Consie Larmour
Formerly Social Policy Group
30 March 1999
Contents
Major Issues
Introduction
South Australia: Equal Opportunity
Act 1984
New South Wales:
Anti-Discrimination Act 1977
Victoria: Equal Opportunity Act
1995
Western Australia: Equal
Opportunity Act 1984
Queensland: Anti-Discrimination
Act 1991
ACT: Discrimination Act
1991
Northern Territory:
Anti-Discrimination Act 1992
Tasmania: Sex Discrimination Act
1994
Endnotes
Major
Issues
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 provisions 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, sexuality, 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 to
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 circumstances 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 and 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
employment, 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 provision 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 in 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, physical 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 harassment 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 exempted.
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 or 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 complaints, 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 required 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
Commission, 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
against 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 Commission 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; status 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 ground 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 complaints 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 Discrimination
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 provides 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
discrimination 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 discrimination 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 person 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 functions 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 conduct'. 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, requirement 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 practice 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 all 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 intention 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, disability 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
-
- 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.