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Other Acts Amendment) Bill 1996
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
to amend the Anti-Discrimination Act 1977 to make discrimination and
(a)
vilification on transgender grounds unlawful, and
(b)
to amend the Births, Deaths and Marriages Act 1995 to enable the
record of a person's sex in the registration of the person's birth in the
Register under that Act to be altered if the person has undergone
sexual reassignment surgery and is not married, and
(c)
to amend the Crimes Act I900 to recognise that sexual assault offences
may be perpetrated against persons who have undergone sexual
reassignment surgery, and
(d) to amend the Wills, Probate and Administration Act 1898 to provide
that a beneficiary under a will is not (unless the will expressly provides
otherwise) disinherited merely because the beneficiary is a transgender
person.
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 Schedule of amendments
to the Anti-Discrimination Act 1977.
Clause 4 is a formal provision giving effect to the Schedule of amendments
to the Births, Deaths and Marriages Registration Act 1995.
Clause 5 is a formal provision giving effect to the Schedule of amendments
to the Crimes Act 1900.
Clause 6 is a formal provision giving effect to the Schedule of amendments
to the Wills, Probate and Administration Act 1898.
Schedule 1
Amendment of Anti-Discrimination Act 1977
Schedule 1 [ 1 ] inserts a definition of recognised transgender person to mean
a person the record of whose sex is altered under Part 5A (to be inserted by
Schedule 2 [4]) of the Births, Deaths and Marriages Act 1995 or under a
corresponding law of another Australian jurisdiction.
Schedule 1 [4] inserts Part 3 8 (Discrimination on transgender grounds) into
the Act. The Part makes it unlawful to discriminate against a transgender
person (or a relative or associate of a transgender person) on transgender
grounds in the circumstances described in the Part. Part 3A follows the
pattern established in the Act for the other forms of discrimination that are
made unlawful by its provisions. The Part contains the following provisions:
Part 3A Discrimination on transgender grounds
Division 1
General
Proposed section 38A explains that a reference to a transgender person is to
be read as a reference to a person who identifies as a member of the opposite
sex by living, or seeking to live, as a member of the opposite sex or who has
identified, and lived, as a member of the opposite sex.
Proposed section 38B states what constitutes discrimination on transgender
grounds.
Explanatory note page 2
Division 2
Discrimination in work
Proposed section 38C renders it unlawful for an employer to discriminate
against an employee or an applicant for employment on transgender grounds.
The proposed section does not apply in relation to employment within a
private household, or where the number of persons employed does not
exceed 5, or to employment by a private educational authority.
Proposed section 38D renders it unlawful for a principal to discriminate
against a commission agent or a prospective commission agent on
transgender grounds.
Proposed section 38E renders it unlawful for a principal to discriminate
against a contract worker on transgender grounds.
Proposed section 38F renders it unlawful for a firm consisting of 6 or more
partners, or persons proposing to form a firm consisting of 6 or more
partners, to discriminate against a partner or prospective partner on
transgender grounds.
Proposed section 38G renders it unlawful for local government councillors to
discriminate against another councillor on transgender grounds.
Proposed section 38H renders it unlawful for an industrial organisation to
discriminate against a member of such an organisation, or an applicant for
membership, on transgender grounds.
Proposed section 38I renders it unlawful for an authority or body that is
empowered to confer, renew or extend a professional, trade or other
occupational qualification to discriminate on transgender grounds against a
person who holds or seeks to hold that qualification.
Proposed section 38J renders it unlawful for an employment agency to
discriminate on transgender grounds against a person who seeks the services
of the agency.
Division 3
Discrimination in other areas
Proposed section 38K renders it unlawful for an educational authority to
discriminate against students or applicants for admission as students on
transgender grounds. The proposed section does not apply to a private
educational authority. Schedule 1 [2] amends section 31A (which preserves
the right to conduct single sex schools) to provide that the admission of a
transgender person as a student does not affect the single sex status of the
school.
Explanatory note page 3
Proposed section 38L renders it unlawful to discriminate against another
person on transgender grounds in the provision of access to public places and
vehicles.
Proposed section 38M renders it unlawful for a person to discriminate against
another person on transgender grounds in the provision of goods and
services.
Proposed section 38N renders it unlawful for a person to discriminate against
another person on transgender grounds in the provision of accommodation.
The proposed section does not apply to accommodation in which the person
providing the accommodation, or a near relative of that person, lives and the
accommodation is for no more than 6 persons.
Proposed section 38O renders it unlawful for a registered club to discriminate
on transgender grounds against persons who apply for membership of the
club, or against members of the club in relation to the provision of benefits.
Schedule 1 [3] amends section 34A (which preserves the right to conduct a
registered club for members of a single sex) to provide that the admission of
a transgender person as a member does not affect the single sex status of the
club.
Division 4
Exceptions to Part 3A
Proposed section 38P provides that it is not unlawful to exclude a transgender
person from participating in a sporting activity for members of the sex with
which the transgender person identifies.
Proposed section 38Q provides that it is not unlawful in the administration of
a superannuation scheme to treat a transgender person as being of the
opposite sex to the sex with which the transgender person identifies.
Division 5
Transgender vilification
Proposed section 38R inserts a definition of public act for the purposes of the
Division.
Proposed section 38S renders it unlawful for a person, by a public act, to
incite hatred towards, serious contempt for, or severe ridicule of another
person or persons on transgender grounds. The proposed section does not
apply to a fair report of a public act, material that has the protection of
absolute privilege under the Defamation Act 1974 or a public act done
reasonably and in good faith in the public interest.
Explanatory note page 4
Proposed section 38T makes it an offence to engage in transgender
vilification involving the threat of physical harm to transgender persons or
their property. The offence may only be prosecuted with the consent of the
Attorney General.
Schedule 1 [5] and [6] make consequential amendments.
Schedule 2
Amendment of Births, Deaths and Marriages
Registration Act 1995
Schedule 2 [4] inserts Part 5A (Change of sex) into the Act. The Part
contains the following provisions:
Part 5A Change of sex
Proposed section 32A defines birth certificate and sexual reassignment
surgery for the purposes of the Part.
Proposed section 32B enables an unmarried adult who has undergone sexual
reassignment surgery and whose birth is registered in New South Wales to
apply for the alteration of the record of the person's sex in the registration of
the person's birth. A similar application may be made by the parents or
guardian of an unmarried child who satisfies the same requirements.
Proposed section 32C requires such an application to be accompanied by
medical verification of the sexual reassignment surgery.
Proposed section 32D enables the Registrar of Births, Deaths and Marriages
to determine an application and, if appropriate, to alter the record of the
person's sex.
Proposed section 32E enables the Registrar, if the record of a person's sex is
altered, to issue a new birth certificate showing the person's sex as altered.
Proposed section 32F specifies the circumstances in which the Registrar may,
if the record of a person's sex is altered, issue a birth certificate showing the
person's sex before the record was altered.
Proposed section 32G makes it an offence for a person to produce, for the
purposes of the law of another jurisdiction, a new birth certificate issued for a
transgender person unless the law of that jurisdiction expressly allows the
new certificate to be produced or the person, in producing the new certificate,
informs the person to whom it is produced of the transgender person's change
of sex.
Explanatory note page 5
Proposed section 32H makes it an offence for a person to produce, with
intention to deceive, an old birth certificate issued for a transgender person.
Proposed section 32I provides that a person the record of whose sex is altered
under the Part is, for the purposes of, but subject to, New South Wales law, a
person of the sex as so altered. The proposed section also enables the
recognition in New South Wales of a sex change effected under the law of
another Australian jurisdiction.
Schedule 3
Amendment of Crimes Act 1988
Schedule 3 amends sections 61H and 80A of the Act to add to certain
definitions relating to sexual assault offences specific references to surgically
constructed vaginas so as to recognise that sexual assault offences may be
perpetrated against persons who have undergone sexual reassignment
surgery.
Schedule 4
Amendment of Wills, Probate and
Administration Act 1898
Schedule 4 inserts proposed section 14 into the Act to provide that a
beneficiary under a will is not (unless the will expressly provides otherwise)
disinherited merely because the beneficiary is a transgender person.
Explanatory note page 6