Anti-Discrimination Act 1977

This Act may be cited as the Anti-Discrimination Act 1977.

This section and section 1 shall commence on the date of assent to this Act.

Except as provided in subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.

In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

accommodation includes residential or business accommodation.

associate of a person means—

any person with whom the person associates, whether socially or in business or commerce, or otherwise, and

any person who is wholly or mainly dependent on, or a member of the household of, the person.

Board means the Anti-Discrimination Board constituted under this Act.

commission agent means an agent who is remunerated by commission.

contract worker means an employee who, under a contract of employment performs work for an employer who has undertaken to perform that work for another person.

corporation has the same meaning as in the Corporations Act 2001 of the Commonwealth.

council means a council, a county council or a joint organisation within the meaning of the Local Government Act 1993.

disability means—

total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

the presence in a person’s body of organisms causing or capable of causing disease or illness, or

the malfunction, malformation or disfigurement of a part of a person’s body, or

a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

educational authority means a person or body administering a school, college, university or other institution at which education or training is provided.

employment includes work under a contract for services.

employment agency means a person who, for profit or not, provides services for the purpose of finding work or employment for others or for supplying employers with workers or employees.

functions includes powers, authorities and duties.

head of a Public Service agency has the same meaning as in the Government Sector Employment Act 2013.

homosexual means male or female homosexual.

industrial organisation means an industrial organisation within the meaning of the Industrial Relations Act 1996 or an organisation registered under the Industrial Relations Act 1988 of the Commonwealth.

marital or domestic status means the status or condition of being—

single, or

married, or

married but living separately and apart from one’s spouse, or

divorced, or

widowed, or

in a de facto relationship.

near relative, in relation to a person, means the spouse, de facto partner, parent, child, grandparent, grandchild, brother or sister of the person.

President means the President of the Board.

principal means—

in relation to a commission agent, a person for whom work is done by that commission agent, or

in relation to a contract worker, a person for whom a contract worker performs work otherwise than under a contract of employment.

private educational authority means a person or body administering a school, college, university or other institution at which education or training is provided, not being—

a school, college, university or other institution established under the Education Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or

an agricultural college administered by the Minister for Agriculture.

Public Service agency has the same meaning as in the Government Sector Employment Act 2013.

race includes colour, nationality, descent and ethnic, ethno-religious or national origin.

recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.

registered club has the same meaning as in the Registered Clubs Act 1976.

regulation means a regulation made under this Act.

relative of a person means any person to whom the person is related by blood, marriage, affinity or adoption, or the de facto partner of the person.

services includes—

services relating to banking, insurance and the provision of grants, loans, credit or finance,

services relating to entertainment, recreation or refreshment,

services relating to transport or travel,

services of any profession or trade,

services provided by a council or public authority,

services consisting of access to, and the use of any facilities in, 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.

Tribunal means the Civil and Administrative Tribunal.

vehicle includes a ship, an aircraft and a hovercraft.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A reference in this Act to the exercise of a function includes, where that function is a duty, a reference to the performance of that duty.

For the purposes of this Act, the fact that a race may comprise two or more distinct races does not prevent it from being a race.

A reference in this Act to the conferring, renewing or extending of an authorisation or a qualification, in relation to an authority or a body which is empowered to confer, renew or extend an authorisation or a 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, includes a reference to the conferring, renewing, extending, granting, awarding, approving, issuing or accepting of a recognition, registration, enrolment, approval or certification by such an authority or such a body or to the admission of a person to membership of such an authority or such a body.

Notes included in this Act do not form part of this Act.

(Repealed)

If—

an act is done for 2 or more reasons, and

one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

A reference in this Act to an employer—

in relation to employment in a Public Service agency, is a reference to the head of the agency, and

in relation to employment in the NSW Police Force, is a reference to the Commissioner of Police, and

in relation to employment in the Teaching Service, is a reference to the Secretary of the Department of Education.

Any thing determined or done with respect to any matter concerning any such employment by a person who is employed in any Public Service agency, the NSW Police Force or the Teaching Service and who is authorised to determine and do things in that respect is taken to have been determined or done by the head of the agency, the Commissioner of Police or the Secretary of the Department of Education, respectively.

Subsection (2) includes anything determined or done with respect to—

any offer of employment, or

the terms and conditions on which employment is offered, or

the opportunity afforded for promotion, transfer, training or other benefits associated with employment, or

dismissal from employment.

This Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator—

on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

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

in the arrangements the employer makes for the purpose of determining who should be offered employment,

in determining who should be offered employment, or

in the terms on which the employer offers employment.

It is unlawful for an employer to discriminate against an employee on the ground of race—

in the terms or conditions of employment which the employer affords the employee,

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

by dismissing the employee or subjecting the employee to any other detriment.

Subsections (1) and (2) do not apply to employment for the purposes of a private household.

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

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

in determining who should be engaged as a commission agent, or

in the terms on which the principal engages the person as a commission agent.

It is unlawful for a principal to discriminate against a commission agent on the ground of race—

in the terms or conditions which the principal affords him or her as a commission agent,

by denying him or her access, or limiting his or her access, to opportunities for promotion, transfer or training, or to any other benefits associated with his or her position as a commission agent, or

by terminating his or her engagement or subjecting him or her to any other detriment.

It is unlawful for a principal to discriminate against a contract worker on the ground of race—

in the terms on which the principal allows him or her to work,

by not allowing him or her to work or continue to work,

by denying him or her access, or limiting his or her access, to any benefit associated with the work in respect of which the contract with his or her employer is made, or

by subjecting him or her to any other detriment.