Equal Opportunity (Miscellaneous) Amendment Act 2009 (SA)

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South Australia

Equal Opportunity (Miscellaneous) Amendment Act 2009

An Act to amend the Equal Opportunity Act 1984.

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Equal Opportunity (Miscellaneous) Amendment Act 2009.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Equal Opportunity Act 1984

4—Amendment of long title

Long title—delete "sex, sexuality, marital status, pregnancy, race, physical or intellectual impairment or age" and substitute:

sex, race, disability, age or various other grounds

5—Amendment of section 5—Interpretation

  1. (1)

    Section 5(1)—before the definition of the Commissioner insert:

    act includes an omission;

    assistance animal means—

    1. (a)

      a dog that is an accredited guide dog, an accredited hearing dog or an accredited disability dog under the Dog and Cat Management Act 1995; or

    2. (b)

      an animal of a class prescribed by regulation;

    business includes a business that is not carried on for profit;

    caring responsibilities—see subsection (3);

    child means a person who is under the age of 18 years;

    chosen gender—see subsection (5);

    close personal relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—

    1. (a)

      the relationship between a legally married couple; or

    2. (b)

      a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind;

      Note—

      Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.

  2. (2)

    Section 5(1)—after the definition of detriment insert:

    disability, in relation to a person, means—

    1. (a)

      total or partial loss of the person's bodily or mental functions; or

    2. (b)

      total or partial loss of a part of the body; or

    3. (c)

      the presence in the body of organisms causing disease or illness; or

    4. (d)

      the presence in the body of organisms capable of causing disease or illness; or

    5. (e)

      the malfunction, malformation or disfigurement of a part of the person's body; or

    6. (f)

      a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

    7. (g)

      a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

  3. (3)

    Section 5(1), definition of domestic partner—delete the definition and substitute:

    domestic partner—a person is the domestic partner of another if he or she lives with the other in a close personal relationship;

  4. (4)

    Section 5(1), definition of employment agency—delete "employment to employers" and substitute:

    work to persons seeking to employ or engage persons to perform work

  5. (5)

    Section 5(1), definitions of impairment and intellectual impairment—delete the definitions

  6. (6)

    Section 5(1), definition of marital status—delete "marital status means" and substitute:

    marital or domestic partnership status means

  7. (7)

    Section 5(1), definition of marital status, (f)—delete paragraph (f) and substitute:

    1. (f)

      being a domestic partner;

  8. (8)

    Section 5(1), after the definition of marital status insert:

    medical practitioner means a person who is registered in this State as a medical practitioner;

  9. (9)

    Section 5(1), definitions of physical impairment and race—delete the definitions and substitute:

    potential pregnancy of a woman means that the woman is likely, or is perceived as being likely, to become pregnant;

    race of a person means the nationality (current, past or proposed), country of origin, colour or ancestry of the person;

    registered industrial association means an industrial association or organisation registered under a law of the State or the Commonwealth;

  10. (10)

    Section 5(1), after the definition of the Registrar insert:

    secondary education institution means an institution at which secondary education is provided;

  11. (11)

    Section 5(1), definition of services to which this Act applies, (a)—delete paragraph (a) and substitute:

    1. (a)

      access to or use of a place or facilities that members of the public are permitted to enter or use; or

  12. (12)

    Section 5(1), definition of sexuality—delete ", bisexuality or transexuality" and substitute:

    or bisexuality

  13. (13)

    Section 5(1), definitions of transexual and transexuality—delete the definitions

  14. (14)

    Section 5—after subsection (2) insert:

    1. (3)

      For the purposes of this Act—

      1. (a)

        a person has caring responsibilities if the person has responsibilities to care for or support—

        1. (i)

          a dependent child of the person; or

        2. (ii)

          any other immediate family member of the person who is in need of care and support; and

      2. (b)

        an Aboriginal or Torres Strait Islander person also has caring responsibilities if the person has responsibilities to care for or support any person to whom that person is held to be related according to Aboriginal kinship rules or Torres Strait Islander kinship rules, as the case may require.

    2. (4)

      In subsection (3)—

    child includes an adopted child, a step-child or an ex-nuptial child;

    dependent child of a person means a child who is wholly or substantially dependent on the person;

    immediate family member of a person includes—

    1. (a)

      the person's spouse or domestic partner or former spouse or former domestic partner; and

    2. (b)

      an adult child, parent, grandparent, grandchild, or sibling of the person or of the spouse or domestic partner of the person.

    1. (5)

      For the purposes of this Act, a person is a person of a chosen gender if—

      1. (a)

        the person identifies on a genuine basis as a member of the opposite sex by assuming characteristics of the opposite sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the opposite sex; or

      2. (b)

        the person, being of indeterminate sex, identifies on a genuine basis as a member of a particular sex by assuming characteristics of the particular sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the particular sex.

6—Amendment of section 6—Interpretative provisions

Section 6—after subsection (3) insert:

  1. (4)

    For the purposes of this Act, an act will be regarded as a discriminatory act despite the fact that the person alleged to have committed the act did so on the basis of a mistaken assumption (for example, a mistaken assumption that another person was of a particular sexuality or a particular race or a person of a chosen gender).

7—Amendment of section 10—Administration of Act and Ministerial direction

Section 10—after its present contents (now to be designated as subsection (1)) insert:

  1. (2)

    However, the Minister—

    1. (a)

      must not give a direction in relation to the manner in which action should be taken on a particular complaint; and

    2. (b)

      must not seek information tending to identify a party to proceedings under this Act.

8—Amendment of section 11—Functions of Commissioner

  1. (1)

    Section 11(1)—delete "ground of sex, sexuality, marital status, pregnancy, race, impairment or age" and substitute:

    grounds to which this Act applies

  2. (2)

    Section 11(2)—delete "ground of sex, sexuality, marital status, pregnancy, race, impairment or age" and substitute:

    grounds to which this Act applies

9—Amendment of section 14—Annual report by Commissioner

  1. (1)

    Section 14(1)—delete "31 December" and substitute:

    30 September

  2. (2)

    Section 14(1)(b)—delete "pursuant to sections 11 and 12" and substitute:

    under section 11

  3. (3)

    Section 14(2)—delete "14" wherever occurring and substitute in each case:

    12

10—Amendment of section 23—Conduct of proceedings

Section 23—after subsection (1) insert:

  1. (1a)

    The Tribunal constituted of the person presiding over the proceedings may, sitting alone—

    1. (a)

      deal with—

      1. (i)

        preliminary, interlocutory or procedural matters; or

      2. (ii)

        questions of costs; or

      3. (iii)

        questions of law; or

    2. (b)

      embody the terms of a settlement in an order,

and may, for that purpose or as a consequence, while sitting alone, make any determination or order (including a final order) that the person considers appropriate.

11—Amendment of section 25—General powers of Tribunal

Section 25(2), penalty provision—delete the penalty provision and substitute:

Maximum penalty: $5 000.

12—Amendment of section 26—Tribunal may not award costs except in certain circumstances

Section 26(1)—after paragraph (b) insert:

  1. (c)

    if in the opinion of the Tribunal there are other good reasons for doing so.

13—Substitution of heading to Part 3

Heading to Part 3—delete the heading and substitute:

Part 3—Prohibition of discrimination on ground of sex, chosen gender or sexuality

14—Amendment of section 29—Criteria for discrimination on ground of sex, chosen gender or sexuality

  1. (1)

    Section 29(1)—delete subsection (1)

  2. (2)

    Section 29(2)—after paragraph (c) insert:

    or

    1. (d)

      if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

  3. (3)

    Section 29—after subsection (2) insert:

    1. (2a)

      For the purposes of this Act, a person discriminates on the ground of chosen gender—

      1. (a)

        if he or she treats another unfavourably because the other is or has been a person of a chosen gender or because of the other's past sex; or

      2. (b)

        if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—

        1. (i)

          the nature of the requirement is such that a substantially higher proportion of persons who are not persons of a chosen gender comply, or are able to comply, with the requirement than of those of a chosen gender; and

        2. (ii)

          the requirement is not reasonable in the circumstances of the case; or

      3. (c)

        if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of a chosen gender, or on the basis of a presumed characteristic that is generally imputed to persons of a chosen gender; or

      4. (d)

        if he or she requires a person of a chosen gender to assume characteristics of the sex with which the person does not identify; or

      5. (e)

        if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

  4. (4)

    Section 29(3)—delete "Subject to subsection (4), for" and substitute:

    For

  5. (5)

    Section 29(3)(a)—delete ", or a presumed sexuality" and substitute:

    or past sexuality

  6. (6)

    Section 29(3)—after paragraph (c) insert:

    or

    1. (d)

      if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

  7. (7)

    Section 29(4) to (6)—delete subsections (4) to (6)

15—Substitution of heading to Part 3 Division 2

Heading to Part 3 Division 2—delete the heading and substitute:

Division 2—Discrimination against workers

16—Amendment of section 31—Discrimination against agents and independent contractors

  1. (1)

    Section 31(1)—delete subsection (1) and substitute:

    1. (1)

      This section applies to a principal for whom work is done—

      1. (a)

        by agents remunerated by commission; or

      2. (b)

        by independent contractors engaged under a contract for services.

  2. (2)

    Section 31(2)(a)—after "agent" insert:

    or independent contractor

  3. (3)

    Section 31(3)—after "agent" wherever occurring insert:

    or independent contractor

  4. (4)

    Section 31(3)(b)—after "agent's" insert:

    or independent contractor's

17—Amendment of section 32—Discrimination against contract workers

  1. (1)

    Section 32(1) and (2)—delete subsections (1) and (2) and substitute:

    1. (1)

      This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal.

    2. (2)

      It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker on the ground of sex, chosen gender or sexuality.

  2. (2)

    Section 32(3)(c)—delete "employment" and substitute:

    the employment or position concerned

18—Amendment of section 33—Discrimination within partnerships

  1. (1)

    Section 33(1)—delete "(otherwise than on the ground of sexuality)"

  2. (2)

    Section 33(2)—delete subsection (2)

19—Substitution of section 34

Section 34—delete the section and substitute:

34—Exemptions

  1. (1)

    This Division does not apply in relation to—

    1. (a)

      an employer employing a person for purposes not connected with a business carried on by the employer; or

    2. (b)

      a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal.

  2. (2)

    This Division does not apply to discrimination on the ground of sex, chosen gender or sexuality in relation to employment or engagement for which it is a genuine occupational requirement that a person be a person of a particular sex, a person of a chosen gender or a person of a particular sexuality.

  3. (3)

    This Division does not apply to discrimination on the ground of chosen gender or sexuality in relation to employment or engagement for the purposes of an educational institution if—

    1. (a)

      the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

    2. (b)

      the educational authority administering the institution has a written policy stating its position in relation to the matter; and

    3. (c)

      a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

    4. (d)

      a copy of the policy is provided on request, free of charge—

      1. (i)

        to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

      2. (ii)

        to students, prospective students and parents and guardians of students and prospective students of the institution; and

      3. (iii)

        to other members of the public.

  4. (4)

    This Division does not apply to discrimination on the ground of chosen gender in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.

20—Amendment of section 35—Discrimination by associations

  1. (1)

    Section 35(1)—delete "that has both male and female members"

  2. (2)

    Section 35(1)(a)—delete "on the ground of sex, marital status or pregnancy" and substitute:

    on the ground of sex, chosen gender or sexuality

  3. (3)

    Section 35(1)(b)—delete "on the ground of sex, marital status or pregnancy" and substitute:

    on the ground of sex, chosen gender or sexuality

  4. (4)

    Section 35—after subsection (2) insert:

    1. (2a)

      This section does not render unlawful an association established for—

      1. (a)

        persons of a particular sex; or

      2. (b)

        persons of a chosen gender; or

      3. (c)

        persons of a particular sexuality (other than heterosexuality),

    and, consequently, such an association may discriminate against an applicant for membership so as to exclude from membership persons other than those for whom the association is established.

    1. (2b)

      This section does not apply to discrimination on the ground of chosen gender or sexuality if the association is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion.

21—Repeal of section 35A

Section 35A—delete the section

22—Amendment of section 40—Discrimination in relation to accommodation

  1. (1)

    Section 40(3)—delete subsection (3) and substitute:

    1. (3)

      This section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.

  2. (2)

    Section 40(4)—delete "or marital status"

  3. (3)

    Section 40(4)—delete ", or of a particular marital status, as the case may be"

23—Amendment of section 45—Charities

  1. (1)

    Section 45(a)—after subparagraph (i) insert:

    1. (ia)

      persons of a chosen gender; or

  2. (2)

    Section 45(a)(iii) and (iv)—delete subparagraphs (iii) and (iv)

24—Repeal of section 46

Section 46—delete the section

25—Amendment of section 47—Measures intended to achieve equality

Section 47—delete ", or of a particular marital status, have equal opportunities with persons of the other sex, or of another marital status, in any of the" and substitute:

, persons of a chosen gender, or persons of a particular sexuality, have equal opportunities with, respectively, persons of the other sex, persons who are not persons of a chosen gender or persons of another sexuality, in

26—Amendment of section 50—Religious bodies

  1. (1)

    Section 50(1)—after paragraph (b) insert:

    1. (ba)

      the administration of a body established for religious purposes in accordance with the precepts of that religion; or

  2. (2)

    Section 50(2)—delete subsection (2)

27—Amendment of section 51—Criteria for establishing discrimination on ground of race

Section 51—after paragraph (c) insert:

or

  1. (d)

    if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

28—Substitution of heading to Part 4 Division 2

Heading to Part 4 Division 2—delete the heading and substitute:

Division 2—Discrimination against workers

29—Amendment of section 53—Discrimination against agents and independent contractors

  1. (1)

    Section 53(1)—delete subsection (1) and substitute:

    1. (1)

      This section applies to a principal for whom work is done—

      1. (a)

        by agents remunerated by commission; or

      2. (b)

        by independent contractors engaged under a contract for services.

  2. (2)

    Section 53(2)(a)—after "agent" insert:

    or independent contractor

  3. (3)

    Section 53(3)—after "agent" wherever occurring insert:

    or independent contractor

  4. (4)

    Section 53(3)(b)—after "agent's" insert:

    or independent contractor's

30—Amendment of section 54—Discrimination against contract workers

  1. (1)

    Section 54(1) and (2)—delete subsections (1) and (2) and substitute:

    1. (1)

      This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal.

    2. (2)

      It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker on the ground of race.

  2. (2)

    Section 54(3)(c)—delete "employment" and substitute:

    the employment or position concerned

31—Amendment of section 56—Exemptions

  1. (1)

    Section 56(1)—delete subsection (1) and substitute:

    1. (1)

      This Division does not apply in relation to—

      1. (a)

        an employer employing a person for purposes not connected with a business carried on by the employer; or

      2. (b)

        a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal.

  2. (2)

    Section 56(2)—after "employment" insert:

    or engagement

32—Amendment of section 62—Discrimination in relation to accommodation

Section 62—after subsection (2) insert:

  1. (2a)

    This section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.

33—Amendment of heading to Part 5

Heading to Part 5—delete "the ground of impairment" and substitute:

ground of disability

34—Amendment of section 66—Criteria for establishing discrimination on ground of disability

  1. (1)

    Section 66—delete "an impairment" wherever occurring and substitute in each case:

    a disability

  2. (2)

    Section 66—delete "impairment" wherever else occurring and substitute in each case:

  1. disability

  2. (3)

    Section 66(a)—delete paragraph (a) and substitute:

    1. (a)

      if he or she treats another unfavourably because of the other's disability, or a past disability or a disability that may exist in the future; or

  3. (4)

    Section 66—after paragraph (c) insert:

    or

    1. (ca)

      if he or she—

      1. (i)

        fails to provide a safe and proper means of access to, or use of, a place or facilities for a person who requires special means of access to, or use of, the place or facilities as a consequence of the person's disability; or

      2. (ii)

        treats another unfavourably because the other requires special means of access to, or use of, a place or facilities as a consequence of the other's disability,

    to the extent that he or she is able to effect the provision of access or use; or

  4. (5)

    Section 66(e)—delete paragraph (e) and substitute:

    1. (e)

      if he or she treats a person with a disability unfavourably because the person possesses, or is accompanied by, an assistance animal, or because of a related matter (whether or not it is his or her normal practice to treat unfavourably a person who possesses, or is accompanied by, an animal of the same species as the assistance animal); or

    2. (f)

      if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

35—Substitution of heading to Part 5 Division 2

Heading to Part 5 Division 2—delete the heading and substitute:

Division 2—Discrimination against workers

36—Amendment of section 67—Discrimination against applicants and employees

Section 67—delete "impairment" wherever occurring and substitute in each case:

disability

37—Amendment of section 68—Discrimination against agents and independent contractors

  1. (1)

    Section 68—delete "impairment" wherever occurring and substitute in each case:

    disability

  2. (2)

    Section 68(1)—delete subsection (1) and substitute:

    1. (1)

      This section applies to a principal for whom work is done—

      1. (a)

        by agents remunerated by commission; or

      2. (b)

        by independent contractors engaged under a contract for services.

  3. (3)

    Section 68(2)(a)—after "agent" insert:

    or independent contractor

  4. (4)

    Section 68(3)—after "agent" wherever occurring insert:

    or independent contractor

  5. (5)

    Section 68(3)(b)—after "agent's" insert:

    or independent contractor's

38—Amendment of section 69—Discrimination against contract workers

  1. (1)

    Section 69(1) and (2)—delete subsections (1) and (2) and substitute:

    1. (1)

      This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal.

    2. (2)

      It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker on the ground of disability.

  2. (2)

    Section 69(3)—delete "impairment" and substitute:

    disability

  3. (3)

    Section 69(3)(c)—delete "employment" and substitute:

    the employment or position concerned

39—Amendment of section 70—Discrimination within partnerships

Section 70—delete "impairment" wherever occurring and substitute in each case:

disability

40—Amendment of section 71—Exemptions

  1. (1)

    Section 71(1)—delete subsection (1) and substitute:

    1. (1)

      This Division does not apply in relation to—

      1. (a)

        an employer employing a person for purposes not connected with a business carried on by the employer; or

      2. (b)

        a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal.

  2. (2)

    Section 71—delete "impairment" wherever occurring and substitute in each case:

    disability

  3. (3)

    Section 71(2)—after "employment" first occurring insert:

    or engagement

41—Amendment of section 72—Discrimination by associations

Section 72—delete "impairment" wherever occurring and substitute in each case:

disability

42—Amendment of section 73—Discrimination by qualifying bodies

Section 73—delete "impairment" wherever occurring and substitute in each case:

disability

43—Amendment of section 74—Discrimination by educational authorities

Section 74—delete "impairment" wherever occurring and substitute in each case:

disability

44—Amendment of section 75—Discrimination by person disposing of interest in land

Section 75—delete "impairment" and substitute:

disability

45—Amendment of section 76—Discrimination in provision of goods and services

  1. (1)

    Section 76—delete "an impairment" wherever occurring and substitute in each case:

    a disability

  2. (2)

    Section 76—delete "impairment" wherever else occurring and substitute in each case:

    disability

  3. (3)

    Section 76—after subsection (1) insert:

    1. (1a)

      For the purposes of the application of subsection (1) to services comprised of access to or use of a place or facilities that members of the public are permitted to enter or use (see paragraph (a) of the definition of services to which this Act applies), the owner of the place or facilities and the occupier of the place or the place where the facilities are provided will each be taken to offer or provide the services.

46—Amendment of section 77—Discrimination in relation to accommodation

  1. (1)

    Section 77—delete "impairment" wherever occurring and substitute in each case:

    disability

  2. (2)

    Section 77—after subsection (2) insert:

    1. (2a)

      This section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.

47—Amendment of section 78—Discrimination in relation to superannuation

Section 78—delete "impairment" and substitute:

disability

48—Amendment of section 79—Exemption in relation to remuneration

Section 79—delete "impairments" and substitute:

disabilities

49—Insertion of section 79A

After section 79 insert:

79A—Exemption in relation to infectious diseases

This Part does not render unlawful a discriminatory act if the act—

  1. (a)

    is directed towards ensuring that an infectious disease is not spread; and

  2. (b)

    is reasonable in all the circumstances.

50—Amendment of section 80—Exemption for charities

Section 80—delete "impairment" and substitute:

disability

51—Amendment of section 81—Exemption in relation to sporting activities

  1. (1)

    Section 81—delete "an impairment" and substitute:

    a disability

  2. (2)

    Section 81—delete "impairment" wherever else occurring and substitute in each case:

    disability

52—Amendment of section 82—Exemption for projects for benefit of persons with particular disability

Section 82—delete "impairment" and substitute:

disability

53—Substitution of section 84

Section 84—delete the section and substitute:

84—Exemption for unjustifiable hardship

  1. (1)

    This Part does not render unlawful discrimination by a person on the ground of disability in relation to the provision of access to or use of a place or facilities if the provision of access or use would impose unjustifiable hardship on the person.

  2. (2)

    In determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including—

    1. (a)

      the nature of the benefit or detriment likely to accrue or be suffered by the persons concerned; and

    2. (b)

      the effect of the disability of the person concerned; and

    3. (c)

      the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

54—Amendment of section 85—Exemption in relation to insurance

Section 85—delete "impairment" and substitute:

disability

55—Amendment of section 85A—Criteria for establishing discrimination on ground of age

Section 85A—after paragraph (c) insert:

or

  1. (d)

    if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

56—Substitution of heading to Part 5A Division 2

Heading to Part 5A Division 2—delete the heading and substitute:

Division 2—Discrimination against workers

57—Amendment of section 85C—Discrimination against agents and independent contractors

  1. (1)

    Section 85C(1)—delete subsection (1) and substitute:

    1. (1)

      This section applies to a principal for whom work is done—

      1. (a)

        by agents remunerated by commission; or

      2. (b)

        by independent contractors engaged under a contract for services.

  2. (2)

    Section 85C(2)(a)—after "agent" insert:

    or independent contractor

  3. (3)

    Section 85C(3)—after "agent" wherever occurring insert:

    or independent contractor

  4. (4)

    Section 85C(3)(b)—after "agent's" insert:

    or independent contractor's

58—Amendment of section 85D—Discrimination against contract workers

  1. (1)

    Section 85D(1) and (2)—delete subsections (1) and (2) and substitute:

    1. (1)

      This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal.

    2. (2)

      It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker on the ground of age.

  2. (2)

    Section 85D(3)(c)—delete "employment" and substitute:

    the employment or position concerned

59—Amendment of section 85F—Exemptions

  1. (1)

    Section 85F(1)—delete subsection (1) and substitute:

    1. (1)

      This Division does not apply in relation to—

      1. (a)

        an employer employing a person for purposes not connected with a business carried on by the employer; or

      2. (b)

        a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal.

  2. (2)

    Section 85F(2)—after "employment" insert:

    or engagement

  3. (3)

    Section 85F(3)—after "employment" first occurring insert:

    or engagement

60—Amendment of section 85K—Discrimination in provision of goods and services

  1. (1)

    Section 85K(2)—delete subsection (2)

  2. (2)

    Section 85K(3)(a)—delete paragraph (a) and substitute:

    1. (a)

      the charging of a reduced fee, fare or price, or no fee, fare or price, for the benefit of a particular age group if the concession is based on genuine and reasonable grounds; or

  3. (3)

    Section 85K(3)(b)—after "reasonable basis" insert:

    for the benefit of a particular age group

61—Amendment of section 85L—Discrimination in relation to accommodation

  1. (1)

    Section 85L(2)—delete subsection (2)

  2. (2)

    Section 85L(5)(b) and (c)—delete paragraphs (b) and (c) and substitute:

    1. (b)

      in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.

62—Insertion of Part 5B

After Part 5A insert:

Part 5B—Prohibition of discrimination on other grounds

Division 1—Discrimination to which Part 5B applies

85T—Criteria for establishing discrimination on other grounds

  1. (1)

    In this Part—

discriminate means—

  1. (a)

    discriminate on the ground of marital or domestic partnership status; or

  2. (b)

    discriminate on the ground of the identity of a spouse or domestic partner; or

  3. (c)

    discriminate on the ground of pregnancy; or

  4. (d)

    discriminate on the ground of association with a child; or

  5. (e)

    discriminate on the ground of caring responsibilities; or

  6. (f)

    discriminate on the ground of religious appearance or dress,

and discrimination has a corresponding meaning.

  1. (2)

    For the purposes of this Act, a person discriminates on the ground of marital or domestic partnership status—

    1. (a)

      if he or she treats another unfavourably because of the other's marital or domestic partnership status or past or proposed marital or domestic partnership status; or

    2. (b)

      if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—

      1. (i)

        the nature of the requirement is such that a substantially higher proportion of persons of a different marital or domestic partnership status comply, or are able to comply, with the requirement than of those of the other's marital or domestic partnership status; and

      2. (ii)

        the requirement is not reasonable in the circumstances of the case; or

    3. (c)

      if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of that marital or domestic partnership status, or on the basis of a presumed characteristic that is generally imputed to persons of that marital or domestic partnership status; or

    4. (d)

      if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

  2. (3)

    For the purposes of this Act, a person discriminates on the ground of the identity of a spouse or domestic partner if he or she treats another unfavourably because of the identity of the other's spouse or domestic partner, or former or proposed spouse or domestic partner.

  3. (4)

    For the purposes of this Act, a person discriminates on the ground of pregnancy—

    1. (a)

      if he or she treats a woman unfavourably because of her pregnancy or potential pregnancy; or

    2. (b)

      if he or she treats a pregnant woman unfavourably because she does not comply, or is not able to comply, with a particular requirement and—

      1. (i)

        the nature of the requirement is such that a substantially higher proportion of women who are not pregnant comply, or are able to comply, with the requirement than of those who are pregnant; and

      2. (ii)

        the requirement is not reasonable in the circumstances of the case; or

    3. (c)

      if he or she treats a pregnant woman unfavourably on the basis of a characteristic that appertains generally to pregnant women, or on the basis of a presumed characteristic that is generally imputed to pregnant women; or

    4. (d)

      if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

  4. (5)

    For the purposes of this Act, a person discriminates on the ground of association with a child—

    1. (a)

      if he or she treats another unfavourably because the person is breast feeding or bottle feeding an infant, or proposes to do so, or is, or proposes to be, accompanied by a child; or

    2. (b)

      if he or she treats another unfavourably because a relative or associate of the other is breast feeding or bottle feeding an infant, or proposes to do so, or is, or proposes to be, accompanied by a child.

  5. (6)

    For the purposes of this Act, a person discriminates on the ground of caring responsibilities—

    1. (a)

      if he or she treats another unfavourably because of the other's caring responsibilities or proposed caring responsibilities; or

    2. (b)

      if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—

      1. (i)

        the nature of the requirement is such that a substantially higher proportion of persons without caring responsibilities comply, or are able to comply, with the requirement than of those with caring responsibilities; and

      2. (ii)

        the requirement is not reasonable in the circumstances of the case; or

    3. (c)

      if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons with caring responsibilities, or on the basis of a presumed characteristic that is generally imputed to persons with caring responsibilities; or

    4. (d)

      if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.

  6. (7)

    For the purposes of this Act, a person discriminates on the ground of religious appearance or dress—

    1. (a)

      if he or she treats another unfavourably because of the other's appearance or dress and that appearance or dress is required by, or symbolic of, the other's religious beliefs; or

    2. (b)

      if he or she requires a person to alter the person's appearance or dress and that appearance or dress is required by, or symbolic of, the other's religious beliefs; or

    3. (c)

      if he or she treats another unfavourably because of the appearance or dress of a relative or associate of the other and that appearance or dress is required by, or symbolic of, the relative or associate's religious beliefs.

Division 2—Discrimination against workers

85U—Application of Division

This Division applies to discrimination on the ground of marital or domestic partnership status, identity of spouse or domestic partner, pregnancy, caring responsibilities or religious appearance or dress.

85V—Discrimination against applicants and employees

  1. (1)

    It is unlawful for an employer to discriminate against a person—

    1. (a)

      in determining, or in the course of determining, who should be offered employment; or

    2. (b)

      in the terms or conditions on which employment is offered.

  2. (2)

    It is unlawful for an employer to discriminate against an employee—

    1. (a)

      in the terms or conditions of employment; or

    2. (b)

      by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or

    3. (c)

      by dismissing the employee; or

    4. (d)

      by subjecting the employee to other detriment.

85W—Discrimination against agents and independent contractors

  1. (1)

    This section applies to a principal for whom work is done—

    1. (a)

      by agents remunerated by commission; or

    2. (b)

      by independent contractors engaged under a contract for services.

  2. (2)

    It is unlawful for the principal to discriminate against a person—

    1. (a)

      in determining, or in the course of determining, who should be engaged as an agent or independent contractor; or

    2. (b)

      in the terms or conditions on which such an engagement is offered.

  3. (3)

    It is unlawful for the principal to discriminate against an agent or independent contractor—

    1. (a)

      in the terms or conditions on which the agent or independent contractor is engaged; or

    2. (b)

      by denying or limiting access to opportunities for promotion, transfer or training or other benefits connected with the agent's or independent contractor's position; or

    3. (c)

      by terminating the engagement; or

    4. (d)

      by subjecting the agent or independent contractor to other detriment.

85X—Discrimination against contract workers

  1. (1)

    This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal.

  2. (2)

    It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker.

  3. (3)

    It is unlawful for the principal to discriminate against a contract worker—

    1. (a)

      in the terms or conditions on which the contract worker is allowed to work; or

    2. (b)

      by not allowing the contract worker to work; or

    3. (c)

      by denying or limiting access to a benefit connected with the employment or position concerned; or

    4. (d)

      by subjecting the contract worker to other detriment.

85Y—Discrimination within partnerships

  1. (1)

    It is unlawful for a firm, or a person promoting the formation of a firm, to discriminate against a person—

    1. (a)

      in determining, or in the course of determining, who should be offered a position as partner in the firm; or

    2. (b)

      in the terms or conditions on which that person is offered a position as partner in the firm.

  2. (2)

    It is unlawful for a firm to discriminate against a partner—

    1. (a)

      in the terms or conditions of membership of the firm; or

    2. (b)

      by denying or limiting access to a benefit arising from membership of the firm; or

    3. (c)

      by expelling the partner from the firm; or

    4. (d)

      by subjecting the partner to other detriment.

85Z—Exemptions

  1. (1)

    This Division does not apply in relation to—

    1. (a)

      an employer employing a person for purposes not connected with a business carried on by the employer; or

    2. (b)

      a principal engaging a natural person as an independent contractor for purposes not connected with a business carried on by the principal.

  2. (2)

    This Division does not apply to discrimination against same sex domestic partners on the ground of marital or domestic partnership status in relation to employment or engagement for the purposes of an educational institution administered in accordance with the precepts of a particular religion if Part 3 Division 2 does not apply in relation to discrimination on the ground of sexuality in relation to the employment or engagement (see section 34(3)).

  1. (3)

    This Division does not apply to discrimination against a pregnant woman on the ground of pregnancy if—

    1. (a)

      the discrimination is based on the fact that the woman is not, or would not be, able—

      1. (i)

        to perform adequately, and without endangering herself, the unborn child or other persons, the work genuinely and reasonably required of her; or

      2. (ii)

        to respond adequately to situations of emergency that should reasonably be anticipated in connection with her duties; and

    2. (b)

      in the case of discrimination arising out of dismissal from employment—

      1. (i)

        there is no other work that the employer could reasonably be expected to offer the woman; and

      2. (ii)

        the woman has been offered leave for the period that would result in her being unable—

        1. (A)

          to perform adequately, and without endangering herself, the unborn child or other persons, the work genuinely and reasonably required of her; or

        2. (B)

          to respond adequately to situations of emergency that should reasonably be anticipated in connection with her duties,

      and the woman has declined to take the leave.

  2. (4)

    This Division does not apply to discrimination on the ground of religious appearance or dress if, by reason of the person's appearance or dress, the person is not, or would not be, able—

    1. (a)

      to perform adequately, and without endangering himself or herself or other persons, the work genuinely and reasonably required for the employment or position in question; or

    2. (b)

      to respond adequately to situations of emergency that should reasonably be anticipated in connection with the employment or position in question.

  3. (5)

    This Division does not apply to discrimination on the ground of religious appearance or dress in relation to employment or engagement if the discrimination is for the purposes of enforcing a standard of appearance or dress reasonably required for the employment or engagement.

Division 3—Discrimination by other bodies

85ZA—Application of Division

This Division applies to discrimination on the ground of marital or domestic partnership status, identity of spouse or domestic partner, pregnancy or caring responsibilities.

85ZB—Discrimination by associations

  1. (1)

    It is unlawful for an association to discriminate—

    1. (a)

      against an applicant for membership—

      1. (i)

        by refusing or failing to admit the applicant to membership, or to a particular class of membership, of the association; or

      2. (ii)

        in the terms on which the applicant is, or may be, admitted to membership, or to a particular class of membership; or

    2. (b)

      against a member of the association—

      1. (i)

        by refusing or failing to provide a particular service or benefit to that member; or

      2. (ii)

        in the terms on which a particular service or benefit is provided to that member; or

      3. (iii)

        by expelling that member from the association or subjecting him or her to other detriment.

  2. (2)

    This section does not render unlawful an association established—

    1. (a)

      for persons of a particular marital or domestic partnership status; or

    2. (b)

      for spouses or domestic partners of a particular class; or

    3. (c)

      for persons with caring responsibilities or particular caring responsibilities,

and, consequently, such an association may discriminate against an applicant for membership so as to exclude from membership persons other than those for whom the association is established.

  1. (3)

    This section does not apply to discrimination against same sex domestic partners on the ground of marital or domestic partnership status if the association is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion.

85ZC—Discrimination by qualifying bodies

It is unlawful for an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession, or the carrying on or engaging in of a trade or occupation, to discriminate against a person—

  1. (a)

    by refusing or failing to confer or renew that authorisation or qualification; or

  2. (b)

    in the terms or conditions on which it confers the authorisation or qualification; or

  3. (c)

    by withdrawing the authorisation or qualification, or varying the terms or conditions on which it is held.

Division 4—Discrimination in education

85ZD—Application of Division

This Division applies to discrimination on the ground of marital or domestic partnership status, identity of spouse or domestic partner, pregnancy, caring responsibilities or religious appearance or dress.

85ZE—Discrimination by educational authorities

  1. (1)

    It is unlawful for an educational authority to discriminate against a person—

    1. (a)

      by refusing or failing to accept an application for admission as a student; or

    2. (b)

      in the terms or conditions on which it offers to admit the person as a student.

  2. (2)

    It is unlawful for an educational authority to discriminate against a student—

    1. (a)

      in the terms or conditions on which it provides the student with education or training; or

    2. (b)

      by denying or limiting access to a benefit provided by the authority; or

    3. (c)

      by expelling the student; or

    4. (d)

      by subjecting the student to other detriment.

  3. (3)

    This section does not apply to discrimination against a pregnant woman on the ground of pregnancy in respect of participation in a particular activity or admission as a student to a course requiring participation in a particular activity if the woman is not, or would not be, able—

    1. (a)

      to perform adequately, and without endangering herself, the unborn child or other persons, the activity; or

    2. (b)

      to respond adequately to situations of emergency that should reasonably be anticipated in connection with the activity.

  4. (4)

    This section does not apply to discrimination on the ground of religious appearance or dress in respect of participation in a particular activity if, by reason of the person's appearance or dress, the person is not, or would not be, able—

    1. (a)

      to perform adequately, and without endangering himself or herself or other persons, the activity; or

    2. (b)

      to respond adequately to situations of emergency that should reasonably be anticipated in connection with the activity.

  5. (5)

    This section does not render unlawful an act of discrimination by an educational authority administered in accordance with the precepts of a particular religion against a student or potential student because the student or potential student appears or dresses, or wishes to appear or dress, in a manner required by, or symbolic of, a different religion.

Division 5—Discrimination in relation to land, goods, services and accommodation

85ZF—Discrimination by person disposing of interest in land

  1. (1)

    This section applies to discrimination on the ground of marital or domestic partnership status, identity of spouse or domestic partner, pregnancy or caring responsibilities.

  2. (2)

    It is unlawful for a person to discriminate against another—

    1. (a)

      by refusing or failing to dispose of an interest in land to the other person; or

    2. (b)

      in the terms or conditions on which an interest in land is offered to the other person.

  3. (3)

    This section does not apply to the disposal of an interest in land by way of, or under, a testamentary disposition or gift.

85ZG—Discrimination in provision of goods and services

  1. (1)

    This section applies to discrimination on the ground of marital or domestic partnership status, identity of spouse or domestic partner, pregnancy, association with a child or caring responsibilities.

  2. (2)

    It is unlawful for a person who offers or provides—

    1. (a)

      goods; or

    2. (b)

      services to which this Act applies,

(whether for payment or not) to discriminate against another—

  1. (c)

    by refusing or failing to supply the goods or perform the services; or

  2. (d)

    in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.

85ZH—Discrimination in relation to accommodation

  1. (1)

    This section applies to discrimination on the ground of marital or domestic partnership status, identity of spouse or domestic partner, pregnancy or caring responsibilities.

  2. (2)

    It is unlawful for a person to discriminate against another—

    1. (a)

      in the terms or conditions on which accommodation is offered; or

    2. (b)

      by refusing an application for accommodation; or

    3. (c)

      by deferring such an application or according the applicant a lower order of precedence on a list of applicants for that accommodation.

  3. (3)

    It is unlawful for a person to discriminate against a person for whom accommodation has been provided—

    1. (a)

      in the terms or conditions on which accommodation is provided; or

    2. (b)

      by denying or limiting access to a benefit connected with the accommodation; or

    3. (c)

      by evicting the person; or

    4. (d)

      by subjecting the person to other detriment.

  4. (4)

    This section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.

  5. (5)

    This section does not apply to discrimination on the ground of marital or domestic partnership status, pregnancy or caring responsibilities in relation to the provision of accommodation by an organisation that does not seek to secure a pecuniary profit for its members, if that accommodation is provided only for persons of a particular marital or domestic partnership status, pregnant women or persons with caring responsibilities.

Division 6—General exemptions from Part 5B

85ZI—Charities

This Part does not—

  1. (a)

    affect a provision in a charitable instrument for conferring benefits wholly or mainly on—

    1. (i)

      persons of a particular marital or domestic partnership status; or

    2. (ii)

      pregnant women; or

    3. (iii)

      spouses or domestic partners of persons of a particular class; or

    4. (iv)

      persons with caring responsibilities or particular caring responsibilities; or

  2. (b)

    render unlawful an act done to give effect to such a provision.

85ZJ—Rights in connection with pregnancy

This Part does not render unlawful the granting to women of rights or privileges in connection with pregnancy or childbirth.

85ZK—Measures intended to achieve equality

This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of a particular marital or domestic partnership status, or persons with caring responsibilities, have equal opportunities with, respectively, persons of another marital or domestic partnership status, or persons without caring responsibilities, in any of the circumstances to which this Part applies.

85ZL—Exemption relating to identity of spouse or domestic partner

This Part does not apply to discrimination on the ground of the identity of a spouse or domestic partner if the discrimination is, having regard to all the circumstances of the particular case, reasonably necessary to preserve confidentiality, avoid conflicts of interest or nepotism or reasonably apprehended conflicts of interest or nepotism or protect the health or safety of persons.

85ZM—Religious bodies

This Part does not render unlawful discrimination on the ground of marital or domestic partnership status in relation to—

  1. (a)

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

  2. (b)

    the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order.

85ZN—Exemption relating to religious appearance or dress

This Part does not apply to discrimination on the ground of religious appearance or dress if the discrimination arises as a consequence of a person refusing to reveal his or her face in circumstances in which the person has been requested to do so for the purpose of verifying the identity of the person, and the request was reasonable in the circumstances.

63—Amendment of section 87—Sexual harassment

  1. (1)

    Section 87(1) to (5)—delete subsections (1) to (5) and substitute:

    1. (1)

      It is unlawful for a person to subject to sexual harassment—

      1. (a)

        a person with whom he or she works; or

      2. (b)

        a person who is seeking to become a fellow worker,

    while in attendance at a place that is a workplace of both the persons or in circumstances where the person was, or ought reasonably to have been, aware that the other person was a fellow worker or seeking to become a fellow worker.

    1. (2)

      It is unlawful for a person who works for an educational authority to subject a student of the educational authority, or a person applying to become a student of the educational authority, to sexual harassment while in attendance at a place in connection with the student's education or the applicant's prospective education or in circumstances where the person was, or ought reasonably to have been, aware that the person was a student, or a person applying to become a student, of the educational authority.

    2. (3)

      It is unlawful for a student of or over 16 years of age, while in attendance at a place in connection with his or her education, to subject a person who works at the educational institution at which the student is enrolled or a fellow student to sexual harassment.

  2. (2)

    Section 87—after subsection (6) insert:

    1. (6aa)

      It is unlawful for a person to whom goods, services to which this Act applies or accommodation are being offered, supplied, performed or provided by another person to subject that other person to sexual harassment.

  3. (3)

    Section 87—after subsection (6e) insert:

    1. (6f)

      It is unlawful for a member of an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession, or the carrying on or engaging in of a trade or occupation to subject an applicant for the conferral of such an authorisation or qualification to sexual harassment.

    2. (6g)

      It is unlawful for a member of the governing body of an association to subject a member of the association, or a person applying to become a member of the association, to sexual harassment.

  4. (4)

    Section 87(7) to (11)—delete subsections (7) to (11) and substitute:

    1. (7)

      If an employee reports to his or her employer specific circumstances in which the employee was subjected, in the course of his or her employment, to sexual harassment by a person other than a fellow worker, and it is reasonable in all the circumstances to expect that further sexual harassment of the employee by the same person is likely to occur, it is unlawful for the employer to fail to take reasonable steps to prevent the further sexual harassment.

    2. (8)

      It is unlawful for an educational authority administering a secondary education institution to fail to have a written policy against sexual harassment by students that incorporates procedures for resolving complaints and is made readily available to students.

    3. (9)

      For the purposes of this section—

      1. (a)

        a person sexually harasses another (the person harassed) if—

        1. (i)

          the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

        2. (ii)

          engages in other unwelcome conduct of a sexual nature in relation to the person harassed,

      in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated; and

      1. (b)

        conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing; and

      2. (c)

        a person works with another if both carry out duties or perform functions, in whatever capacity and whether for payment or not, in or in relation to the same business or organisation; and

      3. (d)

        a person works for an authority if he or she carries out duties or performs functions, in whatever capacity and whether for payment or not, in or in relation to that authority; and

      4. (e)

        workplace means a place (including a ship, aircraft or vehicle) at which a person works or attends in connection with the person's work.

64—Substitution of section 88

Section 88—delete the section and substitute:

87A—Sharing accommodation with child

  1. (1)

    It is unlawful for a person—

    1. (a)

      to refuse an application for accommodation; or

    2. (b)

      to defer such an application or accord the applicant a late order of precedence on a list of applicants for that accommodation,

on the ground that the applicant intends to share that accommodation with a child.

  1. (2)

    Subsection (1) does not apply—

    1. (a)

      in relation to the provision of accommodation for recreational purposes, if the use of that accommodation is limited, on a genuine and reasonable basis, to persons other than children or persons of a particular age group; or

    2. (b)

      in relation to the provision of accommodation, if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.

87B—Student breast feeding infant

  1. (1)

    It is unlawful for an educational authority to discriminate against a student by denying or limiting access to the educational services provided by the authority on the ground that the student is breast feeding an infant or proposes to do so.

  2. (2)

    This section does not apply to discrimination in respect of a particular activity if the student is not, or would not be, able—

    1. (a)

      to perform adequately, and without endangering herself or other persons, the activity; or

    2. (b)

      to respond adequately to situations of emergency that should reasonably be anticipated in connection with the activity.

88—Assistance animals

Subject to this Act—

  1. (a)

    it is unlawful to impose a condition or requirement that would result in a person with a disability being separated from his or her assistance animal; and

  2. (b)

    a person who imposes such a condition or requirement is, in addition to civil liability that might be incurred under this Act, guilty of an offence.

Maximum penalty: $2 500.

88A—Therapeutic animals

  1. (1)

    It is unlawful for a person—

    1. (a)

      to refuse an application for accommodation; or

    2. (b)

      to defer such an application or accord the applicant a late order of precedence on a list of applicants for that accommodation,

on the ground that the applicant intends to keep a therapeutic animal at that accommodation.

  1. (2)

    Subsection (1)(a) does not apply if the respondent establishes that in the circumstances of the case the refusal was reasonable.

  2. (3)

    In this section—

therapeutic animal means—

  1. (a)

    an animal certified by a medical practitioner as being required to assist a person as a consequence of the person's disability; or

  2. (b)

    an animal of a class prescribed by regulation,

but does not include an assistance animal, a dangerous dog within the meaning of the Dog and Cat Management Act 1995 or a dog of a prescribed breed within the meaning of the Dog and Cat Management Act 1995.

65—Substitution of section 91

Section 91—delete the section and substitute:

91—Civil liability of employers and principals

  1. (1)

    Subject to this section, a person is, for the purposes of this Act, vicariously liable for a discriminatory or unlawful act of an agent or employee of the person committed while acting in the course of their agency or employment.

  2. (2)

    In proceedings brought under this Act against a person in respect of an act alleged to have been committed by an agent or employee while acting in the course of their agency or employment, it is a defence to prove that the person took reasonable steps to ensure that the agent or employee would not act in contravention of this Act.

  3. (3)

    Without limiting subsection (2), a defence is established under that subsection in relation to an alleged discriminatory or unlawful act if the person—

    1. (a)

      had in force at the relevant time an appropriate policy for the prevention of such an act; and

    2. (b)

      had taken reasonable steps to implement and enforce the policy including—

      1. (i)

        reasonable steps to make the employees and agents of the person aware of the terms of the policy; and

      2. (ii)

        prompt investigation of any alleged act and taking appropriate action.

66—Substitution of heading to Part 8 Division 1

Heading to Part 8 Division 1—Delete the heading and substitute:

Division 1—Proceedings before Commissioner and Tribunal

67—Amendment of section 93—Making of complaints

  1. (1)

    Section 93(1)(c)—delete "has an intellectual impairment" and substitute:

    is a child or has an intellectual disability

an

Heading to Part 5 Division 1

Delete "this Part" and substitute:

Part 5

Section 67(2)

Delete "any" wherever occurring

Section 68(3)

Delete "any" wherever occurring

Section 69(3)(c)

Delete "any" and substitute:

a

Section 69(3)(d)

Delete "any"

Section 70(1)

Delete "consisting of one or more members, or for one or more persons" and substitute:

, or a person

Section 70(2)

Delete "consisting of two or more partners"

Section 70(2)(b)

Delete "any" and substitute:

a

Section 70(2)(d)

Delete "any"

Section 72

Delete "any"

Section 73(1)(c)

Delete "upon" and substitute:

on

Section 74(2)(b)

Delete "any" and substitute:

a

Section 74(2)(d)

Delete "any"

Section 76(2)

Delete "Where" and substitute:

If

Section 76(3)

Delete "where" and substitute:

if

Section 77(1)(c)

Delete "any" and substitute:

a

Section 77(2)(b)

Delete "any" and substitute:

a

Section 77(2)(d)

Delete "any"

Section 78(1)

Delete "any" wherever occurring

Section 78(1)(c)(i)

Delete "upon" wherever occurring and substitute in each case:

on

Section 78(1)(d)

Delete "where" and substitute:

if

Heading to Part 5 Division 7

Delete "this Part" and substitute:

Part 5

Section 80(a)

Delete "upon" and substitute:

on

Section 80(b)

Delete "any" and substitute:

an

Section 85

Delete "any" wherever occurring

Delete "where" wherever occurring and substitute in each case:

if

Delete "upon" and substitute:

on

Heading to Part 5A

Delete "the"

Heading to Part 5A Division 1

Delete "this Part" and substitute:

Part 5A

Section 85A(a)

Delete "person"

Section 85A(c)

Delete "person"

Section 85B(2)

Delete "any" wherever occurring

Section 85C(3)

Delete "any" wherever occurring

Section 85D(3)(c)

Delete "any" and substitute:

a

Section 85D(3)(d)

Delete "any"

Section 85E(1)

Delete "consisting of one or more members, or for one or more persons" and substitute:

, or a person

Section 85E(2)

Delete "consisting of two or more partners"

Section 85E(2)(b)

Delete "any" and substitute:

a

Section 85E(2)(d)

Delete "any"

After section 85E

Insert:

85EA—No compulsory retiring age

Despite any Act or law to the contrary, a provision in an industrial or enterprise award, determination or agreement made or approved under the Fair Work Act 1994 that—

    (a)

    imposes, or requires or authorises an employer to impose, a compulsory retiring age in respect of employment of any kind; or

    (b)

    requires or authorises an employer to terminate the employment of a person on the basis of the person's age,

is void and of no effect.

Section 85F(4)(a)

Delete "award or industrial agreement made or approved under the Industrial Relations Act (S.A.) 1972" and substitute:

industrial or enterprise award, determination or agreement made, approved or certified under the Fair Work Act 1994 or the Workplace Relations Act 1996 of the Commonwealth

Section 85F(4)(b)

Delete "where" and substitute:

if

Delete "award or industrial agreement made, approved or certified under the Industrial Relations Act (S.A.) 1972 or under the Industrial Relations Act 1988 of the Commonwealth" and substitute:

industrial or enterprise award, determination or agreement made, approved or certified under the Fair Work Act 1994 or the Workplace Relations Act 1996 of the Commonwealth

Section 85F(4a) to (6)

Delete these subsections

Section 85G(1)

Delete "After the expiration of one year from the commencement of this Part, it will be" and substitute:

It is

Section 85G(1)(b)(iii)

Delete "any"

Section 85G(2)

Delete "where" and substitute:

if

Section 85G(3)

Delete "does" and substitute:

do

Delete "where" and substitute:

if

Section 85I(2)(b)

Delete "any" and substitute:

a

Section 85I(2)(d)

Delete "any"

Section 85I(3)

Delete "where" and substitute:

if

Section 85K(3)(b)

Delete "any" and substitute:

a

Delete "where" and substitute:

if

Section 85L(1)(c)

Delete "any" and substitute:

a

Section 85L(3)(b)

Delete "any" and substitute:

a

Section 85L(3)(d)

Delete "any" and substitute:

other

Section 85L(4)

Delete "where" and substitute:

if

Section 85L(5)(a)

Delete "where" and substitute:

if

Heading to Part 5A Division 6

Delete "this Part" and substitute:

Part 5A

Section 85N(b)

Delete "any" and substitute:

an

Part 5A Division 7 (section 85S)

Delete the Division

Section 86(2)(a)

Delete "any" and substitute:

a

Section 86(2)(b) and (d)

Delete "any"

Section 89

Delete "Where" and substitute:

If

Section 90

Delete "Where" and substitute:

If

Section 92

Delete "upon" wherever occurring and substitute in each case:

on

Section 92(1)

Delete "any of the provisions" and substitute:

a provision

Section 92(1)(c)

Delete "any"

Section 92(4)(b)

Delete "where" and substitute:

if

Section 92(4)(c)

Delete "any" and substitute:

a

Section 92(6)(b)

Delete "any"

Heading to Part 8

Delete "of this Act"

Section 93(1)(a)

Delete "any" and substitute:

a

Section 93(1)(b)

Delete "any" first occurring and substitute:

a

Section 93(1)(c)

Delete "where" and substitute:

if

Section 93(2)(a)

Delete "when" and substitute:

if

Section 93(3)

Delete "Upon" and substitute:

On

Section 93AA(6) and (7)

Delete subsections (6) and (7)

Section 94(5)

Delete "any books, papers or documents produced pursuant to" and substitute:

books, papers or documents produced under

Section 94(6)

Delete "any" and substitute:

a

Section 94(7)

Delete "any"

Section 96(1)

Delete "any" first occurring

Section 96(1)(a)

Delete "any" and substitute:

a

Section 96(1)(b)

Delete "any"

Section 96(2)(a)

Delete "any" and substitute:

a

Section 96(5)

Delete "Any" and substitute:

An

Section 97

Delete "any" first occurring and substitute:

a

Delete "any" second occurring

Section 98(1)(a)

Delete "upon" and substitute:

on

Section 98(2)

Delete "any" and substitute:

a

Section 98(5)(a)

Delete "any" and substitute:

a

Section 100(1)

Delete "section 31 of the Industrial Conciliation and Arbitration Act 1972" and substitute:

the Fair Work Act 1994

Section 100(2)

Delete "Where" and substitute:

If

Delete "section 31 of the Industrial Conciliation and Arbitration Act 1972" and substitute:

the Fair Work Act 1994

Section 100(3)

Delete "where" and substitute:

if

Delete "Industrial Conciliation and Arbitration Act 1972" and substitute:

Fair Work Act 1994

Section 100(4)

Delete "Where" and substitute:

If

Delete "section 31 of the Industrial Conciliation and Arbitration Act 1972" and substitute:

the Fair Work Act 1994

Section 100(5)

Delete "where" and substitute:

if

Delete "Industrial Conciliation and Arbitration Act 1972" and substitute:

Fair Work Act 1994

Section 101

Delete the section

Section 106(2)(a)

Delete "any form" and substitute:

forms

Section 106(2)(b)

Delete "any" and substitute:

a

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