Australian Capital Territory Numbered Acts Australian Capital Territory Numbered ActsSchedule 1 Consequential amendments
(see s 3)
insert
Chapter 7A Other offences
750 Serious vilification
(1) A person commits an offence if—
(a) the person intentionally carries out an act; and
(b) the act is a threatening act; and
(c) the person is reckless about whether the act incites hatred toward, revulsion of, serious contempt for, or severe ridicule of, a person or group of people on the ground of any of the following:
(i) disability;
(ii) gender identity;
(iii) HIV/AIDS status;
(iv) race;
(v) religious conviction;
(vi) sexuality; and
(d) the act is done other than in private; and
(e) the person is reckless about whether the act is done other than in private.
Examples—other than in private
1 screening recorded material at an event that is open to the public, even if privately organised
2 writing a publically viewable post on social media
3 speaking in an interview intended to be broadcast or published
4 actions or gestures observable by the public
5 wearing or displaying clothes, signs or flags observable by the public
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
Maximum penalty: 50 penalty units.
(2) In this section:
"disability"—see the Discrimination Act 1991
, section 5AA.
"gender identity"—see the Discrimination Act 1991
, dictionary.
"HIV/AIDS" status means status as a person who has the Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome.
"race"—see the Discrimination Act 1991
, dictionary.
"religious conviction"—see the Discrimination Act 1991
, dictionary.
"sexuality"—see the Discrimination Act 1991
, dictionary.
"threatening act" means an act carried out by a person only if the person—
(a) by the act, intentionally threatens physical harm toward, or toward any property of, the person, or members of the group mentioned in subsection (1) (c) (i) to (vi); or
(b) is reckless about whether the act incites others to threaten the harm.
[1.2] New section 750 (1) (c) (iiia)
insert
(iiia) intersex status;
[1.3] Section 750 (2), new definition of intersex status
insert
"intersex status"—see the Discrimination Act 1991
, dictionary.
Part 1.2 Human Rights Commission Act 2005
substitute
(c) a complaint about an unlawful act under the Discrimination Act 1991
(a discrimination complaint );
insert
(1A) For a discrimination complaint, the complaint may be made in relation to unfavourable treatment—
(a) on the grounds of 2 or more attributes under the Discrimination Act 1991
, section 7; and
(b) occurring on 2 or more occasions.
omit
attributes under the Discrimination Act 1991
substitute
protected attributes under the Discrimination Act 1991
insert
(ea) if the complaint is a discrimination complaint—a person who has a sufficient interest in the complaint; or
insert
(1A) For subsection (1) (ea), a person has a sufficient interest in a complaint if the conduct complained about is a matter of a genuine concern to the person because of the way conduct of that kind adversely affects, or has the potential to adversely affect, the interests of the person or interests or welfare of anyone the person represents.
insert
(4A) A person mentioned in subsection (1) (ea) may make a complaint only if the aggrieved person consents to the making of the complaint.
[1.10] New section 44 (1) (ba)
insert
(ba) if the complaint is made by a person under section 43 (1) (ea)—name the aggrieved person; and
insert
(1A) For a discrimination complaint, the complaint need not state whether the discrimination complained about is direct discrimination or indirect discrimination.
Note Discrimination occurs when a person directly or indirectly discriminates against someone (see Discrimination Act 1991
, s 8).
substitute
53 Meaning of unlawful act —div 4.2A
In this division:
"unlawful act" means an unlawful act under the Discrimination Act 1991
.
insert
53CA Onus of establishing complaint about discrimination etc
(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a) treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person ( direct discrimination ); or
(b) imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) ( indirect discrimination ).
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a) establishes that—
(i) for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii) for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i) for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii) for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3) The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a) for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
(b) for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.
Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991
, s 70).
(4) In this section:
"protected attribute" means an attribute mentioned in the Discrimination Act 1991
omit
an attribute mentioned in the Discrimination Act 1991
substitute
a protected attribute under the Discrimination Act 1991
insert
53DA Commission to give information etc to ACAT
The commission must give the ACAT (if asked by it) any information or copies of documents in relation to a complaint referred to the ACAT under this division, other than—
(a) a communication or document to which section 66 (Admissibility of evidence) applies; or
(b) information, a document or something else relevant to a consideration in relation to a complaint given to the commission under section 73 (Power to ask for information, documents and other things); or
(c) information given to the commission under section 74 (Requiring attendance etc).
[1.16] New section 53E (2A) and (2B)
insert
(2A) In making an order under subsection (2) (c), the ACAT must consider—
(a) the person's right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b) the inherent dignity of all people and the impact of the discrimination on the person's dignity; and
(c) the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
(d) the nature of the discrimination; and
(e) any mitigating factors.
Examples—par (b)—impact of discrimination
distress, humiliation, loss of self-esteem, loss of enjoyment of life
Example—par (c)—other human rights
freedom of expression
Examples—par (d)
serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more attributes mentioned in the Discrimination Act 1991
, s 7
Examples—par (e)
a public apology, systemic changes to protect against further discrimination
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(2B) The commission may, with the ACAT's consent, intervene in a complaint to make submissions about an order under subsection (2) (c).
[1.17] Section 53E (2A), examples—par (d)
omit
attributes mentioned in the Discrimination Act 1991
, s 7
substitute
protected attributes under the Discrimination Act 1991
[1.18] Section 78 (2) (c) (iv), example
omit
unlawful under the Discrimination Act 1991
, part 3, part 5, section 66 or part 7
substitute
an unlawful act under the Discrimination Act 1991
insert
(6) A person to whom this section applies does not commit an offence under subsection (2) only because the person discloses information in relation to a discrimination complaint if—
(a) the person discloses the information in exercising a function under this Act in relation to education or research; and
(b) all relevant parties consent to the information being disclosed.
Part 1.3 Legal Aid Act 1977
[1.20] Section 68A (9), definition of unjustified discrimination
omit
unlawful
substitute
an unlawful act
Part 1.4 Protection of Public Participation Act 2008
[1.21] Section 7 (2) (b)
after
insert
, section 67A
[1.22] New section 7 (2) (ba)
insert
(ba) that constitutes an offence against the Criminal Code
, section 750 (Serious vilification); or
Part 1.5 Road Transport (Public Passenger Services) Regulation 2002
omit
substitute
s 5AA
Part 1.6 Spent Convictions Act 2000
[1.24] Section 3 (2), note
omit
[1.25] Section 3 (3), new note
insert
Note See the Discrimination Act 1991
, s 7 (1) (l) for discrimination on the ground of spent conviction or extinguished conviction.