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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Age
Discrimination Bill 2003
No. ,
2003
(Attorney-General)
A
Bill for an Act relating to discrimination on the ground of
age
Contents
A Bill for an Act relating to discrimination on the
ground of age
The Parliament of Australia enacts:
This Act may be cited as the Age Discrimination Act
2003.
This Act commences on the day after it receives the Royal
Assent.
The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on
the ground of age in the areas of work, education, access to premises, the
provision of goods, services and facilities, accommodation, the disposal of
land, the administration of Commonwealth laws and programs and requests for
information; and
(b) to ensure, as far as practicable, that everyone has the same rights to
equality before the law, regardless of age, as the rest of the community;
and
(c) to allow appropriate benefits and other assistance to be given to
people of a certain age, particularly younger and older persons, in recognition
of their particular circumstances; and
(d) to promote recognition and acceptance within the community of the
principle that people of all ages have the same fundamental rights;
and
(e) to respond to demographic change by:
(i) removing barriers to older people participating in society,
particularly in the workforce; and
(ii) changing negative stereotypes about older people;
bearing in mind the international commitment to eliminate age
discrimination reflected in the Political Declaration adopted in Madrid, Spain
on 12 April 2002 by the Second World Assembly on Ageing.
The following is a simplified outline of this Act:
• This Act makes it unlawful to discriminate on the ground of
age.
• This Act has effect subject to certain geographical and
constitutional limitations (see Part 2).
• Discrimination on the ground of age can be direct or indirect (see
Part 3).
• It is unlawful to discriminate on the ground of age in relation to
work (see Division 2 of Part 4) and certain other areas (see
Division 3 of Part 4).
• It is not unlawful to discriminate on the ground of age if a
particular exemption is applicable (see Divisions 4 and 5 of
Part 4).
• It is an offence to do certain things related to age discrimination
(see Part 5).
• Complaints can be made to the Commission about unlawful
discrimination (see the definition of unlawful discrimination in
subsection 3(1) of the Human Rights and Equal Opportunity Commission Act
1986, and section 46P of that Act).
• Functions are given to the Commission (see Part 6).
• Provision is made for miscellaneous matters such as delegation,
protection from civil actions etc. (see Part 7).
In this Act:
act has a meaning affected by section 7.
administrative office means:
(a) an office established by, or an appointment made under, a law of the
Commonwealth; and
(b) an office established by, or an appointment made under, a law of a
Territory; and
(c) an appointment made by the Governor-General or a Minister otherwise
than under a law of the Commonwealth or of a Territory; and
(d) an appointment as a director of an incorporated company that is a
public authority of the Commonwealth;
but does not include:
(e) an office of member of the Assembly, member of the Executive, or
Minister within the meaning of the Australian Capital Territory
(Self-Government) Act 1988; or
(f) an office of member of the Legislative Assembly, member of the Council
or Minister of the Territory, within the meaning of the Northern Territory
(Self-Government) Act 1978; or
(g) an office of member of the Legislative Assembly within the meaning of
the Norfolk Island Act 1979; or
(h) an office or appointment in the Australian Public Service.
age includes age group.
Example: The reference in subsection 26(3) to students above
a particular age includes a reference to students above a particular age
group.
Commission means the Human Rights and Equal Opportunity
Commission established by the Human Rights and Equal Opportunity Commission
Act 1986.
Commonwealth employee means a person who:
(a) is appointed or engaged under the Public Service Act 1999;
or
(b) holds an administrative office; or
(c) is employed by a public authority of the Commonwealth; or
(d) is employed under the Australian Security Intelligence Organisation
Act 1979, the Commonwealth Electoral Act 1918 or the Naval Defence
Act 1910; or
(e) is a member of the Defence Force; or
(f) is the Commissioner of the Australian Federal Police, a Deputy
Commissioner of the Australian Federal Police, an AFP employee or a special
member of the Australian Federal Police (all within the meaning of the
Australian Federal Police Act 1979).
Commonwealth law means:
(a) an Act, regulation, or other instrument made under an Act;
or
(b) an ordinance of a Territory, a regulation made under an ordinance of a
Territory, or another instrument made under an ordinance of a Territory;
or
(c) an order or award made under a law mentioned in paragraph (a) or
(b).
discriminate has the meaning given by sections 14 and
15.
employment includes:
(a) part-time and temporary employment; and
(b) work under a contract for services; and
(c) work as a Commonwealth employee; and
(d) work as an employee of a State or an instrumentality of a
State.
function includes duty.
instrumentality of a State means a body or authority
established for a public purpose by a law of a State and includes a local
government body.
premises includes:
(a) a structure, building, aircraft, vehicle or vessel; and
(b) a place (whether enclosed or built on or not); and
(c) a part of premises (including premises of a kind mentioned in
paragraph (a) or (b)).
President means President of the Commission.
public authority of the Commonwealth means:
(a) a body incorporated, whether before or after the commencement of this
Act, for a public purpose by a law of the Commonwealth or a law of a Territory,
being a body corporate employing staff on its own behalf; or
(b) an authority or body, not being a body corporate, established, whether
before or after the commencement of this Act, for a public purpose by, or in
accordance with the provisions of, a law of the Commonwealth or a law of a
Territory, being an authority or body employing staff on its own behalf;
or
(c) an incorporated company over which the Commonwealth, or a body or
authority mentioned in paragraph (a) or (b), is in a position to exercise
control.
services includes:
(a) services relating to banking, insurance, superannuation and the
provision of grants, loans, credit or finance; or
(b) services relating to entertainment, recreation or refreshment;
or
(c) services relating to transport or travel; or
(d) services relating to telecommunications; or
(e) services of the kind provided by the members of any profession or
trade; or
(f) services of the kind provided by a government, a government authority
or a local government body.
State, except in subsections 10(10) and (11), includes the
Australian Capital Territory and the Northern Territory.
Territory, except in subsection 10(11) or in
paragraph (c) of the definition of administrative office
in this section, does not include the Australian Capital Territory or the
Northern Territory.
this Act includes the regulations.
For the purposes of this Act, a reference to discrimination against a
person on the ground of the person’s age is taken not to include a
reference to discrimination against a person on the ground of a disability of
the person (within the meaning of the Disability Discrimination Act
1992).
For the purposes of this Act, omitting to do an act is taken to be the
doing of an act and a reference to an act includes a reference to an omission to
do an act.
For the purposes of this Act, the Commonwealth is taken to be the
employer of all Commonwealth employees.
(1) In this section:
Australia includes the external Territories.
limited application provisions means the provisions of
Divisions 2 and 3 of Part 4 (other than sections 23, 31 and
32).
(2) Subject to this section and section 10, this Act has effect
throughout Australia.
(3) Subject to section 10, the limited application provisions have
effect in relation to discrimination within Australia even if the discrimination
involves persons or things, or matters arising, outside Australia.
(1) In this section:
Australia includes the external Territories.
banking has the same meaning as in paragraph 51(xiii) of the
Constitution.
foreign corporation has the same meaning as in paragraph
51(xx) of the Constitution.
insurance has the same meaning as in paragraph 51(xiv) of the
Constitution.
limited application provisions means the provisions of
Divisions 2 and 3 of Part 4 (other than sections 23, 31 and
32).
State banking has the same meaning as in paragraph 51(xiii)
of the Constitution.
State insurance has the same meaning as in paragraph 51(xiv)
of the Constitution.
trading or financial corporation has the same meaning as in
paragraph 51(xx) of the Constitution.
(2) The limited application provisions have effect as provided in
section 9 and the following provisions of this section and not
otherwise.
(3) Sections 18, 19 and 20 have effect in relation to
discrimination against:
(a) Commonwealth employees in connection with their employment as
Commonwealth employees; and
(b) persons seeking to become Commonwealth employees.
(4) Section 22 has effect in relation to discrimination by an
authority or body in the exercise of a power under a Commonwealth law to confer,
renew, extend, revoke or withdraw an authorisation or qualification.
(5) This Act has effect in relation to acts done within a
Territory.
(6) The limited application provisions have effect in relation to acts
done by, or on behalf of:
(a) the Commonwealth or the Administration of a Territory; or
(b) a body or authority established for a public purpose by a law of the
Commonwealth or a law of a Territory;
in the exercise of a power conferred by a law of the Commonwealth or a law
of a Territory.
(7) The limited application provisions have effect in relation to
discrimination against a person on the ground of age to the extent that the
provisions:
(a) give effect to the Discrimination (Employment and Occupation)
Convention, 1958 adopted by the General Conference of the International Labour
Organization on 25 June 1958 (a copy of the English text of which is set
out in Schedule 1 to the Human Rights and Equal Opportunity Commission
Act 1986); or
(b) give effect to the International Covenant on Civil and Political
Rights (a copy of the English text of which is set out in Schedule 2 to
the Human Rights and Equal Opportunity Commission Act 1986); or
(c) give effect to the International Covenant on Economic, Social and
Cultural Rights; or
(d) give effect to the Convention on the Rights of the Child; or
(e) relate to matters external to Australia; or
(f) relate to matters of international concern.
Note: In 2003, the text of the international instruments
mentioned in this subsection was available in the Australian Treaties Library of
the Department of Foreign Affairs and Trade, accessible on the Internet through
that Department’s world-wide web site.
(8) The limited application provisions have effect in relation to
discrimination:
(a) by a foreign corporation, or a trading or financial corporation formed
within the limits of the Commonwealth; or
(b) by a person in the course of the person’s duties or purported
duties as an officer or employee of such a corporation.
(9) Without limiting the effect of subsection (8), the limited
application provisions have effect in relation to discrimination:
(a) by a trading or financial corporation formed within the limits of the
Commonwealth; or
(b) by a person in the course of the person’s duties or purported
duties as an officer or employee of such a corporation;
to the extent that the discrimination takes place in the course of the
trading activities of the trading corporation or the financial activities of the
financial corporation, as the case may be.
(10) The limited application provisions have effect in relation to
discrimination in the course of, or in relation to, the carrying on of the
business of:
(a) banking, other than State banking not extending beyond the limits of
the State concerned; or
(b) insurance, other than State insurance not extending beyond the limits
of the State concerned.
(11) The limited application provisions have effect in relation to
discrimination in the course of, or in relation to, trade or commerce:
(a) between Australia and a place outside Australia; or
(b) among the States; or
(c) between a State and a Territory; or
(d) between 2 Territories.
(1) If:
(a) the operation of this Act would result in the acquisition of property
otherwise than on just terms; and
(b) the acquisition would not be valid, apart from this section, because a
particular person has not been compensated;
the Commonwealth is liable to pay a reasonable amount of compensation to
the person.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in the Federal Court of
Australia for the recovery from the Commonwealth of such reasonable amount of
compensation as the Court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
(1) A reference in this section to this Act is a reference to this Act as
it has effect because of a provision of sections 9 and 10.
(2) A reference in this section to a law of a State or Territory is a
reference to a law of a State or Territory that deals with discrimination on the
ground of age.
(3) This Act is not intended to exclude or limit the operation of a law of
a State or Territory that is capable of operating concurrently with this
Act.
(4) If:
(a) a law of a State or Territory relating to discrimination deals with a
matter dealt with by this Act; and
(b) a person has made a complaint or initiated a proceeding under that law
in respect of an act in respect of which the person would, apart from this
subsection, have been entitled to make a complaint under the Human Rights and
Equal Opportunity Commission Act 1986 alleging that the act is unlawful
under a provision of Part 4 of this Act;
the person is not entitled to make a complaint or institute a proceeding
under the Human Rights and Equal Opportunity Commission Act 1986 alleging
that the act is unlawful under a provision of Part 4 of this Act.
(5) If:
(a) a law of a State or Territory relating to discrimination deals with a
matter dealt with by this Act; and
(b) an act by a person that constitutes an offence against that law also
constitutes an offence against this Act;
the person may be prosecuted and convicted either under that law of the
State or Territory or under this Act
(6) Nothing in subsection (5) makes a person liable to be punished
more than once in respect of the same act.
(1) This Act binds the Crown in right of the Commonwealth, of each of the
States and of Norfolk Island.
(2) This Act does not make the Crown in right of the Commonwealth, of a
State or of Norfolk Island liable to be prosecuted for an offence.
For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved
person) on the ground of the age of the aggrieved person if:
(a) the discriminator treats or proposes to treat 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 age;
and
(b) the discriminator does so because of:
(i) the age of the aggrieved person; or
(ii) a characteristic that appertains generally to persons of the age of
the aggrieved person; or
(iii) a characteristic that is generally imputed to persons of the age of
the aggrieved person.
(1) For the purposes of this Act, a person (the
discriminator) discriminates against another person
(the aggrieved person) on the ground of the age of the aggrieved
person if:
(a) the discriminator imposes, or proposes to impose, a condition,
requirement or practice; and
(b) the condition, requirement or practice is not reasonable in the
circumstances; and
(c) the condition, requirement or practice has, or is likely to have, the
effect of disadvantaging persons of the same age as the aggrieved
person.
(2) For the purposes of paragraph (1)(b), the burden of proving that
the condition, requirement or practice is reasonable in the circumstances lies
on the discriminator.
If an act is done for 2 or more reasons, then, for the purposes of this
Act, the act is taken to be done for the reason of the age of a person only
if:
(a) one of the reasons is the age of the person; and
(b) that reason is the dominant reason for doing the act.
The following is a simplified outline of this Part:
• This Part makes it unlawful to discriminate against someone on the
ground of age in respect of the following:
(a) employment and related matters;
(b) education;
(c) access to premises;
(d) provision of goods, services and facilities;
(e) provision of accommodation;
(f) disposal of land;
(g) administration of Commonwealth laws and programs;
(h) requests for information on which age discrimination might be
based.
• This discrimination is unlawful in the particular circumstances set
out in Divisions 2 and 3, unless one of the exemptions applies as set out
in Divisions 4 and 5.
(1) It is unlawful for an employer or a person acting or purporting to act
on behalf of an employer to discriminate against a person on the ground
of the other person’s age:
(a) in the arrangements made for the purpose of determining who should be
offered employment; or
(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 or a person acting or purporting to act
on behalf of an employer to discriminate against an employee on the ground of
the employee’s age:
(a) in the terms or conditions of employment that the employer affords the
employee; or
(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; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
Exemption for domestic duties
(3) Paragraphs (1)(a) and (b) do not make it unlawful for a person to
discriminate against another person, on the ground of the other person’s
age, in connection with employment to perform domestic duties on the premises on
which the first-mentioned person resides.
Exemption for inherent requirements
(4) Paragraphs (1)(a), (1)(b) and (2)(c) do not make it unlawful for
an employer to discriminate against another person, on the ground of the other
person’s age, if the other person is unable to carry out the inherent
requirements of the particular employment because of his or her age.
(5) In deciding whether the other person is unable to carry out those
requirements because of his or her age, take into account:
(a) the other person’s past training, qualifications and experience
relevant to the particular employment; and
(b) if the other person is already employed by the employer—the
other person’s performance as an employee; and
(c) all other relevant factors that it is reasonable to take into
account.
(1) It is unlawful for a principal to discriminate against a person on the
ground of the person’s age:
(a) in the arrangements the principal makes for the purpose of determining
who should be engaged as a commission agent; or
(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 age:
(a) in the terms or conditions that the principal affords the commission
agent as a commission agent; or
(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;
or
(c) by terminating the engagement; or
(d) by subjecting the commission agent to any other detriment.
Exemption for inherent requirements
(3) Paragraphs (1)(a), (1)(b) and (2)(c) do not make it unlawful for
a principal to discriminate against another person, on the ground of the other
person’s age, if the other person is unable to carry out the inherent
requirements of a commission agent because of his or her age.
(4) In deciding whether the other person is unable to carry out those
requirements because of his or her age, take into account:
(a) the other person’s past training, qualifications and experience
relevant to engagement as a commission agent; and
(b) if the other person is already engaged by the principal as a
commission agent—the other person’s performance as a commission
agent; and
(c) all other relevant factors that it is reasonable to take into
account.
Definitions
(5) In this section:
commission agent means a person who does work for another
person as the agent of that other person and who is remunerated, whether in
whole or in part, by commission.
principal, in relation to a commission agent, means a person
for whom the commission agent does work as a commission agent.
(1) It is unlawful for a principal to discriminate against a contract
worker on the ground of the contract worker’s age:
(a) in the terms or conditions on which the principal allows the contract
worker to work; or
(b) by not allowing the contract worker to work or continue to work;
or
(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.
Exemption for inherent requirements
(2) Paragraph (1)(b) does not make it unlawful for a principal to
discriminate against another person, on the ground of the other person’s
age, if the other person is unable to carry out the inherent requirements of a
contract worker because of his or her age.
(3) In deciding whether the other person is unable to carry out those
requirements because of his or her age, take into account:
(a) the other person’s past training, qualifications and experience
relevant to working as a contract worker; and
(b) if the other person is already working for the principal as a contract
worker—the other person’s performance as a contract worker;
and
(c) all other relevant factors that it is reasonable to take into
account.
Definitions
(4) In this section:
contract worker means a person who does work for another
person under a contract between the employer of the first-mentioned person and
that other person.
principal, in relation to a contract worker, means a person
for whom the contract worker does work under a contract between the employer of
the contract worker and the person.
(1) It is unlawful for 6 or more persons who are proposing to form
themselves into a partnership to discriminate against another person on the
ground of the other person’s age:
(a) in determining who should be invited to become a partner in the
partnership; or
(b) in the terms or conditions on which the other 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 another person on the
ground of the other person’s age:
(a) in determining who should be invited to become a partner in the
partnership; or
(b) in the terms or conditions on which the other 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 another partner in the
partnership on the ground of the other partner’s age:
(a) by denying the other partner access, or limiting the other
partner’s access, to any benefit arising from being a partner in the
partnership; or
(b) by expelling the other partner from the partnership; or
(c) by subjecting the partner to any other detriment.
Exemption for inherent requirements
(4) Paragraphs (1)(a), (2)(a) and (3)(b) do not make it unlawful for
a person to discriminate against another person, on the ground of the other
person’s age, if the other person is unable to carry out the inherent
requirements of a partner (in the proposed partnership or the partnership)
because of his or her age.
(5) In deciding whether the other person is unable to carry out those
requirements because of his or her age, take into account:
(a) the other person’s past training, qualifications and experience
relevant to the proposed partnership or the partnership; and
(b) if the other person is already a partner—the other
person’s performance as a partner; and
(c) all other relevant factors that it is reasonable to take into
account.
(1) 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 the engaging in of an occupation to discriminate against a person on
the ground of the person’s age:
(a) by refusing or failing to confer, renew or extend the authorisation or
qualification; or
(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 the conditions upon which it is held.
Exemption for inherent requirements
(2) This section does not make it unlawful for an authority or body to
discriminate against a person, on the ground of the person’s age, if the
person is unable to carry out the inherent requirements of the profession, trade
or occupation because of his or her age.
(3) In deciding whether the person is unable to carry out those
requirements because of his or her age, take into account:
(a) the person’s past training, qualifications and experience
relevant to the particular profession, trade or occupation; and
(b) if the person is already a member of the profession, carrying on the
trade or engaged in the occupation—the person’s performance in the
profession, trade or occupation; and
(c) all other relevant factors that it is reasonable to take into
account.
(1) It is unlawful for a registered organisation, the committee of
management of a registered organisation or a member of the committee of
management of a registered organisation to discriminate against a person, on the
ground of the person’s age:
(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.
(2) It is unlawful for a registered organisation, the committee of
management of a registered organisation or a member of the committee of
management of a registered organisation to discriminate against a person who is
a member of the registered organisation, on the ground of the member’s
age:
(a) by denying the member access or limiting the member’s access, to
any benefit provided by the organisation; or
(b) by depriving the member of membership or varying the terms of
membership; or
(c) by subjecting the member to any other detriment.
Definitions
(3) In this section:
committee of management, in relation to a registered
organisation, means the group or body of persons (however described) that
manages the affairs of that organisation, as the case may be.
registered organisation means an organisation within the
meaning of Schedule 1B to the Workplace Relations Act
1996.
(1) It is unlawful for an employment agency to discriminate against a
person on the ground of the person’s age:
(a) by refusing to provide the person with any of its services;
or
(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.
Exemption for inherent requirements
(2) This section does not make it unlawful for an employment agency to
discriminate against a person, on the ground of the person’s age, if the
person is unable to carry out the inherent requirements of the work sought
because of his or her age.
(3) In deciding whether the person is unable to carry out those
requirements because of his or her age, take into account:
(a) the person’s past training, qualifications and experience
relevant to the work sought; and
(b) all other relevant factors that it is reasonable to take into
account.
Definition
(4) In this section:
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.
(1) This Division does not make it unlawful for a person to discriminate
against another person on the ground of the other person’s age, in
relation to youth wages:
(a) in the arrangements made for the purpose of determining who should be
offered work; or
(b) in determining who should be offered work; or
(c) in payment, or offer of payment, of remuneration for work.
(2) In this section:
youth wages means remuneration for persons who are under
21.
(1) It is unlawful for an educational authority to discriminate against a
person on the ground of the person’s age:
(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 age:
(a) by denying the student access, or limiting the student’s access,
to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment.
Exemption for educational institutions established wholly or primarily
for students above a particular age
(3) This section does not make it unlawful to discriminate against a
person on the ground of the person’s age in respect of admission to an
educational institution established wholly or primarily for students above a
particular age, if the person is not above that age.
Definitions
(4) In this section:
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.
It is unlawful for a person to discriminate against another person on the
ground of the other person’s age:
(a) by refusing to allow the other person access to, or the use of, any
premises that the public or a section of the public is entitled or allowed to
enter or use (whether for payment or not); or
(b) in the terms or conditions on which the first-mentioned person is
prepared to allow the other person access to, or the use of, any such premises;
or
(c) in relation to the provision of means of access to such premises;
or
(d) by refusing to allow the other person the use of any facilities in
such premises that the public or a section of the public is entitled or allowed
to use (whether for payment or not); or
(e) in the terms or conditions on which the first-mentioned person is
prepared to allow the other person the use of any such facilities; or
(f) by requiring the other person to leave such premises or cease to use
such 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 age:
(a) by refusing to provide the other person with those goods or services
or to make those facilities available to the other person; or
(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.
(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
age:
(a) by refusing the other person’s application for accommodation;
or
(b) in the terms or conditions on which the 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
age:
(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; or
(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.
Exemption for accommodation provider who is resident etc.
(3) This section does not apply to or in respect of the provision of
accommodation in premises if:
(a) 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
(b) the accommodation provided in those premises is for no more than 3
persons other than a person mentioned in paragraph (a) or near relatives of
such a person.
Definitions
(4) In this section:
accommodation includes residential or business
accommodation.
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 spouse of the first-mentioned person or of
a person mentioned in paragraph (a).
(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
age:
(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.
Exemption for disposal by will or by way of gift
(2) This section does not apply in relation to a disposal of an estate or
interest in land by will or by way of gift.
(1) It is unlawful for a person who:
(a) performs any function or exercises any power under a Commonwealth law
or for the purposes of a Commonwealth program; or
(b) has any other responsibility for the administration of a Commonwealth
law or the conduct of a Commonwealth program;
to discriminate against another person on the ground of the other
person’s age in the performance of that function, the exercise of that
power or the fulfilment of that responsibility.
Definition
(2) In this section:
Commonwealth program means a program conducted by or on
behalf of the Commonwealth Government.
It is unlawful for a person (the first person) to request
or require another person (the other person) to provide
information (whether by way of completing a form or otherwise) if:
(a) the information is requested or required in connection with, or for
the purposes of, the first person doing a particular act; and
(b) under Division 2 or this Division, it would be unlawful in
particular circumstances for the first person, in doing that act, to
discriminate against the other person on the ground of the other person’s
age; and
(c) persons of a different age would not be requested or required to
provide the information in circumstances that are the same or not materially
different.
This Part does not make it unlawful for a person to discriminate against
another person, on the ground of the other person’s age, by an act that is
consistent with the purposes of this Act, if:
(a) the act provides a bona fide benefit to persons of a particular age;
or
Example: This paragraph would cover a hairdresser giving a
discount to a person holding a Seniors Card or a similar card, because giving
the discount is an act that provides a bona fide benefit to older
persons.
(b) the act is intended to meet a need that arises out of the age of
persons of a particular age; or
Example: Young people often have a greater need for welfare
services (including information, support and referral) than other people. This
paragraph would therefore cover the provision of welfare services to young
homeless people, because such services are intended to meet a need arising out
of the age of such people.
(c) the act is intended to reduce a disadvantage experienced by people of
a particular age.
Example: Older people are often more disadvantaged by
retrenchment than are other people. This paragraph would therefore cover the
provision of additional notice entitlements for older workers, because such
entitlements are intended to reduce a disadvantage experienced by older
people.
(1) This Part does not:
(a) affect a provision in a charitable instrument that confers charitable
benefits, or enables charitable benefits to be conferred, wholly or in part on
persons of a particular age; or
(b) make unlawful any act done to give effect to such a
provision.
(2) In this section:
Australia includes the external Territories.
charitable benefits means benefits for purposes that are
exclusively charitable according to the law in force in any part of
Australia.
charitable instrument means a deed, will or other document,
whether made before or after the commencement of this Act, that confers
charitable benefits or enables charitable benefits to be conferred on
persons.
This Part does not affect an act or practice of a body established for
religious purposes that:
(a) conforms to the doctrines, tenets or beliefs of that religion;
or
(b) is necessary to avoid injury to the religious sensitivities of
adherents of that religion.
(1) This Part does not make it unlawful for a voluntary body to
discriminate against a person, on the ground of the person’s age, in
connection with:
(a) the admission of persons as members of the body; or
(b) the provision of benefits, facilities or services to members of the
body.
(2) In this section:
registered organisation means an organisation within the
meaning of Schedule 1B to the Workplace Relations Act
1996.
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 registered organisation; or
(b) a body established by a law of the Commonwealth, of a State or of a
Territory; or
(c) an association that provides grants, loans, credit or finance to its
members.
Superannuation and insurance
(1) Subsections (2) and (3) apply to the following:
(a) an annuity;
(b) a life insurance policy;
(c) a policy of insurance against accident or any other policy of
insurance;
(d) membership of a superannuation or provident fund;
(e) membership of a superannuation or provident scheme.
(2) This Part does not make it unlawful for a person to discriminate
against another person, on the ground of the other person’s age:
(a) in respect of the terms or conditions on which the annuity, policy or
membership is offered to, or may be obtained by, the other person; or
(b) by refusing to offer the annuity, policy or membership to the other
person;
if the condition in subsection (3) is satisfied.
(3) The condition is satisfied if:
(a) the discrimination:
(i) is based upon actuarial or statistical data on which it is reasonable
for the first-mentioned person to rely; and
(ii) is reasonable having regard to the matter of the data and other
relevant factors; or
Note: The Commission and the President can require the
disclosure of the source of the actuarial or statistical data (see
section 54).
(b) in a case where no such actuarial or statistical data is available and
cannot reasonably be obtained—the discrimination is reasonable having
regard to any other relevant factors.
Credit
(4) This Part does not make it unlawful for a person to discriminate
against another person, on the ground of the other person’s age:
(a) in respect of the terms or conditions on which credit is provided to,
or may be obtained by, the other person; or
(b) by refusing to offer credit to the other person;
if the condition in subsection (5) is satisfied.
(5) The condition is satisfied if the discrimination:
(a) is based upon actuarial or statistical data on which it is reasonable
for the first-mentioned person to rely; and
(b) is reasonable having regard to the matter of the data.
Note: The Commission and the President can require the
disclosure of the source of the actuarial or statistical data (see
section 54).
(1) This Part does not make unlawful anything done by a person in direct
compliance with:
(a) a Commonwealth Act relating to superannuation; or
(b) a regulation or any other instrument made under such an Act.
(2) This Part does not make unlawful anything done by an exempt public
sector superannuation scheme (within the meaning of the Superannuation
Industry (Supervision) Act 1993) in accordance with an Act of the
Commonwealth, a State or a Territory, or a trust deed, by or under which the
scheme is established.
Acts, regulations and instruments mentioned in
Schedule 1
(1) This Part does not make unlawful anything done by a person in direct
compliance with:
(a) an Act mentioned in Schedule 1; or
(b) a regulation or any other instrument mentioned in
Schedule 1.
Other Acts or regulations—2 year exemption period
(2) This Part does not make unlawful anything done by a person, in direct
compliance with any other Commonwealth Act or regulation, during the
period:
(a) beginning on the day on which this Act commences; and
(b) ending 2 years after that day.
(3) To avoid doubt, subsection (2) does not affect the operation of
any other provision in this Division.
State and Territory Acts, regulations and instruments
(4) This Part does not make unlawful anything done by a person in direct
compliance with:
(a) an Act of a State or Territory; or
(b) a regulation or any other instrument made under an Act of a State or
Territory.
(5) Subsection (4) does not apply in relation to an Act, regulation
or other instrument of a State or Territory if the Act, regulation or instrument
is specified in regulations made for the purposes of this subsection.
(6) To avoid doubt, section 49A of the Acts Interpretation Act
1901 does not prevent a regulation made for the purposes of
subsection (5) from specifying an Act, regulation or instrument as in force
at a particular time or as in force from time to time.
Court orders
(7) This Part does not make unlawful anything done by a person in direct
compliance with an order of a court.
Workplace relations
(8) This Part does not make unlawful anything done by a person in direct
compliance with any of the following:
(a) an order or award of a court or tribunal having power to fix minimum
wages;
(b) a certified agreement (within the meaning of the Workplace
Relations Act 1996);
(c) an Australian workplace agreement (within the meaning of the
Workplace Relations Act 1996).
This Part does not make unlawful anything done by a person in direct
compliance with a taxation law (within the meaning of the Income Tax
Assessment Act 1997).
(1) This Part does not make unlawful anything done by a person in direct
compliance with:
(a) the A New Tax System (Family Assistance) Act 1999; or
(b) the A New Tax System (Family Assistance) (Administration) Act
1999; or
(c) the Child Support (Assessment) Act 1989; or
(d) the Child Support (Registration and Collection) Act 1988;
or
(e) the Defence Service Homes Act 1918; or
(f) the Disability Services Act 1986; or
(g) the Social Security Act 1991; or
(h) the Social Security (Administration) Act 1999; or
(i) the Social Security (International Agreements) Act 1999;
or
(j) the Veterans’ Entitlements Act 1986.
(2) This Part does not make unlawful anything done by a person in direct
compliance with a regulation under an Act mentioned in paragraph (1)(a),
(b), (c), (d), (f), (g), (h) or (i).
(3) This Part does not make unlawful anything done by a person in direct
compliance with the CDEP Scheme (within the meaning of the Social Security
Act 1991).
(4) This Part does not make unlawful anything done by a person in direct
compliance with a determination in force under paragraph 88A(1)(c) of the
Veterans’ Entitlements Act 1986.
(5) This Part does not make unlawful anything done by a person in direct
compliance with the Approved Guide to the Assessment of Rates of Veterans’
Pensions (within the meaning of the Veterans’ Entitlements Act
1986).
Exempted health programs
(1) This Part does not make an exempted health program (see
subsection (6)) unlawful.
Example: A program for providing free influenza vaccines to
older people, based on evidence showing that older people are at greater risk of
complications as a result of influenza than are people of different ages, would
be covered by this subsection.
(2) This Part does not make unlawful anything done by a person in
accordance with an exempted health program.
Example: A person providing free influenza vaccines to older
people in accordance with an exempted health program would be covered by this
subsection.
Individual decisions—health or medical goods or
services
(3) This Part does not make it unlawful for a person to discriminate
against another person, on the ground of the other person’s age, by taking
the other person’s age into account in making a decision relating to
health goods or services or medical goods or services, if:
(a) taking the other person’s age into account in making the
decision is reasonably based on evidence, and professional knowledge, about the
ability of persons of the other person’s age to benefit from the goods or
services; and
(b) the decision is not in accordance with an exempted health
program.
Note: The exemption in subsection (2) covers anything
done by a person in accordance with an exempted health program.
(4) The evidence mentioned in paragraph (3)(a) is the evidence that
was reasonably available at the time the decision was made.
Administration of certain health legislation
(5) This Part does not make unlawful anything done by a person in relation
to the administration of:
(a) the Health Insurance Act 1973, or a regulation or any other
instrument made under that Act, to the extent that the thing done relates
to:
(i) the release of, or the giving of access to, information held by the
Health Insurance Commission; or
(ii) the issue of a medicare card; or
(b) the National Health Act 1953, or a regulation or any other
instrument made under that Act, to the extent that the thing done relates to the
release of, or the giving of access to, information held by the Health Insurance
Commission; or
(c) the Therapeutic Goods Act 1989, or a regulation or any
other instrument made under that Act.
Definitions
(6) In this section:
evidence includes medical, clinical and scientific
evidence.
exempted health program means a program, scheme or
arrangement that:
(a) relates to health goods or services or medical goods or services;
and
(b) is reasonably based on evidence about matters (including safety,
effectiveness, risks, benefits and health needs) that affect people of a
particular age in a different way to people of a different age.
The evidence mentioned in paragraph (b) is the evidence that was
reasonably available at the time the program, scheme or arrangement was
established.
medicare card has the meaning given by subsection 84(1) of
the National Health Act 1953.
(1) This Part does not make unlawful anything done by a person in relation
to the administration of:
(a) the Migration Act 1958; or
(b) the Immigration (Guardianship of Children) Act 1946;
or
(c) a regulation or any other instrument made under either of those
Acts.
(2) This Part does not make unlawful anything done by a person in direct
compliance with:
(a) the Australian Citizenship Act 1948; or
(b) the Immigration (Education) Act 1971.
(1) The Commission may, on application by:
(a) a person:
(i) on that person’s own behalf; or
(ii) on behalf of that person and another person or other persons;
or
(iii) on behalf of another person or other persons; or
(b) 2 or more persons:
(i) on their own behalf; or
(ii) on behalf of themselves and another person or other persons;
or
(iii) on behalf of another person or other persons;
by instrument, grant to the person or persons to whom the application
relates, as the case may be, an exemption from the operation of a provision of
Division 2 or 3, as specified in the instrument.
(2) The Commission may, on application by a person to, or in respect of,
whom an exemption from a provision of Division 2 or 3 has been granted
under subsection (1), being an application made before the expiration of
the period to which the exemption was granted, grant a further exemption from
the operation of that provision.
(3) An exemption granted under this section:
(a) may be granted subject to such terms and conditions as are specified
in the instrument; and
(b) may be expressed to apply only in such circumstances, or in relation
to such activities, as are specified in the instrument; and
(c) is to be granted for a specified period not exceeding 5
years.
An application may be made to the Administrative Appeals Tribunal for a
review of a decision made by the Commission under section 44.
(1) The Commission, not later than one month after it makes a decision
under section 44, is to cause to be published in the Gazette a
notice of the making of the decision:
(a) setting out its findings on material questions of facts; and
(b) referring to the evidence on which those findings were based;
and
(c) giving the reasons for the making of the decision; and
(d) containing a statement to the effect that, subject to the
Administrative Appeals Tribunal Act 1975, application may be made to the
Administrative Appeals Tribunal for a review of the decision to which the notice
relates by or on behalf of any person or persons whose interests are affected by
the decision.
(2) Any failure to comply with the requirements of subsection (1) in
relation to a decision does not affect the validity of the decision.
This Part does not make it unlawful for:
(a) a person who has been granted an exemption from a provision of
Division 2 or 3; or
(b) a person in the employment or under the direction or control of a
person who has been granted such an exemption;
to do an act in accordance with the provisions of the instrument by which
the exemption was granted.
Part 2.5 of Chapter 2 of the Criminal Code does not
apply to offences against this Act.
Note: Part 2.5 of Chapter 2 of the Criminal
Code sets out the general principles of corporate criminal
responsibility.
Except as expressly provided by this Part, nothing in this Act makes it
an offence to do an act that is unlawful because of a provision of
Division 2 or 3 of Part 4.
(1) A person commits an offence if:
(a) the person publishes or displays an advertisement or notice, or causes
or permits an advertisement or notice to be published or displayed;
and
(b) the advertisement or notice is published or displayed (whether or not
to the public):
(i) in a newspaper or other publication; or
(ii) by television or radio; or
(iii) by display of notices, signs, labels, show cards or goods;
or
(iv) by distribution of samples, circulars, catalogues, price lists or
other material; or
(v) by exhibition of pictures, models or films; or
(vi) in any other way; and
(c) the advertisement indicates, or could reasonably be understood as
indicating, an intention to do an act; and
(d) that act would be unlawful under Part 4.
Penalty: 10 penalty units.
Note: Complaints can be made to the Commission about conduct
that is an offence under this subsection (see the definition of
unlawful discrimination in subsection 3(1) of the Human Rights
and Equal Opportunity Commission Act 1986, and section 46P of that
Act).
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the
Criminal Code.
Victimisation—actual detriment
(1) A person (the first person) commits an offence
if:
(a) the first person engages in conduct; and
(b) the first person’s conduct causes detriment to another person
(the second person); and
(c) the first person intends that his or her conduct cause detriment to
the second person; and
(d) the detriment is caused without the consent of the second person;
and
(e) the first person engages in his or her conduct because he or she
believes that:
(i) the second person has made, or proposes to make, a complaint under the
Human Rights and Equal Opportunity Commission Act 1986; or
(ii) the second person has brought, or proposes to bring, proceedings
under the Human Rights and Equal Opportunity Commission Act 1986 against
any person; or
(iii) the second person has given, or proposes to give, any information,
or has produced, or proposes to produce, any documents to a person exercising or
performing any power or function under this Act or the Human Rights and Equal
Opportunity Commission Act 1986; or
(iv) the second person has attended, or proposes to attend, a conference
held under the Human Rights and Equal Opportunity Commission Act 1986;
or
(v) the second person has appeared, or proposes to appear, as a witness in
a proceeding under this Act or the Human Rights and Equal Opportunity
Commission Act 1986; or
(vi) the second person has reasonably asserted, or proposes to assert, any
rights of the person or the rights of any other person under this Act or the
Human Rights and Equal Opportunity Commission Act 1986; or
(vii) the second person has made an allegation that a person has done an
act that is unlawful by reason of a provision of Part 4 of this
Act.
Penalty: Imprisonment for 6 months.
Note: Complaints can be made to the Commission about conduct
that is an offence under this subsection (see the definition of
unlawful discrimination in subsection 3(1) of the Human Rights
and Equal Opportunity Commission Act 1986, and section 46P of that
Act).
Victimisation—threat of detriment
(2) A person (the first person) commits an offence
if:
(a) the first person makes to another person (the second
person) a threat to cause detriment to the second person or to a third
person; and
(b) the first person:
(i) intends the second person to fear that the threat will be carried out;
or
(ii) is reckless as to causing the second person to fear that the threat
will be carried out; and
(c) the first person makes the threat because he or she believes in a
matter mentioned in paragraph (1)(e).
Penalty: Imprisonment for 6 months.
Note: Complaints can be made to the Commission about conduct
that is an offence under this subsection (see the definition of
unlawful discrimination in subsection 3(1) of the Human Rights
and Equal Opportunity Commission Act 1986, and section 46P of that
Act).
(3) For the purposes of subsection (2), a threat may
be:
(a) express or implied; or
(b) conditional or unconditional.
(4) In a prosecution for an offence against subsection (2), it is not
necessary to prove that the person threatened actually feared that the threat
would be carried out.
(1) A person commits an offence if:
(a) the President or the Commission gives the person a notice in writing
under subsection 54(2), requiring the person to disclose the source of actuarial
or statistical data; and
(b) the person does not comply with the requirement within 28 days after
being given the notice.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) Subsection 4K(2) of the Crimes Act 1914 does not apply to
subsection (1).
(1) The following functions are conferred on the Commission:
(a) to exercise the powers conferred on it by section 44;
(b) to promote an understanding and acceptance of, and compliance with,
this Act;
(c) to undertake research and educational programs, and other programs, on
behalf of the Commonwealth for the purpose of promoting the objects of this
Act;
(d) to examine enactments, and (when requested to do so by the Minister)
proposed enactments, for the purpose of ascertaining whether the enactments or
proposed enactments are, or would be, inconsistent with or contrary to the
objects of this Act, and to report to the Minister the results of any such
examination;
(e) on its own initiative or when requested by the Minister, to report to
the Minister as to the laws that should be made by the Parliament, or action
that should be taken by the Commonwealth, on matters relating to discrimination
on the ground of age;
(f) to prepare, and to publish in the manner the Commission considers
appropriate, guidelines for avoiding discrimination on the ground of
age;
(g) where the Commission thinks it appropriate to do so, with the leave of
the court hearing the proceedings and subject to any conditions imposed by the
court, to intervene in proceedings that involve issues of discrimination on the
ground of age;
(h) to do anything incidental or conducive to the performance of any of
the preceding functions.
Note: For the provisions about inquiries into complaints of
discrimination and conciliation of those complaints: see Part IIB of the
Human Rights and Equal Opportunity Commission Act 1986.
(2) In this section:
enactment has the same meaning as in the Human Rights and
Equal Opportunity Commission Act 1986.
proposed enactment has the same meaning as in the Human
Rights and Equal Opportunity Commission Act 1986.
(1) Subsection (2) applies if a person has acted in a way that would,
apart from paragraph 37(3)(a) or subsection 37(5), be unlawful under
Part 4.
(2) The President or the Commission may give the person a notice in
writing, as prescribed, requiring the person to disclose to the President or to
the Commission, as the case may be, the source of the actuarial or statistical
data on which the act of discrimination was based.
Note: Failure to comply with the requirement is an offence
under section 52.
The Commission may, by writing under its seal, delegate all or any of the
powers conferred on it under this Act to:
(a) a member of the Commission; or
(b) a member of the staff of the Commission; or
(c) another person or body of persons.
A person who causes, instructs, induces, aids or permits another person to
do an act that is unlawful under Part 4 is, for the purposes of this Act,
taken also to have done the act.
Bodies corporate
(1) If, for the purposes of this Act, it is necessary to establish the
state of mind of a body corporate in relation to particular conduct, it is
sufficient to show:
(a) that the conduct was engaged in by a director, employee or agent of
the body corporate within the scope of his or her actual or apparent authority;
and
(b) that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director,
employee or agent of the body corporate within the scope of his or her actual or
apparent authority is taken, for the purposes of this Act, to have been engaged
in also by the body corporate unless the body corporate establishes that the
body corporate took reasonable precautions and exercised due diligence to avoid
the conduct.
Persons other than bodies corporate
(3) If, for the purposes of this Act, it is necessary to establish the
state of mind of a person other than a body corporate in relation to a
particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an employee or agent of the person
within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body
corporate by an employee or agent of the person within the scope of his or her
actual or apparent authority is taken, for the purposes of this Act, to have
been engaged in also by the first-mentioned person unless the first-mentioned
person establishes that the first-mentioned person took reasonable precautions
and exercised due diligence to avoid the conduct.
(5) If:
(a) a person other than a body corporate is convicted of an offence;
and
(b) the person would not have been convicted of the offence if
subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that
offence.
Interpretation
(6) A reference in subsection (1) or (3) to the state of mind of a
person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(7) A reference in this section to a director of a body corporate includes
a reference to a constituent member of a body corporate incorporated for a
public purpose by a law of the Commonwealth, of a State or of a
Territory.
(8) A reference in this section to engaging in conduct includes a
reference to failing or refusing to engage in conduct.
(1) The Commission, a member of the Commission or a person acting for or
on behalf of the Commission or a member of the Commission is not liable to an
action or other proceeding for damages for or in relation to an act done in good
faith:
(a) in performance or purported performance of any function conferred on
the Commission; or
(b) in exercise or purported exercise of any power conferred on the
Commission.
(2) Subsection (3) applies if a submission has been made, a document
or information has been given, or evidence has been given, to the Commission or
to a person acting for or on behalf of the Commission.
(3) A person is not liable to an action, suit or proceeding in respect of
loss, damage or injury of any kind suffered by another person by reason only
that the submission was made, the document or information was given or the
evidence was given.
(1) This Act does not confer on a person a right of action in respect of
the doing of an act that is unlawful under a provision of Part 4 unless a
provision of this Act expressly provides otherwise.
(2) For the purposes of subsection (1), a reference to an act that is
unlawful under a provision of Part 4 includes a reference to an act that is
an offence under a provision of Part 5.
(1) A person bound by this section because of office, employment or
authorisation must not, either directly or indirectly:
(a) make a record of, or divulge or communicate to any person, any
information relating to the affairs of another person acquired by the
first-mentioned person because of that person’s office or employment under
or for the purposes of this Act or because of that person being or having been
so authorised; or
(b) make use of any such information as is mentioned in
paragraph (a); or
(c) produce to any person a document relating to the affairs of another
person given for the purposes of this Act.
Penalty: Imprisonment for 2 years.
(2) A person bound by this section because of office, employment or
authorisation must not be required:
(a) to divulge or communicate to a court any information relating to the
affairs of another person acquired by the first-mentioned person because of that
person’s office or employment under or for the purposes of this Act or
because of that person being or having been so authorised; or
(b) to produce in a court a document relating to the affairs of another
person of which the first-mentioned person has custody, or to which that person
has access, because of that person’s office or employment under or for the
purposes of this Act or because of that person being or having been so
authorised;
except where it is necessary to do so for the purposes of this
Act.
(3) This section does not prohibit a person from:
(a) making a record of information that is required or permitted by an Act
to be recorded, if the record is made for the purposes of or under that Act;
or
(b) divulging or communicating information, or producing a document, to
any person in accordance with an arrangement in force under section 16 of
the Human Rights and Equal Opportunity Commission Act 1986; or
(c) divulging or communicating information, or producing a document that
is required or permitted by an Act to be divulged, communicated or produced as
the case may be, if the information is divulged or communicated, or the document
is produced, for the purposes of or under that Act.
Note: A defendant bears an evidential burden in relation to
a matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Subsection (1) does not prevent a person from making a record of,
divulging, communicating or making use of information, or producing a document,
if the person does so:
(a) in the performance of a duty under or in connection with this Act;
or
(b) in the performance or exercise of a function or power conferred on the
Commission under this Act.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
(5) Subsection (2) does not prevent a person from being required, for
the purposes of or under an Act, to divulge or communicate information, or to
produce a document, that is required or permitted by that Act to be divulged,
communicated or produced.
(6) In this section:
court includes any tribunal, authority or person having power
to require the production of documents or the answering of questions.
person bound by this section because of office,
employment or authorisation means a person who is, or has at any time
been:
(a) a member of the Commission; or
(b) a member of the staff assisting the Commission; or
(c) a person authorised to perform or exercise any function or power of
the Commission or any function or power for or on behalf of the Commission,
being a function or power conferred on the Commission under this Act.
produce includes permit access to.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
|
Laws for which an exemption is provided by subsection
39(1) |
|
|---|---|
|
Item |
Law |
|
1 |
Aboriginal and Torres Strait Islanders (Queensland Reserves and
Communities Self-management) Act 1978 |
|
2 |
Aboriginal Councils and Associations Act 1976 |
|
3 |
Aboriginal Land Grant (Jervis Bay Territory) Act 1986 |
|
4 |
Aboriginal Land (Lake Condah and Framlingham Forest) Act
1987 |
|
5 |
Aboriginal Land Rights (Northern Territory) Act 1976 |
|
6 |
Administrative Appeals Tribunal Act 1975 |
|
7 |
Air Force Act 1923 |
|
8 |
Airports (Control of On-Airport Activities) Regulations
1997 |
|
9 |
Auditor-General Act 1997 |
|
10 |
Australian Hearing Services Act 1991 |
|
11 |
Australian Hearing Services Regulations 1992 |
|
12 |
Australian Institute of Aboriginal and Torres Strait Islander Studies
Act 1989 |
|
13 |
Australian Law Reform Commission Act 1996 |
|
14 |
Australian Sports Drug Agency Regulations 1999 |
|
15 |
Australian War Memorial Regulations 1983 |
|
16 |
Classification (Publications, Films and Computer Games) Act
1995 |
|
17 |
Commonwealth Electoral Act 1918 |
|
18 |
Corporations Act 2001 |
|
19 |
Crimes Act 1914 |
|
20 |
Criminal Code Act 1995 |
|
21 |
Defence Act 1903 |
|
22 |
Defence Force Discipline Appeals Act 1955 |
|
23 |
Defence Instructions (General), Defence Instructions
(Navy), Defence Instructions (Army) and Defence Instructions (Air
Force) (within the meaning of section 9A of the Defence Act
1903) |
|
24 |
Defence (Personnel) Regulations 2002 |
|
25 |
Family Law Act 1975 |
|
26 |
Federal Magistrates Act 1999 |
|
27 |
Health Insurance Act 1973 |
|
28 |
Hearing Services Administration Act 1997 |
|
29 |
Inspector-General of Intelligence and Security Act 1986 |
|
30 |
Marriage Act 1961 |
|
31 |
Motor Vehicle Standards Regulations 1989 |
|
32 |
National Health Act 1953 |
|
33 |
Native Title Act 1993 |
|
34 |
Naval Defence Act 1910 |
|
35 |
Office of National Assessments Act 1977 |
|
36 |
Ombudsman Act 1976 |
|
37 |
Papua New Guinea (Members of the Forces Benefits)
Regulations |
|
38 |
Passports Regulations 1939 |
|
39 |
Public Service Act 1999 |
|
40 |
Radiocommunications Act 1992 |
|
41 |
Referendum (Machinery Provisions) Act 1984 |
|
42 |
Resource Assessment Commission Act 1989 |
|
43 |
Safety, Rehabilitation and Compensation Act 1988 |
|
44 |
Seafarers Rehabilitation and Compensation Act 1992 |
|
45 |
Therapeutic Goods Act 1989 |
|
46 |
Therapeutic Goods (Medical Devices) Regulations 2002 |
|
47 |
Therapeutic Goods Regulations 1990 |
|
48 |
Workplace Relations Act 1996 |