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ACTS AMENDMENT (LESBIAN AND GAY LAW REFORM) ACT 2002 (NO. 3 OF 2002) - SECT 52

ACTS AMENDMENT (LESBIAN AND GAY LAW REFORM) ACT 2002 (NO. 3 OF 2002) - SECT 52

52 .         Part IIB inserted

                After Part IIA the following Part is inserted —



Part IIB — Discrimination on ground of sexual orientation

Division 1 — General

35O.         Discrimination on the ground of sexual orientation

        (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 "aggrieved person") on the ground of the sexual orientation of the aggrieved person if, on the ground of —

            (a)         the sexual orientation of the aggrieved person;

            (b)         a characteristic that appertains generally to persons of the sexual orientation of the aggrieved person; or

            (c)         a characteristic that is generally imputed to persons of the sexual orientation of the aggrieved person,

                the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who is not of that sexual orientation.

        (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 sexual orientation if, on the ground of —

            (a)         the sexual orientation of;

            (b)         a characteristic that appertains generally to persons of the same sexual orientation as; or

            (c)         a characteristic that is generally imputed to persons of the same sexual orientation as,

                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 would treat a person who is not of that sexual orientation.

        (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 the sexual orientation of the aggrieved person if the 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 sexual orientation 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 not able to comply.

Division 2 — Discrimination in work

35P.         Discrimination against applicants and employees

        (1)         It is unlawful for an employer to discriminate against a person on the ground of the person’s sexual orientation —

            (a)         in the arrangements made for the purpose of determining who should be offered employment;

            (b)         in determining who should be offered employment; or

            (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 sexual orientation —

            (a)         in the terms or conditions of employment that the employer affords the employee;

            (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;

            (c)         by dismissing the employee; or

            (d)         by subjecting the employee to any other detriment.

        (3)         Nothing in subsection (1)(a) and (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sexual orientation, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.

35Q.         Discrimination against commission agents

        (1)         It is unlawful for a principal to discriminate against a person on the ground of the person’s sexual orientation —

            (a)         in the arrangements the principal makes for the purpose of determining who should be engaged as a commission agent;

            (b)         in determining who should be engaged as a commission agent; or

            (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 a commission agent on the ground of the commission agent’s sexual orientation —

            (a)         in the terms or conditions that the principal affords the commission agent as a commission agent;

            (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 position as a commission agent;

            (c)         by terminating the engagement; or

            (d)         by subjecting the commission agent to any other detriment.

35R.         Discrimination against contract workers

        (1)         It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker’s sexual orientation —

            (a)         in the terms or conditions on which the principal allows the contract worker to work;

            (b)         by not allowing the contract worker to work or continue to 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 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 ground of the other person’s sexual orientation, in connection with work to perform domestic duties on the premises on which the first-mentioned person resides.

35S.         Partnerships

        (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 of the person’s sexual orientation —

            (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.

        (2)         It is unlawful for any one or more of the partners in a partnership consisting of 6 or more partners to discriminate against a person on the ground of the person’s sexual orientation —

            (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.

        (3)         It is unlawful for any one or more of the partners in a partnership consisting of 6 or more partners to discriminate against a partner in the partnership on the ground of the partner’s sexual orientation —

            (a)         by denying the partner access, or limiting the partner’s access, to any benefit arising from being a partner in the partnership;

            (b)         by expelling the partner from the partnership; or

            (c)         by subjecting the partner to any other detriment.

35T.         Professional or trade organisations, etc.

        (1)         This section applies to an organisation of employees and to an organisation of employers.

        (2)         It is unlawful for an organisation to which this section applies or for the committee of management of such an organisation or for a member of such a committee of management to discriminate against a person who is not a member of the organisation on the ground of the person’s sexual orientation —

            (a)         by refusing or failing to accept the person’s application for membership; or

            (b)         in the terms or conditions on which the organisation is prepared to admit the person to membership.

        (3)         It is unlawful for an organisation to which this section applies or for the committee of management of such an organisation or for a member of such a committee of management to discriminate against a person who is a member of the organisation on the ground of the person’s sexual orientation —

            (a)         by denying the person access, or limiting the person’s access, to any benefit provided by the organisation;

            (b)         by depriving the person of membership or varying the terms of the person’s membership; or

            (c)         by subjecting the person to any other detriment.

35U.         Qualifying bodies

                It is unlawful for an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation 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 sexual orientation —

            (a)         by refusing or failing to confer, renew or extend the authorisation or qualification;

            (b)         in the terms or conditions on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification; or

            (c)         by revoking or withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.

35V.         Employment agencies

                It is unlawful for an employment agency to discriminate against a person on the ground of the person’s sexual orientation —

            (a)         by refusing to provide the person with any of its 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.

Division 3 — Discrimination in other areas

35W.         Education

        (1)         It is unlawful for an educational authority to discriminate against a person on the ground of the person’s sexual orientation —

            (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.

        (2)         It is unlawful for an educational authority to discriminate against a student on the ground of the student’s sexual orientation —

            (a)         by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority;

            (b)         by expelling the student; or

            (c)         by subjecting the student to any other detriment.

35X.         Access to places and vehicles

                It is unlawful for a person (in this section referred to 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 sexual orientation —

            (a)         by refusing to allow the aggrieved person access 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;

            (b)         in the terms on which the discriminator is prepared to allow the aggrieved person access to or the use of any such place or vehicle;

            (c)         by refusing to allow the aggrieved person the use 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 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.

35Y.         Goods, services and facilities

                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 sexual orientation —

            (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 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 available to the other person.

35Z.         Accommodation

        (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 sexual orientation —

            (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

            (c)         by deferring the other person’s application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.

        (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 sexual orientation —

            (a)         by denying the other person access, or limiting the other person’s access, to any benefit 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 detriment in relation to accommodation occupied by the other person.

        (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 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 premises is for no more than 3 persons other than a person referred to in subparagraph (i) or near relatives of such a person; or

            (b)         accommodation provided by a religious body.

35ZA.         Land

        (1)         It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the sexual orientation of the other person —

            (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), this section does not apply in relation to a disposal of an estate or interest in land by will or by way of gift.

35ZB.         Clubs

        (1)         It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a person who is not a member of the club on the ground of the person’s sexual orientation —

            (a)         by refusing or failing to accept the person’s application for membership; or

            (b)         in the terms or conditions on which the club is prepared to admit the person to membership.

        (2)         It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a person who is a member of the club on the ground of the member’s sexual orientation —

            (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 membership;

            (c)         by denying the member access, or limiting the member’s access, to any benefit provided by the club;

            (d)         by depriving the member of membership or varying the terms of membership; or

            (e)         by subjecting the member to any other detriment.

35ZC.         Application forms, etc.

                Where, by virtue of a provision of Division 2 or this Division, it would be unlawful, in particular circumstances, for a person to discriminate against another person, on the ground of the other person’s sexual orientation, 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 the doing of the act, information (whether by way of completing a form or otherwise) that persons who are not of the other person’s sexual orientation would not, in circumstances that are the same or not materially different, be requested or required to provide.

Division 4 — Exceptions to Part IIB

35ZD.         Measures intended to achieve equality

                Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is —

            (a)         to ensure that persons of a particular sexual orientation have equal opportunities with other persons in circumstances in relation to which provision is made by this Act; or

            (b)         to afford persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare.

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