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Age Discrimination Bill 2004

Part 2 Application and constitutional provisions

   

9   Geographical application of Act

             (1)  In this section:

Australia includes the external Territories.

limited application provisions means the provisions of Divisions 2 and 3 of Part 4 (other than sections 23, 31 and 32).

             (2)  Subject to this section and section 10, this Act has effect throughout Australia.

             (3)  Subject to section 10, the limited application provisions have effect in relation to discrimination within Australia even if the discrimination involves persons or things, or matters arising, outside Australia.

10   Application of Act—constitutional powers

             (1)  In this section:

Australia includes the external Territories.

banking has the same meaning as in paragraph 51(xiii) of the Constitution.

foreign corporation has the same meaning as in paragraph 51(xx) of the Constitution.

insurance has the same meaning as in paragraph 51(xiv) of the Constitution.

limited application provisions means the provisions of Divisions 2 and 3 of Part 4 (other than sections 23, 31 and 32).

State banking has the same meaning as in paragraph 51(xiii) of the Constitution.

State insurance has the same meaning as in paragraph 51(xiv) of the Constitution.

trading or financial corporation has the same meaning as in paragraph 51(xx) of the Constitution.

             (2)  The limited application provisions have effect as provided in section 9 and the following provisions of this section and not otherwise.

             (3)  Sections 18, 19 and 20 have effect in relation to discrimination against:

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

                     (b)  persons seeking to become Commonwealth employees.

             (4)  Section 22 has effect in relation to discrimination by an authority or body in the exercise of a power under a Commonwealth law to confer, renew, extend, revoke or withdraw an authorisation or qualification.

             (5)  This Act has effect in relation to acts done within a Territory.

             (6)  The limited application provisions have effect in relation to acts done by, or on behalf of:

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

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

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

             (7)  The limited application provisions have effect in relation to discrimination against a person on the ground of age to the extent that the provisions:

                     (a)  give effect to the Discrimination (Employment and Occupation) Convention, 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958 (a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986 ); or

                     (b)  give effect to the International Covenant on Civil and Political Rights (a copy of the English text of which is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 ); or

                     (c)  give effect to the International Covenant on Economic, Social and Cultural Rights; or

                     (d)  give effect to the Convention on the Rights of the Child; or

                     (e)  relate to matters external to Australia; or

                      (f)  relate to matters of international concern.

Note:          In 2003, the text of the international instruments mentioned in this subsection was available in the Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department’s world-wide web site.

             (8)  The limited application provisions have effect in relation to discrimination:

                     (a)  by a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth; or

                     (b)  by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation.

             (9)  Without limiting the effect of subsection (8), the limited application provisions have effect in relation to discrimination:

                     (a)  by a trading or financial corporation formed within the limits of the Commonwealth; or

                     (b)  by a person in the course of the person’s duties or purported duties as an officer or employee of such a corporation;

to the extent that the discrimination takes place in the course of the trading activities of the trading corporation or the financial activities of the financial corporation, as the case may be.

           (10)  The limited application provisions have effect in relation to discrimination in the course of, or in relation to, the carrying on of the business of:

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

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

           (11)  The limited application provisions have effect in relation to discrimination in the course of, or in relation to, trade or commerce:

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

                     (b)  among the States; or

                     (c)  between a State and a Territory; or

                     (d)  between 2 Territories.

11   Compensation—constitutional safety net

             (1)  If:

                     (a)  the operation of this Act would result in the acquisition of property otherwise than on just terms; and

                     (b)  the acquisition would not be valid, apart from this section, because a particular person has not been compensated;

the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

12   Operation of State and Territory laws

             (1)  A reference in this section to this Act is a reference to this Act as it has effect because of a provision of sections 9 and 10.

             (2)  A reference in this section to a law of a State or Territory is a reference to a law of a State or Territory that deals with discrimination on the ground of age.

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

             (4)  If:

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

                     (b)  a person has made a complaint or initiated a proceeding under that law in respect of an act in respect of which the person would, apart from this subsection, have been entitled to make a complaint under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act is unlawful under a provision of Part 4 of this Act;

the person is not entitled to make a complaint or institute a proceeding under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act is unlawful under a provision of Part 4 of this Act.

             (5)  If:

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

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

the person may be prosecuted and convicted either under that law of the State or Territory or under this Act

             (6)  Nothing in subsection (5) makes a person liable to be punished more than once in respect of the same act.

13   Extent to which Act binds the Crown

             (1)  This Act binds the Crown in right of the Commonwealth, of each of the States and of Norfolk Island.

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