Anti-Discrimination Act 1998

Anti-Discrimination Act 1998

This Act may be cited as the Anti-Discrimination Act 1998.

This Act commences on a day to be proclaimed.

In this Act –

accommodation includes residential and business accommodation;

adult means a person who has attained the age of 18 years;

authorised person means a person authorised by the Commissioner;

award means an award made under the Industrial Relations Act 1984;

child means a person who has not attained the age of 18 years and includes a natural child, adopted child, stepchild, foster child or ex-nuptial child;

club means an incorporated or unincorporated association of at least 30 persons associated together for a lawful purpose that provides and maintains its facilities, wholly or partly, from the funds of the association;

commission means a body authorised by any Act to conduct inquiries;

Commissioner means the Anti-Discrimination Commissioner appointed under section 5;

competitive sporting activity means any sporting activity that has a competitive element excluding – coaching and umpiring; or administration of any sporting activity;

complaint means a complaint made in relation to discrimination or prohibited conduct;

conduct of a sexual nature includes – making an oral or written statement of a sexual nature to a person or in the presence of a person; and displaying matter of a sexual nature that relates to a prescribed attribute;

detriment includes humiliation or denigration;

disability means any of the following that presently exists, previously existed but no longer exists, may exist in the future, whether or not arising from an illness, disease or injury or from a condition subsisting at birth:a total or partial loss of the person's bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing or capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of a person's body; disorder, malformation, malfunction or disfigurement that results in the person learning differently from a person without the disorder, malformation, malfunction or disfigurement; a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour; reliance on a guide-dog, wheelchair or other remedial or therapeutic device;

discrimination means conduct referred to in sections 14 and 15;

educational institution means a school, college or university;

employment includes – employment or occupation in any capacity, with or without remuneration; and membership of partnerships; and registration or recognition by, or membership of, professional and trade organisations; and registration or recognition by qualifying bodies; and engagement of commission agents; and registration or placement by employment agencies; and engagement under a contract for services; and employment by any person; and registration or enrolment by vocational training bodies;

enterprise agreement means an enterprise agreement made under the Industrial Relations Act 1984;

Enterprise Commissioner means the person appointed as such under the Industrial Relations Act 1984;

family responsibilities means responsibilities to care for or support – a child who is wholly or substantially dependent; or any other immediate family member who is in need of that care or support;

gender expression means any personal physical expression, appearance (whether by way of medical intervention or not), speech, mannerisms, behavioural patterns, names and personal references that manifest or express gender or gender identity;

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual including gender expression (whether by way of medical intervention or not), with or without regard to the individual's designated sex at birth, and may include being transgender or transsexual;

immediate family member, in relation to a person, includes – a spouse or partner of the person; and an adult offspring, a child, parent, grandparent, grandchild or sibling of the person or of a spouse or partner of the person;

industrial activity means – being or not being a member of, or proposing or refusing to join, an industrial organisation; or participating in, not participating in, or proposing or refusing to participate in, a lawful activity organised or promoted by an industrial organisation;

industrial agreement means an industrial agreement made under the Industrial Relations Act 1984;

Industrial Commission means the Tasmanian Industrial Commission constituted under the Industrial Relations Act 1984;

industrial organisation means – an organisation of employees; or a trade union; or an organisation of employers; or any other organisation established for the purposes of persons who carry on a particular industry, trade, profession or employment;

inquiry means an inquiry held under Division 4 of Part 6;

irrelevant criminal record, in relation to a person, means a record relating to arrest, interrogation or criminal proceedings where – further action was not taken in relation to the arrest, interrogation or charge of the person; or a charge has not been laid; or the charge was dismissed; or the prosecution was withdrawn; or the person was discharged, whether or not on conviction; or the person was found not guilty; or the person's conviction was quashed or set aside; or the person was granted a pardon; or the circumstances relating to the offence for which the person was convicted are not directly relevant to the situation in which the discrimination arises; or the person's charge or conviction was expunged under the Expungement of Historical Offences Act 2017;

judge includes a judge of a court in any jurisdiction;

marital status means the status of being – single; or married; or married but living separately and apart from one's spouse; or married to a particular person; or divorced; or widowed;

organisation includes a council, a Government department within the meaning of the State Service Act 2000 or a State authority;

parent includes a step-parent, surrogate parent, adoptive parent, guardian, within the meaning of the Children, Young Persons and Their Families Act 1997 and foster parent;

parental status means the status of being a parent or childless;

partner means a partner within the meaning of the Relationships Act 2003;

person includes an organisation;

political activity means engaging in, not engaging in, or refusing to engage in, political activity;

political belief or affiliation means holding or not holding a political belief or view;

pregnancy includes child-bearing capacity;

prescribed attribute means an attribute specified in section 16;

priest includes – a minister of any religion; and a member of a religious order; and any person whose office it is to perform religious rites;

prohibited conduct means any conduct referred to in Division 2 of Part 4;

public act includes – any form of communication to the public; or any conduct observable by the public; or the distribution or dissemination of any matter to the public;

publish includes to authorise publication;

race includes – colour; and nationality; and descent; and ethnic, ethno-religious or national origin; and status of being, or having been, an immigrant;

relationship status means the status of being or having been in a personal relationship, within the meaning of the Relationships Act 2003;

religious activity means engaging in, not engaging in, or refusing to engage in, religious activity;

religious belief or affiliation means holding or not holding a religious belief or view;

representative complaint means a complaint referred to in section 82;

residential accommodation includes accommodation in a house, flat, hotel, motel, boarding house or caravan;

respondent means a person against whom a complaint is made;

schools system means a number of educational institutions with a common governing or administrative body;

services includes services – relating to access to, and the use of, any place that members of the public are permitted to enter; or relating to banking, insurance, superannuation or the provision of grants, loans, credit or finance; or relating to entertainment, refreshment or recreation; or relating to transportation and travel; or relating to any profession, trade or business; or provided by a State authority or a council; or relating to selling, buying, leasing, assigning or disposing of an interest in land;

sex characteristics, in relation to a person, means the person's physical features relating to sex, including – the person's genitalia and other sexual and reproductive parts of the person's anatomy; and the person's chromosomes, hormones, and secondary physical features that emerge as a result of puberty;

sexual activity includes not engaging in, or refusing to engage in, sexual activity;

sexual harassment means conduct referred to in section 17(3);

sexual orientation includes – heterosexuality; and homosexuality; and bisexuality;

special need includes a need based on health or financial status;

spouse includes a former spouse;

State authority means any body or authority, whether incorporated or not, that is established or constituted under a written law or under the Royal prerogative, which is a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another State authority;

State program means a program conducted by or on behalf of the State;

surrogate child, in relation to another person, means a person – who is a child of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012, or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and who has not ceased to be a child of the other person under that Act or law;

surrogate parent, in relation to another person, means a person – who is a parent of the other person by virtue of the operation of section 26(1) of the Surrogacy Act 2012, or a law, of another State or a Territory or a foreign country, that corresponds to that Act; and who has not ceased to be a parent of the other person under that Act or law;

trade union means – an organisation of employees that is a registered organisation; or a trade union within the meaning of – the Industrial Relations Act 1984; or the Workplace Relations Act 1996 of the Commonwealth; or any other similar body;

transgender means a person who – does not identify, to whatever degree, with the gender identity assigned them at birth; and at times, or permanently, has a gender identity which might be perceived as atypical for his or her birth gender; and identifies themself as a member of another gender, and lives or seeks to live as a member of that gender;

transsexual means a person who, having been legally assigned a specific gender at birth – assumes the bodily characteristics of another gender by medical or other means; or identifies himself or herself as a member of another gender; or lives or seeks to live as a member of another gender;

Tribunal means the Tasmanian Civil and Administrative Tribunal.

This Act binds the Crown in the right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

The Minister may appoint a person to be the Anti-Discrimination Commissioner for a period not exceeding 5 years and on any terms and conditions the Minister determines.

A person appointed as the Commissioner may hold that office in conjunction with State Service employment.

A person appointed as the Commissioner may vacate, or be removed from, the office of Anti-Discrimination Commissioner in accordance with Schedule 1.

The Minister may appoint a person to act as Commissioner for a period not exceeding 12 months if there is no Commissioner or the Commissioner is unable to perform the duties of the office of Commissioner because of illness or absence.

The Commissioner has the following functions:

to advise and make recommendations to the Minister on matters relating to discrimination and prohibited conduct;

to promote the recognition and approval of acceptable attitudes, acts and practices relating to discrimination and prohibited conduct;

to consult and inquire into discrimination and prohibited conduct and the effects of discrimination and prohibited conduct;

to disseminate information about discrimination and prohibited conduct and the effects of discrimination and prohibited conduct;

to undertake research and educational programs to promote attitudes, acts and practices against discrimination and prohibited conduct;

to prepare and publish guidelines for the avoidance of attitudes, acts and practices relating to discrimination and prohibited conduct;

to examine any legislation and report to the Minister as to whether it is discriminatory or not;

to investigate and seek to resolve complaints;

to collect and analyse data relating to complaints;

any other prescribed functions.

The Commissioner has the following powers:

to determine the procedures to be followed in any investigation or complaint resolution;

to intervene, with the leave of a court or tribunal, in proceedings before the court or tribunal that involve issues relating to acts of discrimination or prohibited conduct;

to grant an exemption from the application of this Act in respect of any acts of discrimination or prohibited conduct;

to do anything necessary or convenient to perform the functions of the Commissioner.

The Commissioner, in writing, may delegate any of the functions or powers of the Commissioner other than this power of delegation.

The Minister may make an arrangement with a Minister of the Commonwealth for – the performance or exercise on a joint basis of any function or power of the Commissioner; or the performance or exercise by the Commonwealth or by an instrumentality of the Commonwealth of any function or power of the Commissioner.

An arrangement may contain any incidental or supplementary provision that the Minister and the Minister of the Commonwealth with whom the arrangement is made may think necessary.

An act done under the arrangement has the same effect as if it were an act of the Commissioner.

The Minister may arrange with the Minister of the Commonwealth with whom an arrangement is in force under this section to vary or revoke the arrangement.

The Minister is to publish a notice of any arrangement, variation or revocation under this section in the Gazette.

The Commissioner is to submit a report to the Minister by 30 September in each year on the operation of this Act for the 12 months to 30 June immediately preceding.

The Minister, in writing, may direct the Commissioner to report on specified matters in the annual report.

Any direction given by the Minister is to be included in the annual report.

The Minister is to arrange for the annual report to be tabled in each House of Parliament within 14 sitting days of its receipt.

The Minister, in writing, may at any time direct the Commissioner to provide a report on any aspect of the operation of this Act.

If the Minister so determines, the report is to be included in the next annual report.