Anti-Discrimination Acr 1977 (NSW) PDF

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New South Wales

Anti-Discrimination Act 1977 No 48

Status information Currency of version Historical version for 8 July 2011 to 31 October 2011 (generated 3 November 2011 at 16:29). Legislation on the NSW legislation website is usually updated within 3 working days. Provisions in force All the provisions displayed in this version of the legislation have commenced. For commencement and other details see the Historical notes. Does not include amendments by: Public Sector Employment and Management Amendment (Ethics and Public Service Commissioner) Act 2011 No 48 (not commenced) See also: Statute Law (Miscellaneous Provisions) Bill (No 2) 2011

This version of the legislation is compiled and maintained in a database of legislation by the Parliamentary Counsel’s Office and published on the NSW legislation website.

New South Wales

Anti-Discrimination Act 1977 No 48

Contents Page

Part 1

Preliminary 1 2 3 4 4A 4B 5

Part 2

Name of Act Commencement (Repealed) Definitions Act done because of unlawful discrimination and for other reasons References to certain employers Act binds Crown

2 2 2 2 5 5 6

Racial discrimination Division 1 6 7

General

(Repealed) What constitutes discrimination on the ground of race

Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

7 7

Anti-Discrimination Act 1977 No 48 Contents Page

Division 2 8 9 10 10A 10B 11 12 13 14 15 16

Division 3 17 18 19 20 20A

Part 2A

11 11 11 12 12

Racial vilification

Definition of “public act” Racial vilification unlawful Offence of serious racial vilification

Division 4 21 22

Discrimination in other areas

Education (Repealed) Provision of goods and services Accommodation Registered clubs

Division 3A 20B 20C 20D

Discrimination in work

Discrimination against applicants and employees 7 Discrimination against commission agents 8 Discrimination against contract workers 8 Partnerships 9 Discrimination by local government councillors 9 Industrial organisations 9 Qualifying bodies 10 Employment agencies 10 Exception—genuine occupational qualification 10 Exception—employment intended to provide training in skills to be exercised outside New South Wales 11 Exception—employment on ship or aircraft 11

13 13 14

Exceptions to Part 2

Special needs programs and activities Sport

14 14

Prohibition of sexual harassment 22A 22B 22C 22D 22E 22F 22G 22H 22I 22J

Meaning of “sexual harassment” Harassment of employees, commission agents, contract workers, partners etc Harassment by members of qualifying bodies Harassment in employment agencies Harassment at educational institutions Provision of goods and services Provision of accommodation Land Sport State laws and programs

Contents page 2 Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

16 16 17 17 18 18 18 19 19 19

Anti-Discrimination Act 1977 No 48 Contents Page

Part 3

Sex discrimination Division 1 23 24

Definitions What constitutes discrimination on the ground of sex

Division 2 25 26 27 27A 27B 28 29 30 31

35 36 37 38

Part 3A

21 22 22 23 23 23 24 24 24

Discrimination in other areas

Education (Repealed) Provision of goods and services Accommodation Registered clubs

Division 4

20 20

Discrimination in work

Discrimination against applicants and employees Discrimination against commission agents Discrimination against contract workers Partnerships Discrimination by local government councillors Industrial organisations Qualifying bodies Employment agencies Exception—genuine occupational qualification

Division 3 31A 32 33 34 34A

General

25 26 26 26 27

Exceptions to Part 3

Pregnancy, childbirth and breastfeeding Superannuation Insurance etc Sport

28 28 29 29

Discrimination on transgender grounds Division 1 38A 38B

Interpretation What constitutes discrimination on transgender grounds

Division 2 38C 38D 38E 38F 38G 38H 38I

General 30 30

Discrimination in work

Discrimination against applicants and employees Discrimination against commission agents Discrimination against contract workers Partnerships Discrimination by local government councillors Industrial organisations Qualifying bodies

31 31 32 32 33 33 33 Contents page 3

Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

Anti-Discrimination Act 1977 No 48 Contents Page

38J

Employment agencies

Division 3 38K 38L 38M 38N 38O

38P 38Q

Part 4

34 34 34 34 35

Exceptions to Part 3A

Sport Superannuation

Division 5 38R 38S 38T

Discrimination in other areas

Education (Repealed) Provision of goods and services Accommodation Registered clubs

Division 4

34

36 36

Transgender vilification

Definition Transgender vilification unlawful Offence of serious transgender vilification

36 37 37

Discrimination on the ground of marital or domestic status Division 1 39

What constitutes discrimination on the ground of marital or domestic status

Division 2 40 41 42 42A 42B 43 44 45 46

49

38 39 40 40 40 41 41 41 42

Discrimination in other areas

Education Provision of goods and services Accommodation Registered clubs

Division 4

38

Discrimination in work

Discrimination against applicants and employees Discrimination against commission agents Discrimination against contract workers Partnerships Discrimination by local government councillors Industrial organisations Qualifying bodies Employment agencies Exception—employment of married couple

Division 3 46A 47 48 48A

General

42 42 42 43

Exception to Part 4

Superannuation

Contents page 4 Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

43

Anti-Discrimination Act 1977 No 48 Contents Page

Part 4A

Discrimination on the ground of disability Division 1 49A 49B 49C

Disability includes past, future and presumed disability What constitutes discrimination on the ground of disability What constitutes unjustifiable hardship

Division 2 49D 49E 49F 49G 49H 49I 49J 49K

49P 49PA 49Q 49R

Part 4B

46 47 48 49 50 50 50 51

Discrimination in other areas

Education (Repealed) Provision of goods and services Accommodation Registered clubs

Division 4

45 45 46

Discrimination in work

Discrimination against applicants and employees Discrimination against commission agents Discrimination against contract workers Partnerships Discrimination by local government councillors Industrial organisations Qualifying bodies Employment agencies

Division 3 49L 49LA 49M 49N 49O

General

51 52 52 52 53

Exceptions to Part 4A

Public health Persons addicted to prohibited drugs Superannuation, insurance Sport

54 54 55 55

Discrimination on the ground of a person’s responsibilities as a carer Division 1 49S 49T 49U

Meaning of “responsibilities as a carer” 56 What constitutes discrimination on the ground of a person’s responsibilities as a carer 57 What constitutes unjustifiable hardship 58

Division 2 49V 49W 49X 49Y

General

Discrimination in work

Discrimination against applicants and employees Discrimination against commission agents Discrimination against contract workers Partnerships

58 59 60 61

Contents page 5 Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

Anti-Discrimination Act 1977 No 48 Contents Page

49Z 49ZA 49ZB 49ZC 49ZD, 49ZE

Part 4C

Discrimination by local government councillors Industrial organisations Qualifying bodies Employment agencies (Repealed)

Discrimination on the ground of homosexuality Division 1 49ZF 49ZG

49ZH 49ZI 49ZJ 49ZK 49ZKA 49ZL 49ZM 49ZN

68 68 68 69

Homosexual vilification

Definition Homosexual vilification unlawful Offence of serious homosexual vilification

69 70 70

Compulsory retirement from employment on the ground of age 49ZU 49ZV 49ZW 49ZX

Part 4F

64 65 66 66 66 66 67 67

Discrimination in other areas

Education Provision of goods and services Accommodation Registered clubs

Division 4 49ZS 49ZT 49ZTA

Discrimination in work

Discrimination against applicants and employees Discrimination against commission agents Discrimination against contract workers Partnerships Discrimination by local government councillors Industrial organisations Qualifying bodies Employment agencies

Division 3 49ZO 49ZP 49ZQ 49ZR

General

Interpretation 64 What constitutes discrimination on the ground of homosexuality 64

Division 2

Part 4E

61 62 62 63 63

Application of Part Compulsory retirement unlawful Provision requiring retirement on basis of age of no effect Exceptions to this Part

71 71 72 72

HIV/AIDS vilification

49ZXA 49ZXB

Definitions HIV/AIDS vilification unlawful

Contents page 6 Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

73 73

Anti-Discrimination Act 1977 No 48 Contents Page

49ZXC

Part 4G

Offence of serious HIV/AIDS vilification

Age discrimination Division 1

49ZYA

49ZYB 49ZYC 49ZYD 49ZYE 49ZYF 49ZYG 49ZYH 49ZYI 49ZYJ 49ZYK

49ZYQ 49ZYR 49ZYS 49ZYT 49ZYU 49ZYV 49ZYW 49ZYX 49ZYY

75 76 76 77 77 78 78 78 79 79

Discrimination in other areas

Education (Repealed) Provision of goods and services Accommodation Registered clubs

Division 4

75

Discrimination in work

Discrimination against applicants and employees Discrimination against commission agents Discrimination against contract workers Partnerships Industrial organisations Qualifying bodies Employment agencies Junior employees Exception—genuine occupational qualification Exception—voluntary retirement or severance schemes

Division 3 49ZYL 49ZYM 49ZYN 49ZYO 49ZYP

General

What constitutes discrimination on the ground of age

Division 2

Part 5

74

79 80 80 81 81

Exceptions to Part 4G

Legal capacity and welfare of children Special needs programs and activities Superannuation Provision of insurance Credit applications Safety procedures Sport Certain activities or matters may be prescribed to be lawful Operation of Part 4E not affected

82 82 82 83 83 84 84 84 84

Other unlawful acts 50 51 52 53

Victimisation Advertisements Aiding and abetting etc Liability of principals and employers

85 85 86 86

Contents page 7 Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

Anti-Discrimination Act 1977 No 48 Contents Page

Part 6

General exceptions to this Act 54 55 56 57 58 59 59A

Acts done under statutory authority Charities Religious bodies Voluntary bodies (Repealed) Establishments providing housing accommodation for aged persons Adoption services

87 87 87 88 88 88 89

Parts 7, 7A 60–69OPart 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86

Part 9

8 The Anti-Discrimination Board

Definition 89 Constitution of Board 89 Appointment of members 89 Term of office 89 Eligibility for appointment to Board 89 Vacation of office 90 Removal from office 90 Filling casual vacancy 90 Member not subject to Public Sector Management Act 1988 91 Remuneration of members other than the President 91 President 91 Acting President 91 Alternate members 92 (Repealed) 92 Preservation of rights of President who was previously public servant 92 Meetings of the Board 93 Officers and employees 93

The functions of the President, the Tribunal and the Board Division 1 87

Definitions

Division 2 Subdivision 1 87A 87B 87C 88

Preliminary 94

Complaints—the functions of the President Lodgment of complaints

Persons who may make a complaint Complaints made on behalf of others Complaints by representative bodies Vilification complaints

Contents page 8 Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

94 95 96 96

Anti-Discrimination Act 1977 No 48 Contents Page

88A 88B 88C

Assistance by President in making complaints Making of complaints in more than one jurisdiction Withdrawal of consent for complaint

Subdivision 2 89 89A 89B 89C

90 90A 90B 90C 91 91A 91B 91C

93B 93C 94 94A

102

Termination of complaints 103 103 103 104

Referral of complaints to Tribunal

Referral of complaints to Tribunal at requirement of complainant 104 Referral of unresolved complaints to Tribunal after 18 months 104 Other referral of complaints to Tribunal 105 Severing complaints 105 Form of complaint to be referred to Tribunal 105

Subdivision 7 94B 94C

Declining of complaints during investigation

Settlement or resolution of complaint Withdrawal of complaint Abandonment of complaint Death of complainant or respondent does not terminate complaint

Subdivision 6 93A

98 98 99 100 100 100 101 101

President may decline complaint during investigation

Subdivision 5 92A 92B 92C 93

97 97 97 98

Investigation and conciliation of complaints

President to investigate complaints Investigation of vilification complaints Supplying information and documents Progress reports Prosecution for serious vilification Resolution of complaint by conciliation No right to representation Amendment of complaint

Subdivision 4 92

Making of complaints

Form and content of complaints Making of complaint Acceptance or declining of complaints by the President (Repealed)

Subdivision 3

96 97 97

Miscellaneous

Calculation of time Delegation—officers of President

106 106

Contents page 9 Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

Anti-Discrimination Act 1977 No 48 Contents Page

Division 3 95 95A 96 97 98 99 100 101 101A, 101B 102 103 104 105 106 107 108 109 110 110A 111 111A 112 113 114 115 116 117–118

Referral of complaints to Tribunal 106 (Repealed) 106 Leave of Tribunal required for inquiry into certain matters 106 Parties to proceedings before Tribunal 107 Fees or rewards for representing parties 107 Officer assisting Tribunal 108 Single proceeding in relation to several complaints 108 Determinations with respect to representative complaints 108 (Repealed) 109 Tribunal may dismiss complaint 109 Tribunal may amend complaint 109 Proof of exceptions 109 Interim orders 110 Appeals against interim orders 110 (Repealed) 110 Order or other decision of Tribunal 110 Order affecting industrial instrument 111 Tribunal may award costs 112 (Repealed) 112 Compliance with order of Tribunal 112 Compensation to offenders in custody—payment to Victims Compensation Fund 112 Interest on damages 113 Enforcement of orders by the President 113 Enforcement of non-monetary orders 113 Appeals to Appeal Panel against decisions of Tribunal 113 Relationship between this Division and Administrative Decisions Tribunal Act 1997 114 (Repealed) 114

Division 4 119 120 120A 121 121A 122

Part 9A

Complaints—the functions of the Administrative Decisions Tribunal

The functions of the Board

General functions of the Board Reference of certain matters to the Board by the Minister Codes of practice Review of legislation etc Execution of functions of the Board Annual report

114 115 116 116 116 117

Equal Opportunity in Public Employment Division 1 122A

General

Definitions

Contents page 10 Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

118

Anti-Discrimination Act 1977 No 48 Contents Page

122B 122C 122D

Application of Part 9A—authorities Objects Exercise of functions of authorities under Part 9A

Division 2 122E 122F 122G–122HD 122HE 122HF 122HG 122I

Part 9B

119 119 119 120 120 120 120

Equal employment opportunity management plans

Preparation and implementation of management plans (Repealed) Inconsistencies (Repealed) References Investigation Representation Powers of the Board on an investigation Incriminatory statements Conclusion of investigation Direction to amend management plan

121 122 122 122 122 122 122 123 123 123 124

Inter-governmental arrangements 122T 122U 122V 122W 122X

Part 10

The Director of Equal Opportunity in Public Employment

The Director Appointment of Director (Repealed) Acting Director (Repealed) Staff Functions

Division 3 122J 122JA 122K 122L 122M 122N 122O 122P 122Q 122R 122S

118 118 119

Definitions 125 Arrangements relating to human rights 125 Exercise of functions by State authorities pursuant to arrangement 125 Exercise of functions by State authorities pursuant to delegation etc 126 Exercise of certain functions by officers of the Board 126

Miscellaneous 123 124 124A 125 126 126A 127

Effect of contravention of Act or regulations Obstruction Secrecy Proceedings for offences Granting of exemptions by President Exemption for special needs programs and activities Regulations

127 127 127 128 128 129 130

Contents page 11 Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

Anti-Discrimination Act 1977 No 48 Contents Page

128 Schedule 1

Savings and transitional provisions Savings and transitional provisions

131 132

Table of amending instruments Table of amendments

138 144

Notes

Contents page 12 Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

New South Wales

Anti-Discrimination Act 1977 No 48

An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons.

Historical version for 8.7.2011 to 31.10.2011 (generated on 3.11.2011 at 16:29)

Section 1

Part 1 1

Anti-Discrimination Act 1977 No 48

Preliminary