Equal Opportunity Act 1984

 

Equal Opportunity Act 1984

CONTENTS

Part I — Preliminary

1.           Short title                                                                              2

2.           Commencement                                                                    2

3.           Objects                                                                                 2

4.           Interpretation                                                                        3

5.           Act done for 2 or more reasons                                              9

6.           Act binds Crown                                                                   9

7.           Inter‑governmental arrangements                                           9

Part II — Discrimination on ground of sex, marital status or pregnancy

Division 1 — General

8.           Sex discrimination                                                                11

9.           Discrimination on the ground of marital status                        12

10.         Discrimination on the ground of pregnancy                            13

Division 2 — Discrimination in work

11.         Discrimination against applicants and employees                    14

12.         Discrimination against commission agents                             14

13.         Discrimination against contract workers                                15

14.         Partnerships                                                                        16

15.         Professional or trade organisations, etc.                                16

16.         Qualifying bodies                                                                 17

17.         Employment agencies                                                          18

Division 3 — Discrimination in other areas

18.         Education                                                                            18

19.         Access to places and vehicles                                              19

20.         Goods, services and facilities                                                19

21.         Accommodation                                                                  20

21A.      Land 21

22.         Clubs 21

23.         Application forms, etc.                                                         23

Division 4 — Discrimination involving sexual harassment

24.         Sexual harassment in employment                                        24

25.         Sexual harassment in education                                            25

26.         Sexual harassment related to accommodation                        26

Division 5 — Exceptions to Part II

27.         Exception — genuine occupational qualification                     27

28.         Pregnancy or childbirth                                                        29

29.         Employment of married couple or partners in a de facto relationship 29

30.         Services for members of one sex                                          29

31.         Measures intended to achieve equality                                  29

32.         Accommodation provided for employees or students              30

33.         Residential care of children                                                  30

34.         Superannuation and insurance                                              31

35.         Sport 31

Part IIAA — Discrimination on gender history grounds in certain cases

Division 1 — General

35AA.   Interpretation                                                                      32

35AB.    Discrimination on gender history grounds                              32

Division 2 — Discrimination in work

35AC.    Discrimination against applicants and employees                    33

35AD.   Discrimination against commission agents                             34

35AE.    Discrimination against contract workers                                35

35AF.    Partnerships                                                                        35

35AG.    Professional or trade organisations etc.                                 36

35AH.   Qualifying bodies                                                                 37

35AI.     Employment agencies                                                          37

Division 3 — Discrimination in other areas

35AJ.     Education                                                                            38

35AK.   Access to places and vehicles                                              38

35AL.    Goods, services and facilities                                                39

35AM.   Accommodation                                                                  40

35AN.   Land 41

35AO.   Clubs 41

35AP.    Discrimination in sport on gender history grounds                   42

35AQ.   Application forms etc.                                                          42

35AR.    Superannuation schemes and provident funds                        43

Part IIA — Discrimination on the ground of family responsibility or family status

Division 1 — General

35A.      Discrimination on the ground of family responsibility or family status 45

Division 2 — Discrimination in work

35B.      Discrimination against applicants and employees                    46

35C.      Discrimination against commission agents                             47

35D.      Discrimination against contract workers                                48

35E.       Partnerships                                                                        48

35F.       Professional or trade organisations, etc.                                49

35G.      Qualifying bodies                                                                 50

35H.      Employment agencies                                                          50

Division 3 — Discrimination in other areas

35I.        Education                                                                            51

35J.       Application forms, etc.                                                         52

Division 4 — Exceptions to Part IIA

35K.      Measures intended to meet special needs                              52

35L.       Accommodation provided for employees                               52

35M.      Identity of relative                                                               53

35N.      Acts done under statutory authority                                      53

Part IIB — Discrimination on ground of sexual orientation

Division 1 — General

35O.      Discrimination on the ground of sexual orientation                  55

Division 2 — Discrimination in work

35P.       Discrimination against applicants and employees                    56

35Q.      Discrimination against commission agents                             57

35R.      Discrimination against contract workers                                58

35S.       Partnerships                                                                        58

35T.       Professional or trade organisations, etc.                                59

35U.      Qualifying bodies                                                                 60

35V.      Employment agencies                                                          61

Division 3 — Discrimination in other areas

35W.     Education                                                                            61

35X.      Access to places and vehicles                                              62

35Y.      Goods, services and facilities                                                62

35Z.       Accommodation                                                                  63

35ZA.    Land 64

35ZB.    Clubs 64

35ZC.    Application forms, etc.                                                         65

Division 4 — Exceptions to Part IIB

35ZD.    Measures intended to achieve equality                                  65

Part III — Discrimination on the ground of race

Division 1 — General

36.         Racial discrimination                                                            67

Division 2 — Discrimination in work

37.         Discrimination against applicants and employees                    68

38.         Discrimination against commission agents                             69

39.         Discrimination against contract workers                                70

40.         Partnerships                                                                        70

41.         Professional or trade organisations, etc.                                71

42.         Qualifying bodies                                                                 72

43.         Employment agencies                                                          72

Division 3 — Discrimination in other areas

44.         Education                                                                            72

45.         Access to places and vehicles                                              73

46.         Goods, services and facilities                                                74

47.         Accommodation                                                                  74

47A.      Land 75

48.         Clubs 76

49.         Application forms, etc.                                                         77

Division 3A — Discrimination involving racial harassment

49A.      Racial harassment in employment                                         77

49B.      Racial harassment in education                                             78

49C.      Racial harassment related to accommodation                        79

49D.      Racial grounds                                                                    80

Division 4 — Exceptions to Part III

50.         Exception — genuine occupational qualification                     80

51.         Measures intended to achieve equality                                  81

52.         Exception — citizenship                                                       81

Part IV — Discrimination on the ground of religious or political conviction

Division 1 — General

53.         Discrimination on ground of religious or political conviction     82

Division 2 — Discrimination in work

54.         Discrimination against applicants and employees                    83

55.         Discrimination against commission agents                             84

56.         Discrimination against contract workers                                85

57.         Partnerships                                                                        85

58.         Professional or trade organisations, etc.                                86

59.         Qualifying bodies                                                                 87

60.         Employment agencies                                                          87

Division 3 — Discrimination in other areas

61.         Education                                                                            87

62.         Goods, services and facilities                                                88

63.         Accommodation                                                                  89

64.         Clubs 90

65.         Application forms, etc.                                                         90

Division 4 — Exceptions to Part IV

66.         Exceptions to sections 54 to 56                                             91

Part IVA — Discrimination on the ground of impairment

Division 1 — General

66A.      Discrimination on ground of impairment                                92

Division 2 — Discrimination in work

66B.      Discrimination against applicants and employees                    94

66C.      Discrimination against commission agents                             95

66D.      Discrimination against contract workers                                95

66E.       Partnerships                                                                        96

66F.       Professional or trade organisations, etc.                                97

66G.      Qualifying bodies                                                                 98

66H.      Employment agencies                                                          98

Division 3 — Discrimination in other areas

66I.        Education                                                                            99

66J.       Access to places and vehicles                                            100

66K.      Goods, services and facilities                                              101

66L.       Accommodation                                                                101

66M.      Clubs and incorporated associations                                    103

66N.      Discrimination in sport on ground of impairment                   105

66O.      Application forms, etc.                                                       105

66P.       Superannuation schemes and provident funds                      106

Division 4 — Exceptions to Part IVA

66Q.      Exceptions to certain work related provisions in Division 2    107

66R.      Measures intended to achieve equality                                108

66S.       Exception — genuine occupational qualification                   108

66T.       Insurance                                                                          109

66U.      Regulations                                                                       109

Part IVB — Discrimination on the ground of age

Division 1 — General

66V.      Discrimination on ground of age                                          111

Division 2 — Discrimination in work

66W.     Discrimination against applicants and employees                  112

66X.      Discrimination against commission agents                            113

66Y.      Discrimination against contract workers                              114

66Z.       Partnerships                                                                      114

66ZA.    Professional or trade organisations, etc.                               115

66ZB.    Qualifying bodies                                                               116

66ZC.    Employment agencies                                                        116

Division 3 — Discrimination in other areas

66ZD.    Education                                                                          117

66ZE.    Access to places and vehicles                                            118

66ZF.     Goods, services and facilities                                              119

66ZG.    Accommodation                                                                119

66ZH.    Land 121

66ZI.     Clubs and incorporated associations                                    121

66ZJ.     Discrimination in sport on ground of age                              123

66ZK.    Application forms, etc.                                                       123

66ZL.    Superannuation schemes and provident funds                      124

Division 4 — Exceptions to Part IVB

66ZM.   Exceptions to Division 2                                                     125

66ZN.    Retirement                                                                        126

66ZO.    Contracts with minors                                                        127

66ZP.    Measures intended to achieve equality                                127

66ZQ.    Exception — genuine occupational qualification                   127

66ZR.    Insurance                                                                          128

66ZS.     Acts done under statutory authority, etc.                             128

Part V — Other unlawful acts

67.         Victimisation                                                                     131

68.         Advertisements                                                                 132

Part VI — General exceptions to this Act

69.         Acts done under statutory authority, etc.                             133

70.         Charities                                                                           134

71.         Voluntary bodies                                                                134

72.         Religious bodies                                                                 135

73.         Educational institutions established for religious purposes      135

74.         Establishments providing housing accommodation, etc., for aged persons       136

Part VII — The Commissioner for Equal Opportunity

Division 1 — Office of Commissioner

75.         Commissioner for Equal Opportunity                                   138

76.         Vacation of office                                                              138

77.         Existing rights, etc.                                                             139

78.         Acting Commissioner                                                         139

79.         Staff 140

Division 2 — Functions of the Commissioner

80.         General functions of Commissioner                                     141

81.         Reference by the Minister to the Commissioner                   143

82.         Review of legislation, etc.                                                   143

83.         Making of complaints to Commissioner                               144

83A.      Withdrawal and lapse of complaints                                    145

84.         Investigation of complaints by Commissioner                       146

85.         Application for interim order                                               146

86.         Power to obtain information and documents                         146

87.         Directions to attend compulsory conference                        147

88.         Compulsory conference                                                     148

89.         Commissioner may dismiss certain complaints                     149

90.         Reference of complaint to Tribunal at requirement of complainant    149

91.         Resolution of complaint by conciliation                                150

92.         Representation in conciliation proceedings                           150

93.         Reference of complaints to the Tribunal                              150

93A.      Commissioner may assist complainants on appeal to Supreme Court 152

94.         Delegation by Commissioner                                              152

95.         Annual report                                                                    153

Part VIII — The Role of the State Administrative Tribunal

Division 1 — Constituting the Tribunal

96.         Presiding member                                                              154

Division 2 — Functions

107.       Jurisdiction of Tribunal                                                       154

108.       Commissioner’s reference under section 93(1)                    155

113.       Officer assisting the Tribunal                                              155

114.       Determination of representative complaints                         156

115.       Matter to be considered in determination of representative complaints           156

116.       Amendment of complaint by Tribunal                                  157

117.       Ordinary complaint not precluded by representative complaint157

122.       Tribunal may prohibit publication of evidence                       158

123.       Proof of exceptions                                                            158

126.       Interim orders                                                                    158

127.       Decisions of Tribunal                                                         159

134.       Appeals                                                                            160

Division 3 — Power of Tribunal to grant exemptions

135.       Tribunal may grant exemptions                                           160

136.       Notice of decisions to be published                                      161

137.       Effect of exemption orders                                                 162

Part IX — Equal opportunity in public employment

Division 1 — General

138.       Interpretation                                                                     163

139.       Application of Part IX                                                        163

140.       Objects of Part IX                                                             164

141.       Exercise of functions of authorities                                     164

Division 2 — The Director of Equal Opportunity in Public Employment

142.       The Director                                                                     165

143.       Functions of Director                                                         165

144.       Annual report of Director                                                   166

Division 3 — Equal employment opportunity management plans

145.       Preparation and implementation of management plans          166

146.       Annual report to Director                                                   168

147.       Investigation by Director                                                    169

149.       Representation in investigation proceedings                         169

150.       Powers of Director on an investigation                                169

151.       Incriminatory statements                                                    170

152.       Conclusion of investigation                                                 171

153.       Direction to amend management plan                                  171

Part X — Miscellaneous

154.       Effect of contravention of Act                                            172

155.       Obstruction                                                                       172

156.       Failure to provide actuarial or statistical data                        172

157.       Failure to attend conciliation proceedings or conference       173

158.       Failure to furnish information, etc.                                       173

159.       False or misleading information                                           174

160.       Liability of persons involved in unlawful acts                        174

161.       Vicarious liability                                                               174

162.       Acts done on behalf of bodies                                             175

163.       References to employer                                                     175

164.       Self‑incrimination                                                               177

165.       Particulars of certain complaints not to be communicated     177

166.       Protection from civil actions                                               179

167.       Non‑disclosure of private information                                  180

168.       Information stored otherwise than in written form                181

169.       Regulations                                                                       182

Notes

Compilation table                                                                             183

Provisions that have not come into operation                                      185

 

Equal Opportunity Act 1984

An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, or age, or involving sexual or racial harassment or, in certain cases, on gender history grounds.

              [Long title amended by No. 40 of 1988 s. 4; No. 74 of 1992 s. 4; No. 2 of 2000 s. 28; No. 3 of 2002 s. 46.]

Part I — Preliminary

1.           Short title

             This Act may be cited as the Equal Opportunity Act 1984 1.

2.           Commencement

             The provisions of this Act shall come into operation on such day or days as is or are respectively fixed by proclamation 1.

3.           Objects

             The objects of this Act are — 

                 (a)    to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs;

                 (b)    to eliminate, so far as is possible, sexual harassment and racial harassment in the workplace and in educational institutions and sexual harassment and racial harassment related to accommodation;

                 (c)    to promote recognition and acceptance within the community of the equality of men and women; and

                 (d)    to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.

              [Section 3 amended by No. 40 of 1988 s. 5; No. 74 of 1992 s. 5; No. 2 of 2000 s. 28; No. 3 of 2002 s. 47.]

4.           Interpretation

     (1)    In this Act, unless the contrary intention appears — 

              “accommodation” includes residential and business accommodation;

              “age”, in relation to a person, means chronological age of the person;

              “charitable benefits” means benefits for purposes that are exclusively charitable according to the law in force in Western Australia;

              “club” means an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that — 

                      (a)    provides and maintains its facilities, in whole or in part, from the funds of the association; and

                      (b)    sells or supplies liquor for consumption on its premises;

              “commission agent” means a person who does work for another person as the agent of that person and who is remunerated, whether in whole or in part, by commission;

              “Commissioner” means the Commissioner for Equal Opportunity appointed under section 75;

              “committee of management” in relation to a club, organisation or incorporated association, means the group or body of persons (however described) that manages the affairs of that club, organisation or incorporated association, as the case may be;

              “complainant” in relation to a complaint, means the person or each of the persons by whom that complaint is lodged;

              “complaint” means — 

                      (a)    a complaint, whether or not a representative complaint, lodged under section 83; and

                      (b)    a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107;

              “contract worker” means a person who does work for another person pursuant to a contract between the employer of the first‑mentioned person and that other person;

              “Director” means the Director of Equal Opportunity in Public Employment appointed under section 142;

              “document” includes any book, register or other record of information, however compiled, recorded or stored;

              “educational authority” means a body or person administering an educational institution;

              “educational institution” means a school, college, university or other institution at which education or training is provided;

              “employment” includes — 

                      (a)    part‑time and temporary employment;

                      (b)    work under a contract for services; and

                      (c)    work as a State employee;

              “employment agency” means any person who or body that, whether for payment or not, assists persons to find employment or other work or assists employers to find employees or workers;

              “family responsibility or family status”, in relation to a person, means — 

                      (a)    having responsibility for the care of another person, whether or not that person is a dependant, other than in the course of paid employment;

                      (b)    the status of being a particular relative; or

                      (c)    the status of being a relative of a particular person;

              “functions” includes powers, authorities and duties;

              “gender reassigned person” means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that Act;

              “impairment” in relation to a person, means one or more of the following conditions — 

                      (a)    any defect or disturbance in the normal structure or functioning of a person’s body;

                      (b)    any defect or disturbance in the normal structure or functioning of a person’s brain; or

                      (c)    any illness or condition which impairs a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,

                     whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment — 

                      (d)    which presently exists or existed in the past but has now ceased to exist; or

                      (e)    which is imputed to the person;

              “incorporated association” means an association that is incorporated or deemed to be incorporated under the Associations Incorporation Act 1987;

              “inquiry” in relation to the Tribunal, means an inquiry referred to in section 107;

              “institution of tertiary education” means a university, college of advanced education or other institution at which tertiary education or training is provided, but does not include a technical and further education institution within the meaning assigned to that term in the Employment, Education and Training Act 1988 of the Commonwealth;

              “legal practitioner” means a legal practitioner as defined in the Legal Practice Act 2003;

              “man” means a member of the male sex irrespective of age;

              “marital status” means the status or condition of being — 

                      (a)    single;

                      (b)    married;

                      (c)    married but living separately and apart from one’s spouse;

                      (d)    divorced;

                      (e)    widowed; or

                       (f)    the de facto partner of another person;

              “near relative” in relation to a person, means — 

                      (a)    a parent, child, grandparent, grandchild, brother or sister of the person; or

                      (b)    the spouse or de facto partner of the first‑mentioned person or of a person referred to in paragraph (a);

              “principal” means — 

                      (a)    in relation to a commission agent — a person for whom the commission agent does work as a commission agent; and

                      (b)    in relation to a contract worker — a person for whom the contract worker does work pursuant to a contract between the employer of the contract worker and that other person;

              “private educational authority” means a person or body administering an educational institution, not being a school, college, university or other institution established under the School Education Act 1999, the Vocational Education and Training Act 1996, or an Act of incorporation of a university or institute of technology;

              “race” includes colour, descent, ethnic or national origin or nationality and the fact that a race may comprise 2 or more distinct races does not prevent it being a race for the purposes of this Act;

              “relative”, in relation to a person, means a person who is related to the first‑mentioned person by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on, or is a member of the household of, the first‑mentioned person;

              “representative complaint” means a complaint lodged under section 83 by a person on behalf of the person and other persons or by 2 or more persons on behalf of themselves and other persons, and which is treated by the Tribunal as a representative complaint;

              “respondent” in relation to a complaint, means the person who is, or each of the persons who are, alleged to have done the act to which the complaint relates;

              “services” includes — 

                      (a)    services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance;

                      (b)    services relating to entertainment, recreation or refreshment;

                      (c)    services relating to transport or travel;

                      (d)    services of the kind provided by members of any profession or trade; and

                      (e)    services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child’s adoption, under the Adoption Act 1994), a government or public authority or a local government body;

              “sexual orientation”, in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person;

              “State employee” includes a member of the Police Force of Western Australia;

              “Tribunal” means the State Administrative Tribunal under the State Administrative Tribunal Act 2004;

              “vehicle” includes a ship and an aircraft;

              “voluntary body” means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include — 

                      (a)    a club;

                      (b)    a body established by a law of the Commonwealth, or of a State or Territory of the Commonwealth; or

                      (c)    an association that provides grants, loans, credit or finance to its members;

              “Western Australian law” means — 

                      (a)    an Act;

                      (b)    a regulation, rule, local law or by‑law made under or pursuant to an Act; or

                      (c)    an order or award made under or pursuant to — 

                                   (i)    an Act;

                                  (ii)    a regulation, rule, local law or by‑law referred to in paragraph (b);

              “woman” means a member of the female sex irrespective of age.

     (2)    For the purposes of this Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to a refusal or failure to do an act.

     (3)    For the purposes of this Act, “religious or political conviction” shall be construed so as to include a lack or absence of religious or political conviction.

     (4)    In determining what constitutes “unjustifiable hardship” for the purposes of Part IVA, all relevant circumstances of the particular case shall be taken into account including the nature of the benefit or detriment likely to accrue or be suffered by all persons concerned, the nature of the impairment of the person concerned and the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

              [Section 4 amended by No. 40 of 1988 s. 6; No. 74 of 1992 s. 6; No. 14 of 1996 s. 4; No. 42 of 1996 s. 71(1); No. 36 of 1999 s. 247; No. 2 of 2000 s. 28; No. 3 of 2002 s. 48; No. 65 of 2003 s. 33; No. 55 of 2004 s. 303.]

5.           Act done for 2 or more reasons

             A reference in Part II, IIAA, IIA, IIB, III, IV, IVA or IVB to the doing of an act on the ground of a particular matter includes a reference to the doing of an act on the ground of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.

              [Section 5 amended by No. 40 of 1988 s. 7; No. 74 of 1992 s. 7 and 40; No. 2 of 2000 s. 28; No. 3 of 2002 s. 49.]

6.           Act binds Crown

             This Act binds the Crown.

7.           Inter‑governmental arrangements

     (1)    The Minister may make an arrangement with a Minister of the Commonwealth for or in relation to — 

                 (a)    the performance on a joint basis of functions relating to the promotion of the objects of this Act; or

                 (b)    the performance by this State or by an authority of this State on behalf of the Commonwealth of functions, including functions of the Human Rights Commission established by the Human Rights Commission Act 1981 2 of the Commonwealth, relating to the promotion of the objects of this Act.

     (2)    An arrangement under this section may contain such incidental or supplementary provisions as the Minister and the Minister of the Commonwealth think necessary.

     (3)    The Minister may arrange with the Minister of the Commonwealth for the variation or revocation of the arrangement.

     (4)    An arrangement under this section, or the variation or revocation of such an arrangement, shall be in writing and a copy of each instrument by which an arrangement under this section has been made, varied or revoked shall be published in the Gazette.

Part II — Discrimination on ground of sex, marital status or pregnancy

Division 1 — General

8.           Sex discrimination

     (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 sex of the aggrieved person if, on the ground of — 

                 (a)    the sex of the aggrieved person;

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

                 (c)    a characteristic that is generally imputed to persons of the sex 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 of the opposite sex.

     (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 the sex 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 of the opposite sex to 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.

              [Section 8 amended by No. 74 of 1992 s. 40.]

9.           Discrimination on the ground of marital status

     (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 marital status of the aggrieved person if, on the ground of — 

                 (a)    the marital status of the aggrieved person;

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

                 (c)    a characteristic that is generally imputed to persons of the marital status 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 of a different marital status.

     (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 the marital status 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 not of the same marital status as 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.

              [Section 9 amended by No. 74 of 1992 s. 40.]

10.         Discrimination on the ground of pregnancy

     (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 pregnancy of the aggrieved person if — 

                 (a)    on the ground of — 

                              (i)    the pregnancy of the aggrieved person;

                             (ii)    a characteristic that appertains generally to persons who are pregnant; or

                            (iii)    a characteristic that is generally imputed to persons who are pregnant,

                         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 was not pregnant; and

                 (b)    the less favourable treatment is not reasonable in the circumstances.

     (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 the pregnancy 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 pregnant 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.

              [Section 10 amended by No. 74 of 1992 s. 40.]

Division 2 — Discrimination in work

11.         Discrimination against applicants and employees

     (1)    It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, marital status or pregnancy — 

                 (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 sex, marital status or pregnancy — 

                 (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 sex, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides.

12.         Discrimination against commission agents

     (1)    It is unlawful for a principal to discriminate against a person on the ground of the person’s sex, marital status or pregnancy — 

                 (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 sex, marital status or pregnancy — 

                 (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.

13.         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 sex, marital status or pregnancy — 

                 (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 sex, in connection with work to perform domestic duties on the premises on which the first‑mentioned person resides.

14.         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 sex, marital status or pregnancy — 

                 (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 sex, marital status or pregnancy — 

                 (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 sex, marital status or pregnancy — 

                 (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.

15.         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 sex, marital status or pregnancy — 

                 (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 sex, marital status or pregnancy — 

                 (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.

16.         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 sex, marital status or pregnancy — 

                 (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.

17.         Employment agencies

             It is unlawful for an employment agency to discriminate against a person on the ground of the person’s sex, marital status or pregnancy — 

                 (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

18.         Education

     (1)    It is unlawful for an educational authority to discriminate against a person on the ground of the person’s sex, marital status or pregnancy — 

                 (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 sex, marital status or pregnancy — 

                 (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.

     (3)    Nothing in this section applies to or in respect of a refusal or failure to accept a person’s application for admission as a student at an educational institution that is conducted solely for students of the opposite sex to the sex of the applicant.

19.         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 sex, marital status or pregnancy — 

                 (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.

20.         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 sex, marital status or pregnancy — 

                 (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.

21.         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 sex, marital status or pregnancy — 

                 (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 sex, marital status or pregnancy — 

                 (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;

                 (b)    accommodation provided by a religious body; or

                 (c)    accommodation provided by a charitable or other voluntary body solely for persons of one sex or solely for persons of a particular marital status or particular marital statuses.

21A.      Land

     (1)    It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the sex, marital status or pregnancy 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.

              [Section 21A inserted by No. 74 of 1992 s. 8.]

22.         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 sex, marital status or pregnancy —

                 (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 sex, marital status or pregnancy — 

                 (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.

     (3)    Nothing in subsection (1) or (2) renders it unlawful to discriminate against a person on the ground of the person’s sex if membership of the club is available to persons of the opposite sex only.

     (4)    Nothing in subsection (1), other than paragraph (a), or subsection (2) renders it unlawful to discriminate against a person on the ground of the person’s sex if the discrimination occurs in relation to the use or enjoyment of any benefit provided by the club where — 

                 (a)    it is not practicable for the benefit to be used or enjoyed — 

                              (i)    simultaneously; or

                             (ii)    to the same extent,

                         by both men and women; and

                 (b)    either — 

                              (i)    the same, or an equivalent, benefit is provided for the use of men and women separately from each other; or

                             (ii)    men and women are each entitled to a fair and reasonable proportion of the use and enjoyment of the benefit.

     (5)    In determining any matter relating to the application of subsection (4), regard shall be had to — 

                 (a)    the purposes for which the club is established;

                 (b)    the membership of the club, including any class or type of membership;

                 (c)    the nature of the benefits provided by the club;

                 (d)    the opportunities for the use and enjoyment of those benefits by men and women; and

                 (e)    any other relevant circumstances.

23.         Application forms, etc.

     (1)    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 sex, marital status or pregnancy, 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 of the opposite sex or of a different marital status, or persons who are not pregnant, as the case requires, would not, in circumstances that are the same or not materially different, be requested or required to provide.

     (2)    Nothing in subsection (1) renders it unlawful for a person to request or require — 

                 (a)    a person of a particular sex to provide information concerning such part of the last‑mentioned person’s medical history as relates to medical conditions that affect persons of that sex only; or

                 (b)    a person who is pregnant to provide medical information concerning the pregnancy.

Division 4 — Discrimination involving sexual harassment

24.         Sexual harassment in employment

     (1)    It is unlawful for a person to harass sexually — 

                 (a)    an employee of that or any other person; or

                 (b)    a person who is seeking employment by that or any other person.

     (2)    It is unlawful for a person to harass sexually — 

                 (a)    a commission agent or contract worker of that person;

                 (b)    a commission agent or contract worker of a person of whom the first‑mentioned person is a commission agent or contract worker; or

                 (c)    a person who is seeking to become a commission agent or contract worker of the first‑mentioned person or of a person of whom the first‑mentioned person is a commission agent or contract worker.

     (3)    A person shall, for the purposes of this section, be taken to harass sexually another person if the first‑mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and — 

                 (a)    the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person’s employment or work or possible employment or possible work; or

                 (b)    as a result of the other person’s rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person’s employment or work or possible employment or possible work.

     (4)    A reference in subsection (3) to conduct of a sexual nature in relation to a person includes a reference to the making, to or in the presence of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing.

              [Section 24 amended by No. 74 of 1992 s. 9(1).]

25.         Sexual harassment in education

     (1)    It is unlawful for a person who is a member of the staff of an educational institution to harass sexually a person who is a student at that educational institution or is seeking admission to that educational institution as a student.

     (2)    A person shall, for the purposes of this section, be taken to harass sexually another person if the first‑mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and — 

                 (a)    the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person’s studies or the other person’s application for admission to an educational institution as a student; or

                 (b)    as a result of the other person’s rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person’s studies or the other person’s application for admission to an educational institution as a student.

     (3)    A reference in subsection (2) to conduct of a sexual nature in relation to a person includes a reference to the making, to or in the presence of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing.

26.         Sexual harassment related to accommodation

     (1)    It is unlawful for a person who as principal or agent exercises control or purports to exercise control over accommodation or the letting or other allocation of accommodation to harass sexually — 

                 (a)    a person who occupies accommodation over which that person exercises or purports to exercise control; or

                 (b)    a person who is an applicant for accommodation.

     (2)    A person shall, for the purposes of this section, be taken to harass sexually another person if the first‑mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person and — 

                 (a)    the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person’s accommodation or application for accommodation; or

                 (b)    as a result of the other person’s rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person’s accommodation or application for accommodation.

     (3)    A reference in subsection (2) to conduct of a sexual nature in relation to a person includes a reference to the making, to or in the presence of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing.

Division 5 — Exceptions to Part II

27.         Exception — genuine occupational qualification

     (1)    Nothing in section 11(1)(a) or (b), 12(1)(a) or (b) or 13(b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with a position as an employee, contract worker or commission agent, being a position in relation to which it is a genuine occupational qualification to be a person of the opposite sex to the sex of the other person.

     (2)    Without limiting the generality of subsection (1), it is a genuine occupational qualification, in relation to a particular position, to be a person of a particular sex (in this subsection referred to as the “relevant sex”) if — 

                 (a)    the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of the opposite sex to the relevant sex;

                 (b)    the duties of the position involve performing in a dramatic performance or other entertainment in a role that, for reasons of authenticity, aesthetics or tradition, is required to be performed by a person of the relevant sex;

                 (c)    the duties of the position need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothing for persons of that sex;

                 (d)    the duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex;

                 (e)    the occupant of the position is required to enter a lavatory ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex;

                  (f)    the occupant of the position is required to live on premises provided by the employer or principal of the occupant of the position and — 

                              (i)    the premises are not equipped with separate sleeping accommodation and sanitary facilities for persons of each sex;

                             (ii)    the premises are already occupied by a person or persons of the relevant sex and are not occupied by any person of the opposite sex to the relevant sex; and

                            (iii)    it is not reasonable to expect the employer or principal to provide separate sleeping accommodation and sanitary facilities for persons of each sex;

                 (g)    the occupant of the position is required to enter areas ordinarily used only by persons of the relevant sex while those persons are in a state of undress; or

                 (h)    the position is declared, by regulations made for the purposes of this paragraph, to be a position in relation to which it is a genuine occupational qualification to be a person of a particular sex.

     (3)    This section does not apply in relation to a person at a time when the employer or principal concerned already has employees, commission agents or contract workers of the opposite sex to the person — 

                 (a)    who are capable of carrying out the duties of the position concerned;

                 (b)    whom it would be reasonable to employ, engage or allow to work on the duties referred to in paragraph (a); and

                 (c)    whose numbers are sufficient to meet the likely requirements of that employer or principal in respect of the duties referred to in paragraph (a).

              [Section 27 amended by No. 74 of 1992 s. 10; No. 57 of 1997 s. 55(1).]

28.         Pregnancy or childbirth

             Nothing in Division 2 or 3 renders it unlawful for a person to discriminate against a man on the ground of his sex by reason only of the fact that the first‑mentioned person grants to a woman rights or privileges in connection with pregnancy or childbirth.

29.         Employment of married couple or partners in a de facto relationship

             Nothing in Division 2 or 3 renders unlawful discrimination against a person on the ground of the person’s marital status in relation to a job which is one of 2 to be held by a married couple or partners in a de facto relationship.

              [Section 29 inserted by No. 3 of 2002 s. 50.]

30.         Services for members of one sex

             Nothing in Division 2 or 3 applies to or in relation to the provision of services the nature of which is such that they can only be provided to members of one sex.

31.         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 sex or marital status or persons who are pregnant 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 sex or marital status or persons who are pregnant access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare.

32.         Accommodation provided for employees or students

     (1)    Nothing in Division 2 or 3 renders it unlawful for an employer who provides accommodation to employees of the employer to provide accommodation of different standards to different employees where — 

                 (a)    the standard of the accommodation provided to each employee is determined having regard to the number of persons in the household of the employee; and

                 (b)    it is not reasonable to expect the employer to provide accommodation of the same standard for all employees.

     (2)    Nothing in Division 2 or 3 applies to or in relation to the provision of accommodation, where the accommodation is provided solely for persons of one sex who are students at an educational institution.

33.         Residential care of children

     (1)    Nothing in section 11(1)(a) or (b) or 13(b) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex in connection with a position as an employee or contract worker where the duties of the position involve the care of a child or children in the place where the child or children resides or reside.

     (2)    Nothing in section 11(1)(a) or (b), 11(2)(c) or 13(b) renders it unlawful for a person to discriminate against another person on the ground of the other person’s marital status in connection with a position as an employee or contract worker of a particular employer or principal, where — 

                 (a)    the duties of the position involve the care of a child or children in the place where the child or children resides or reside; and

                 (b)    it is intended that the spouse of the occupant of the position would also occupy a position as an employee or contract worker of that employer or principal.

34.         Superannuation and insurance

              [(1)-(3)      repealed]

     (4)    Nothing in Division 2 or 3 renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex or marital status, with respect to the terms on which an annuity, a life assurance policy, a policy of insurance against accident or any other policy of insurance is offered to, or may be obtained by, the other person, where the discrimination is — 

                 (a)    based upon actuarial or statistical data from a source on which it is reasonable for the first‑mentioned person to rely; and

                 (b)    reasonable having regard to the matter of the data and any other relevant factors.

              [Section 34 amended by No. 3 of 2002 s. 51(1) and (2).]

35.         Sport

     (1)    Nothing in Division 2 or 3 renders it unlawful to exclude persons of one sex from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

     (2)    Subsection (1) does not apply in relation to the exclusion of persons from participation in — 

                 (a)    the coaching of persons engaged in any sporting activity;

                 (b)    the umpiring or refereeing of any sporting activity;

                 (c)    the administration of any sporting activity;

                 (d)    any prescribed sporting activity; or

                 (e)    sporting activities by children who have not attained the age of 12 years.

Part IIAA — Discrimination on gender history grounds in certain cases

              [Heading inserted by No. 2 of 2000 s. 28.]

Division 1 — General

              [Heading inserted by No. 2 of 2000 s. 28.]

35AA.   Interpretation

     (1)    For the purposes of this Part, a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.

     (2)    In subsection (1) — 

              “opposite sex” means a sex of which the person was not a member at birth.

              [Section 35AA inserted by No. 2 of 2000 s. 28.]

35AB.   Discrimination on gender history grounds

     (1)    For the purposes of this Act, a person (in this subsection referred to as the “discriminator”) discriminates against a gender reassigned person on gender history grounds if, on the ground of the gender reassigned person having a gender history, the discriminator treats the gender reassigned person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person not thought by the discriminator to have a gender history.

     (2)    A reference in subsection (1) to something done on the ground of a person having a gender history includes a reference to something done on the ground of — 

                 (a)    a characteristic that appertains generally to persons who have a gender history; or

                 (b)    a characteristic that is generally imputed to persons who have a gender history.

     (3)    For the purposes of this Act, a person (in this subsection referred to as the “discriminator”) discriminates against a gender reassigned person on gender history grounds if on the ground of the person having a gender history the discriminator — 

                 (a)    treats the person as being of the person’s former sex; or

                 (b)    requires the person to comply with a requirement or condition — 

                              (i)    with which a substantially higher proportion of persons who do not have a gender history comply or are able to comply;

                             (ii)    which is not reasonable having regard to the circumstances of the case; and

                            (iii)    with which the gender reassigned person does not or is not able to comply.

              [Section 35AB inserted by No. 2 of 2000 s. 28.]

Division 2 — Discrimination in work

              [Heading inserted by No. 2 of 2000 s. 28.]

35AC.   Discrimination against applicants and employees

     (1)    It is unlawful for an employer to discriminate against a gender reassigned person on gender history grounds — 

                 (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 on gender history grounds against an employee who is a gender reassigned person — 

                 (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) or (2) renders it unlawful for a person to discriminate against a gender reassigned person on gender history grounds in connection with employment to perform domestic duties within a private household in which the employer resides.

              [Section 35AC inserted by No. 2 of 2000 s. 28.]

35AD.   Discrimination against commission agents

     (1)    It is unlawful for a principal to discriminate against a gender reassigned person on gender history grounds — 

                 (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 on gender history grounds against a commission agent who is a gender reassigned person — 

                 (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.

              [Section 35AD inserted by No. 2 of 2000 s. 28.]

35AE.    Discrimination against contract workers

             It is unlawful for a principal to discriminate on gender history grounds against a contract worker who is a gender reassigned person — 

                 (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.

              [Section 35AE inserted by No. 2 of 2000 s. 28.]

35AF.    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 gender reassigned person on gender history grounds —

                 (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 gender reassigned person on gender history grounds —

                 (a)    in determining who should be invited to become a partner in the partnership; or

                 (b)    in the terms or conditions on which the gender reassigned 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 on gender history grounds against a partner in the partnership who is a gender reassigned person —

                 (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.

              [Section 35AF inserted by No. 2 of 2000 s. 28.]

35AG.   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 on gender history grounds against a gender reassigned person who is not a member of the organisation — 

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

                 (b)    in the terms or conditions on which the organisation is prepared to admit the gender reassigned 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 on gender history grounds against a gender reassigned person who is a member of the organisation — 

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

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

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

              [Section 35AG inserted by No. 2 of 2000 s. 28.]

35AH.   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 gender reassigned person on gender history grounds — 

                 (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.

              [Section 35AH inserted by No. 2 of 2000 s. 28.]

35AI.     Employment agencies

             It is unlawful for an employment agency to discriminate against a gender reassigned person on gender history grounds — 

                 (a)    by refusing to provide the gender reassigned person with any of its services;

                 (b)    in the terms or conditions on which it offers to provide the gender reassigned person with any of its services; or

                 (c)    in the manner in which it provides the gender reassigned person with any of its services.

              [Section 35AI inserted by No. 2 of 2000 s. 28.]

Division 3 — Discrimination in other areas

              [Heading inserted by No. 2 of 2000 s. 28.]

35AJ.    Education

     (1)    It is unlawful for an educational authority to discriminate against a gender reassigned person on gender history grounds —

                 (a)    by refusing or failing to accept the gender reassigned person’s application for admission as a student; or

                 (b)    in the terms or conditions on which it is prepared to admit the gender reassigned person as a student.

     (2)    It is unlawful for an educational authority to discriminate on gender history grounds against a student who is a gender reassigned person —

                 (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.

              [Section 35AJ inserted by No. 2 of 2000 s. 28.]

35AK.   Access to places and vehicles

             It is unlawful for a person (in this section referred to as the “discriminator”) to discriminate against a gender reassigned person on gender history grounds — 

                 (a)    by refusing to allow the gender reassigned 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 gender reassigned person access to or the use of any such place or vehicle;

                 (c)    by refusing to allow the gender reassigned 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 gender reassigned person the use of any such facilities; or

                 (e)    by requiring the gender reassigned person to leave or cease to use any such place or vehicle or any such facilities.

              [Section 35AK inserted by No. 2 of 2000 s. 28.]

35AL.    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 a gender reassigned person on gender history grounds — 

                 (a)    by refusing to provide the gender reassigned person with those goods or services or to make those facilities available to the gender reassigned person;

                 (b)    in the terms or conditions on which the first‑mentioned person provides the gender reassigned person with those goods or services or makes those facilities available to the gender reassigned person; or

                 (c)    in the manner in which the first‑mentioned person provides the gender reassigned person with those goods or services or makes those facilities available to the gender reassigned person.

              [Section 35AL inserted by No. 2 of 2000 s. 28.]

35AM.  Accommodation

     (1)    It is unlawful for a person, whether as principal or agent, to discriminate against a gender reassigned person on gender history grounds — 

                 (a)    by refusing the gender reassigned person’s application for accommodation;

                 (b)    in the terms or conditions on which accommodation is offered to the gender reassigned person; or

                 (c)    by deferring the gender reassigned person’s application for accommodation, or according to the gender reassigned 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 a gender reassigned person on gender history grounds — 

                 (a)    by denying the gender reassigned person access, or limiting the gender reassigned person’s access, to any benefit associated with accommodation occupied by the gender reassigned person;

                 (b)    by evicting the gender reassigned person from accommodation occupied by the gender reassigned person; or

                 (c)    by subjecting the gender reassigned person to any other detriment in relation to accommodation occupied by the gender reassigned 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 paragraph (a) or near relatives of such a person;

                         or

                 (b)    accommodation provided by a religious body.

              [Section 35AM inserted by No. 2 of 2000 s. 28.]

35AN.   Land

     (1)    It is unlawful for a person, whether as principal or agent, to discriminate against a gender reassigned person on gender history grounds — 

                 (a)    by refusing or failing to dispose of an estate or interest in land to the gender reassigned person; or

                 (b)    in the terms or conditions on which an estate or interest in land is offered to the gender reassigned 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.

              [Section 35AN inserted by No. 2 of 2000 s. 28.]

35AO.   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 on gender history grounds against a gender reassigned person who is not a member of the club — 

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

                 (b)    in the terms or conditions on which the club is prepared to admit the gender reassigned 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 on gender history grounds against a gender reassigned person who is a member of the club — 

                 (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.

              [Section 35AO inserted by No. 2 of 2000 s. 28.]

35AP.    Discrimination in sport on gender history grounds

     (1)    It is unlawful for a person to discriminate against a gender reassigned person on gender history grounds by excluding that person from — 

                 (a)    a sporting activity; or

                 (b)    an administrative, coaching, refereeing or umpiring activity in relation to any sport.

     (2)    Subsection (1)(a) does not apply to discrimination against a gender reassigned person if — 

                 (a)    the relevant sporting activity is a competitive sporting activity for members of the sex with which the person identifies; and

                 (b)    the person would have a significant performance advantage as a result of his or her medical history.

              [Section 35AP inserted by No. 2 of 2000 s. 28.]

35AQ.   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 a gender reassigned person on gender history grounds in doing a particular act, it is unlawful for the first‑mentioned person to request or require the gender reassigned 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 do not have a gender history would not, in circumstances that are the same or not materially different, be requested or required to provide.

              [Section 35AQ inserted by No. 2 of 2000 s. 28.]

35AR.   Superannuation schemes and provident funds

             It is unlawful for a person who provides a superannuation scheme or provident fund to discriminate against a gender reassigned person on gender history grounds — 

                 (a)    by providing a scheme or fund that discriminates, or requires or authorises discrimination, against that other person or that would, if the person were to become a member of the scheme or fund, discriminate, or require or authorise discrimination, against that person; or

                 (b)    in the manner in which the first‑mentioned person administers the scheme or fund,

             except to the extent that — 

               (aa)    the discrimination — 

                              (i)    is based upon actuarial or statistical data from a source upon which it is reasonable to rely or where there is no such data, on such other data as may be available; and

                             (ii)    is reasonable having regard to the data, if any, and other relevant factors;

                         or

               (bb)    where no such actuarial or statistical data is available, the discrimination is reasonable having regard to any other relevant factors.

              [Section 35AR inserted by No. 2 of 2000 s. 28.]

Part IIA — Discrimination on the ground of family responsibility or family status

              [Heading inserted by No. 74 of 1992 s. 11.]

Division 1 — General

              [Heading inserted by No. 74 of 1992 s. 11.]

35A.      Discrimination on the ground of family responsibility or family status

     (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 family responsibility or family status if, on the ground of — 

                 (a)    the family responsibility or family status of the aggrieved person;

                 (b)    a characteristic that appertains generally to persons having the same family responsibility or family status as the aggrieved person; or

                 (c)    a characteristic that is generally imputed to persons having the same family responsibility or family status as 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 does not have such a family responsibility or family status.

     (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 family responsibility or family status if the discriminator requires the aggrieved person to comply with a requirement or condition — 

                 (a)    with which a substantially higher proportion of persons not of the same family responsibility or family status as 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.

              [Section 35A inserted by No. 74 of 1992 s. 11.]

Division 2 — Discrimination in work

              [Heading inserted by No. 74 of 1992 s. 11.]

35B.      Discrimination against applicants and employees

     (1)    It is unlawful for an employer to discriminate against a person on the ground of the person’s family responsibility or family status — 

                 (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 family responsibility or family status — 

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

                 (b)    by denying the employee access, or limiting the access of the employee, 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) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s family responsibility or family status, in connection with employment to perform domestic duties within a private household in which the employer resides.

     (4)    Nothing in this section renders it unlawful for a person to do an act a purpose of which is to afford persons with a particular family responsibility or family status rights, benefits or privileges in connection with that family responsibility or family status.

              [Section 35B inserted by No. 74 of 1992 s. 11.]

35C.      Discrimination against commission agents

     (1)    It is unlawful for a principal to discriminate against a person on the ground of the person’s family responsibility or family status — 

                 (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 family responsibility or family status — 

                 (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 agreement; or

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

              [Section 35C inserted by No. 74 of 1992 s. 11.]

35D.      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 family responsibility or family status — 

                 (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 family responsibility or family status of the other person, in connection with work to perform domestic duties within a private household in which the first‑mentioned person resides.

              [Section 35D inserted by No. 74 of 1992 s. 11.]

35E.      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 family responsibility or family status — 

                 (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 family responsibility or family status — 

                 (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 family responsibility or family status — 

                 (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.

              [Section 35E inserted by No. 74 of 1992 s. 11.]

35F.       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 family responsibility or family status — 

                 (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 family responsibility or family status — 

                 (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.

              [Section 35F inserted by No. 74 of 1992 s. 11.]

35G.      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 family responsibility or family status — 

                 (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.

              [Section 35G inserted by No. 74 of 1992 s. 11.]

35H.      Employment agencies

             It is unlawful for an employment agency to discriminate against a person on the ground of the person’s family responsibility or family status — 

                 (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.

              [Section 35H inserted by No. 74 of 1992 s. 11.]

Division 3 — Discrimination in other areas

              [Heading inserted by No. 74 of 1992 s. 11.]

35I.       Education

     (1)    It is unlawful for an educational authority to discriminate against a person on the ground of the person’s family responsibility or family status — 

                 (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 family responsibility or family status — 

                 (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.

     (3)    Nothing in this section applies to or in respect of bona fide benefits, including concessions, provided to a person by reason of his or her family responsibility or family status.

              [Section 35I inserted by No. 74 of 1992 s. 11.]

35J.       Application forms, etc.

             If, 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 family responsibility or family status, 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 with a different family responsibility or family status would not, in circumstances that are the same or not materially different, be requested or required to provide.

              [Section 35J inserted by No. 74 of 1992 s. 11.]

Division 4 — Exceptions to Part IIA

              [Heading inserted by No. 74 of 1992 s. 11.]

35K.      Measures intended to meet special needs

             Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is to afford a person with a particular family responsibility or of a particular family status access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare, or any ancillary benefits.

              [Section 35K inserted by No. 74 of 1992 s. 11.]

35L.      Accommodation provided for employees

             Nothing in Division 2 renders it unlawful for an employer who provides accommodation to employees of the employer to provide accommodation of different standards to different employees where — 

                 (a)    the standard of the accommodation provided to each employee is determined having regard to the number of persons in the household of the employee; and

                 (b)    it is not reasonable to expect the employer to provide accommodation of the same standard for all employees.

              [Section 35L inserted by No. 74 of 1992 s. 11.]

35M.     Identity of relative

             Nothing in Division 2 renders it unlawful for an employer to restrict the employment of a person if — 

                 (a)    that person is a relative of an employee of the employer; or

                 (b)    that person is a relative of an employee of another employer,

             and the first‑mentioned employer can demonstrate, after making reasonable enquiries, that there is a significant likelihood of collusion between that person and that person’s relative which would result in damage to the business of the first‑mentioned employer.

              [Section 35M inserted by No. 74 of 1992 s. 11.]

35N.      Acts done under statutory authority

     (1)    Nothing in this Part renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of any other written law which is in force when the Equal Opportunity Amendment Act 1992 1 comes into operation, not being — 

                 (a)    the rules of a society registered under the Co‑operative and Provident Societies Act 1903;

                 (b)    the rules of a credit union within the meaning of the Credit Unions Act 1979 3;

                 (c)    the rules of a society registered under the Friendly Societies (Western Australia) Code 1999; or

                 (d)    the rules of a society registered under the Housing Societies Act 1976.

     (2)    Subsection (1) shall, except to the extent that regulations made for the purposes of this subsection provide otherwise, cease to be in force at the expiration of 2 years after the coming into operation of section 11 of the Equal Opportunity Amendment Act 1992 1.

     (3)    Regulations made for the purposes of subsection (2) may provide generally in relation to the application of subsection (1) or may make provision in relation to specified written laws.

              [Section 35N inserted by No. 74 of 1992 s. 11; amended by No. 2 of 1999 s. 19(a); No. 12 of 2001 s. 48(2).]

Part IIB — Discrimination on ground of sexual orientation

              [Heading inserted by No. 3 of 2002 s. 52.]

Division 1 — General

              [Heading inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35O inserted by No. 3 of 2002 s. 52.]

Division 2 — Discrimination in work

              [Heading inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35P inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35Q inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35R inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35S inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35T inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35U inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35V inserted by No. 3 of 2002 s. 52.]

Division 3 — Discrimination in other areas

              [Heading inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35W inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35X inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35Y inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35Z inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35ZA inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35ZB inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35ZC inserted by No. 3 of 2002 s. 52.]

Division 4 — Exceptions to Part IIB

              [Heading inserted by No. 3 of 2002 s. 52.]

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.

              [Section 35ZD inserted by No. 3 of 2002 s. 52.]

Part III — Discrimination on the ground of race

Division 1 — General

36.         Racial discrimination

     (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 race if, on the ground of — 

                 (a)    the race of the aggrieved person;

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

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

             the discriminator — 

                 (d)    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 of a different race; or

                 (e)    segregates the aggrieved person from persons of a different race.

   (1a)    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 race if, on the ground of — 

                 (a)    the race of;

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

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

             any relative or associate of the aggrieved person, the discriminator — 

                 (d)    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 persons; or

                 (e)    segregates the aggrieved person from persons,

             who are not of that race.

     (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 race if the discriminator requires the aggrieved person to comply with a requirement or condition — 

                 (a)    with which a substantially higher proportion of persons not of the same race as 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.

              [Section 36 amended by No. 74 of 1992 s. 12.]

Division 2 — Discrimination in work

37.         Discrimination against applicants and employees

     (1)    It is unlawful for an employer to discriminate against a person on the ground of the race of that person — 

                 (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 race of the employee — 

                 (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) renders it unlawful for an employer to discriminate against a person, on the ground of the race of the person, in connection with employment to perform domestic duties within a private household in which the employer resides.

              [Section 37 amended by No. 74 of 1992 s. 13.]

38.         Discrimination against commission agents

     (1)    It is unlawful for a principal to discriminate against a person on the ground of the race of that person — 

                 (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 ag