2002-2003 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 (Senator Greig) A Bill for an Act to prohibit discrimination on the ground of sexuality, transgender identity or intersex status, and for related purposes [Page Break] Part 1--Preliminary 1 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Object................................................................................................. 2 4 Application of Act ............................................................................. 2 5 Definitions ......................................................................................... 3 6 What is discrimination on the ground of sexuality, transgender identity or intersex status................................................ 9 7 Operation of State and Territory laws.............................................. 11 8 Act does not prevent action to stop unlawful behaviour.................. 12 9 Extent to which Act binds the Crown .............................................. 12 Part 2--Prohibition of discrimination 13 Division 1--Discrimination in work 13 10 Discrimination in employment ........................................................ 13 11 Rights etc. of same sex couples under the laws of the Commonwealth................................................................................ 14 Division 2--Discrimination in other areas 15 12 Discrimination in non-employment areas........................................ 15 13 Application forms etc. ..................................................................... 15 14 Official documents etc. .................................................................... 16 Division 3--Inciting hatred etc. on ground of sexuality, transgender identity or intersex status 17 15 Inciting hatred etc. on ground of sexuality, transgender identity or intersex status ................................................................. 17 Division 4--Special measures 18 16 Special measures.............................................................................. 18 Division 5--Exemptions 19 17 Religious bodies............................................................................... 19 18 Acts done under statutory authority................................................. 19 19 Superannuation and insurance ......................................................... 19 20 Commission may grant exemptions................................................. 20 21 Review by Administrative Appeals Tribunal .................................. 22 22 Notice of exemptions to be published.............................................. 22 23 Effect of exemptions........................................................................ 22 i Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] discrimination on the ground of sexuality, transgender identity or intersex status 23 24 Jurisdiction to handle complaints of discrimination arising under this Act................................................................................... 23 25 Additional functions of Human Rights and Equal Opportunity Commission................................................................. 23 26 Additional functions of Sex Discrimination Commissioner ............ 24 27 Complaints....................................................................................... 25 Part 4--Offences 26 28 Unlawful act not offence unless expressly so provided................... 26 29 Advertisements ................................................................................ 26 30 Victimisation ................................................................................... 26 31 Offence to vilify on the ground of sexuality, transgender identity or intersex status ................................................................. 27 32 Obstruction etc................................................................................. 28 Part 5--Miscellaneous 29 33 This Act does not make unlawful acts lawful.................................. 29 34 Delegation........................................................................................ 29 35 Liability of people involved in unlawful acts .................................. 29 36 Vicarious liability etc....................................................................... 29 37 Acts done for bodies corporate ........................................................ 30 38 Commonwealth taken to be employer ............................................. 30 39 Awards inconsistent with this Act not to be made........................... 30 40 Unlawful act not basis of civil action unless expressly so provided ........................................................................................... 30 41 Protection from civil actions............................................................ 30 42 Non-disclosure of private information............................................. 31 43 Information stored otherwise than in written form .......................... 33 44 Commissioner to provide information ............................................. 33 45 Amendment of the Human Rights and Equal Opportunity Commission Act 1986 ...................................................................... 33 46 Regulations ...................................................................................... 33 Schedule 1--Amendment of the Human Rights and Equal Opportunity Commission Act 1986 34 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 ii [Page Break] 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 A Bill for an Act to prohibit discrimination on the 21 ground of sexuality, transgender identity or 22 intersex status, and for related purposes 23 The Parliament of Australia enacts: 24 Part 1--Preliminary 25 1 Short title 26 This Act may be cited as the Sexuality and Gender Identity 27 Discrimination Act 2003. 28 2 Commencement 29 This Act commences on the day on which it receives the Royal 30 Assent. 31 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 1 [Page Break] Section 3 3 Object 1 The object of this Act is to eliminate, as far as possible, 2 discrimination against people on the grounds of sexuality, 3 transgender identity, or intersex status. 4 4 Application of Act 5 (1) This Act applies throughout Australia and the external territories to 6 the extent that this Act: 7 (a) gives effect to: 8 (i) the International Covenant on Civil and Political Rights; 9 or 10 (ii) the International Covenant on Economic, Social and 11 Cultural Rights; or 12 (iii) the Convention Concerning Discrimination in Respect 13 of Employment and Occupation, 1958; or 14 (iv) a prescribed treaty or international agreement; or 15 (b) relates to matters external to Australia; or 16 (c) relates to matters of international concern. 17 (2) This Act applies to things done by or for the Commonwealth or a 18 public authority of the Commonwealth. 19 (3) This Act applies to: 20 (a) Commonwealth employees in connection with their 21 employment as Commonwealth employees; and 22 (b) people seeking to become Commonwealth employees. 23 (4) This Act applies to things done by an authority or body in the 24 exercise of a power under a Commonwealth law to confer, renew, 25 extend, revoke or withdraw an authorisation or qualification. 26 (5) This Act applies to things done by or for: 27 (a) the Commonwealth or the government of a Territory; or 28 (b) a body or authority established for a public purpose by a law 29 of the Commonwealth or a law of a Territory; 30 in the exercise of a power conferred by a law of the 31 Commonwealth or a law of a Territory. 32 2 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Section 5 (6) This Act applies to things done by a person in connection with 1 exercising a power conferred by a law of the Commonwealth or a 2 law of a Territory. 3 (7) This Act applies to things done by: 4 (a) a person who is a Commonwealth employee in connection 5 with the person's duties as a Commonwealth employee; or 6 (b) a person who is a member of the staff of an educational 7 institution established by a law of the Commonwealth or a 8 law of a Territory in connection with the person's duties as a 9 member of the staff of the institution. 10 (8) This Act applies to: 11 (a) things done by a foreign corporation; or 12 (b) things done by a trading or financial corporation formed 13 within the limits of the Commonwealth for the purpose of its 14 trading or financial activities. 15 (9) This Act applies to things done in the course of the carrying on of 16 the business of: 17 (a) banking, other than State banking not extending beyond the 18 limits of the State concerned; or 19 (b) insurance, other than State insurance not extending beyond 20 the limits of the State concerned. 21 (10) This Act applies to things done in the course of trade or commerce: 22 (a) between Australia and a place outside Australia; or 23 (b) among the States; or 24 (c) between a State and a Territory; or 25 (d) between 2 Territories. 26 (11) This Act applies to things done within Australia involving people 27 or things, or matters arising, outside Australia. 28 5 Definitions 29 In this Act: 30 accommodation includes residential and business accommodation. 31 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 3 [Page Break] Section 5 administrative office means: 1 (a) an office established by, or an appointment made under, a 2 law of the Commonwealth; or 3 (b) an office established by, or an appointment made under, a 4 law of a Territory; or 5 (c) an appointment made by the Governor-General or a Minister 6 otherwise than under a law of the Commonwealth or of a 7 Territory; or 8 (d) an appointment as a director of an incorporated company that 9 is a public authority of the Commonwealth; 10 but does not include: 11 (e) an office of member of the Assembly, member of the 12 Executive, or Minister within the meaning of the Australian 13 Capital Territory (Self-Government) Act 1988; or 14 (f) an office of member of the Legislative Assembly, member of 15 the Council or Minister of the Territory, within the meaning 16 of the Northern Territory (Self-Government) Act 1978; or 17 (g) an office of member of the Legislative Assembly within the 18 meaning of the Norfolk Island Act 1979; or 19 (h) an office or appointment in the Australian Public Service or 20 the Australian Parliamentary Service. 21 agency has the same meaning as in the Public Service Act 1999. 22 androgyne means someone who identifies as not exclusively male 23 or female who is not intersexed. 24 associate of a person means: 25 (a) another person with whom the person associates, whether 26 socially, in business or otherwise; or 27 (b) another person who is a partner of, or who is wholly or 28 mainly dependent on a partner, or on a member of the 29 household of, the person. 30 class member, in relation to a representative complaint, means any 31 of the people on whose behalf the complaint was lodged, but does 32 not include a person who has withdrawn his or her complaint. 33 4 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Section 5 club means an association (whether incorporated or 1 unincorporated) of at least 30 people associated together for social, 2 literary, cultural, political, sporting, athletic or other lawful 3 purposes that: 4 (a) provides and maintains its facilities, in whole or in part, from 5 the funds of the association; and 6 (b) sells or supplies liquor for consumption on its premises. 7 Commission means the Human Rights and Equal Opportunity 8 Commission established by the Human Rights and Equal 9 Opportunity Commission Act 1986. 10 commission agent means a person who does work for another 11 person as the agent of the other person and who is remunerated, 12 wholly or partly, by commission. 13 Commissioner means the Sex Discrimination Commissioner 14 appointed under section 96 of the Sex Discrimination Act 1984. 15 Commonwealth agency means an agency within the meaning of 16 the Privacy Act 1988. 17 Commonwealth employee means a person who: 18 (a) holds an office or appointment in the Australian Public 19 Service or the Australian Parliamentary Service or is 20 employed in a temporary capacity in an agency; or 21 (b) holds an administrative office; or 22 (c) is employed by a public authority of the Commonwealth; or 23 (d) holds an office or appointment in the Commonwealth 24 Teaching Service or is employed as a temporary employee 25 under the Commonwealth Teaching Service Act 1972; or 26 (e) is employed under the Australian Security Intelligence 27 Organisation Act 1979, the Commonwealth Electoral Act 28 1918, the Supply and Development Act 1939 or the Naval 29 Defence Act 1910; or 30 (f) is a member of the Defence Force. 31 Commonwealth law means: 32 (a) an Act, or an instrument made under an Act; or 33 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 5 [Page Break] Section 5 (b) an Act or Ordinance of a Territory, or an instrument made 1 under an Act or Ordinance of a Territory; or 2 (c) an order or award made under a law referred to in 3 paragraph (a) or (b). 4 Commonwealth program means a program conducted by or for the 5 Commonwealth government. 6 contract worker means a person who does work for another person 7 under a contract between them. 8 de facto spouse of a person means another person who is not 9 married to the person but lives with the person on a bona fide 10 domestic basis. 11 educational authority means a body or person administering an 12 educational institution. 13 educational institution means a school, college, university or other 14 institution at which education or training is provided. 15 employment includes: 16 (a) part time and temporary employment; and 17 (b) work under a contract for services; and 18 (c) work as a Commonwealth employee; and 19 (d) work as an employee of a State or an instrumentality of a 20 State. 21 employment agency means a person who or body that, whether for 22 payment or not, assists people to find employment or other work or 23 assists employers to find employees or workers, and includes 24 Centrelink. 25 homosexuality means the identity of being gay, lesbian or 26 homosexual. 27 intersex means a condition where a person is born with 28 reproductive organs and/or sex chromosomes which are not 29 exclusively male or female. 30 near relative of a person means: 31 6 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Section 5 (a) a parent, child, grandparent, grandchild, brother or sister of 1 the person; or 2 (b) the spouse or de facto spouse of the person or of a person 3 referred to in paragraph (a). 4 President means the President of the Commission. 5 principal means: 6 (a) for a commission agent, a person for whom the commission 7 agent works as a commission agent; and 8 (b) for a contract worker, a person for whom the contract worker 9 does work under a contract between them. 10 principal executive, in relation to a Commonwealth agency, has 11 the same meaning as in Part V of the Privacy Act 1988. 12 public authority of the Commonwealth means: 13 (a) a body incorporated, whether before or after the 14 commencement of this Act, for a public purpose by a law of 15 the Commonwealth or a law of a Territory, being a body that 16 employs staff on its own behalf; or 17 (b) an unincorporated authority or body established, whether 18 before or after the commencement of this Act, for a public 19 purpose by or under a law of the Commonwealth or a law of 20 a Territory, being an authority or body that employs staff on 21 its own behalf; or 22 (c) an incorporated company over which the Commonwealth, or 23 a body or authority referred to in paragraph (a) or (b), is in a 24 position to exercise control. 25 reassignment procedure means: 26 (a) a medical or surgical procedure, or a combination of medical 27 and surgical procedures, to alter the genitals and other sexual 28 characteristics of a person who was identified by birth 29 certificate as male or female in a way that the person will be 30 identified as a person of the opposite sex; or 31 (b) in relation to a person under 18, such a procedure or 32 combination of procedures to correct or eliminate ambiguities 33 in the person's sexual characteristics. 34 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 7 [Page Break] Section 5 registered organisation means an organisation within the meaning 1 of the Workplace Relations Act 1996. 2 relative of a person means another person to whom the person is 3 related by blood, marriage, affinity or adoption. 4 representative complaint means a complaint where the people on 5 whose behalf the complaint was made include people other than 6 the complainant, but does not include a complaint that the 7 Commission has decided should no longer be continued as a 8 representative complaint. 9 services includes: 10 (a) services relating to banking, insurance and the provision of 11 grants, loans, credit or finance; 12 (b) services relating to entertainment, recreation or refreshment; 13 (c) services relating to transport or travel; 14 (d) services of the kind provided by the members of a profession 15 or trade; 16 (e) services of the kind provided by a government, a government 17 agency or a local government body. 18 sexuality means heterosexuality, homosexuality, bisexuality and 19 asexuality that presently exists, existed in the past or may exist in 20 the future. 21 State, except in subsections 4(11) and (12), includes the Australian 22 Capital Territory and the Northern Territory. 23 superannuation benefit, in relation to a member of a 24 superannuation fund, means a benefit that is payable, under the 25 terms and conditions relating to the fund: 26 (a) in the event of the member's death, to the estate of the 27 deceased or to someone other than the deceased; or 28 (b) in the event of the member's physical or mental incapacity, to 29 the member or to another person. 30 superannuation fund means a superannuation or provident fund or 31 scheme. 32 8 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Section 6 superannuation fund conditions, in relation to a superannuation 1 fund, means the terms and conditions that relate to membership of, 2 or benefits payable from, the superannuation fund. 3 trade union means: 4 (a) an organisation of employees that is a registered 5 organisation; or 6 (b) a trade union within the meaning of a State Act or a law of a 7 Territory; or 8 (c) another similar body. 9 transgender person means a person originally of one sex who: 10 (a) identifies and lives or seeks to live as a member of the other 11 sex; and 12 (b) assumes the characteristics of the other sex on a full time 13 basis or as much as is reasonable in the circumstances; and 14 (c) includes a transsexual; and 15 (d) for the purposes of this Act, includes those of androgyne 16 identity; and 17 a reference to transgender status includes a reference to part or 18 future status or perceived status. 19 transsexual person means a person who: 20 (a) has undergone, or is in the process of undergoing, a surgical 21 reassignment procedure; and 22 (b) who identifies and lives or seeks to live as a member of the 23 sex to which he or she has been reassigned or seeks to be 24 reassigned. 25 6 What is discrimination on the ground of sexuality, transgender 26 identity or intersex status 27 (1) A person (the discriminator) discriminates against another person 28 (the aggrieved person) on the ground of sexuality if, because of the 29 actual or perceived sexuality of the aggrieved person or of a 30 relative or associate of the aggrieved person, the discriminator 31 treats the aggrieved person less favourably than, in the same 32 circumstances or in circumstances that are not materially different, 33 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 9 [Page Break] Section 6 the discriminator treats or would treat a person of a different 1 sexuality or who had a relative or associate of a different sexuality. 2 (2) A person (the discriminator) also discriminates against another 3 person (the aggrieved person) on the ground of sexuality if the 4 discriminator requires the aggrieved person to comply with a 5 requirement or condition: 6 (a) with which a substantial proportion of people of the same 7 sexuality as the aggrieved person cannot comply; and 8 (b) that, on the balance of probabilities, is considered to cause 9 disadvantage to the aggrieved person or group. 10 (3) A person (the discriminator) discriminates against another person 11 (the aggrieved person) on the ground of transgender identity or 12 intersex status if, because the aggrieved person or a relative or 13 associate of the aggrieved person is transgender or is thought to be 14 transgender or intersex, the discriminator treats the aggrieved 15 person less favourably than, in the same circumstances or in 16 circumstances that are not materially different, the discriminator 17 treats or would treat a person who is not transgender or intersex or 18 who had a relative or associate who is not transgender or intersex. 19 (4) A person (the discriminator) also discriminates against another 20 person (the aggrieved person) on the ground of transgender 21 identity or intersex status if the discriminator requires the 22 aggrieved person to comply with a requirement or condition that, 23 on the balance of probabilities, is considered to have a 24 disadvantageous effect on the complainant group. 25 (5) For the purposes of this section, a complainant group is restricted 26 to transgender people of a particular gender, regardless of 27 reassignment procedures. 28 (6) Discrimination includes harassment, which is an act reasonably 29 likely, in all the circumstances, to offend, insult, humiliate or 30 intimidate a person or an associate or relative of the person. 31 (7) Harassment of a person on the ground of transgender identity or 32 intersex status includes harassment of a person by refusing to 33 10 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Section 7 acknowledge that he or she wishes to be known as a member of a 1 specific gender and has made this preference clear. 2 (8) Harassment of a person on the grounds of bisexuality includes a 3 refusal to accept bisexuality as a distinct sexuality. 4 (9) Discrimination includes a failure to offer or continue employment, 5 or to provide access to goods and services, on the basis that a 6 person's dress or appearance suggests he or she is of a particular 7 sexuality or is a transgender or intersex person, or is thought to be 8 of a particular sexuality or to be a transgender or intersex person, 9 or has a relative or associate who appears to be, or is thought to be, 10 of a particular sexuality or a transgender or intersex person. 11 (10) In determining whether or not a person engages in discrimination, 12 the person's motive is irrelevant. 13 7 Operation of State and Territory laws 14 (1) In this section: 15 law of a State or Territory means a law of a State or Territory that 16 deals with discrimination on the ground of sexuality, transgender 17 identity or intersex status. 18 (2) This Act is not intended to exclude or limit the operation of a law 19 of a State or Territory that is capable of operating concurrently 20 with this Act. 21 (3) If: 22 (a) a law of a State or Territory deals with a matter dealt with by 23 this Act; and 24 (b) a person has made a complaint, instituted a proceeding or 25 taken other action under that law about an act or omission; 26 and 27 (c) the person would, apart from this subsection, be entitled to 28 make a complaint under this Act about the act or omission; 29 the person is not entitled to make a complaint or institute a 30 proceeding under this Act about that act or omission. 31 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 11 [Page Break] Section 8 (4) If: 1 (a) a law of a State or Territory deals with a matter dealt with by 2 this Act; and 3 (b) an act or omission by a person that constitutes an offence 4 against that law also constitutes an offence against this Act; 5 the person may be prosecuted and convicted either under that law 6 or under this Act, but this subsection does not render a person 7 liable to be punished more than once for the same act or omission. 8 8 Act does not prevent action to stop unlawful behaviour 9 This Act does not prevent a person from taking action to stop 10 another person from engaging in unlawful behaviour. 11 9 Extent to which Act binds the Crown 12 (1) This Act binds the Crown in right of the Commonwealth, of each 13 State and Territory. 14 (2) This Act does not render the Crown in right of the Commonwealth, 15 of a State or Territory liable to be prosecuted for an offence. 16 17 12 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Discrimination in work Division 1 Section 10 1 Part 2--Prohibition of discrimination 2 Division 1--Discrimination in work 3 10 Discrimination in employment 4 (1) It is unlawful to discriminate on the ground of sexuality, 5 transgender identity or intersex status against an employee or an 6 applicant for employment, including but not limited to persons 7 seeking employment or working as employees, commission agents, 8 contract workers and volunteers, in: 9 (a) the offering of employment; 10 (b) the terms and conditions afforded an employee; 11 (c) the payment of a superannuation benefit; 12 (d) the issue of an authorisation or qualification necessary for or 13 to facilitate the practice of an occupation; 14 (e) the provision of services by an employment agency; 15 (f) the consideration of application for membership or the access 16 to benefits of a registered organisation under the Workplace 17 Relations Act 1988; 18 (g) the invitation to become a partner or the terms of a 19 partnership. 20 (2) Paragraph (1)(a) does not make it unlawful for a person to 21 discriminate in the offering of employment to another person on 22 the ground of sexuality, transgender identity or intersex status 23 when that employment is: 24 (a) to perform domestic duties at the premises at which the 25 first-mentioned person resides; or 26 (b) as a member of the staff of an educational institution that is 27 conducted in accordance with the tenets, beliefs or teachings 28 of a particular religion or creed. 29 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 13 [Page Break] Division 1 Discrimination in work Section 11 11 Rights etc. of same sex couples under the laws of the 1 Commonwealth 2 (1) This section applies to a law of the Commonwealth that: 3 (a) confers a right or entitlement on a person, or imposes an 4 obligation on a person; or 5 (b) applies to a person in a particular way; 6 because of the person living together with another person of the 7 opposite sex on a genuine domestic basis although not married to 8 the other person. 9 (2) After commencement, this Act: 10 (a) confers the same right or entitlement, or imposes the same 11 obligation, on a person who lives together with another 12 person of the same sex, or when either or both are 13 transgender, on a genuine domestic basis; or 14 (b) applies to such people in the same way. 15 (3) The regulations may provide that this section does not apply to a 16 specified law of the Commonwealth. 17 (4) The operation of this Act is to be reported on, including with 18 statistical and analytical information on all cases coming before the 19 Commission under this Act, in a separate section of the Annual 20 Report of the Human Rights and Equal Opportunity Commission. 21 14 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Discrimination in other areas Division 2 Section 12 1 2 Division 2--Discrimination in other areas 3 12 Discrimination in non-employment areas 4 (1) It is unlawful for a person, authority, agency or association to 5 discriminate on the ground of sexuality, transgender identity or 6 intersex status, against a person, including: 7 (a) in education by any educational authority; 8 (b) in the provision of goods and services or facilities, whether 9 for payment or not, and including but not restricted to the 10 provision of accommodation, or the disposal of an estate or 11 interest in land; 12 (c) in the membership of a club or incorporated association; 13 (d) in relation to a sporting activity; 14 (e) in the administration or conduct of a Commonwealth 15 program, or in the conduct of an organisation receiving 16 Commonwealth funding. 17 (2) Paragraph (1)(b) does not make it unlawful for a person to 18 discriminate against a person on the ground of sexuality, 19 transgender identity or intersex status: 20 (a) in providing accommodation, if the person who provides or 21 proposes to provide the accommodation or a near relative of 22 that person resides, and intends to continue to reside, on 23 those premises, and not more than four people will be 24 provided with accommodation at the premises; or 25 (b) in the disposal of an estate or interest in land by will or by 26 way of gift. 27 13 Application forms etc. 28 It is unlawful for a person to request or require that a person of 29 transsexual identity or intersex status, or who has a relative or 30 associate of that identity or status, to provide information, by way 31 of completing a form or otherwise, that a person who is not 32 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 15 [Page Break] Division 2 Discrimination in other areas Section 14 transgender or of a different sexuality would not be requested or 1 required to provide. 2 14 Official documents etc. 3 (1) This section applies to a person who has been issued with a 4 certificate under a law of a State that specifies that the person is of 5 the sex stated in the certificate. 6 (2) It is unlawful for a person who is responsible for issuing an official 7 document, such as a passport or a driver's licence, to refuse to 8 recognise in the document the sex of a person to whom this section 9 applies as specified in the certificate. 10 11 16 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Inciting hatred etc. on ground of sexuality, transgender identity or intersex status Division 3 Section 15 1 2 Division 3--Inciting hatred etc. on ground of sexuality, 3 transgender identity or intersex status 4 15 Inciting hatred etc. on ground of sexuality, transgender identity 5 or intersex status 6 (1) In this section: 7 public act includes: 8 (a) any form of communication to the public, including 9 speaking, writing, printing, displaying notices, broadcasting, 10 telecasting, screening and playing tapes or other recorded 11 material; and 12 (b) other conduct observable by the public, including actions and 13 gestures and the wearing or display of clothing, signs, flags, 14 emblems and insignia. 15 (2) It is unlawful for a person, by a public act, to incite hatred towards, 16 serious contempt for, or severe ridicule of, a person or group of 17 persons on the ground of the sexuality, transgender identity or 18 intersex status of the person or members of the group. 19 (3) This section does not make unlawful: 20 (a) a fair report of a public act referred to in subsection (2); or 21 (b) a public act, done reasonably and in good faith, for academic, 22 artistic, religious instruction, scientific or research purposes 23 or for other purposes in the public interest, including 24 discussion or debate about, and expositions of, an act or 25 matter. 26 (4) A review of this section is to be completed, either by the Human 27 Rights and Equal Opportunity Commission or by an appropriately 28 qualified organisation or review panel, within 2 years from the 29 commencement of the Act, with a view to determining if the 30 provisions regarding incitement to hatred should be retained, 31 modified or repealed. 32 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 17 [Page Break] Division 4 Special measures Section 16 1 2 Division 4--Special measures 3 16 Special measures 4 This Part does not make it unlawful to do an act that is reasonably 5 intended to: 6 (a) ensure that persons of a particular sexuality, transgender 7 identity or intersex status have equal opportunities with other 8 persons in circumstances in relation to which provision is 9 made by this Act; or 10 (b) afford persons of a particular sexuality, transgender identity 11 or intersex status, equal opportunities in relation to: 12 (i) employment, education, accommodation, clubs or sport; 13 or 14 (ii) the provision of goods, services or facilities; or 15 (iii) the administration of Commonwealth laws and 16 programs; or 17 (c) afford persons of a particular sexuality, transgender identity 18 or intersex status, grants, benefits or programs, whether direct 19 or indirect, to meet their special needs in relation to: 20 (i) employment, education, accommodation, clubs or sport; 21 or 22 (ii) the provision of goods, services, facilities or land; or 23 (iii) the making available of facilities; or 24 (iv) the administration of Commonwealth laws and 25 programs. 26 27 18 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Exemptions Division 5 Section 17 1 2 Division 5--Exemptions 3 17 Religious bodies 4 Subject to section 18, Divisions 1 and 2 of this Part do not affect an 5 act or practice of a body established for religious purposes that 6 conforms to the doctrines, tenets or beliefs of that religion or is 7 necessary to avoid injury to the religious susceptibilities of 8 adherents of that religion, including: 9 (a) the ordination, appointment or employment of priests, 10 ministers of religion or members of a religious order; or 11 (b) the training or education of persons seeking ordination, 12 appointment or employment as priests, ministers of religion 13 or members of a religious order; or 14 (c) the selection, appointment or employment of persons to 15 perform duties or functions for the purpose of or in 16 connection with, or otherwise to participate in, a religious 17 observance or practice. 18 18 Acts done under statutory authority 19 (1) Divisions 1 and 2 of this Part do not affect anything done by a 20 person in direct compliance with: 21 (a) a determination or decision of the Commission; or 22 (b) an order of a court. 23 (2) Divisions 1 and 2 of this Part do not affect anything done by a 24 person in direct compliance with a law of the Commonwealth. 25 19 Superannuation and insurance 26 (1) This Part does not make it unlawful for a person to discriminate 27 against another person on the ground of sexuality, transgender 28 identity or intersex status by refusing to offer the other person: 29 (a) an annuity; or 30 (b) a life insurance policy; or 31 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 19 [Page Break] Division 5 Exemptions Section 20 (c) a policy of insurance against accident or any other policy of 1 insurance; or 2 (d) membership of a superannuation or provident fund; or 3 (e) membership of a superannuation or provident scheme; 4 if the discrimination: 5 (f) is based on relevant actuarial and statistical data; and 6 (g) is reasonable, having regard to other available relevant 7 material. 8 (2) If a person refuses to offer another person a service listed in 9 paragraph (1)(a), (b), (c), (d) or (e), the other person may appeal to 10 the Human Rights and Equal Opportunity Commission for an 11 assessment of the basis of the decision, and must be provided with 12 the information on which the decision was based. 13 (3) This Part does not make it unlawful for a person to discriminate 14 against another person, on the ground of sexuality, transgender 15 identity or intersex status, in respect of the terms or conditions on 16 which: 17 (a) an annuity; or 18 (b) a life insurance policy; or 19 (c) a policy of insurance against accident or any other policy of 20 insurance; or 21 (d) membership of a superannuation or provident fund; or 22 (e) membership of a superannuation or provident scheme; 23 is offered to, or may be obtained by, the other person if the 24 discrimination: 25 (f) is based on actuarial or statistical data on which it is 26 reasonable for the person to rely; and 27 (g) is reasonable having regard to the data and other relevant 28 factors. 29 20 Commission may grant exemptions 30 (1) The Commission may, on application by: 31 (a) a person, on that person's own behalf or on behalf of that 32 person and another person or other persons; or 33 20 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Exemptions Division 5 Section 20 (b) 2 or more persons, on their own behalf or on behalf of 1 themselves and another person or other persons; or 2 (c) a person or persons included in a class of persons on behalf 3 of the persons included in that class of persons; 4 by instrument in writing, grant to the person, persons or class of 5 persons an exemption from the operation of a provision of 6 Division 1 or 2 of this Part, as specified in the instrument. 7 (2) The Commission may, on application by a person to, or in respect 8 of, whom an exemption from a provision of Division 1 or 2 of this 9 Part has been granted under subsection (1), being an application 10 made before the end of the period for which that exemption was 11 granted, grant a further exemption from the operation of that 12 provision. 13 (3) An exemption under subsection (1), or a further exemption under 14 subsection (2): 15 (a) may be granted subject to terms and conditions specified in 16 the instrument; and 17 (b) may be expressed to apply only in circumstances, or in 18 relation to activities, specified in the instrument; and 19 (c) must be granted for a specified period that does not exceed 5 20 years; and 21 (d) must not be granted until the Commission has advertised the 22 fact that it proposes to grant the exemption or further 23 exemption and has given interested persons a reasonable 24 opportunity of not less than 14 days after the publication of 25 the advertisement to make written submissions opposing the 26 grant. 27 (4) The President of the Commission must arrange for an organisation 28 with appropriate legal qualifications and experience in the field of 29 human rights legislation to review and report on all exemptions, 30 other than those subject to specific review, within three years from 31 the commencement of the Act. 32 (5) The President of the Commission must provide a copy of the report 33 of the review prepared under subsection (4) to the Minister. 34 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 21 [Page Break] Division 5 Exemptions Section 21 (6) The Minister must cause a copy of the report received in 1 accordance with subsection (5) to be tabled in both Houses of the 2 Parliament within 15 sitting days of receipt. 3 21 Review by Administrative Appeals Tribunal 4 Applications may be made to the Administrative Appeals Tribunal 5 for review of decisions made by the Commission under section 20. 6 22 Notice of exemptions to be published 7 (1) The Commission must, not later than one month after it grants an 8 exemption in relation to a complaint of discrimination in 9 accordance with this Act, cause to be published in the Gazette a 10 notice of the granting of the exemption: 11 (a) setting out its findings on material questions of fact; and 12 (b) referring to the evidence on which the findings were based; 13 and 14 (c) giving the reasons for the granting of the exemption; and 15 (d) containing a statement to the effect that, subject to the 16 Administrative Appeals Tribunal Act 1975, application may 17 be made to the Administrative Appeals Tribunal for a review 18 of the granting of the exemption to which the notice relates 19 by or for any person or people whose interests are affected by 20 the granting of the exemption. 21 (2) A failure to comply with the requirements of subsection (1) in 22 relation to the granting of an exemption does not affect the validity 23 of the exemption. 24 23 Effect of exemptions 25 Divisions 1 and 2 of this Part do not make it unlawful for a person 26 who has been granted an exemption from a provision of Division 1 27 or 2 of this Part, or a person in the employment or under the 28 direction or control of a person who has been granted such an 29 exemption, to do an act in accordance with the exemption. 30 31 22 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] transgender identity or intersex status Part 3 Section 24 1 Part 3--Lodgment and investigation of complaints 2 of discrimination on the ground of 3 sexuality, transgender identity or intersex 4 status 5 6 24 Jurisdiction to handle complaints of discrimination arising under 7 this Act 8 It is the intention of this Act to confer full jurisdiction on the 9 Human Rights and Equal Opportunity Commission to receive, 10 investigate and in all ways deal to the full extent of its powers with 11 any complaint arising from rights bestowed by this Act. 12 25 Additional functions of Human Rights and Equal Opportunity 13 Commission 14 (1) The following additional functions are conferred on the 15 Commission: 16 (a) to inquire into alleged infringements of Part 2 of this Act, and 17 endeavour by conciliation to effect a settlement of the matters 18 to which the alleged infringements relate; 19 (b) to inquire into, and make determinations on, matters referred 20 to it by the Minister or of its own motion; 21 (c) to promote an understanding and acceptance of, and 22 compliance with, this Act; 23 (d) to undertake research and educational programs, and other 24 programs, for the Commonwealth for the purpose of 25 promoting the object of this Act; 26 (e) to examine enactments, and (when requested to do so by the 27 Minister or a House of the Parliament) proposed enactments, 28 for the purpose of establishing whether the enactments or 29 proposed enactments are, or would be, inconsistent with or 30 contrary to the object of this Act, and to report to the Minister 31 or that House the results of any such examination; 32 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 23 [Page Break] sexuality, transgender identity or intersex status Section 26 (f) on its own initiative or when requested by the Minister, or 1 when requested by a House of the Parliament, to report to the 2 Minister, or that House, as the case may be, as to the laws 3 that should be made by the Parliament, or action that should 4 be taken by the Commonwealth, on matters relating to 5 discrimination on the ground of sexuality, transgender 6 identity or intersex status; 7 (g) to prepare, and to publish in such manner as the Commission 8 considers appropriate, guidelines for the avoidance of 9 discrimination on the ground of sexuality, transgender 10 identity or intersex status; 11 (h) if the Commission considers it appropriate to do so, with the 12 leave of the court hearing the proceedings and subject to any 13 conditions imposed by the court, to intervene in proceedings 14 that involve issues of discrimination on the ground of 15 sexuality, transgender identity or intersex status; 16 (i) to do anything incidental or conducive to the performance of 17 any of the preceding functions. 18 Note: For the provisions about inquiries into complaints of discrimination 19 and conciliation of those complaints: see Part IIB of the Human Rights 20 and Equal Opportunity Commission Act 1986. 21 (2) In this section: 22 enactment has the same meaning as in the Human Rights and 23 Equal Opportunity Commission Act 1986. 24 proposed enactment has the same meaning as in the Human Rights 25 and Equal Opportunity Commission Act 1986. 26 26 Additional functions of Sex Discrimination Commissioner 27 (1) The Sex Discrimination Commissioner is to assume responsibility 28 for issues of sexuality and gender identity discrimination. 29 (2) Within two years of the commencement of this Act, the President 30 of the Commission is to report on the management of sexuality and 31 gender identity complaints, including the appropriateness of the 32 Sex Discrimination Commissioner continuing to have 33 24 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] transgender identity or intersex status Part 3 Section 27 responsibility for sexuality and gender identity discrimination 1 issues, and if there is a demonstrated need for additional resources. 2 27 Complaints 3 (1) A complaint alleging that a person has done an act that is unlawful 4 because of a provision of Part 2 of this Act may be lodged with the 5 Human Rights and Equal Opportunity Commission in accordance 6 with Part IIB of the Human Rights and Equal Opportunity 7 Commission Act 1986. 8 (2) A complaint made under subsection (1) must be handled by the 9 Commission in accordance with Parts IIB and IIC of the Human 10 Rights and Equal Opportunity Commission Act 1986. 11 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 25 [Page Break] Section 28 1 Part 4--Offences 2 3 28 Unlawful act not offence unless expressly so provided 4 Except as expressly provided by this Part or the Human Rights and 5 Equal Opportunity Commission Act 1986, this Act does not make it 6 an offence to do an act that is unlawful because of a provision of 7 Part 2. 8 29 Advertisements 9 (1) A person must not publish or display, or cause or permit to be 10 published or displayed, an advertisement or notice that indicates, or 11 could reasonably be understood as indicating, an intention to do an 12 act that is unlawful because of a provision of Part 2. 13 Maximum penalty: 10 penalty units. 14 (2) In subsection (1): 15 advertisement includes every form of advertisement or notice, 16 whether to the public or not, and whether in a newspaper or other 17 publication, by television, radio, internet or e-mail, by display of 18 notices, signs, labels, showcards or goods, by distribution of 19 samples, circulars, catalogues, price lists or other material, by 20 exhibition of pictures, models or films, or in any other way, and the 21 reference in that subsection to publish or display, in relation to an 22 advertisement, is to be construed accordingly. 23 30 Victimisation 24 (1) A person must not commit an act of victimisation against another 25 person. 26 Maximum penalty: 25 penalty units. 27 (2) For the purposes of subsection (1), a person commits an act of 28 victimisation against another person if the first-mentioned person 29 26 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Section 31 subjects, or threatens to subject, the other person to any detriment 1 on the ground that the other person: 2 (a) has made, or proposes to make, a complaint under this Act; 3 or 4 (b) has brought, or proposes to bring, proceedings under this Act 5 against any person; or 6 (c) has provided or proposes to provide information, or has 7 produced or proposes to produce documents, to a person 8 exercising or performing any power or function under this 9 Act; or 10 (d) has appeared, or proposes to appear, as a witness before the 11 Commission in a proceeding under this Act; or 12 (e) has reasonably asserted, or proposes to assert, any rights of 13 the person or the rights of any other person under this Act; or 14 (f) has made an allegation that a person has done an act that is 15 unlawful because of a provision of Part 2 of this Act; 16 or on the ground that the first-mentioned person believes that the 17 other person has done, or proposes to do, an act or thing referred to 18 in any of paragraphs (a) to (f), inclusive. 19 (3) It is a defence to a prosecution for an offence under subsection (1) 20 constituted by subjecting, or threatening to subject, a person to a 21 detriment on the ground in paragraph (2)(f) if it is proved that the 22 allegation was false and was not made in good faith. 23 31 Offence to vilify on the ground of sexuality, transgender identity 24 or intersex status 25 (1) In this section: 26 public act has the same meaning as in section 15. 27 (2) A person must not, by a public act, incite hatred towards, serious 28 contempt for, or severe ridicule of, a person or group of persons on 29 the ground of the sexuality, transgender identity or intersex status 30 of the person or members of the group by means that include: 31 (a) threatening physical harm to, or to property of, the person or 32 members of the group; or 33 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 27 [Page Break] Section 32 (b) inciting others to threaten physical harm to, or to property of, 1 the person or members of the group. 2 Maximum penalty: 50 penalty units or imprisonment for 6 3 months, or both. 4 32 Obstruction etc. 5 A person must not insult, hinder, obstruct, molest or interfere with 6 a person exercising a power or performing a function under this 7 Act. 8 Maximum penalty: 10 penalty units. 9 28 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Section 33 1 2 Part 5--Miscellaneous 3 4 33 This Act does not make unlawful acts lawful 5 Nothing in this Act makes it lawful to do a thing that would be 6 unlawful apart from this Act. 7 34 Delegation 8 (1) The Commission may by writing under its seal, delegate to a 9 member of the Commission, the Commissioner, a member of the 10 staff of the Commission or another person or body of people all or 11 any of the powers conferred on the Commission under this Act, 12 other than powers in connection with the performance of the 13 functions that, under section 26, are to be performed by the 14 Commissioner for the Commission. 15 (2) The Commissioner may, by writing signed by the Commissioner, 16 delegate to a member of the staff of the Commission approved by 17 the Commission, all or any of the powers exercisable by the 18 Commissioner under this Act. 19 35 Liability of people involved in unlawful acts 20 A person who causes, instructs, induces, aids or permits another 21 person to do an act that is unlawful under Division 1 or 2 of Part 2 22 is, for the purposes of this Act, taken also to have done the act. 23 36 Vicarious liability etc. 24 (1) Subject to subsection (2), if an employee or agent of a person does, 25 in connection with the employment of the employee or with the 26 duties of the agent as an agent, an act that would, if it were done by 27 the person, be unlawful under Division 1 or 2 of Part 2 (whether or 28 not the act done by the employee or agent is unlawful under 29 Division 1 or 2 of Part 2), this Act applies to that person as if that 30 person had also done the act. 31 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 29 [Page Break] Section 37 (2) Subsection (1) does not apply in relation to an act of a kind 1 referred to in subsection (1) done by an employee or agent of a 2 person if it is established that the person took all reasonable steps 3 to prevent the employee or agent from doing acts of the kind 4 referred to in that subsection. 5 37 Acts done for bodies corporate 6 If, for the purposes of this Act, it is necessary to establish that a 7 body corporate has done an act on a particular ground, it is 8 sufficient to establish that a person who acted for the body 9 corporate in the matter so acted on that ground. 10 38 Commonwealth taken to be employer 11 For the purposes of this Act, all Commonwealth employees are 12 taken to be employed by the Commonwealth. 13 39 Awards inconsistent with this Act not to be made 14 This Act is a prescribed Act for the purposes of section 121 of the 15 Workplace Relations Act 1996. 16 40 Unlawful act not basis of civil action unless expressly so provided 17 Except as expressly provided by this Act, nothing in this Act 18 confers on a person any right of action in respect of the doing of an 19 act that is unlawful because of a provision of Part 2. 20 41 Protection from civil actions 21 (1) The Commission, a member of the Commission, the Commissioner 22 or a person acting under the direction or authority of the 23 Commission or of the Commissioner or under a delegation under 24 this Part is not liable to an action or other proceeding for damages 25 for or in relation to an act done or omitted to be done in good faith 26 in the performance or purported performance of a function, or in 27 the exercise or purported exercise of any power or authority, 28 conferred on the Commission or the Commissioner. 29 30 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Section 42 (2) If: 1 (a) a complaint has been made to the Commission; or 2 (b) a submission has been made, a document or information has 3 been provided, or evidence has been given, to the 4 Commission or the Commissioner; 5 a person is not liable to an action, suit or other proceeding in 6 respect of loss, damage or injury of any kind suffered by another 7 person by reason only that the complaint or submission was made, 8 the document or information was provided or the evidence was 9 given. 10 42 Non-disclosure of private information 11 (1) This section applies to a person who is, or has at any time been: 12 (a) the Commissioner; or 13 (b) a member of the Commission or a member of the staff 14 assisting the Commission; or 15 (c) authorised to perform or exercise a function or power of the 16 Commission or the Commissioner or a function or power for 17 the Commission or the Commissioner, being a function or 18 power conferred on the Commission or on the Commissioner 19 under this Act. 20 (2) A person to whom this section applies must not, either directly or 21 indirectly, except in the performance of a duty under or in 22 connection with this Act or in the performance or exercise of a 23 function or power referred to in paragraph (1)(c): 24 (a) make a record of, or divulge or communicate to any person, 25 any information relating to the affairs of another person 26 acquired by the person because of that person's office or 27 employment under or for the purposes of this Act or because 28 of the person being or having been so authorised; or 29 (b) make use of any such information as is mentioned in 30 paragraph (a); or 31 (c) produce to any person a document relating to the affairs of 32 another person provided for the purposes of this Act. 33 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 31 [Page Break] Section 42 Maximum penalty: 50 penalty units, or imprisonment for 1 year, 1 or both. 2 (3) A person to whom this section applies must not be required: 3 (a) to divulge or communicate to a court information relating to 4 the affairs of another person acquired by the person because 5 of the person's office or employment under or for the 6 purposes of this Act or because of the person being or having 7 been so authorised; or 8 (b) to produce in a court a document relating to the affairs of 9 another person of which the person has custody, or to which 10 that person has access, because of the person's office or 11 employment under or for the purposes of this Act or because 12 of the person being or having been so authorised; 13 except where it is necessary to do so for the purposes of this Act. 14 (4) Nothing in this section prohibits a person from: 15 (a) making a record of information that is, or is included in a 16 class of information that is, required or permitted by an Act 17 to be recorded, if the record is made under that Act; or 18 (b) divulging or communicating information, or producing a 19 document, to a person in accordance with an arrangement in 20 force under section 16 of the Human Rights and Equal 21 Opportunity Commission Act 1986; or 22 (c) divulging or communicating information, or producing a 23 document, that is, or is included in a class of information that 24 is or class of documents that are, required or permitted by an 25 Act to be divulged, communicated or produced, as the case 26 may be, if the information is divulged or communicated, or 27 the document is produced, for the purposes of or pursuant to 28 that Act. 29 (5) Subsection (3) does not prevent a person from being required, for 30 the purposes of an Act, to divulge or communicate information, or 31 to produce a document, that is, or is included in a class of 32 information that is or class of documents that are, required or 33 permitted by that Act to be divulged, communicated or produced. 34 (6) In this section: 35 32 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 [Page Break] Section 43 court includes a tribunal, authority or person having power to 1 require the production of documents or the answering of questions. 2 produce includes permit access to. 3 43 Information stored otherwise than in written form 4 If information is recorded or stored by means of a mechanical, 5 electronic or other device, any duty imposed by this Act to produce 6 the document recording that information is a duty to provide a 7 document containing a clear reproduction in writing of the 8 information. 9 44 Commissioner to provide information 10 The Commissioner must give to the Commission such information 11 relating to the operations of the Commissioner under this Act as 12 the Commission from time to time requires. 13 45 Amendment of the Human Rights and Equal Opportunity 14 Commission Act 1986 15 The Human Rights and Equal Opportunity Commission Act 1986 is 16 amended as set out in the Schedule. 17 46 Regulations 18 The Governor-General may make regulations prescribing matters: 19 (a) required or permitted by this Act to be prescribed; or 20 (b) necessary or convenient to be prescribed for carrying out or 21 giving effect to this Act. 22 23 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003 33 [Page Break] 1986 Section 46 1 2 Schedule 1--Amendment of the Human 3 Rights and Equal Opportunity 4 Commission Act 1986 5 6 1 Subsection 3(1) (at the end of the definition of unlawful 7 discrimination) 8 Add: 9 ; or (g) Part 2 of the Sexuality and Gender Identity Discrimination 10 Act 2003. 11 2 Paragraph 11(1)(a) 12 After "1984", insert ", the Sexuality and Gender Discrimination Act 13 2003". 14 3 Subsection 11(3) 15 After "1984", insert ", the Sexuality and Gender Identity Discrimination 16 Act 2003". 17 4 Subsection 14(8) 18 After "1984", insert ", the Sexuality and Gender Identity Discrimination 19 Act 2003". 20 5 Subsection 16(2A) 21 After "1984", insert ", the Sexuality and Gender Identity Discrimination 22 Act 2003". 23 4 Subsection 19(6) 24 After "1984", insert ", the Sexuality and Gender Identity Discrimination 25 Act 2003". 26 34 Sexuality and Gender Identity Discrimination Bill 2003 No. , 2003