Snakes and Ladders:
The impact of exceptions in the
Discrimination Act 1991 on human rights in the ACT
Contents
I.
Introduction
 1
II.
The ‘acts done under statutory authority’ exception - Section 30
 3
III.
The ‘voluntary bodies’ exception - Section 31
 11
IV.
The ‘religious bodies’ and ‘educational institutions conducted for  15
religious purposes’ exceptions - Sections 32 and 33
V.
 20
Conclusion
Appendix A: Comparison of section 30
 22
Appendix B: Comparison of section 31
 31
Appendix C: Comparison of section 32
 34
Appendix D: Comparison of section 33
 39
Research paper by Anisa Naraqi
For the ACT Human Rights Commission
June 2007
Note: This paper was written by Anisa Naraqi for the Human Rights Commission under
the ANU Law Internship Program, supervised and supported by Jenny Earle, Human
Rights and Discrimination Law Policy Adviser of the Human Rights Commission. It
includes detailed appendices comparing the exception provisions in other jurisdictions.
If you have any comments on the issues raised in the paper please send them to
human.rights@act.gov.au
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
INTRODUCTION
The Discrimination Act 1991 (ACT) (‘Discrimination Act’) was the first legislative
attempt to “make certain kinds of discrimination unlawful”1 in the Territory. The
objects of the Discrimination Act are to “eliminate, so far as possible…discrimination
in the areas of work, education, access to premises, the provision of goods, services
[and] facilities”, and “to promote recognition and acceptance within the community of
the equality of men and women” and “the principle of equality of opportunity for all
people”.2
The Human Rights Act 2004 (ACT) (‘HRA’) is the first human rights bill in Australia
and has been lauded as an “enlightened” piece of legislation.3 The “main purpose” of
that Act is to “recognize fundamental civil and political rights in Territory law”, 4 to
“build a human rights culture” in the ACT, to perform an educative function in
promoting “human rights standards”, 5 and to achieve “coherence” between the law and
Australia’s commitment to international civil and political rights.6 The aims of the HRA
and the Discrimination Act overlap. Section 8(3) of the HRA states:
Everyone is equal before the law and is entitled to the equal protection of the law without
discrimination. In particular, everyone has the right to equal and effective protection against
discrimination on any ground.
Section 41(1) of the HRA requires the ACT Human Rights Commission (‘Human
Rights Commission’) to review the effect of territory laws on human rights and report
the results to the Attorney-General. This paper argues that the exceptions contained
sections 30, 31, 32 and 33 of the Discrimination Act are counter-effective to achieving
the goals of that Act and of the HRA. As we try to climb the ‘ladder’ towards
eliminating discrimination in the ACT we are challenged by ‘snakes’ that threaten to
1
Australian Capital Territory Legislative Assembly (1991), Human Rights and Equal Opportunity Bill
1991 – Explanatory Memorandum, [Canberra] 1991: 2.
2
Section 4(a), (c) and (d), Discrimination Act.
3
Evatt E (2004), Falling short on women’s rights: mis-matches between SDA and the international
regime, Castan Centre, Melbourne [Draft for submission]: [19].
Note: The final submission of this paper could not be located. The draft cited here can be found at:
http://www.law.monash.edu.au/castancentre/events/2004/evatt-paper1.pdf
4
Legislative Assembly for the Australian Capital Territory (2003), Human Rights Bill 2003 Explanatory Statement, [Canberra] 2003: 2.
5
Department of Community Justice and Safety (2006), Twelve-Month Review of the Human Rights Act
2004, [Canberra] 2006: 34.
6
As above at n1: 4.
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
drive us further from the goal. The concern of the Human Rights Commission about
this issue has lead to this research paper.
Not all exceptions in anti-discrimination legislation are of concern, indeed they can be
beneficial. For example, the exception for ‘measures intended to achieve equality’ 7 and
the employment exceptions in relation to ‘genuine occupational qualifications’.8
Regarding disability discrimination, the exceptions for ‘unjustifiable hardship’ seek to
balance the rights of persons with a disability against the resources of the employer or
service provider.9 These exceptions can contribute to the effectiveness of antidiscrimination laws. Indeed, a critique10 of the High Court decision of Purvis11
suggested that the absence of “adequate defences” in the Disability Discrimination Act
1992 (Cth) (‘Disability Discrimination Act’) relating to the treatment of students with
disability by an educational institution, led to the Court adopting a narrow and distorted
approach to the substantive definition of direct discrimination.” Exceptions are
important to balancing people’s rights:
In properly structured and well-drafted legislation, balancing the rights of the complainant with
the rights and interests of others would be achieved through appropriate exceptions and
defences.12
Where exceptions are provided they should be carefully constructed to give effect to the
objects and ameliorative purposes of the legislation.
Over the years there have been a number of extensive reviews of exceptions to antidiscrimination laws in Australia. The NSW Law Reform Commission conducted a
review of the Anti-Discrimination Act 1977 (NSW) in 199913, and in 2005 the Scrutiny
of Acts and Regulations Committee in Victoria conducted an inquiry under section 207
(a provision requiring scrutiny of legislation for anti-discrimination purposes) of the
7
Section 27, Discrimination Act.
Sections 34, 42 and 48, Discrimination Act.
9
Sections 47, 49, 51(2), 53, 54 and 55, Discrimination Act.
10
Rattigan K (2004), ‘Case Note: Purvis v New South Wales (Department of Education & Training) – A
Case for Amending the Disability Discrimination Act 1992 (Cth)’, [2004] Melbourne University Law
Review 17.
11
Purvis v New South Wales (Department of Education & Training) (2003) 202 ALR 133 [‘Purvis’].
12
As above at n10: 20.
13
New South Wales Law Reform Commission (1999), Report 92 (1999) – Review of the AntiDiscrimination Act 1977 (NSW), [New South Wales] 1999.
8
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
Equal Opportunity Act 1995 (VIC).14 In 1994 the Australian Law Reform Commission
(ALRC) reported on the effectiveness of the Sex Discrimination Act 1984 (Cth) (‘Sex
Discrimination Act’).15
Drawing on these reports, the aim of this paper is to critically analyse the exceptions in
sections 30, 31, 32 and 33 of the Discrimination Act and to make recommendations for
reform. It is hoped that this paper will assist in informing a productive discussion of the
need to strengthen the Discrimination Act.
I.
The ‘Acts done under statutory authority’ exception – Section 30
The Human Rights Commission is most concerned with section 30 of the
Discrimination Act:
30 Acts done under statutory authority etc
(1) This Act does not make unlawful anything done necessarily for the purpose of complying
with a requirement of—
(a) a Territory law; or
(b) a determination or direction made under a Territory law; or
(c) an order of a court; or
(d) an order made by the tribunal under division 8.4.
(2) The Minister may, in writing, declare that subsection (1) (a) and (b) expire on a day stated in
the declaration.
(3) The declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
(4) Subsection (1) (a) and (b) and this subsection expire on the day stated in the declaration.
The Explanatory Memorandum of the Human Rights and Equal Opportunity Bill 1991
(which became the Discrimination Act) provided for a sunset period in accordance with
section 30(4):
The exception for actions done under ACT laws is a temporary exception which will only apply
for a limited period to allow time for the laws to be brought into line with the policy of the
Bill.16
Scrutiny of Acts and Regulations Committee (2005), ‘Final Report, Chapter 3 – Sections 69 and 207’,
Discrimination in the Law: Inquiry under section 207 of the Equal Opportunity Act 1995, [Victoria]
2005.
Note: This paper used the electronic copy of this report which is found at:
http://www.parliament.vic.gov.au/SARC/Equal_Opportunity/Final/chapterthree.htm
15
Australian Law Reform Commission (1994), ALRC 69 - Equality before the Law: Justice for Women
(Part 1).
14
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
A sunset clause was never declared.
(i)
Comparison with other jurisdictions
States and Territories
Neither South Australia nor Western Australia have ‘statutory authority’ exceptions in
their anti-discrimination legislation.17 The Commissioner for Equal Opportunity in
South Australia has stated that they have not experienced any problems as a result of
not having the exception.18 The ‘statutory authority’ exceptions in NSW and Victorian
anti-discrimination legislation apply to all Acts in Australia19 – whereas section 30 of
the Discrimination Act applies only to “Territory laws”. The exceptions in Tasmania
and the Northern Territory anti-discrimination laws apply to Acts of the respective
State/Territory and Commonwealth.20 In Queensland it applies only to provisions in
existence at the time the section was commenced.21
The Commonwealth
The Racial Discrimination Act 1975 (Cth) (‘Racial Discrimination Act’) does not have
a ‘statutory authority’ exception, and of all anti-discrimination legislation in Australia it
is the most closely modelled on the international treaty which it ratifies.22 The
exception in the Disability Discrimination Act applies to all laws not listed in the
section for a period of three years after commencement of that Act.23 The exceptions in
the Age Discrimination Act 2004 (Cth)24 (‘Age Discrimination Act') and Sex
Discrimination Act25 do not have the “necessity” requirement – making them wider in
scope than section 30 of the Discrimination Act. In 1992 the Commonwealth Sex
Discrimination Commissioner recommended that the ‘statutory authority’ exception be
16
Australian Capital Territory Legislative Assembly (1991), Human Rights and Equal Opportunity Bill
1991 – Explanatory Memorandum, [Canberra] 1991: 10.
17
Equal Opportunity Act 1984 (SA) and Equal Opportunity Act 1984 (WA) respectively.
18
As above at n15: [6th page].
19
Section 54, Anti-Discrimination Act 1977 (NSW) and section 69, Equal Opportunity Act 1995 (VIC)
respectively.
20
Section 24, Anti-Discrimination Act 1998 (TAS) and section 53, Anti-Discrimination Act (NT)
respectively.
21
Section 106, Anti-Discrimination Act 1991 (QLD).
22
As above at n3: [4].
23
Section 47.
24
Section 39.
25
Section 40.
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
repealed from the Sex Discrimination Act. This recommendation was reaffirmed by the
ALRC in 1994.26
(ii)
The scope, interpretation and application of the exception
The position of the High Court
In Waters27 the High Court considered the meaning of the ‘statutory authority’
exception then contained in s 39(e) of the Equal Opportunity Act 1984 (VIC). It was
held that “an act done by a person” that “was necessary for the person to do…in order
to comply with the provision of” any other Act required that a person’s conduct
“occurred pursuant to an actual requirement of an Act and that it was necessary for him
to pursue such a course of conduct”.28 The exception was given a “narrow
construction”:
If the relevant words fell to be construed in isolation, we would favour the wide construction of
them. When par (e)(ii) is construed in its context in the Act, however, it appears to us that the
narrow construction is the preferable one.29
The finding in Waters was specifically with reference to Ministerial directions. A
Minister’s powers are “subject to the general law” and he or she cannot “authorise acts
which, but for the direction, would be unlawful.” Therefore the Minister could not
authorise a corporation to breach the Discrimination Act. However, the situation was
“altogether different from one where the Minister has a statutory duty to give the
direction”.30 Therefore, statutes and Ministerial directions deriving therefrom may
remain above the reach of anti-discrimination legislation containing the ‘statutory
authority’ exception.31
The Scrutiny of Acts and Regulations Committee in Victoria recommended that the
exception be amended to reflect the narrow construction adopted by the High Court and
other jurisdictions.32 However, it also recommended that the exception be repealed or
26
As above at n16: [3.12].
Waters v Public Transport Corporation (1991) 173 CLR 349.
28
Waters, per Mason CJ and Gaudron J at [38]. Emphasis added.
29
Waters, per Mason CJ and Gaudron J at [52].
30
Waters, per Mason CJ and Gaudron J at [40]. Emphasis added.
31
This applies to s 30(1)(a) of the Discrimination Act.
32
As above at n15: [5th page].
27
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
subject to a sunset period and that the courts rely on the normal rules of statutory
interpretation. The Committee considered that a provision ensuring that other Acts are
construed in accordance with human rights standards was a desirable alternative to the
exception as it performs an “important educative function in promoting the centrality of
equal opportunity”.33 The HRA contains such a provision in section 30(1) which states:
“In working out the meaning of a Territory law, an interpretation that is consistent with
human rights is as far as possible to be preferred”.
ACT case law
The party seeking to rely on section 30 of the Discrimination Act bears the onus of
satisfying it.34 Although few decided cases in the ACT have turned on the exception,
staff at the Human Rights Commission have indicated that this section is regularly
pleaded by respondents in defence to discrimination complaints.
In Butcher35 section 30 of the Discrimination Act was narrowly construed.
An
employer (‘the respondent’) invoked section 30 of the Discrimination Act as a defence
to the allegation that he had unlawfully discriminated against Mr Butcher in dismissing
him. The ACT Discrimination Tribunal (‘Tribunal’) examined whether the respondent
was required to comply with a “specific requirement” of section 27(1) of the
Occupational Health and Safety Act 1989 (ACT) (‘OH&S Act’). Regarding scope of
the exception, the Tribunal followed Waters and held that it referred “only to what is
necessary to be done in order to comply with a specific requirement directly imposed
by the relevant provision”.36 The Tribunal considered it arguable that “section 27 of the
OH&S Act does not operate to create an exception to section 30(1)(a) of the
Discrimination Act where the step taken by the employer…involves dismissing the
employee”. It determined that the words “at work” in section 27 of the OH&S Act
imposed a “positive duty to do something at the place of work rather than bringing the
employment relationship to an end”.37 In conclusion, the Tribunal rejected the
33
As above at n15: [6th page].
Section 70, Discrimination Act.
35
Butcher v The Key King Pty Ltd [2000] ACTDT 2 (17 February 2000) [‘Butcher’].
36
Butcher at [32]. Emphasis added.
37
Butcher at [36]. Emphasis added.
34
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
‘statutory authority’ defence because the respondent had not properly satisfied the
requirements of section 27(1) of the OH&S Act.38
In the recent case of Woodbury39 the parents of children affected by Autism (‘the
complainants’) alleged that the ACT Department of Education, Training and Children’s
Youth and Family Services (‘the respondent’) had discriminated against their children
by failing to provide them with early-intervention and education services and by failing
to advise and keep informed the ACT Government about relevant developments in the
treatment of Autism.40 The Department invoked section 30 of the Discrimination Act as
one defence, arguing that “in order to exercise their obligations of reasonable skill and
diligence…and of acting in accordance with directions, the relevant government
officials could not ‘go further than their resources allowed’”.41 The Tribunal did not
consider the decisions of Waters or Butcher and did not apply section 30 to the facts
with any precision. The Tribunal failed to take into account the “necessity” requirement
of the exception. Rather than considering whether there was a “specific requirement
directly imposed” by a certain provision, it found that the potential costs of the program
“may be in breach of various financial provisions applicable in the ACT” and that “to
do so without the specific approval of the legislature, might be contrary to ACT
statute”.42
The Tribunal finally held that “alleged maladministration is not discrimination and the
Discrimination Act is not a tool to be used to force a hearing to query the
implementation of programs”.43 On this technicality it concluded that there was “no
evidence of discrimination”.44
This inconsistency in approaches to the exception by the ACT Discrimination Tribunal
is concerning.
38
Butcher at [36]-[41].
Woodbury & Ors and Australian Capital Territory [2007] ACTDT 4 (5 April 2007) [‘Woodbury’].
40
Woodbury, at [8].
41
Woodbury, at [93].
42
Woodbury, at [94].
43
Woodbury, at [111].
44
Woodbury, at [121].
39
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
(iii)
The
‘front-end
review
mechanism’
and
the
‘legislative
hierarchy’
Part 5 of the HRA provides for the ‘scrutiny of proposed Territory laws’. This is known
as the “front-end review mechanism” as it requires ACT laws to be drafted in
accordance with human rights standards.45 Section 30 of the Discrimination Act is at
odds with this system because it means that all ACT statutes, including those enacted
before the HRA came into force and which were not drafted in accordance with human
rights standards, have the potential to override its anti-discrimination provisions. This
has also placed the Discrimination Act at the bottom end of the legislative hierarchy.
The Scrutiny of Acts and Regulation Committee in Victoria also found that the
‘statutory authority’ exception placed the Equal Opportunity Act 1995 (VIC) “at the
base of the legislative hierarchy”. It found that “it is inappropriate for such a broad
exemption to be given to the government…where non-government entities are subject
to more stringent anti-discrimination standards” and that “there are alternative ways to
allow for laws to discriminate where the discrimination is based on sound public policy
that do not undermine the educative function of the [Equal Opportunity Act]”.46
The Committee inquired into the feasibility of a review of Victorian legislation as
required by section 207 of the Equal Opportunity Act 1995 (VIC):
207 Review of Victorian legislation
The Minister must cause a review of all Acts and enactments (other than municipal council bylaws or local laws) to be undertaken for the purpose of identifying provisions which
discriminate, or may lead to discrimination, against any person.
It considered the “onerous nature” of this undertaking, which had also been a part of the
earlier Equal Opportunity Act 1984:
[T]he Committee considered that an Act-by-Act review was beyond its capacity, given the
limited time and resources available. In its 1993 report, the Committee noted that in the nine
years since the enactment of the Equal Opportunity Act 1984, no review had taken place due to
constraints on the Commissioner’s time and resources. Further, Professor Thornton pointed to
45
46
As above at n15: [10th page].
As above at n15: [4th page].
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
the fact that no review was carried out after the 1993 Committee report, as evidence that section
207 is not an efficient mechanism for dealing with Acts that discriminate.47
The Committee recommended repeal of the exception or failing that, that it be
narrowed in scope. Inserting a “necessity” test into the exception was considered
inadequate because “it does not ask the vital question of whether there are non
discriminatory alternatives”. It recommended that as a minimum measure the exception
should contain a test of reasonableness and apply only to “legislation that specifically
intends to be excluded from the operation of the [Equal Opportunity Act]”. Another
option was to allow the exception to “apply only to prescribed Acts to be temporarily or
permanently excluded from the operation” of the Act as done in the Sex Discrimination
Act, Disability Discrimination Act and Age Discrimination Act, or by way of a “frontend review mechanism” such as the one contained in the HRA. It found these measures
would provide certainty and “alleviate the burden on the complaints-based system”.48
Similarly, in its review of the ‘statutory authority’ exception the NSW Law Reform
Commission suggested that an appropriate mechanism should be put in place to ensure
that “exceptions and exemptions from the operation of anti-discrimination legislation
do not continue for longer than is necessary to achieve their legitimate purpose”.49
Furthermore, “steps should be taken to ensure that subsequent legislation does not
unintentionally weaken the protections give by the [Anti-Discrimination Act 1977
(NSW)] to basic human rights”.50 The Commission concluded that “there appears to be
no justification for a universal overriding exception” and that the ‘statutory authority’
provision should be repealed.51 It considered that “the possibility that unintended
consequences may flow from” repeal of the section was “unlikely” as “the legislation
has now been in force for almost two decades and there are only a handful of cases in
which [the ‘statutory authority’ exception] has been relied upon successfully”.52
47
As above at n15: [3rd page]. Footnotes omitted.
As above at n15: [5th page].
49
As above at n14: [6.32].
50
As above at n14: [6.35].
51
As above at n14: [6.34].
52
As above at n14: [6.37].
48
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
So far, a limited review of ACT laws has taken place with respect to discrimination
against homosexual, bisexual, transgender and intersex people.53 The Human Rights
Commission is also challenged by limited time and resources and the fact that a
comprehensive review has not yet been conducted suggests that it may not be a
practical option. The HRA provides for a system of “front-end review”, which was
considered by the Victorian Committee to mitigate the need for the ‘statutory authority’
exception. Further, as was the case in NSW, the exception has rarely been relied upon
in decided cases in the ACT suggesting that it may be of minimum use.
Recommendation 1:
The Minister should declare a date of expiration for s 30(1)(a) and (b) in accordance
with his powers under s 30(2) of the Discrimination Act.
Recommendation 2:
A sunset period for section 30 of the Discrimination Act should be declared.
Recommendation 3:
The ACT Government should undertake a review to identify discrimination in Territory
laws. The ACT Human Rights Commission should be consulted in this process.
Recommendation 4:
In lieu of a review, the Government should restrict the scope of section 30 by preparing
a list of ACT statutes to which it shall permanently or temporarily apply.
Recommendation 5:
When conducting a review of the Discrimination Act, the ACT Government should
consider inviting the community to make submissions flagging laws that are
discriminatory.
53
Australian Capital Territory Legislative Assembly, Discrimination and Gay, Lesbian, Bisexual,
Transgender and Intersex People in the ACT: government report to the ACT Legislative Assembly,
[Canberra], 2003.
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
II. The ‘voluntary bodies’ exception – Section 31
Section 31 of the Discrimination Act states:
31 Voluntary bodies
Part 3 does not make it unlawful for a voluntary body to discriminate against a person in relation
to—
(a) the admission of people as members of the body; or
(b) the provision of benefits, facilities or services to people, whether the people are members of
the body or otherwise.
It is important to note the exception does not apply to the employment provisions in the
Discrimination Act.
(i)
Comparison with other jurisdictions
In addition to the ACT, only NSW and Western Australia have a ‘voluntary bodies’
exception in their anti-discrimination legislation.54 At the Commonwealth level only the
Age Discrimination Act55 and Sex Discrimination Act56 contain the exception. In each
jurisdiction apart from the ACT the exception applies only to members with respect to
provision of services etc.
In its review, the NSW Law Reform Commission examined the ‘voluntary bodies’
exception and determined that it was “unnecessary” and “inappropriate” to retain it. It
recommended the exception be repealed.57 The Commonwealth Sex Discrimination
Commissioner and the ALRC have both recommended that the ‘voluntary bodies’
exception contained in the Sex Discrimination Act be repealed in order to meet
Australia’s obligations under international conventions.58
(ii)
Scope of the exception
Section 31(b) of the Discrimination Act was amended in 1996 to apply to nonmembers, making it the widest in scope across jurisdictions. The reason given for this
was that some voluntary bodies “cater for groups of persons with particular attributes or
54
Section 57, Anti-Discrimination Act 1977 (NSW) and section 71, Equal Opportunity Act 1984 (WA)
respectively.
55
Section 36.
56
Section 39.
57
As above at n14: [6.88].
58
Specifically, the Convention on the Elimination of All Forms of Discrimination Against Women, the
International Convention on Civil and Political Rights, and the International Covenant on Economic,
Social and Cultural Rights. As above at n16: [3.17].
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
interests and it would, therefore, be reasonable for some bodies to wish to provide
benefits, facilities or services to non-members with those particular attributes or
interests. Discrimination in that context is not contrary to the purpose of the Act”.59 The
ACT is the only jurisdiction that gives the exception such broad scope.
(iii)
Definition and interpretation of “voluntary body”
In Jones60 the Tribunal interpreted “voluntary body” widely. Mr Jones had alleged that
the Scout Association of Australia (‘Scout Association’) had discriminated against him
by excluding him from a Crew and treating him so unfavourably that he resigned his
membership. The Scout Association applied for the claim to be struck out on the basis
that as a voluntary body they are exempt under section 31 from the operation of the
Discrimination Act. The Tribunal found in favour of the Scout Association and
dismissed Mr Jones’ claim. The case hinged on whether the Scout Association, a large
and flourishing organisation, came within the definition of a “voluntary body”.
The Dictionary to the Discrimination Act provides:
“voluntary body” means an association or other body (whether incorporated or unincorporated)
the activities of which are not engaged for the purpose of making a profit, but does not include –
(a) a club; or
(b) a body established by a law of the Territory, the Commonwealth, a State or
another Territory; or
(c) an association that provides grants, loans, credit or finance to its members.
The Tribunal rejected the argument that the Scout Association was not a voluntary body
by virtue of part (b) of the definition, holding that the Scout Association of Australia
(New South Wales Branch) Incorporation Act 1928 conferred “legal personality” upon
the Scout Association but did not establish it. Rather, it is “a body established by Royal
Charter and incorporated under a law of the Australian Capital Territory”.61
59
Legislative Assembly for the Australian Capital Territory (1996), Discrimination (Amendment) Bill
1996 – Explanatory Memorandum, [Canberra] 1996: 2.
60
Jones and the Scout Association of Australia, Australian Capital Territory Branch Incorporated & Ors
[2007] ACTDT 1 (11 January 2007) [‘Jones’].
61
Jones, at [25].
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
Mr Jones also submitted that, following the NSW case of Strong,62 the exception “does
not apply where one of the activities of the body is engaged in to make a profit”:
[T]he question is ‘what is its character?’ Does it have the character of a relatively small
voluntary body, the activities of which could be carried on by an unincorporated association of
people for purposes of pursuing a common interest? The exception provided for in s 57 is, in our
view, directed towards such bodies, and it is bodies with that character that are identified by the
term ‘carried on otherwise than for profit’. 63
Mr Jones argued that the Scout Association had “significant power” to undertake such
activities.64 It was held on the facts that the Scout Association engaged in a range of
“money-making ventures”, including conducting a retail business known as “Snowgum
Adventure” which was “conducted…‘with the sole purpose of injecting profits into
Scouts ACT’”.65 The Tribunal rejected the test in Strong and held on the basis of a
much earlier English case66 that “the character of the body in question is to be taken
from its purpose as a whole and not from individual purposes… Its money-making
ventures are to support and foster those purposes and are not purposes for which Scouts
was established”.67 On this basis the Tribunal rejected Mr Jones’submissions.
Finally, the Tribunal rejected the argument that the Scout Association was an
association “that provides grants, loans, credit or finance to its members” (see part (c)
of the definition). Although it was found that the Scout Association had made grants to
its members, the Tribunal determined that the words of part (c) “import a genus of
commercialism – the word ‘grant’ must be considered in the same genus as the other
three words, ‘loan’, ‘credit’ or ‘finance’ which carry with them the import of
commercial dealings”.68 It held:
The fact that a small grant is made to a person to enable him or her to participate in or in fact
produce an activity of a voluntary body within the meaning of that term in the Dictionary does
not render it not a voluntary body. 69
In my view this interpretation goes beyond the scope of the definition provided. The
Tribunal adopted a highly technical approach that went against the beneficial purpose
62
Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSW ADT [‘Strong’].
Jones, cited at [36].
64
Jones, at [28].
65
Jones, at [32].
66
Customs and Excise Commissioners v Bell Concord Educational Trust Limited [1989] 2 WLR 679.
67
Jones, at [39].
68
Jones, at [40]-[41].
69
Jones, at [41].
63
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
of the legislation. The case demonstrates how this exception can allow bodies to
discriminate with impunity. For example, if the Scout Association refused to allow
pregnant women the use of bathrooms in its facilities it could argue that the exception
entitles it to do so, whereas such practice would amount to “unlawful discrimination”
for a sporting club. This undermines attempts to eliminate discrimination in the ACT
and does not assist efforts to create a culture of human rights.
(iv)
Social and policy considerations
The NSW Law Reform Commission found that the reasons for including the ‘voluntary
bodies’ exception in the Anti-Discrimination Act 1977 (NSW) were outdated and
outweighed by other policy considerations. One reason for its inclusion was that
voluntary bodies were then “considered to fall within the private arena, and thus not
within an area in which it was appropriate for the law to apply”. Voluntary bodies now
“often receive substantial government funds or financial benefits”. Therefore, insofar as
these bodies are service-providers “there is an expectation that the service will be done
in a manner which is consistent with community standards of practice”.70
Another reason for the exception was to spare “non-profit associations, such as Lions
and Rotary, which are perceived as worthy, concerned and altruistic organisations”
from prosecution.71 However, this may expose a significant section of the community
to discrimination without remedy. A recent study in NSW found that “non-profit
organisations” were “repeat respondents” in complaints of discrimination.72 In the ACT
complaints lodged under the Discrimination Act from 2004-2006 have, following
employment, been most common in the area of goods, facilities and services.73 The data
is not readily available on what proportion of these complaints might involve voluntary
bodies, but discussions with the Human Rights Commission suggest that complaints are
regularly lodged against voluntary bodies and that in some cases that have sought to
rely on section 31 of the Discrimination Act.
70
As above at n14: cited at [6.83].
As above at n14: [6.77].
72
Chapman A and Mason G (1999), ‘Women, Sexual Preference and Discrimination Law: A case study
of the NSW jurisdiction’, [1999] Sydney Law Review 21: 35.
73
Australian Capital Territory Human Rights Office, Annual Report 2005-2006: 9; Annual Report 20042005: 12.
71
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
Can we promote a culture of human rights when organisations that work at a
community level are not required to operate according to that culture or uphold the
principle of anti-discrimination? This situation is particularly concerning when
voluntary bodies are defined to include such large organisations as the Scout
Association.
Recommendation 1:
Section 31 of the Discrimination Act should be repealed.
Recommendation 2:
In the event that s 31 is retained, it should be amended in the following ways:
(i)
Subsection (1)(b) should be amended so that it applies only to members of the
voluntary body to minimise reach of potential discriminatory practices by such
bodies; and
(ii)
The definition of “voluntary body” should be restricted to apply to small
organisations; and
(iii)
The areas of discrimination to which the exception applies should be specified.
III. The ‘religious bodies’ and ‘educational institutions conducted for
religious purposes’ exceptions - Sections 32 and 33
Section 32 of the Discrimination Act provides:
32 Religious bodies
Part 3 does not apply in relation to—
(a) the ordination or appointment of priests, ministers of religion or members of any 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 exercise functions for the purposes of, or in
connection with, any religious observance or practice; or
(d) any other act or practice of a body established for religious purposes, if the act or practice
conforms to the doctrines, tenets or beliefs of that religion and is necessary to avoid injury to the
religious susceptibilities of adherents of that religion.
Section 33 of the Discrimination Act provides:
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
33 Educational institutions conducted for religious purposes
(1) Section 10 or 13 does not make it unlawful for a person (the first person) to discriminate
against someone else in relation to—
(a) employment as a member of the staff of an educational institution; or
(b) a position as a contract worker that involves doing work in an educational institution;
if the institution is conducted in accordance with the doctrines, tenets, beliefs or teachings of a
particular religion or creed, and the first person so discriminates in good faith to avoid injury to
the religious susceptibilities of adherents of that religion or creed.
(2) Section 18 does not make it unlawful for a person (the first person) to discriminate against
someone else in relation to the provision of education or training by an educational institution
that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular
religion or creed, if the first person so discriminates in good faith to avoid injury to the religious
susceptibilities of adherents of that religion or creed.
(i)
Comparison with other jurisdictions
The ‘religious bodies’ exception
Tasmania does not contain a ‘religious bodies’ exception in its anti-discrimination
legislation. Neither do the Disability Discrimination Act and Racial Discrimination Act.
The scope of the ‘religious bodies’ exception is relatively consistent where it applies in
other jurisdictions.
The ‘educational institutions established for religious purposes’ exception
NSW and South Australian anti-discrimination legislation do not contain an
‘educational
institutions conducted for religious purposes’ exception. Anti-
discrimination laws in the Commonwealth jurisdiction do not permit discrimination by
educational institutions in general on the grounds covered by each Act, except for the
Sex Discrimination Act which permits discrimination on the ground of sex, marital
status and pregnancy.74 In Queensland the exception permits discrimination by religious
educational institutions only in excluding “applicants” not belonging to the particular
religion for which it is established. It does not permit discrimination in employment by
such institutions.75 In Tasmania the exception permits discrimination in the area of
employment only.76 In Victoria it permits discrimination in the general course of
74
Section 38.
Section 41, Anti-Discrimination Act 1991 (QLD).
76
Section 51(2), Anti-Discrimination Act 1998 (TAS).
75
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
establishing, controlling and administering the educational institution.77 In Western
Australia the exception does not apply to discrimination on the grounds of race,
impairment or age – but, notably, does on the ground of sex.78 The Northern Territory
exception is equivalent in scope to section 33 of the Discrimination Act.79
(ii)
Balancing civil rights
‘Religious bodies’ exceptions are described as “an inevitable compromise of equal
opportunity jurisdiction”.80 The freedom of religion is an important civil right that is
protected in section 14 of the HRA, but it has to be balanced against the right to
equality and non-discrimination. The preamble of the HRA states:
Few rights are absolute. Human rights may be subject only to the reasonable limits in law that
can be demonstrably justified in a free and democratic society. One individual’s rights may also
need to be weighed against another individual’s rights.
In particular, tensions may emerge between competing civil rights from the operation of
sections 32(a) and (d), 33(1)(a) and (b), and 33(2) of the Discrimination Act. These
sections are problematic because they relate to the provision of services and
employment and often encompass competing and diverse interests. Religious bodies
operate in the public sphere. Their activities and operations often extend to persons who
are not adherents of the religion. This situation is exacerbated by the recent tendency of
government agencies to contract work out to private entities – including religious
bodies.81 Sections 32 and 33 of the Discrimination Act therefore permit religious bodies
to discriminate in certain important areas that could have negative social and economic
ramifications for many people.
It is apparent that one of the main issues in this area is the conflict between religious
freedom and sex discrimination. Examples that illustrate this are discussed below.
77
Section 76, Equal Opportunity Act 1995 (VIC).
Section 73, Equal Opportunity Act 1984 (WA).
79
Section 37A, Anti-Discrimination Act (NT).
80
Chapman A (1996), ‘The impact of the Equal Opportunity Act 1995 (Vic) on paid work relationships’,
(1996) 9 Australian Journal of Labour Law: 20.
81
As above at n73: 35.
78
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
(iii)
Freedom of religion versus sex discrimination
Eminent human rights expert Elizabeth Evatt has stated that the ‘religious bodies’ and
‘religious educational institutions’ exceptions indicate a “less than wholehearted
support for the principle of equality” and it is “doubtful if there remains any
justification” for such provisions.82
The ‘religious bodies’ exception
A study of complaints received by the Anti-Discrimination Board of NSW between
1993 and 1997 found a “prevalence of religious organisations and the presence of
people apparently motivated by religious beliefs in homosexuality discrimination and
vilification cases”.83 This indicated that:
homosexuality is still feared and despised by many people who identify themselves as religious.
We note such sentiments in the vehement anti-gay stance of submissions made by some
religious groups to recent public inquiries in Australia such as the Senate Committee
investigation into sexuality discrimination. Our findings confirm that some religious teachings
and groups pose a barrier of significant proportions to the project of gay and lesbian equality
and dignity.84
The ‘religious bodies’ exception can be problematic where religious bodies are serviceproviders. One example is foster care services. Religious bodies are heavily involved in
arranging foster care placements.85 Discrimination by such bodies against homosexual
persons who wish to provide foster care through them might be protected by s 32(d) of
the Discrimination Act.
The ‘educational institutions conducted for religious purposes’ exception
According to Elizabeth Evatt this exception is “a reminder for women that there remain
influential institutions in our society implacably opposed to the idea of full equality for
women”.86 In the Equality Before the Law report the ALRC considered whether the
‘educational institutions conducted for religious purposes’ exemption should be
removed from the Sex Discrimination Act. Section 38 of that Act permits educational
82
As above at n3: 10.
As above at n73: 55.
84
As above at n73: 35-36.
85
Millbank J (1998), ‘If Australian law opened its eyes to lesbian and gay families, what would it see?’,
(1998) 12 Australian Journal of Family Law: 16.
86
As above at n3: 10.
83
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
institutions conducted for religious purposes to discriminate on the grounds of “sex,
pregnancy and marital status” in employment of staff and contractors. The Seventh-Day
Adventist Church, National Catholic Education Commission and the Australian
Association of Christian Schools argued that repeal of the exemption would infringe the
freedom of religion and that religious educational institutions needed to be able to rely
on teachers that “advance the morals, beliefs and philosophy of the particular religion”.
However, this view was reportedly “not prevalent” among church groups.87
Arguments for repealing the exemption turned on its discriminatory impact on women.
The main submission was received from the Independent Teacher’s Federation who
noted that “women who are in de facto relationships or who become pregnant outside
of marriage are dismissed from religious schools while men in de facto relationships are
not”. While the right of religious educational institutions to provide an environment in
accordance with the beliefs of the religion was conceded, it was argued that this was
not balanced with the right of teachers to privacy and that the exemption recognises the
rights of the employer but not the employee. Religious educational institutions employ
a significant number of people who should be subject to the Sex Discrimination Act.88
The ALRC recommended that section 38 of the Sex Discrimination Act be completely
removed, or at least that it not apply to discrimination on the ground of sex. It further
recommended that a test of reasonableness be applied to the exemption on the ground
of marital status.89
Sections 32 and 33 of the Discrimination Act permit religious bodies to conduct their
activities without any limitation except that they are based on the tenets they profess.
This situation would be less concerning if the activities of religious bodies were
confined to the private sphere. The reality is that they are not.
Recommendation 1:
Restrict the scope of sections 32(d) and 33 of the Discrimination Act so that they do not
apply to discrimination in employment and provision of educational services.
87
As above at n16: [3.78].
As above at n16: [3.79].
89
As above at n16: [3.80].
88
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
Recommendation 2:
If Recommendation 1 is not implemented, restrict the scope of sections 32(d) and 33(2)
of the Discrimination Act so that they do not permit discrimination on the ground of sex
in whole or in part.
Recommendation 3:
Include a test of reasonableness in sections 32 and 33 of the Discrimination Act.
IV. CONCLUSION
This paper demonstrates that the exceptions currently contained in sections 30, 31, 32
and 33 of the Discrimination Act curtail the effectiveness of that Act and inhibit
progress in meeting its goals and those of the HRA.
Section 30 subordinates the Discrimination Act in the legislative hierarchy, limiting the
protection for citizens against discrimination. This was clearly intended to be a
“temporary” provision and it is of serious concern that the provision has continued in
its original form.
A culture of human rights cannot be built when major social and economic actors are
exempt from anti-discrimination measures. Sections 31, 32 and 33 of the
Discrimination Act do this by permitting voluntary and religious bodies to discriminate
in areas that impact the public arena – particularly in relation to provision of services
and employment. The extent to which individuals are exposed to discrimination without
remedy should be more carefully restricted. It is also important to consider the need to
balance competing civil rights and ways in which to resolve conflicts between those
rights.
The need to improve the effectiveness of anti-discrimination legislation is a nation-wide
concern:
Concerns continue to be expressed…over the failure of the laws to effect significant
improvements in the position of disadvantage occupied by many of the groups which they were
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
intended to protect from discrimination. In assessing the prospects for further change, the
question of whether these laws amount to ‘tokenism or prescription for change’ is just as
relevant today as it was then. 90
Major reviews of anti-discrimination legislation have already been conducted or are
under way in other States and by the ALRC. It is hoped that this paper will contribute
to further analysis of the Discrimination Act and the protection of human rights in the
ACT.
The paper recommends that the exceptions examined in this paper should be repealed
or restricted to make the Discrimination Act more successful in stamping out
discrimination in the community. The ACT Government is urged to do this to uphold
its commitment to creating a culture of human rights. It remains to be seen whether that
commitment amounts to “tokenism or prescription for change”.
Gaze B (2002), ‘Context and interpretation in anti-discrimination law’, [2002] Melbourne University
Law Review 18: 18.
90
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
APPENDIX A:
Detailed comparison of section 30 of the Discrimination Act with other jurisdictions
Jurisdiction / Act / Section
Notable differences
Comparison with section 30
(1)(a) and (b) apply to “any
other Act”.
(1)(a) and (b) are restricted to
Territory laws.
(1)(d) does not apply to orders
or awards made by courts and
tribunals with power to fix
minimum wages and terms
and conditions of
employment.
(1)(d) does not have a similar
restriction.
Does not contain such a
provision.
(c) an order of the Tribunal,
(3) states that the section “has
effect notwithstanding
anything contained in”
specified statutes.
(d) an order of any court, not including an
order or award of a court or tribunal having
power to fix minimum wages and other terms
and conditions of employment, or
Does not provide that the
Minister may declare a date of
expiration for certain
subsections.
(2) and (4) provide and
enforce that the Minister may
declare a date of expiration for
subsections (1)(a) and (b).
(1)(a) and (b) apply to Acts
and regulations of the
Territory and the
Commonwealth.
(1)(a) and (b) apply only to
Territory laws.
The exception specifically
applies to orders or awards
made by a court or tribunal
with power to fix minimum
wages and other terms of
employment.
Does not contain such a
provision.
NSW
Anti-Discrimination Act 1977
Section 54
(1) Nothing in this Act renders unlawful
anything done by a person if it was necessary
for the person to do it in order to comply with
a requirement of:
(a) any other Act, whether passed before or
after this Act,
(b) any regulation, ordinance, by-law, rule or
other instrument made under any such other
Act,
(3) Except as provided in this section, this
Act has effect notwithstanding anything
contained in:
(a) the Co-operation Act 1923 ,
(b) the Financial Institutions (New South
Wales) Act 1992 ,
(c) the Friendly Societies (NSW) Code or the
Friendly Societies (NSW) Regulations ,
(c1) the Co-operatives Act 1992 ,
(f) the Registered Clubs Act 1976 ,
or any instrument of whatever nature made or
approved thereunder.
NT
Anti-Discrimination Act91
Section 53
Notwithstanding anything to the contrary in
this Act, a person may do an act that is
necessary to comply with, or is specifically
authorised by (a) an Act or regulation of the Territory;
(b) an Act or regulation of the
Commonwealth;
91
Year of enactment not given in citation.
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
(c) an order of a court or tribunal;
(d) an order or award of a court or tribunal
having power to fix minimum wages and
other terms and conditions of employment;
(e) an industrial agreement in existence at the
commencement of this Act;
(f) an order of the Commissioner under this
Act;
(g) a guideline or code of practice prepared
and published by the Commissioner under
this Act; or
(h) advice given by the Commissioner under
this Act.
QLD
The exception specifically
applies to industrial
agreements in existence at the
commencement of the Act
[(1)(e)].
Does not contain such a
provision.
The exception applies to
guidelines and codes of
practice prepared and
published by, and advice given
by, the Commissioner under
the Act [(1)(g) and (h)].
Does not contain such a
provision.
Does not provide that the
Minister may declare a date of
expiration for certain
subsections.
(2) and (4) provide and
enforce that the Minister may
declare a date of expiration for
subsections (1)(a) and (b).
(1)(a) applies to “existing
provision of another Act”
which is defined at (2) to
mean “a provision in existence
at the commencement of this
section”.
(1)(a) applies to Territory laws
only and does not restrict
application of the exception to
Territory laws in existence at
the time.
(1)(c) specifically includes
orders or awards made by a
court or tribunal with power to
fix minimum wages and other
terms of employment.
Does not contain such a
provision.
Does not provide that the
Minister may declare a date of
expiration for certain
subsections.
(2) and (4) provide and
enforce that the Minister may
declare a date of expiration for
subsections (1)(a) and (b).
Anti-Discrimination Act 1991
Section 106
(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.
SA
Equal Opportunity Act 1984 (SA)
Does not contain an ‘acts done with statutory authority’ exception.
TAS
Anti-Discrimination Act 1998 (TAS)
Section 24
A person may discriminate against another
person if it is reasonably necessary to comply
with –
(a) any law of this State or the
Commonwealth; or
(b) any order of a commission, court or
tribunal.
States “A person may
discriminate against another
person”.
(1) states “This Act does not
make unlawful anything
done”.
States “if it is reasonably
necessary to comply with”.
(1) states “necessarily for the
purpose of complying with”.
(a) applies to “any law” of
Tasmania or the
Commonwealth.
(1)(a) applies to Territory laws
only.
(b) applies to “any order of a
commission, court or
tribunal”.
(1)(c) and (d) provide the
same but do not refer to
commissions.
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
VIC
(1)(b) applies to
determinations or directions
made under Territory laws.
Does not provide that the
Minister may declare a date of
expiration for certain
subsections.
(2) and (4) provide and
enforce that the Minister may
declare a date of expiration for
subsections (1)(a) and (b).
(1) states “a person may
discriminate against another
person”.
(1) states “This Act does not
make unlawful anything
done”.
(1) states “necessary to
comply with, or is authorised
by”.
(1) states “necessarily for the
purpose of complying with”.
(1) refers to “a provision”.
(1) refers to “a requirement”.
(1)(a) and (b) apply to Acts
and enactments generally.
(1)(a) and (b) are restricted to
Territory laws.
(2) provides that it is not
necessary for the provision to
specifically refer to
discrimination.
Does not contain such a
provision.
(3) provides that sections 47
and 58 (re discrimination with
respect to the disposal of land)
prevail over the exception
where there is inconsistency.
Does not contain such a
provision.
Does not provide that the
Minister may declare a date of
expiration for certain
subsections.
(2) and (4) provide and
enforce that the Minister may
declare a date of expiration for
subsections (1)(a) and (b).
Equal Opportunity Act 1995
Section 69
(1) A person may discriminate if the
discrimination is necessary to comply
with, or is authorised by, a provision of-
(a) an Act, other than this Act;
(b) an enactment, other than an enactment
under this Act.
(2) For the purpose of sub-section (1), it is
not necessary that the provision
refer to discrimination, as long as it
authorises or necessitates the relevant
conduct that would otherwise constitute
discrimination.
(3) Section 47(3) and 58(1) prevail over this
section to the extent of any inconsistency
between them.
WA
Does not make reference to
determinations or directions.
Equal Opportunity Act 1984
Does not contain an ‘acts done with statutory authority’ exception.
CTH
Age Discrimination Act 2004
Section 39
Acts, regulations and instruments mentioned
in Schedule 1
(1) This Part does not make unlawful
anything done by a person in direct
compliance with:
(a) an Act mentioned in Schedule 1; or
(b) a regulation or any other instrument
mentioned in Schedule 1.
Provisions of Acts, regulations and
instruments mentioned in Schedule 2
(1) does not have a test of
necessity.
(1) does have a test of
necessity.
Applies to Acts, regulations
and instruments contained in
Schedules 1 and 2 of the Act
[(1)(a) and (b); (1A)].
Applies to all Territory laws
[(1)(a)].
Applies to all Commonwealth
Acts and regulations not
mentioned in Schedules 1 and
2 for a period of two years
only from the date of
commencement of the Age
Discrimination Act 2004 [(2)].
Does not contain such a
provision.
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
(1A) This Part does not make unlawful
anything done by a person in direct
compliance with a provision of an Act,
regulation or other instrument if the provision
is mentioned in Schedule 2.
Does not make unlawful
anything done by a person in
direct compliance with an Act
or regulation of a State or
Territory [(4)].
Does not make unlawful
anything done by a person in
order to comply with Territory
laws and regulations only
[(1)(a) and (b)].
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
Other Acts or regulations--2 year exemption
period
(2) This Part does not make unlawful
anything done by a person, in direct
compliance with any other Commonwealth
Act or regulation, during the period:
(8)(a) specifically includes
orders or awards made by a
court or tribunal with power to
fix minimum wages and other
terms of employment.
Does not contain such a
provision.
(a) beginning on the day on which this Act
commences; and
(b) ending 2 years after that day.
(3) To avoid doubt, subsection (2) does not
affect the operation of any other provision in
this Division.
State and Territory Acts, regulations and
instruments
(4) This Part does not make unlawful
anything done by a person in direct
compliance with:
(a) an Act of a State or Territory; or
(b) a regulation or any other instrument
made under an Act of a State or Territory.
(5) Subsection (4) does not apply in relation
to an Act, regulation or other instrument of a
State or Territory if the Act, regulation or
instrument is specified in regulations made
for the purposes of this subsection.
(6) To avoid doubt, section 49A of the Acts
Interpretation Act 1901 does not prevent a
regulation made for the purposes of
subsection (5) from specifying an Act,
regulation or instrument as in force at a
particular time or as in force from time to
time.
Court orders
(7) This Part does not make unlawful
anything done by a person in direct
compliance with an order of a court.
Workplace relations
(8) This Part does not make unlawful
anything done by a person in direct
compliance with any of the following:
(a) an order, decision or award of a court or
tribunal having power to fix minimum
wages;
(b) any of the following instruments (an
industrial instrument ) within the meaning
given by the Workplace Relations Act 1996 :
(i) an award or a variation or order affecting
an award;
(ii) a transitional award or a variation or
order affecting a transitional award;
(iii) a pre-reform certified agreement;
(iv) a notional agreement preserving State
awards.
Note:
A person does not comply with an
industrial instrument for the purpose of
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
CTH
Disability Discrimination Act 1992
Section 47
(1) This Part does not render unlawful
anything done by a person in direct
compliance with:
Specifically applies with
respect to industrial
instruments [(1)(b)].
Does not contain such a
provision.
Applies with respect to
prescribed laws [(2)].
Applies with respect to
Territory laws [(1)(a)].
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
(b) any of the following instruments (an
industrial instrument ) within the meaning
given by the Workplace Relations Act 1996 :
(i) an award or a variation or order affecting
an award;
Applies to all other laws for a
period of only 3 years after
commencement of the
Disability Discrimination Act
1992 [(3)].
Does not provide a fixed date
of expiration, but (2) and (4)
provide and enforce that the
Minister may declare a date of
expiration for subsections
(1)(a) and (b).
(ii) a transitional award or a variation or
order affecting a transitional award;
(iii) a pre-reform certified agreement;
(iv) a notional agreement preserving State
awards;
to the extent to which the industrial
instrument has specific provisions relating to
the payment of rates of salary or wages to
persons, in circumstances in which:
(v) if the persons were not in receipt of the
salary or wages, they would be eligible for a
disability support pension; and
(vi) the salary or wages are determined by
reference to the capacity of the person;
(c) an order, award or determination of a
court or tribunal having power to fix
minimum wages, to the extent to which the
order, award or determination has specific
provisions relating to the payment of rates of
salary or wages to persons, in circumstances
in which:
(i) if the persons were not in receipt of the
salary or wages, they would be eligible for a
disability support pension; and
(ii) the salary or wages are determined by
reference to the capacity of the person.
Note:
A person does not comply with
an industrial instrument for the purpose of
subsection (1) if that person purports to
comply with a provision of that instrument
that is void (for example, a term of a
pre-reform certified agreement is void to the
extent that it contains prohibited content
prescribed for section 356 of the Workplace
Relations Act 1996 : see section 358 of that
Act). Accordingly, the exemption under this
subsection for acting in direct compliance
with such an instrument would not apply in
such circumstances.
(2) This Part does not render unlawful
anything done by a person in direct
compliance with a prescribed law.
(3) During the period beginning at the
commencement of this section and ending 3
years after the day this section commences,
this Part does not render unlawful anything
done by a person in direct compliance with
another law.
[(4) and (5) omitted].
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
CTH
Racial Discrimination Act 1975
Does not contain an ‘acts done with statutory authority’ exception.
CTH
Sex Discrimination Act 1984
Section 40
(1) Nothing in Division 1 or 2 affects
anything done by a person in direct
compliance with:
(c) a determination or decision of the
Commission;
(d) an order of a court; or
(e) an order or award of a court or tribunal
having power to fix minimum wages and
other terms and conditions of employment; or
(f) a decision of the Australian Fair Pay
Commission (within the meaning of the
(1) does not have a test of
necessity.
(1) does have a test of
necessity.
(1) states “in direct
compliance with”.
(1) states “for the purpose of
complying with”.
Applies to determinations or
decisions of the Human Rights
and Equal Opportunity
Commission [(1)(c)].
Applies to determinations or
directions made under
Territory law [(1)(b)].
(1)(e) specifically includes
orders or awards made by a
court or tribunal with power to
fix minimum wages and other
terms of employment.
Does not contain such a
provision.
June 2007
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Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
Workplace Relations Act 1996 ); or
(g) any of the following instruments (an
industrial instrument ) within the meaning
given by the Workplace Relations Act 1996 :
Does not provide that the
Minister may declare a date of
expiration for certain
subsections.
(2) and (4) provide and
enforce that the Minister may
declare a date of expiration for
subsections (1)(a) and (b).
(i) an award or a variation or order affecting
an award;
(ii) a transitional award or a variation or
order affecting a transitional award;
(iii) a pre-reform certified agreement;
(iv) a notional agreement preserving State
awards.
Note: [omitted].
(2) Nothing in Division 1 or 2 affects
anything done by a person in direct
compliance with any of the following as in
force on 1 August 1984:
(a) the Gift Duty Assessment Act 1941 ;
(b) [omitted].
(c) the Income Tax Assessment Act 1936 ;
(d) the International Tax Agreements Act
1953 ;
(e) the Papua New Guinea (Members of the
Forces Benefits) Act 1957 ;
(f) the Sales Tax (Exemptions and
Classifications) Act 1935 ;
(h) the Social Security Act 1947 ;
(i) the Taxation (Unpaid Company Tax)
Assessment Act 1982 ;
(j) the Social Services Act 1980 of Norfolk
Island.
(3) Nothing in Division 1 or 2, as applying
by reference to section 6, affects anything
done by a person in direct compliance with
any regulations, rules, by-laws,
determinations or directions made under the
Gift Duty Assessment Act 1941 , the Income
Tax Assessment Act 1936 or the Sales Tax
(Exemptions and Classifications) Act 1935.
(4) Nothing in Division 1 or 2, as applying
by reference to section 6, affects anything
done by a person for the purposes of the
administration of the AUSTUDY scheme or
the ABSTUDY scheme.
(6) Nothing in Division 1 or 2 affects
anything done by a person in compliance
with a provision of a law of the
Commonwealth, of a State or of a Territory,
being a provision that is included for the
purpose referred to in subsection 7D(1).
Note: [omitted].
June 2007
30
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
APPENDIX B:
Detailed comparison of section 31 of the Discrimination Act with other jurisdictions
Jurisdiction / Act / Section
NSW
Notable differences
Comparison with section 31
Discrimination with respect to
provision of benefits, facilities
or services is permitted with
respect to members only
[(2)(b)].
Discrimination with respect to
provision of benefits, facilities
or services is permitted with
respect to “people, whether the
people are members of the
body or otherwise” [(b)].
Definition of “body” does not
include: co-operatives
registered under the Cooperatives Act 1992 or a
society under the Friendly
Societies Act 1989, a friendly
society registered under the
Friendly Societies Act 1989, a
building society or credit
union registered under the
Financial Institutions (NSW)
Code, or co-operative housing
society registered under the
Co-operative Housing and
Starr-Bowkett Societies Act
1998 [(1)(a)-(d)].
In the definition a “voluntary
body” does not include in
general bodies established by
laws and associations that
provide grants, loans, credit or
finance to their members.
Anti-Discrimination Act 1977
Section 57
(1) In this section, "body" means a body, the
activities of which are carried on otherwise than
for profit and which is not established by an
Act, but does not include:
(a) a co-operative registered under the Cooperatives Act 1992 or a society under the
Friendly Societies Act 1989 , or
(b) a friendly society registered under the
Friendly Societies Act 1989 , or
(c) a building society or credit union registered
under the Financial Institutions (NSW) Code ,
or
(d) a co-operative housing society registered
under the Co-operative Housing and StarrBowkett Societies Act 1998 , or
(e) a registered club.
(2) Nothing in this Act affects:
(a) any rule or practice of a body which restricts
admission to membership of that body, or
(b) the provision of benefits, facilities or
services to members of that body.
NT
Anti-Discrimination Act92
Does not contain a ‘voluntary bodies’ exception.
Note: Does contain a ‘charities’ exception (s 52).
QLD
Anti-Discrimination Act 1991
Does not contain a ‘voluntary bodies’ exception.
Note: Does contain a ‘charities’ exception (s 110).
SA
Equal Opportunity Act 1984
Does not contain a ‘voluntary bodies’ exception.
Note: Does contain a ‘charities’ exception (s 45).
TAS
Anti-Discrimination Act 1998
Does not contain a ‘voluntary bodies’ exception.
Note: Does contain a ‘charities’ exception (s 23).
92
Year of enactment not given in citation.
June 2007
31
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
VIC
Equal Opportunity Act 1995
Does not contain a ‘voluntary bodies’ exception.
Note: Does contain exceptions with respect to ‘clubs’ (Division 6).
WA
Equal Opportunity Act 1984
Section 71
Discrimination with respect to
provision of benefits, facilities
or services is permitted with
respect to “members of the
body” only [(1)(b)].
Discrimination with respect to
provision of benefits, facilities
or services is permitted with
respect to “people, whether the
people are members of the
body or otherwise” [(b)].
Applies only to discrimination
on the ground of age [(1)].
Applies to all kinds of
discrimination covered by the
Discrimination Act.
Exception with respect to
provision of benefits, facilities
or services applies to members
only [(1)(b)].
Exception with respect to
provision of benefits, facilities
or services applies to members
and non-members alike [(b)].
(b) the provision of benefits, facilities or
services to members of the body.
The definition does not make
reference to clubs.
In the definition a “voluntary
body” does not include clubs.
(2) In this section:
In the definition a “voluntary
body” does not include
registered organisations.
The definition does not make
reference to registered
organisations.
(1) Nothing in this Act renders it unlawful for a
voluntary body to discriminate against a person,
on any one or more of the grounds of
discrimination referred to in this Act, in
connection with —
(a) the admission of persons as members of the
body; or
(b) the provision of benefits, facilities or
services to members of the body.
(2) Subsection (1) does not apply to
discrimination on the ground of impairment or
age by a voluntary body that is an incorporated
association.
[Note: I could not find the definition].
CTH
Age Discrimination Act 2004
Section 36
(1) This Part does not make it unlawful for a
voluntary body to discriminate against a person,
on the ground of the person's age, in connection
with:
(a) the admission of persons as members of the
body; or
"registered organisation" means an
organisation within the meaning of
Schedule 1B to the Workplace Relations Act
1996 .
"voluntary body" means an association or
other body (whether incorporated or
unincorporated) the activities of which are not
engaged in for the purpose of making a profit,
but does not include:
(a) a registered organisation; or
(b) a body established by a law of the
Commonwealth, of a State or of a Territory; or
(c) an association that provides grants, loans,
credit or finance to its members.
June 2007
32
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
CTH
Disability Discrimination Act 1992
Does not contain a ‘voluntary bodies’ exception.
Note: Contains a provision making it expressly unlawful for clubs or incorporated bodies to discriminate against a
person on the ground of disability with respect to membership of that body (s 27).
CTH
Racial Discrimination Act 1975
Does not contain a ‘voluntary bodies’ exception.
CTH
Sex Discrimination Act 1984
Section 39
Nothing in Division 1 or 2 renders it unlawful
for a voluntary body to discriminate against a
person, on the ground of the person’s sex,
marital status or pregnancy, in connection with:
(a) the admission of persons as members of the
body; or
(b) the provision of benefits, facilities or
services to members of the body.
Specifically applies to
discrimination on the grounds
of sex, marital status or
pregnancy.
Applies to all kinds of
discrimination covered by the
Discrimination Act.
Exception with respect to
provision of benefits, facilities
or services applies to members
only [(b)].
Exception with respect to
provision of benefits, facilities
or services applies to members
and non-members alike [(b)].
In the definition a “voluntary
body” does not include
registered organizations.
The definition does not make
reference to registered
organizations.
Definition
"voluntary body" means an association or
other body (whether incorporated or
unincorporated) the activities of which are not
engaged in for the purpose of making a profit,
but does not include:
(a) a club;
(b) a registered organization;
(c) a body established by a law of the
Commonwealth, of a State or of a Territory; or
(d) an association that provides grants, loans,
credit or finance to its members.
June 2007
33
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
APPENDIX C:
Detailed comparison of section 32 of the Discrimination Act with other jurisdictions
Jurisdiction / Act / Section
NSW
Notable differences
Comparison with section 32
The exception applies to the
whole Act.
The exception applies to Part 3
of the Act only.
Extends to the appointment
of a person “in any
capacity” by a body that
propagates religion [(c)].
Extends to the selection or
appointment of a person in
exercising functions “for the
purposes of, or in connection
with, any religious observance
or practice” [(c)].
The exception applies to the
whole Act.
The exception applies to Part 3
of the Act only.
(d) does not require that the
acts done by a religious
body be “necessary to avoid
injury to the religious
susceptibilities of adherents
of that religion”.
(d) does require that the acts
done by a religious body be
“necessary to avoid injury to
the religious susceptibilities of
adherents of that religion”.
The exception applies to the
whole Act.
The exception applies to Part 3
of the Act only.
Anti-Discrimination Act 1977
Section 56
Nothing in this Act affects:
(a) the ordination or appointment of priests,
ministers of religion or members of any
religious order,
(b) the training or education of persons
seeking ordination or appointment as priests,
ministers of religion or members of a
religious order,
(c) the appointment of any other person in
any capacity by a body established to
propagate religion, or
(d) any other act or practice of a body
established to propagate religion that
conforms to the doctrines of that religion or
is necessary to avoid injury to the religious
susceptibilities of the adherents of that
religion.
NT
Anti-Discrimination Act93
Section 51
This Act does not apply to or in relation to (a) the ordination or appointment of priests,
ministers of religion or members of a
religious order;
(b) the training or education of people
seeking ordination or appointment as priests,
ministers of religion or members of a
religious order;
(c) the selection or appointment of people to
perform functions in relation to, or otherwise
participate in, any religious observance or
practice; or
(d) an act by a body established for religious
purposes if the act is done as part of any
religious observance or practice.
QLD
Anti-Discrimination Act 1991
Section 109
93
Year of enactment not given in citation.
June 2007
34
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
(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
(1)(d) does not apply in
work or work-related and
education areas [(2)].
(1)(d) applies to all areas.
Does not contain the
equivalent to (c) of section
32 of the Discrimination
Act.
Does contain (c).
Specifically states that
discrimination on the
ground of sexuality that
arises in the course of
administration of education
or other institutions and is
founded on the precepts of
the religion is not unlawful
[(2)].
Does not specifically refer to
discrimination on the ground
of sexuality with respect to
administration of institutions.
(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.
SA
Equal Opportunity Act 1984
Section 50
(1) This Part does not render unlawful
discrimination 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 persons
seeking ordination or appointment as priests,
ministers of religion or members of a
religious order; or
(c) any other practice of a body established
for religious purposes that conforms with the
precepts of that religion or is necessary to
avoid injury to the religious susceptibilities
of the adherents of that religion.
(2) Where an educational or other institution
is administered in accordance with the
precepts of a particular religion,
discrimination on the ground of sexuality that
arises in the course of the administration of
that institution and is founded on the precepts
of that religion is not rendered unlawful by
this Part.
TAS
Anti-Discrimination Act 1998
Does not contain a ‘religious bodies’ exception.
June 2007
35
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
VIC
Equal Opportunity Act 1995
Section 75
1) Nothing in Part 3 applies to(a)the ordination or appointment of priests,
ministers of religion or members of a
religious order;
(b)the training or education of people seeking
ordination or appointment as priests,
ministers of religion or members of a
religious order;
Specifically states that the
general exception with
respect to acts or practices
of a body established for
religious purposes [(2)]
includes things done in
relation to employment of
people by educational
institutions of religious
bodies [(3)].
Does not contain the
equivalent to section 75(3) of
the Victorian Act.
The exception applies to the
whole Act.
The exception applies to Part 3
of the Act only.
The exception is only with
The provision contained in s
(c) the selection or appointment of people to
perform functions in
relation to, or
otherwise participate in, any religious
observance or practice.
(2)Nothing in Part 3 applies to anything done
by a body established for religious purposes
that(a)conforms with the doctrines of the
religion; or
(b) is necessary to avoid injury to the
religious sensitivities of people of the
religion.
(3) Without limiting the generality of its
application, sub-section(2)includes anything
done in relation to the employment of people
in any educational institution under the
direction, control or administration of a body
established for religious purposes.
WA
Equal Opportunity Act 1984
Section 72
Nothing in this Act affects —
(a) the ordination or appointment of priests,
ministers of religion or members of any
religious order;
(b) the training or education of persons
seeking ordination or appointment as priests,
ministers of religion or members of a
religious order;
(c) the selection or appointment of persons to
perform duties or functions for the purposes
of or in connection with, or otherwise to
participate in any religious observance or
practice; or
(d) any other act or practice of a body
established for religious purposes, being an
act or practice that conforms to the doctrines,
tenets or beliefs of that religion or is
necessary to avoid injury to the religious
susceptibilities of adherents of that religion.
CTH
Age Discrimination Act 2004
Section 35
June 2007
36
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
This Part does not affect an act or practice of
a body established for religious purposes
that:
(a) conforms to the doctrines, tenets or
beliefs of that religion; or
(b) is necessary to avoid injury to the
religious sensitivities of adherents of that
religion.
CTH
respect to the acts or
practices of a body
established for religious
purposes so long as it
conforms to the doctrines
etc of the religion or is
necessary to avoid injury to
the religious sensitivities of
religious adherents.
35 of the Age Discrimination
Act 2004 forms only one part
of the exception contained in s
32 of the Discrimination Act.
Disability Discrimination Act 1992
Does not contain a ‘religious bodies’ exception.
CTH
Racial Discrimination Act 1975
Does not contain a ‘religious bodies’ exception.
CTH
Sex Discrimination Act 1984
Section 37
No notable differences.
Nothing in Division 1 or 2 affects:
(a) the ordination or appointment of priests,
ministers of religion or members of any
religious order;
(b) the training or education of persons
seeking ordination or appointment as priests,
ministers of religion or members of a
religious order;
(c) the selection or appointment of persons to
perform duties or functions for the purposes
of or in connection with, or otherwise to
participate in, any religious observance or
practice; or
(d) any other act or practice of a body
established for religious purposes, being an
act or practice that conforms to the doctrines,
tenets or beliefs of that religion or is
necessary to avoid injury to the religious
susceptibilities of adherents of that religion.
June 2007
37
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
APPENDIX D:
Detailed comparison of section 33 of the Discrimination Act with other jurisdictions
Jurisdiction / Act / Section
NSW
Notable differences
Comparison with section 33
Anti-Discrimination Act 1977
Does not contain an ‘educational institutions conducted for religious purposes’ exception.
NT
Anti-Discrimination Act94
Section 37A
An educational authority that operates or
proposes to operate an educational institution
in accordance with the doctrine of a
particular religion may discriminate against a
person in the area of work in the institution if
the discrimination -
Specifically refers to
discrimination on the
ground of sexuality as being
within its scope [(ii)].
Does not expressly refer to the
ground of sexuality.
Applies to educational
institutions that operate for
students of a particular
religion.
Applies to educational
institutions conducted for
religious purposes in general.
Does not permit
discrimination with respect
to employment by the
educational institutions.
Does permit discrimination
with respect to employment by
the educational institutions
[(1)(a) and (b)].
Permits such institutions to
“exclude applicants” who
do not belong to the
particular religion [(a)].
Permits such institutions to
discriminate with respect to
employment of staff and
contractors, and admission of
students so long as the
institution is conducted in
accordance with the doctrines
etc of the religion [(1)(a) and
(b), (2)].
(a) is on the grounds of (i) religious belief or activity; or
(ii) sexuality; and
(b) is in good faith to avoid offending the
religious sensitivities of people of the
particular religion.
QLD
Anti-Discrimination Act 1991
Section 41
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.
SA
Equal Opportunity Act 1984
Does not contain an ‘educational institutions conducted for religious purposes’ exception.
TAS
Anti-Discrimination Act 1998
Section 51(2)
(2) A person may discriminate against
94
Permits discrimination in
employment only.
Permits discrimination in
employment and admission of
students [(1) and (2)].
Year of enactment not given in citation.
June 2007
38
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
another person on the ground of religious
belief or affiliation or religious activity in
relation to employment in an educational
institution that is or is to be conducted in
accordance with the tenets, beliefs, teachings,
principles or practices of a particular religion
if the discrimination is in order to enable, or
better enable, the educational institution to be
conducted in accordance with those tenets,
beliefs, teachings, principles or practices.
VIC
Permits discrimination on
the ground of “religious
belief or affiliation or
religious activity” only.
Permits discrimination
generally on all grounds.
Applies to the course of
establishing, directing,
controlling or administering
the educational institution
[(2)].
Applies only to employment
and admission of students by
the educational institution [(1)
and (2)].
Discrimination in provision
of education or training by
the educational institution is
not permitted on the
grounds of race, impairment
or age [(3)].
Does not exclude
discrimination on the specified
grounds.
Equal Opportunity Act 1995
Section 76
1) This section applies to a person or body
(other than a body established for religious
purposes) that(a) establishes an educational institution to
be conducted in accordance with religious
beliefs or principles; or
(b) directs, controls or administers an
educational institution conducted in
accordance with religious beliefs or
principles.
(2) Nothing in Part 3 applies to anything
done by a person or body to which this
section applies in the course of establishing,
directing, controlling or administering the
educational institution (including the
employment of people in the institution) that
is in accordance with the relevant religious
beliefs or principles.
WA
Equal Opportunity Act 1984
Section 73
(1) Nothing in this Act renders it unlawful for
a person to discriminate against another
person on any one or more of the grounds of
discrimination referred to in this Act in
connection with employment as a member of
the staff of an educational institution that is
conducted in accordance with the doctrines,
tenets, beliefs or teachings of a particular
religion or creed, if the first-mentioned
person so discriminates in good faith in order
to avoid injury to the religious susceptibilities
of adherents of that religion or creed.
(2) Nothing in this Act renders it unlawful for
a person to discriminate against another
person on any one or more of the grounds of
discrimination referred to in this Act in
connection with a position as a contract
worker that involves the doing of work in an
educational institution that is conducted in
accordance with the doctrines, tenets, beliefs
or teachings of a particular religion or creed,
if the first-mentioned person so discriminates
June 2007
39
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
in good faith in order to avoid injury to the
religious susceptibilities of adherents of that
religion or creed.
(3) Nothing in this Act renders it unlawful for
a person to discriminate against another
person on any one or more of the grounds of
discrimination referred to in this Act, other
than the grounds of race, impairment or age,
in connection with the provision of education
or training by an educational institution that
is conducted in accordance with the
doctrines, tenets, beliefs or teachings of a
particular religion or creed, if the firstmentioned person so discriminates in good
faith in favour of adherents of that religion or
creed generally, but not in a manner that
discriminates against a particular class or
group of persons who are not adherents of
that religion or creed.
CTH
Age Discrimination Act 2004
Does not contain an ‘educational institutions conducted for religious purposes’ exception.
Note 1: Section 26 makes it unlawful for educational institutions in general to discriminate on the ground of
age, with no exception for religious schools.
Note 2: Section 35 applies to bodies “established for religious purposes” and therefore may include
educational institutions conducted for religious purposes within its scope.
CTH
Disability Discrimination Act 1992
Does not contain an ‘educational institutions conducted for religious purposes’ exception.
Note: Section 22 makes it unlawful for educational institutions in general to discriminate on the ground of
disability.
CTH
Racial Discrimination Act 1975
Does not contain an ‘educational institutions conducted for religious purposes’ exception.
CTH
Sex Discrimination Act 1984
Section 38
(1) Nothing in paragraph 14(1)(a) or (b) or
14(2)(c) renders it unlawful for a person to
discriminate against another person on the
ground of the other person’s sex, marital
status or pregnancy in connection with
employment as a member of the staff of an
educational institution that is conducted in
accordance with the doctrines, tenets, beliefs
or teachings of a particular religion or creed,
if the first-mentioned person so discriminates
in good faith in order to avoid injury to the
religious susceptibilities of adherents of that
religion or creed.
Permits discrimination
specifically on the grounds of
“sex, marital status or
pregnancy” in employment
and contract work [(1)-(3)].
Permits discrimination
generally in the areas of
employment, contract work
and provision of services.
(2) Nothing in paragraph 16(b) renders it
unlawful for a person to discriminate against
another person on the ground of the other
person’s sex, marital status or pregnancy in
connection with a position as a contract
June 2007
40
Review of ss 30, 31, 32 and 33 of the Discrimination Act 1991 (ACT)
worker that involves the doing of work in an
educational institution that is conducted in
accordance with the doctrines, tenets, beliefs
or teachings of a particular religion or creed,
if the first-mentioned person so discriminates
in good faith in order to avoid injury to the
religious susceptibilities of adherents of that
religion or creed.
(3) Nothing in section 21 renders it unlawful
for a person to discriminate against another
person on the ground of the other person’s
marital status or pregnancy in connection
with the provision of education or training by
an educational institution that is conducted in
accordance with the doctrines, tenets, beliefs
or teachings of a particular religion or creed,
if the first-mentioned person so discriminates
in good faith in order to avoid injury to the
religious susceptibilities of adherents of that
religion or creed.
June 2007
41