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Human Rights Commission Act 1999

Part III - Unfair Discrimination

17. Areas where unfair discrimination prohibited
18. Genuine occupational qualification
19. Genuine justification
20. Guidelines on genuine occupational qualification and genuine justification
21. Social justice and affirmative action
22. Victimisation
23. Employment applications and advertisements
24. Liability of employers and principals

Areas where unfair discrimination prohibited

(1) It is unfair discrimination for a person, while involved in any of the areas set out in subsection (3), directly or indirectly to differentiate adversely against or harass any other person by reason of a prohibited ground of discrimination.

(2) Without limiting subsection (1), sexual harassment, for the purposes of this section, constitutes harassment by reason of a prohibited ground of discrimination.

(3) The areas to which subsection (1) applies are-

the making of an application for employment, or procuring employees for an employer, or procuring employment for other persons;
employment;
participation in, or the making of an application for participation in, a partnership;
the provision of an approval, authorization or qualification that is needed for any trade, calling or profession;
the provision of training, or facilities or opportunities for training, to help fit a person for any employment;
subject to subsection (4), membership, or the making of an application for membership, of an employers' organization, an employees' organization or an organization that exists for members of a particular trade, calling or profession;
the provision of goods, services or facilities, including facilities by way of banking or insurance or for grants, loans, credit or finance;
access by the public to any place, vehicle, vessel, aircraft or hovercraft which members of the public are entitled or allowed to enter or use;
the provision of land, housing or other accommodation;
access to, and participation in, education.

(4) Subsection (3)(f) does not apply to access to membership of a private club or to the provision of services or facilities to member of a private club.

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Genuine occupational qualification

(1) It is not unfair discrimination in relation to any of the areas referred to in paragraphs (a) to (e) of section 17(3) if the prohibited ground of discrimination is a genuine occupational qualification.

(2) For the avoidance of doubt, adverse differentiation by reason of a prohibited ground of discrimination is a genuine occupational qualification where a position is for the purposes of an organized religion and the differentiation complies with the doctrines, rules or established customs of the religion.

Genuine justification

Adverse differentiation by reason of a prohibited ground of discrimination in relation to any of the areas referred to in paragraphs (f) to (j) of section 17(3) is not unfair discrimination if there is genuine justification for the differentiation.

Guidelines on genuine occupational qualification and genuine justification

Without limiting the Commission's power to issue guidelines on any other matter within its jurisdiction on the Commission may, for the avoidance of acts and practices which might amount to unfair discrimination, from time to time issue non-binding guidelines on genuine occupational qualifications and genuine justification.

Social justice and affirmative action

A programme, whether provided by the Government or by the private sector, designed to achieve for any groups or categories of persons who are disadvantaged effective equality of access to the areas set out in section 17(3) is not unfair discrimination, provided it complies in other respects with the Bill of Rights.

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Victimization

It is unfair discrimination for a person while involved in any of the areas set out in section 17(3) to victimize any other person on the ground that that person, or a relative or associate of that person -

intends to make use of his or her rights under this Act or the Bill of Rights;
has made use of his or her rights, or promoted the rights of some other person, under this Act or the Bill of Rights;
has given information or evidence in relation to any complaint, investigation or proceeding under this Act or the Bill of the Rights;
has declined to do any act which would contravene this Act or the Bill of the Rights; or
has otherwise done anything under or by reference to this Act or the Bill of Rights.

Employment applications and advertisements

(1) It is unfair discrimination -

to use or circulate any form of application, or to make any of enquiry or about any person seeking employment, which indicates, or could reasonably be understood as indicating, an intention directly or indirectly to differentiate adversely by reason of a prohibited ground of discrimination; or
to publish or display, or cause or allow to be published or displayed, any advertisement or notice which indicates, or could reasonably be understood as indicating, an intention to differentiate adversely by reason of a prohibited ground of discrimination.

(2) Subsection (1) does not affect the operation of sections 18, 19 and 21.

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Liability of employers and principals

(1) Subject to subsection (3), anything done or omitted by a person as an employee of another person is, for the purposes of this Act, to be treated as done or omitted by the other person as well as by the first - mentioned person, whether or not it was done with that other person's knowledge or approval.

(2) Anything done or omitted by a person as the agent of another person is, for the purposes of this Act, to be treated as done or omitted by that other person as well as by the first-mentioned person, unless it was done or omitted without that other person's express or implied authority, previous or subsequent.

(3) In proceedings under this Act against any person in respect of an act alleged to have been done or omitted by an employee of that person, it is a defence for that person to prove that he or she took all steps reasonably practicable to prevent the employee from doing or omitting the act, or from doing or omitting as an employee of that person acts or omissions of that description.

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