Incoming amendments to the Northern Territory Anti-Discrimination Act 1992 (NT)

Saul Harben, Katie-Maree O'Brien and Jesse Rutigliano
15 Nov 2022 Time to read: 3 MIN

The positive duty and wider jurisdiction for systemic discrimination complaints in the Anti-Discrimination Amendment Bill 2022 (NT) bring into sharp focus an employer’s ongoing obligations to educate and seek compliance.

In the past couple of years there have been a number of proposed reforms surrounding anti-discrimination and harassment provision contained in key federal and state anti-discrimination legislation, namely, the Australian Human Rights Commission Act 1986 (Cth), the Sex Discrimination Act 1984 (Cth), the Fair Work Act 2009 (Cth), the Equal Opportunity Act 1984 (WA), and the Anti-Discrimination Act 1991 (Qld).

In a similar vein, the Anti-Discrimination Act 1992 (NT) underwent a comprehensive review in 2017-18, followed by extensive consultation which culminated in the tabling of the Anti-Discrimination Amendment Bill 2022 (NT) in the Northern Territory Parliament on 13 October 2022.

The Bill is intended to provide additional legislative protections in the form of expanding the scope of operation and removing prohibitive hurdles to claims.

So, what does the Anti-Discrimination Act 1992 (NT) currently cover?

Specifically, the current NT Act provides coverage of the following protected attributes:

  • Pregnancy;
  • Breastfeeding;
  • Sex;
  • Race;
  • Trade union or employer association activity;
  • Age;
  • Political opinion, affiliation or activity;
  • Parenthood;
  • Irrelevant medical record;
  • Associated with a person who has or is believed to have a protected attribute;
  • Religious belief or activity;
  • Marital status;
  • Irrelevant criminal record;
  • Impairment; and
  • Sexuality.

What does the Anti-Discrimination Amendment Bill 2022 (NT) propose to reform?

New attributes

In additional to the above protected attributes, some of newly protected attributes are:

  • Carer responsibilities – meaning whether or not the person is a parent or has responsibility to care for a family member or near relative or through kinship or otherwise;
  • Gender identity –meaning a person’s gender-related identity which may or may not correspond with the person’s designated sex at birth including the personal sense of body (whether this involves medical intervention or not), and other expression such as dress, speech mannerisms, names and personal references; and
  • Sex characteristics – meaning a person’s physical features and development relating to sex, including:
    • genitalia, gonads and other sexual and reproductive parts of the person’s anatomy;
    • chromosomes, genes and hormones related to sex; and
    • secondary physical features emerging as a result of puberty.

Positive duty

The introduction of a positive duty to eliminate discrimination, sexual harassment and victimisation. A person must take reasonable and proportionate measures which will consider:

  • the size of the person’s business or operations;
  • the nature and circumstances of the person’s business or operations;
  • the person’s resources;
  • the person’s business and operational priorities; and
  • the practicability and the cost of the measure.

The Anti-Discrimination Commissioner may investigate compliance with this duty. The outcome of an investigation may result in the Anti-Discrimination Commissioner taking no further action, requiring enforceable undertakings with a person, or providing a report to the Minister and publishing the report.

Vilification

There will be a prohibition on acts of vilification based on protected attributes, which is modelled on section 18C of the Racial Discrimination Act 1978 (Cth) but is broader in that it will cover all protected attributes under the Act (not just race).

The provision prohibits a public act that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group and is done because of a protected attribute of the person or group. A public act may be applied to the publication of online content that offends, insults, humiliates or intimidates because of a protected attribute.

The test is an objective one, which requires the effect of the act in question to be assessed from the perspective of an ordinary, reasonable member of the relevant group that was targeted

Assistance animals

There will be a new definition of "assistance animal" which requires the animal to be trained or accredited by a training organisation or State or Territory body prescribed by regulation, to assist, in a public place, a person with a disability in relation to the disability.

This clause broadens the application of former section 21 through replacing the provision so that it applies to any assistance animal (not just a guide dog) used by a person with a disability (not just a visual, hearing or mobility impairment).

The clause allows a person to request a person with a disability to produce evidence that an animal is an assistance animal, and the protection against discrimination will not apply if the person cannot produce evidence that the animal is an assistance animal.

Religious education

The removal of provisions is to ensure that teachers will not be discriminated against on the basis of their sexuality in religious institutions. Effectively, this clause omits section 37A which currently provides an exemption for religious educational institutions in the area of work on the grounds of religious belief or activity and sexuality if done in good faith to avoid offending the religious sensitivities of people of the particular religion.

Representative complaints service

There will be a new representative complaints process directed to the Anti-Discrimination Commissioner which will consider systemic discrimination against groups of people resulting from the behaviour, practice, policy or program of one or more organisations.

Key takeaways for employers in the Northern Territory

With the advent of the proposed Bill, it is essential that employers review their policies, training and procedures to prepare for the impact of any increased scope. Without doubt, the positive duty and wider jurisdiction for systemic discrimination complaints bring into sharp focus an employer’s ongoing obligations to educate and seek compliance from all levels of management and all employees.

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