An Act relating to discrimination on the ground of age
Part 1—Preliminary
1 Short title
This Act may be cited as the Age Discrimination Act 2004.
2 Commencement
This Act commences on the day after it receives the Royal Assent.
3 Objects
The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of age in the areas of work, education, access to premises, the provision of goods, services and facilities, accommodation, the disposal of land, the administration of Commonwealth laws and programs and requests for information; and
(b) to ensure, as far as practicable, that everyone has the same rights to equality before the law, regardless of age, as the rest of the community; and
(c) to allow appropriate benefits and other assistance to be given to people of a certain age, particularly younger and older persons, in recognition of their particular circumstances; and
(d) to promote recognition and acceptance within the community of the principle that people of all ages have the same fundamental rights; and
(e) to respond to demographic change by:
(i) removing barriers to older people participating in society, particularly in the workforce; and
(ii) changing negative stereotypes about older people;
bearing in mind the international commitment to eliminate age discrimination reflected in the Political Declaration adopted in Madrid, Spain on 12 April 2002 by the Second World Assembly on Ageing.
4 Simplified outline
The following is a simplified outline of this Act:
• This Act makes it unlawful to discriminate on the ground of age.
• This Act has effect subject to certain geographical and constitutional limitations (see Part 2).
• Discrimination on the ground of age can be direct or indirect (see Part 3).
• It is unlawful to discriminate on the ground of age in relation to work (see Division 2 of Part 4) and certain other areas (see Division 3 of Part 4).
• It is also unlawful to commit an act of victimisation against another person (see Division 6 of Part 4).
• It is not unlawful to discriminate on the ground of age if a particular exemption is applicable (see Divisions 4 and 5 of Part 4).
• It is an offence to do certain things related to age discrimination (see Part 5).
• Complaints can be made to the Commission about unlawful discrimination (see the definition of unlawful discrimination in subsection 3(1) of the Australian Human Rights Commission Act 1986, and section 46P of that Act).
• Functions are given to the Commission (see Part 6).
• The Age Discrimination Commissioner is established (see Part 6A).
• Provision is made for miscellaneous matters such as delegation, protection from civil actions etc. (see Part 7).
5 Definitions
In this Act:
act has a meaning affected by section 7.
administrative office means:
(a) an office established by, or an appointment made under, a law of the Commonwealth; and
(b) an office established by, or an appointment made under, a law of a Territory; and
(c) an appointment made by the Governor‑General or a Minister otherwise than under a law of the Commonwealth or of a Territory; and
(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
(h) an office or appointment in the Australian Public Service; or
(i) an office of a person employed or engaged under the Members of Parliament (Staff) Act 1984.
Note: A person who holds an office mentioned in paragraph (h) or (i) is covered by the definition of Commonwealth employee.
age includes age group.
Example: The reference in subsection 26(3) to students above a particular age includes a reference to students above a particular age group.
Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1973.
Commission means the Australian Human Rights Commission.
Commissioner means the Age Discrimination Commissioner appointed under section 53A.
Commonwealth employee means a person who:
(a) is appointed or engaged under the Public Service Act 1999; or
(b) holds an administrative office; or
(c) is employed by a public authority of the Commonwealth; or
(d) is employed under the Australian Security Intelligence Organisation Act 1979 or the Commonwealth Electoral Act 1918; or
(e) is a member of the Defence Force; or
(f) is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979); or
(g) is a person employed or engaged under the Members of Parliament (Staff) Act 1984.
Note: See also section 8 (Commonwealth taken to be employer of Commonwealth employees).
Commonwealth law means:
(a) an Act, regulation, or other instrument made under an Act; or
(b) an ordinance of a Territory, a regulation made under an ordinance of a Territory, or another instrument made under an ordinance of a Territory; or
(c) an order, determination or award made under a law mentioned in paragraph (a) or (b).
discriminate has the meaning given by sections 14 and 15.
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.
function includes duty.
instrumentality of a State means a body or authority established for a public purpose by a law of a State and includes a local government body.
premises includes:
(a) a structure, building, aircraft, vehicle or vessel; and
(b) a place (whether enclosed or built on or not); and
(c) a part of premises (including premises of a kind mentioned in paragraph (a) or (b)).
President means President of the Commission.
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 corporate employing staff on its own behalf; or
(b) an authority or body, not being a body corporate, established, whether before or after the commencement of this Act, for a public purpose by, or in accordance with the provisions of, a law of the Commonwealth or a law of a Territory, being an authority or body employing staff on its own behalf; or
(c) an incorporated company over which the Commonwealth, or a body or authority mentioned in paragraph (a) or (b), is in a position to exercise control.
registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.
services includes:
(a) services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or
(b) services relating to entertainment, recreation or refreshment; or
(c) services relating to transport or travel; or
(d) services relating to telecommunications; or
(e) services of the kind provided by the members of any profession or trade; or
(f) services of the kind provided by a government, a government authority or a local government body.
State, except in subsections 10(10) and (11), includes the Australian Capital Territory and the Northern Territory.
Territory, except in subsection 10(11) or in paragraph (c) of the definition of administrative office in this section, does not include the Australian Capital Territory or the Northern Territory.
this Act includes the regulations.
6 Age discrimination not to include disability discrimination
For the purposes of this Act, a reference to discrimination against a person on the ground of the person’s age is taken not to include a reference to discrimination against a person on the ground of a disability of the person (within the meaning of the Disability Discrimination Act 1992).
7 Meaning of act—omission to act
For the purposes of this Act, omitting to do an act is taken to be the doing of an act and a reference to an act includes a reference to an omission to do an act.
8 Commonwealth taken to be employer
For the purposes of this Act, the Commonwealth is taken to be the employer of all Commonwealth employees.
Part 2—Application and constitutional provisions
9 Geographical application of Act
(1) In this section:
Australia includes the external Territories.
limited application provisions means the provisions of Divisions 2 and 3 of Part 4 (other than sections 23, 31 and 32).
(2) Subject to this section and section 10, this Act has effect throughout Australia.
(3) Subject to section 10, the limited application provisions have effect in relation to discrimination within Australia even if the discrimination involves persons or things, or matters arising, outside Australia.
10 Application of Act—constitutional powers
(1) In this section:
Australia includes the external Territories.
banking has the same meaning as in paragraph 51(xiii) of the Constitution.
foreign corporation has the same meaning as in paragraph 51(xx) of the Constitution.
insurance has the same meaning as in paragraph 51(xiv) of the Constitution.
limited application provisions means the provisions of Divisions 2 and 3 of Part 4 (other than sections 23, 31 and 32).
State banking has the same meaning as in paragraph 51(xiii) of the Constitution.
State insurance has the same meaning as in paragraph 51(xiv) of the Constitution.
trading or financial corporation has the same meaning as in paragraph 51(xx) of the Constitution.
(2) The limited application provisions have effect as provided in section 9 and the following provisions of this section and not otherwise.
(3) Sections 18, 19 and 20 have effect in relation to discrimination against:
(a) Commonwealth employees in connection with their employment as Commonwealth employees; and
(b) persons seeking to become Commonwealth employees.
(4) Section 22 has effect in relation to discrimination 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 has effect in relation to acts done within a Territory.
(6) The limited application provisions have effect in relation to acts done by, or on behalf of:
(a) the Commonwealth or the Administration 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.
(7) The limited application provisions have effect in relation to discrimination against a person on the ground of age to the extent that the provisions:
(a) give effect to the Discrimination (Employment and Occupation) Convention, 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958 (a copy of the English text of which is set out in Schedule 1 to the Australian Human Rights Commission Act 1986); or
(b) give effect to the International Covenant on Civil and Political Rights (a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986); or
(c) give effect to the International Covenant on Economic, Social and Cultural Rights; or
(d) give effect to the Convention on the Rights of the Child; or
(e) relate to matters external to Australia; or
(f) relate to matters of international concern.
Note: In 2004, the text of the international instruments mentioned in this subsection was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible through that Department’s website.
(8) The limited application provisions have effect in relation to discrimination:
(a) by a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth; or
(b) by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation.
(9) Without limiting the effect of subsection (8), the limited application provisions have effect in relation to discrimination:
(a) by a trading or financial corporation formed within the limits of the Commonwealth; or
(b) by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation;
to the extent that the discrimination takes place in the course of the trading activities of the trading corporation or the financial activities of the financial corporation, as the case may be.
(10) The limited application provisions have effect in relation to discrimination in the course of, or in relation to, 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.
(11) The limited application provisions have effect in relation to discrimination in the course of, or in relation to, 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 Compensation—constitutional safety net
(1) If:
(a) the operation of this Act would result in the acquisition of property otherwise than on just terms; and
(b) the acquisition would not be valid, apart from this section, because a particular person has not been compensated;
the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
12 Operation of State and Territory laws
(1) A reference in this section to this Act is a reference to this Act as it has effect because of a provision of sections 9 and 10.
(2) A reference in this section to a law of a State or Territory is a reference to a law of a State or Territory that deals with discrimination on the ground of age.
(3) 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.
(4) If:
(a) a law of a State or Territory relating to discrimination deals with a matter dealt with by this Act; and
(b) a person has made a complaint or initiated a proceeding under that law in respect of an act in respect of which the person would, apart from this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act is unlawful under a provision of Part 4 of this Act;
the person is not entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act is unlawful under a provision of Part 4 of this Act.
(5) If:
(a) a law of a State or Territory relating to discrimination deals with a matter dealt with by this Act; and
(b) an act 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 of the State or Territory or under this Act
(6) Nothing in subsection (5) makes a person liable to be punished more than once in respect of the same act.
13 Extent to which Act binds the Crown
(1) This Act binds the Crown in right of the Commonwealth and of each of the States.
(2) This Act does not make the Crown in right of the Commonwealth or of a State liable to be prosecuted for an offence.
Part 3—Concept of age discrimination
14 Discrimination on the ground of age—direct discrimination
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a) the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and
(b) the discriminator does so because of:
(i) the age of the aggrieved person; or
(ii) a characteristic that appertains generally to persons of the age of the aggrieved person; or
(iii) a characteristic that is generally imputed to persons of the age of the aggrieved person.
15 Discrimination on the ground of age—indirect discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a) the discriminator imposes, or proposes to impose, a condition, requirement or practice; and
(b) the condition, requirement or practice is not reasonable in the circumstances; and
(c) the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.
(2) For the purposes of paragraph (1)(b), the burden of proving that the condition, requirement or practice is reasonable in the circumstances lies on the discriminator.
16 Act done because of age and for other reason
(1) This section applies if:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons (whether or not it is the dominant or a substantial reason) is:
(i) the age of a person; or
(ii) a characteristic that appertains generally to persons of the age of a person; or
(iii) a characteristic that is generally imputed to persons of the age of a person.
(2) For the purposes of this Act, the act referred to in paragraph (1)(a) is taken to be done because of the age of the person.
Part 4—Unlawful age discrimination etc.
Division 1—Simplified outline
17 Simplified outline
The following is a simplified outline of this Part:
• This Part makes it unlawful to discriminate against someone on the ground of age in respect of the following:
(a) employment and related matters;
(b) education;
(c) access to premises;
(d) provision of goods, services and facilities;
(e) provision of accommodation;
(f) disposal of land;
(g) administration of Commonwealth laws and programs;
(h) requests for information on which age discrimination might be based.
• This discrimination is unlawful in the particular circumstances set out in Divisions 2 and 3, unless one of the exemptions applies as set out in Divisions 4 and 5.
• This Part also makes it unlawful to commit an act of victimisation against another person.
Division 2—Discrimination in work
18 Discrimination in employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s age:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s age:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
Exemption for domestic duties
(3) Paragraphs (1)(a) and (b) do not make it unlawful for a person to discriminate against another person, on the ground of the other person’s age, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides.
Exemption for inherent requirements
(4) Paragraphs (1)(a), (1)(b) and (2)(c) do not make it unlawful for an employer to discriminate against another person, on the ground of the other person’s age, if the other person is unable to carry out the inherent requirements of the particular employment because of his or her age.
(5) In deciding whether the other person is unable to carry out those requirements because of his or her age, take into account:
(a) the other person’s past training, qualifications and experience relevant to the particular employment; and
(b) if the other person is already employed by the employer—the other person’s performance as an employee; and
(c) all other relevant factors that it is reasonable to take into account.
19 Discrimination against commission agents
(1) It is unlawful for a principal to discriminate against a person on the ground of the person’s age:
(a) in the arrangements the principal makes for the purpose of determining who should be engaged as a commission agent; or
(b) in determining who should be engaged as a commission agent; or
(c) in the terms or conditions on which the person is engaged as a commission agent.
(2) It is unlawful for a principal to discriminate against a commission agent on the ground of the commission agent’s age:
(a) in the terms or conditions that the principal affords the commission agent as a commission agent; or
(b) by denying the commission agent access, or limiting the commission agent’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with the position as a commission agent; or
(c) by terminating the engagement; or
(d) by subjecting the commission agent to any other detriment.
Exemption for inherent requirements
(3) Paragraphs (1)(a), (1)(b) and (2)(c) do not make it unlawful for a principal to discriminate against another person, on the ground of the other person’s age, if the other person is unable to carry out the inherent requirements of a commission agent because of his or her age.
(4) In deciding whether the other person is unable to carry out those requirements because of his or her age, take into account:
(a) the other person’s past training, qualifications and experience relevant to engagement as a commission agent; and
(b) if the other person is already engaged by the principal as a commission agent—the other person’s performance as a commission agent; and
(c) all other relevant factors that it is reasonable to take into account.
Definitions
(5) In this section:
commission agent means a person who does work for another person as the agent of that other person and who is remunerated, whether in whole or in part, by commission.
principal, in relation to a commission agent, means a person for whom the commission agent does work as a commission agent.
20 Discrimination against contract workers
(1) It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker’s age:
(a) in the terms or conditions on which the principal allows the contract worker to work; or
(b) by not allowing the contract worker to work or continue to work; or
(c) by denying the contract worker access, or limiting the contract worker’s access, to any benefit associated with the work in respect of which the contract with the employer is made; or
(d) by subjecting the contract worker to any other detriment.
Exemption for inherent requirements
(2) Paragraph (1)(b) does not make it unlawful for a principal to discriminate against another person, on the ground of the other person’s age, if the other person is unable to carry out the inherent requirements of a contract worker because of his or her age.
(3) In deciding whether the other person is unable to carry out those requirements because of his or her age, take into account:
(a) the other person’s past training, qualifications and experience relevant to working as a contract worker; and
(b) if the other person is already working for the principal as a contract worker—the other person’s performance as a contract worker; and
(c) all other relevant factors that it is reasonable to take into account.
Definitions
(4) In this section:
contract worker means a person who does work for another person under a contract between the employer of the first‑mentioned person and that other person.
principal, in relation to a contract worker, means a person for whom the contract worker does work under a contract between the employer of the contract worker and the person.
21 Partnerships
(1) It is unlawful for 6 or more persons who are proposing to form themselves into a partnership to discriminate against another person on the ground of the other person’s age:
(a) in determining who should be invited to become a partner in the partnership; or
(b) in the terms or conditions on which the other person is invited to become a partner in the partnership.
(2) It is unlawful for any one or more of the partners in a partnership consisting of 6 or more partners to discriminate against another person on the ground of the other person’s age:
(a) in determining who should be invited to become a partner in the partnership; or
(b) in the terms or conditions on which the other person is invited to become a partner in the partnership.
(3) It is unlawful for any one or more of the partners in a partnership consisting of 6 or more partners to discriminate against another partner in the partnership on the ground of the other partner’s age:
(a) by denying the other partner access, or limiting the other partner’s access, to any benefit arising from being a partner in the partnership; or
(b) by expelling the other partner from the partnership; or
(c) by subjecting the partner to any other detriment.
Exemption for inherent requirements
(4) Paragraphs (1)(a), (2)(a) and (3)(b) do not make it unlawful for a person to discriminate against another person, on the ground of the other person’s age, if the other person is unable to carry out the inherent requirements of a partner (in the proposed partnership or the partnership) because of his or her age.
(5) In deciding whether the other person is unable to carry out those requirements because of his or her age, take into account:
(a) the other person’s past training, qualifications and experience relevant to the proposed partnership or the partnership; and
(b) if the other person is already a partner—the other person’s performance as a partner; and
(c) all other relevant factors that it is reasonable to take into account.
22 Qualifying bodies
(1) It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of the person’s age:
(a) by refusing or failing to confer, renew or extend the authorisation or qualification; or
(b) in the terms or conditions on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification; or
(c) by revoking or withdrawing the authorisation or qualification or varying the terms or the conditions upon which it is held.
Exemption for inherent requirements
(2) This section does not make it unlawful for an authority or body to discriminate against a person, on the ground of the person’s age, if the person is unable to carry out the inherent requirements of the profession, trade or occupation because of his or her age.
(3) In deciding whether the person is unable to carry out those requirements because of his or her age, take into account:
(a) the person’s past training, qualifications and experience relevant to the particular profession, trade or occupation; and
(b) if the person is already a member of the profession, carrying on the trade or engaged in the occupation—the person’s performance in the profession, trade or occupation; and
(c) all other relevant factors that it is reasonable to take into account.
23 Registered organisations under the Fair Work (Registered Organisations) Act 2009
(1) It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person, on the ground of the person’s age:
(a) by refusing or failing to accept the person’s application for membership; or
(b) in the terms or conditions on which the organisation is prepared to admit the person to membership.
(2) It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person who is a member of the registered organisation, on the ground of the member’s age:
(a) by denying the member access or limiting the member’s access, to any benefit provided by the organisation; or
(b) by depriving the member of membership or varying the terms of membership; or
(c) by subjecting the member to any other detriment.
Definitions
(3) In this section:
committee of management, in relation to a registered organisation, means the group or body of persons (however described) that manages the affairs of that organisation, as the case may be.
registered organisation means an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009.
24 Employment agencies
(1) It is unlawful for an employment agency to discriminate against a person on the ground of the person’s age:
(a) by refusing to provide the person with any of its services; or
(b) in the terms or conditions on which it offers to provide the person with any of its services; or
(c) in the manner in which it provides the person with any of its services.
Exemption for inherent requirements
(2) This section does not make it unlawful for an employment agency to discriminate against a person, on the ground of the person’s age, if the person is unable to carry out the inherent requirements of the work sought because of his or her age.
(3) In deciding whether the person is unable to carry out those requirements because of his or her age, take into account:
(a) the person’s past training, qualifications and experience relevant to the work sought; and
(b) all other relevant factors that it is reasonable to take into account.
Definition
(4) In this section:
employment agency means any person who, or body that, whether for payment or not, assists persons to find employment or other work or assists employers to find employees or workers.
25 Exemption for youth wages
(1) This Division does not make it unlawful for a person to discriminate against another person on the ground of the other person’s age, in relation to youth wages:
(a) in the arrangements made for the purpose of determining who should be offered work; or
(b) in determining who should be offered work; or
(c) in payment, or offer of payment, of remuneration for work.
(2) In this section:
youth wages means remuneration for persons who are under 21.
Division 3—Discrimination in other areas
26 Education
(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person’s age:
(a) by refusing or failing to accept the person’s application for admission as a student; or
(b) in the terms or conditions on which it is prepared to admit the person as a student.
(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student’s age:
(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment.
Exemption for educational institutions established wholly or primarily for students above a particular age
(3) This section does not make it unlawful to discriminate against a person on the ground of the person’s age in respect of admission to an educational institution established wholly or primarily for students above a particular age, if the person is not above that age.
Definitions
(4) In this section:
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.
27 Access to premises
It is unlawful for a person to discriminate against another person on the ground of the other person’s age:
(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b) in the terms or conditions on which the first‑mentioned person is prepared to allow the other person access to, or the use of, any such premises; or
(c) in relation to the provision of means of access to such premises; or
(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e) in the terms or conditions on which the first‑mentioned person is prepared to allow the other person the use of any such facilities; or
(f) by requiring the other person to leave such premises or cease to use such facilities.
28 Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s age:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
29 Accommodation
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s age:
(a) by refusing the other person’s application for accommodation; or
(b) in the terms or conditions on which the accommodation is offered to the other person; or
(c) by deferring the other person’s application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.
(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s age:
(a) by denying the other person access, or limiting the other person’s access, to any benefit associated with accommodation occupied by the other person; or
(b) by evicting the other person from accommodation occupied by the other person; or
(c) by subjecting the other person to any other detriment in relation to accommodation occupied by the other person.
Exemption for accommodation provider who is resident etc.
(3) This section does not apply to or in respect of the provision of accommodation in premises if:
(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside on those premises; and
(b) the accommodation provided in those premises is for no more than 3 persons other than a person mentioned in paragraph (a) or near relatives of such a person.
Definitions
(4) In this section:
accommodation includes residential or business accommodation.
child: without limiting who is a child of a person for the purposes of paragraph (a) of the definition of near relative in this subsection, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.
de facto partner has the meaning given by the Acts Interpretation Act 1901.
near relative, in relation to a person, means:
(a) a parent, child, grandparent, grandchild, brother or sister of the person; or
(b) the spouse or de facto partner of the first‑mentioned person or of a person mentioned in paragraph (a).
parent: without limiting who is a parent of a person for the purposes of paragraph (a) of the definition of near relative in this subsection, someone is the parent of a person if the person is his or her child because of the definition of child in this section.
Family relationships
(5) For the purposes of paragraph (a) of the definition of near relative in subsection (4), if one person is the child of another person because of the definition of child in that subsection, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.
30 Land
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s age:
(a) by refusing or failing to dispose of an estate or interest in land to the other person; or
(b) in the terms or conditions on which an estate or interest in land is offered to the other person.
Exemption for disposal by will or by way of gift
(2) This section does not apply in relation to a disposal of an estate or interest in land by will or by way of gift.
31 Administration of Commonwealth laws and programs
(1) It is unlawful for a person who:
(a) performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program; or
(b) has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program;
to discriminate against another person on the ground of the other person’s age in the performance of that function, the exercise of that power or the fulfilment of that responsibility.
Definition
(2) In this section:
Commonwealth program means a program conducted by or on behalf of the Commonwealth Government.
32 Requests for information
It is unlawful for a person (the first person) to request or require another person (the other person) to provide information (whether by way of completing a form or otherwise) if:
(a) the information is requested or required in connection with, or for the purposes of, the first person doing a particular act; and
(b) under Division 2 or this Division, it would be unlawful in particular circumstances for the first person, in doing that act, to discriminate against the other person on the ground of the other person’s age; and
(c) persons of a different age would not be requested or required to provide the information in circumstances that are the same or not materially different.
Division 4—General exemptions
33 Positive discrimination
This Part does not make it unlawful for a person to discriminate against another person, on the ground of the other person’s age, by an act that is consistent with the purposes of this Act, if:
(a) the act provides a bona fide benefit to persons of a particular age; or
Example 1: This paragraph would cover a hairdresser giving a discount to a person holding a Seniors Card or a similar card, because giving the discount is an act that provides a bona fide benefit to older persons.
Example 2: This paragraph would cover the provision to a particular age group of a scholarship program, competition or similar opportunity to win a prize or benefit.
(b) the act is intended to meet a need that arises out of the age of persons of a particular age; or
Example: Young people often have a greater need for welfare services (including information, support and referral) than other people. This paragraph would therefore cover the provision of welfare services to young homeless people, because such services are intended to meet a need arising out of the age of such people.
(c) the act is intended to reduce a disadvantage experienced by people of a particular age.
Example: Older people are often more disadvantaged by retrenchment than are other people. This paragraph would therefore cover the provision of additional notice entitlements for older workers, because such entitlements are intended to reduce a disadvantage experienced by older people.
34 Charities
This Part does not:
(a) affect a provision (whether made before or after the commencement of this Part) of the governing rules (within the meaning of the Australian Charities and Not‑for‑profits Commission Act 2012) of a registered charity, if the provision:
(i) confers benefits for charitable purposes; or
(ii) enables such benefits to be conferred;
wholly or in part on persons of a particular age; or
(b) make unlawful any act done to give effect to such a provision.
35 Religious bodies
This Part does not affect an act or practice of a body established for religious purposes that:
(a) conforms to the doctrines, tenets or beliefs of that religion; or
(b) is necessary to avoid injury to the religious sensitivities of adherents of that religion.
36 Voluntary bodies
(1) This Part does not make it unlawful for a voluntary body to discriminate against a person, on the ground of the person’s age, in connection with:
(a) the admission of persons as members of the body; or
(b) the provision of benefits, facilities or services to members of the body.
(2) In this section:
registered organisation means an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009.
voluntary body means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include:
(a) a registered organisation; or
(b) a body established by a law of the Commonwealth, of a State or of a Territory; or
(c) an association that provides grants, loans, credit or finance to its members.
37 Superannuation, insurance and credit—actuarial data etc.
Superannuation and insurance
(1) Subsections (2) and (3) apply to the following:
(a) an annuity;
(b) a life insurance policy;
(c) a policy of insurance against accident or any other policy of insurance;
(d) membership of a superannuation or provident fund;
(e) membership of a superannuation or provident scheme.
(2) This Part does not make it unlawful for a person to discriminate against another person, on the ground of the other person’s age:
(a) in respect of the terms or conditions on which the annuity, policy or membership is offered to, or may be obtained by, the other person; or
(b) by refusing to offer the annuity, policy or membership to the other person;
if the condition in subsection (3) is satisfied.
(3) The condition is satisfied if:
(a) the discrimination:
(i) is based upon actuarial or statistical data on which it is reasonable for the first‑mentioned person to rely; and
(ii) is reasonable having regard to the matter of the data and other relevant factors; or
Note: The Commission and the President can require the disclosure of the source of the actuarial or statistical data (see section 54).
(b) in a case where no such actuarial or statistical data is available and cannot reasonably be obtained—the discrimination is reasonable having regard to any other relevant factors.
Credit
(4) This Part does not make it unlawful for a person to discriminate against another person, on the ground of the other person’s age:
(a) in respect of the terms or conditions on which credit is provided to, or may be obtained by, the other person; or
(b) by refusing to offer credit to the other person;
if the condition in subsection (5) is satisfied.
(5) The condition is satisfied if the discrimination:
(a) is based upon actuarial or statistical data on which it is reasonable for the first‑mentioned person to rely; and
(b) is reasonable having regard to the matter of the data.
Note: The Commission and the President can require the disclosure of the source of the actuarial or statistical data (see section 54).
38 Superannuation legislation
(1) This Part does not make unlawful anything done by a person in direct compliance with:
(a) a Commonwealth Act (or a provision of a Commonwealth Act) relating to superannuation; or
(b) a regulation or any other instrument (or a provision of a regulation or instrument) that:
(i) relates to superannuation; and
(ii) is made under a Commonwealth Act.
(2) This Part does not make unlawful anything done by an exempt public sector superannuation scheme (within the meaning of the Superannuation Industry (Supervision) Act 1993) in accordance with an Act of the Commonwealth, a State or a Territory, or a trust deed, by or under which the scheme is established.
39 Direct compliance with laws, orders etc.
Acts, regulations and instruments covered by Schedule 1
(1) This Part does not make unlawful anything done by a person in direct compliance with:
(a) an Act mentioned in Schedule 1; or
(b) a regulation or any other instrument covered by Schedule 1.
Provisions of Acts, regulations and instruments covered by Schedule 2
(1A) This Part does not make unlawful anything done by a person in direct compliance with a provision of an Act, regulation or other instrument if the provision is covered by Schedule 2.
Other Acts or regulations—2 year exemption period
(2) This Part does not make unlawful anything done by a person, in direct compliance with any other Commonwealth Act or regulation, during the period:
(a) beginning on the day on which this Act commences; and
(b) ending 2 years after that day.
(3) To avoid doubt, subsection (2) does not affect the operation of any other provision in this Division.
State and Territory Acts, regulations and instruments
(4) This Part does not make unlawful anything done by a person in direct compliance with:
(a) an Act of a State or Territory; or
(b) a regulation or any other instrument made under an Act of a State or Territory.
(5) Subsection (4) does not apply in relation to an Act, regulation or other instrument of a State or Territory if the Act, regulation or instrument is specified in regulations made for the purposes of this subsection.
(6) To avoid doubt, section 14 of the Legislation Act 2003 does not prevent a regulation made for the purposes of subsection (5) from specifying an Act, regulation or instrument as in force at a particular time or as in force from time to time.
Court orders
(7) This Part does not make unlawful anything done by a person in direct compliance with an order of a court.
Workplace relations
(8) This Part does not make unlawful anything done by a person in direct compliance with any of the following:
(a) an order, determination or award of a court or tribunal having power to fix minimum wages;
(b) an instrument (an industrial instrument) that is:
(i) a fair work instrument (within the meaning of the Fair Work Act 2009); or
(ii) a transitional instrument or Division 2B State instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009).
Note: A person does not comply with an industrial instrument for the purpose of this subsection if that person purports to comply with a provision of that instrument that has no effect. Accordingly, the exemption under this subsection for acting in direct compliance with such an instrument would not apply in such circumstances.
Service of documents
(9) This Part does not make unlawful anything done by a person in direct compliance with a provision of a Commonwealth Act, regulation or other instrument merely because the provision requires a person to form an opinion about the age of another person upon whom a document is to be served.
40 Taxation laws
This Part does not make unlawful anything done by a person in direct compliance with a taxation law (within the meaning of the Income Tax Assessment Act 1997).
41 Pensions, allowances and benefits etc.
(1) This Part does not make unlawful anything done by a person in direct compliance with:
(a) the A New Tax System (Family Assistance) Act 1999; or
(b) the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c) the Child Support (Assessment) Act 1989; or
(d) the Child Support (Registration and Collection) Act 1988; or
(e) the Defence Service Homes Act 1918; or
(f) the Disability Services Act 1986; or
(fa) the Military Rehabilitation and Compensation Act 2004; or
(fb) the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004; or
(fba) the National Disability Insurance Scheme Act 2013; or
(fc) the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988; or
(g) the Social Security Act 1991; or
(h) the Social Security (Administration) Act 1999; or
(i) the Social Security (International Agreements) Act 1999; or
(j) the Veterans’ Entitlements Act 1986.
(2) This Part does not make unlawful anything done by a person in direct compliance with a regulation under an Act mentioned in paragraph (1)(a), (b), (c), (d), (f), (g), (h) or (i).
(2A) This Part does not make unlawful anything done by a person in direct compliance with guidelines in force under paragraph 169(a) of the A New Tax System (Family Assistance) (Administration) Act 1999.
(2AA) This Part does not make unlawful anything done by a person in direct compliance with section 8, 16 or 21, Division 8 of Part 2, or Part 5, of the Farm Household Support Act 2014.
(2B) This Part does not make unlawful anything done by a person in direct compliance with a regulation, scheme or other instrument under the Military Rehabilitation and Compensation Act 2004 or the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004.
(2C) This Part does not make unlawful anything done by a person in direct compliance with a regulation, rule or other instrument under the National Disability Insurance Scheme Act 2013.
(3A) This Part does not make unlawful anything done by a person in direct compliance with guidelines in force under paragraph 209(a) of the Social Security (Administration) Act 1999.
(4) This Part does not make unlawful anything done by a person in direct compliance with a determination in force under paragraph 88A(1)(c) of the Veterans’ Entitlements Act 1986.
(5) This Part does not make unlawful anything done by a person in direct compliance with the Approved Guide to the Assessment of Rates of Veterans’ Pensions (within the meaning of the Veterans’ Entitlements Act 1986).
(6) This Part does not make unlawful anything done by a person in direct compliance with the Veterans’ Children Education Scheme (within the meaning of the Veterans’ Entitlements Act 1986).
41A Commonwealth employment programs
(1) This Part does not make an exempted employment program unlawful.
Example: A Commonwealth program that provides young people with an opportunity to get work experience with a view to improving their prospects of getting employment would be covered by this subsection.
(2) This Part does not make unlawful anything done by a person in accordance with an exempted employment program.
(3) In this section:
exempted employment program means a program, scheme or arrangement that:
(a) is conducted by or on behalf of the Commonwealth Government; and
(b) is primarily intended to:
(i) improve the prospects of participants getting employment; or
(ii) increase workforce participation; and
(c) meets at least one of the following requirements:
(i) it is also intended to meet a need that arises out of the age of persons of a particular age, regardless whether the need also arises out of the age of persons of a different age;
(ii) it is also intended to reduce a disadvantage experienced by people of a particular age, regardless whether the disadvantage is also experienced by persons of a different age;
(iii) it requires participants to enter into contracts, and is not made available to persons under the age of 18;
(iv) it is made available to persons eligible for a particular Commonwealth benefit or allowance;
(v) it is not made available to persons eligible for a particular Commonwealth benefit or allowance.
42 Health
Exempted health programs
(1) This Part does not make an exempted health program (see subsection (6)) unlawful.
Example: A program for providing free influenza vaccines to older people, based on evidence showing that older people are at greater risk of complications as a result of influenza than are people of different ages, would be covered by this subsection.
(2) This Part does not make unlawful anything done by a person in accordance with an exempted health program.
Example: A person providing free influenza vaccines to older people in accordance with an exempted health program would be covered by this subsection.
Individual decisions—health or medical goods or services
(3) This Part does not make it unlawful for a person to discriminate against another person, on the ground of the other person’s age, by taking the other person’s age into account in making a decision relating to health goods or services or medical goods or services, if:
(a) taking the other person’s age into account in making the decision is reasonably based on evidence, and professional knowledge, about the ability of persons of the other person’s age to benefit from the goods or services; and
(b) the decision is not in accordance with an exempted health program.
Note: The exemption in subsection (2) covers anything done by a person in accordance with an exempted health program.
(4) The evidence mentioned in paragraph (3)(a) is the evidence that was reasonably available at the time the decision was made.
Administration of certain health legislation
(5) This Part does not make unlawful anything done by a person in relation to the administration of:
(a) the Health Insurance Act 1973, or a regulation or any other instrument made under that Act, to the extent that the thing done relates to:
(i) the release of, or the giving of access to, information held by the Chief Executive Medicare; or
(ii) the issue of a medicare card; or
(b) the National Health Act 1953, or a regulation or any other instrument made under that Act, to the extent that the thing done relates to the release of, or the giving of access to, information held by the Chief Executive Medicare; or
(c) the Therapeutic Goods Act 1989, or a regulation or any other instrument made under that Act.
Definitions
(6) In this section:
evidence includes medical, clinical and scientific evidence.
exempted health program means a program, scheme or arrangement that:
(a) relates to health goods or services or medical goods or services; and
(b) to the extent that it applies to people of a particular age, is reasonably based on evidence of effectiveness, and on cost (if cost has been taken into account in relation to the program, scheme or arrangement).
The evidence of effectiveness mentioned in paragraph (b) is evidence that is reasonably available from time to time about matters (such as safety, risks, benefits and health needs) that:
(c) affect people of the age mentioned in that paragraph (if no comparable evidence is reasonably available from time to time in relation to people of a different age); or
(d) affect people of the age mentioned in that paragraph in a different way to people of a different age (in all other cases).
medicare card has the meaning given by subsection 84(1) of the National Health Act 1953.
43 Migration and citizenship etc.
(1) This Part does not make unlawful anything done by a person in relation to the administration of:
(a) the Migration Act 1958; or
(b) the Immigration (Guardianship of Children) Act 1946; or
(c) a regulation or any other instrument made under either of those Acts.
(2) This Part does not make unlawful anything done by a person in direct compliance with:
(a) the Australian Citizenship Act 2007; or
(b) the Immigration (Education) Act 1971.
Division 5—Exemptions granted by Commission
44 Commission may grant exemptions
(1) The Commission may, on application by:
(a) a person:
(i) on that person’s own behalf; or
(ii) on behalf of that person and another person or other persons; or
(iii) on behalf of another person or other persons; or
(b) 2 or more persons:
(i) on their own behalf; or
(ii) on behalf of themselves and another person or other persons; or
(iii) on behalf of another person or other persons;
by instrument, grant to the person or persons to whom the application relates, as the case may be, an exemption from the operation of a provision of Division 2 or 3, 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 2 or 3 has been granted under subsection (1), being an application made before the expiration of the period to which the exemption was granted, grant a further exemption from the operation of that provision.
(3) An exemption granted under this section:
(a) may be granted subject to such terms and conditions as are specified in the instrument; and
(b) may be expressed to apply only in such circumstances, or in relation to such activities, as are specified in the instrument; and
(c) is to be granted for a specified period not exceeding 5 years.
45 Review by Administrative Appeals Tribunal
An application may be made to the Administrative Appeals Tribunal for a review of a decision made by the Commission under section 44.
46 Notice of decisions to be published
(1) The Commission, not later than one month after it makes a decision under section 44, is to cause to be published in the Gazette a notice of the making of the decision:
(a) setting out its findings on material questions of facts; and
(b) referring to the evidence on which those findings were based; and
(c) giving the reasons for the making of the decision; 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 decision to which the notice relates by or on behalf of any person or persons whose interests are affected by the decision.
(2) Any failure to comply with the requirements of subsection (1) in relation to a decision does not affect the validity of the decision.
47 Effect of exemptions
This Part does not make it unlawful for:
(a) a person who has been granted an exemption from a provision of Division 2 or 3; or
(b) 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 provisions of the instrument by which the exemption was granted.
Division 6—Victimisation
47A Victimisation
(1) It is unlawful for a person to commit an act of victimisation against another person.
Note 1: See also section 51 (offence of victimisation).
Note 2: See also the definition of unlawful discrimination in the Australian Human Rights Commission Act 1986.
Victimisation—actual detriment
(2) For the purposes of subsection (1), a person (the first person) commits an act of victimisation against another person (the second person) if:
(a) the first person engages in conduct; and
(b) the first person’s conduct causes detriment to the second person; and
(c) the first person intends that the first person’s conduct cause detriment to the second person; and
(d) the detriment is caused without the consent of the second person; and
(e) the first person engages in the first person’s conduct because the first person believes that:
(i) the second person has made, or proposes to make, a complaint under the Australian Human Rights Commission Act 1986; or
(ii) the second person has brought, or proposes to bring, proceedings under the Australian Human Rights Commission Act 1986 against any person; or
(iii) the second person has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or
(iv) the second person has attended, or proposes to attend, a conference held under the Australian Human Rights Commission Act 1986; or
(v) the second person has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or
(vi) the second person has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or
(vii) the second person has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part.
Victimisation—threat of detriment
(3) For the purposes of subsection (1), a person (the first person) commits an act of victimisation against another person (the second person) if:
(a) the first person makes to the second person a threat to cause detriment to the second person or to a third person; and
(b) the first person:
(i) intends the second person to fear that the threat will be carried out; or
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(c) the first person makes the threat because the first person believes in a matter mentioned in paragraph (2)(e).
(4) For the purposes of subsection (3), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(5) In a proceeding for a contravention of subsection (1) constituted by an act of victimisation covered by subsection (3), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
Part 5—Offences
Division 1—General rules relating to offences
48 Application of the Criminal Code
Part 2.5 of Chapter 2 of the Criminal Code does not apply to offences against this Act.
Note: Part 2.5 of Chapter 2 of the Criminal Code sets out the general principles of corporate criminal responsibility.
49 Unlawful act not offence unless expressly provided
Except as expressly provided by this Part, nothing in this Act makes it an offence to do an act that is unlawful because of a provision of Part 4.
Division 2—Specific offences
50 Advertisements
(1) A person commits an offence if:
(a) the person publishes or displays an advertisement or notice, or causes or permits an advertisement or notice to be published or displayed; and
(b) the advertisement or notice is published or displayed (whether or not to the public):
(i) in a newspaper or other publication; or
(ii) by television or radio; or
(iii) by display of notices, signs, labels, show cards or goods; or
(iv) by distribution of samples, circulars, catalogues, price lists or other material; or
(v) by exhibition of pictures, models or films; or
(vi) in any other way; and
(c) the advertisement indicates, or could reasonably be understood as indicating, an intention to do an act; and
(d) that act would be unlawful under Part 4.
Penalty: 10 penalty units.
Note: Complaints can be made to the Commission about conduct that is an offence under this subsection (see the definition of unlawful discrimination in subsection 3(1) of the Australian Human Rights Commission Act 1986, and section 46P of that Act).
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
51 Victimisation
Victimisation—actual detriment
(1) A person (the first person) commits an offence if:
(a) the first person engages in conduct; and
(b) the first person’s conduct causes detriment to another person (the second person); and
(c) the first person intends that his or her conduct cause detriment to the second person; and
(d) the detriment is caused without the consent of the second person; and
(e) the first person engages in his or her conduct because he or she believes that:
(i) the second person has made, or proposes to make, a complaint under the Australian Human Rights Commission Act 1986; or
(ii) the second person has brought, or proposes to bring, proceedings under the Australian Human Rights Commission Act 1986 against any person; or
(iii) the second person has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or
(iv) the second person has attended, or proposes to attend, a conference held under the Australian Human Rights Commission Act 1986; or
(v) the second person has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or
(vi) the second person has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or
(vii) the second person has made an allegation that a person has done an act that is unlawful by reason of a provision of Part 4 of this Act.
Penalty: Imprisonment for 6 months.
Victimisation—threat of detriment
(2) A person (the first person) commits an offence if:
(a) the first person makes to another person (the second person) a threat to cause detriment to the second person or to a third person; and
(b) the first person:
(i) intends the second person to fear that the threat will be carried out; or
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(c) the first person makes the threat because he or she believes in a matter mentioned in paragraph (1)(e).
Penalty: Imprisonment for 6 months.
(3) For the purposes of subsection (2), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(4) In a prosecution for an offence against subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
52 Failure to disclose source of actuarial or statistical data
(1) A person commits an offence if:
(a) the President or the Commission gives the person a notice in writing under subsection 54(2), requiring the person to disclose the source of actuarial or statistical data; and
(b) the person does not comply with the requirement within 28 days after being given the notice.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) Subsection 4K(2) of the Crimes Act 1914 does not apply to subsection (1).
Part 6—Functions of the Australian Human Rights Commission
53 Functions of the Commission
(1) The following functions are conferred on the Commission:
(a) to exercise the powers conferred on it by section 44;
(b) to promote an understanding and acceptance of, and compliance with, this Act;
(c) to undertake research and educational programs, and other programs, on behalf of the Commonwealth for the purpose of promoting the objects of this Act;
(d) to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments are, or would be, inconsistent with or contrary to the objects of this Act, and to report to the Minister the results of any such examination;
(e) on its own initiative or when requested by the Minister, to report to the Minister 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 age;
(f) to prepare, and to publish in the manner the Commission considers appropriate, guidelines for avoiding discrimination on the ground of age;
(g) where the Commission thinks 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 age;
(h) 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 Australian Human Rights Commission Act 1986.
(2) In this section:
enactment has the same meaning as in the Australian Human Rights Commission Act 1986.
proposed enactment has the same meaning as in the Australian Human Rights Commission Act 1986.
Part 6A—Age Discrimination Commissioner
53A Age Discrimination Commissioner
(1) There is to be an Age Discrimination Commissioner, who is to be appointed by the Governor‑General by written instrument.
Note: Subject to subsection 53B(1A), the Age Discrimination Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
(2) A person must not be appointed under subsection (1) as the Age Discrimination Commissioner unless the Minister is satisfied that:
(a) the person has appropriate qualifications, knowledge or experience; and
(b) the selection of the person for the appointment is the result of a process that:
(i) was merit‑based; and
(ii) included public advertising of the position.
(3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Age Discrimination Commissioner under a previous appointment under subsection (1).
53B Terms and conditions of appointment
(1) The Commissioner holds office for the period specified in the instrument of appointment.
(1A) A person must not be appointed as the Age Discrimination Commissioner under section 53A for a period if the sum of the following exceeds 7 years:
(a) that period;
(b) any periods of previous appointment of the person as the Age Discrimination Commissioner under that section.
(2) The Commissioner holds office on a full‑time basis.
(3) The Commissioner holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Governor‑General.
53C Remuneration of Commissioner
(1) The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is prescribed by the regulations.
(2) The Commissioner is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
53D Leave of absence
(1) The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
53E Outside employment
The Commissioner must not engage in paid employment outside the duties of his or her office without the Minister’s approval.
53F Resignation
(1) The Commissioner may resign his or her appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.
53G Termination of appointment
(1) The Governor‑General may terminate the appointment of the Commissioner for misbehaviour or physical or mental incapacity.
(2) The Governor‑General must terminate the appointment of the Commissioner if:
(a) the Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Commissioner engages, except with the Minister’s approval, in paid employment outside the duties of his or her office (see section 53E).
53H Acting Commissioner
The Minister may, by written instrument, appoint a person to act as Commissioner:
(a) during a vacancy in the office of Commissioner (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Commissioner:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the functions of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
Part 7—Miscellaneous
54 Power to require source of actuarial data or statistical data
(1) Subsection (2) applies if a person has acted in a way that would, apart from paragraph 37(3)(a) or subsection 37(5), be unlawful under Part 4.
(2) The President or the Commission may give the person a notice in writing, as prescribed, requiring the person to disclose to the President or to the Commission, as the case may be, the source of the actuarial or statistical data on which the act of discrimination was based.
Note: Failure to comply with the requirement is an offence under section 52.
55 Delegation
The Commission may, by writing under its seal, delegate all or any of the powers conferred on it under this Act to:
(a) the Commissioner or another member of the Commission; or
(b) a member of the staff of the Commission; or
(c) another person or body of persons.
56 Liability of persons involved in unlawful acts
A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Part 4 is, for the purposes of this Act, taken also to have done the act.
57 Conduct by directors, employees and agents
Bodies corporate
(1) If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
Persons other than bodies corporate
(3) If, for the purposes of this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to a particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that the first‑mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
(5) If:
(a) a person other than a body corporate is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
Interpretation
(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
58 Protection from civil actions
(1) The Commission, the Commissioner or another member of the Commission, or a person acting for or on behalf of the Commission or the Commissioner or another member of the Commission, is not liable to an action or other proceeding for damages for or in relation to an act done in good faith:
(a) in performance or purported performance of any function conferred on the Commission; or
(b) in exercise or purported exercise of any power conferred on the Commission.
(2) Subsection (3) applies if a submission has been made, a document or information has been given, or evidence has been given, to the Commission or to a person acting for or on behalf of the Commission.
(3) A person is not liable to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the submission was made, the document or information was given or the evidence was given.
59 Unlawful act not basis of civil action unless expressly so provided
(1) This Act does not confer on a person a right of action in respect of the doing of an act that is unlawful under a provision of Part 4 unless a provision of this Act expressly provides otherwise.
(2) For the purposes of subsection (1), a reference to an act that is unlawful under a provision of Part 4 includes a reference to an act that is an offence under a provision of Part 5.
60 Non‑disclosure of private information
(1) A person bound by this section because of office, employment or authorisation must not, either directly or indirectly:
(a) make a record of, or divulge or communicate to any person, any information relating to the affairs of another person acquired by the first‑mentioned person because of that person’s office or employment under or for the purposes of this Act or because of that 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 given for the purposes of this Act.
Penalty: Imprisonment for 2 years.
(2) A person bound by this section because of office, employment or authorisation must not be required:
(a) to divulge or communicate to a court any information relating to the affairs of another person acquired by the first‑mentioned person because of that person’s office or employment under or for the purposes of this Act or because of that 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 first‑mentioned person has custody, or to which that person has access, because of that person’s office or employment under or for the purposes of this Act or because of that person being or having been so authorised;
except where it is necessary to do so for the purposes of this Act.
(3) This section does not prohibit a person from:
(a) making a record of information that is required or permitted by an Act to be recorded, if the record is made for the purposes of or under that Act; or
(b) divulging or communicating information, or producing a document, to any person in accordance with an arrangement in force under section 16 of the Australian Human Rights Commission Act 1986; or
(c) divulging or communicating information, or producing a document that is 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 under that Act.
Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) Subsection (1) does not prevent a person from making a record of, divulging, communicating or making use of information, or producing a document, if the person does so:
(a) in the performance of a duty under or in connection with this Act; or
(b) in the performance or exercise of a function or power conferred on the Commission under this Act.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) Subsection (2) does not prevent a person from being required, for the purposes of or under an Act, to divulge or communicate information, or to produce a document, that is required or permitted by that Act to be divulged, communicated or produced.
(6) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
person bound by this section because of office, employment or authorisation means a person who is, or has at any time been:
(a) the Commissioner or another member of the Commission; or
(b) a member of the staff assisting the Commission; or
(c) a person authorised to perform or exercise any function or power of the Commission or any function or power for or on behalf of the Commission, being a function or power conferred on the Commission under this Act.
produce includes permit access to.
61 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.