Anti-Discrimination Act 1991


Queensland Crest
Anti-Discrimination Act 1991
Queensland Anti-Discrimination Act 1991 Current as at 29 August 2013
Information about this reprint This reprint shows the legislation current as at the date on the cover and is authorised by the Parliamentary Counsel. A new reprint of the legislation will be prepared by the Office of the Queensland Parliamentary Counsel when any change to the legislation takes effect. This change may be because a provision of the original legislation, or an amendment to it, commences or because a particular provision of the legislation expires or is repealed. When a new reprint is prepared, this reprint will become a historical reprint. Also, if it is necessary to replace this reprint before a new reprint is prepared, for example, to include amendments with a retrospective commencement, an appropriate note would be included on the cover of the replacement reprint and on the copy of this reprint at www.legislation.qld.gov.au. The endnotes to this reprint contain detailed information about the legislation and reprint. For example— The table of reprints endnote lists any previous reprints and, for this reprint, gives details of any discretionary editorial powers under the Reprints Act 1992 used by the Office of the Queensland Parliamentary Counsel in preparing it. The list of legislation endnote gives historical information about the original legislation and the legislation which amended it. It also gives details of uncommenced amendments to this legislation. For information about possible amendments to the legislation by Bills introduced in Parliament, see the Queensland Legislation Current Annotations at www.legislation.qld.gov.au/Leg_Info/ information.htm. The list of annotations endnote gives historical information at section level. All Queensland reprints are dated and authorised by the Parliamentary Counsel. The previous numbering system and distinctions between printed and electronic reprints are not continued.
Queensland Anti-Discrimination Act 1991 Contents Chapter 1 1 3 3A 4 4A 5 Chapter 2 Part 1 6 Part 2 7 8 Part 3 9 10 11 Part 4 Division 1 12 Division 2 Subdivision 1 13 14 15 15A 16 Page Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Act binds Crown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Application of Act to ships connected with Queensland. . . . . . . . 15 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Meaning of public act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Meaning of unjustifiable hardship . . . . . . . . . . . . . . . . . . . . . . . . . 16 Discrimination prohibited by this Act (complaint) Act’s anti-discrimination purpose Act’s anti-discrimination purpose and how it is to be achieved. . . 17 Prohibited grounds of discrimination Discrimination on the basis of certain attributes prohibited . . . . . 18 Meaning of discrimination on the basis of an attribute . . . . . . . . . 19 Prohibited types of discrimination Discrimination of certain types prohibited . . . . . . . . . . . . . . . . . . 19 Meaning of direct discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . 19 Meaning of indirect discrimination . . . . . . . . . . . . . . . . . . . . . . . . 20 Areas of activity in which discrimination is prohibited Part’s structure Explanatory provision (structure) . . . . . . . . . . . . . . . . . . . . . . . . . 22 Work and work-related areas Prohibitions in work and work-related areas Explanatory provision (prohibitions) . . . . . . . . . . . . . . . . . . . . . . . 22 Discrimination in the pre-work area . . . . . . . . . . . . . . . . . . . . . . . 22 Discrimination in work area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Discrimination by principals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Discrimination by proposed partnership in pre-partnership area . 24
Anti-Discrimination Act 1991 Contents 17 18 19 20 21 22 23 Subdivision 2 24 25 26 27 28 30 31 32 33 34 35 36 Division 3 Subdivision 1 37 38 39 Subdivision 2 40 41 43 44 Division 4 Subdivision 1 45 Discrimination by existing partnership in pre-partnership area . . Discrimination by existing partnership in partnership area. . . . . . Discrimination by industrial, professional, trade or business organisation in pre-membership area. . . . . . . . . . . . . . . . . . . . . . Discrimination by industrial, professional, trade or business organisation in membership area . . . . . . . . . . . . . . . . . . . . . . . . . Discrimination by qualifying body in pre-qualification area. . . . . . Discrimination by qualifying body in qualification area . . . . . . . . . Discrimination in employment agency area . . . . . . . . . . . . . . . . . Exemptions for discrimination in work and work-related areas Explanatory provision (exemptions) . . . . . . . . . . . . . . . . . . . . . . . Genuine occupational requirements. . . . . . . . . . . . . . . . . . . . . . . Residential domestic services . . . . . . . . . . . . . . . . . . . . . . . . . . . Residential childcare services . . . . . . . . . . . . . . . . . . . . . . . . . . . Work with children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Single sex accommodation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Workers are to be married couple . . . . . . . . . . . . . . . . . . . . . . . . Retiring age for partners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Youth wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special terms if job capacity is restricted by impairment . . . . . . . Special services or facilities required . . . . . . . . . . . . . . . . . . . . . . Circumstances of impairment. . . . . . . . . . . . . . . . . . . . . . . . . . . . Education area Prohibitions in education area Explanatory provision (prohibitions) . . . . . . . . . . . . . . . . . . . . . . . Discrimination by educational authority in prospective student area .......................................... Discrimination by educational authority in student area . . . . . . . . Exemptions for discrimination in education area Explanatory provision (exemptions) . . . . . . . . . . . . . . . . . . . . . . . Single sex, religion, etc. educational institution . . . . . . . . . . . . . . Age-based admission scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . Special services or facilities required . . . . . . . . . . . . . . . . . . . . . . Goods and services area Prohibition in goods and services area Explanatory provision (prohibition) . . . . . . . . . . . . . . . . . . . . . . . . Page 2 24 25 25 25 26 26 27 27 27 29 30 30 31 32 32 33 33 33 34 34 34 35 35 35 35 36 36
Anti-Discrimination Act 1991 Contents 45A 46 Subdivision 2 47 48 49 50 51 Division 5 Subdivision 1 52 53 54 55 56 57 Subdivision 2 58 59 60 61 62 63 64 65 Division 6 Subdivision 1 66 67 68 69 70 Non-application of s 46 to provision of assisted reproductive technology services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discrimination in goods and services area. . . . . . . . . . . . . . . . . . Exemptions for discrimination in goods and services area Explanatory provision (exemptions) . . . . . . . . . . . . . . . . . . . . . . . Sites of cultural or religious significance . . . . . . . . . . . . . . . . . . . Age-based benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Children to be accompanied by an adult . . . . . . . . . . . . . . . . . . . Special services or facilities required . . . . . . . . . . . . . . . . . . . . . . Superannuation area Prohibitions in superannuation area Explanatory provision (prohibitions) . . . . . . . . . . . . . . . . . . . . . . . Discrimination in superannuation area (goods and services). . . . Discrimination in superannuation area (pre-work) . . . . . . . . . . . . Discrimination in superannuation area (work) . . . . . . . . . . . . . . . Discrimination in superannuation area (pre-partnership) . . . . . . . Discrimination in superannuation area (partnership) . . . . . . . . . . Exemptions for discrimination in superannuation area Explanatory provision (exemptions) . . . . . . . . . . . . . . . . . . . . . . . Commonwealth exemption (sex or relationship status) . . . . . . . . Retention of existing superannuation fund conditions (age or impairment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . New superannuation fund conditions—actuarial or statistical data (age or impairment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . New superannuation fund conditions—other data (age or impairment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . New superannuation fund conditions—no data (age or impairment) ..................................... Application of Commonwealth occupational superannuation standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compliance etc. with Commonwealth legislation . . . . . . . . . . . . . Insurance area Prohibitions in insurance area Explanatory provision (prohibitions) . . . . . . . . . . . . . . . . . . . . . . . Discrimination in insurance area (goods and services) . . . . . . . . Discrimination in insurance area (pre-work). . . . . . . . . . . . . . . . . Discrimination in insurance area (work) . . . . . . . . . . . . . . . . . . . . Discrimination in insurance area (pre-partnership) . . . . . . . . . . . 36 37 38 38 38 38 39 39 39 40 40 40 40 41 41 41 42 42 43 43 44 44 44 44 45 45 Page 3
Anti-Discrimination Act 1991 Contents 71 Subdivision 2 72 73 74 75 Division 7 Subdivision 1 76 77 Subdivision 2 78 79 80 Division 8 Subdivision 1 81 82 83 84 85 Subdivision 2 86 87 88 89 90 91 92 Division 9 Subdivision 1 93 94 95 Discrimination in insurance area (partnership). . . . . . . . . . . . . . . Exemptions for discrimination in insurance area Explanatory provision (exemptions) . . . . . . . . . . . . . . . . . . . . . . . Commonwealth exemption (sex) . . . . . . . . . . . . . . . . . . . . . . . . . Actuarial or statistical data (age or impairment) . . . . . . . . . . . . . . No actuarial or statistical data (age or impairment) . . . . . . . . . . . Disposition of land area Prohibition in disposition of land area Explanatory provision (prohibition) . . . . . . . . . . . . . . . . . . . . . . . . Discrimination in disposition of land area . . . . . . . . . . . . . . . . . . . Exemptions for discrimination in disposition of land area Explanatory provision (exemptions) . . . . . . . . . . . . . . . . . . . . . . . Disposition by will or gift . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sites of cultural or religious significance . . . . . . . . . . . . . . . . . . . Accommodation area Prohibitions in accommodation area Explanatory provision (prohibitions) . . . . . . . . . . . . . . . . . . . . . . . Discrimination in pre-accommodation area . . . . . . . . . . . . . . . . . Discrimination in accommodation area . . . . . . . . . . . . . . . . . . . . Discrimination by refusing to allow reasonable alterations. . . . . . Discrimination by refusing to allow guide, hearing or assistance dog . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exemptions for discrimination in accommodation area Explanatory provision (exemptions) . . . . . . . . . . . . . . . . . . . . . . . Shared accommodation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accommodation for workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accommodation for students . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accommodation with religious purposes . . . . . . . . . . . . . . . . . . . Accommodation with charitable purposes . . . . . . . . . . . . . . . . . . Special services or facilities required . . . . . . . . . . . . . . . . . . . . . . Club membership and affairs area Prohibitions in club membership and affairs area Explanatory provision (prohibitions) . . . . . . . . . . . . . . . . . . . . . . . Discrimination by club in prospective membership area . . . . . . . Discrimination by club in membership and affairs area . . . . . . . . 45 46 46 46 46 47 47 47 47 48 48 48 49 49 49 50 50 50 51 51 52 52 52 53 53 Page 4
Anti-Discrimination Act 1991 Contents Subdivision 2 96 97 98 99 100 Division 10 101 Division 11 102 Part 5 103 104 105 106 106A 106B 106C 107 108 109 110 111 112 113 113A Part 6 114 115 116 Exemptions for discrimination in club membership and affairs area Explanatory provision (exemptions) . . . . . . . . . . . . . . . . . . . . . . . Club established for minority cultures and disadvantaged people Reasonable sex discrimination permitted. . . . . . . . . . . . . . . . . . . Reasonable risk of injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special services or facilities required . . . . . . . . . . . . . . . . . . . . . . Administration of State laws and programs area Discrimination in administration of State laws and programs area ..................................... Local government area Discrimination by local government member . . . . . . . . . . . . . . . . General exemptions for discrimination Explanatory provision (exemptions) . . . . . . . . . . . . . . . . . . . . . . . Welfare measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Equal opportunity measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . Acts done in compliance with legislation etc. . . . . . . . . . . . . . . . . Compulsory retirement age under legislation etc. . . . . . . . . . . . . Citizenship or visa requirements imposed under State government policies etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accommodation for use in connection with work as sex worker. . Public health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Workplace health and safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . Religious bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Charities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sport. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal incapacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeal from tribunal decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discrimination by worker, agent, member etc. also prohibited Discrimination by worker or agent . . . . . . . . . . . . . . . . . . . . . . . . Discrimination by member of industrial, professional, trade or business organisation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discrimination by club’s committee of management etc. . . . . . . . 54 54 54 55 55 55 56 56 56 57 57 58 59 60 60 61 61 61 62 62 63 64 65 65 65 Page 5
Anti-Discrimination Act 1991 Contents Chapter 3 Part 1 117 Part 2 118 119 120 Chapter 4 Part 1 121 Part 2 122 123 Part 3 124 Part 4 124A Chapter 5 Part 1 125 Part 3 127 128 Part 4 129 130 131 Chapter 5A 131A Sexual harassment prohibited by this Act (complaint) Act’s freedom from sexual harassment purpose Act’s freedom from sexual harassment purpose and how it is to be achieved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prohibition of sexual harassment Sexual harassment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of sexual harassment. . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of relevant circumstances . . . . . . . . . . . . . . . . . . . . . . . Associated objectionable conduct (complaint) Act’s freedom from associated objectionable conduct purpose Act’s freedom from associated objectionable conduct purpose and how it is to be achieved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requesting and encouraging contravention of the Act Request or encouragement of contravention . . . . . . . . . . . . . . . . Liability for contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlawful requests for information Unnecessary information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Racial and religious vilification Vilification on grounds of race, religion, sexuality or gender identity unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Associated highly objectionable conduct (complaint and penalty) Act’s freedom from associated highly objectionable conduct purpose Act’s freedom from associated highly objectionable conduct purpose and how it is to be achieved . . . . . . . . . . . . . . . . . . . . . . Discriminatory advertising Discriminatory advertisements . . . . . . . . . . . . . . . . . . . . . . . . . . . Inducement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Victimisation Victimisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of victimisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Victimisation continues even if proceedings etc. do not . . . . . . . . Serious racial and religious vilification Offence of serious racial, religious, sexuality or gender identity vilification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 66 66 68 68 69 69 69 70 71 72 73 73 73 74 75 Page 6
Anti-Discrimination Act 1991 Contents Chapter 6 132 133 Chapter 7 Part 1 Division 1 Subdivision 1 134 135 136 137 138 139 140 141 142 143 144 145 Subdivision 2 146 147 148 149 150 151 152 Subdivision 3 153 154 Division 2 154A Liability for contraventions of workers and agents (complaint) Act’s vicarious liability purpose and how it is to be achieved . . . . Vicarious liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement What the Anti-Discrimination Commission may do The complaint process All complaints Who may complain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint may allege more than 1 contravention . . . . . . . . . . . . Making a complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unfair agreements not to complain are not binding . . . . . . . . . . . Time limit on making complaints . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner must reject frivolous, trivial etc. complaints . . . . . Commissioner may reject or stay complaints dealt with elsewhere ..................................... Time limit on acceptance or rejection of complaints. . . . . . . . . . . Reasons for rejected complaints . . . . . . . . . . . . . . . . . . . . . . . . . Respondent is to be notified of accepted complaint. . . . . . . . . . . Applications for orders protecting complainant’s interests (before reference to tribunal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Anonymity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Representative complaints Representative complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criteria for determining whether prima facie representative complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment resulting in representative complaint . . . . . . . . . . . . Amendment resulting in non-representative complaint . . . . . . . . Directions about conduct of representative complaint . . . . . . . . . Representative complainant must choose . . . . . . . . . . . . . . . . . . Non-representative complaint not precluded by representative complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaints by dismissed workers Dismissed worker lodges complaint first . . . . . . . . . . . . . . . . . . . Dismissed worker applies for industrial relief first. . . . . . . . . . . . . The investigation process Investigation of complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 76 77 78 78 79 79 79 79 80 80 80 82 83 84 84 85 85 85 85 86 86 86 87 Page 7
Anti-Discrimination Act 1991 Contents 155 156 157 Division 3 158 159 160 161 162 163 164 164AA Division 4 164A 165 166 167 Division 5 168 168A 169 170 171 Division 6 172 173 174 Part 2 Division 1A 174A Division 1 Subdivision 1 175 176 177 Requirement to initiate investigation. . . . . . . . . . . . . . . . . . . . . . . Commissioner may obtain information and documents . . . . . . . . Commissioner may obtain actuarial, statistical or other data . . . . The conciliation process Conciliation of complaints. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attendance at conciliation conference . . . . . . . . . . . . . . . . . . . . . Party fails to attend conference . . . . . . . . . . . . . . . . . . . . . . . . . . Conference to be held in private. . . . . . . . . . . . . . . . . . . . . . . . . . Interpreter may be used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Representative may be used with permission . . . . . . . . . . . . . . . Resolution by conciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Confidentiality of conciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unconciliated complaints Right of complainant to seek referral to tribunal after conciliation conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complaints which are not resolved by conciliation . . . . . . . . . . . . Complainant may obtain referral of unconciliated complaint . . . . Complainant or respondent may seek referral after 6 months . . . Lapsed or withdrawn complaints or authorisation Frivolous etc. complaint lapses . . . . . . . . . . . . . . . . . . . . . . . . . . Complaint may lapse if dealt with elsewhere . . . . . . . . . . . . . . . . Complaint may lapse if complainant loses interest. . . . . . . . . . . . Complainant may withdraw complaint . . . . . . . . . . . . . . . . . . . . . Commissioner may withdraw authorisation . . . . . . . . . . . . . . . . . Miscellaneous Commissioner may extend time limits . . . . . . . . . . . . . . . . . . . . . Authentication of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . Judicial notice of commissioner’s signature . . . . . . . . . . . . . . . . . What the tribunal may do Tribunal’s functions Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The pre-hearing process All complaints Time limit on referred complaints . . . . . . . . . . . . . . . . . . . . . . . . . Constitution of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tribunal may join a person as a party. . . . . . . . . . . . . . . . . . . . . . 87 88 89 90 90 90 90 91 91 91 91 91 92 92 93 94 95 96 97 98 99 99 99 99 100 100 100 Page 8
Anti-Discrimination Act 1991 Contents 178 185 186 189 191 193 Subdivision 2 194 195 196 197 198 199 200 Division 2 204 205 206 207 208 Division 3 209 210 Part 4 Division 1 219 Division 2 220 Division 3 221 222 223 Division 5 226 226A Complaints may be amended. . . . . . . . . . . . . . . . . . . . . . . . . . . . Solicitor or counsel assisting the tribunal . . . . . . . . . . . . . . . . . . . Officer assisting the tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Resolution before tribunal order . . . . . . . . . . . . . . . . . . . . . . . . . . Anonymity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complainant may withdraw complaint . . . . . . . . . . . . . . . . . . . . . Representative complaints Representative complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criteria for determining whether representative complaint . . . . . . Amendment resulting in representative complaint . . . . . . . . . . . . Amendment resulting in non-representative complaint . . . . . . . . Directions about conduct of representative complaint . . . . . . . . . Representative complainant must choose . . . . . . . . . . . . . . . . . . Non-representative complaint not precluded by representative complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The hearing process Burden of proof—general principle. . . . . . . . . . . . . . . . . . . . . . . . Burden of proof—indirect discrimination . . . . . . . . . . . . . . . . . . . Burden of proof—exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner may provide investigation reports. . . . . . . . . . . . . Evaluation of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The post-hearing process Orders the tribunal may make if complaint is proven . . . . . . . . . . Tribunal may dismiss complaint . . . . . . . . . . . . . . . . . . . . . . . . . . Offences (no complaint) Creation of offences to assist in enforcement Creation of offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Improper communication offence Improper communication of official information . . . . . . . . . . . . . . Offences against the commissioner and staff False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . Obstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contempt of commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure Proceedings for offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Continuing prohibition on identity disclosure . . . . . . . . . . . . . . . . 101 101 101 101 102 102 103 103 104 104 104 104 105 105 105 105 105 106 106 108 108 108 110 110 111 111 112 Page 9
Anti-Discrimination Act 1991 Contents Part 5 227 Chapter 8 228 228A 229 230 231 232 233 Chapter 9 Part 1 234 235 236 237 237A 238 239 240 241 242 243 244 245 246 Part 3 258 259 260 261 262 263 Chapter 10 Part 1 263A Page 10 Proceedings involving unincorporated association Unincorporated association represented by committee member . Opinions Commissioner may seek tribunal opinion. . . . . . . . . . . . . . . . . . . Constitution of tribunal for this chapter . . . . . . . . . . . . . . . . . . . . . Tribunal has discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tribunal may request further information . . . . . . . . . . . . . . . . . . . No complaint if compliance with opinion . . . . . . . . . . . . . . . . . . . Revocation of opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeal from opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administration The Anti-Discrimination Commission The Anti-Discrimination Commission and Commissioner . . . . . . Commission’s functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commissioner’s powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Financial administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commission is statutory body . . . . . . . . . . . . . . . . . . . . . . . . . . . Appointment of commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . Terms of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preservation of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Delegation of power by commissioner . . . . . . . . . . . . . . . . . . . . . Acting commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commission staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commonwealth/State arrangement Performance of functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Necessary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Act performed under arrangement . . . . . . . . . . . . . . . . . . . . . . . . Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Arrangement to prevail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Miscellaneous Service Definitions for pt 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 113 113 114 114 114 114 114 115 115 116 116 117 117 117 117 118 118 118 119 119 119 119 120 120 120 120 121 121
263B 263C 263E 263F 263G 263H 263I Part 2 264 265 266 267 Chapter 11 Part 1 268 Part 2 269 270 Part 3 271 Part 4 272 273 274 275 Schedule Anti-Discrimination Act 1991 Contents Operation of pt 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General requirement for address for service . . . . . . . . . . . . . . . . Change of address for service . . . . . . . . . . . . . . . . . . . . . . . . . . . Use of address for service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Communication effected by giving of document . . . . . . . . . . . . . . No address for service advised . . . . . . . . . . . . . . . . . . . . . . . . . . Email or fax address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other matters No communication of official information to court. . . . . . . . . . . . . Protection from civil actions—exercise of functions etc.. . . . . . . . Protection from civil actions—complaint etc. . . . . . . . . . . . . . . . . Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transitional provisions Transitional provision for Act No. 29 of 1994 Transitional provisions about compulsory age retirement . . . . . . Transitional provisions for Discrimination Law Amendment Act 2002 Application of amendments made by Discrimination Law Amendment Act 2002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Operation of service provisions for complaints received before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transitional provision for Youth Justice (Boot Camp Orders) and Other Legislation Amendment Act 2012 Application of ch 2, pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transitional provisions for Justice and Other Legislation Amendment Act 2013 Definitions for pt 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of amended ss 140 and 154A to a complaint made before commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complainant can not make further complaint if complaint lapsed under former s 168 or 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of s 168A to complaint accepted before commencement ................................ Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 121 122 122 123 124 124 125 126 127 127 128 130 131 132 133 133 133 134 135 Endnotes 1 2 Index to endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Date to which amendments incorporated. . . . . . . . . . . . . . . . . . . . . . 142 Page 11
Anti-Discrimination Act 1991 Contents 3 Key . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 4 Table of reprints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 5 List of legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 6 List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 7 Forms notified or published in the gazette . . . . . . . . . . . . . . . . . . . . . 161 Page 12
Anti-Discrimination Act 1991 Anti-Discrimination Act 1991 [as amended by all amendments that commenced on or before 29 August 2013] An Act to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct Parliament’s reasons for enacting this Act are— 1 The international community has long recognised the need to protect and preserve the principles of dignity and equality for everyone. 2 This is reflected in a number of international human rights instruments that the Commonwealth has ratified, including— the International Convention on the Elimination of All Forms of Racial Discrimination the Convention on the Elimination of All Forms of Discrimination Against Women the International Labour Organisation Convention No. 111—Discrimination (Employment and Occupation) the International Labour Organisation Convention No. 156—Workers with Family Responsibilities the International Covenant on Civil and Political Rights the Convention on the Rights of the Child the Declaration on the Rights of Mentally Retarded Persons the Declaration on the Rights of Disabled Persons. Current as at 29 August 2013 Page 13
Anti-Discrimination Act 1991 3 The Parliament is supportive of the Commonwealth’s ratification of these international instruments. 4 In fulfilling its obligations under these international instruments the Commonwealth has enacted certain human rights legislation. 5 The Parliament is satisfied that there is a need— (a) to extend the Commonwealth legislation; and (b) to apply anti-discrimination law consistently throughout the State; and (c) to ensure that determinations of unlawful conduct are enforceable in the courts of law. 6 The Parliament considers that— (a) everyone should be equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination; and (b) the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society; and (c) the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone. 7 It is, therefore, the intention of the Parliament to make provision, by the special measures enacted by the Act, for the promotion of equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct. Page 14 Current as at 29 August 2013
Chapter 1 Preliminary Anti-Discrimination Act 1991 Chapter 1 Preliminary [s 1] 1 Short title This Act may be cited as the Anti-Discrimination Act 1991 . 3 Act binds Crown This Act binds— (a) the Crown in right of Queensland; and (b) the Crown in all its other capacities so far as the legislative power of the Parliament allows. 3A Application of Act to ships connected with Queensland (1) Without limiting the extent to which this Act may otherwise apply, it is declared that this Act applies to acts done on ships connected with Queensland. (2) However, subsection (1) does not limit the laws of Queensland providing for the application of the criminal law to offences committed at sea. (3) For this section, a ship is a ship connected with Queensland if— (a) it is registered under the Shipping Registration Act 1981 (Cwlth) with a home port in Queensland; or (b) it is, or is required to be, registered or licensed under the Transport Operations (Marine Safety) Act 1994 or another Act; or (c) it is owned or chartered by— (i) an individual whose place of residence, or principal place of residence, is in Queensland; or (ii) a person whose place of business, or principal place of business, is in Queensland; or Current as at 29 August 2013 Page 15
Anti-Discrimination Act 1991 Chapter 1 Preliminary [s 4] (iii) a person whose principal place of business for managing the ship’s operations is in Queensland. 4 Definitions The dictionary in the schedule defines particular words used in this Act. 4A Meaning of public act (1) A public act includes— (a) any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and (b) any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia. (2) Despite anything in subsection (1), a public act does not include the distribution or dissemination of any matter by a person to the public if the person does not know, and could not reasonably be expected to know, the content of the matter. 5 Meaning of unjustifiable hardship Whether the supply of special services or facilities would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example— (a) the nature of the special services or facilities; and (b) the cost of supplying the special services or facilities and the number of people who would benefit or be disadvantaged; and (c) the financial circumstances of the person; and (d) the disruption that supplying the special services or facilities might cause; and Page 16 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 1 Act’s anti-discrimination purpose [s 6] (e) the nature of any benefit or detriment to all people concerned. Example of application in the work area (section 35) Company R refuses to employ A who uses a wheelchair because there is no appropriate access to the place of employment. R may only discriminate against A on the basis of impairment if supplying access would be very expensive or would impose another significant hardship on R. Chapter 2 Discrimination prohibited by this Act (complaint) Part 1 Act’s anti-discrimination purpose 6 Act’s anti-discrimination purpose and how it is to be achieved (1) One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. (2) This purpose is to be achieved by— (a) prohibiting discrimination that is— (i) on a ground set out in part 2; and (ii) of a type set out in part 3; and (iii) in an area of activity set out in part 4; unless an exemption set out in part 4 or 5 applies; and (b) allowing a complaint to be made under chapter 7 against the person who has unlawfully discriminated; and Current as at 29 August 2013 Page 17
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 2 Prohibited grounds of discrimination [s 7] (c) using the agencies and procedures established under chapter 7 to deal with the complaint. Part 2 Prohibited grounds of discrimination 7 Discrimination on the basis of certain attributes prohibited The Act prohibits discrimination on the basis of the following attributes— (a) sex; (b) relationship status; (c) pregnancy; (d) parental status; (e) breastfeeding; (f) age; (g) race; (h) impairment; (i) religious belief or religious activity; (j) political belief or activity; (k) trade union activity; (l) lawful sexual activity; (m) gender identity; (n) sexuality; (o) family responsibilities; (p) association with, or relation to, a person identified on the basis of any of the above attributes. Page 18 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 3 Prohibited types of discrimination [s 8] 8 Meaning of discrimination on the basis of an attribute Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of— (a) a characteristic that a person with any of the attributes generally has; or (b) a characteristic that is often imputed to a person with any of the attributes; or (c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or (d) an attribute that a person had, even if the person did not have it at the time of the discrimination. Example of paragraph (c) If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have. Part 3 Prohibited types of discrimination 9 Discrimination of certain types prohibited The Act prohibits the following types of discrimination— (a) direct discrimination; (b) indirect discrimination. 10 Meaning of direct discrimination (1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or Current as at 29 August 2013 Page 19
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 3 Prohibited types of discrimination [s 11] would be treated in circumstances that are the same or not materially different. Example R refuses to rent a flat to C because— C is English and R doesn’t like English people C’s friend, B, is English and R doesn’t like English people R believes that English people are unreliable tenants. In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct. (2) It is not necessary that the person who discriminates considers the treatment is less favourable. (3) The person’s motive for discriminating is irrelevant. Example R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C. (4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. (5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant. 11 Meaning of indirect discrimination (1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term— Page 20 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 3 Prohibited types of discrimination [s 11] (a) with which a person with an attribute does not or is not able to comply; and (b) with which a higher proportion of people without the attribute comply or are able to comply; and (c) that is not reasonable. (2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example— (a) the consequences of failure to comply with the term; and (b) the cost of alternative terms; and (c) the financial circumstances of the person who imposes, or proposes to impose, the term. (3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination. (4) In this section— term includes condition, requirement or practice, whether or not written. Example 1 An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it. Example 2 An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress. Current as at 29 August 2013 Page 21
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 12] Part 4 Areas of activity in which discrimination is prohibited Division 1 Part’s structure 12 Explanatory provision (structure) (1) This part specifies the areas of activity in which discrimination is prohibited and the exemptions that apply in relation to those areas. (2) Part 5 specifies general exemptions that apply to all the areas. Division 2 Work and work-related areas Subdivision 1 Prohibitions in work and work-related areas 13 Explanatory provision (prohibitions) (1) A person must not discriminate in the work or work-related area if a prohibition in sections 14 to 23 applies. (2) This subdivision does not apply to discrimination in connection with superannuation or insurance. (3) Discrimination in connection with superannuation or insurance is dealt with in sections 52 to 75. 14 Discrimination in the pre-work area A person must not discriminate— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or Page 22 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 15] (c) in the terms of work that is offered, including, for example, a term about when the work will end because of a person’s age; or (d) in failing to offer work; or (e) by denying a person seeking work access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or (f) in developing the scope or range of such a program. 15 Discrimination in work area (1) A person must not discriminate— (a) in any variation of the terms of work; or (b) in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or (c) in dismissing a worker; or (d) by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or (e) in developing the scope or range of such a program; or (f) by treating a worker unfavourably in any way in connection with work. (2) In this section— dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise. 15A Discrimination by principals (1) This section applies if a person (the worker ) does work, or is to do work, for another person (the principal ) under or because of— (a) a contract between the principal and a third person; or Current as at 29 August 2013 Page 23
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 16] (b) another arrangement, or a series of arrangements, involving the principal and a third person, whether or not the arrangement or series of arrangements also involves other persons. (2) The principal must not discriminate against the worker— (a) in the terms in which the principal allows the worker to work; or (b) by not allowing the worker to work or continue to work; or (c) by denying or limiting access by the worker to any benefits connected with the work; or (d) by treating the worker unfavourably in any way in connection with the work. (3) This section does not limit section 15. 16 Discrimination by proposed partnership in pre-partnership area Six or more people who propose to form themselves into a partnership must not discriminate— (a) in deciding who should be invited to become a partner; or (b) in the terms on which a person is invited to become a partner. 17 Discrimination by existing partnership in pre-partnership area A partner in a partnership that consists of 6 or more people must not discriminate— (a) in deciding who should be invited to become a partner; or (b) in the terms on which a person is invited to become a partner. Page 24 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 18] 18 Discrimination by existing partnership in partnership area A partner in a partnership that consists of 6 or more people must not discriminate— (a) in any variation of the terms of the partnership; or (b) in denying or limiting access by another partner to any benefit arising from the partnership; or (c) in expelling another partner from the partnership; or (d) by treating another partner unfavourably in any way in connection with the partnership. 19 Discrimination by industrial, professional, trade or business organisation in pre-membership area (1) An organisation of workers, employers, or people who carry on an industry, profession, trade or business must not discriminate— (a) in failing to accept a person’s application for membership of the organisation; or (b) in the arrangements made for deciding who may join; or (c) in deciding who may join; or (d) in the terms on which a person may join. (2) Subsection (1) does not apply to discrimination on the basis of trade union activity if the Industrial Relations Act 1999 , chapter 12, part 9, division 2, or part 10 applies. 20 Discrimination by industrial, professional, trade or business organisation in membership area (1) An organisation of workers, employers, or people who carry on an industry, profession, trade or business must not discriminate— (a) in any variation of the terms of membership of the organisation; or Current as at 29 August 2013 Page 25
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 21] (b) in denying or limiting access to any benefit arising from the membership; or (c) in depriving a person of membership; or (d) by treating a person unfavourably in any way in connection with the membership. (2) Subsection (1) does not apply to discrimination on the basis of trade union activity if the Industrial Relations Act 1999 , chapter 12, part 9, division 2, or part 10 applies. 21 Discrimination by qualifying body in pre-qualification area A person who has power to grant, renew or extend a qualification or authorisation that (whether by itself or together with other qualifications or authorisations) is needed for, or facilitates, the practice of a profession, or the carrying on of a trade or business must not discriminate— (a) in granting, renewing or extending a qualification or authorisation or failing to do so; or (b) in the terms on which a qualification or authorisation is granted, renewed or extended. 22 Discrimination by qualifying body in qualification area A person who has power to grant, renew or extend a qualification or authorisation that (whether by itself or together with other qualifications or authorisations) is needed for, or facilitates, the practice of a profession, or the carrying on of a trade or business must not discriminate against another person— (a) in any variation of the terms on which a qualification or authorisation was granted, renewed or extended; or (b) in revoking or withdrawing a qualification or authorisation or failing to do so; or Page 26 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 23] (c) by treating the other person unfavourably in any way in connection with the grant, renewal or extension of a qualification or authorisation. 23 Discrimination in employment agency area A person who carries on a business (whether or not for reward or profit) of introducing people seeking work to employers must not discriminate— (a) by failing to supply a service of the business, whether to a person seeking work or an employer seeking a worker; or (b) in the terms on which a service is offered or supplied; or (c) in the way in which a service is supplied; or (d) by treating a person seeking work or an employer seeking a worker unfavourably in any way in connection with a service. Subdivision 2 Exemptions for discrimination in work and work-related areas 24 Explanatory provision (exemptions) It is not unlawful to discriminate in the work or work-related area if an exemption in sections 25 to 36 or part 5 applies. 25 Genuine occupational requirements (1) A person may impose genuine occupational requirements for a position. Examples of genuine requirements for a position Example 1 selecting an actor for a dramatic performance on the basis of age, race or sex for reasons of authenticity Current as at 29 August 2013 Page 27
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 25] Example 2 using membership of a particular political party as a criterion for a position as an adviser to a political party or a worker in the office of a member of Parliament Example 3 considering only women applicants for a position involving body searches of women Example 4 employing persons of a particular religion to teach in a school established for students of the particular religion (2) Subsection (3) applies in relation to— (a) work for an educational institution (an employer ) under the direction or control of a body established for religious purposes; or (b) any other work for a body established for religious purposes (also an employer ) if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs. (3) It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if— (a) the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs— (i) during a selection process; or (ii) in the course of the person’s work; or (iii) in doing something connected with the person’s work; and Example for paragraph (a) A staff member openly acts in a way contrary to a requirement imposed by the staff member’s employer in his or her contract of employment, that the staff member abstain from acting in a way openly contrary to the employer’s religious beliefs in the course of, or in connection with the staff member’s employment. Page 28 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 26] (b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs. (4) Subsection (3) does not authorise the seeking of information contrary to section 124. (5) For subsection (3), whether the discrimination is not unreasonable depends on all the circumstances of the case, including, for example, the following— (a) whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions; (b) the consequences for both the person and the employer should the discrimination happen or not happen. (6) Subsection (3) does not apply to discrimination on the basis of age, race or impairment. (7) To remove any doubt, it is declared that subsection (3) does not affect a provision of an agreement with respect to work to which subsection (3) applies, under which the employer agrees not to discriminate in a particular way. (8) In this section— religion includes religious affiliation, beliefs and activities. selection process means a process the purpose of which is to consider whether to offer a person work. 26 Residential domestic services (1) It is not unlawful for a person to discriminate— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in failing to offer work; or (d) in dismissing a worker; Current as at 29 August 2013 Page 29
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 27] if the work is to perform domestic services at the person’s home. (2) Subsection (1) does not apply to discrimination on the basis of race. 27 Residential childcare services (1) It is not unlawful for a person to discriminate— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in failing to offer work; or (d) in dismissing a worker; if the work is to care for the person’s children at the person’s home. (2) Subsection (1) does not apply to discrimination on the basis of race. 28 Work with children (1) It is not unlawful to discriminate on the basis of lawful sexual activity or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the work involves the care or instruction of minors; and (b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having regard to all the relevant circumstances of the case, including the person’s actions. (2) It is not unlawful to discriminate against a person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the work involves the care or instruction of minors; and Page 30 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 30] (b) whether before of after the commencement of this subsection, the person has been— (i) convicted in Queensland or elsewhere of an offence of a sexual nature involving a child; or (ii) disqualified from working with children under an Act of a State or of the Commonwealth. 30 Single sex accommodation (1) It is not unlawful for a person to discriminate on the basis of sex against another person with respect to a matter that is otherwise prohibited under subdivision 1 if the other person is required to live in accommodation supplied by the first person and— (a) the accommodation is not equipped with separate sleeping accommodation for people of each sex; and (b) the accommodation is already occupied by a person or people of one sex and is not occupied by anyone of the opposite sex; and (c) the supply of separate sleeping accommodation for people of each sex would impose unjustifiable hardship on the first person. (2) Whether the supply of separate sleeping accommodation for people of each sex would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example— (a) the nature of the accommodation; and (b) the cost of supplying the separate sleeping accommodation and the number of people who would benefit or be disadvantaged; and (c) the financial circumstances of the person; and (d) the disruption that supplying the separate sleeping accommodation might cause; and Current as at 29 August 2013 Page 31
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 31] (e) the nature of any benefit or detriment to all people concerned. 31 Workers are to be married couple It is not unlawful for a person to discriminate on the basis of relationship status— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in the terms of work that is offered; or (d) in failing to offer work; or (e) in dismissing a worker; if— (f) the work is for one of 2 positions that the person wants held concurrently by— (i) a married couple; or (ii) 2 persons each of whom is the de facto partner of the other; or (iii) 2 persons each of whom is the registered partner of the other; and (g) the workers are required to live in accommodation supplied by the person. 32 Retiring age for partners (1) It is not unlawful in deciding who should be invited to become a partner in a partnership for a person to discriminate on the basis of age against someone else through a requirement that the other person— (a) must not be more than a specified age; or (b) must retire from a partnership at a specified age. Page 32 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 33] (2) It is not unlawful in any variation of the terms of a partnership for a person to discriminate on the basis of age against someone else through a requirement that the other person— (a) must not be more than a specified age; or (b) must retire from a partnership at a specified age. (3) This section has effect despite the Industrial Relations Act 1999 , section 73(2)(m). 33 Youth wages A person may remunerate a worker who is under 21 years of age according to the worker’s age. 34 Special terms if job capacity is restricted by impairment A person may fix reasonable terms in relation to the holder or prospective holder of a position who, because of an impairment— (a) has a restricted capacity to do work genuinely and reasonably required for the position; or (b) requires special conditions in order to be able to do the work. 35 Special services or facilities required (1) It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the other person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the first person. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. Current as at 29 August 2013 Page 33
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 36] 36 Circumstances of impairment (1) It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if the circumstances of the impairment would impose unjustifiable hardship on the first person. (2) Whether the circumstances of the impairment would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example— (a) the nature of the impairment; and (b) the nature of the work or partnership. Division 3 Education area Subdivision 1 Prohibitions in education area 37 Explanatory provision (prohibitions) An educational authority must not discriminate in the education area if a prohibition in section 38 or 39 applies. 38 Discrimination by educational authority in prospective student area An educational authority must not discriminate— (a) in failing to accept a person’s application for admission as a student; or (b) in the way in which a person’s application is processed; or (c) in the arrangements made for, or the criteria used in, deciding who should be offered admission as a student; or (d) in the terms on which a person is admitted as a student. Page 34 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 39] 39 Discrimination by educational authority in student area An educational authority must not discriminate— (a) in any variation of the terms of a student’s enrolment; or (b) by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority; or (c) by excluding a student; or (d) by treating a student unfavourably in any way in connection with the student’s training or instruction. Subdivision 2 Exemptions for discrimination in education area 40 Explanatory provision (exemptions) It is not unlawful for an educational authority to discriminate in the education area if an exemption in sections 41 to 44 or part 5 applies. 41 Single sex, religion, etc. educational institution An educational authority that operates, or proposes to operate, an educational institution wholly or mainly for students of a particular sex or religion, or who have a general or specific impairment may exclude— (a) applicants who are not of the particular sex or religion; or (b) applicants who do not have a general, or the specific, impairment. 43 Age-based admission scheme An educational authority may select students for an education program on the basis of an admission scheme that has a minimum qualifying age. Current as at 29 August 2013 Page 35
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 44] 44 Special services or facilities required (1) Subject to the Education (General Provisions) Act 2006 , it is not unlawful for an educational authority to discriminate on the basis of impairment against a person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the educational authority. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. Division 4 Goods and services area Subdivision 1 Prohibition in goods and services area 45 Explanatory provision (prohibition) (1) A person must not discriminate in the goods and services area if the prohibition in section 46 applies. (2) This subdivision does not apply to discrimination in connection with superannuation or insurance. (3) Discrimination in connection with superannuation or insurance is dealt with in sections 52 to 75. 45A Non-application of s 46 to provision of assisted reproductive technology services (1) Section 46 does not apply to the provision of assisted reproductive technology services if the discrimination is on the basis of relationship status or sexuality. Page 36 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 46] (2) In this section— assisted reproductive technology services means— (a) services provided in the course of, or for the purpose of, any of the following— (i) in-vitro fertilisation; (ii) artificial insemination; (iii) gamete, zygote or embryo transfer; or (b) any other services provided for the purpose of assisting in artificial fertilisation. 46 Discrimination in goods and services area (1) A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person— (a) by failing to supply the goods or services; or (b) in the terms on which goods or services are supplied; or (c) in the way in which goods or services are supplied; or (d) by treating the other person unfavourably in any way in connection with the supply of goods and services. (2) In this section, a reference to a person who supplies goods and services does not include an association that— (a) is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and (b) does not carry out its purposes for the purpose of making a profit. Current as at 29 August 2013 Page 37
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 47] Subdivision 2 Exemptions for discrimination in goods and services area 47 Explanatory provision (exemptions) It is not unlawful to discriminate in the goods and services area if an exemption in sections 48 to 51 or part 5 applies. 48 Sites of cultural or religious significance A person may restrict access to land or a building of cultural or religious significance by people who are not of a particular sex, age, race or religion if the restriction— (a) is in accordance with the culture concerned or the doctrine of the religion concerned; and (b) is necessary to avoid offending the cultural or religious sensitivities of people of the culture or religion. 49 Age-based benefits A person may supply benefits and concessions on the basis of age with respect to a matter that is otherwise prohibited under subdivision 1. Example 1 A bus operator may give travel concessions to people under the age of 12 or over the age of 70. Example 2 The Government may supply, on an age basis, Seniors’ Cards that give entitlements to concessions. 50 Children to be accompanied by an adult A person may require, as a term of supplying goods and services to a minor, that a minor be accompanied by an adult if there would be a reasonable risk that a minor may cause a Page 38 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 51] disruption or endanger himself or herself or others if not accompanied by an adult. Example The operator of a rifle range may require a minor who wants to use the range to be accompanied by an adult. 51 Special services or facilities required (1) It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the other person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the person supplying the goods or services. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. Division 5 Superannuation area Subdivision 1 Prohibitions in superannuation area 52 Explanatory provision (prohibitions) A person must not discriminate in the superannuation area if a prohibition in sections 53 to 57 applies. 53 Discrimination in superannuation area (goods and services) A person must not discriminate— (a) by failing to supply superannuation; or Current as at 29 August 2013 Page 39
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 54] (b) in the terms on which superannuation is supplied; or (c) in the way in which superannuation is supplied. 54 Discrimination in superannuation area (pre-work) A person must not discriminate against another person, who is seeking work with the person, in the terms of any work that is offered that relate to superannuation. 55 Discrimination in superannuation area (work) A person must not discriminate against another person who works for the person— (a) in any variation of the terms of the work that relate to superannuation; or (b) in denying or limiting the other person’s access to any benefit to a worker that relates to superannuation; or (c) by treating the other person unfavourably in any way in connection with superannuation. 56 Discrimination in superannuation area (pre-partnership) A person must not discriminate against another person, who is invited to become a partner of the person in a partnership that consists, or will consist, of 6 or more people, in the terms relating to superannuation on which the other person is invited to become a partner. 57 Discrimination in superannuation area (partnership) A partner in a partnership that consists of 6 or more people must not discriminate against another partner— (a) in any variation of the terms of the partnership that relate to superannuation; or Page 40 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 58] (b) in denying or limiting the other partner’s access to any benefit arising from the partnership that relates to superannuation; or (c) by treating the other partner unfavourably in any way in connection with superannuation. Subdivision 2 Exemptions for discrimination in superannuation area 58 Explanatory provision (exemptions) It is not unlawful to discriminate in the superannuation area if an exemption in sections 59 to 65 or part 5 applies. 59 Commonwealth exemption (sex or relationship status) It is not unlawful to discriminate on the basis of sex or relationship status with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination is permitted under the Sex Discrimination Act 1984 (Cwlth). 60 Retention of existing superannuation fund conditions (age or impairment) (1) It is not unlawful to discriminate on the basis of age or impairment by retaining an existing superannuation fund condition in relation to a person who became a member of the fund before the commencement of section 53. (2) In this section— existing superannuation fund condition means a superannuation fund condition in existence at the commencement of section 53. Current as at 29 August 2013 Page 41
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 61] 61 New superannuation fund conditions—actuarial or statistical data (age or impairment) It is not unlawful for a person to discriminate on the basis of age or impairment by imposing a superannuation fund condition after the commencement of section 53 in relation to another person, irrespective of— (a) whether the superannuation fund was in existence before the commencement of section 53; and (b) when the other person became, or becomes, a member of the fund; if— (c) the condition is based on reasonable actuarial or statistical data from a source on which it is reasonable for the person to rely; and (d) the condition is reasonable having regard to the data and any other relevant factors. 62 New superannuation fund conditions—other data (age or impairment) It is not unlawful for a person to discriminate on the basis of age or impairment by imposing a superannuation fund condition after the commencement of section 53 in relation to another person, irrespective of— (a) whether the superannuation fund was in existence before the commencement of section 53; and (b) when the other person became, or becomes, a member of the fund; if— (c) there is no reasonable actuarial or statistical data from a source on which it is reasonable for the person to rely; and Page 42 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 63] (d) the condition is based on other reasonable data from a source on which it is reasonable for the person to rely; and (e) the condition is reasonable having regard to the other data and any other relevant factors. 63 New superannuation fund conditions—no data (age or impairment) It is not unlawful for a person to discriminate on the basis of age or impairment by imposing a superannuation fund condition after the commencement of section 53 in relation to another person, irrespective of— (a) whether the superannuation fund was in existence before the commencement of section 53; and (b) when the other person became, or becomes, a member of the fund; if— (c) there is no reasonable actuarial, statistical or other data from a source on which it is reasonable for the person to rely; and (d) the condition is reasonable having regard to any other relevant factors. 64 Application of Commonwealth occupational superannuation standard It is not unlawful to discriminate on the basis of age or impairment with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination happens because of the application of a standard prescribed under the Superannuation Industry (Supervision) Act 1993 (Cwlth). Current as at 29 August 2013 Page 43
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 65] 65 Compliance etc. with Commonwealth legislation It is not unlawful to discriminate on the basis of age or impairment with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination happens in order— (a) to comply with a Commonwealth Act (other than the Superannuation Industry (Supervision) Act 1993 ); or (b) to obtain a benefit or avoid a penalty under such an Act. Division 6 Insurance area Subdivision 1 Prohibitions in insurance area 66 Explanatory provision (prohibitions) A person must not discriminate in the insurance area if a prohibition in sections 67 to 71 applies. 67 Discrimination in insurance area (goods and services) A person must not discriminate— (a) by failing to supply insurance; or (b) in the terms on which insurance is supplied; or (c) in the way in which insurance is supplied. 68 Discrimination in insurance area (pre-work) A person must not discriminate against another person, who is seeking work with the person, in the terms of any work that is offered that relate to insurance. Page 44 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 69] 69 Discrimination in insurance area (work) A person must not discriminate against another person who works for the person— (a) in any variation of the terms of the work that relate to insurance; or (b) in denying or limiting the other person’s access to any benefit to a worker that relates to insurance; or (c) by treating the person unfavourably in any way in connection with insurance. 70 Discrimination in insurance area (pre-partnership) A person must not discriminate against another person, who is invited to become a partner of the person in a partnership that consists, or will consist, of 6 or more people, in the terms relating to insurance on which the other person is invited to become a partner. 71 Discrimination in insurance area (partnership) A partner in a partnership that consists of 6 or more people must not discriminate against another partner— (a) in any variation of the terms of the partnership that relate to insurance; or (b) in denying or limiting the other partner’s access to any benefit arising from the partnership that relates to insurance; or (c) by treating the other partner unfavourably in any way in connection with insurance. Current as at 29 August 2013 Page 45
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 72] Subdivision 2 Exemptions for discrimination in insurance area 72 Explanatory provision (exemptions) It is not unlawful to discriminate in the insurance area if an exemption in sections 73 to 75 or part 5 applies. 73 Commonwealth exemption (sex) It is not unlawful to discriminate on the basis of sex with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination is permitted under the Sex Discrimination Act 1984 (Cwlth). 74 Actuarial or statistical data (age or impairment) It is not unlawful for a person to discriminate on the basis of age or impairment with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination— (a) is based on reasonable actuarial or statistical data from a source on which it is reasonable for the person to rely; and (b) is reasonable having regard to the data and any other relevant factors. 75 No actuarial or statistical data (age or impairment) It is not unlawful for a person to discriminate on the basis of age or impairment with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) there is no reasonable actuarial or statistical data from a source on which it is reasonable for the person to rely; and (b) the discrimination is reasonable having regard to any other relevant factors. Page 46 Current as at 29 August 2013
Division 7 Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 76] Disposition of land area Subdivision 1 Prohibition in disposition of land area 76 Explanatory provision (prohibition) A person must not discriminate in the disposition of land area if the prohibition in section 77 applies. 77 Discrimination in disposition of land area A person must not discriminate against another person— (a) by failing to dispose of an interest in land to the other person; or (b) in the terms on which an interest in land is offered to the other person. Subdivision 2 Exemptions for discrimination in disposition of land area 78 Explanatory provision (exemptions) It is not unlawful to discriminate in the disposition of land area if an exemption in section 79 or 80 or part 5 applies. 79 Disposition by will or gift It is not unlawful to discriminate with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination is by way of a testamentary disposition or gift. Current as at 29 August 2013 Page 47
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 80] 80 Sites of cultural or religious significance It is not unlawful to discriminate on the basis of sex, age, race or religion with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the relevant interest in land is an interest in land or a building of cultural or religious significance; and (b) the discrimination— (i) is in accordance with the culture concerned or the doctrine of the religion concerned; and (ii) is necessary to avoid offending the cultural or religious sensitivities of people of the culture or religion. Division 8 Accommodation area Subdivision 1 Prohibitions in accommodation area 81 Explanatory provision (prohibitions) A person must not discriminate in the accommodation area if a prohibition in sections 82 to 85 applies. 82 Discrimination in pre-accommodation area A person must not discriminate against another person— (a) by failing to accept an application for accommodation; or (b) by failing to renew or extend the supply of accommodation; or (c) in the way in which an application is processed; or Page 48 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 83] (d) in the terms on which accommodation is offered, renewed or extended. 83 Discrimination in accommodation area A person must not discriminate against another person— (a) in any variation of the terms on which accommodation is supplied; or (b) in denying or limiting access to any benefit associated with the accommodation; or (c) in evicting the other person from the accommodation; or (d) by treating the other person unfavourably in any way in connection with the accommodation. 84 Discrimination by refusing to allow reasonable alterations A person must not discriminate by refusing to allow another person with an impairment to alter accommodation to meet the other person’s special needs if— (a) the alteration is at the expense of the other person; and (b) the alteration does not require an alteration to the premises of another occupier; and (c) the action required to restore the accommodation to its previous condition is reasonably practicable; and (d) the other person undertakes to restore the accommodation to its previous condition before leaving it, and it is reasonably likely that the other person will do so. 85 Discrimination by refusing to allow guide, hearing or assistance dog (1) A person must not discriminate by doing any of the following— Current as at 29 August 2013 Page 49
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 86] (a) refusing to rent accommodation to another person because the other person has an impairment and relies on a guide, hearing or assistance dog; (b) requiring the other person to keep the dog elsewhere; (c) requesting or requiring the other person to pay an extra charge because the dog lives at the accommodation. (2) This section does not affect the liability of the person with the dog for any damage caused by the dog. Subdivision 2 Exemptions for discrimination in accommodation area 86 Explanatory provision (exemptions) It is not unlawful to discriminate in the accommodation area if an exemption in sections 87 to 92 or part 5 applies. 87 Shared accommodation It is not unlawful for a person to discriminate in deciding who is to reside in accommodation that— (a) forms part of, and is intended to continue to form part of, the main home of the person or a near relative; and (b) is for no more than 3 people other than a person mentioned in paragraph (a) or near relatives of such a person. 88 Accommodation for workers A person who supplies accommodation for the person’s workers may provide accommodation of different standards to different workers if— Page 50 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 89] (a) it is not reasonable to expect the person to supply accommodation of the same standard for all workers; and (b) the standard of the accommodation supplied to each worker is determined having regard to— (i) the number of people in the worker’s household; or (ii) the class of work performed, or the nature of the position held, by the worker. 89 Accommodation for students An educational authority that operates, or proposes to operate, an educational institution wholly or mainly for students of a particular sex or religion, or who have a general or specific impairment, may provide accommodation wholly or mainly for— (a) students of the particular sex or religion; or (b) students who have a general, or the specific, impairment. 90 Accommodation with religious purposes It is not unlawful to discriminate with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the accommodation concerned is under the direction or control of a body established for religious purposes; and (b) the discrimination— (i) is in accordance with the doctrine of the religion concerned; and (ii) is necessary to avoid offending the religious sensitivities of people of the religion. Current as at 29 August 2013 Page 51
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 91] 91 Accommodation with charitable purposes It is not unlawful to discriminate on the basis of sex, relationship status or age with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the accommodation concerned is under the direction or control of a body established for charitable purposes; and (b) the discrimination is in accordance with the particular purposes for which the accommodation was established by the body. 92 Special services or facilities required (1) A person may discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the other person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the first person. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. Division 9 Club membership and affairs area Subdivision 1 Prohibitions in club membership and affairs area 93 Explanatory provision (prohibitions) A club must not discriminate in the club membership and affairs area if a prohibition in section 94 or 95 applies. Page 52 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 94] 94 Discrimination by club in prospective membership area A club must not discriminate— (a) in determining the terms of a particular category or type of membership of the club; or (b) in failing to accept a person’s application for membership of the club; or (c) in the way in which a person’s application is processed; or (d) in the arrangements made for deciding who should be offered membership; or (e) in the terms on which a person is admitted as a member. 95 Discrimination by club in membership and affairs area A club must not discriminate— (a) in any variation of the terms of membership of the club; or (b) in failing to accept a member’s application for a different category or type of membership; or (c) by denying or limiting access to any benefit, arising from membership, that is supplied by the club; or (d) in depriving a member of membership; or (e) by treating a member unfavourably in any way in connection with the membership or the affairs of the club. Current as at 29 August 2013 Page 53
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 96] Subdivision 2 Exemptions for discrimination in club membership and affairs area 96 Explanatory provision (exemptions) It is not unlawful to discriminate in the club membership and affairs area if an exemption in sections 97 to 100 or part 5 applies. 97 Club established for minority cultures and disadvantaged people A club may exclude applicants for membership of the club who are not members of the group of people with an attribute for whom the club was established if the club operates wholly or mainly— (a) to preserve a minority culture; or (b) to prevent or reduce disadvantage suffered by people of that group. 98 Reasonable sex discrimination permitted It is not unlawful for a club to discriminate on the basis of sex by limiting access to any benefit, arising from membership, that is provided by the club if— (a) it is not practicable for males and females to enjoy the benefit at the same time; and (b) either of the following subparagraphs apply— (i) access to the same or an equivalent benefit is supplied for the use of males and females separately; (ii) access arrangements offer males and females a reasonably equivalent opportunity to enjoy the benefit. Page 54 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 4 Areas of activity in which discrimination is prohibited [s 99] 99 Reasonable risk of injury A club may exclude an applicant for membership who is a minor if there is a reasonable risk of injury to a minor or other people. 100 Special services or facilities required (1) It is not unlawful for a club to discriminate on the basis of impairment in failing to accept a person’s application for membership if— (a) the person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the club. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. Division 10 Administration of State laws and programs area 101 Discrimination in administration of State laws and programs area A person who— (a) performs any function or exercises any power under State law or for the purposes of a State Government program; or (b) has any other responsibility for the administration of State law or the conduct of a State Government program; must not discriminate in— (c) the performance of the function; or Current as at 29 August 2013 Page 55
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 5 General exemptions for discrimination [s 102] (d) the exercise of the power; or (e) the carrying out of the responsibility. Division 11 Local government area 102 Discrimination by local government member (1) A member of a local authority must not discriminate against another member in the performance of official functions. (2) Subsection (1) does not apply to discrimination on the basis of political belief or activity. Part 5 General exemptions for discrimination 103 Explanatory provision (exemptions) It is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4 if an exemption in sections 104 to 113 applies. 104 Welfare measures A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act. Example 1 It is not unlawful for a bus operator to give travel concessions to pensioners or to give priority in seating to people who are pregnant or frail. Page 56 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 5 General exemptions for discrimination [s 105] Example 2 It is not unlawful to restrict special accommodation to women who have been victims of domestic violence or to frail, older people. Example 3 It is not unlawful to establish a high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks. 105 Equal opportunity measures (1) A person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with this Act. (2) Subsection (1) applies only until the purpose of equal opportunity has been achieved. 106 Acts done in compliance with legislation etc. (1) A person may do an act that is necessary to comply with, or is specifically authorised by— (a) an existing provision of another Act; or (b) an order of a court; or (c) an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or (d) an existing provision of an industrial agreement; or (e) an order of the Anti-Discrimination Tribunal. (2) In this section— existing provision means a provision in existence at the commencement of this section. Current as at 29 August 2013 Page 57
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 5 General exemptions for discrimination [s 106A] 106A Compulsory retirement age under legislation etc. (1) This Act has no effect on the imposition of a compulsory retirement age on— (a) a Supreme Court judge; or (b) a District Court judge; or (c) a magistrate; or (d) a member of the Land Court; or (e) the president, the vice-president or a deputy president (court) of the Industrial Court; or (f) a deputy president appointed under the Industrial Relations Act 1999 , section 258A or an industrial commissioner; or (h) a fire officer within the meaning of the Fire and Rescue Service Act 1990 ; or (k) a police officer; or (m) a director of a public company or subsidiary of a public company; or (n) another person prescribed by regulation. (2) Subsection (1) applies if the compulsory retirement age is imposed on or before 30 June 1994 under— (a) an Act; or (b) an award, certified agreement, enterprise flexibility agreement or industrial agreement within the meaning of the Industrial Relations Act 1999 ; or (c) a policy, standard or other instrument of a previous unit of the public sector applying to an employee of the unit. (3) If the compulsory retirement age is imposed under something mentioned in subsection (2)(b) or (c), then, by force of this subsection, a person mentioned in subsection (1) is required, and is taken always to have been required, to retire in accordance with the compulsory retirement age imposed. Page 58 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 5 General exemptions for discrimination [s 106B] (4) In this section— previous unit of the public sector means an entity that was a unit of the public sector on 30 June 1994 under the repealed Public Sector Management Commission Act 1990 . 106B Citizenship or visa requirements imposed under State government policies etc. (1) This Act does not apply in relation to— (a) the inclusion of a prescribed eligibility provision in a relevant policy; or (b) the performance of a function by a person in connection with a prescribed eligibility provision. (2) In this section, a reference to performing a function includes a reference to exercising a power or carrying out a responsibility. (3) In this section— government entity (a) means an entity mentioned in the Public Service Act 2008 , section 24(1); but (b) does not include— (i) a GOC, other than to the extent the GOC is directed to perform an obligation under the Government Owned Corporations Act 1993 or another Act; or (ii) an entity mentioned in the Public Service Act 2008 , section 24(2)(a), (b), (c), (d), (e), (f), (g), (i) or (j). prescribed eligibility provision , of a relevant policy, means— (a) a provision requiring that a person must have a particular citizenship or visa status to be eligible for financial or other assistance, services or support under the policy; or Current as at 29 August 2013 Page 59
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 5 General exemptions for discrimination [s 106C] (b) a provision under which persons who have a particular citizenship or visa status are treated more favourably than other persons in relation to their eligibility for financial or other assistance, services or support under the policy. relevant policy means a policy of a government entity— (a) that relates to any area of activity set out in part 4; and (b) under which persons are provided with financial or other assistance, services or support. visa see the Migration Act 1958 (Cwlth), section 5. 106C Accommodation for use in connection with work as sex worker It is not unlawful for a person (an accommodation provider ) to discriminate against another person (the other person ) by— (a) refusing to supply accommodation to the other person; or (b) evicting the other person from accommodation; or (c) treating the other person unfavourably in any way in connection with accommodation; if the accommodation provider reasonably believes the other person is using, or intends to use, the accommodation in connection with that person’s, or another person’s, work as a sex worker. 107 Public health A person may do an act that is reasonably necessary to protect public health. Page 60 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 5 General exemptions for discrimination [s 108] 108 Workplace health and safety A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work. 109 Religious bodies (1) The Act does not apply in relation to— (a) the ordination or appointment of priests, ministers of religion or members of a religious order; or (b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or (c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice; or (d) unless section 90 (Accommodation with religious purposes) applies—an act by a body established for religious purposes if the act is— (i) in accordance with the doctrine of the religion concerned; and (ii) necessary to avoid offending the religious sensitivities of people of the religion. (2) An exemption under subsection (1)(d) does not apply in the work or work-related area or in the education area. 110 Charities A person may include a discriminatory provision in a document that provides exclusively for charitable benefits, and may do an act that is required to give effect to such a provision. Current as at 29 August 2013 Page 61
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 5 General exemptions for discrimination [s 111] 111 Sport (1) A person may restrict participation in a competitive sporting activity— (a) to either males or females, if the restriction is reasonable having regard to the strength, stamina or physique requirements of the activity; or (b) to people who can effectively compete; or (c) to people of a specified age or age group; or (d) to people with a specific or general impairment. (2) Subsection (1)(a) does not apply to a sporting activity for children who are less than 12 years of age. (3) Subsection (1) does not stop participation in a competitive sporting activity being restricted on the basis of gender identity, if the restriction is reasonable having regard to the strength, stamina or physique requirements of the activity. (4) In this section— competitive sporting activity does not include— (a) the coaching of people engaged in a sporting activity; or (b) the umpiring or refereeing of a sporting activity; or (c) the administration of a sporting activity; or (d) a sporting activity prescribed by regulation. 112 Legal incapacity A person may discriminate against another person because the other person is subject to a legal incapacity if the incapacity is relevant to the transaction in which they are involved. Example It is not unlawful for a person to refuse to enter into a contract with a minor, or a person who has impaired capacity for the contract within the meaning of the Guardianship and Administration Act 2000 , if the contract can not be legally enforced. Page 62 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 5 General exemptions for discrimination [s 113] 113 Tribunal (1) The tribunal, on application by— (a) a person, on the person’s own behalf, or on behalf of the person and another person or other people; or (b) 2 or more people, on their own behalf, or on behalf of themselves and another person or other people; or (c) a person or people included in a class of people on behalf of the people in that class; may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act. (2) Before deciding an application, the tribunal must— (a) give the commissioner a copy of the application and a copy of the material filed in support of the application; and (b) have regard to any submission made by the commissioner on the application, including a submission on the process for considering the application. (3) Matters the commissioner may make a submission on in relation to the process for considering an application include, but are not limited to, the following— (a) whether the application should be considered by way of public hearing; (b) identification of persons who may be affected by a decision to grant the application; (c) whether the public should be consulted; (d) how consultation with identified persons or the public should be conducted. (4) The commissioner must give a copy of a written submission the commissioner makes on an application to the applicant. (5) The tribunal may request that the commissioner— (a) inquire into an application; and Current as at 29 August 2013 Page 63
Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 5 General exemptions for discrimination [s 113A] (b) report to the tribunal the results of the inquiry and a recommendation about the application. (6) An exemption— (a) may be granted subject to such terms as the tribunal provides; and (b) may be granted so that it applies only in such circumstances, or in connection with such activities, as the tribunal determines; and (c) is to be granted for a specified period of not more than 5 years. (7) An exemption under subsection (1) may be renewed for further periods of not more than 5 years, on application by the person or people to whom, or in respect of whom, the exemption was granted. 113A Appeal from tribunal decision (1) The commissioner, or a person with a relevant interest, may appeal, as provided under the QCAT Act, against the tribunal’s decision on an application mentioned in section 113. (2) For the appeal, if the commissioner or person was not a party to the application, the commissioner or person is taken to have been a party to it. Page 64 Current as at 29 August 2013
Part 6 Anti-Discrimination Act 1991 Chapter 2 Discrimination prohibited by this Act (complaint) Part 6 Discrimination by worker, agent, member etc. also prohibited [s 114] Discrimination by worker, agent, member etc. also prohibited 114 Discrimination by worker or agent If discrimination by a person or body is unlawful under this chapter, discrimination by a worker or agent of such a person or body is also unlawful. 115 Discrimination by member of industrial, professional, trade or business organisation If discrimination by an organisation of workers, employers, or people who carry on an industry, profession, trade or business is unlawful under this chapter, discrimination by a member of such an organisation is also unlawful. 116 Discrimination by club’s committee of management etc. If discrimination by a club is unlawful under this chapter, discrimination by— (a) a committee of management of a club; or (b) a member of such a committee; is also unlawful. Current as at 29 August 2013 Page 65
Anti-Discrimination Act 1991 Chapter 3 Sexual harassment prohibited by this Act (complaint) Part 1 Act’s freedom from sexual harassment purpose [s 117] Chapter 3 Sexual harassment prohibited by this Act (complaint) Part 1 Act’s freedom from sexual harassment purpose 117 Act’s freedom from sexual harassment purpose and how it is to be achieved (1) One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from sexual harassment. (2) This purpose is to be achieved by— (a) prohibiting sexual harassment; and (b) allowing a complaint to be made under chapter 7 against a person who has sexually harassed; and (c) using the agencies and procedures established under chapter 7 to deal with the complaint. Part 2 Prohibition of sexual harassment 118 Sexual harassment A person must not sexually harass another person. 119 Meaning of sexual harassment Sexual harassment happens if a person— Page 66 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 3 Sexual harassment prohibited by this Act (complaint) Part 2 Prohibition of sexual harassment [s 119] (a) subjects another person to an unsolicited act of physical intimacy; or (b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or (c) makes a remark with sexual connotations relating to the other person; or (d) engages in any other unwelcome conduct of a sexual nature in relation to the other person; and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so— (e) with the intention of offending, humiliating or intimidating the other person; or (f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. Examples of subsection (1)(a) physical contact such as patting, pinching or touching in a sexual way unnecessary familiarity such as deliberately brushing against a person Example of subsection (1)(b) sexual propositions Examples of subsection (1)(c) unwelcome and uncalled for remarks or insinuations about a person’s sex or private life suggestive comments about a person’s appearance or body Examples of subsection (1)(d) offensive telephone calls indecent exposure Current as at 29 August 2013 Page 67
Anti-Discrimination Act 1991 Chapter 4 Associated objectionable conduct (complaint) Part 1 Act’s freedom from associated objectionable conduct purpose [s 120] 120 Meaning of relevant circumstances The circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct include— (a) the sex of the other person; and (b) the age of the other person; and (c) the race of the other person; and (d) any impairment that the other person has; and (e) the relationship between the other person and the person engaging in the conduct; and (f) any other circumstance of the other person. Chapter 4 Associated objectionable conduct (complaint) Part 1 Act’s freedom from associated objectionable conduct purpose 121 Act’s freedom from associated objectionable conduct purpose and how it is to be achieved (1) One of the purposes of the Act is to promote equality of opportunity for everyone by prohibiting certain objectionable conduct that is inconsistent with the other purposes of the Act. (2) This purpose is to be achieved by— (a) prohibiting certain conduct; and (b) allowing a complaint to be made under chapter 7 against a person who has engaged in that conduct; and Page 68 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 4 Associated objectionable conduct (complaint) Part 2 Requesting and encouraging contravention of the Act [s 122] (c) using the agencies and procedures established under chapter 7 to deal with the complaint. Part 2 Requesting and encouraging contravention of the Act 122 Request or encouragement of contravention A person must not request or encourage another person to contravene the Act. 123 Liability for contravention If— (a) a person requests or encourages another person to contravene the Act; and (b) the other person acts, or attempts to act, on the request or encouragement; both are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both. Part 3 Unlawful requests for information 124 Unnecessary information (1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based. Current as at 29 August 2013 Page 69
Anti-Discrimination Act 1991 Chapter 4 Associated objectionable conduct (complaint) Part 4 Racial and religious vilification [s 124A] (2) Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by— (a) an existing provision of another Act; or (b) an order of a court; or (c) an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or (d) an existing provision of an industrial agreement; or (e) an order of the tribunal. (3) It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination. (4) In this section— existing provision means a provision in existence at the commencement of this section. Example An employer would contravene the Act by asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work. Part 4 Racial and religious vilification 124A Vilification on grounds of race, religion, sexuality or gender identity unlawful (1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group. Page 70 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 5 Associated highly objectionable conduct (complaint and penalty) Part 1 Act’s freedom from associated highly objectionable conduct purpose [s 125] (2) Subsection (1) does not make unlawful— (a) the publication of a fair report of a public act mentioned in subsection (1); or (b) the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter. Chapter 5 Associated highly objectionable conduct (complaint and penalty) Part 1 Act’s freedom from associated highly objectionable conduct purpose 125 Act’s freedom from associated highly objectionable conduct purpose and how it is to be achieved (1) One of the purposes of the Act is to promote equality of opportunity for everyone by prohibiting and penalising certain highly objectionable conduct that is inconsistent with the other purposes of the Act. (2) This purpose is to be achieved by— (a) prohibiting certain conduct; and Current as at 29 August 2013 Page 71
Anti-Discrimination Act 1991 Chapter 5 Associated highly objectionable conduct (complaint and penalty) Part 3 Discriminatory advertising [s 127] (b) allowing a complaint under chapter 7 to be made against a person who has engaged in that conduct; and (c) making that conduct an offence; and (d) using the agencies and procedures established under chapter 7 and the QCAT Act to deal with the complaint or offence. Part 3 Discriminatory advertising 127 Discriminatory advertisements (1) A person must not publish or display an advertisement, or authorise its publication or display, if the advertisement indicates that a person intends to act in a way that contravenes the Act. Maximum penalty— (a) in the case of an individual—35 penalty units; or (b) in the case of a corporation—170 penalty units. (1A) To remove any doubt, subsection (1) does not apply to an advertisement so far as it advertises for a worker who is under 21 years of age, whether by specifying a particular age, a particular age group or otherwise. Example An employer may advertise for an 18 year old sales assistant or for a 15 to 17 year old sales assistant. (2) It is a defence to a complaint made under the Act for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable precautions to prevent the publication or display happening. Page 72 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 5 Associated highly objectionable conduct (complaint and penalty) Part 4 Victimisation [s 128] (3) It is an excuse to an offence against subsection (1) if the defendant took reasonable precautions to prevent the publication or display happening. 128 Inducement A person must not knowingly or recklessly make a false or misleading statement to another person in order to induce the publication or display of an unlawful advertisement. Maximum penalty— (a) in the case of an individual—35 penalty units; or (b) in the case of a corporation—170 penalty units. Part 4 Victimisation 129 Victimisation A person must not victimise another person. Maximum penalty— (a) in the case of an individual—45 penalty units or imprisonment for 3 months; or (b) in the case of a corporation—170 penalty units. 130 Meaning of victimisation (1) Victimisation happens if a person (the respondent ) does an act, or threatens to do an act, to the detriment of another person (the complainant )— (a) because the complainant, or a person associated with, or related to, the complainant— (i) refused to do an act that would amount to a contravention of the Act; or Current as at 29 August 2013 Page 73
Anti-Discrimination Act 1991 Chapter 5 Associated highly objectionable conduct (complaint and penalty) Part 4 Victimisation [s 131] (ii) in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or (iii) is, has been, or intends to be, involved in a proceeding under the Act against any person; or (b) because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii). (2) In this section, a reference to involvement in a proceeding under the Act includes— (a) making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and (b) involvement in a prosecution for an offence against the Act; and (c) supplying information and producing documents to a person who is performing a function under the Act; and (d) appearing as a witness in a proceeding under the Act. 131 Victimisation continues even if proceedings etc. do not The application or continued application of section 129 (Victimisation) is not affected by— (a) the failure or otherwise of the complainant or the person associated with, or related to, the complainant, to do 1 of the things mentioned in section 130(1)(a)(i),(ii) or (iii) (Meaning of victimisation); or (b) the withdrawal, failure to pursue, or determination of a proceeding under the Act. Page 74 Current as at 29 August 2013
Chapter 5A Anti-Discrimination Act 1991 Chapter 5A Serious racial and religious vilification Part 4 Victimisation [s 131A] Serious racial and religious vilification 131A Offence of serious racial, religious, sexuality or gender identity vilification (1) A person must not, by a public act, knowingly or recklessly incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group in a way that includes— (a) threatening physical harm towards, or towards any property of, the person or group of persons; or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons. Maximum penalty— (a) for an individual—70 penalty units or 6 months imprisonment; or (b) for a corporation—350 penalty units. (2) A Crown Law Officer’s written consent must be obtained before a proceeding is started by complaint under the Justices Act 1886 in relation to an offence under subsection (1). (3) An offence under subsection (1) is not an offence for section 155(2) or 226. (4) In this section— Crown Law Officer means the Attorney-General or Director of Public Prosecutions. Current as at 29 August 2013 Page 75
Anti-Discrimination Act 1991 Chapter 6 Liability for contraventions of workers and agents (complaint) [s 132] Chapter 6 Liability for contraventions of workers and agents (complaint) 132 Act’s vicarious liability purpose and how it is to be achieved (1) One of the purposes of the Act is to promote equality of opportunity for everyone by making a person liable for certain acts of the person’s workers or agents. (2) This purpose is to be achieved by making a person civilly liable for a contravention of the Act by the person’s workers or agents. 133 Vicarious liability (1) If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both. (2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act. Page 76 Current as at 29 August 2013
Chapter 7 Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 134] Enforcement Part 1 What the Anti-Discrimination Commission may do Division 1 The complaint process Subdivision 1 All complaints 134 Who may complain (1) Any of the following people may complain to the commissioner about an alleged contravention of the Act— (a) a person who was subjected to the alleged contravention; (b) an agent of the person; (c) a person authorised in writing by the commissioner to act on behalf of a person who was subjected to the alleged contravention and who is unable to make or authorise a complaint. (2) Two or more people may make a complaint jointly. (3) A relevant entity may complain to the commissioner about a relevant alleged contravention. (4) However, the commissioner may accept the relevant entity’s complaint under section 141 only if the commissioner is satisfied that— (a) the complaint is made in good faith; and (b) the relevant alleged contravention is about conduct that has affected or is likely to affect relevant persons for the relevant entity; and (c) it is in the interests of justice to accept the complaint. Current as at 29 August 2013 Page 77
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 135] (5) In this section— relevant alleged contravention means an alleged contravention of section 124A. relevant entity means a body corporate or an unincorporated body, a primary purpose of which is the promotion of the interests or welfare of persons of a particular race, religion, sexuality or gender identity. relevant persons , for a relevant entity, means persons the promotion of whose interests or welfare is a primary purpose of the relevant entity. 135 Complaint may allege more than 1 contravention A person may make a complaint alleging more than 1 contravention of the Act. Example C applies to real estate agent R to rent a house and is asked to fill out a form which includes a question about his country of birth. C is not offered a house, and believes this is on the basis of his national origin. C may make a complaint about being required to answer a question about his national origin contrary to section 124 (Unnecessary information), or a complaint about unlawful discrimination under section 82 (Discrimination in pre-accommodation area), or both. 136 Making a complaint A complaint must— (a) be in writing; and (b) set out reasonably sufficient details to indicate an alleged contravention of the Act; and (c) state the complainant’s address for service; and (d) be lodged with, or sent by post to, the commissioner. Page 78 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 137] 137 Unfair agreements not to complain are not binding (1) The commissioner may accept a complaint from a person who had previously agreed with another person not to complain, if the commissioner is of the reasonable opinion that it is fair to accept the complaint. (2) In assessing whether it is fair to accept the complaint, the commissioner is to consider all the relevant circumstances of the case including— (a) the knowledge of the parties who made the agreement; and (b) what the person who wishes to complain received in return for the agreement. 138 Time limit on making complaints (1) Subject to subsection (2), a person is only entitled to make a complaint within 1 year of the alleged contravention of the Act. (2) The commissioner has a discretion to accept a complaint after 1 year has expired if the complainant shows good cause. 139 Commissioner must reject frivolous, trivial etc. complaints The commissioner must reject a complaint if the commissioner is of the reasonable opinion that the complaint is— (a) frivolous, trivial or vexatious; or (b) misconceived or lacking in substance. 140 Commissioner may reject or stay complaints dealt with elsewhere (1) The commissioner may reject or stay a complaint if— Current as at 29 August 2013 Page 79
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 141] (a) there are concurrent proceedings in a court or tribunal in relation to the act or omission the subject of the complaint; or (b) the commissioner reasonably considers the act or omission that is the subject of the complaint may be effectively or conveniently dealt with by another entity. (2) The commissioner may also reject a complaint if the commissioner reasonably considers the act or omission the subject of the complaint has been adequately dealt with by another entity. (3) A time limit for doing anything under this Act in relation to a complaint does not run while a complaint is stayed. 141 Time limit on acceptance or rejection of complaints (1) The commissioner must decide whether to accept or reject a complaint within 28 days of receiving the complaint. (2) The commissioner must promptly notify the complainant of the decision. 142 Reasons for rejected complaints (1) If a complaint is rejected, it lapses and the complainant is not entitled to make a further complaint relating to the act or omission that was the subject of the complaint. (2) If a complaint is rejected, the complainant may, within 28 days of receiving notice of the rejection, ask the commissioner for written reasons. (3) If requested, the commissioner must promptly give the complainant written reasons for the rejection. 143 Respondent is to be notified of accepted complaint (1) If a complaint is accepted, the commissioner must promptly notify the respondent in writing of the substance of the complaint. Page 80 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 143] (2) The notice to the respondent must also state the following— (a) the complainant’s address for service; (b) that the respondent must advise the commissioner of the respondent’s address for service; (c) that the respondent may give a written response to the allegations included in the complaint; (d) that within 28 days after the respondent receives the notice, the respondent must, if giving a written response— (i) give the written response to the commissioner; and (ii) give a copy of the written response to the complainant and any other respondent; (e) that the respondent must include, with the written response given to the commissioner, advice as to whether it has been given to the complainant and any other respondent; (f) that the respondent may ask the commissioner for an early conciliation conference whether or not the respondent gives a written response; (g) that if the respondent does not, within the 28 days mentioned in paragraph (d), give the commissioner a written response or ask the commission to arrange for an early conciliation conference, a conciliation conference will be held on a date stated in the notice. (2A) The respondent must advise the commissioner in writing of the respondent’s address for service. (2B) If the respondent is giving a written response, the respondent must also— (a) give the written response to the commissioner and give a copy of the written response to the complainant and any other respondent; and Current as at 29 August 2013 Page 81
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 144] (b) advise the commissioner whether the written response, or a copy of the written response, has been given to the complainant and any other respondent. (3) If the respondent does not, within the 28 days mentioned in subsection (2)(d), give the commissioner a written response or ask the commission to arrange for an early conciliation conference, the notice has effect as a direction under section 159(1) to the respondent to take part in a conciliation conference on the date stated in the notice under subsection (2)(g). (4) The giving of the notice to the respondent does not stop the commissioner from exercising, at any time, the commissioner’s power under section 159(1) to direct the complainant and the respondent to take part in a conciliation conference— (a) whether or not the 28 days mentioned in subsection (2)(d) has expired; and (b) whether or not the commissioner has received any communication from the respondent. (5) The stated date for subsection (2)(g) must be not more than 14 days after the 28 days mentioned in subsection (2)(d). 144 Applications for orders protecting complainant’s interests (before reference to tribunal) (1) At any time before a complaint is referred to the tribunal, the complainant or the commissioner may apply, as provided under the QCAT Act, to the tribunal for an order prohibiting a person from doing an act that might prejudice— (a) the investigation or conciliation of the complaint; or (b) an order that the tribunal might make after a hearing. (2) A party or the commissioner may apply, as provided under the QCAT Act, to the tribunal for an order varying or revoking an order made under subsection (1). Page 82 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 145] (3) If the tribunal is satisfied it is in the interests of justice, an application for an order under subsection (1) may be heard in the absence of the respondent to the application. 145 Anonymity (1) If, any time before a complaint is referred to the tribunal, the commissioner is of the reasonable opinion that the preservation of anonymity of a person who is, or has been, involved in a proceeding under the Act is necessary to protect the work security, privacy or any human right of the person, the commissioner may give a direction prohibiting the disclosure of the person’s identity. (2) A person must comply with a direction. Maximum penalty— (a) in the case of an individual—35 penalty units; or (b) in the case of a corporation—170 penalty units. (3) It is an excuse to an offence against subsection (2) if the defendant has a reasonable excuse. (4) In this section, a reference to involvement in a proceeding under the Act includes— (a) making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and (b) being a respondent to such a complaint; and (c) involvement in a prosecution for an offence against the Act; and (d) supplying information and producing documents to a person who is performing a function under the Act; and (e) appearing as a witness in a proceeding under the Act. Current as at 29 August 2013 Page 83
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 146] Subdivision 2 Representative complaints 146 Representative complaints (1) If a complaint alleges that a number of people were subjected to the alleged contravention by the respondent, the commissioner must determine whether the complaint should be dealt with by the commissioner as a representative complaint. (2) The tribunal may subsequently make its own determination under section 194. 147 Criteria for determining whether prima facie representative complaint (1) The commissioner may deal with a complaint as a representative complaint if the commissioner is satisfied that— (a) the complainant is a member of a class of people, the members of which have been affected, or are reasonably likely to be affected by, the respondent’s conduct; and (b) the complainant has been affected by the respondent’s conduct; and (c) the class is so numerous that joinder of all of its members is impracticable; and (d) there are questions of law or fact common to all members of the class; and (e) the material allegations in the complaint are the same as, or similar or related to, the material allegations in relation to the other members of the class; and (f) the respondent has acted on grounds apparently applying to the class as a whole. (2) If the commissioner is satisfied that— Page 84 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 148] (a) the complaint is made in good faith as a representative complaint; and (b) the justice of the case demands that the matter be dealt with by means of a representative complaint; the commissioner may deal with the complaint as a representative complaint even if the criteria set out in subsection (1) have not been satisfied. 148 Amendment resulting in representative complaint If the commissioner is satisfied that a complaint could be dealt with as a representative complaint if the class of complainants is increased, reduced or was otherwise altered, the commissioner may amend the complaint so that the complaint can be dealt with as a representative complaint. 149 Amendment resulting in non-representative complaint If the commissioner is satisfied that a complaint has been wrongly made as a representative complaint, the commissioner may amend the complaint by removing the names of any of the complainants so that the complaint can be dealt with as a complaint otherwise than as a representative complaint. 150 Directions about conduct of representative complaint The commissioner may give directions concerning the conduct of a representative complaint while it is being dealt with by the commissioner. 151 Representative complainant must choose (1) A complainant in relation to a representative complaint must choose whether to— (a) proceed before the commissioner as a party to the representative complaint; or Current as at 29 August 2013 Page 85
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 152] (b) make an individual complaint. (2) An election under subsection (1) does not prevent a complainant making a subsequent election under section 199. 152 Non-representative complaint not precluded by representative complaint If a representative complaint is made in respect of certain conduct, a person who is not a complainant in relation to the representative complaint, may make a complaint (other than a representative complaint) in respect of the conduct. Subdivision 3 Complaints by dismissed workers 153 Dismissed worker lodges complaint first If, but for this section— (a) a worker is dismissed in circumstances entitling the worker to— (i) lodge a complaint with the commissioner under the Act; and (ii) apply for industrial relief; and (b) the worker does not apply for industrial relief before lodging a complaint and being notified under section 141 that the complaint has been accepted; the worker may only proceed with the complaint and may not later apply for industrial relief in respect of the circumstances. 154 Dismissed worker applies for industrial relief first If— (a) a worker is dismissed in circumstances entitling the worker to— Page 86 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 154A] (i) lodge a complaint with the commissioner under the Act; and (ii) apply for industrial relief; and (b) the worker applies for industrial relief before lodging a complaint; the worker may proceed with both the complaint and the application for industrial relief, but the tribunal may not make an order in respect of the complaint requiring the reinstatement or re-employment of the worker. Division 2 The investigation process 154A Investigation of complaint The commissioner may investigate a complaint at any time after the complaint is received by the commissioner. 155 Requirement to initiate investigation (1) The commissioner must initiate an investigation if— (a) requested to do so by the Minister; or (b) the tribunal becomes aware of circumstances that may constitute a contravention of the Act and refers the matter to the commissioner. (2) The commissioner may initiate an investigation if— (a) during the course of carrying out the commission’s functions, a possible case of a contravention of the Act against a group or class of people is discovered, the matter is of public concern and the Minister agrees; or (b) an allegation is made that an offence against the Act has been committed; or Current as at 29 August 2013 Page 87
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 156] (c) during the course of carrying out the commission’s functions, a possible offence against the Act is discovered. (3) In conducting an investigation, the commissioner has the same powers as the commissioner has in dealing with a complaint of a contravention of the Act. (4) If a matter investigated under subsection (1)(a), (1)(b) or (2)(a) can not be resolved by conciliation, the commissioner may refer the matter to the tribunal as if it were a complaint. (5) If the commissioner refers the matter to the tribunal under subsection (4), the commissioner is, for the purposes of the QCAT Act, the applicant. (6) This section does not apply to complaints accepted under section 141. 156 Commissioner may obtain information and documents (1) If the commissioner has reason to believe that a person— (a) published or displayed an advertisement that contravenes the Act; or (b) is able to provide information or produce documents relevant to an investigation; the commissioner may direct the person in writing— (c) to give to the commissioner by writing signed by the person, or, in the case of a body corporate, by an officer of the body corporate, the specified information; or (d) to give to the commissioner the specified documents or documents of a specified class; at such place, and within such reasonable period or on such reasonable day and at such time, as are specified in the direction. (2) If documents are given to the commissioner, the commissioner— Page 88 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 157] (a) may take possession of, and may copy or take extracts from, the documents; and (b) may retain possession of the documents for such reasonable period as is necessary for the investigation to which the documents relate; and (c) during that period must allow a person who, if they were not in the possession of the commissioner, would be entitled to inspect any of the documents, to inspect that document at all reasonable times. (3) The commissioner may enforce the direction by filing a copy of it with a court of competent jurisdiction. (4) The direction is then enforceable as if it were an order of the court. (5) A person is not required to give information or a document if the person objects on the ground of legal professional privilege that the person would be entitled to claim if— (a) the person were a witness in a prosecution for an offence in the Supreme Court; and (b) the person were required to give the information or document in the prosecution. 157 Commissioner may obtain actuarial, statistical or other data (1) If a person has done an act of discrimination that would, but for section 61, 62, 63, 74 or 75, be unlawful, the commissioner may direct the person to give the commissioner, within 21 days after service of the direction, any source of the actuarial, statistical or other data on which the act of discrimination was based. (2) The commissioner may enforce the direction by filing a copy of it with a court of competent jurisdiction. (3) The direction is then enforceable as if it were an order of the court. Current as at 29 August 2013 Page 89
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 158] Division 3 The conciliation process 158 Conciliation of complaints If the commissioner believes that a complaint may be resolved by conciliation, the commissioner must try to resolve it in that way. 159 Attendance at conciliation conference (1) The commissioner may direct a person to take part in a conciliation conference. (2) The commissioner may enforce the direction by filing a copy of it with a court of competent jurisdiction. (3) The direction is then enforceable as if it were an order of the court. 160 Party fails to attend conference (1) If a complainant, without reasonable excuse, does not comply with a direction to attend a conciliation conference, the commissioner may dismiss the complaint and direct the complainant to pay costs to the respondent. (2) If a respondent, without reasonable excuse, does not comply with a direction to attend a conciliation conference, the commissioner may direct the respondent to pay costs to the complainant. (3) A party may enforce a direction as to costs by filing a copy of it with a court of competent jurisdiction. (4) The direction is then enforceable as if it were an order of the court. 161 Conference to be held in private A conciliation conference must be held in private. Page 90 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 162] 162 Interpreter may be used A person has a right to use a professional or voluntary interpreter at a conciliation conference. 163 Representative may be used with permission A person may be represented by another person at a conciliation conference, with the commissioner’s permission. 164 Resolution by conciliation (1) If the complaint is resolved by conciliation, the commissioner must record the terms of the agreement and have the document signed by the complainant and the respondent. (2) The commissioner must provide a copy of the document to each party and file the document with the tribunal. (3) The agreement is then enforceable as if it were an order of the tribunal. 164AA Confidentiality of conciliation Nothing said or done in the course of conciliation of a complaint may be included in any document prepared by the commission when referring the complaint to the tribunal. Division 4 Unconciliated complaints 164A Right of complainant to seek referral to tribunal after conciliation conference (1) This section applies if— (a) a conciliation conference has been held under division 3 in relation to a complaint; and (b) the complaint has not been resolved by conciliation. Current as at 29 August 2013 Page 91
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 165] (2) The complainant may give the commissioner a written notice requiring the commissioner to refer the complaint to the tribunal. (3) The commissioner must promptly— (a) refer the complaint to the tribunal; and (b) give the respondent a copy of the complaint. (4) However the commissioner is not required to act under subsection (3) if the commissioner decides to act under section 168 in relation to the complaint. (5) If the complainant acts under subsection (2), sections 165 to 167 stop applying in relation to the complaint. (6) The complainant is the applicant for the purposes of the QCAT Act. 165 Complaints which are not resolved by conciliation (1) If the commissioner believes that a complaint can not be resolved by conciliation, the commissioner must promptly tell the complainant and the respondent by written notice. (2) The obligation in subsection (1) arises whether or not conciliation has been attempted. (3) If the commissioner gives notice under subsection (1), sections 164A and 167 stop applying in relation to the complaint. 166 Complainant may obtain referral of unconciliated complaint (1) A complainant is entitled to require the commissioner to refer a complaint to the tribunal by making a written request within 28 days of being notified that the complaint can not be resolved by conciliation. (2) The commissioner may extend the time limit if— Page 92 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 167] (a) the complainant asks the commissioner, in writing, for an extension within the 28 days; and (b) the commissioner considers that there are reasonable grounds for the request; and (c) the commissioner considers that the extension will not cause undue hardship to the respondent. (3) If the complainant asks for the extension, the day the complainant asks for the extension, the day the complainant is given written notice of the commissioner’s decision about the extension and any period between those days, is not included in the period mentioned in subsection (1) within which the complaint may be referred to the tribunal. (4) However, if the complainant asks for the extension on the last day of the period mentioned in subsection (1) and the extension is subsequently refused, the complainant may require the commissioner to refer the complaint to the tribunal by making a written request on the day the complainant receives written notice of the refusal or on the next day that is a business day. (5) The complainant is the applicant for the purposes of the QCAT Act. 167 Complainant or respondent may seek referral after 6 months (1) If the commissioner has not finished dealing with a complaint 6 months after informing the complainant and the respondent that the complaint has been accepted, either the complainant or the respondent may, by written notice, request the commissioner to refer the complaint to the tribunal. (2) The commissioner may defer acting on a request for up to 28 days, if there is a significant prospect that the matter can be resolved by conciliation within that period. (3) If the matter is not resolved at the end of 28 days, the procedures in subsection (4) or (5) apply. Current as at 29 August 2013 Page 93
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 168] (4) If the respondent requests the commissioner to refer the complaint— (a) the commissioner must ask the complainant whether the complainant agrees to the complaint being referred; and (b) if the complainant agrees in writing—the commissioner must refer the complaint to the tribunal; and (c) if the complainant does not agree in writing within 28 days—the complaint lapses, and the complainant can not make a further complaint relating to the act or omission that was the subject of the complaint; and (d) the commissioner may extend the 28 day period, but only if the complainant asks, in writing, for an extension before the 28 days have passed. (5) If the complainant requests the commissioner in writing, to refer the complaint, the commissioner must comply. (6) If the commissioner refers the complaint to the tribunal, the commissioner must promptly give the respondent a copy of the complaint. (7) The complainant is the applicant for the purposes of the QCAT Act. Division 5 Lapsed or withdrawn complaints or authorisation 168 Frivolous etc. complaint lapses (1) This section applies if, at any time after a complaint is accepted and before it is referred to the tribunal, the commissioner is of the reasonable opinion that the complaint is— (a) frivolous, trivial or vexatious; or (b) misconceived or lacking in substance. Page 94 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 168A] (2) The commissioner must tell the complainant in writing that, unless the complainant is able to show to the commissioner’s satisfaction within 28 days that the complaint is not frivolous, trivial, vexatious, misconceived or lacking in substance— (a) the complaint will lapse; and (b) if the complaint lapses, the complainant can not make a further complaint relating to the act or omission that was the subject of the complaint. (3) If, at the end of 28 days, the commissioner is of the reasonable opinion that the complaint is— (a) frivolous, trivial or vexatious; or (b) misconceived or lacking in substance; the commissioner must write to the complainant and respondent as soon as practicable to tell them that the complaint has lapsed. (4) The complaint then lapses, and the complainant can not make a further complaint relating to the act or omission that was the subject of the complaint. 168A Complaint may lapse if dealt with elsewhere (1) This section applies if after a complaint is accepted and before it is referred to the tribunal, the commissioner reasonably considers the act or omission the subject of the complaint— (a) has been adequately dealt with by another entity; or (b) may be effectively or conveniently dealt with by another entity. (2) The commissioner may give the complainant a notice (a show cause notice ) inviting the complainant to show cause why the complaint should not lapse. (3) A show cause notice must— (a) be in writing; and Current as at 29 August 2013 Page 95
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 169] (b) state that the complaint may lapse unless the complainant is able to show to the commissioner’s satisfaction that the act or omission that is the subject of the complaint has not been adequately dealt with, or may not be effectively or conveniently dealt with, by another entity; and (c) state that if the complaint lapses, the complainant can not make a further complaint relating to the act or omission the subject of the complaint; and (d) state that the complainant may, within 28 days after receipt of the notice, make written representations to the commissioner about why the complaint should not lapse. (4) If, after considering any submissions made within the show cause period, the commissioner reasonably considers either of the following applies, the commissioner must give the complainant written notice that the complaint has lapsed— (a) the act or omission the subject of the complaint has been adequately dealt with by another entity; (b) the act or omission the subject of the complaint may be more effectively or conveniently dealt with by another entity. (5) If the commissioner gives the complainant a notice under subsection (4)— (a) the complaint lapses; and (b) the complainant can not make a further complaint relating to the act or omission the subject of the complaint. 169 Complaint may lapse if complainant loses interest (1) If the commissioner is of the reasonable opinion that a complainant has lost interest in continuing with a complaint, the commissioner must tell the complainant in writing that— Page 96 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 170] (a) the complaint will lapse unless the complainant indicates that the complainant wishes to continue with it; and (b) if the complaint lapses, the complainant can not make a further complaint relating to the act or omission that was the subject of the complaint. (2) If the complainant does not give the indication within 28 days, the complaint lapses, and the commissioner must write to the complainant and the respondent as soon as practicable to tell them that the complaint has lapsed. (3) Within 28 days of being notified that the complaint has lapsed, the complainant may apply to the tribunal to review the commissioner’s decision. (4) If the tribunal is satisfied that the complainant has a genuine interest in continuing with the complaint, the commissioner must resume dealing with the complaint. (5) The complainant can not make a further complaint relating to the act or omission that was the subject of the complaint. 170 Complainant may withdraw complaint (1) This section applies if a complainant gives the commissioner written notice that the complainant does not want to continue with the complaint. (2) The commissioner must— (a) give the complainant a written notice stating that— (i) the complaint will lapse at the end of 28 days after the notice is given (the relevant period ) unless the complainant gives the commissioner another written notice (a continuation notice ) that the complainant intends to continue with the complaint; and (ii) if the complaint lapses, the complainant can not make a further complaint relating to the act or omission the subject of the complaint; and Current as at 29 August 2013 Page 97
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 1 What the Anti-Discrimination Commission may do [s 171] (b) cease dealing with the complaint. (3) If the complainant gives the commissioner a continuation notice within the relevant period, the commissioner must resume dealing with the complaint. (4) If the complainant does not give the commissioner a continuation notice within the relevant period— (a) the complaint lapses on the day after the relevant period ends; and (b) the complainant can not make a further complaint relating to the act or omission the subject of the complaint. (5) If a complaint lapses under subsection (4), the commissioner must, as soon as practicable after the lapse, give the respondent written notice the complaint has lapsed. 171 Commissioner may withdraw authorisation (1) The commissioner may withdraw an authorisation for a person to act on behalf of another person who could not make a complaint if the commissioner believes there is good reason to do so. (2) The commissioner may, in writing, authorise another person to act on behalf of the complainant. (3) If no further authorisation has been requested within 28 days of the withdrawal of the original authorisation— (a) the complaint lapses; and (b) the commissioner must tell the complainant and the respondent in writing that the complaint has lapsed. Page 98 Current as at 29 August 2013
Division 6 Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 2 What the tribunal may do [s 172] Miscellaneous 172 Commissioner may extend time limits The commissioner may extend a time limit specified in this part for the doing of anything (whether by a party or the commissioner) if the commissioner is of the reasonable opinion that— (a) the extension will not cause undue hardship to any party; and (b) there are reasonable grounds for granting the extension. 173 Authentication of documents A document requiring authentication by the commission or commissioner is sufficiently authenticated if signed by the commissioner. 174 Judicial notice of commissioner’s signature Judicial notice must be taken of the signature of the commissioner if it appears on a document issued by the commission or commissioner. Part 2 What the tribunal may do Division 1A Tribunal’s functions 174A Functions The tribunal has the following functions— (a) to hear and decide complaints that this Act has been contravened; Current as at 29 August 2013 Page 99
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 2 What the tribunal may do [s 175] (b) to grant exemptions from this Act; (c) to provide opinions about the application of this Act; (d) any other functions conferred on the tribunal under this Act; (e) to take any action incidental or conducive to the discharge of a function mentioned in paragraphs (a) to (d). Division 1 The pre-hearing process Subdivision 1 All complaints 175 Time limit on referred complaints (1) The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to the commissioner more than 1 year after the alleged contravention of the Act. (2) If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so. 176 Constitution of tribunal Subject to section 228A, the tribunal is constituted by 1 legally qualified member of the tribunal for the purpose of conducting a hearing. 177 Tribunal may join a person as a party Without limiting the QCAT Act, section 42, the tribunal may join a person as a party to a proceeding whether or not the Page 100 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 2 What the tribunal may do [s 178] person was a complainant for, or respondent to, the complaint to which the proceeding relates. 178 Complaints may be amended (1) The tribunal may allow a complainant to amend a complaint. (2) Subsection (1) applies even if the amendment concerns matters not included in the complaint. 185 Solicitor or counsel assisting the tribunal The tribunal may make arrangements for a solicitor or counsel to appear at a proceeding to assist the tribunal. 186 Officer assisting the tribunal (1) The tribunal may make arrangements for an officer of the commission to appear at a proceeding to assist the tribunal. (2) An officer assisting the tribunal is subject to the tribunal’s direction and control. 189 Resolution before tribunal order (1) If the complainant and the respondent resolve the complaint before it has been determined by the tribunal, they must record the terms of the agreement in a document signed by the complainant and the respondent and file the document with the tribunal. (2) The tribunal must provide a copy of the document to each party. (3) The agreement is then enforceable as if it were an order of the tribunal. Current as at 29 August 2013 Page 101
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 2 What the tribunal may do [s 191] 191 Anonymity (1) If the tribunal is of the reasonable opinion that the preservation of anonymity of a person who has been involved in a proceeding under the Act is necessary to protect the work security, privacy or any human right of the person, the tribunal may make an order prohibiting the disclosure of the person’s identity. (2) A person must comply with an order. Maximum penalty—100 penalty units. (3) In this section, a reference to involvement in a proceeding under the Act includes— (a) making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and (b) being a respondent to such a complaint; and (c) involvement in a prosecution for an offence against the Act; and (d) giving information or documents to a person who is performing a function under the Act; and (e) appearing as a witness in a proceeding under the Act. 193 Complainant may withdraw complaint (1) The tribunal is not to continue to deal with a complaint if the complainant, or the person who authorised the complaint to be made, gives written notice that the person does not want to continue with the complaint. (2) The complaint then lapses. (3) The tribunal is to write to the respondent as soon as practicable to tell the respondent that the complaint has lapsed. Page 102 Current as at 29 August 2013
Subdivision 2 Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 2 What the tribunal may do [s 194] Representative complaints 194 Representative complaints If a complaint alleges that the respondent contravened the Act against a number of people, the tribunal must determine, as a preliminary matter, whether the complaint should be dealt with by it as a representative complaint. 195 Criteria for determining whether representative complaint (1) The tribunal may deal with a complaint as a representative complaint if the tribunal is satisfied that— (a) the complainant is a member of a class of people, the members of which have been affected, or are reasonably likely to be affected by, the respondent’s conduct; and (b) the complainant has been affected by the respondent’s conduct; and (c) the class is so numerous that joinder of all of its members is impracticable; and (d) there are questions of law or fact common to all members of the class; and (e) the material allegations in the complaint are the same as, or similar or related to, the material allegations in relation to the other members of the class; and (f) the respondent has acted on grounds apparently applying to the class as a whole. (2) If the tribunal is satisfied that— (a) the complaint is made in good faith as a representative complaint; and (b) the justice of the case demands that the matter be dealt with by means of a representative complaint; Current as at 29 August 2013 Page 103
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 2 What the tribunal may do [s 196] the tribunal may deal with the complaint as a representative complaint even if the criteria set out in subsection (1) have not been satisfied. 196 Amendment resulting in representative complaint If the tribunal is satisfied that a complaint could be dealt with as a representative complaint if the class of complainants was increased, reduced or otherwise altered, the tribunal may amend the complaint so that the complaint can be dealt with as a representative complaint. 197 Amendment resulting in non-representative complaint If the tribunal is satisfied that a complaint has been wrongly made as a representative complaint, the tribunal may amend the complaint by removing the names of any of the complainants so that the complaint can be dealt with as a complaint otherwise than as a representative complaint. 198 Directions about conduct of representative complaint The tribunal may give directions concerning the conduct of a representative complaint. 199 Representative complainant must choose A complainant in relation to a representative complaint must choose whether to— (a) proceed before the tribunal as a party to the representative complaint; or (b) make an individual complaint. Page 104 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 2 What the tribunal may do [s 200] 200 Non-representative complaint not precluded by representative complaint If a representative complaint is made in respect of certain conduct, a person who is not a complainant in relation to the representative complaint, may make a complaint (other than a representative complaint) in respect of the conduct. Division 2 The hearing process 204 Burden of proof—general principle It is for the complainant to prove, on the balance of probabilities, that the respondent contravened the Act, subject to the requirements in sections 205 and 206. 205 Burden of proof—indirect discrimination In a case involving an allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable. 206 Burden of proof—exemptions If the respondent wishes to rely on an exemption, the respondent must raise the issue and prove, on the balance of probabilities, that it applies. 207 Commissioner may provide investigation reports (1) The commissioner may give the tribunal a report relating to the investigation of a complaint which the tribunal is hearing. (2) The report must not contain a record of oral statements made by any person in the course of conciliation. (3) The tribunal must give a copy of the report to the complainant and the respondent. Current as at 29 August 2013 Page 105
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 2 What the tribunal may do [s 208] 208 Evaluation of evidence (1) The tribunal is not bound by the rules of evidence and— (a) must have regard to the reasons for the enactment of this Act as stated in the preamble; and (b) may draw conclusions of fact from any proceeding before a court or tribunal; and (c) may adopt any findings or decisions of a court or tribunal that may be relevant to the hearing; and (d) may receive in evidence a report of the commissioner, but only if each party to the hearing has a copy of the report; and (e) may permit any person with an interest in the proceeding to give evidence; and (f) may permit the commissioner to give evidence on any issue arising in the course of a proceeding that relates to the administration of the Act. (2) Nothing said or done in the course of conciliation can be admitted as evidence in a hearing before the tribunal. Division 3 The post-hearing process 209 Orders the tribunal may make if complaint is proven (1) If the tribunal decides that the respondent contravened the Act, the tribunal may make 1 or more of the following orders— (a) an order requiring the respondent not to commit a further contravention of the Act against the complainant or another person specified in the order; (b) an order requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as Page 106 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 2 What the tribunal may do [s 209] compensation for loss or damage caused by the contravention; (c) an order requiring the respondent to do specified things to redress loss or damage suffered by the complainant and another person because of the contravention; (d) an order requiring the respondent to make a private apology or retraction; (e) an order requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order; (f) an order requiring the respondent to implement programs to eliminate unlawful discrimination; (g) an order requiring a party to pay interest on an amount of compensation; (h) an order declaring void all or part of an agreement made in connection with a contravention of this Act, either from the time the agreement was made or subsequently. (2) An order may be made under subsection (1)(b) in favour of a person on whose behalf a representative complaint was made, without the necessity for the person to make an individual complaint, if on the evidence before it the tribunal is able to assess the loss or damage of the person. (3) If, in respect of a representative complaint— (a) the tribunal decides that the respondent contravened the Act; but (b) the tribunal is unable, on the evidence before it at the hearing of the representative complaint, to assess the loss or damage of a person on whose behalf the complaint was made; the person may subsequently make a request for the tribunal to assess the person’s loss or damage. (4) In this section, the specified things a respondent may be required to do, include, but are not limited to— Current as at 29 August 2013 Page 107
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 4 Offences (no complaint) [s 210] (a) employing, reinstating or re-employing a person; or (b) promoting a person; or (c) moving a person to a specified position within a specified time. (5) In this section— damage , in relation to a person, includes the offence, embarrassment, humiliation, and intimidation suffered by the person. 210 Tribunal may dismiss complaint After a hearing, the tribunal may make an order dismissing a complaint. Part 4 Offences (no complaint) Division 1 Creation of offences to assist in enforcement 219 Creation of offences A number of offences are created under the Act to assist in the enforcement of the Act’s purposes. Division 2 Improper communication offence 220 Improper communication of official information (1) A person— (a) who is or has been— Page 108 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 4 Offences (no complaint) [s 220] (i) the commissioner; or (ii) a member of the former Anti-Discrimination Tribunal; or (iii) the registrar of the former Anti-Discrimination Tribunal; or (iv) a member of the staff of the commission or the former Anti-Discrimination Tribunal; or (v) a person acting under the direction or authority of the commissioner or a member of the former Anti-Discrimination Tribunal; or (vi) a person acting under a delegation under section 244; and (b) who, in that capacity, acquired information about a person’s affairs or has custody of, or access to, a document about a person’s affairs; must not— (c) make a record of the information; or (d) communicate the information or produce the document to another person. Maximum penalty— (a) in the case of an individual—85 penalty units or imprisonment for 12 months; or (b) in the case of a corporation—170 penalty units. (2) Subsection (1) does not apply to making a record of information, communicating information or producing a document if— (a) that is required for the performance of a function in connection with this Act; or (b) that is required or permitted by another Act (whether of the Commonwealth or a State). Current as at 29 August 2013 Page 109
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 4 Offences (no complaint) [s 221] (3) Subsection (1) does not apply to communicating information or producing a document to a person in accordance with an arrangement under part 3 of chapter 9 (Commonwealth/State arrangement). (4) In this section— former Anti-Discrimination Tribunal means the Anti-Discrimination Tribunal established under previous section 247. previous section 247 means section 247 as in force before its repeal by the QCAT Amendment Act. produce includes permit access to. QCAT Amendment Act means the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 . Division 3 Offences against the commissioner and staff 221 False or misleading information A person must not knowingly or recklessly provide false or misleading information to a person performing a function under the Act. Maximum penalty— (a) in the case of an individual—45 penalty units or imprisonment for 3 months; or (b) in the case of a corporation—170 penalty units. 222 Obstruction A person must not consciously hinder or use insulting language towards a person who is performing a function under the Act. Page 110 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 4 Offences (no complaint) [s 223] Maximum penalty— (a) in the case of an individual—35 penalty units; or (b) in the case of a corporation—170 penalty units. 223 Contempt of commission (1) In addition to the acts or omissions for which a penalty or civil consequence is expressly provided in part 1, a person must not do another act in relation to the commission that would constitute a contempt of court. (2) For the purposes of the law relating to contempt of court, the commission is to be treated as a court. Division 5 Procedure 226 Proceedings for offences (1) A prosecution for an offence against the Act is to be by way of summary proceeding under the Justices Act 1886 on complaint of— (a) the commissioner; or (b) a person authorised by the commissioner for that purpose. (2) A proceeding for an offence against the Act is to be taken— (a) within 1 year after the offence is committed; or (b) within 6 months after the offence comes to the commissioner’s knowledge; whichever period ends last, but a proceeding is not to be taken more than 2 years after the offence is committed. (3) In addition to the places where a complaint for an offence against the Act may be heard under section 139 of the Justices Act 1886 , the complaint may also be heard at a place within Current as at 29 August 2013 Page 111
Anti-Discrimination Act 1991 Chapter 7 Enforcement Part 4 Offences (no complaint) [s 226A] the Magistrates Courts’ district in which the defendant resides. (4) The authority of a person referred to in subsection (1)(b) to make a complaint is to be presumed until the contrary is proved. 226A Continuing prohibition on identity disclosure (1) This section applies if— (a) under section 191(1), the tribunal makes an order prohibiting the disclosure of the identity of a person (the relevant person ); and (b) a court is hearing— (i) a prosecution for an offence under section 191(2) relating to the order; or (ii) an appeal relating to a prosecution for an offence under section 191(2) relating to the order; and (c) the court considers that the preservation of the anonymity of the relevant person is necessary to protect the work security, privacy or any human right of the relevant person. (2) The court may make an order prohibiting the disclosure of the relevant person’s identity. (3) A contravention of an order made under subsection (2) is a contempt of the court. Page 112 Current as at 29 August 2013
Part 5 Anti-Discrimination Act 1991 Chapter 8 Opinions Part 5 Proceedings involving unincorporated association [s 227] Proceedings involving unincorporated association 227 Unincorporated association represented by committee member (1) If a proceeding under this Act involves an unincorporated association— (a) the president; or (b) the secretary; or (c) another member of the committee of management; is to be the nominal party. (2) If the nominal party ceases to hold office, the person’s successor (whether or not acting) is to be substituted as the nominal party. Chapter 8 Opinions 228 Commissioner may seek tribunal opinion If a person asks the commissioner for advice about how the Act applies in a specific situation, the commissioner may ask the tribunal for its opinion. 228A Constitution of tribunal for this chapter For the purpose of providing an opinion under this chapter, the tribunal must be constituted by a judicial member. Current as at 29 August 2013 Page 113
Anti-Discrimination Act 1991 Chapter 8 Opinions Part 5 Proceedings involving unincorporated association [s 229] 229 Tribunal has discretion The tribunal has a discretion whether or not to provide an opinion. 230 Tribunal may request further information If the tribunal decides to provide an opinion, it may require the person who requested the advice to provide information relevant to the matter. 231 No complaint if compliance with opinion A person may not make a complaint under the Act against a person acting in accordance with an opinion provided by the tribunal in response to a request for advice from the person. 232 Revocation of opinion The tribunal may revoke an opinion if— (a) it formed the opinion on the basis of false or misleading information; or (b) the Supreme Court or the High Court makes a contrary ruling on a question of law covered by the opinion. 233 Appeal from opinion (1) The commissioner, or a person with a relevant interest, may appeal, as provided under the QCAT Act, against a tribunal opinion. (2) For an appeal by a person with a relevant interest, the person is taken to have been a party to the request for the opinion. Page 114 Current as at 29 August 2013
Chapter 9 Anti-Discrimination Act 1991 Chapter 9 Administration Part 1 The Anti-Discrimination Commission [s 234] Administration Part 1 The Anti-Discrimination Commission 234 The Anti-Discrimination Commission and Commissioner (1) An Anti-Discrimination Commission is established. (2) There is to be an Anti-Discrimination Commissioner. (3) The commission consists of the commissioner and the staff of the commission. 235 Commission’s functions The commission has the following functions— (a) to inquire into complaints and, where possible, to effect conciliation; (b) to carry out investigations relating to contraventions of the Act; (c) to examine Acts and, when requested by the Minister, proposed Acts, to determine whether they are, or would be, inconsistent with the purposes of the Act, and to report to the Minister the results of the examination; (d) to undertake research and educational programs to promote the purposes of the Act, and to coordinate programs undertaken by other people or authorities on behalf of the State; (e) to consult with various organisations to ascertain means of improving services and conditions affecting groups that are subjected to contraventions of the Act; (f) when requested by the Minister, to research and develop additional grounds of discrimination and to make Current as at 29 August 2013 Page 115
Anti-Discrimination Act 1991 Chapter 9 Administration Part 1 The Anti-Discrimination Commission [s 236] recommendations for the inclusion of such grounds in the Act; (g) such functions as are conferred on the commission under another Act; (h) such functions as are conferred on the commission under an arrangement with the Commonwealth under part 3; (i) to promote an understanding and acceptance, and the public discussion, of human rights in Queensland; (j) if the commission considers it appropriate to do so—to intervene in a proceeding that involves human rights issues with the leave of the court hearing the proceeding and subject to any conditions imposed by the court; (k) such other functions as the Minister determines; (l) to take any action incidental or conducive to the discharge of the above functions. 236 Commissioner’s powers (1) The commissioner has the powers given by the Act. (2) The commissioner also has power to do all things that are necessary or convenient to be done for or in connection with the performance of the commission’s functions. (3) If the commissioner, in exercising its powers, asks a person to give the commissioner a document or other material, the commissioner may include with the request a requirement that the giving of the document or other material be done within the time stated in the requirement. 237 Financial administration For the purposes of the Financial Accountability Act 2009 , the commission is a statutory body within the meaning of that Act. Page 116 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 9 Administration Part 1 The Anti-Discrimination Commission [s 237A] 237A Commission is statutory body (1) The commission is a statutory body for the Statutory Bodies Financial Arrangements Act 1982 . (2) The Statutory Bodies Financial Arrangements Act 1982 , part 2B sets out the way in which the commission’s powers under this Act are affected by the Statutory Bodies Financial Arrangements Act 1982 . 238 Appointment of commissioner (1) The commissioner is to be appointed by the Governor in Council. (2) Subject to sections 242 and 243, the commissioner holds office for such term (not longer than 7 years) as is specified in the instrument of appointment. (3) The commissioner is to be appointed under this Act, and not under the Public Service Act 2008 . 239 Terms of appointment (1) The commissioner is to be paid such remuneration and allowances as are determined by the Governor in Council. (2) The commissioner holds office on such terms, not provided for by the Act, as are determined by the Governor in Council. 240 Preservation of rights If a public service officer is appointed as the commissioner, the person retains— (a) any long service leave and other leave entitlements accrued or accruing; and (b) any other rights and entitlements accrued or accruing under that Act and any other Act; as if the person’s service as commissioner were a continuation of the person’s service as a public service officer. Current as at 29 August 2013 Page 117
Anti-Discrimination Act 1991 Chapter 9 Administration Part 1 The Anti-Discrimination Commission [s 241] 241 Leave of absence The Minister may grant leave of absence to the commissioner on such terms as the Minister considers appropriate. 242 Resignation The commissioner may resign by signed notice delivered to the Governor. 243 Termination of appointment (1) The Governor in Council may terminate the appointment of the commissioner if the commissioner— (a) becomes physically or mentally incapable of satisfactorily performing the duties of office; or (b) is guilty of misconduct of a kind that could warrant dismissal from the public service if the Anti-Discrimination Commissioner were an officer of the public service; or (c) is absent, without the Minister’s leave and without reasonable excuse, for 14 consecutive days or 28 days in any 12 months. (2) The Governor in Council must terminate the appointment of the commissioner if the commissioner— (a) is convicted of an indictable offence (whether in Queensland or elsewhere); or (b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or (c) engages in paid employment outside the duties of office without the Minister’s approval. Page 118 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 9 Administration Part 3 Commonwealth/State arrangement [s 244] 244 Delegation of power by commissioner The commissioner may delegate to a person powers under— (a) this or any other Act; or (b) an arrangement made by the Minister with a Commonwealth Minister. 245 Acting commissioner The Governor in Council may appoint a person to act as commissioner— (a) during a vacancy in the office; or (b) during any period, or during all periods, when the commissioner is absent from duty or from the State or is, for any other reason, unable to perform the duties of the office. 246 Commission staff The staff of the commission are to be employed under the Public Service Act 2008 . Part 3 Commonwealth/State arrangement 258 Performance of functions The Minister may make an arrangement with a Commonwealth Minister for or in relation to— (a) the performance on a joint basis of any functions of the commission or the registrar of the tribunal; or Current as at 29 August 2013 Page 119
Anti-Discrimination Act 1991 Chapter 9 Administration Part 3 Commonwealth/State arrangement [s 259] (b) the performance by the Commonwealth or a Commonwealth instrumentality on behalf of the State of any functions of the commission or the registrar; or (c) the performance by the commission or the registrar of functions on behalf of the Commonwealth. 259 Necessary provisions An arrangement under this part may contain such incidental or supplementary provisions as the Minister and the Commonwealth Minister with whom the arrangement is made, consider necessary. 260 Act performed under arrangement An act done by or in relation to the Commonwealth, or a Commonwealth instrumentality, acting (whether on a joint basis or otherwise) under an arrangement made under this part is taken to have been done by or in relation to the Commission. 261 Alterations The Minister may arrange with the Commonwealth Minister with whom an arrangement is in force under this part for the variation or revocation of the arrangement. 262 Form of alterations An arrangement under this part, or the variation or revocation of such an arrangement, is to be in writing, and a copy of each instrument by which an arrangement under this part is made, varied or revoked, is to be published in the gazette. Page 120 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 10 Miscellaneous Part 1 Service [s 263] 263 Arrangement to prevail To the extent that an arrangement made under this part is inconsistent with sections 237 to 243, 245 and 246, the arrangement is to prevail. Chapter 10 Miscellaneous Part 1 Service 263A Definitions for pt 1 In this part— document includes a copy of a document. give includes provide. relevant party , for a complaint, means the complainant or respondent in relation to the complaint. 263B Operation of pt 1 This part, and not the Acts Interpretation Act 1954 , section 39, applies for the giving of documents under this Act to a relevant party for a complaint. 263C General requirement for address for service The address for service of a relevant party for a complaint as advised to the commissioner must be a residential or business address or a post office box address. Current as at 29 August 2013 Page 121
Anti-Discrimination Act 1991 Chapter 10 Miscellaneous Part 1 Service [s 263E] 263E Change of address for service (1) A relevant party for a complaint may, at any time before the complaint is finally dealt with by the commissioner, give written notice to the commissioner of a change in the relevant party’s address for service. (2) A relevant party for a complaint must give all other relevant parties for the complaint a copy of a written notice given under subsection (1). 263F Use of address for service (1) For a complaint, the address for service of a relevant party for the complaint is the relevant party’s address for service— (a) for the commissioner—as most recently notified to the commissioner; or (b) for another relevant party for the complaint—as most recently notified to the other relevant party. (2) If a document is required or permitted to be given to a relevant party for a complaint, the document is taken to be given to the relevant party if 1 of the following applies— (a) the relevant party is an individual, and the document is handed to the relevant party personally; (b) the document is posted to the relevant party’s address for service; (c) the relevant party’s address for service is a residential address, and the document is left with someone apparently living at the address who is apparently at least 16 years; (d) the relevant party is a body corporate, its address for service is a business address, and the document is left at the address for service. (3) Despite subsection (2)(c) and (d), if the relevant party’s address for service is a residential or business address and is a place in a building or area to which a person delivering a Page 122 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 10 Miscellaneous Part 1 Service [s 263G] document is denied access, the document is taken to be given to the relevant party if it is left at the building or area in a position where it is reasonably likely to come to the attention of the relevant party. (4) Subsection (2)(b) does not stop the relevant party from establishing that the relevant party was not given the document by proving that the document was not delivered to the address for service. (5) If the document is given to a relevant party under subsection (2)(c) or (d) or (3), the giving of the document is taken to have been effected on the business day after the document is left in the way required. 263G Communication effected by giving of document (1) This section applies if the commissioner is required or permitted under this Act, in relation to a complaint, to communicate with a relevant party for the complaint including, for example, by doing any of the following— (a) notifying the relevant party of something, whether or not in writing; (b) asking or telling the relevant party something, whether or not in writing; (c) giving the relevant party reasons for something, whether or not in writing; (d) giving the relevant party a direction, or otherwise ordering the relevant party to do something, whether or not in writing; (e) writing to the relevant party to tell the relevant party something. (2) The commissioner may effect the communication by— (a) putting the substance of the communication into a document; and Current as at 29 August 2013 Page 123
Anti-Discrimination Act 1991 Chapter 10 Miscellaneous Part 1 Service [s 263H] (b) giving the document to the relevant party in a way provided for under this part for the giving of a document to a relevant party for a complaint. Example Section 169(1) includes a requirement for the commissioner to tell a complainant in writing that a complaint will lapse unless the complainant indicates that the complainant wishes to continue with it. The commissioner may tell the complainant about the lapsing of the complaint by including the information in a document and posting the document to the complainant’s address for service. 263H No address for service advised (1) This section applies if the address for service of a relevant party for a complaint is not known— (a) because of the relevant party’s failure to comply with a requirement for advising an address for service; or (b) because the relevant party is a respondent, and has not yet been notified under section 143. (2) The relevant party’s address for service is taken to be— (a) for an individual—the individual’s last known place of business or residence; or (b) for a body corporate—the body corporate’s head office or its principal or registered office. (3) For subsection (1)(a), a relevant party’s failure to comply with a requirement for advising an address for service includes a respondent’s failure to advise the commissioner of the respondent’s address for service after receiving a notice under section 143. 263I Email or fax address (1) A relevant party for a complaint may, as well as advising the relevant party’s address for service, also advise an email address or fax number for the relevant party. Page 124 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 10 Miscellaneous Part 2 Other matters [s 264] (2) If a relevant party for a complaint, in advising an address for service, has also advised an email address or fax number and has stated a preference for the use of the email address or fax number for the service of documents, a document to be given to the relevant party in relation to the complaint may be, but is not required to be, given to the relevant party by using the email address or fax number. Part 2 Other matters 264 No communication of official information to court (1) A person— (a) who is or has been— (i) the commissioner; or (ii) a member of the former Anti-Discrimination Tribunal; or (iii) the registrar of the former Anti-Discrimination Tribunal; or (iv) a member of the staff of the commission or the former Anti-Discrimination Tribunal; or (v) a person acting under the direction or authority of the commissioner or a member of the former Anti-Discrimination Tribunal; or (vi) a person acting under a delegation under section 244; and (b) who, in that capacity, acquired information about a person’s affairs or has access to, or custody of, a document about a person’s affairs; may not be required— (c) to give to a court the information; or Current as at 29 August 2013 Page 125
Anti-Discrimination Act 1991 Chapter 10 Miscellaneous Part 2 Other matters [s 265] (d) to produce in a court the document. (2) Subsection (1) does not apply if giving the information or producing the document— (a) is required for the performance of a function in connection with this Act; or (b) is required or permitted by another Act (whether of the Commonwealth or a State). (3) In this section— court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. produce includes permit access to. 265 Protection from civil actions—exercise of functions etc. (1) A person who is or has been— (a) the commissioner; or (b) a member of the former Anti-Discrimination Tribunal; or (c) the registrar of the former Anti-Discrimination Tribunal; or (d) a member of the staff of the commission or the former Anti-Discrimination Tribunal; or (e) a person acting under the direction or authority of the commissioner or a member of the former Anti-Discrimination Tribunal; or (f) a person acting under a delegation under section 244; incurs no civil liability for an honest act or omission in— (g) the performance or purported performance of functions under the Act; or (h) the exercise or purported exercise of powers under the Act. Page 126 Current as at 29 August 2013
Anti-Discrimination Act 1991 Chapter 10 Miscellaneous Part 2 Other matters [s 266] (2) A liability that would, but for this section, attach to a person mentioned in subsection (1) attaches instead to the State. 266 Protection from civil actions—complaint etc. If— (a) a complaint has been made to the commissioner; or (b) a submission has been made or a document, information or evidence given to the commissioner or the former Anti-Discrimination Tribunal; a person incurs no civil liability in respect of loss, damage or injury of any kind suffered by another person merely because the complaint or submission was made or the document, information or evidence given. 267 Regulation-making power (1) The Governor in Council