—Discrimination by other bodies 72 Discrimination by associations 73 Discrimination by qualifying bodies Division 4—Discrimination in education 74 Discrimination by educational authorities Division 5—Discrimination in relation to land, goods, services and accommodation 75 Discrimination by person disposing of interest in land 76 Discrimination in provision of goods and services 77 Discrimination in relation to accommodation Division 6—Discrimination in relation to superannuation 78 Discrimination in relation to superannuation Division 7—General exemptions from Part 5 79 Exemption in relation to remuneration 79A Exemption in relation to infectious diseases 80 Exemption for charities 81 Exemption in relation to sporting activities 82 Exemption for projects for benefit of persons with particular disability 84 Exemption for unjustifiable hardship 85 Exemption in relation to insurance Part 5A—Prohibition of discrimination on ground of age Division 1—Discrimination to which Part 5A applies 85A Criteria for establishing discrimination on ground of age Division 2—Discrimination against workers 85B Discrimination against applicants and employees 85C Discrimination against agents and independent contractors 85D Discrimination against contract workers 85E Discrimination within partnerships 85EA No compulsory retiring age 85F Exemptions Division 3—Discrimination by other bodies 85G Discrimination by associations on ground of age 85H Discrimination by qualifying bodies Division 4—Discrimination in education 85I Discrimination by educational authorities Division 5—Discrimination in relation to land, goods, services and accommodation 85J Discrimination by person disposing of an interest in land 85K Discrimination in provision of goods and services 85L Discrimination in relation to accommodation Division 6—General exemptions from Part 5A 85M Legal capacity of children 85N Charities 85O Testamentary dispositions or gifts 85P Projects for the benefit of persons of a particular age group 85Q Sport 85R Insurance etc Part 5B—Prohibition of discrimination on other grounds Division 1—Discrimination to which Part 5B applies 85T Criteria for establishing discrimination on other grounds Division 2—Discrimination against workers 85U Application of Division 85V Discrimination against applicants and employees 85W Discrimination against agents and independent contractors 85X Discrimination against contract workers 85Y Discrimination within partnerships 85Z Exemptions Division 3—Discrimination by other bodies 85ZA Application of Division 85ZB Discrimination by associations 85ZC Discrimination by qualifying bodies Division 4—Discrimination in education 85ZD Application of Division 85ZE Discrimination by educational authorities Division 5—Discrimination in relation to land, goods, services and accommodation 85ZF Discrimination by person disposing of interest in land 85ZG Discrimination in provision of goods and services 85ZH Discrimination in relation to accommodation Division 6—General exemptions from Part 5B 85ZI Charities 85ZJ Rights in connection with pregnancy 85ZK Measures intended to achieve equality 85ZL Exemption relating to identity of spouse or domestic partner 85ZM Religious bodies 85ZN Exemption relating to religious appearance or dress 85ZO Exemption relating to domestic abuse Part 6—Other unlawful acts 86 Victimisation is unlawful 87 Sexual harassment 87A Sharing accommodation with child 87B Student breast feeding infant 88 Assistance animals 88A Therapeutic animals 89 Notification to be given of proposed discrimination based on actuarial or statistical data 90 Aiding unlawful acts 91 Civil liability of employers and principals Part 6A—Practice guidelines 91A Commissioner may issue practice guidelines 91B Effect of practice guidelines Part 7—Grant of exemptions 92 Tribunal may grant exemptions Part 8—Enforcement Division 1—Proceedings before Commissioner and Tribunal 93 Making of complaints 93AA Manner of dealing with complaints of sexual harassment by judicial officers and members of Parliament 93A Institution of inquiries 94 Investigation of complaints or matters referred to Commissioner 95 Conciliation of complaints lodged with Commissioner 95A Commissioner may decline complaints in certain circumstances 95B Referral of complaints to Tribunal 95C Assistance to parties before Tribunal 95D Referral of matters to Tribunal 96 Power of Tribunal to make certain orders 96A Limitation on publicity relating to child Division 2—Reviews and appeals 96B Review of refusal to extend time 96C No internal review by Tribunal 97 Reasons for decision or order 98 Representation 98A Appeals 98B Transfer of proceedings 98C No application for review Part 9—Miscellaneous 99 No further sanctions for breach of Act 100 Proceedings under Fair Work Act 1994 102 Offences against Commissioner 103 Discriminatory advertisements 104 Service of documents 106 Regulations Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Equal Opportunity Act 1984. 5—Interpretation (1) In this Act, unless the contrary intention appears— act includes an omission; assistance animal means— (a) a dog that is an accredited assistance dog under the Dog and Cat Management Act 1995; or (b) an animal of a class prescribed by regulation; business includes a business that is not carried on for profit; caring responsibilities—see subsection (3); child means a person who is under the age of 18 years; close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their sexual orientation or gender identity) who live together as a couple on a genuine domestic basis, but does not include— (a) the relationship between a legally married couple; or (b) a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind; Note— Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them. Commissioner means the person for the time being holding or acting in the office of Commissioner for Equal Opportunity under this Act; council means a council constituted under the Local Government Act 1999; court includes a tribunal; detriment includes humiliation or denigration; disability, in relation to a person, means— (a) total or partial loss of the person's bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person's body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; domestic abuse has the same meaning as in the Intervention Orders (Prevention of Abuse) Act 2009; domestic partner means— (a) a person who is in a registered relationship; or (b) a person who lives in a close personal relationship; educational authority means the person or body administering a school, college, university or other institution at which education or training is provided; employee— (a) includes the holder of a public or statutory office (not being a judicial or magisterial office); and (b) includes an unpaid worker; employer— (a) in relation to the holder of a public or statutory office—means the Crown; (b) in relation to an unpaid worker—means an organisation for which the unpaid worker performs services; employment includes unpaid work; employment agency means a person who, for fee or reward, introduces persons seeking work to persons seeking to employ or engage persons to perform work; introduction agency means a person who carries on a business of introducing persons who are seeking companionship or social contact; judicial officer means a member of a court or tribunal; marital or domestic partnership status means the status or condition of— (a) being single; or (b) being married; or (c) being married but living separately and apart from one's spouse; or (d) being divorced; or (e) being widowed; or (f) being a domestic partner; medical practitioner means a person who is registered in this State as a medical practitioner; near relative of a person means spouse, domestic partner, parent, child, grandparent, grandchild, brother or sister; parliamentary proceedings means proceedings before— (a) the House of Assembly or the Legislative Council; or (b) a committee of either House or of both Houses; potential pregnancy of a woman means that the woman is likely, or is perceived as being likely, to become pregnant; race of a person means the nationality (current, past or proposed), country of origin, colour or ancestry of the person; registered industrial association means an industrial association or organisation registered under a law of the State or the Commonwealth; registered relationship means a relationship that is registered under the Relationships Register Act 2016, and includes a corresponding law registered relationship under that Act; Registrar means the person holding or acting in the office of Registrar of the Tribunal under this Act; SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014; secondary education institution means an institution at which secondary education is provided; services to which this Act applies means— (a) access to or use of a place or facilities that members of the public are permitted to enter or use; or (b) services provided by an employment agency; or (c) services provided in the course of a banking business (within the meaning of the Banking Act 1959 of the Commonwealth), the provision of credit, or insurance; or (d) the provision of a scholarship, prize or award; or (e) entertainment, recreation or refreshment; or (f) services provided by an introduction agency; or (g) the provision of coaching or umpiring in a sport; or (h) services connected with transportation or travel; or (i) services of a profession or trade; or (j) services provided by a Government department, instrumentality or agency or a council; spouse—a person is the spouse of another if they are legally married; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; unpaid worker means a person who performs work for an employer for no remuneration. (2) After the commencement of this subsection, the provision of assisted insemination or assisted reproductive treatment (both within the meaning of the Assisted Reproductive Treatment Act 1988) will be the provision of a service to which this Act applies; however, to avoid doubt, the provision of any such service before the commencement of this subsection is not (and will be taken never to have been) a service to which this Act or the repealed Sex Discrimination Act 1975 applied. (2a) Despite subsection (2), the refusal by a person who is a registered objector within the meaning of the Assisted Reproductive Treatment Act 1988 to provide assisted reproductive treatment to another on the basis of the other's sexual orientation or gender identity, or marital status, will not be taken to be refusal of a service to which this Act applies. (3) For the purposes of this Act— (a) a person has caring responsibilities if the person has responsibilities to care for or support— (i) a dependent child of the person; or (ii) any other immediate family member of the person who is in need of care and support; and (b) an Aboriginal or Torres Strait Islander person also has caring responsibilities if the person has responsibilities to care for or support any person to whom that person is held to be related according to Aboriginal kinship rules or Torres Strait Islander kinship rules, as the case may require. (4) In subsection (3)— child includes an adopted child, a step-child or an ex-nuptial child; dependent child of a person means a child who is wholly or substantially dependent on the person; immediate family member of a person includes— (a) the person's spouse or domestic partner or former spouse or former domestic partner; and (b) an adult child, parent, grandparent, grandchild, or sibling of the person or of the spouse or domestic partner of the person. 6—Interpretative provisions (1) For the purposes of this Act, the holder of a public or statutory office will, in carrying out official duties, be taken to be acting in the course of employment. (2) For the purposes of this Act, a person acts on a particular ground referred to in this Act if the person in fact acts on a number of grounds, one of which is the ground so referred to, and that ground is a substantial reason for the act. (3) For the purposes of this Act, a person (the discriminator) treats another unfavourably on the basis of a particular attribute or circumstance if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats, or would treat, a person who does not have that attribute or is not affected by that circumstance. (4) For the purposes of this Act, an act will be regarded as a discriminatory act despite the fact that the person alleged to have committed the act did so on the basis of a mistaken assumption (for example, a mistaken assumption that another person was of a particular sexual orientation or gender identity or a particular race). 7—Crown is bound This Act binds the Crown. Part 2—Commissioner Division 1—Commissioner 8—The Commissioner (1) There will be a Commissioner for Equal Opportunity. (2) The Commissioner will be appointed for a term of five years and will, at the expiration of a term of appointment, be eligible for reappointment. (3) The Commissioner is not a Public Service employee. (4) The terms and conditions of the Commissioner's appointment will be fixed by the Governor on the recommendation of the Commissioner for Public Employment. (5) A Public Service employee may be appointed to act temporarily as the Commissioner. 9—Staff (1) The Commissioner will have such staff as is necessary for the administration of this Act. (2) The Commissioner's staff will consist of Public Service employees. 10—Administration of Act and Ministerial direction (1) The Commissioner is responsible to the Minister for the general administration of this Act and, in carrying out that function, is subject to the general control and direction of the Minister. (2) However, the Minister— (a) must not give a direction in relation to the manner in which action should be taken on a particular complaint; and (b) must not seek information tending to identify a party to proceedings under this Act. 11—Functions of Commissioner (1) The Commissioner must foster and encourage amongst members of the public informed and unprejudiced attitudes with a view to eliminating discrimination on the grounds to which this Act applies. (2) The Commissioner may institute, promote or assist in research, the collection of data and the dissemination of information relating to discrimination on the grounds to which this Act applies. (3) The Commissioner may make recommendations to the Minister as to reforms, whether of a legislative nature or otherwise, that the Commissioner believes will further the objects of this Act. 14—Annual report by Commissioner (1) The Commissioner must, not later than 30 September in each year, report to the Minister on— (a) the operation and administration of this Act; and (b) the work undertaken by the Commissioner under section 11, during the previous financial year. (2) The Minister must cause a copy of a report furnished under subsection (1) to be laid before each House of Parliament within 12 sitting days of receipt of the report if Parliament is then in session, but if Parliament is not then in session, within 12 days of the commencement of the next session of Parliament. 15—Power of Commissioner to delegate (1) The Commissioner may, with the approval of the Minister, delegate powers and functions under this Act to a Public Service employee. (2) A delegation under this section is revocable at will and does not derogate from the power of the Commissioner to act personally in a matter. Part 3—Prohibition of discrimination on ground of sex, sexual orientation or gender identity Division 1—Discrimination to which Part 3 applies 29—Criteria for discrimination on ground of sex, gender identity, sexual orientation or intersex status (2) For the purposes of this Act, a person discriminates on the ground of sex— (a) if the person treats another unfavourably because of the other's sex; or (b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and— (i) the nature of the requirement is such that a substantially higher proportion of persons of the opposite sex complies, or is able to comply, with the requirement than of those of the other's sex; and (ii) the requirement is not reasonable in the circumstances of the case; or (c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's sex, or on the basis of a presumed characteristic that is generally imputed to persons of that sex; or (d) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs. (2a) For the purposes of this Act, a person discriminates on the ground of gender identity— (a) if the person treats another unfavourably because the other is or has been a person of a particular gender identity or because of the other's past sex; or (b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and— (i) the nature of the requirement is such that a substantially higher proportion of persons who are not persons of a particular gender identity comply, or are able to comply, with the requirement than of those of the particular gender identity; and (ii) the requirement is not reasonable in the circumstances of the case; or (c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of a particular gender identity, or on the basis of a presumed characteristic that is generally imputed to persons of a particular gender identity; or (d) if the person requires a person of a particular gender identity to assume characteristics of a sex with which the person does not identify; or (e) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs. (3) For the purposes of this Act, a person discriminates on the ground of sexual orientation— (a) if the person treats another unfavourably because of the other's sexual orientation or past sexual orientation; or (b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and— (i) the nature of the requirement is such that a substantially higher proportion of persons of a different sexual orientation complies, or is able to comply, with the requirement than of those of the other's sexual orientation; and (ii) the requirement is not reasonable in the circumstances of the case; or (c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's sexual orientation, or presumed sexual orientation, or on the basis of a presumed characteristic that is generally imputed to persons of that sexual orientation; or (d) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs. (4) For the purposes of this Act, a person discriminates on the ground of intersex status— (a) if the person treats another unfavourably because of the other's intersex status or past intersex status; or (b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and— (i) the nature of the requirement is such that a substantially higher proportion of persons who are not of intersex status complies, or is able to comply, with the requirement than of those of intersex status; and (ii) the requirement is not reasonable in the circumstances of the case; or (c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of intersex status, or presumed intersex status, or on the basis of a presumed characteristic that is generally imputed to persons of intersex status; or (d) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs. Division 2—Discrimination against workers 30—Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of sex, sexual orientation, gender identity or intersex status— (a) in determining, or in the course of determining, who should be offered employment; or (b) in the terms or conditions on which employment is offered. (2) It is unlawful for an employer to discriminate against an employee on the ground of sex, sexual orientation, gender identity or intersex status— (a) in the terms or conditions of employment; or (b) by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to other detriment. 31—Discrimination against agents and independent contractors (1) This section applies to a principal for whom work is done— (a) by agents remunerated by commission; or (b) by independent contractors engaged under a contract for services. (2) It is unlawful for the principal to discriminate against a person on the ground of sex, sexual orientation, gender identity or intersex status— (a) in determining, or in the course of determining, who should be engaged as an agent or independent contractor; or (b) in the terms or conditions on which such an engagement is offered. (3) It is unlawful for the principal to discriminate against an agent or independent contractor on the ground of sex, sexual orientation, gender identity or intersex status— (a) in the terms or conditions on which the agent or independent contractor is engaged; or (b) by denying or limiting access to opportunities for promotion, transfer or training or other benefits connected with the agent's or independent contractor's position; or (c) by terminating the engagement; or (d) by subjecting the agent or independent contractor to other detriment. 32—Discrimination against contract workers (1) This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal. (2) It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker on the ground of sex, sexual orientation, gender identity or intersex status. (3) It is unlawful for the principal to discriminate against a contract worker on the ground of sex, sexual orientation, gender identity or intersex status— (a) in the terms or conditions on which the contract worker is allowed to work; or (b) by not allowing the contract worker to work; or (c) by denying or limiting access to a benefit connected with the employment or position concerned; or (d) by subjecting the contract worker to other detriment. 33—Discrimination within partnerships (1) It is unlawful for a firm, or a person promoting the formation of a firm, to discriminate against a person on the ground of sex, sexual orientation, gender identity or intersex status in determining, or in the course of determining, who should be offered a position as partner in the firm. (3) It is unlawful for a firm, or a person promoting the formation of a firm, to discriminate against a person on the ground of sex, sexual orientation, gender identity or intersex status in the terms or conditions on which that person is offered a position as partner in the firm. (4) It is unlawful for a firm to discriminate against a partner on the ground of sex, sexual orientation, gender identity or intersex status— (a) in the terms or conditions of membership of the firm; or (b) by denying or limiting access to a benefit arising from membership of the firm; or (c) by expelling the partner from the firm; or (d) by subjecting the partner to other detriment. 34—Exemptions (1) This Division does not apply in relation to— (a) an employer employing a person for purposes not connected with a business carried on by the employer; or (b) a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal. (2) This Division does not apply to discrimination on the ground of sex, sexual orientation, gender identity or intersex status in relation to employment or engagement for which it is a genuine occupational requirement that a person be a person of a particular sex, sexual orientation, gender identity or intersex status. (3) This Division does not apply to discrimination on the ground of sexual orientation, gender identity or intersex status in relation to employment or engagement for the purposes of an educational institution if— (a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and (b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and (c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and (d) a copy of the policy is provided on request, free of charge— (i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and (ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and (iii) to other members of the public. (4) This Division does not apply to discrimination on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement. Division 3—Discrimination by other bodies 35—Discrimination by associations (1) It is unlawful for an association to discriminate— (a) against an applicant for membership on the ground of sex, sexual orientation, gender identity or intersex status— (i) by refusing or failing to admit the applicant to membership, or to a particular class of membership, of the association; or (ii) in the terms on which the applicant is, or may be, admitted to membership, or a particular class of membership; or (b) against a member of the association on the ground of sex, sexual orientation, gender identity or intersex status— (i) by refusing or failing to provide a particular service or benefit to that member; or (ii) in the terms on which a particular service or benefit is provided to that member; or (iii) by expelling that member from the association or subjecting him or her to other detriment. (2) This section does not apply to discrimination on the ground of sex in relation to the use or enjoyment of a service or benefit provided by an association— (a) if it is not practicable for the service or benefit to be used or enjoyed simultaneously by persons of different sex, but the same, or an equivalent, service or benefit is provided for the use or enjoyment of persons of different sex separately from each other or at different times; or (b) if it is not practicable for the service or benefit to be used or enjoyed to the same extent by persons of different sex, but persons of different sex are entitled to a fair and reasonable proportion of the use or enjoyment of the service or benefit. (2a) This section does not render unlawful an association established for— (a) persons of a particular sex; or (b) persons of a particular gender identity; or (c) persons of a particular sexual orientation (other than heterosexuality); or (d) persons of intersex status, and, consequently, such an association may discriminate against an applicant for membership so as to exclude from membership persons other than those for whom the association is established. (2b) This section does not apply to discrimination on the ground of sexual orientation, gender identity or intersex status if the association is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion. (3) Without limiting the generality of this section, an association discriminates against a member of a particular class in the association if, on application by that member to join a different class of membership in the association, the association accords the member a lower order of precedence on the list of applicants for that class of membership than that accorded to an applicant who is not a member of the association. 36—Discrimination by qualifying bodies It is unlawful for an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession, or the carrying on or engaging in of a trade or occupation, to discriminate against a person on the ground of sex, sexual orientation, gender identity or intersex status— (a) by refusing or failing to confer or renew that authorisation or qualification; or (b) in the terms or conditions on which it confers or renews the authorisation or qualification; or (c) by withdrawing the authorisation or qualification, or varying the terms or conditions on which it is held. Division 4—Discrimination in education 37—Discrimination by educational authorities (1) It is unlawful for an educational authority to discriminate against a person on the ground of sex, sexual orientation, gender identity or intersex status— (a) by refusing or failing to accept an application for admission as a student; or (b) in the terms or conditions on which it offers to admit the person as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of sex, sexual orientation, gender identity or intersex status— (a) in the terms or conditions on which it provides the student with training or education; or (b) by denying or limiting access to a benefit provided by the authority; or (c) by expelling the student; or (d) by subjecting the student to other detriment. (3) This section does not apply to discrimination on the ground of sex in respect of— (a) admission to a school, college, university or institution established wholly or mainly for students of the one sex; or (b) the admission of a person to a school, college or institution (not being a tertiary level school, college or institution) if the level of education or training sought by the person is provided only for students of the one sex; or (c) the provision at a school, college, university or institution of boarding facilities for students of the one sex. Division 5—Discrimination in relation to land, goods, services and accommodation 38—Discrimination by person disposing of an interest in land (1) It is unlawful for a person to discriminate against another on the ground of sex, sexual orientation, gender identity or intersex status— (a) by refusing or failing to dispose of an interest in land to the other person; or (b) in the terms or conditions on which an interest in land is offered to the other person. (2) This section does not apply to the disposal of an interest in land by way of, or pursuant to, a testamentary disposition or gift. 39—Discrimination in provision of goods and services (1) It is unlawful for a person who offers or provides— (a) goods; or (b) services to which this Act applies, (whether for payment or not) to discriminate against another on the ground of sex, sexual orientation, gender identity or intersex status— (c) by refusing or failing to supply the goods or perform the services; or (d) in the terms or conditions on which or the manner in which the goods are supplied or the services are performed. (2) If the nature of a skill varies according to whether it is exercised in relation to men or to women, a person does not contravene this section by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice. 40—Discrimination in relation to accommodation (1) It is unlawful for a person to discriminate against another on the ground of sex, sexual orientation, gender identity or intersex status— (a) in the terms or conditions on which accommodation is offered; or (b) by refusing an application for accommodation; or (c) by deferring such an application or according the applicant a lower order of precedence on a list of applicants for that accommodation. (2) It is unlawful for a person to discriminate against a person for whom accommodation has been provided on the ground of sex, sexual orientation, gender identity or intersex status— (a) in the terms or conditions on which accommodation is provided; or (b) by denying or limiting access to a benefit connected with the accommodation; or (c) by evicting the person; or (d) by subjecting the person to other detriment. (3) This section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation. (4) This section does not apply to discrimination on the ground of sex in relation to the provision of accommodation by an organisation that does not seek to secure a pecuniary profit for its members, if the accommodation is provided only for persons of the one sex. Division 7—General exemptions from Part 3 45—Charities This Part does not— (a) affect a provision in a charitable instrument for conferring benefits wholly or mainly on— (i) persons of the one sex; or (ia) persons of a particular gender identity; or (ii) persons of a particular sexual orientation; or (iii) persons of intersex status; or (b) render unlawful an act done to give effect to such a provision. 47—Measures intended to achieve equality This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of a particular sex, sexual orientation, gender identity or intersex status, have equal opportunities with, respectively, all other persons, in circumstances to which this Part applies. 48—Sport This Part does not render unlawful the exclusion of persons from participation in a competitive sporting activity on the ground of sex in the following circumstances: (a) if the sporting activity is one in which the strength, stamina or physique of the competitor is relevant to the outcome of the competition; (b) if the exclusion is genuinely intended to facilitate or increase the participation of persons, or a class of persons, of a particular sex in the sporting activity and— (i) it is unlikely that those persons will participate, or that there will be an increase in participation by those persons, in the sporting activity if the exclusion is not made (having regard to all of the circumstances of the persons or class of persons); and (ii) there are reasonable opportunities for excluded persons to participate in the sporting activity in another competition; (c) if— (i) the exclusion is reasonably required to enable participants in the sporting activity to advance to competitions at a level higher than that in which the exclusion is to occur (being a requirement that is due to the structure of, or restrictions in, the higher level competitions); and (ii) there are reasonable opportunities for excluded persons to participate in the sporting activity in another competition; (d) in such other circumstances as may be prescribed by the regulations. 49—Insurance etc This Part does not render unlawful discrimination on the ground of sex in the terms on which an annuity, life assurance, accident insurance or other form of insurance is offered or may be obtained, if the discrimination— (a) is based on actuarial or statistical data from a source on which it is reasonable to rely; and (b) is reasonable having regard to that data. 50—Religious bodies (1) This Part does not render unlawful discrimination 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 persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or (ba) the administration of a body established for religious purposes in accordance with the precepts of that religion; or (c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion. Part 4—Prohibition of discrimination on ground of race Division 1—Discrimination to which Part 4 applies 51—Criteria for establishing discrimination on ground of race For the purposes of this Act, a person discriminates on the ground of race— (a) if he or she treats another unfavourably by reason of the other's race; or (b) if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and— (i) the nature of the requirement is such that a substantially higher proportion of persons of a different race complies, or is able to comply, with the requirement than of those of the other's race; and (ii) the requirement is not reasonable in the circumstances of the case; or (c) if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's race, or on the basis of a presumed characteristic that is generally imputed to persons of that race; or (d) if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs. Division 2—Discrimination against workers 52—Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of race— (a) in determining, or in the course of determining, who should be offered employment; or (b) in the terms or conditions on which employment is offered. (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; or (b) by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or (c) by dismissing the employee; or (d) by segregating the employee from persons of other races; or (e) by subjecting the employee to other detriment. 53—Discrimination against agents and independent contractors (1) This section applies to a principal for whom work is done— (a) by agents remunerated by commission; or (b) by independent contractors engaged under a contract for services. (2) It is unlawful for the principal to discriminate against a person on the ground of race— (a) in determining, or in the course of determining, who should be engaged as an agent or independent contractor; or (b) in the terms or conditions on which such an engagement is offered. (3) It is unlawful for the principal to discriminate against an agent or independent contractor on the ground of race— (a) in the terms or conditions on which the agent or independent contractor is engaged; or (b) by denying or limiting access to opportunities for promotion, transfer or training or other benefits connected with the agent's or independent contractor's position; or (c) by terminating the engagement; or (d) by subjecting the agent or independent contractor to other detriment. 54—Discrimination against contract workers (1) This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal. (2) It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker on the ground of race. (3) It is unlawful for the principal to discriminate against a contract worker on the ground of race— (a) in the terms or conditions on which the contract worker is allowed to work; or (b) by not allowing the contract worker to work; or (c) by denying or limiting access to a benefit connected with the employment or position concerned; or (d) by subjecting the contract worker to other detriment. 55—Discrimination within partnerships (1) It is unlawful for a firm, or a person promoting the formation of a firm, to discriminate against a person on the ground of race— (a) in determining, or in the course of determining, who should be offered a position as partner in the firm; or (b) in the terms or conditions on which that person is offered a position as partner in the firm. (2) It is unlawful for a firm to discriminate against a partner on the ground of race— (a) in the terms or conditions of membership of the firm; or (b) by denying or limiting access to a benefit arising from membership of the firm; or (c) by expelling the partner from the firm; or (d) by subjecting the partner to other detriment. 56—Exemptions (1) This Division does not apply in relation to— (a) an employer employing a person for purposes not connected with a business carried on by the employer; or (b) a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal. (2) This Division does not apply to discrimination on the ground of race in relation to employment or engagement for which it is a genuine occupational requirement that a person be of a particular race. Division 3—Discrimination by other bodies 57—Discrimination by associations on ground of race (1) It is unlawful for an association to discriminate— (a) against an applicant for membership on the ground of race— (i) by refusing or failing to admit the applicant to membership, or to a particular class of membership, of the association; or (ii) in the terms on which the applicant is, or may be, admitted to membership, or to a particular class of membership; or (b) against a member of the association on the ground of race— (i) by refusing or failing to provide a particular service or benefit to that member; or (ii) in the terms on which a particular service or benefit is provided to that member; or (iii) by expelling that member from the association or subjecting him or her to other detriment. (2) This section does not apply to a club established principally for the purpose of promoting social intercourse between the members of a particular racial or ethnic group. 58—Discrimination by qualifying bodies (1) It is unlawful for an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession, or the carrying on or engaging in of a trade or occupation, to discriminate against a person on the ground of race— (a) by refusing or failing to confer or renew that authorisation or qualification; or (b) in the terms or conditions on which it confers the authorisation or qualification; or (c) by withdrawing the authorisation or qualification, or varying the terms or conditions on which it is held. (2) Without limiting the generality of subsection (1), an authority or body discriminates against a person on the ground of race if the authority or body— (a) fails to take reasonable steps to inform itself sufficiently on the adequacy or appropriateness of qualifications or experience gained outside of Australia by the person; and (b) in consequence of that failure, refuses to confer on the person an authorisation or qualification for which the person has applied. Division 4—Discrimination in education 59—Discrimination by educational authorities (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 an application for admission as a student; or (b) in the terms or conditions on which it offers 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) in the terms or conditions on which it provides the student with education or training; or (b) by denying or limiting access to a benefit provided by the authority; or (c) by expelling the student; or (d) by subjecting the student to other detriment. Division 5—Discrimination in relation to land, goods, services and accommodation 60—Discrimination by person disposing of an interest in land (1) It is unlawful for a person to discriminate against another on the ground of race— (a) by refusing or failing to dispose of an interest in land to the other person; or (b) in the terms or conditions on which an interest in land is offered to the other person. (2) This section does not apply to the disposal of an interest in land by way of, or pursuant to, a testamentary disposition or gift. 61—Discrimination in provision of goods and services It is unlawful for a person who offers or provides— (a) goods; or (b) services to which this Act applies, (whether for payment or not) to discriminate against another on the ground of race— (c) by refusing or failing to supply the goods or perform the services; or (d) in the terms or conditions on which or the manner in which the goods are supplied or the services are performed. 62—Discrimination in relation to accommodation (1) It is unlawful for a person to discriminate against another on the ground of race— (a) in the terms or conditions on which accommodation is offered; or (b) by refusing an application for accommodation; or (c) by deferring such an application or according the applicant a lower order of precedence on a list of applicants for that accommodation. (2) It is unlawful for a person to discriminate against a person for whom accommodation has been provided on the ground of race— (a) in the terms or conditions on which accommodation is provided; or (b) by denying or limiting access to a benefit connected with the accommodation; or (c) by evicting the person; or (d) by subjecting the person to other detriment. (2a) This section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation. Division 6—Discrimination in relation to superannuation 63—Superannuation schemes and provident funds (1) It is unlawful for a person who provides a superannuation scheme or provident fund to discriminate against a person on the ground of race— (a) by providing a scheme or fund that discriminates or, if the other person were to become a member of the scheme or fund, would discriminate, or require or authorise discrimination, against the other person; or (b) in the manner in which the scheme or fund is administered. (2) Subject to any order of the Tribunal or a court in proceedings under this Act, nothing in this section has the effect of rendering a superannuation scheme or provident fund, or a provision of such a scheme or fund, void. Division 7—General exemptions from Part 4 64—Charities This Part does not— (a) affect a provision in a charitable instrument for conferring benefits wholly or mainly on persons of a particular race; or (b) render unlawful an act done to give effect to such a provision. 65—Act does not apply to projects for benefit of persons of a particular race This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons of a particular race. Part 5—Prohibition of discrimination on ground of disability Division 1—Discrimination to which Part 5 applies 66—Criteria for establishing discrimination on ground of disability For the purposes of this Act, a person discriminates on the ground of disability— (a) if he or she treats another unfavourably because of the other's disability, or a past disability or a disability that may exist in the future; or (b) if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and— (i) the nature of the requirement is such that a substantially higher proportion of persons who do not have such a disability complies, or is able to comply, with the requirement than of those persons who have such a disability; and (ii) the requirement is not reasonable in the circumstances of the case; or (c) if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons who have such a disability, or on the basis of a presumed characteristic that is generally imputed to persons who have such a disability; or (ca) if he or she— (i) fails to provide a safe and proper means of access to, or use of, a place or facilities for a person who requires special means of access to, or use of, the place or facilities as a consequence of the person's disability; or (ii) treats another unfavourably because the other requires special means of access to, or use of, a place or facilities as a consequence of the other's disability, to the extent that he or she is able to effect the provision of access or use; or (d) if, in circumstances where it is unreasonable to do so— (i) he or she fails to provide special assistance or equipment required by a person in consequence of the person's disability; or (ii) he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other's disability; or (e) if he or she treats a person with a disability unfavourably because the person possesses, or is accompanied by, an assistance animal, or because of a related matter (whether or not it is his or her normal practice to treat unfavourably a person who possesses, or is accompanied by, an animal of the same species as the assistance animal); or (f) if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs. Division 2—Discrimination against workers 67—Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of disability— (a) in determining, or in the course of determining, who should be offered employment; or (b) in the terms or conditions on which employment is offered. (2) It is unlawful for an employer to discriminate against an employee on the ground of disability— (a) in the terms or conditions of employment; or (b) by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to other detriment. 68—Discrimination against agents and independent contractors (1) This section applies to a principal for whom work is done— (a) by agents remunerated by commission; or (b) by independent contractors engaged under a contract for services. (2) It is unlawful for the principal to discriminate against a person on the ground of disability— (a) in determining, or in the course of determining, who should be engaged as an agent or independent contractor; or (b) in the terms or conditions on which such an engagement is offered. (3) It is unlawful for the principal to discriminate against an agent or independent contractor on the ground of disability— (a) in the terms or conditions on which the agent or independent contractor is engaged; or (b) by denying or limiting access to opportunities for promotion, transfer or training or other benefits connected with the agent's or independent contractor's position; or (c) by terminating the engagement; or (d) by subjecting the agent or independent contractor to other detriment. 69—Discrimination against contract workers (1) This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal. (2) It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker on the ground of disability. (3) It is unlawful for the principal to discriminate against a contract worker on the ground of disability— (a) in the terms or conditions on which the contract worker is allowed to work; or (b) by not allowing the contract worker to work; or (c) by denying or limiting access to a benefit connected with the employment or position concerned; or (d) by subjecting the contract worker to other detriment. 70—Discrimination within partnerships (1) It is unlawful for a firm, or a person promoting the formation of a firm, to discriminate against a person on the ground of disability— (a) in determining, or in the course of determining, who should be offered a position as partner in the firm; or (b) in the terms or conditions on which that person is offered a position as partner in the firm. (2) It is unlawful for a firm to discriminate against a partner on the ground of disability— (a) in the terms or conditions of membership of the firm; or (b) by denying or limiting access to a benefit arising from membership of the firm; or (c) by expelling the partner from the firm; or (d) by subjecting the partner to other detriment. 71—Exemptions (1) This Division does not apply in relation to— (a) an employer employing a person for purposes not connected with a business carried on by the employer; or (b) a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal. (2) This Division does not apply to discrimination on the ground of disability in relation to employment or engagement if the person suffering from the disability is not, or would not be, able— (a) to perform adequately, and without endangering himself or herself or other persons, the work genuinely and reasonably required for the employment or position in question; or (b) to respond adequately to situations of emergency that should reasonably be anticipated in connection with the employment or position in question. Division 3—Discrimination by other bodies 72—Discrimination by associations (1) It is unlawful for an association to discriminate— (a) against an applicant for membership on the ground of disability— (i) by refusing or failing to admit the applicant to membership, or to a particular class of membership, of the association; or (ii) in the terms on which the applicant is, or may be, admitted to membership, or to a particular class of membership; or (b) against a member of the association on the ground of disability— (i) by refusing or failing to provide a particular service or benefit to that member; or (ii) in the terms on which a particular service or benefit is provided to that member; or (iii) by expelling that member from the association or subjecting him or her to other detriment. 73—Discrimination by qualifying bodies (1) It is unlawful for an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession, or the carrying on or engaging in of a trade or occupation, to discriminate against a person on the ground of disability— (a) by refusing or failing to confer or renew that authorisation or qualification; or (b) in the terms or conditions on which it confers the authorisation or qualification; or (c) by withdrawing the authorisation or qualification, or varying the terms or conditions on which it is held. (2) This section does not apply to discrimination against a person on the ground of disability where, in consequence of that disability, the person is not, or would not be, able to practise the profession, or carry on or engage in the trade or occupation, adequately or safely. Division 4—Discrimination in education 74—Discrimination by educational authorities (1) It is unlawful for an educational authority to discriminate against a person on the ground of disability— (a) by refusing or failing to accept an application for admission as a student; or (b) in the terms or conditions on which it offers to admit the person as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of disability— (a) in the terms or conditions on which it provides the student with education or training; or (b) by denying or limiting access to a benefit provided by the authority; or (c) by expelling the student; or (d) by subjecting the student to other detriment. (3) This section does not apply to discrimination on the ground of disability in respect of admission to a school, college or institution established wholly or mainly for students who have a particular disability. Division 5—Discrimination in relation to land, goods, services and accommodation 75—Discrimination by person disposing of interest in land (1) It is unlawful for a person to discriminate against another on the ground of disability— (a) by refusing or failing to dispose of an interest in land to the other person; or (b) in the terms or conditions on which an interest in land is offered to the other person. (2) This section does not apply to the disposal of an interest in land by way of, or pursuant to, a testamentary disposition or gift. 76—Discrimination in provision of goods and services (1) It is unlawful for a person who offers or provides— (a) goods; or (b) services to which this Act applies, (whether for payment or not) to discriminate against another on the ground of disability— (c) by refusing or failing to supply the goods or perform the services; or (d) in the terms or conditions on which or the manner in which the goods are supplied or the services are performed. (1a) For the purposes of the application of subsection (1) to services comprised of access to or use of a place or facilities that members of the public are permitted to enter or use (see paragraph (a) of the definition of services to which this Act applies), the owner of the place or facilities and the occupier of the place or the place where the facilities are provided will each be taken to offer or provide the services. (2) If the nature of a skill varies according to whether it is exercised in relation to persons who have a particular disability or to those who do not have such a disability, a person does not contravene subsection (1) by exercising the skill in relation to only those persons who have a particular disability, or only those who do not have such a disability, in accordance with the person's normal practice. (3) This section does not apply to discrimination against a person on the ground of disability in relation to the performance of a service if, in consequence of the disability, that person requires the service to be performed in a special manner and the person performing the service— (a) cannot reasonably be expected to perform the service in that manner; or (b) cannot reasonably be expected to perform the service in that manner except on more onerous terms than would otherwise apply. 77—Discrimination in relation to accommodation (1) It is unlawful for a pe