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Anti-Discrimination Amendment Bill
1996
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
*
to prohibit sexual harassment, and
*
to ensure that Ministers and other Members of Parliament are liable for
any unlawful discrimination against, or sexual harassment of, people
employed in their offices, and
*
to provide that a complaint of unlawful discrimination or sexual
harassment does not automatically lapse on the death of the
complainant or the respondent, and
*
to make a number of miscellaneous amendments relating to the
handling of complaints, the proceedings of the Equal Opportunity
Tribunal and the coverage of the Act, and
*
to update references to Acts of the New South Wales and
Commonwealth Parliaments, and
*
to make other minor amendments.
* Amended in committee--see table at end of volume.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the
Anti-Discrimination Act 1977 set out in Schedule 1.
Schedule 1
Amendments
Employment in the Public Service and in the office of a
Minister or Member of Parliament
At present, discrimination in employment is prohibited in respect of each
ground of unlawful discrimination. For instance, section 8 provides that it is
unlawful for an employer to discriminate against a person on the ground of
race in respect of arrangements made for determining who should be offered
employment and in the terms on which the employer offers employment.
(Similar provisions are made in respect of each other ground of unlawful
discrimination.)
Those provisions operate by reference to an "employer". At present, section
4 (7) of the Act says, in effect, that a public servant's employer is the relevant
Department Head.
Schedule 1 [6] and [7] replace the provisions that set out who is the
"employer" of a public servant and updates the terminology of that
provision.
In addition, Schedule 1 [7] inserts proposed section 4C, which makes
provision for Ministers and Members of Parliament to be regarded as the
"employer" of people employed in their offices. As a result, a Minister or
other Member of Parliament will be prohibited from unlawfully
discriminating against, or sexually harassing, such people and will also be
liable for unlawful conduct of other employees in their offices, as are other
employers (by virtue of section 53 of the Act).
Proposed section 4C (1) states that the section applies where a Minister or
member is not the employer of staff in his or her office.
Proposed section 4C (2) provides that a Minister or member is taken to be the
employer of staff in his or her office for the purposes of the Principal Act.
Explanatory note page 2
Proposed section 4C (3) provides that Ministers employ on behalf of the
Crown.
Proposed section 4C (4) provides that if, because of the section, there would
be more than one employer, the Principal Act applies to each employer
jointly and severally. Accordingly, obligations under the Principal Act will
have to be complied with by each employer, and proceedings will be able to
be taken against each employer jointly or separately.
Proposed section 4C (5) makes it clear that section 4B is not affected by the
proposed section. (Section 4B treats the relevant Department Head as the
employer of certain public sector employees.)
Proposed section 4C (6) makes it clear that the proposed section extends to
prospective employment.
Proposed section 4C (7) contains definitions.
Amendments relating to sexual harassment
The Schedule inserts Part 2A (Prohibition of sexual harassment) into the Act.
(See Schedule 1 [10]) The Part renders it unlawful to sexually harass a person
in the circumstances set out in the Part.
At present, sex-based harassment is regarded as an element of sex
discrimination within the meaning of Part 3 of the Act (see the decision of the
Equal Opportunity Tribunal in Hill v Water Resources Commission (1985)
EOC 92-127).
Part 2A specifically makes sexual harassment unlawful. The prohibition
against sexual harassment applies in all areas covered by the Act in relation
to other grounds of discrimination, namely accommodation, the provision of
goods and services, education, registered clubs and employment, although
the exemptions applicable in relation to such unlawful discrimination (that is
exemptions for small businesses and private educational authorities) will not
apply to sexual harassment. It will also apply to participants in organised
sporting competitions and related matters. The consequences of sexual
harassment are that a person can make a complaint, dealt with under Part 9,
which may lead to orders or other decisions of the Equal Opportunity
Tribunal, including an order for damages of up to $40,000.
Explanatory note page 3
Part 2A Prohibition of sexual harassment
Part 2A is modelled on the provisions relating to sexual harassment in the Sex
Discrimination Act 1984 of the Commonwealth.
Proposed section 22A defines sexual harassment. A person sexually harasses
another person if he or she makes an unwelcome sexual advance, an
unwelcome request for sexual favours or engages in any other unwelcome
conduct of a sexual nature in relation to the other person in circumstances in
which a reasonable person would have anticipated that the other person
would be offended, humiliated or intimidated.
Proposed section 22B renders it unlawful to sexually harass an employee, a
prospective employee, a fellow employee, commission agent, contract
worker, a partner or participant at the same workplace. The liability of a
principal or employer for the acts of their agent or employee, or for the acts
of any other person in relation to their agent or employee, is limited in
respect of sexual harassment. Proposed Part 2A does not operate so as to
confer liability on a principal or employer if the principal or employer took
all reasonable steps to prevent sexual harassment by their agent or employee.
(See Schedule 1 [19])
Proposed section 22C renders it unlawful for a member of an industrial
organisation, or a member of staff of such an organisation, to sexually harass
a member of the organisation or prospective member.
Proposed section 22D renders it unlawful for a member of a qualifying body
to sexually harass a person seeking action in connection with an occupational
qualification.
Proposed section 22E renders it unlawful for a person who operates, or is a
member of staff of, an employment agency, to sexuaIly harass another person
in the course of providing or offering to provide any of the agency's services
to that person.
Proposed section 22F renders it unlawful for a member of staff of an
educational institution to sexually harass a student or a potential student, and
for an adult student to sexually harass a member of staff or student of an
institution at the institution or while on an event organised by the institution.
Proposed section 22G renders it unlawful for a person to sexually harass
another person in the course of providing, or offering to provide, goods,
services or facilities to that other person.
Explanatory note page 4
Proposed section 22H renders it unlawful for a person to sexually harass
another person in the course of providing or offering to provide
accommodation to that person.
Proposed section 221 renders it unlawful for a person to sexually harass
another person in the course of dealing with that other person in the disposal
or acquisition by that person of an estate or interest in land.
Proposed section 225 renders it unlawful for a member of the committee of
management of a registered club, or a member of a registered club, to
sexually harass a member of the club or a potential member of the club.
Proposed section 22K renders it unlawful for a person to sexually harass
another person in the course of a sporting activity.
Proposed section 22L renders it unlawful for a person performing any
function under a State law or for the purpose of a State program to sexually
harass another person.
Schedule 1 [19] makes a consequential amendment.
Discrimination in relation to access to places and vehicles
At present, discrimination in relation to access to places and vehicles is
treated separately from discrimination in the provision of goods and services,
but only in respect of discrimination on the ground of race or age or on
transgender grounds.
Schedule l [5] makes the provision of access to a place or vehicle a category
of "services", which will apply to all types of discrimination.
Schedule 1 [8], [13] and [16] omit provisions that render discrimination in
the provision of access unlawful, since such discrimination will now be
encompassed by the provisions dealing with discrimination in the provision
of goods and services.
Schedule 1 [12] omits a provision which prohibits discrimination on the
grounds of sex in relation to access to places where liquor is sold. (There is
no analogous provision in respect of other types of discrimination.) Such
discrimination will be covered by the extended definition of service.
Tribunal proceedings
Section 69N of the Act is amended to allow a judicial member of the Equal
Opportunity Tribunal sitting alone to deliver any judgment of the Tribunal or
to make an order in respect of costs. (See Schedule 1 [24])
Explanatory note page 5
Schedule 1 [26] allows the Registrar of the Equal Opportunity Tribunal to
deliver any judgment of the Tribunal.
Proposed section 69NA confers protection from personal liability on
members of the Tribunal or members of staff of the Tribunal in respect of any
act, matter or thing done or omitted in good faith for the purposes of carrying
out the provisions of the Act. (See Schedule 1 [25])
Pursuit of a complaint when the complainant or respondent
has died
At present, a person has a right to make a complaint under the Act, which is
required to be investigated by the President of the Anti-Discrimination Board
and may be referred to the Equal Opportunity Tribunal.
Schedule 1 [30] provides that if a complainant dies before a complaint is
finally heard, the person's estate may pursue the complaint and is entitled to
any damages that may be ordered in respect of the complaint. Similarly, the
death of the respondent does not cause the complainant's cause of action to
cease.
Notification of respondent of decision not to proceed with
complaint
At present, section 90A (3) requires the President of the Anti-Discrimination
Board to notify both the complainant and the respondent when the President
makes a decision not to proceed with a complaint. This decision may be
made after the Board has commenced an initial investigation of the
complaint, or where the complainant has elected not to pursue the complaint.
In either case, the respondent may not be aware that the complainant has
lodged a complaint.
Schedule 1 [34] amends the subsection so the President is required to notify
the respondent of the President's decision only if the respondent had been
notified that the complaint was made.
Exemptions from the Act
Section 126 of the Act provides that the Minister may grant an exemption
from the Act or regulations (or any part of the Act or regulations) on the
recommendation of the Anti-Discrimination Board.
Explanatory note page 6
At present, such an exemption may not exceed 5 years and may only be
renewed once, for a further 5 years. Schedule 1 [43] allows for the initial
exemption to remain in force for a maximum of 10 years and provides for an
unlimited number of renewals of that exemption.
Section 126A provides for exemptions from the application of Parts 3--4C of
special needs programs and activities. The section allows an "appropriate
authority" to certify a program or activity to be a special needs program or
activity in certain circumstances. If the program or activity is one for which a
Government Department or public or local authority is responsible, the
appropriate authority is the Minister responsible for the Department or
authority. In any other case, the appropriate authority is the Minister
administering the Act. Schedule 1 [44] and [45] provide for such exemptions
to be granted only by the Minister administering the Act.
Updating references to repealed Acts
The Schedule makes numerous amendments updating references to repealed
Acts of the New South Wales and Commonwealth Parliaments. (See
Schedule 1 [1], [2], [3], [11], [14], [18], [20], [21], [23], [27], [37], [38] and
[40]) The Schedule also replaces out of date references to statutory bodies.
(See Schedule 1 [15], [41] and [42])
Other minor amendments
Schedule 1 [9] repeals and re-enacts section 19, which renders it unlawful to
discriminate on the grounds of race in the provision of goods and services.
The new provision is consistent with the language of analogous provisions in
respect of other types of discrimination.
Schedule 1 [17] provides an exemption from the prohibition on
discrimination on the grounds of age in relation to the provision of
accommodation. As a result of the amendment, an accommodation
concession based on a person's age will not amount to unlawful
discrimination on the grounds of age.
Schedule 1 [22] empowers the senior judicial member of the Equal
Opportunity Tribunal to authorise the taking of leave by a member of the
Equal Opportunity Tribunal.
Schedule 1 [31] empowers the President of the Anti-Discrimination Board,
during conciliation proceedings, to order the production of broadcast material
in relation to a broadcast that is the subject of a vilification complaint.
Explanatory note page 7
Schedule 1 [28], [29], [32], [33], [35] and [36] remove the unnecessary
distinction between "vilification complaint" and a "homosexual vilification
complaint". Such complaints are dealt with identically in the Act.
Schedule 1 [39] omits a redundant provision.
Schedule 1 [46] inserts certain savings and transitional provisions consequent
on the enactment of the proposed Act.
Explanatory note page 8