Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to prohibit discrimination on the ground of sexuality, transgender identity or intersex status, and for related purposes
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Introduced Senate 25 Nov 2003

2002‑2003

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Sexuality and Gender Identity Discrimination Bill 2003

 

No.      , 2003

 

(Senator Greig)

 

 

 

A Bill for an Act to prohibit discrimination on the ground of sexuality, transgender identity or intersex status, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                               2

1............ Short title............................................................................................ 2

2............ Commencement.................................................................................. 2

3............ Object................................................................................................. 3

4............ Application of Act............................................................................. 3

5............ Definitions.......................................................................................... 4

6............ What is discrimination on the ground of sexuality, transgender identity or intersex status    10

7............ Operation of State and Territory laws............................................. 12

8............ Act does not prevent action to stop unlawful behaviour................. 13

9............ Extent to which Act binds the Crown.............................................. 13

Part 2—Prohibition of discrimination                                                                         14

Division 1—Discrimination in work                                                                    14

10.......... Discrimination in employment......................................................... 14

11.......... Rights etc. of same sex couples under the laws of the Commonwealth.. 15

Division 2—Discrimination in other areas                                                      16

12.......... Discrimination in non‑employment areas......................................... 16

13.......... Application forms etc....................................................................... 16

14.......... Official documents etc...................................................................... 17

Division 3—Inciting hatred etc. on ground of sexuality, transgender identity or intersex status           18

15.......... Inciting hatred etc. on ground of sexuality, transgender identity or intersex status 18

Division 4—Special measures                                                                                19

16.......... Special measures............................................................................... 19

Division 5—Exemptions                                                                                           20

17.......... Religious bodies................................................................................ 20

18.......... Acts done under statutory authority................................................ 20

19.......... Superannuation and insurance.......................................................... 20

20.......... Commission may grant exemptions.................................................. 21

21.......... Review by Administrative Appeals Tribunal.................................. 23

22.......... Notice of exemptions to be published.............................................. 23

23.......... Effect of exemptions......................................................................... 23

Part 3—Lodgment and investigation of complaints of discrimination on the ground of sexuality, transgender identity or intersex status                                                                             24

24.......... Jurisdiction to handle complaints of discrimination arising under this Act             24

25.......... Additional functions of Human Rights and Equal Opportunity Commission        24

26.......... Additional functions of Sex Discrimination Commissioner.............. 25

27.......... Complaints....................................................................................... 26

Part 4—Offences                                                                                                                   27

28.......... Unlawful act not offence unless expressly so provided................... 27

29.......... Advertisements................................................................................. 27

30.......... Victimisation..................................................................................... 27

31.......... Offence to vilify on the ground of sexuality, transgender identity or intersex status              28

32.......... Obstruction etc................................................................................. 29

Part 5—Miscellaneous                                                                                                       30

33.......... This Act does not make unlawful acts lawful.................................. 30

34.......... Delegation......................................................................................... 30

35.......... Liability of people involved in unlawful acts................................... 30

36.......... Vicarious liability etc........................................................................ 30

37.......... Acts done for bodies corporate........................................................ 31

38.......... Commonwealth taken to be employer.............................................. 31

39.......... Awards inconsistent with this Act not to be made.......................... 31

40.......... Unlawful act not basis of civil action unless expressly so provided 31

41.......... Protection from civil actions............................................................. 31

42.......... Non‑disclosure of private information............................................. 32

43.......... Information stored otherwise than in written form.......................... 34

44.......... Commissioner to provide information.............................................. 34

45.......... Amendment of the Human Rights and Equal Opportunity Commission Act 1986  34

46.......... Regulations....................................................................................... 34

Schedule 1—Amendment of the Human Rights and Equal Opportunity Commission Act 1986                                                                                                            35

 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A Bill for an Act to prohibit discrimination on the ground of sexuality, transgender identity or intersex status, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

1  Short title

                   This Act may be cited as the Sexuality and Gender Identity Discrimination Act 2003.

2  Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3  Object

                   The object of this Act is to eliminate, as far as possible, discrimination against people on the grounds of sexuality, transgender identity, or intersex status.

4  Application of Act

             (1)  This Act applies throughout Australia and the external territories to the extent that this Act:

                     (a)  gives effect to:

                              (i)  the International Covenant on Civil and Political Rights; or

                             (ii)  the International Covenant on Economic, Social and Cultural Rights; or

                            (iii)  the Convention Concerning Discrimination in Respect of Employment and Occupation, 1958; or

                            (iv)  a prescribed treaty or international agreement; or

                     (b)  relates to matters external to Australia; or

                     (c)  relates to matters of international concern.

             (2)  This Act applies to things done by or for the Commonwealth or a public authority of the Commonwealth.

             (3)  This Act applies to:

                     (a)  Commonwealth employees in connection with their employment as Commonwealth employees; and

                     (b)  people seeking to become Commonwealth employees.

             (4)  This Act applies to things done by an authority or body in the exercise of a power under a Commonwealth law to confer, renew, extend, revoke or withdraw an authorisation or qualification.

             (5)  This Act applies to things done by or for:

                     (a)  the Commonwealth or the government of a Territory; or

                     (b)  a body or authority established for a public purpose by a law of the Commonwealth or a law of a Territory;

in the exercise of a power conferred by a law of the Commonwealth or a law of a Territory.

             (6)  This Act applies to things done by a person in connection with exercising a power conferred by a law of the Commonwealth or a law of a Territory.

             (7)  This Act applies to things done by:

                     (a)  a person who is a Commonwealth employee in connection with the person’s duties as a Commonwealth employee; or

                     (b)  a person who is a member of the staff of an educational institution established by a law of the Commonwealth or a law of a Territory in connection with the person’s duties as a member of the staff of the institution.

             (8)  This Act applies to:

                     (a)  things done by a foreign corporation; or

                     (b)  things done by a trading or financial corporation formed within the limits of the Commonwealth for the purpose of its trading or financial activities.

             (9)  This Act applies to things done in the course of the carrying on of the business of:

                     (a)  banking, other than State banking not extending beyond the limits of the State concerned; or

                     (b)  insurance, other than State insurance not extending beyond the limits of the State concerned.

           (10)  This Act applies to things done in the course of trade or commerce:

                     (a)  between Australia and a place outside Australia; or

                     (b)  among the States; or

                     (c)  between a State and a Territory; or

                     (d)  between 2 Territories.

           (11)  This Act applies to things done within Australia involving people or things, or matters arising, outside Australia.

5  Definitions

                   In this Act:

accommodation includes residential and business accommodation.

administrative office means:

                     (a)  an office established by, or an appointment made under, a law of the Commonwealth; or

                     (b)  an office established by, or an appointment made under, a law of a Territory; or

                     (c)  an appointment made by the Governor‑General or a Minister otherwise than under a law of the Commonwealth or of a Territory; or

                     (d)  an appointment as a director of an incorporated company that is a public authority of the Commonwealth;

but does not include:

                     (e)  an office of member of the Assembly, member of the Executive, or Minister within the meaning of the Australian Capital Territory (Self‑Government) Act 1988; or

                      (f)  an office of member of the Legislative Assembly, member of the Council or Minister of the Territory, within the meaning of the Northern Territory (Self‑Government) Act 1978; or

                     (g)  an office of member of the Legislative Assembly within the meaning of the Norfolk Island Act 1979; or

                     (h)  an office or appointment in the Australian Public Service or the Australian Parliamentary Service.

agency has the same meaning as in the Public Service Act 1999.

androgyne means someone who identifies as not exclusively male or female who is not intersexed.

associate of a person means:

                     (a)  another person with whom the person associates, whether socially, in business or otherwise; or

                     (b)  another person who is a partner of, or who is wholly or mainly dependent on a partner, or on a member of the household of, the person.

class member, in relation to a representative complaint, means any of the people on whose behalf the complaint was lodged, but does not include a person who has withdrawn his or her complaint.

club means an association (whether incorporated or unincorporated) of at least 30 people associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that:

                     (a)  provides and maintains its facilities, in whole or in part, from the funds of the association; and

                     (b)  sells or supplies liquor for consumption on its premises.

Commission means the Human Rights and Equal Opportunity Commission established by the Human Rights and Equal Opportunity Commission Act 1986.

commission agent means a person who does work for another person as the agent of the other person and who is remunerated, wholly or partly, by commission.

Commissioner means the Sex Discrimination Commissioner appointed under section 96 of the Sex Discrimination Act 1984.

Commonwealth agency means an agency within the meaning of the Privacy Act 1988.

Commonwealth employee means a person who:

                     (a)  holds an office or appointment in the Australian Public Service or the Australian Parliamentary Service or is employed in a temporary capacity in an agency; or

                     (b)  holds an administrative office; or

                     (c)  is employed by a public authority of the Commonwealth; or

                     (d)  holds an office or appointment in the Commonwealth Teaching Service or is employed as a temporary employee under the Commonwealth Teaching Service Act 1972; or

                     (e)  is employed under the Australian Security Intelligence Organisation Act 1979, the Commonwealth Electoral Act 1918, the Supply and Development Act 1939 or the Naval Defence Act 1910; or

                      (f)  is a member of the Defence Force.

Commonwealth law means:

                     (a)  an Act, or an instrument made under an Act; or

                     (b)  an Act or Ordinance of a Territory, or an instrument made under an Act or Ordinance of a Territory; or

                     (c)  an order or award made under a law referred to in paragraph (a) or (b).

Commonwealth program means a program conducted by or for the Commonwealth government.

contract worker means a person who does work for another person under a contract between them.

de facto spouse of a person means another person who is not married to the person but lives with the person on a bona fide domestic basis.

educational authority means a body or person administering an educational institution.

educational institution means a school, college, university or other institution at which education or training is provided.

employment includes:

                     (a)  part time and temporary employment; and

                     (b)  work under a contract for services; and

                     (c)  work as a Commonwealth employee; and

                     (d)  work as an employee of a State or an instrumentality of a State.

employment agency means a person who or body that, whether for payment or not, assists people to find employment or other work or assists employers to find employees or workers, and includes Centrelink.

homosexuality means the identity of being gay, lesbian or homosexual.

intersex means a condition where a person is born with reproductive organs and/or sex chromosomes which are not exclusively male or female.

near relative of a person means:

                     (a)  a parent, child, grandparent, grandchild, brother or sister of the person; or

                     (b)  the spouse or de facto spouse of the person or of a person referred to in paragraph (a).

President means the President of the Commission.

principal means:

                     (a)  for a commission agent, a person for whom the commission agent works as a commission agent; and

                     (b)  for a contract worker, a person for whom the contract worker does work under a contract between them.

principal executive, in relation to a Commonwealth agency, has the same meaning as in Part V of the Privacy Act 1988.

public authority of the Commonwealth means:

                     (a)  a body incorporated, whether before or after the commencement of this Act, for a public purpose by a law of the Commonwealth or a law of a Territory, being a body that employs staff on its own behalf; or

                     (b)  an unincorporated authority or body established, whether before or after the commencement of this Act, for a public purpose by or under a law of the Commonwealth or a law of a Territory, being an authority or body that employs staff on its own behalf; or

                     (c)  an incorporated company over which the Commonwealth, or a body or authority referred to in paragraph (a) or (b), is in a position to exercise control.

reassignment procedure means:

                     (a)  a medical or surgical procedure, or a combination of medical and surgical procedures, to alter the genitals and other sexual characteristics of a person who was identified by birth certificate as male or female in a way that the person will be identified as a person of the opposite sex; or

                     (b)  in relation to a person under 18, such a procedure or combination of procedures to correct or eliminate ambiguities in the person’s sexual characteristics.

registered organisation means an organisation within the meaning of the Workplace Relations Act 1996.

relative of a person means another person to whom the person is related by blood, marriage, affinity or adoption.

representative complaint means a complaint where the people on whose behalf the complaint was made include people other than the complainant, but does not include a complaint that the Commission has decided should no longer be continued as a representative complaint.

services includes:

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

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

                     (c)  services relating to transport or travel;

                     (d)  services of the kind provided by the members of a profession or trade;

                     (e)  services of the kind provided by a government, a government agency or a local government body.

sexuality means heterosexuality, homosexuality, bisexuality and asexuality that presently exists, existed in the past or may exist in the future.

State, except in subsections 4(11) and (12), includes the Australian Capital Territory and the Northern Territory.

superannuation benefit, in relation to a member of a superannuation fund, means a benefit that is payable, under the terms and conditions relating to the fund:

                     (a)  in the event of the member’s death, to the estate of the deceased or to someone other than the deceased; or

                     (b)  in the event of the member’s physical or mental incapacity, to the member or to another person.

superannuation fund means a superannuation or provident fund or scheme.

superannuation fund conditions, in relation to a superannuation fund, means the terms and conditions that relate to membership of, or benefits payable from, the superannuation fund.

trade union means:

                     (a)  an organisation of employees that is a registered organisation; or

                     (b)  a trade union within the meaning of a State Act or a law of a Territory; or

                     (c)  another similar body.

transgender person means a person originally of one sex who:

                     (a)  identifies and lives or seeks to live as a member of the other sex; and

                     (b)  assumes the characteristics of the other sex on a full time basis or as much as is reasonable in the circumstances; and

                     (c)  includes a transsexual; and

                     (d)  for the purposes of this Act, includes those of androgyne identity; and

a reference to transgender status includes a reference to part or future status or perceived status.

transsexual person means a person who:

                     (a)  has undergone, or is in the process of undergoing, a surgical reassignment procedure; and

                     (b)  who identifies and lives or seeks to live as a member of the sex to which he or she has been reassigned or seeks to be reassigned.

6  What is discrimination on the ground of sexuality, transgender identity or intersex status

             (1)  A person (the discriminator) discriminates against another person (the aggrieved person) on the ground of sexuality if, because of the actual or perceived sexuality of the aggrieved person or of a relative or associate of the aggrieved person, the discriminator treats the aggrieved person less favourably than, in the same circumstances or in circumstances that are not materially different, the discriminator treats or would treat a person of a different sexuality or who had a relative or associate of a different sexuality.

             (2)  A person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of sexuality if the discriminator requires the aggrieved person to comply with a requirement or condition:

                     (a)  with which a substantial proportion of people of the same sexuality as the aggrieved person cannot comply; and

                     (b)  that, on the balance of probabilities, is considered to cause disadvantage to the aggrieved person or group.

             (3)  A person (the discriminator) discriminates against another person (the aggrieved person) on the ground of transgender identity or intersex status if, because the aggrieved person or a relative or associate of the aggrieved person is transgender or is thought to be transgender or intersex, the discriminator treats the aggrieved person less favourably than, in the same circumstances or in circumstances that are not materially different, the discriminator treats or would treat a person who is not transgender or intersex or who had a relative or associate who is not transgender or intersex.

             (4)  A person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of transgender identity or intersex status if the discriminator requires the aggrieved person to comply with a requirement or condition that, on the balance of probabilities, is considered to have a disadvantageous effect on the complainant group.

             (5)  For the purposes of this section, a complainant group is restricted to transgender people of a particular gender, regardless of reassignment procedures.

             (6)  Discrimination includes harassment, which is an act reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate a person or an associate or relative of the person.

             (7)  Harassment of a person on the ground of transgender identity or intersex status includes harassment of a person by refusing to acknowledge that he or she wishes to be known as a member of a specific gender and has made this preference clear.

             (8)  Harassment of a person on the grounds of bisexuality includes a refusal to accept bisexuality as a distinct sexuality.

             (9)  Discrimination includes a failure to offer or continue employment, or to provide access to goods and services, on the basis that a person’s dress or appearance suggests he or she is of a particular sexuality or is a transgender or intersex person, or is thought to be of a particular sexuality or to be a transgender or intersex person, or has a relative or associate who appears to be, or is thought to be, of a particular sexuality or a transgender or intersex person.

           (10)  In determining whether or not a person engages in discrimination, the person’s motive is irrelevant.

7  Operation of State and Territory laws

             (1)  In this section:

law of a State or Territory means a law of a State or Territory that deals with discrimination on the ground of sexuality, transgender identity or intersex status.

             (2)  This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

             (3)  If:

                     (a)  a law of a State or Territory deals with a matter dealt with by this Act; and

                     (b)  a person has made a complaint, instituted a proceeding or taken other action under that law about an act or omission; and

                     (c)  the person would, apart from this subsection, be entitled to make a complaint under this Act about the act or omission;

the person is not entitled to make a complaint or institute a proceeding under this Act about that act or omission.

             (4)  If:

                     (a)  a law of a State or Territory deals with a matter dealt with by this Act; and

                     (b)  an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act;

the person may be prosecuted and convicted either under that law or under this Act, but this subsection does not render a person liable to be punished more than once for the same act or omission.

8  Act does not prevent action to stop unlawful behaviour

                   This Act does not prevent a person from taking action to stop another person from engaging in unlawful behaviour.

9  Extent to which Act binds the Crown

             (1)  This Act binds the Crown in right of the Commonwealth, of each State and Territory.

             (2)  This Act does not render the Crown in right of the Commonwealth, of a State or Territory liable to be prosecuted for an offence.

 


 

Part 2Prohibition of discrimination

Division 1Discrimination in work

10  Discrimination in employment

             (1)  It is unlawful to discriminate on the ground of sexuality, transgender identity or intersex status against an employee or an applicant for employment, including but not limited to persons seeking employment or working as employees, commission agents, contract workers and volunteers, in:

                     (a)  the offering of employment;

                     (b)  the terms and conditions afforded an employee;

                     (c)  the payment of a superannuation benefit;

                     (d)  the issue of an authorisation or qualification necessary for or to facilitate the practice of an occupation;

                     (e)  the provision of services by an employment agency;

                      (f)  the consideration of application for membership or the access to benefits of a registered organisation under the Workplace Relations Act 1988;

                     (g)  the invitation to become a partner or the terms of a partnership.

             (2)  Paragraph (1)(a) does not make it unlawful for a person to discriminate in the offering of employment to another person on the ground of sexuality, transgender identity or intersex status when that employment is:

                     (a)  to perform domestic duties at the premises at which the first‑mentioned person resides; or

                     (b)  as a member of the staff of an educational institution that is conducted in accordance with the tenets, beliefs or teachings of a particular religion or creed.

11  Rights etc. of same sex couples under the laws of the Commonwealth

             (1)  This section applies to a law of the Commonwealth that:

                     (a)  confers a right or entitlement on a person, or imposes an obligation on a person; or

                     (b)  applies to a person in a particular way;

because of the person living together with another person of the opposite sex on a genuine domestic basis although not married to the other person.

             (2)  After commencement, this Act:

                     (a)  confers the same right or entitlement, or imposes the same obligation, on a person who lives together with another person of the same sex, or when either or both are transgender, on a genuine domestic basis; or

                     (b)  applies to such people in the same way.

             (3)  The regulations may provide that this section does not apply to a specified law of the Commonwealth.

             (4)  The operation of this Act is to be reported on, including with statistical and analytical information on all cases coming before the Commission under this Act, in a separate section of the Annual Report of the Human Rights and Equal Opportunity Commission.


 

 

Division 2Discrimination in other areas

12  Discrimination in non‑employment areas

             (1)  It is unlawful for a person, authority, agency or association to discriminate on the ground of sexuality, transgender identity or intersex status, against a person, including:

                     (a)  in education by any educational authority;

                     (b)  in the provision of goods and services or facilities, whether for payment or not, and including but not restricted to the provision of accommodation, or the disposal of an estate or interest in land;

                     (c)  in the membership of a club or incorporated association;

                     (d)  in relation to a sporting activity;

                     (e)  in the administration or conduct of a Commonwealth program, or in the conduct of an organisation receiving Commonwealth funding.

             (2)  Paragraph (1)(b) does not make it unlawful for a person to discriminate against a person on the ground of sexuality, transgender identity or intersex status:

                     (a)  in providing 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, on those premises, and not more than four people will be provided with accommodation at the premises; or

                     (b)  in the disposal of an estate or interest in land by will or by way of gift.

13  Application forms etc.

                   It is unlawful for a person to request or require that a person of transsexual identity or intersex status, or who has a relative or associate of that identity or status, to provide information, by way of completing a form or otherwise, that a person who is not transgender or of a different sexuality would not be requested or required to provide.

14  Official documents etc.

             (1)  This section applies to a person who has been issued with a certificate under a law of a State that specifies that the person is of the sex stated in the certificate.

             (2)  It is unlawful for a person who is responsible for issuing an official document, such as a passport or a driver’s licence, to refuse to recognise in the document the sex of a person to whom this section applies as specified in the certificate.

 


 

 

Division 3Inciting hatred etc. on ground of sexuality, transgender identity or intersex status

15  Inciting hatred etc. on ground of sexuality, transgender identity or intersex status

             (1)  In this section:

public act includes:

                     (a)  any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing tapes or other recorded material; and

                     (b)  other conduct observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia.

             (2)  It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the sexuality, transgender identity or intersex status of the person or members of the group.

             (3)  This section does not make unlawful:

                     (a)  a fair report of a public act referred to in subsection (2); or

                     (b)  a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about, and expositions of, an act or matter.

             (4)  A review of this section is to be completed, either by the Human Rights and Equal Opportunity Commission or by an appropriately qualified organisation or review panel, within 2 years from the commencement of the Act, with a view to determining if the provisions regarding incitement to hatred should be retained, modified or repealed.


 

 

Division 4Special measures

16  Special measures

                   This Part does not make it unlawful to do an act that is reasonably intended to:

                     (a)  ensure that persons of a particular sexuality, transgender identity or intersex status have equal opportunities with other persons in circumstances in relation to which provision is made by this Act; or

                     (b)  afford persons of a particular sexuality, transgender identity or intersex status, equal opportunities in relation to:

                              (i)  employment, education, accommodation, clubs or sport; or

                             (ii)  the provision of goods, services or facilities; or

                            (iii)  the administration of Commonwealth laws and programs; or

                     (c)  afford persons of a particular sexuality, transgender identity or intersex status, grants, benefits or programs, whether direct or indirect, to meet their special needs in relation to:

                              (i)  employment, education, accommodation, clubs or sport; or

                             (ii)  the provision of goods, services, facilities or land; or

                            (iii)  the making available of facilities; or

                            (iv)  the administration of Commonwealth laws and programs.

 


 

 

Division 5Exemptions

17  Religious bodies

                   Subject to section 18, Divisions 1 and 2 of this Part do not affect an act or practice of a body established for religious purposes that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion, including:

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

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

                     (c)  the selection, appointment or employment of persons to perform duties or functions for the purpose of or in connection with, or otherwise to participate in, a religious observance or practice.

18  Acts done under statutory authority

             (1)  Divisions 1 and 2 of this Part do not affect anything done by a person in direct compliance with:

                     (a)  a determination or decision of the Commission; or

                     (b)  an order of a court.

             (2)  Divisions 1 and 2 of this Part do not affect anything done by a person in direct compliance with a law of the Commonwealth.

19  Superannuation and insurance

             (1)  This Part does not make it unlawful for a person to discriminate against another person on the ground of sexuality, transgender identity or intersex status by refusing to offer the other person:

                     (a)  an annuity; or

                     (b)  a life insurance policy; or

                     (c)  a policy of insurance against accident or any other policy of insurance; or

                     (d)  membership of a superannuation or provident fund; or

                     (e)  membership of a superannuation or provident scheme;

if the discrimination:

                      (f)  is based on relevant actuarial and statistical data; and

                     (g)  is reasonable, having regard to other available relevant material.

             (2)  If a person refuses to offer another person a service listed in paragraph (1)(a), (b), (c), (d) or (e), the other person may appeal to the Human Rights and Equal Opportunity Commission for an assessment of the basis of the decision, and must be provided with the information on which the decision was based.

             (3)  This Part does not make it unlawful for a person to discriminate against another person, on the ground of sexuality, transgender identity or intersex status, in respect of the terms or conditions on which:

                     (a)  an annuity; or

                     (b)  a life insurance policy; or

                     (c)  a policy of insurance against accident or any other policy of insurance; or

                     (d)  membership of a superannuation or provident fund; or

                     (e)  membership of a superannuation or provident scheme;

is offered to, or may be obtained by, the other person if the discrimination:

                      (f)  is based on actuarial or statistical data on which it is reasonable for the person to rely; and

                     (g)  is reasonable having regard to the data and other relevant factors.

20  Commission may grant exemptions

             (1)  The Commission may, on application by:

                     (a)  a person, on that person’s own behalf or on behalf of that person and another person or other persons; or

                     (b)  2 or more persons, on their own behalf or on behalf of themselves and another person or other persons; or

                     (c)  a person or persons included in a class of persons on behalf of the persons included in that class of persons;

by instrument in writing, grant to the person, persons or class of persons an exemption from the operation of a provision of Division 1 or 2 of this Part, as specified in the instrument.

             (2)  The Commission may, on application by a person to, or in respect of, whom an exemption from a provision of Division 1 or 2 of this Part has been granted under subsection (1), being an application made before the end of the period for which that exemption was granted, grant a further exemption from the operation of that provision.

             (3)  An exemption under subsection (1), or a further exemption under subsection (2):

                     (a)  may be granted subject to terms and conditions specified in the instrument; and

                     (b)  may be expressed to apply only in circumstances, or in relation to activities, specified in the instrument; and

                     (c)  must be granted for a specified period that does not exceed 5 years; and

                     (d)  must not be granted until the Commission has advertised the fact that it proposes to grant the exemption or further exemption and has given interested persons a reasonable opportunity of not less than 14 days after the publication of the advertisement to make written submissions opposing the grant.

             (4)  The President of the Commission must arrange for an organisation with appropriate legal qualifications and experience in the field of human rights legislation to review and report on all exemptions, other than those subject to specific review, within three years from the commencement of the Act.

             (5)  The President of the Commission must provide a copy of the report of the review prepared under subsection (4) to the Minister.

             (6)  The Minister must cause a copy of the report received in accordance with subsection (5) to be tabled in both Houses of the Parliament within 15 sitting days of receipt.

21  Review by Administrative Appeals Tribunal

                   Applications may be made to the Administrative Appeals Tribunal for review of decisions made by the Commission under section 20.

22  Notice of exemptions to be published

             (1)  The Commission must, not later than one month after it grants an exemption in relation to a complaint of discrimination in accordance with this Act, cause to be published in the Gazette a notice of the granting of the exemption:

                     (a)  setting out its findings on material questions of fact; and

                     (b)  referring to the evidence on which the findings were based; and

                     (c)  giving the reasons for the granting of the exemption; and

                     (d)  containing a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for a review of the granting of the exemption to which the notice relates by or for any person or people whose interests are affected by the granting of the exemption.

             (2)  A failure to comply with the requirements of subsection (1) in relation to the granting of an exemption does not affect the validity of the exemption.

23  Effect of exemptions

                   Divisions 1 and 2 of this Part do not make it unlawful for a person who has been granted an exemption from a provision of Division 1 or 2 of this Part, or a person in the employment or under the direction or control of a person who has been granted such an exemption, to do an act in accordance with the exemption.

 


 

Part 3Lodgment and investigation of complaints of discrimination on the ground of sexuality, transgender identity or intersex status

  

24  Jurisdiction to handle complaints of discrimination arising under this Act

                   It is the intention of this Act to confer full jurisdiction on the Human Rights and Equal Opportunity Commission to receive, investigate and in all ways deal to the full extent of its powers with any complaint arising from rights bestowed by this Act.

25  Additional functions of Human Rights and Equal Opportunity Commission

             (1)  The following additional functions are conferred on the Commission:

                     (a)  to inquire into alleged infringements of Part 2 of this Act, and endeavour by conciliation to effect a settlement of the matters to which the alleged infringements relate;

                     (b)  to inquire into, and make determinations on, matters referred to it by the Minister or of its own motion;

                     (c)  to promote an understanding and acceptance of, and compliance with, this Act;

                     (d)  to undertake research and educational programs, and other programs, for the Commonwealth for the purpose of promoting the object of this Act;

                     (e)  to examine enactments, and (when requested to do so by the Minister or a House of the Parliament) proposed enactments, for the purpose of establishing whether the enactments or proposed enactments are, or would be, inconsistent with or contrary to the object of this Act, and to report to the Minister or that House the results of any such examination;

                      (f)  on its own initiative or when requested by the Minister, or when requested by a House of the Parliament, to report to the Minister, or that House, as the case may be, as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to discrimination on the ground of sexuality, transgender identity or intersex status;

                     (g)  to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of discrimination on the ground of sexuality, transgender identity or intersex status;

                     (h)  if the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve issues of discrimination on the ground of sexuality, transgender identity or intersex status;

                      (i)  to do anything incidental or conducive to the performance of any of the preceding functions.

Note:          For the provisions about inquiries into complaints of discrimination and conciliation of those complaints: see Part IIB of the Human Rights and Equal Opportunity Commission Act 1986.

             (2)  In this section:

enactment has the same meaning as in the Human Rights and Equal Opportunity Commission Act 1986.

proposed enactment has the same meaning as in the Human Rights and Equal Opportunity Commission Act 1986.

26  Additional functions of Sex Discrimination Commissioner

             (1)  The Sex Discrimination Commissioner is to assume responsibility for issues of sexuality and gender identity discrimination.

             (2)  Within two years of the commencement of this Act, the President of the Commission is to report on the management of sexuality and gender identity complaints, including the appropriateness of the Sex Discrimination Commissioner continuing to have responsibility for sexuality and gender identity discrimination issues, and if there is a demonstrated need for additional resources.

27  Complaints

             (1)  A complaint alleging that a person has done an act that is unlawful because of a provision of Part 2 of this Act may be lodged with the Human Rights and Equal Opportunity Commission in accordance with Part IIB of the Human Rights and Equal Opportunity Commission Act 1986.

             (2)  A complaint made under subsection (1) must be handled by the Commission in accordance with Parts IIB and IIC of the Human Rights and Equal Opportunity Commission Act 1986.


 

Part 4Offences

  

28  Unlawful act not offence unless expressly so provided

                   Except as expressly provided by this Part or the Human Rights and Equal Opportunity Commission Act 1986, this Act does not make it an offence to do an act that is unlawful because of a provision of Part 2.

29  Advertisements

             (1)  A person must not publish or display, or cause or permit to be published or displayed, an advertisement or notice that indicates, or could reasonably be understood as indicating, an intention to do an act that is unlawful because of a provision of Part 2.

Maximum penalty:    10 penalty units.

             (2)  In subsection (1):

advertisement includes every form of advertisement or notice, whether to the public or not, and whether in a newspaper or other publication, by television, radio, internet or e‑mail, by display of notices, signs, labels, showcards or goods, by distribution of samples, circulars, catalogues, price lists or other material, by exhibition of pictures, models or films, or in any other way, and the reference in that subsection to publish or display, in relation to an advertisement, is to be construed accordingly.

30  Victimisation

             (1)  A person must not commit an act of victimisation against another person.

Maximum penalty:    25 penalty units.

             (2)  For the purposes of subsection (1), a person commits an act of victimisation against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

                     (a)  has made, or proposes to make, a complaint under this Act; or

                     (b)  has brought, or proposes to bring, proceedings under this Act against any person; or

                     (c)  has provided or proposes to provide information, or has produced or proposes to produce documents, to a person exercising or performing any power or function under this Act; or

                     (d)  has appeared, or proposes to appear, as a witness before the Commission in a proceeding under this Act; or

                     (e)  has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act; or

                      (f)  has made an allegation that a person has done an act that is unlawful because of a provision of Part 2 of this Act;

or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f), inclusive.

             (3)  It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground in paragraph (2)(f) if it is proved that the allegation was false and was not made in good faith.

31  Offence to vilify on the ground of sexuality, transgender identity or intersex status

             (1)  In this section:

public act has the same meaning as in section 15.

             (2)  A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the sexuality, transgender identity or intersex status of the person or members of the group by means that include:

                     (a)  threatening physical harm to, or to property of, the person or members of the group; or

                     (b)  inciting others to threaten physical harm to, or to property of, the person or members of the group.

Maximum penalty:    50 penalty units or imprisonment for 6 months, or both.

32  Obstruction etc.

                   A person must not insult, hinder, obstruct, molest or interfere with a person exercising a power or performing a function under this Act.

Maximum penalty:    10 penalty units.


 

 

Part 5Miscellaneous

  

33  This Act does not make unlawful acts lawful

                   Nothing in this Act makes it lawful to do a thing that would be unlawful apart from this Act.

34  Delegation

             (1)  The Commission may by writing under its seal, delegate to a member of the Commission, the Commissioner, a member of the staff of the Commission or another person or body of people all or any of the powers conferred on the Commission under this Act, other than powers in connection with the performance of the functions that, under section 26, are to be performed by the Commissioner for the Commission.

             (2)  The Commissioner may, by writing signed by the Commissioner, delegate to a member of the staff of the Commission approved by the Commission, all or any of the powers exercisable by the Commissioner under this Act.

35  Liability of people involved in unlawful acts

                   A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part 2 is, for the purposes of this Act, taken also to have done the act.

36  Vicarious liability etc.

             (1)  Subject to subsection (2), if an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent, an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part 2 (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part 2), this Act applies to that person as if that person had also done the act.

             (2)  Subsection (1) does not apply in relation to an act of a kind referred to in subsection (1) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that subsection.

37  Acts done for bodies corporate

                   If, for the purposes of this Act, it is necessary to establish that a body corporate has done an act on a particular ground, it is sufficient to establish that a person who acted for the body corporate in the matter so acted on that ground.

38  Commonwealth taken to be employer

                   For the purposes of this Act, all Commonwealth employees are taken to be employed by the Commonwealth.

39  Awards inconsistent with this Act not to be made

                   This Act is a prescribed Act for the purposes of section 121 of the Workplace Relations Act 1996.

40  Unlawful act not basis of civil action unless expressly so provided

                   Except as expressly provided by this Act, nothing in this Act confers on a person any right of action in respect of the doing of an act that is unlawful because of a provision of Part 2.

41  Protection from civil actions

             (1)  The Commission, a member of the Commission, the Commissioner or a person acting under the direction or authority of the Commission or of the Commissioner or under a delegation under this Part is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith in the performance or purported performance of a function, or in the exercise or purported exercise of any power or authority, conferred on the Commission or the Commissioner.

             (2)  If:

                     (a)  a complaint has been made to the Commission; or

                     (b)  a submission has been made, a document or information has been provided, or evidence has been given, to the Commission or the Commissioner;

a person is not liable to an action, suit or other proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the complaint or submission was made, the document or information was provided or the evidence was given.

42  Non‑disclosure of private information

             (1)  This section applies to a person who is, or has at any time been:

                     (a)  the Commissioner; or

                     (b)  a member of the Commission or a member of the staff assisting the Commission; or

                     (c)  authorised to perform or exercise a function or power of the Commission or the Commissioner or a function or power for the Commission or the Commissioner, being a function or power conferred on the Commission or on the Commissioner under this Act.

             (2)  A person to whom this section applies must not, either directly or indirectly, except in the performance of a duty under or in connection with this Act or in the performance or exercise of a function or power referred to in paragraph (1)(c):

                     (a)  make a record of, or divulge or communicate to any person, any information relating to the affairs of another person acquired by the person because of that person’s office or employment under or for the purposes of this Act or because of the person being or having been so authorised; or

                     (b)  make use of any such information as is mentioned in paragraph (a); or

                     (c)  produce to any person a document relating to the affairs of another person provided for the purposes of this Act.

Maximum penalty:    50 penalty units, or imprisonment for 1 year, or both.

             (3)  A person to whom this section applies must not be required:

                     (a)  to divulge or communicate to a court information relating to the affairs of another person acquired by the person because of the person’s office or employment under or for the purposes of this Act or because of the person being or having been so authorised; or

                     (b)  to produce in a court a document relating to the affairs of another person of which the person has custody, or to which that person has access, because of the person’s office or employment under or for the purposes of this Act or because of the person being or having been so authorised;

except where it is necessary to do so for the purposes of this Act.

             (4)  Nothing in this section prohibits a person from:

                     (a)  making a record of information that is, or is included in a class of information that is, required or permitted by an Act to be recorded, if the record is made under that Act; or

                     (b)  divulging or communicating information, or producing a document, to a person in accordance with an arrangement in force under section 16 of the Human Rights and Equal Opportunity Commission Act 1986; or

                     (c)  divulging or communicating information, or producing a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by an Act to be divulged, communicated or produced, as the case may be, if the information is divulged or communicated, or the document is produced, for the purposes of or pursuant to that Act.

             (5)  Subsection (3) does not prevent a person from being required, for the purposes of an Act, to divulge or communicate information, or to produce a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by that Act to be divulged, communicated or produced.

             (6)  In this section:

court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

43  Information stored otherwise than in written form

                   If information is recorded or stored by means of a mechanical, electronic or other device, any duty imposed by this Act to produce the document recording that information is a duty to provide a document containing a clear reproduction in writing of the information.

44  Commissioner to provide information

                   The Commissioner must give to the Commission such information relating to the operations of the Commissioner under this Act as the Commission from time to time requires.

45  Amendment of the Human Rights and Equal Opportunity Commission Act 1986

                   The Human Rights and Equal Opportunity Commission Act 1986 is amended as set out in the Schedule.

46  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

 


 

 

Schedule 1Amendment of the Human Rights and Equal Opportunity Commission Act 1986

  

1  Subsection 3(1) (at the end of the definition of unlawful discrimination)

Add:

               ; or (g)  Part 2 of the Sexuality and Gender Identity Discrimination Act 2003.

2  Paragraph 11(1)(a)

After “1984”, insert “, the Sexuality and Gender Discrimination Act 2003”.

3  Subsection 11(3)

After “1984”, insert “, the Sexuality and Gender Identity Discrimination Act 2003”.

4  Subsection 14(8)

After “1984”, insert “, the Sexuality and Gender Identity Discrimination Act 2003”.

5  Subsection 16(2A)

After “1984”, insert “, the Sexuality and Gender Identity Discrimination Act 2003”.

4  Subsection 19(6)

After “1984”, insert “, the Sexuality and Gender Identity Discrimination Act 2003”.