DISCRIMINATION ACT 1991 - NOTES

DISCRIMINATION ACT 1991 - NOTES

(see s 2)

Note 1     The Legislation Act

contains definitions and other provisions relevant to this Act.

Note 2     In particular, the Legislation Act

, dict, pt 1, defines the following terms:

              •     ACAT

              •     body

              •     civil partner

              •     civil partnership

              •     civil union

              •     civil union partner

              •     corporation

              •     director-general (see s 163)

              •     domestic partner (see s 169)

              •     domestic partnership (see s 169)

              •     fail

              •     for

              •     in relation to

              •     intersex person (see s 169B)

              •     reviewable decision notice

              •     State

              •     territory authority

              •     the Territory

              •     under.

"accommodation" includes residential and business accommodation.

"accommodation status" includes being—

        (a)     a tenant; and

        (b)     an occupant within the meaning of the Residential Tenancies Act 1997

; and

        (c)     in receipt of, or waiting to receive, housing assistance within the meaning of the Housing Assistance Act 2007

; and

        (d)     homeless.

"carer"—a person is a carer of someone else (the "dependant") if—

        (a)     the dependant is dependent on the person for ongoing care and assistance; and

        (b)     the person cares for the dependant otherwise than because of—

              (i)     a commercial arrangement; or

              (ii)     an arrangement that is substantially commercial.

Example—carer

Jesse has multiple sclerosis and requires constant care. Jesse's spouse and 3 children share care for Jesse and each is a carer.

"club" means an association (whether incorporated or unincorporated) formed for social, literary, cultural, political, sporting, athletic or other lawful purposes that provides and maintains facilities, in whole or in part, from the funds of the association.

"commission agent" means a person who does work for another person as the agent of that other person and who is remunerated (whether wholly or partially) by commission.

"committee of management", in relation to a club, organisation or voluntary body, means the group or body of people (however described) that manages the affairs of the club, organisation or voluntary body.

"contract worker" means a person (the worker) who does work for someone else (the third person) under a contract between the worker's employer and the third person.

"disability"—see section 5AA.

"discrimination"—see section 8.

"doing" an act—see section 4A.

"educational authority" means a body or person administering an educational institution.

"educational institution" means a school, college, university or other institution at which education or training is provided.

"employer", in relation to an unpaid worker, means the person for whom the unpaid worker performs work.

"employment" includes—

        (a)     work under a contract for services; and

        (b)     work as a Territory employee; and

        (c)     work as an unpaid worker.

"employment agency" means any person who or body that (whether for payment or not) assists people to find employment or other work or assists employers to find employees or workers.

"employment status" includes—

        (a)     being unemployed; and

        (b)     receiving a pension or another social security benefit; and

        (c)     receiving compensation; and

        (d)     being employed on a part-time, casual or temporary basis; and

        (e)     undertaking shift or contract work.

"gender identity "means the gender expression or gender-related identity, appearance or mannerisms or other gender-related characteristics of a person, with or without regard to the person's designated sex at birth.

Note     Gender identity includes the gender identity that the person has or has had in the past, or is thought to have or have had in the past (see s 7 (2)).

"HRC" means the human rights commission.

"immigration status" includes being an immigrant, a refugee or an asylum seeker, or holding any kind of visa under the Migration Act 1958

(Cwlth).

Note     Immigration status includes the immigration status that the person has or has had in the past, or is thought to have or have had in the past (see s 7 (2)).

"industrial activity" means any of the following:

        (a)     being or not being a member of, or joining, not joining or refusing to join, an industrial organisation or industrial association;

        (b)     establishing or being involved in establishing an industrial organisation or forming or being involved in forming an industrial association;

        (c)     organising or promoting or proposing to organise or promote a lawful activity on behalf of an industrial organisation or industrial association;

        (d)     encouraging, assisting, participating in or proposing to encourage, assist or participate in a lawful activity organised or promoted by an industrial organisation or industrial association;

        (e)     not participating in or refusing to participate in a lawful activity organised or promoted by an industrial organisation or industrial association;

        (f)     representing or advancing the views, claims or interests of members of an industrial organisation or industrial association.

"industrial association"—

        (a)     means a group of employees or employers formed formally or informally to represent or advance the views, claims or interests of the employees or employers in a particular industry, trade, profession, business or employment; but

        (b)     does not include an industrial organisation.

"industrial organisation" means any of the following that is registered or recognised under the law of the Commonwealth, a State or another Territory:

        (a)     an organisation of employees;

        (b)     an organisation of employers;

        (c)     any other organisation established for the purposes of people who carry on a particular industry, trade, profession, business or employment.

"irrelevant criminal record", in relation to a person, means a record relating to an offence, or an alleged offence, if—

        (a)     the person has been charged with the offence but—

              (i)     a proceeding for the alleged offence is not finalised; or

              (ii)     the charge has lapsed, been withdrawn or discharged, or struck out; or

        (b)     the person has been acquitted of the alleged offence; or

        (c)     the person has had a conviction for the alleged offence quashed or set aside; or

        (d)     the person has been served with an infringement notice for the alleged offence; or

    (e)     the person has a conviction for the offence, but the circumstances of the offence are not directly relevant to the situation in which discrimination arises; or

        (f)     the person has a spent conviction or an extinguished conviction, within the meaning of the Spent Convictions Act 2000

, for the offence.

Note     The Spent Convictions Act 2000

sets out which convictions can be spent (see that Act

, s 11) and when a conviction is spent (see that Act, s 12).

"man" means a member of the male sex irrespective of age.

"physical features" means a person's height, weight, size or other bodily features.

"political conviction" includes—

        (a)     having a political conviction, belief, opinion or affiliation; and

        (b)     engaging in political activity; and

        (c)     not having a political conviction, belief, opinion or affiliation; and

        (d)     not engaging in political activity.

"potential pregnancy"—see section 5A.

"pregnancy" includes potential pregnancy.

"premises" includes—

        (a)     a structure, building, aircraft, vehicle or vessel; and

        (b)     a place (whether enclosed or built on or not); and

        (c)     a part of premises (including premises of a kind referred to in paragraph (a) or paragraph (b)).

"principal" means—

        (a)     for a commission agent—a person for whom the commission agent does work as a commission agent; or

        (b)     for a contract worker—a person for whom the contract worker does work under a contract between the contract worker's employer and the person.

"protected attribute"—see section 7.

"race" includes—

        (a)     colour, descent, ethnic and national origin and nationality; and

        (b)     any 2 or more distinct races that are collectively referred to or known as a race.

"relationship status" means the status or condition of being—

        (a)     single; or

        (b)     married; or

        (c)     married but living separately and apart from one's spouse; or

        (d)     in a civil union; or

        (e)     in a civil union but living separately and apart from one's civil union partner; or

        (f)     in a civil partnership; or

        (g)     in a civil partnership but living separately and apart from one's civil partner; or

        (h)     divorced; or

              (i)     the surviving spouse; or

        (j)     the domestic partner (other than the spouse, civil union partner or civil partner) of someone else.

Note     For the meaning of domestic partner, see Legislation Act

, s 169.    

"relative", of a person, means—

        (a)     a person who is related to the person by blood, marriage, civil union, civil partnership or any other domestic partnership or adoption; or

        (b)     a domestic partner of the person or of a person mentioned in paragraph (a).

"relevant class of people" means a class of people whose members are identified by reference to a protected attribute.

"religious conviction" includes—

        (a)     having a religious conviction, belief, opinion or affiliation; and

        (b)     engaging in religious activity; and

        (c)     the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander people; and

        (d)     engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples; and

        (e)     not having a religious conviction, belief, opinion or affiliation; and

        (f)     not engaging in religious activity.

"services" includes—

        (a)     services relating to banking, insurance or the provision of grants, loans, credit or finance; and

        (b)     services relating to entertainment, recreation or refreshment; and

        (c)     services relating to transport or travel; and

        (d)     services of any profession, trade or business; and

        (e)     services provided by a government, government authority, local government body or corporation in which a government has a controlling interest; and

        (f)     the provision of scholarships, prizes or awards.

"sex characteristics—"

        (a)     means a person's physical features relating to sex; and

        (b)     includes—

              (i)     genitalia and other sexual and reproductive parts of the person's anatomy; and

              (ii)     the person's chromosomes, hormones and secondary physical features emerging as a result of puberty.

"sexual harassment", for part 5 (Sexual harassment)—see section 58.

"sexuality "includes heterosexuality, homosexuality and bisexuality.

"Territory employee" means a person who is—

        (a)     a public servant; or

        (b)     employed by a Territory authority;

"unlawful act" means an act that is unlawful under—

        (a)     part 3 (Unlawful discrimination); or

        (b)     part 5 (Sexual harassment); or

        (c)     part 7 (Other unlawful acts).

"unpaid worker" means a person who performs work for an employer for no remuneration.

"voluntary body" means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include—

        (a)     a club; or

        (b)     a body established by a law of the Territory, the Commonwealth, a State or another Territory; or

        (c)     an association that provides grants, loans, credit or finance to its members.

"woman" means a member of the female sex irrespective of age.

Endnotes

1     About the endnotes

Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes.

Not all editorial amendments made under the Legislation Act 2001

, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel's Office.

Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history.

If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.

The endnotes also include a table of earlier republications.

2     Abbreviation key