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Part 4—Unlawful discrimination

Part 4 Unlawful discrimination

Division 1 Introduction

18   Introduction

             (1)  This Part sets out when discrimination on the ground of a person’s religious belief or activity is unlawful.

Note:          Complaints can be made to the Australian Human Rights Commission about conduct that is unlawful under this Part (see the definition of unlawful discrimination in subsection 3(1) of the Australian Human Rights Commission Act 1986 , and section 46P of that Act).

             (2)  There are some exceptions to unlawful discrimination. These are set out in Division 4. The Commission may also grant certain exemptions (see Subdivision D of Division 4).

             (3)  Certain conduct that is engaged in by religious bodies on the ground of a person’s religious belief or activity is not discrimination under this Act and is therefore not covered by this Part (see Part 2).

             (4)  Certain statements of belief also do not constitute discrimination for the purposes of specified legislation, including this Act. Such statements are also not covered by this Part (see section 12).

Division 2 Discrimination in work

19   Employment

Discrimination in relation to hiring etc.

             (1)  It is unlawful for an employer to discriminate against another person on the ground of the other person’s religious belief or activity:

                     (a)  in the arrangements made for the purpose of determining who should be offered employment; or

                     (b)  in determining who should be offered employment; or

                     (c)  in the terms or conditions on which employment is offered.

Note:          The word employment has an extended meaning in this Act and includes, for example, contract work and work on commission (see subsection 5(1)). The words employer and employee have similarly extended meanings (see section 18A of the Acts Interpretation Act 1901 ).

Discrimination in relation to terms and conditions of employment etc.

             (2)  It is unlawful for an employer to discriminate against an employee on the ground of the employee’s religious belief or activity:

                     (a)  in the terms or conditions of employment that the employer affords the employee; or

                     (b)  by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

                     (c)  by dismissing the employee; or

                     (d)  by subjecting the employee to any other detriment.

20   Partnerships

Discrimination in relation to forming partnerships etc.

             (1)  It is unlawful for 3 or more persons who are proposing to form themselves into a partnership to discriminate against another person on the ground of the other person’s religious belief or activity:

                     (a)  in determining who should be invited to become a partner in the partnership; or

                     (b)  in the terms or conditions on which the other person is invited to become a partner in the partnership.

             (2)  It is unlawful for any one or more of the partners in a partnership consisting of 3 or more partners to discriminate against another person on the ground of the other person’s religious belief or activity:

                     (a)  in determining who should be invited to become a partner in the partnership; or

                     (b)  in the terms or conditions on which the other person is invited to become a partner in the partnership.

Discrimination against partner

             (3)  It is unlawful for any one or more of the partners in a partnership consisting of 3 or more partners to discriminate against another partner in the partnership on the ground of the other partner’s religious belief or activity:

                     (a)  by denying the other partner access, or limiting the other partner’s access, to any benefit arising from being a partner in the partnership; or

                     (b)  by expelling the other partner from the partnership; or

                     (c)  by subjecting the other partner to any other detriment.

21   Qualifying bodies

                   It is unlawful for a qualifying body to discriminate against a person on the ground of the person’s religious belief or activity:

                     (a)  by refusing or failing to confer, renew, extend or vary an authorisation or qualification; or

                     (b)  in the terms or conditions on which the qualifying body is prepared to confer, renew, extend or vary an authorisation or qualification; or

                     (c)  by revoking, varying or withdrawing an authorisation or qualification.

22   Registered organisations

Discrimination in relation to applications for membership

             (1)  It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against another person, on the ground of the person’s religious belief or activity:

                     (a)  by refusing or failing to accept the person’s application for membership; or

                     (b)  in the terms or conditions on which the organisation is prepared to admit the person to membership.

Discrimination against members

             (2)  It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person who is a member of the registered organisation, on the ground of the member’s religious belief or activity:

                     (a)  by denying the member access, or limiting the member’s access, to any benefit provided by the organisation; or

                     (b)  by depriving the member of membership or varying the terms of the member’s membership; or

                     (c)  by subjecting the member to any other detriment.

Meaning of registered organisation

             (3)  In this section:

registered organisation means an organisation registered under the Fair Work (Registered Organisations) Act 2009 .

23   Employment agencies

                   It is unlawful for an employment agency to discriminate against a person on the ground of the person’s religious belief or activity:

                     (a)  by refusing to provide the person with any of its services; or

                     (b)  in the terms or conditions on which it offers to provide the person with any of its services; or

                     (c)  in the manner in which it provides the person with any of its services.

Division 3 Discrimination in other areas

24   Education

             (1)  It is unlawful for an educational institution to discriminate against a person on the ground of the person’s religious belief or activity:

                     (a)  by refusing or failing to accept the person’s application for admission as a student; or

                     (b)  in the terms or conditions on which it is prepared to admit the person as a student.

             (2)  It is unlawful for an educational institution to discriminate against a student on the ground of the student’s religious belief or activity:

                     (a)  by denying the student access, or limiting the student’s access, to any benefit provided by the educational institution; or

                     (b)  by expelling the student; or

                     (c)  by subjecting the student to any other detriment.

25   Access to premises

                   It is unlawful for a person to discriminate against another person on the ground of the other person’s religious belief or activity:

                     (a)  by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

                     (b)  in the terms or conditions on which the person is prepared to allow the other person access to, or the use of, any such premises; or

                     (c)  by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

                     (d)  in the terms or conditions on which the person is prepared to allow the other person the use of any such facilities; or

                     (e)  by requiring the other person to leave such premises or cease to use such facilities.

26   Goods, services and facilities

                   It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s religious belief or activity:

                     (a)  by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

                     (b)  in the terms or conditions on which the person provides the other person with those goods or services or makes those facilities available to the other person; or

                     (c)  in the manner in which the person provides the other person with those goods or services or makes those facilities available to the other person.

27   Accommodation

             (1)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s religious belief or activity:

                     (a)  by refusing the other person’s application for accommodation; or

                     (b)  in the terms or conditions on which the accommodation is offered to the other person; or

                     (c)  by deferring the other person’s application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.

             (2)  It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s religious belief or activity:

                     (a)  by denying the other person access, or limiting the other person’s access, to any benefit associated with accommodation occupied by the other person; or

                     (b)  by evicting the other person from accommodation occupied by the other person; or

                     (c)  by subjecting the other person to any other detriment in relation to accommodation occupied by the other person.

28   Land

                   It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s religious belief or activity:

                     (a)  by refusing or failing to dispose of an estate or interest in land to the other person; or

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

29   Sport

                   It is unlawful for a person to discriminate against another person on the ground of the other person’s religious belief or activity by excluding that other person from participation in a sporting activity (including umpiring, coaching and administration of sporting activities).

30   Clubs

             (1)  It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a person who is not a member of the club on the ground of the person’s religious belief or activity:

                     (a)  by refusing or failing to accept the person’s application for membership; or

                     (b)  in the terms or conditions on which the club is prepared to admit the person to membership.

             (2)  It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a person who is a member of the club on the ground of the member’s religious belief or activity:

                     (a)  in the terms or conditions of membership that are afforded to the member; or

                     (b)  by refusing or failing to accept the member’s application for a particular class or type of membership; or

                     (c)  by denying the member access, or limiting the member’s access to any benefit provided by the club; or

                     (d)  by depriving the member of membership or varying the terms of membership; or

                     (e)  by subjecting the member to any other detriment.

31   Requesting or requiring information

                   It is unlawful for a person (the first person ) to request or require another person to provide information if:

                     (a)  the first person requests or requires the information for the purpose of engaging in conduct in relation to the other person; and

                     (b)  the conduct would be unlawful under another provision of this Part.

Example:    It is unlawful under section 19 to refuse to employ a person on the ground of the person’s religious belief or activity. Under this section, it is therefore also unlawful to ask a person in a job interview if they are religious if the question is asked for the purposes of determining whether to employ the person.

32   Commonwealth laws and programs

                   It is unlawful for a person who:

                     (a)  performs any function or exercises any power:

                              (i)  under a law of the Commonwealth; or

                             (ii)  for the purposes of a program conducted by or on behalf of the Commonwealth; or

                     (b)  has any other responsibility for:

                              (i)  the administration of a law of the Commonwealth; or

                             (ii)  the conduct of a program conducted by or on behalf of the Commonwealth;

to discriminate against another person on the ground of the other person’s religious belief or activity in performing that function, exercising that power or fulfilling that responsibility.

33   Victimisation

Victimisation—actual detriment

             (1)  It is unlawful for a person (the first person ) to engage in conduct that causes detriment to another person (the second person ) if the first person engages in the conduct because he or she believes that:

                     (a)  the second person has made, or proposes to make, a complaint under the Australian Human Rights Commission Act 1986 ; or

                     (b)  the second person has brought, or proposes to bring, proceedings under the Australian Human Rights Commission Act 1986 against any person; or

                     (c)  the second person has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986 ; or

                     (d)  the second person has attended, or proposes to attend, a conference held under the Australian Human Rights Commission Act 1986 ; or

                     (e)  the second person has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986 ; or

                      (f)  the second person has reasonably asserted, or proposes to assert, any rights of the second person, or of any other person, under this Act or the Australian Human Rights Commission Act 1986 ; or

                     (g)  the second person has made an allegation that a person has engaged in conduct that is unlawful by reason of a provision of this Part (other than this section).

Note:          See also section 50 (offence of victimisation).

Victimisation—threat of detriment

             (2)  It is unlawful for a person (the first person ) to make to another person (the second person ) a threat to cause detriment to the second person or to any other person if the first person makes the threat because he or she believes a matter mentioned in any of the paragraphs in subsection (1).

Note:          See also section 50 (offence of victimisation).

             (3)  For the purposes of subsection (2), a threat may be:

                     (a)  express or implied; or

                     (b)  conditional or unconditional.

Division 4 Exceptions and exemptions

Subdivision A Introduction

34   Certain conduct by religious bodies is not covered by this Division

                   Certain conduct by religious bodies is not discrimination under Division 2 or 3 of this Part, and it is therefore not necessary for the conduct to come within an exception in this Division (see Part 2).

Subdivision B General exceptions

35   Counselling, promoting etc. a serious offence

             (1)  Divisions 2 and 3 do not make it unlawful to discriminate against a person on the ground of the person’s religious belief or activity if:

                     (a)  the person has expressed a particular religious belief; and

                     (b)  a reasonable person, having regard to all the circumstances, would conclude that, in expressing the belief, the person is counselling, promoting, encouraging or urging conduct that would constitute a serious offence; and

                     (c)  at the time the discrimination occurs, it is reasonable to assume that the person holds the particular belief.

             (2)  Serious offence means an offence involving harm (within the meaning of the Criminal Code ), or financial detriment, that is punishable by imprisonment for 2 years or more under a law of the Commonwealth, a State or a Territory.

36   Conferring charitable benefits

             (1)  Nothing in Division 2 or 3:

                     (a)  affects a provision of the governing rules (within the meaning of the Australian Charities and Not-for-profits Commission Act 2012 ) of a registered charity, if the provision:

                              (i)  confers charitable benefits; or

                             (ii)  enables charitable benefits to be conferred;

                            wholly or in part on persons who hold or engage in a particular religious belief or activity; or

                     (b)  makes unlawful any conduct engaged in to give effect to such a provision.

             (2)  Nothing in Division 2 or 3:

                     (a)  affects a provision of a deed, will or other instrument, if the provision:

                              (i)  confers charitable benefits; or

                             (ii)  enables charitable benefits to be conferred;

                            wholly or in part on persons who hold or engage in a particular religious belief or activity; or

                     (b)  makes unlawful any conduct engaged in to give effect to such a provision.

37   Conduct in direct compliance with certain legislation etc.

Provisions of Commonwealth Acts etc.

             (1)  Nothing in Division 2 or 3 makes it unlawful for a person to discriminate against another person, on the ground of the other person’s religious belief or activity, if:

                     (a)  the conduct constituting the discrimination is in direct compliance with a provision of a law of the Commonwealth, or of an instrument made under such a law; and

                     (b)  that provision is not prescribed by the regulations for the purposes of this paragraph.

Law enforcement, national security and intelligence functions etc.

             (2)  Nothing in Division 2 or 3 makes it unlawful for a person to discriminate against another person, on the ground of the other person’s religious belief or activity, if:

                     (a)  the person is performing a function or exercising a power relating to law enforcement, national security or intelligence under a law or program of the Commonwealth; and

                     (b)  the conduct constituting the discrimination is reasonably necessary in performing the function or exercising the power.

State and Territory Acts etc.

             (3)  Nothing in Division 2 or 3 makes it unlawful for a person to discriminate against another person, on the ground of the other person’s religious belief or activity, if:

                     (a)  the conduct constituting the discrimination is in direct compliance with a provision of a law of a State or a Territory; and

                     (b)  that provision is not prescribed by the regulations for the purposes of this paragraph.

             (4)  Despite subsection 14(2) of the Legislation Act 2003 , regulations made for the purposes of paragraph (3)(b) of this section may prescribe a provision of a law of a State or a Territory as in force at a particular time or as in force from time to time.

Meaning of national security

             (5)  In this section:

national security has the meaning given by the National Security Information (Criminal and Civil Proceedings) Act 2004 and includes granting, revoking or denying Australian Government security clearances (within the meaning of the Criminal Code ).

38   Orders, determinations and industrial instruments

                   Nothing in Division 2 or 3 makes it unlawful for a person to discriminate against another person, on the ground of the other person’s religious belief or activity, if the conduct constituting the discrimination is in direct compliance with any of the following:

                     (a)  an order of a court or tribunal;

                     (b)  without limiting paragraph (a)—an order, determination or award of a court or tribunal that has power to fix minimum wages or other terms and conditions of employment;

                     (c)  an instrument that is:

                              (i)  a fair work instrument (within the meaning of the Fair Work Act 2009 ); or

                             (ii)  a transitional instrument or Division 2B State instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ).

Subdivision C Specific exceptions relating to particular areas of public life

39   Exceptions relating to work

Exception—domestic duties

             (1)  Paragraphs 19(1)(a) and (b) (about offering employment) do not make it unlawful for a person (the first person ) to discriminate against another person, on the ground of the other person’s religious belief or activity, in connection with employment to perform domestic duties on the premises on which the first person resides.

Exception—inherent requirements

             (2)  Sections 19 (about employment) and 20 (about partnerships) do not make it unlawful for a person (the first person ) to discriminate against another person, on the ground of the other person’s religious belief or activity, if:

                     (a)  the discrimination is in connection with a position as an employee or partner; and

                     (b)  because of the other person’s religious belief or activity, the other person is unable to carry out the inherent requirements of the employment or partnership.

             (3)  Subsection (2) does not apply in relation to discrimination referred to in paragraph 19(2)(b) or (d) or 20(3)(a) or (c), other than discrimination in determining who should be offered promotion or transfer.

             (4)  Section 21 (about qualifying bodies) does not make it unlawful for a qualifying body to discriminate against a person, on the ground of the person’s religious belief or activity, if the person is unable to carry out the inherent requirements of the relevant profession, trade or occupation because of the person’s religious belief or activity.

             (5)  Section 23 (about employment agencies) does not make it unlawful for an employment agency to discriminate against a person, on the ground of the person’s religious belief or activity, if the person is unable to carry out the inherent requirements of the work sought because of the person’s religious belief or activity.

Employee includes prospective employee

             (6)  In this section, a reference to an employee includes a reference to a prospective employee.

40   Exceptions relating to accommodation and facilities

Exception—accommodation provider who is resident etc.

             (1)  Section 27 (about accommodation) does not apply to or in respect of the provision of accommodation in premises if:

                     (a)  the person who provides, or proposes to provide, the accommodation or a near relative of that person resides, and intends to continue to reside on those premises; and

                     (b)  the accommodation provided in those premises is for no more than 3 persons, other than a person mentioned in paragraph (a) or near relatives of such a person.

Exception—religious camps and conference sites

             (2)  Sections 26, to the extent it relates to making facilities available, and 27 (about accommodation) do not make it unlawful for a person (the first person ) to discriminate against another person, on the ground of the other person’s religious belief or activity, if:

                     (a)  the conduct constituting the discrimination is in the course of establishing, directing, controlling or administering a camp or conference site that:

                              (i)  provides accommodation; and

                             (ii)  is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion; and

                     (b)  the conduct is engaged in by the first person in good faith; and

                     (c)  a person of the same religion as the first person could reasonably consider the conduct to be in accordance with the doctrines, tenets, beliefs or teachings of that religion; and

                     (d)  the conduct is in accordance with a publicly available policy issued by the first person; and

                     (e)  if the Minister determines requirements under subsection (3)—the policy, including in relation to its availability, complies with the requirements.

             (3)  The Minister may, by legislative instrument, determine requirements for the purposes of paragraph (2)(e).

             (4)  Without limiting subsection (2), conduct mentioned in that subsection includes giving preference to persons of the same religion as the first person.

             (5)  Sections 26, to the extent it relates to making facilities available, and 27 (about accommodation) do not make it unlawful for a person (the first person ) to discriminate against another person, on the ground of the other person’s religious belief or activity, if:

                     (a)  the conduct constituting the discrimination is in the course of establishing, directing, controlling or administering a camp or conference site that:

                              (i)  provides accommodation; and

                             (ii)  is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion; and

                     (b)  the first person engages, in good faith, in the conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the first person; and

                     (c)  the conduct is in accordance with a publicly available policy; and

                     (d)  if the Minister determines requirements under subsection (6)—the policy, including in relation to its availability, complies with the requirements.

             (6)  The Minister may, by legislative instrument, determine requirements for the purposes of paragraph (5)(d).

             (7)  Without limiting subsection (5), conduct mentioned in that subsection includes giving preference to persons of the same religion as the first person.

41   Exception for disposal of land

                   Section 28 (about land) does not apply in relation to a disposal of an estate or interest in land by will or by way of gift.

42   Exception relating to clubs

                   Section 30 (about clubs) does not make it unlawful to discriminate against a person, on the ground of the person’s religious belief or activity, if membership (however described) of the club is restricted to persons who hold or engage in a particular religious belief or activity and the person does not hold or engage in that religious belief or activity.

43   Exception relating to voluntary bodies

             (1)  This section applies to voluntary bodies whose membership (however described) is restricted to persons who hold or engage in a particular religious belief or activity.

             (2)  Divisions 2 and 3 do not make it unlawful for a voluntary body to discriminate against a person, on the ground of the person’s religious belief or activity, in connection with:

                     (a)  the admission of persons as members of the body; or

                     (b)  the provision of benefits, facilities or services to members of the body.

Subdivision D Exemptions granted by the Commission

44   Commission may grant exemptions

             (1)  The Commission may, by notifiable instrument, grant to a person or body an exemption from the operation of a provision of Division 2 or 3.

             (2)  The exemption must:

                     (a)  specify the persons or bodies covered by the exemption; and

                     (b)  specify the provision or provisions to which the exemption applies; and

                     (c)  be granted for a specified period (which must not exceed 5 years, starting from when the exemption takes effect).

             (3)  The exemption may:

                     (a)  be granted subject to such terms and conditions as are specified in the instrument of exemption; and

                     (b)  be expressed to apply only in such circumstances, or in relation to such activities, as are specified in the instrument of exemption.

45   Applying for an exemption

             (1)  One or more persons or bodies may apply to the Commission for the granting of an exemption under section 44.

             (2)  The application must be in a form approved, in writing, by the Commission.

46   Effect of exemptions

                   This Part does not make it unlawful for:

                     (a)  a person or body that is covered by an exemption granted under section 44; or

                     (b)  a person employed by, or under the direction or control of, a person or body that is covered by an exemption granted under section 44;

to engage in conduct in accordance with the exemption.

47   Variation and revocation of exemptions

             (1)  The Commission or the Minister may, by notifiable instrument, vary or revoke an exemption granted under section 44.

             (2)  The variation or revocation takes effect on the day specified in the notifiable instrument.

48   Review by Administrative Appeals Tribunal

                   Applications may be made to the Administrative Appeals Tribunal for review of the following decisions:

                     (a)  decisions of the Commission under section 44;

                     (b)  decisions of the Commission under section 47;

                     (c)  decisions of the Minister under section 47.