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This is a Bill, not an Act. For current law, see the Acts databases.
WESTERN AUSTRALIA
LEGISLATIVE COUNCIL
(Introduced by Hon. H. Hodgson MLC)
ACTS AMENDMENT (SEXUALITY
DISCRIMINATION) BILL 1997
A BILL FOR
AN ACT to amend the Equal Opportunity Act 1984, The
Criminal Code and Law Reform (Decriminalisation of
Sodomy) Act 1989 and for related purposes.
The Parliament of Western Australia enacts as follows:
PART 1 -- PRELIMINARY
Short Title
1. This Act may be cited as the Acts Amendment (Sexuality
5 Discrimination) Act 1997.
Commencement
2. This Act comes into operation on the day on which it
receives the Royal Assent.
No. 75 -- 1
Acts Amendment (Sexuality Discrimination)
cl. 3 Bill 1997
PART 2 -- EQUAL OPPORTUNITY ACT 1984 AMENDED
Principal Act
3. In this Part, the Equal Opportunity Act 1984* is referred to
as the principal Act.
5 [* Reprinted as at 16 April 1996]. For subsequent
amendments, see 1996 Index to Legislation of Western
Australia, p.75.
Long title amended
4. The long title to the principal Act is amended --
10 (a) by inserting after ``grounds of'' the following --
`` transgender, ''; and
(b) by inserting after ``family responsibility or family
status,'' the following --
`` sexuality, ''.
15 Section 3 amended
5. Section 3 of the principal Act is amended --
(a) in paragraph (a) --
(i) by inserting after ``ground of'' the following --
`` transgender, ''; and
20 (ii) by inserting after ``family responsibility or family
status'', the following --
`` sexuality ''; and
2
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 6
(b) in paragraph (d) by inserting after ``ages'' the
following --
`` or transgender identity or different sexualities ''.
Section 4 amended
5 6. Section 4 of the principal Act is amended in subsection
(1) --
(a) by inserting, in the appropriate alphabetical position,
the following definitions --
``
10 ``opposite sex'' means a sex of which the person
was not a member at birth;
``sexuality'' means the quality of being self-
identified as bisexual, heterosexual,
homosexual or lesbian;
15 ``transgender'' means a person of one sex
who --
(a) assumes any of the characteristics of
the opposite sex, whether by medical
intervention (including a
20 reassignment procedure) or otherwise;
(b) identifies himself or herself as a
member of the opposite sex;
(c) lives or seeks to live as a member of
the opposite sex; or
25 (d) attempts to be, or identifies himself or
herself as, a transsexual;
''; and
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Acts Amendment (Sexuality Discrimination)
cl. 7 Bill 1997
(b) by deleting the definition of ``de facto spouse'' and
substituting the following --
``
``de facto spouse'' in relation to a person,
5 means --
(a) a person of the opposite sex to the
first-mentioned person, who lives with
the first-mentioned person as a
husband or wife of that person on a
10 bona fide domestic basis, although not
legally married to that person; or
(b) a person of the same sex to the first-
mentioned person, who lives with the
first-mentioned person on a bona fide
15 domestic basis;
''
Section 5 amended
7. Section 5 of the principal Act is amended by inserting after
``Part IIA'', the following --
20 `` IIB, ''
4
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 8
Part IIB inserted
8. After Part IIA of the principal Act the following Part is
inserted --
``
5 PART IIB -- DISCRIMINATION ON THE GROUND
OF SEXUALITY OR TRANSGENDER IDENTITY
Division 1 -- General
Discrimination on the ground of sexuality
35O. (1) For the purposes of this Act, a person (in this
10 subsection referred to as the ``discriminator'') discriminates
against another person (in this subsection referred to as the
``aggrieved person'') on the ground of sexuality if, on the
ground of --
(a) the sexuality or presumed sexuality of the
15 aggrieved person;
(b) a characteristic that appertains generally to
persons of that sexuality; or
(c) a characteristic that is generally imputed to
persons of that sexuality,
20 the discriminator treats the aggrieved person less
favourably than in the same circumstances, or in
circumstances that are not materially different, the
discriminator treats or would treat a person who is not of
that sexuality.
25 (2) For the purposes of this Act, a person (in this
subsection referred to as the ``discriminator'') discriminates
against another person (in this subsection referred to as the
``aggrieved person'') on the ground of sexuality if the
5
Acts Amendment (Sexuality Discrimination)
cl. 8 Bill 1997
discriminator requires the aggrieved person to comply with
a requirement or condition --
(a) with which a substantially higher proportion of
persons who are not of the sexuality or the
5 presumed sexuality of the aggrieved person
comply or are able to comply;
(b) which is not reasonable having regard to the
circumstances of the case; and
(c) with which the aggrieved person does not or is
10 not able to comply.
(3) For the purposes of this Act, a person (in this
subsection referred to as the ``discriminator'') discriminates
against another person (in this subsection referred to as the
``aggrieved person'') on the ground of sexuality if, on the
15 ground of --
(a) the sexuality or presumed sexuality of;
(b) a characteristic that appertains generally to
persons of the same sexuality or presumed
sexuality as; or
20 (c) a characteristic that is generally imputed to
persons of the same sexuality or presumed
sexuality as,
any relative or associate of the aggrieved person, the
discriminator treats the aggrieved person less favourably
25 than in the same circumstances, or in circumstances that
are not materially different, the discriminator treats or
would treat a person who is not of that sexuality.
6
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 8
Discrimination on the ground of transgender
35P. (1) For the purposes of this Act, a person (in this
subsection referred to as the ``discriminator'') discriminates
against another person (in this subsection referred to as the
5 ``aggrieved person'') on the ground of transgender identity if,
on the ground of --
(a) the transgender or presumed transgender of the
aggrieved person;
(b) a characteristic that appertains generally to
10 persons who are transgender; or
(c) a characteristic that is generally imputed to
persons who are transgender,
the discriminator treats the aggrieved person less
favourably than in the same circumstances, or in
15 circumstances that are not materially different, the
discriminator treats or would treat a person who is not a
transgender.
(2) For the purposes of this Act, a person (in this
subsection referred to as the ``discriminator'') discriminates
20 against another person (in this subsection referred to as the
``aggrieved person'') on the ground of transgender identity if
the discriminator requires the aggrieved person to comply
with a requirement or condition --
(a) with which a substantially higher proportion of
25 persons who are not transgender comply or are
able to comply;
(b) which is not reasonable having regard to the
circumstances of the case; and
(c) with which the aggrieved person does not or is
30 not able to comply.
7
Acts Amendment (Sexuality Discrimination)
cl. 8 Bill 1997
(3) For the purposes of this Act, a person (in this
subsection referred to as the ``discriminator'') discriminates
against another person (in this subsection referred to as the
``aggrieved person'') on the ground of transgender identity if,
5 on the ground of the transgender or presumed transgender
of any relative or associate of the aggrieved person, the
discriminator treats the aggrieved person less favourably
than in the same circumstances, or in circumstances that
are not materially different, the discriminator treats or
10 would treat a person who is not a transgender or who had a
relative or associate who is not a transgender.
Division 2 -- Discrimination in work
Discrimination against applicants and employees
35Q. (1) It is unlawful for an employer to discriminate
15 against a person on the ground of the person's sexuality or
transgender identity --
(a) in the arrangements made for the purpose of
determining who should be offered employment;
(b) in determining who should be offered
20 employment;
(c) in the terms or conditions on which employment
is offered.
(2) It is unlawful for an employer to discriminate
against an employee on the ground of the employee's
25 sexuality or transgender identity --
(a) in the terms or conditions of employment that
the employer affords the employee;
8
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 8
(b) by denying the employee access, or limiting the
employee's access, to opportunities for promotion,
transfer or training, or to any other benefits
associated with employment.
5 (c) by dismissing the employee; or
(d) by subjecting the employee to any other
detriment.
(3) Nothing in subsection (1) renders it unlawful for a
person to discriminate against another person, on the
10 ground of the other person's sexuality, in connection with
employment to perform domestic duties at the premises in
which the first-mentioned person resides.
Discrimination against commission agents
35R. (1) It is unlawful for a principal to discriminate
15 against a person on the ground of the person's sexuality or
transgender identity --
(a) in the arrangements the principal makes for the
purpose of determining who should be engaged
as a commission agent;
20 (b) in determining who should be engaged as a
commission agent;
(c) in the terms or conditions on which the person is
engaged as a commission agent.
(2) It is unlawful for a principal to discriminate against
25 a commission agent on the ground of the commission
agent's sexuality or transgender identity --
(a) in the terms or conditions that the principal
affords the commission agent as a commission
agent;
9
Acts Amendment (Sexuality Discrimination)
cl. 8 Bill 1997
(b) by denying the commission agent access, or
limiting the commission agent's access, to
opportunities for promotion, transfer or training,
or to any other benefits associated with the
5 position as a commission agent;
(c) by terminating the engagement; or
(d) by subjecting the commission agent to any other
detriment.
Discrimination against contract workers
10 35S. (1) It is unlawful for a principal to discriminate
against a contract worker on the ground of the contract
worker's sexuality or transgender identity --
(a) in the terms or conditions on which the principal
allows the contract worker to work;
15 (b) by not allowing the contract worker to work or
continue work;
(c) by denying the contract worker access, or
limiting the contract worker's access, to any
benefit associated with the work in respect of
20 which the contract with the employer is made; or
(d) by subjecting the contract worker to any other
detriment.
(2) Nothing in subsection (1) renders it unlawful for a
person to discriminate against another person, on the
25 ground of the other person's sexuality, in connection with
work to perform domestic duties at the premises in which
the first-mentioned person resides.
10
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 8
Partnerships
35T. (1) It is unlawful for 6 or more persons being
persons who are proposing to form themselves into a
partnership to discriminate against a person on the ground
5 of the person's sexuality or transgender identity --
(a) in determining who should be invited to become
a partner in the partnership; or
(b) in the terms or conditions on which the person is
invited to become a partner in the partnership.
10 (2) It is unlawful for any one or more partners in a
partnership consisting of 6 or more partners to discriminate
against a person on the ground of the person's sexuality or
transgender identity --
(a) in determining who should be invited to become
15 a partner in the partnership; or
(b) in the terms or conditions on which the person is
invited to become a partner in the partnership.
(3) It is unlawful for any one or more of the partners in
a partnership consisting of 6 or more partners to
20 discriminate against a partner in the partnership on the
ground of the partner's sexuality or transgender identity --
(a) by denying the partner access, or limiting the
partner's access, to any benefit arising from
being a partner in the partnership;
25 (b) by expelling the partner from the partnership; or
(c) by subjecting the partner to any other detriment.
11
Acts Amendment (Sexuality Discrimination)
cl. 8 Bill 1997
Professional or trade organizations, etc.
35U. (1) This section applies to an organization of
employees and to an organization of employers.
(2) It is unlawful for an organization to which this
5 section applies or for the committee of management of such
an organization or for a member of such a committee of
management to discriminate against a person who is not a
member of the organization on the ground of the person's
sexuality or transgender identity --
10 (a) by refusing or failing to accept the person's
application for membership; or
(b) in the terms or conditions on which the
organization is prepared to admit the person to
membership.
15 (3) It is unlawful for an organization to which this
section applies or for the committee of management of such
an organization or for a member of such a committee of
management to discriminate against a person who is a
member of the organization on the ground of the person's
20 sexuality or transgender identity --
(a) by denying the person access, or limiting the
person's access, to any benefit provided by the
organization;
(b) by depriving the person of membership or
25 varying the terms of the person's membership;
(c) by subjecting the person to any other detriment.
Qualifying bodies
35V. It is unlawful for an authority or body that is
empowered to confer, renew, extend, revoke or withdraw an
12
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 8
authorization or qualification that is needed for or
facilitates the practice of a profession, the carrying on of a
trade or business or the engaging in of an occupation to
discriminate against a person on the ground of the person's
5 sexuality or transgender identity --
(a) by refusing or failing to confer, renew or extend
the authorization or qualification;
(b) in the terms or conditions on which it is
prepared to confer the authorization or
10 qualification or to renew or extend the
authorization or qualification; or
(c) by revoking or withdrawing the authorization or
qualification or varying the terms or conditions
upon which it is held.
15 Employment agencies
35W. (1) It is unlawful for an employment agency to
discriminate against a person on the ground of the person's
sexuality or transgender identity --
(a) by refusing to provide the person with any of its
20 services;
(b) in the terms or conditions on which it offers to
provide the person with any of its services; or
(c) in the manner in which it provides the person
with any of its services.
13
Acts Amendment (Sexuality Discrimination)
cl. 8 Bill 1997
Division 3 -- Discrimination in other areas
Education
35X. (1) It is unlawful for an educational authority to
discriminate against a person on the ground of the person's
5 sexuality or transgender identity --
(a) by refusing or failing to accept the person's
application for admission as a student; or
(b) in the terms or conditions on which it is
prepared to admit the person as a student.
10 (2) It is unlawful for an educational authority to
discriminate against a student on the ground of the
student's sexuality or transgender identity --
(a) by denying the student access, or limiting the
student's access, to any benefit provided by the
15 educational authority;
(b) by expelling the student; or
(c) by subjecting the student to any other detriment.
Access to places and vehicles
35Y. It is unlawful for a person (in this section referred to
20 as the ``discriminator'') to discriminate against another
person (in this section referred to as the ``aggrieved person'')
on the ground of the aggrieved person's sexuality or
transgender identity --
(a) by refusing to allow the aggrieved person access
25 to or the use of any place or vehicle that the
public or a section of the public is entitled or
allowed to enter or use, for payment or not;
14
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 8
(b) in the terms on which the discriminator is
prepared to allow the aggrieved person access to
or use of any such place or vehicle;
(c) by refusing to allow the aggrieved person the use
5 of any facilities in any such place or vehicle that
the public or a section of the public is entitled or
allowed to use, for payment or not;
(d) in the terms on which the discriminator is
prepared to allow the aggrieved person the use of
10 any such facilities; or
(e) by requiring the aggrieved person to leave or
cease to use any such place or vehicle or any
such facilities.
Goods, services and facilities
15 35Z. It is unlawful for a person who, whether for payment
or not, provides goods or services, or makes facilities
available, to discriminate against another person on the
ground of the other person's sexuality or transgender
identity --
20 (a) by refusing to provide the other person with
those goods or services or to make those facilities
available to the other person;
(b) in the terms or conditions on which the first-
mentioned person provides the other person with
25 those goods or services or makes those facilities
available to the other person; or
(c) in the manner in which the first-mentioned
person provides the other person with those
goods or services or makes those facilities
30 available to the other person.
15
Acts Amendment (Sexuality Discrimination)
cl. 8 Bill 1997
Accommodation
35ZA. (1) It is unlawful for a person, whether as
principal or agent, to discriminate against another person
on the ground of the other person's sexuality or
5 transgender identity --
(a) by refusing the other person's application for
accommodation;
(b) in the terms or conditions on which
accommodation is offered to the other person; or
10 (c) by deferring the other person's application for
accommodation or according to the other person
a lower order of precedence than would
otherwise be the case in any list of applicants for
that accommodation.
15 (2) It is unlawful for a person, whether as principal or
agent, to discriminate against another person on the ground
of the other person's sexuality or transgender identity --
(a) by denying the other person access, or limiting
the other person's access, to any benefit
20 associated with accommodation occupied by the
other person;
(b) by evicting the other person from accommodation
occupied by the other person; or
(c) by subjecting the other person to any other
25 detriment in relation to accommodation occupied
by the other person.
16
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 8
(3) Nothing in this section applies to or in respect
of --
(a) the provision of accommodation in premises if --
(I) the person who provides or proposes to
5 provide the accommodation or a near
relative of that person resides, and intends
to continue to reside, on those premises;
and
(II) the accommodation provided in those
10 premises is for no more than 3 persons
other than a person referred to in
subparagraph (I) or near relatives of such
person;
(b) accommodation provided by a religious body; or
15 (c) accommodation provided by a charitable or other
voluntary body solely for persons of a particular
sexuality or transgender identity.
Clubs and incorporated associations
35ZB. (1) It is unlawful for an association, incorporated
20 or not, its committee of management or a member of the
committee of management to discriminate against a person
who is not a member of the association on the ground of
the person's sexuality or transgender identity --
(a) by refusing or failing to accept the person's
25 application for membership; or
(b) in the terms or conditions on which the
association is prepared to admit the person to
membership.
17
Acts Amendment (Sexuality Discrimination)
cl. 8 Bill 1997
(2) It is unlawful for an association, incorporated or
not, its committee of management or a member of the
committee of management to discriminate against a person
who is a member of the association on the ground of the
5 member's sexuality or transgender identity --
(a) in the terms or conditions of membership that
are afforded to the member;
(b) by refusing or failing to accept the member's
application for a particular class or type of
10 membership;
(c) by denying the member access, or limiting the
member's access, to any benefit provided by the
association;
(d) by depriving the member of membership or
15 varying the terms of membership;
(e) by subjecting the member to any other
detriment.
(3) Nothing in subsection (1) or (2) applies to or in
respect of anassociation, incorporated or not, that has as its
20 sole or principal object the provision of benefits for persons
of a particular sexuality or transgender identity.
(4) In determining whether the sole or principal object
of an association, incorporated or not, is subject to
subsection (3), regard shall be had to --
25 (a) the essential character of the association;
(b) the extent to which the affairs of the association
are so conducted that the persons solely or
primarily enjoying the benefits of membership
are of a particular sexuality or transgender
30 identity, and
18
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 8
(c) any other relevant circumstance.
Discrimination in sport on ground of sexuality
35ZC. (1) It is unlawful for a person to discriminate
against another person on the ground of the other person's
5 sexuality or transgender identity by excluding that person
from a sporting activity, or in the selection for or the level
or nature of participation in, any sporting activity.
(2) In subsection (1) ``sporting activity'' includes a
reference to an administrative or coaching activity in
10 relation to any sport.
(3) Subsection (1) does not apply where a sporting
activity is conducted only for persons of a particular
sexuality or transgender identity and the first-mentioned
person is not of that sexuality or transgender identity.
15 Land
35ZD. (1) It is unlawful for a person, whether as
principal or agent, to discriminate against another person
on the ground of the other person's sexuality or
transgender identity --
20 (a) by refusing or failing to dispose of an estate or
interest in land to the other person; or
(b) in the terms or conditions on which an estate or
interest in land is offered to the other person.
(2) Without limiting the generality of section 70 (1),
25 this section does not apply in relation to a disposal of an
estate or interest in land --
(a) by will or by way of gift; or
19
Acts Amendment (Sexuality Discrimination)
cl. 8 Bill 1997
(b) within a complex of residential premises
(whether or not including hostel units) and
appurtenant land, having as its principal object
the occupation or intended occupation by persons
5 of a particular sexuality or transgender identity .
(3) In determining whether the principal object of a
complex of residential premises is as referred to in
subsection (2), regard shall be had to --
(a) the essential character of the complex of
10 residential premises;
(b) the extent to which the affairs of the complex of
residential premises are so conducted that the
persons primarily enjoying the benefits of
membership are of a particular sexuality or
15 transgender identity; and
(c) any other relevant circumstance.
Application forms, etc.
35ZE. Where, by virtue of a provision of Division 2 or this
Division, it would be unlawful, in particular circumstances,
20 for a person to discriminate against another person, on the
ground of the other person's sexuality or transgender
identity, in doing a particular act, it is unlawful for the
first-mentioned person to request or require the other
person to provide, in connection with or for the purposes of
25 the doing of the act, information (whether by way of
completing a form or otherwise) that persons who are not of
the sexuality or transgender identity of that other person
would not, in circumstances that are the same or not
materially different, be requested or required to provide.
20
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 9
Superannuation schemes and provident funds
35ZF. It is unlawful for a person who provides a
superannuation scheme or provident fund to discriminate
against a person on the ground of the person's sexuality or
5 transgender identity --
(a) by providing a scheme or fund that
discriminates, or requires or authorizes
discrimination, against that other person or that
would, if the person were to become a member of
10 the scheme or fund, discriminate or require or
authorize discrimination, against that person; or
(b) in the manner in which the first-mentioned
person administers the scheme or fund.
''
15 Section 74 amended
9. Section 74 of the principal Act is amended in subsection (2)
paragraph (a) by inserting after ``sex'' the following --
`` sexuality, transgender identity, ''.
Section 80 amended
20 10. Section 80 of the principal Act is amended --
(a) by inserting after ``family responsibility or family
status'' wherever it occurs the following --
`` , sexuality, transgender identity, '';
(b) in paragraph (f), by inserting after ``age'' the
25 following --
`` , transgender identity or sexuality ''.
21
Acts Amendment (Sexuality Discrimination)
cl. 11 Bill 1997
Section 140 amended
11. Section 140 of the principal Act is amended in paragraph
(a) by inserting after ``family responsibility or family status'' the
following --
5 `` , sexuality, transgender identity, ''.
Section 146 amended
12. Section 146 of the principal Act is amended in subsection
(2) paragraph (a) subparagraph (i) by inserting after ``family
responsibility or family status'' the following --
10 `` , sexuality, transgender identity, ''.
22
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 13
PART 3 -- THE CRIMINAL CODE AMENDED
Interpretation
13. In this part The Criminal Code is referred to as the
principal Act.
5 Section 184 amended
14. Section 184 of the principal Act is amended --
(a) by deleting the words ``between males'' wherever they
occur;
(b) by deleting the word ``male'' wherever it appears
10 before the word ``person'';
(c) by inserting the words ``or her'' after the word ``her''
wherever it appears; and
(d) by inserting the words ``or herself'' after the word
``himself'' wherever it appears.
15 Section 186 amended
15. (1) Section 186(1) of the principal Act is amended --
(a) by deleting the word ``man'' wherever it appears and
substituting ``person''; and
(b) by repealing section 186(1)(a) and substituting the
20 following --
``
(a) if the person is under the age of 16 years,
is liable to imprisonment for two years; and
''
23
Acts Amendment (Sexuality Discrimination)
cl. 16 Bill 1997
(2) Section 186(2) of the principal Act is amended --
(a) by repealing section 186(2) and substituting the
following --
``
5 (2) It is a defence to a charge to any of
offences defined in this section prove that the
accused person believed, on reasonable grounds,
that the person was above the age of 16 years.
''
10 Section 192 amended
16. (1) Section 192(1) of the principal Act is amended --
(a) by deleting the words ``woman or girl'' and ``man'' and
substituting ``person''; and
(b) by deleting ``connection'' and substituting ``knowledge''.
15 (2) Section 192 (2) of the principal Act is repealed and the
following subsection is substituted --
``
(2) By any false pretence procures a person to have
unlawful carnal knowledge with a person, either in Western
20 Australia or elsewhere; or
''
(3) Section 192 (3) of the principal Act is amended --
(a) by deleting the words ``woman or girl'' and ``man''
wherever it appears and substituting ``person'', and
25 (b) by inserting the words ``him or'' before ``her'' wherever
it appears; and
(c) by deleting ``or'' after ``her;''.
(4) Section 192 (4) is repealed.
24
Acts Amendment (Sexuality Discrimination)
Bill 1997 cl. 17
Section 195 amended
17. (1) Section 195 of the principal Act is amended --
(a) by deleting ``boy under the age of 18 years'' and
substituting ``child''; and
5 (b) by deleting the words ``girl or woman'' wherever it
appears and substituting ``person''.
Section 322A repealed
18. Section 322A of the principal Act is repealed.
25
Acts Amendment (Sexuality Discrimination)
cl. 19 Bill 1997
PART 4 -- LAW REFORM (DECRIMINALISATION OF
SODOMY) ACT 1989 REPEALED
19. The Law Reform (Decriminalisation of Sodomy) Act 1989 is
repealed.
26
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