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Sex discrimination legislation in the States and Territories.



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Research Paper

No. 17 1998-99

 

 

 

Sex Discrimination Legislation in the States and Territories

 

 

 

 

Consie Larmour

Formerly Social Policy Group

30 March 1999

 

Contents

 

 

Major Issues Summary

This paper sets out the situation in 1998 of State and Territory sex discrimination legislation. All jurisdictions have enacted general anti-discriminaiton legislation that includes provision s prohibiting different forms of sex discrimination, except for Tasmania which has a specific sex discrimination act only.

Each legislative regime provides a procedural right of individual complaint on specific grounds in specific circumstances, rather than a positive right to freedom from discrimination per se . The grounds covered by State and Territory legislation include sex or gender, marital status, pregnancy, family responsibilities and sexual harassment. Areas in which discrimination is prohibited include employment, education, accommodation, provision of goods and services, disposition of land, membership of clubs and the administration of Commonwealth laws and programs. A wide range of exemptions are attach to all the different legislative regimes generally in relation to religious, charity and voluntary bodies, competitive sport, insurance and superannuation and court or tribunal decisions. These exemptions have been persistently criticised as granting an imprimatur to discriminatory behaviour contrary to recognised international human rights norms.

State and Territory legislation generally establishes an Equal Opportunity Commissioner and an Equal Opportunity Tribunal for overseeing the operation of anti-discrimination legislation and handling relevant complaints.

Finally, responsibility within each State and Territory for public sector equal opportunity employment is also considered.

 

Introduction

This paper focuses on the situation in 1998 of sex discrimination legislation throughout the States and Territories. The order in which State and Territory legislation is discussed reflects the chronological order in which the States adopted sex discrimination or broader anti-discrimination legislation.

The paper does not provide a detailed analysis of the background and development of Commonwealth, State and Territory sex discrimination legislation as this is set out in Information and Research Service Background Paper No. 19. 1993, Sex Discrimination Legislation in Australia by Consie Larmour. A detailed analysis of the current scope and limits of the Commonwealth Sex Discrimination Act 1984 can be found in Information and Research Service Research Paper No. 16, The Elusive Promise of Equality:Analysing the Limits of the Sex Discrimination Act 1984 by Krysti Guest. Detailed information on the remedies available in sex discrimination legislation is provided in Information and Research Service Paper No. 13, 1997-98, What Price Dignity?—Remedies in Australian Anti-Discriminaiton Law by Carol Andrades.

South Australia: Equal Opportunity Act 1984

South Australia was the first Australian State to introduce sex discrimination legislation and the South Australian Sex Discrimination Act of 1975 took full effect from August 1976. It was replaced by the Equal Opportunity Act 1984 which passed through the Parliament on 7 December 1984, after the resolving of a deadlock between the Houses over the definition of sexual harassment. The Equal Opportunity Act was assented to on 20 December 1984 and came into force on 1 March 1986. It repealed the Sex Discrimination Act 1975, the Racial Discrimination Act 1976 and the Handicapped Persons Equal Opportunity Act 1981 .

Objectives of the Act as amended include:

  • promoting equality of opportunity between the citizens of South Australia
  • preventing certain kinds of discrimination based on sex, sexuality, marital status, pregnancy, race, physical or intellectual impairment or age
  • facilitating the participation of citizens in the economic and social life of the community
  • other related matters.

Grounds for and Areas of Unlawful Discrimination

Part III of the Act concerns the prohibition of discrimination on the ground of sex, sexuali ty, marital status or pregnancy in the areas of:

  • employment (including agents and contract workers)
  • partnerships (the ground of sexuality is exempted if the firm consists of fewer than six members)
  • trade unions or employer bodies, or qualifying bodies
  • education (except for one sex schools) and
  • in relation to land, goods, services, or accommodation.

General exemptions include:

  • benefits conferred by charities
  • competitive sport in which strength, stamina or physique is relevant
  • insurance based on actuarial or statistical data which is reasonable, having regard to that data
  • measures intended to achieve equality or the granting of rights and privileges to women in connection with pregnancy or childbirth
  • discrimination by religious bodies in relation to the ordination, appointment, training or education of priests, ministers of religion or members of a religious order and any practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the 'religious susceptibilities of the adherents of that religion'. Discrimination is also exempted on the ground of sexuality where an educational or other institution is administered in accordance with the precepts of a particular religion and the discrimination is based on those precepts.

Sexual Harassment

Part VI of the Act concerns 'other unlawful acts' and includes the prohibition of sexual harassment in the areas of employment (including commission agents and contract workers), education, the provision of goods and services, and accommodation. In the area of education the harassment prohibition covers only harassment by employers and employees (including harassment of fellow employees and students) but does not cover harassment by students. Section 87 includes the provision that employers, education authorities and the providers of goods and services have a duty to ensure that none of their employees subject fellow employees, students, agents or customers to sexual harassment. Sexual harassment is defined as behaviour which causes a person to feel offended, humiliated or intimidated in circumstances in which it is reasonable for that person to feel offended, humiliated or intimidated, when the behaviour involves:

  • the subjecting of another person to an unsolicited and intentional act of physical intimacy
  • demanding or requesting (directly or by implication) sexual favours from the other person or
  • making a remark (on more than one occasion) pertaining to the other person, being a remark that has sexual connotations.

Machinery for Handling Sex Discrimination Complaints

The Act establishes a Commissioner for Equal Opportunity and an Equal Opportunity Tribunal. The Commissioner is appointed for five years and may be reappointed. Duties of the Commissioner are to:

  • foster and encourage informed and unprejudiced attitudes in the community with a view to eliminating discrimination on the ground of sex, sexuality, marital status, pregnancy, race, impairment or age
  • institute, promote or assist in research, collection of data and the dissemination of information relating to such discrimination
  • make recommendations to the Minister as to reforms which will further the objects of the Act and
  • provide annual reports to the Minister on the operation of the Act and the work of the Commissioner.

Other duties of the Commissioner and officers who assist the Commissioner are to investigate complaints (which have been lodged in writing) and to attempt to resolve these by conciliation. The Commissioner may decline to take action or t o proceed if they are of the opinion that a complaint is frivolous, vexatious, misconceived or lacking in substance. To assist in the investigation of a complaint, the Commissioner may require books, papers or documents from the person alleged to have contravened the Act, and failure to comply carries a maximum penalty of a Division 7 fine (maximum $2000. Section 28a of the Acts Interpretation Act 1915 provides that from 1 August 1990 division-type fines and penalties applied in South Australia so that these could be amended or increased by one Act. The Statute Law Revision Act 1990 amended sections of the Equal Opportunity Act dealing with fines and penalties so that, for example, 'a penalty not exceeding $2000' is replaced by 'Penalty: Division 7 fine'.)

Where a matter cannot be resolved by conciliation the complaint may be referred to the Equal Opportunity Tribunal consisting of a Presiding Officer or Deputy Presiding Officer, and two other panel members. The Presiding Officer is a judge or magistrate. As many Deputy Presiding Officers are to be chosen as is necessary for the proper functioning of the Tribunal. Deputy Presiding Officers must be either judges, magistrates or legal practitioners of not less than seven years standing. A panel of not more than 12 persons nominated by the Minister are to be available for selection to sit at hearings. Members of the Tribunal are appointed for three years and are eligible for reappointment.

After hearing evidence and representations concerning a complaint, the Tribunal may order the payment of damages by the respondent to the complainant, may order the respondent to refrain from further contravention of the Act, may order the respondent to perform any acts to redress the loss or damage suffered by the complainant, or may dismiss the complaint. Appeals may be made to the Supreme Court against decisions of the Tribunal.

Public Sector Employment

The Government Management and Employment Act 1985 provided for equal employment opportunity programs in State government employment in South Australia, but this was repealed and replaced by the Public Sector Management Act 1995 . The 1995 Act requires public sector agencies to prevent unlawful discrimination (including that on the grounds of sex, sexuality, marital status and pregnancy) against employees or persons seeking employment in the public sector, and to ensure that no form of unjustifiable discrimination (including indirect discrimination) is exercised against employees or persons seeking employment in the public sector. All selection decisions must be based on merit. The 1995 Act provides for the appointment of a Commissioner for Public Employment whose functions include developing and issuing directions and guidelines on public service matters including merit and equity. Equal employment opportunity programs (EEO) may make provision for a defined class disproportionately represented amongst the unemployed to gain employment in the public sector, or to assist persons of a defined class employed in the public sector to compete for other positions or to pursue careers in the public sector as effectively as persons not of that class. Current EEO programs target such groups as Aboriginal employees and young people and do not target women as a specific group.

New South Wales: Anti-Discrimination Act 1977

The Anti-Discrimination Act 1977 was assented to on 28 April 1977 and took full effect from 1 June 1977. Its stated purpose is 'to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons'.

Grounds for and Areas of Unlawful Discrimination

Discrimination on the ground of sex or marital status is defined as less favourable treatment than given, or would be given, in the same or similar circumst ances to a person of the opposite sex or different marital status. Pregnancy is not treated as a separate ground but is included in the definition of discrimination on the ground of sex (s. 24 (1B)). As in the South Australian Equal Opportunity Act both direct and indirect discrimination are unlawful on the ground of sex or marital status in certain areas.

The Act prohibits discrimination on the ground of sex or marital status in employment and in applying for employment. It also prohibits discrimination against commission agents and contract workers, discrimination in partnerships, discrimination by industrial organisations, qualifying bodies and employment agencies, discrimination by local government councillors, and discrimination in the provision of goods, services and accommodation.

Discrimination by an educational authority on the ground of sex or marital status is unlawful, but exemptions apply to private educational authorities and to single sex schools. (The Anti-Discrimination (Amendment) Act 1981 extended the provisions of the Act to public education, discrimination by registered clubs, and discrimination in partnerships.)

Other unlawful acts include victimisation, the placing of advertisements or notices indicating intention to commit an unlawful act in terms of the Act, and causing or aiding another person to commit such an unlawful act. Vicarious liability of principals a nd employers for unlawful acts of their employees or agents is provided, 'unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. General exceptions to the Act are provided for acts necessary to comply with a requirement of other legislation, regulation or order of a tribunal or court, charitable benefits, membership of voluntary bodies, establishments providing housing accommodation for aged persons and for religious bodies.

The Act has been amended a number of times—most notably in 1980, 1981, 1982, 1984, 1985, 1994, 1996 and 1997—to add new grounds and to make other changes. Discrimination is unlawful also now on the ground of disability, homosexuality, age (including compulsory retirement) and transgender. In 1989 vilification on the ground of race became unlawful, and homosexual vilification and HIV/AIDS vilification were outlawed later. Until 1997 sexual harassment was not a separate ground but the Equal Opportunity Tribunal in NSW held that sexual harassment constituted discrimination on the ground of sex, and sexual harassment cases were dealt with under this ground.

Sexual Harassment

The Anti-Discrimination Amendment Act 1997 explicitly makes sexual harassment unlawful. The majority of the provisions mirror the sexual harassment provisions of the Sex Discrimination Act 1984 (Cth).

Sexual harassment is defined as:

  • an unwelcome sexual advance or an unwelcome request for sexual favours or
  • any other unwelcome conduct of a sexual nature
  • where the circumstances are such that a reasonable person would have anticipated that the person being harassed would be offended, humiliated or intimidated.

Sexual harassment is unlawful in the areas of employ ment, education, goods and services, accommodation, sale of land, sport and State laws and programs. A difference from the Commonwealth Act is that the amendments do not explicitly cover sexual harassment in circumstances relating to harassment of members of registered industrial organisations, or applicants, by other members or the staff of the organisation or harassment of members of clubs, or applicants, by members of the management committee of the club (although some elements of these provisions may be covered in other areas of the Act).

Complaints of sexual harassment may be made either under this Act or under the Sex Discrimination Act 1984 (Cth).

The prohibition against sexual harassment in employment will have wide coverage including the areas already listed under other grounds and including harassment between workplace participants, harassment between members of Parliament, and harassment between workplace participants and members of Parliament. 'Workplace participant' is defined to mean an employer, employee, commission agent, contract worker, partner, self-employed person, volunteer or unpaid trainee. This constitutes wider coverage than that provided by the Commonwealth Act which does not include self-employed persons, volunteers or unpaid trainees in its definition of 'workplace participant'. Under section 53 employers and principals are liable for unlawful acts of harassment committed by their employees or agents and this now covers volunteers and unpaid trainees.

Sexual harassment in educational institutions is prohibited. This includes:

  • sexual harassment of a student, or an applicant, by an employee of an institution
  • sexual harassment of a student or employee of the institution by a student over the age of 16 years (an adult student).

These pro vision are similar to those of the Sex Discrimination Act 1984 (Cth). However, the amendments have broader coverage in that they cover harassment of any student (regardless of age) by an adult student. In contrast, the Commonwealth Act covers only harassment between adult students. The amendments also differ from the Commonwealth Sex Discrimination Act 1984 in the remedies available against student harassers between the ages of 16 and 18 years. The amendments provide that, in these circumstances, although the Equal Opportunity Tribunal cannot require the student to pay damages to the complainant, all other remedies in the power of the Tribunal are available. However, the amendments do not make either educational institutions or the Department of School Education vicariously liable for unlawful acts of harassment by adult students.

The coverage of the amendments in relation to harassment in the area of goods and services is wider than that of the Sex Discrimination Act 1984 (Cth). Both Acts cover sexual harassment of a client by a provider of goods or services. However, the NSW Act also covers sexual harassment of a provider by a client. In the area of accommodation the Act now covers sexual harassment of tenants by accommodation providers or their agents. In the area of land the amendments directly mirror provisions of the Commonwealth Act. The Anti-Discrimination Act will now cover sexual harassment between vendors and purchasers in the sale of land—that is, between a person who is disposing of (or offering to dispose of) an estate or interest in land and a person who is acquiring (or proposing to acquire) an estate or interest in land from the other person.

The amendments explicitly cover sexual harassment in sport which is not covered in the Commonwealth Act.

It is also unlawful for a person to sexually harass another person while performing any function under, or in relation to the administration of, a State law, or for the purposes of a State program.

Machinery for Handling Sex Discrimination Complaints

The Anti-Discrimination Act 1977 provides for an Anti-Discrimination Board and an Equal Opportunity Tribunal. Duties of the President of the Anti-Discrimination Board are to investigate complaints of unlawful discrimination and to endeavour to resolve these by conciliation. Complaints must be made in writing and provision is made for representative complaints. If the President is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance the President may decline to entertain the complaint but must advise the complainant of the reason for this and the complainant's rights. Where conciliation fails to resolve a complaint the President may refer it to the Equal Opportunity Tribunal.

The Anti-Discrimination Board consists of the President and four part-time members who may be appointed for a period not exceeding seven years in the case of a full-time member (the President) and three years in the case of a part-time member, and who are eligible for reappointment. General functions of the Board are to:

  • carry out investigations, research and inquiries relating to discrimination, in particular on the grounds of age, religious or political conviction, mental disability, and membership or non-membership of an industrial organisation, and to acquire and disseminate knowledge on all matters relating to the elimination of discrimination and the achievement of equal rights
  • arrange and coordinate consultations, discussions, seminars and conferences
  • review, from time to time, the laws of the State
  • consult with governmental, business, industrial and community groups and organisations in order to ascertain means of improving services and conditions affecting minority groups and other groups which are the subject of discrimination and inequality
  • hold public inquiries and
  • develop human rights programs and policies.

The Minister may refer to the Board any matter relating to a law or proposed law, or any practice (including an alleged or proposed practice) which conflicts or may conflict with the Act or regulations.

The Equal Opportunity Tribunal is composed of a number of part-time judicial and non-judicial members, one of whom is designated the senior judicial member. When sitting, the Tribunal is made up of three members, the senior member being the judicial member, and two non-judicial members selected by the senior judicial member. The Tribunal's main function is to investigate complaints referred to it by the President of the Anti-Discrimination Board or the Minister. The Tribunal may hold a single inquiry into several complaints arising out of the same or substantially the same circumstances, and may join a person as a party to an inquiry. It may dismiss complaints if judged to be frivolous, vexatious, misconceived or lacking in substance. If the Tribunal finds a complaint substantiated it may order the payment of damages not exceeding $40 000 to the complainant, may order the respondent to cease the unlawful conduct or may order the respondent to make redress for loss or damage suffered by the complainant. A 1984 amendment provided that inquiries by the Equal Opportunity Tribunal may be held in private if the Tribunal (by its own motion or an application of a party to the inquiry) considers this appropriate. The Act provides for a right of appeal on a question of law against a decision or order of the Tribunal to the Supreme Court of New South Wales. The Minister may refer any matter to the Tribunal for inquiry as a complaint.

Public Sector Employment

The Act was amended in 1980 to extend its provisions to public employment. Part 9A of the Act provides for equal opportunity in public employment. The objects of this Part are to eliminate and ensure the absence of discrimination i n public employment on the grounds of race, sex, marital status and physical impairment, and to promote equal opportunity for women, members of racial minorities and physically handicapped persons in State public employment (including the teaching service, police force and State authorities).

Under Part 9A of the Act, public service departments and authorities are required to prepare and implement equal opportunity management plans to achieve the objects of equal opportunity. Functions of the Director of Equal Opportunity in Public Employment (a position established by the 1980 amendments) include advising and assisting authorities in relation to their management plans, evaluating the effectiveness of these plans and reporting and making recommendations to the Minister including on the operation of the plans.

A closer working relationship between State and Commonwealth authorities in the 'promotion of the observance of human rights' was provided in 1985 amendments to the Act. Arrangements may be made between the State and Commonwealth Ministers to delegate certain functions under the Sex Discrimination Act 1984 (Cth) and other anti-discrimination or human rights Acts to the President of the Anti-Discrimination Board, to the Board or to an officer of the Board. However no formal cooperative arrangement at present exists between HREOC and the Anti-Discrimination Board. Both have Sydney offices.

Victoria: Equal Opportunity Act 1995

The Victorian Equal Opportunity Act 1995 was assented to on 14 June 1995. The Act repealed and replaced the Equal Opportunity Act 1984 , which in turn had repealed and replaced the Equal Opportunity Act 1977 .

The objectives of the 1995 Act are stated as:

to promote recognition and acceptance of everyone's right to equality of opportunity;

to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes;

to eliminate, as far as possible, sexual harassment;

to provide redress for people who have been discriminated against or sexually harassed.

Grounds for and Areas of Unlawful Discrimination

The 1995 Act defines discrimination in terms of identified 'attributes' rather than 'grounds', and adds new attributes—those of age, status as a carer, lawful sexual activity, pregnancy, phy sical features, industrial activity and personal association. Thus both direct and indirect discrimination on the basis of the attributes of age, impairment, industrial activity, lawful sexual activity, marital status, physical features, political belief or activity, pregnancy, race, religious belief or activity, sex, status as a parent or carer, as well as discrimination based on personal association with a person identified by reference to any of the listed attributes (fourteen attributes), are now prohibited in employment and employment related areas, in education, in the provision of goods and services and disposal of land, in accommodation, by clubs and club members, in sport or in local government (seven broad areas).

Sexual Harassment

Sexual harassmen t is prohibited in employment (by employers and employees, and partners in firms), in industrial organisations, by members of qualifying bodies, in educational institutions, in the provision of goods and services or accommodation, in clubs, or in local government.

The definition of sexual harassment has changed from the 1984 Act, bringing it more in line with Federal legislation. As now defined:

For the purposes of this Act, a person sexually harasses another person if he or she—

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

engages in any other unwelcome conduct of a sexual nature in relation to the other person—

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

Conduct of a sexual nature is defined as including:

subjecting a person to any act of physical intimacy;

making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence; and

making any gesture, action or comment of a sexual nature in a person's presence.

One criticism of the sexual harassment provisions in the 1984 Act was that harassment by a co-worker or fellow employee was not included in the provisions except in that it was unlawful for an employer, supervisor or prospective employer to knowingly permit an employee to be harassed by a fellow worker. In addition the complainant had to demonstrate implied detriment or disadvantage in rejecting the behaviour. The 1995 Act makes co-workers liable for sexual harassment, and protection from sexual harassment has been extended to common workplaces. The sexual harassment provisions now also extend to harassment by a customer as well as by the provider of goods and services, and sexual harassment between students is now covered.

Victimisation is also prohibited and provision is made for vicarious liability.

Exceptions and Exemptions

There are many more exceptions and exemptions to the 1995 Act than under the 1984 Act. In each of these areas listed, some exceptions are provided. In addition, Part 4 of the 1995 Act provides general exceptions and exemptions for discrimination which is necessary in order to comply with an Act, enactment or an order of a tribunal or court for discriminatory provisions relating to:

  • pensions
  • existing superannuation fund conditions or
  • certain new superannuation fund conditions, and for discrimination on the basis of genuine religious beliefs or principles.

Charitable benefits and membership of private clubs are also exempte d.

Applications for exemptions from any of the provisions of the Act may be made to the Tribunal and may be granted for a period not exceeding three years or for a successive period not exceeding three years (s. 83).

Some early criticisms of the 1995 Act focus on the wide ranging exceptions, and especially perhaps on section 77 which excepts any discrimination 'necessary ... to comply with the person's genuine religious beliefs or principles'. However, an important change in the 1995 Act is that the exception for religious bodies no longer applies to the sexual harassment provisions. The practical impact of the exceptions in the Commission's experience to date has been 'minimal'. 1

Machinery for Handling Sex Discriminaiton Complaints

The 1995 Act provides for the continuation of the Equal Opportunity Commission with functions including receiving, investigating and conciliating complaints under the Act, establishing policies, issuing guidelines and undertaking education and research programs.

The Commission's objectives are to promote equal opportunity and to work to eliminate unlawful discrimination in Victoria by providing a fair, impartial and low-cost complaint resolution service, as well as information and education about equal opportunity rights and responsibilities. 2 Under section 106 the Commissioner has a statutory duty to assist a complainant in formulating his or her complaint.

The Act establishes an Anti-Discrimination Tribunal which replaces the Equal Opportunity Board. Matters which are unable to be conciliated may be referred to the Tribunal, as may other matters set out in section 134, including complaints referred by the Minister, and complaints declined because the Commission considered that they were frivolous, vexatious, misconceived or lacking in substance, or because they related to events that took place over 12 months previously. If the Tribunal finds a complaint or part of it proven it may order the respondent to refrain from committing further contravention of the Act in relation to the complainant, may order that the respondent pay an amount in compensation to the complainant, may order other redress, and may make an order for costs. Provision is made for appeal to the Supreme Court in relation to a question of law, by any party to proceedings before the Tribunal. In addition the Supreme Court may have referred to it a 'special complaint', defined as a complaint referred to the Tribunal by the Minister; a complaint the resolution of which may have significant social, economic or financial effects on the community or section of the community; or a complaint the subject matter of which involves issues of particular complexity and the resolution of which may establish important precedents in the interpretation or application of the Act.

The use of the new (1995) Act is being monitored by an independent advisory committee established by the Equal Opportunity Commission. The committee is due to report by early 1998. However the Commission has reported, for the 1995 - 96 year, an increase in complaints lodged under Victorian legislation and that 56 per cent of all complaints received were lodged under Victorian legislation compared with 39 per cent in 1994 - 95. 3 Of referrals by the Equal Opportunity Commission to the former Equal Opportunity Board and its successor, the Anti-Discrimination Tribunal, for the year 1995 - 96, 28 per cent were on the ground of sex discrimination (the ground with the majority of referred complaints) and seven per cent were on the ground of sexual harassment. Over 80 per cent of the total complaints referred were in the area of employment. 4

Public Sector Employment

Under section 45 (1)(a)(iv) of the Public Sector Management Act 1992 the Public Service Commissioner is responsible for establishing guidelines for the Victorian State public sector on the application of merit and equity. Policy developed by the Commissioner in terms of these guidelines has been endorsed by the Premier. The Commissioner reports annually to Parliament on progress and outcomes in regard to merit and equity across the public service.

Western Australia: Equal Opportunity Act 1984

On 20 September 1984 the Western Australian Equal Opportunity Bill was introduced into the Legislative Assembly. The Bill was sent back to the Legislative Assembly from the Council on 6 November 1984 with some minor amendments which were agreed to by the Assembly. The Act was assented to on 7 December 1984 and was proclaimed and entered into force on 8 July 1985.

The Act was amended in 1988 and 1992 to add new grounds and is now described as an Act ‘to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, family responsibility or family status, race, religious or political conviction, impairment, or age, or involving sexual or racial harassment’.

Grounds for and Areas of Unlawful Discrimination

Under the Equal Opportunity Act, discrimination—direct or indirect—is unlawful on the grounds of sex, marital status or pregnancy in the areas of:

  • employment (including against applicants and employees, commission agents and contract workers in partnerships professional or trade organisations, qualifying bodies and employment agencies)
  • education
  • access to places and vehicles
  • the provision of goods, services and facilities
  • accommodation and land and
  • the activities of clubs.

Discrimination involving sexual harassment is unlawful in the areas of employment, education and accommodation. Discrimination on the ground of family responsibility o r family status is unlawful in the areas of work (against applicants and employees, commission agents, contract workers or in partnerships, professional or trade organisations, qualifying bodies and employment agencies), and education. It is unlawful to discriminate in application or such forms on all of the above grounds.

Measures intended to ensure that persons of a particular sex or marital status or who are pregnant have equal opportunities with other persons in terms of the provisions of this Act, or measures which meet special needs of persons of a particular sex or marital status, or who are pregnant, are not unlawful. It is also not unlawful to discriminate against a man on the basis of gender by reason only of a grant of rights or privileges to a woman in connection with pregnancy or childbirth. Similarly it is not unlawful to afford a person with a particular family responsibility or particular family status access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare, or any ancillary benefits (s.35K).

Discrimination in advertisements and victimisation of a complainant or witness are unlawful. Employers and principals are vicariously liable for the actions of their employees and agents.

Machinery for Handling Sex Discrimination Complaints

The Act established a Commissioner for Equal Opportunity and an Equal Opportunity Tribunal. The main responsibilities of the Commissioner for Equal Opportunity are the investigation and conciliation of c omplaints, community education and the review of legislation to identify discriminatory provisions. Other functions include developing programs and policies to promote the principle of equality, and arranging consultations, inquiries, discussions, seminars and conferences. The Commissioner may direct parties to attend a compulsory conference, and may require the compulsory provision of information or documents. The Commissioner must dismiss a complaint if satisfied that it is frivolous, vexatious, misconceived or lacking in substance or not unlawful under the Act. The Commissioner must advise the complainant for the reason for dismissing the complaint and the right of the complainant to require reference of the complaint to the Equal Opportunity Tribunal. The Commissioner is required to refer to the Tribunal complaints which, in the Commissioner's opinion, either cannot be resolved by conciliation or where the nature of the complaint is such that it should be referred to the Tribunal. The Commissioner must assist the complainant in the presentation of the case of the complainant to the Tribunal and may assist, upon the complainant's request, with witnesses' costs and other expenses (s. 93). The Commissioner is also empowered, on the application of a complainant, to provide legal or financial assistance in connection with an appeal to the Supreme Court from an order of the Tribunal (s. 93A).

The Tribunal consists of a President who must be a legal practitioner of at least seven years standing, and two other members. The Minister may appoint not more than two Deputy Presidents who may act as President, and a number of deputy members to form 'an adequate pool'.

The Tribunal holds inquiries into complaints referred by the Commissioner or the Minister and attempts to resolve these by conciliation or by order where possible. Where a complaint is substantiated, the Tribunal may order a respondent to pay the complainant damages not exceeding $40 000. The Tribunal may hold a single inquiry into several complaints or may determine that a matter shall be dealt with as a representative complaint. It may dismiss a complaint if satisfied that it is frivolous, vexatious, misconceived or lacking in substance or should be dismissed for any other reason. Inquiries are to be held in public unless the Tribunal of its own motion or on application of a party to the inquiry, decides to hold the inquiry or part of it in private. The Tribunal may prohibit the publication of evidence. Provision is made for appeal to the Supreme Court on a question of law in a decision or order of the Tribunal. Exemptions from the provisions of the Act may be granted by the Tribunal for a period not exceeding five years, and further exemptions may also be granted for a period not exceeding five years.

Public Sector Employment

Equal employment opportunity in State Government employment is an important objective of the Act (Part IX of the Act). A Director of Equal Opportunity in Public Employment has been appointed and each State Government authority is require d to prepare and implement equal employment opportunity management plans. The provisions of equal employment opportunity in public employment are based on the New South Wales legislation.

Queensland: Anti-Discrimination Act 1991

The Anti-Discrimination Act 1991 was passed by the Queensland Parliament on 3 December 1991. Assent, and the commencement of the Commonwealth/State arrangement (Part 3 of Chapter 9) were on 9 December 1991. The remainder of the Act commenced on the date of proclamation, 30 June 1992, except for the superannuation and insurance provisions which became operative after a set twelve-month period on 9 December 1992.

Grounds for and Areas of Unlawful Discrimination

The Act achieved a number of firsts with its Preamble, stating reasons for the law and the need for the 'promotion of equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct'; with its inclusion of breastfeeding in the prohibited grounds of discrimination; and with its use of examples throughout the Act.

The Act prohibits discrimination on the basis of the attributes of sex; marital status; pregnancy; parental status; breastfeeding; age; race; impairment; religion; political belief or activity; trade union activity; lawful sexual activity; and association with, or relation to, a person identified on the basis of any of these attributes. Both direct and indirect discrimination is prohibited (s. 8). Discrimination on the basis of breastfeeding is prohibited only in the areas of the provision of goods and services.

Areas of activity in which discrimination is prohibited are:

  • work and work-related areas, including pre-work areas, partnership and pre-partnership areas, industrial, professional, trade or business organisation in membership or pre-membership areas; qualifying bodies and pre-qualifying areas; and employment agency areas
  • education including the prospective student area
  • goods and services area
  • superannuation
  • insurance
  • disposition of land
  • accommodation
  • club membership and affairs
  • administration of State laws and programs
  • local government.

Employment exemptions cover genuine occupational requirements, residential domestic services, residential child care services, work with children, educational or health-related institutions with religious purposes, the provision of single sex accommodation, or where workers are to be a married couple.

Under section 101 discrimination on the grounds provided is prohibited in the administration of State laws and programs. Section 102 provides that a member of a local government authority must not discriminate against another in the performance of official functions (except on the basis of political belief or activity).

Machinery for Handling Sex Discrimination Complaints

The Act establishes an Anti-Discrimination Commissio n, consisting of an Anti-Discrimination Commissioner and staff, and an Anti-Discrimination Tribunal.

The Commission's functions are to:

  • inquire into complaints and, where possible, to effect conciliation
  • carry out investigations relating to contraventions of the Act
  • examine Acts and, when requested by the Minister, proposed Acts, to determine whether they are, or would be, inconsistent with the purposes of the Act, and to report to the Minister the results of the examination
  • undertake research and educational programs to promote the purposes of the Act, and to coordinate programs undertaken by other people or authorities on behalf of the state
  • consult with various organisations to ascertain means of improving services and conditions affecting groups that are subjected to contraventions of the Act
  • when requested by the Minister, to research and develop additional grounds of discrimination and to make recommendations for the inclusion of such grounds in the Act
  • such functions as are conferred on the Commission under another Act
  • such functions as are conferred on the Commission under an arrangement with the Commonwealth.
  • to promote an understanding and acceptance, and the public discussion, of human rights in Queensland
  • if the Commission considers it appropriate to do so—to intervene in a proceeding that involves human rights issues with the leave of the court hearing the proceeding and subject to any conditions imposed by the court
  • such other functions as the Minister determines
  • take any action incidental or conducive to the discharge of the above functions. (section 235).

The Tribunal's functions are:

  • to hear and determine complaints that the Act has been contravened
  • to grant exemptions from the Act
  • to provide opinions about the application of the Act
  • any other functions conferred on the Tribunal under the Act
  • any other functions conferred on the Tribunal under another Act
  • to take any action incidental or conducive to the discharge of the above functions. (section 248).

Provision for appeal to the Supreme Court ag ainst a Tribunal decision on a question of law is made.

Sexual harassment is a significant area of complaint. For example, in the annual report statement for 1995-96, the Queensland Anti-Discrimination Commissioner commented:

As in past years, almost one in three complaints involve allegations of sexual harassment, overwhelmingly of women in their workplaces. What is particularly worrisome is the frequency with which young women are harassed by older male supervisors in small businesses. 5

The cooperative agreement between Queensland and the Commonwealth on the funding of services and handling of complaints expired on 9 December 1996 and there is no longer a HREOC office in Queensland. On 10 December 1996 the new Anti-Discrimination Commissi on of Queensland was created. Significant extra resources were then provided by the State Government, and the substantial backlog of complaints has been significantly reduced.

Public Sector Employment

Public sector employees are covered both by the Anti-Discrimination Act 1991 and the Public Service Act 1996 which commits public service employment to be directed toward providing equal employment opportunity (s.24(c)) whilst providing that selection for appointment must be based on merit alone (s.78 (1)).

ACT: Discrimination Act 1991

The Discrimination Act 1991 was passed by the Legislative Assembly of the ACT on 20 November 1991. The Act commenced on the date of its notification in the ACT Gazette S 143, 13 December 1991. The Act has been amended in each year from 1993 to 1996, but most substantially in 1996.

The objects of the Act are:

to eliminate, so far as possible, discrimination to which this Act applies in the areas of work, education, access to premises, the provision of goods, services, facilities and accommodation and the activities of clubs

to eliminate, so far as possible, sexual harassment in those areas;

to promote recognition and acceptance within the community of the equality of men and women; and

to promote recognition and acceptance within the community of the principle of equality of opportunity for all persons.

Grounds for and Areas of Unlawful Discrimination

The Act applies to discrimination on the ground of any of the following attributes: sex; sexuality; transsexuality; marital status; st atus as a parent or carer; pregnancy; race; religious or political conviction; impairment; membership or non-membership of an association or organisation of employers or employees; age; profession, trade occupation or calling; or association (whether as a relative or otherwise) with a person identified by reference to one of these attributes.

Discrimination is defined as unfavourable treatment of a person because the person has one of these attributes, or the imposition of a condition or requirement that has or is likely to have the effect of disadvantaging a person with one of these attributes. However, if the condition or requirement is 'reasonable in the circumstances' (section 8(2)) it is not held to be unlawful discrimination. Matters to be taken into account in deciding whether a condition or requirement is 'reasonable in the circumstances' are:

  • the nature and extent of the resultant disadvantage
  • the feasibility of overcoming or mitigating the disadvantage
  • whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement (section 8(3)).

The ACT Discrimination Act 1991 makes discrimination on the listed grounds unlawful in the areas of employment; education; access to premises; goods, services and facilities; accommodation; clubs; and in 'requests etc for information' (ss. 10-23). Employment areas cover applicants and employees, religious practice of employees, commission agents, contract workers, partnerships, professional or trade organisations, qualifying bodies, and employment agencies.

Exceptions and Exemptions

Part IV covers a wide range of 'exceptions to unlawful discrimination'. Some of these mirror the exemptions of the Commonwealth Sex Discrimination Act 1984. Exceptions relating to sex, marital status and pregnancy include those for:

  • genuine occupational qualifications
  • employment of a couple
  • educational institutions for members of one sex
  • any rights or privileges granted in connection with pregnancy or childbirth
  • services for members of one sex
  • accommodation provided for employees, contract workers or students
  • clubs for members of one sex and
  • competitive sporting activity in which the strength, stamina or physique of competitors is relevant. The exemptions for sport are the same as those of the Commonwealth Sex Discrimination Act 1984 except that the ACT also exempts sporting activities by children who have not yet attained 12 years of age.

General exceptions include those relating to:

  • domestic duties
  • residential care of children
  • adoption
  • domestic accommodation
  • pre-selection by employment agencies where that discrimination by an employer would not have been unlawful
  • measures intended to achieve equality
  • acts necessary to comply with a statutory authority
  • religious and voluntary bodies
  • educational institutions conducted for religious purposes and
  • certain discrimination relating to insurance and superannuation which is based on actuarial or statistical data, or other data on which it is reasonable to rely.

In contrast to the Commonwealth's 1991 amendments, the ACT provides a blanket exemption for superannuation and provident funds and schemes (s. 29) except in the case of discrimination on the gr ound of age where provisions apply. For insurance, it is not unlawful to discriminate:

against another person with respect to the terms on which an annuity or a policy of insurance is offered to, or may be obtained by, the other person, if the discrimination is reasonable in the circumstances, having regard to any actuarial or statistical data on which it is reasonable for the first-mentioned person to rely. (section 28)

Sexual Harassment

Part V of the Act relates to sexual harassment which is defined:

For the purposes of this Part, a person subjects another person to sexual harassment if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person or engages in other unwelcome conduct of a sexual nature in circumstances in which the other person reasonably feels offended, humiliated or intimidated. (section 58(1))

Sexual harassment is unlawful in:

  • employment (and relates to harassment by an employer or potential employer or partner, fellow employee, commission agent, contract worker or workplace participant);
  • education (harassment by staff of a student or potential student and harassment by a student of another student or member of staff);
  • access to premises;
  • provision of goods, services and facilities;
  • accommodation; and
  • clubs.

Other unlawful acts include victimisation and unlawful advertising.

Machinery for Handling Sex Discrimination Complaints

The Act provides for the appointment of a Discrimination Commissioner whose main function is the investigation of co mplaints and the endeavour to resolve each complaint by conciliation. The Commissioner may make a single investigation of several complaints or deal with a complaint as a representative complaint. Provision is made for the Commissioner to investigate of his or her own motion, in the absence of complaint, conduct which appears to be unlawful (s. 80). The Commissioner may require attendance at compulsory conferences which are to be held in private. Complaints which shall be declined by the Commissioner are those deemed to be frivolous, vexatious, misconceived or lacking in substance, or not made in good faith; those where a more appropriate remedy is reasonably available to the complainant; where the complaint relates to an act which took place more than 12 months before lodgment of the complaint; the matter is not unlawful under this Act or has already been adequately dealt with other than by the Commissioner or Tribunal; where the complainant does not want the complaint investigated or where in the opinion of the Commissioner, it is not necessary to pursue the complaint. Where complaint is declined, the Commissioner must give written notice of the decision to the parties no later than 60 days after lodgment of the complaint. Where the Commissioner is of the opinion that conciliation is unlikely, the complainant may require the Commissioner to refer the complaint to the Discrimination Tribunal, or may, in some circumstances, apply to the Tribunal for the complaint to be heard.

Other functions of the Discriminat ion Commissioner prescribed by the Act include:

  • promoting understanding and acceptance of, and compliance with, the Act
  • research, educational and other programs to promote the objects of the Act
  • review of Territory laws to ascertain any inconsistencies with the Act
  • examining proposed laws when requested by the Minister to ascertain inconsistencies with the Act
  • advice to the Minister on any matter relevant to the operation of the Act and
  • functions conferred by arrangement with HREOC and the Commonwealth Commissioner, or arrangement or functions conferred under other Territory laws.

Provision is made for application to the Commissioner for a grant of exemptions for periods not exceeding three years (section 109) and for application to the Administrative Appeals Tribunal for the review of such decisions.

The Discrimination Tribunal was established by the Discrimination (Amendment) Act 1996 . The Tribunal consists of the President (a Magistrate appointed for a period not exceeding 5 years, but eligible for reappointment) or an Acting President. The Tribunal is required to hear complaints referred by the Commissioner, applications concerning complaints, and applications for interim orders or for review of a direction given by the Commissioner. The Tribunal may:

  • dismiss any complaint if satisfied that it is frivolous, vexatious or not made in good faith; or not otherwise substantiated
  • order a respondent not to repeat or continue unlawful conduct
  • order a respondent to perform any reasonable act or acts to redress any loss or damage suffered by a person as a result of the unlawful conduct or
  • except where the complaint has been dealt with as a representative complaint, order the respondent to pay to a person a specified amount by way of compensation for any loss or damage suffered by a person as a result of the unlawful conduct. (This amount may be authorised by the Tribunal in accordance with the prescribed scale or determined by the Tribunal.).

Appeal to the Supreme Court from decisions of the Tribunal is provided.

Section 124 pro vides for performance on a joint basis of any of the functions of the Commonwealth Commission (ie. HREOC).

Northern Territory: Anti-Discrimination Act 1992

The Anti-Discrimination Act 1992 was passed by the Northern Territory Legislative Assembly on 17 November 1992 and was assented to on 18 December 1992. Commencement date for the Act was 1 August 1993. It is described as an Act to:

promote equality of opportunity in the Territory by protecting persons from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct, to provide remedies for persons discriminated against, and for related purposes

Grounds for and Areas of Unlawful Discrimination

Section 3 provides that the Act makes unlawful disc rimination on the ground of race, sex, sexuality, age, marital status, pregnancy, parenthood, breastfeeding, impairment, trade union or employer association, religious belief or activity, political opinion, affiliation or activity, irrelevant medical record or irrelevant criminal record in the area of work, accommodation or education or in the provision of goods, services and facilities, in the activities of clubs or in insurance and superannuation.

Prohibited discrimination in the area of work includes dis crimination in professional or trade organisations and by qualifying bodies and employment agencies.

Sexual Harassment

Sexual harassment is defined as taking place if a person:

subjects another person to an unwelcome act of physical intimacy;

makes an unwelcome demand or request (whether directly or by implication) for sexual favours from the other person;

makes an unwelcome remark with sexual connotations; or

engages in any other unwelcome conduct of a sexual nature; and

that person does so—

(i) with the intention of offending, humiliating or intimidating the other person; or

(ii) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct; or

that other person is, or reasonably believes that he or she is likely to be, subject to some detriment if he or she objects to the act, demand, request, remark or conduct. (section 20(2))

Victimisation, failure to accommodate a reasonable special need that another pe rson has because of an attribute, and discriminatory advertising are prohibited.

Exemptions and Exceptions

Exemptions are listed for discrimination in each area. In the area of work, for example, exemptions are provided for discrimination on the ground of age when imposing standard ages for commencement or retirement. Discrimination on the ground of sexuality is not unlawful if the work involves the care, instruction or supervision of children, and the discrimination is reasonably necessary for their protection. In the area of education, an educational authority may operate an educational institution wholly or mainly for students of a particular sex or religion or with a general or specific impairment.

Machinery for Handling Sex Discrimination Complaints

The Act provides for an Anti-Discrimination Commissioner. Section 13 provides that f unctions of the Commissioner are to:

  • carry out investigations and hearings into complaints and endeavour to effect conciliation
  • examine Acts and regulations and proposed Acts and regulations of the Territory to determine whether they are, or would be, inconsistent with the purposes of this Act, and to report the results of such examinations to the Minister
  • institute, promote or assist in research, the collection of data and the dissemination of information relating to discrimination and the effects of discrimination
  • consult with organisations, departments and local government and community government bodies and associations to ascertain means of improving services and conditions affecting groups that are subjected to prohibited conduct
  • research and develop additional grounds of discrimination and to make recommendations for the inclusion of such grounds in this Act
  • examine practices, alleged practices or proposed practices of a person, at the Commissioner's own initiative or when required by the Minister, to determine whether they are, or would be, inconsistent with the purposes of this Act, and, when required, to report the results of the examination to the Minister
  • promote understanding, acceptance and public discussion of the purposes and principles of equal opportunity, an understanding and acceptance of this Act and the recognition and acceptance of non-discriminatory attitudes, acts and practices
  • promote within the public sector the development of equal opportunity management programs and prepare and publish guidelines and codes of practice to assist persons to comply with this Act
  • provide advice and assistance to persons relating to this Act as the Commissioner thinks fit and advise the minister generally on the operation of this Act
  • intervene where appropriate in a proceeding that involves issues of equality of opportunity or discrimination by leave of the court hearing
  • such functions as are conferred on the Commissioner by or under this or any other Act and other functions as the Minister determines.

The Commissioner has the power to grant exemptions, upon application, for a period of not longer than three years.

Hearings of complaints are in public unless the Commissioner directs otherwise. Provision is made in the Act for appeal to the Local Court by a party to a complaint against a decision or order of the Commissioner.

In 1995-96 the highest category of formal discrimination complaints made to the Anti-Discrimination Commission were those on the ground of sex discrimination (25 per cent of these complaints), and in the area of other prohibited conduct, the category with the greatest number of complaints was that of sexual harassment. 6

The Anti-Discrimination Commissioner is be responsible for the administration of the Territory Act and complaints made under it, with the Human Rights and Equal Opportunity Commission Office in Darwin continuing to be responsible for complaints made under Commonwealth Acts.

Public Sector Employment

Responsibility for equal employment in the Northern Territory State public sector has devolved to individual departments with a coordinating and oversighting role for the office of the Commissioner for Public Employment. The Anti-Discrimination Commission also has the duty of promoting the development of equal opportunity management programs in the public sector.

Tasmania: Sex Discrimination Act 1994

Tasmania was the last Australian State or Territory to enact sex discrimination legislation. The Sex Discrimination Act 1994 received assent on 16 December 1994 and came into effect on 27 September 1995.

Grounds for and Areas of Unlawful Discrimination

The purpose of the Act is 'to prohibit discrimination and other specified conduct and to provide for the investigation and conciliation of, and inquiry into, complaints in relation to discrimination and prohibited conduc t'. Both direct and indirect discrimination are prohibited on the ground of any of the five following attributes: gender, marital status, pregnancy, parental status, and family responsibilities. Harassment on the basis of one of these attributes and sexual harassment, are prohibited, as is victimisation, promoting prohibited conduct or discrimination (for example by publishing or displaying matter or advertisements), or aiding contravention of the Act.

The Tasmanian Sex Discrimination Act is interesting in that it is the first of the State or Federal Acts to replace the ground of 'sex' with that of 'gender'. (In many analyses of discrimination against women, the word ‘sex’ was considered to suggest discrimination against women was biologically based, whereas the concept of ‘gender’ is now used to capture the idea that discrimination is socially based.)

Direct discrimination is defined as taking place:

if a person treats another person on the basis of any attribute referred to in section 16 or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.

Section 14 provides that for direct discrimination to take place, it is not necessary:

  • that the attribute be the sole or dominant ground for the unfavourable treatment or
  • that the person who discriminates regards the treatment as unfavourable or
  • that the person who discriminates has any particular motive in discriminating.

Indirect discrimination is defined as taking place if a person imposes a condition, req uirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of people who:

  • share, or are believed to share, an attribute referred to in section 16 or
  • share, or are believed to share, any of the characteristics imputed to appertain to such an attribute
  • more than a person who is not a member of such a group.

For indirect discrimination to take place, it is not necessary that the person who discriminates is aware that the condition, requirement or pr actice disadvantages the group of people (section 15).

The areas of activity in which gender discrimination on the above grounds is prohibited are

  • employment
  • education and training
  • provision of facilities, goods and services
  • accommodation
  • classes of memberships and activities of clubs
  • administration of State laws and State programmes
  • awards, enterprise agreements and industrial agreements.

Sexual Harassment

Subsection 17(2) provides that sexual harassment takes place if a person:

  • subjects another person to an unsolicited and unwelcome act of physical contact of a sexual nature or
  • makes an unwelcome sexual advance or an unwelcome request for sexual favours to another person or
  • makes any unwelcome remark or statement with sexual connotations to another person or about another person in that person's presence or
  • makes any unwelcome gesture, action or comment of a sexual nature or
  • engages in conduct of a sexual nature in relation to another person

in circumstances in which a reasonable person, having regard to a ll the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

Exemptions and Exceptions

General exemptions cover charities and actions required by law (including any order of a court or tribunal). Specific exemptions cover actions or schemes to benefit a disadvantaged or special-needs group or to provide or promote equal opportunities; discrimination on the ground of gender in a religious institution if required by the religious doctrine of the institution; in enrolment in one-gender schools or hostels; in residential care; where gender is a genuine occupational requirement for a position; in shared accommodation for less than 5 adults; or in the provision or use of facilities reasonably required for the use of one gender only. A specific exemption is provided for one-gender clubs, or for separate use by men and women 'in fair and reasonable proportion'. Discrimination on the ground of family responsibilities, parental status, pregnancy or marital status is allowable where the supply of special services and facilities would impose justifiable hardship. Restricting participation in a competitive sporting activity to persons of one gender of 12 years of age or more is permitted.

Exemptions in the area of insurance and superannuation apply if the discrimination arises because of the application of prescribed standards under the Commonwealth Superannuation Industry Supervision Act 1993 or the discrimination is:

  • based on actuarial, statistical or other data from a reliable source, and
  • reasonable having regard to such data and any other relevant factors.

A person must not discriminate against another person under this provision unless the person has notified the other person of the int ention to so discriminate and the right of that person to request relevant information.

Machinery for Handling Sex Discrimination Complaints

The Act provides for a Sex Discrimination Commissioner and a Tribunal. Functions of the Commissioner include to:

  • advise and make recommendations to the Minister on matters relating to discrimination and prohibited conduct
  • promote the recognition and approval of acceptable attitudes, acts and practices relating to discrimination and prohibited conduct
  • consult and inquire into discrimination and the effects of discrimination and prohibited conduct
  • disseminate information about discrimination and the effects of discrimination and prohibited conduct
  • undertake research and educational programmes to promote attitudes, acts and practices against discrimination and prohibited conduct
  • prepare and publish guidelines for the avoidance of attitudes, acts and practices of discrimination and prohibited conduct
  • examine any legislation and report to the Minister as to whether it is discriminatory or not
  • investigate and seek to conciliate complaints made in relation to discrimination and prohibited conduct
  • collect and analyse data relating to complaints made in relation to discrimination and prohibited conduct
  • any other prescribed functions.

The Commissioner has the following powers:

  • to determine the procedures to be followed in any investigation or conciliation
  • to grant an exemption from the application of this Act in respect of any discriminatory act or practice
  • to intervene, with the leave of a court or tribunal, in proceedings before the court or tribunal that involve issues relating to discrimination and prohibited conduct
  • to do all things necessary or convenient to perform the functions of the Commissioner.

The Tribunal is to consist of one or more persons, one of whom (who becomes the chairperson of the Tribunal) must be a legal practitioner of not less than 7 years standing, magistrate or former judge. Its functions are to:

  • conduct an inquiry into a complaint or
  • review a decision of the Commissioner relating to exemptions or withdrawals.

An amending Private Member's anti-discrimination Bill covering wider grounds, including race, social status, gender, sexual orientation, marital status, pregnancy, parental status, breastfeeding, dis ability and trade union activity was introduced into the Legislative Assembly in October 1996. This Bill was essentially in the same format as an unsuccessful 1993 Bill. This passed through the Assembly on 19 March 1997 but has not received the concurrence of the Legislative Council. The history of earlier attempts to introduce anti-discrimination legislation in Tasmania is outlined in Sex Discrimination Legislation in Australia, Parliamentary Research Service Background Paper Number 19, 1993.

Endnotes


1 .  View expressed by Dr Sisely, Chief Executive, Equal Opportunity Commission Victoria, 24 June 1997.


. Equal Opportunity Commission Victoria, 1995-1996 Report .


. Equal Opportunity Commission Victoria, 1995-1996 Report.


. Anti-Discrimination Tribunal, Victoria, Nineteenth Annual Report 1995-1996 .


. Ibid.


. Northern Territory Anti-Discrimination Commission Annual Report 1995-96 .