The Law Handbook 2024

992 Section 11: Rights, activism and fair treatment at work • Genuine occupational requirements (s 26) An employer may limit employment to people of one sex where there is a genuine occupational requirement for doing so. For example, female attendants are required to staff female change rooms to preserve privacy and decency. Employers may also limit employment on the basis of age, sex or race, and to people with or without a particular disability, in relation to a dramatic or artistic performance, entertainment, photographic or modelling work or any other employment, where it is necessary to do so for authenticity or credibility. • Welfare services (s 28) An employer can limit the offering of employment to people with a particular attribute where the employment is to provide services to meet the special needs of people with that attribute – where the services themselves are a special measure under section 12, or a special needs service under section 88 – and the services can be provided most effectively by people with that attribute. For example, a support service for women who have experienced domestic violence may require its counsellors to be female. • Welfare measures (s 60) Hostels or similar institutions that are run wholly or mainly for the welfare of people of a particular sex, age, race or religious belief are permitted to refuse to accommodate people who do not have the particular attribute. • Special needs (s 88) A person may establish special services, benefits or facilities for people with particular needs and then limit access to people with those needs. For example, a support group established for fathers experiencing separation from their children may, by implication, limit the availability of the service to males only. • Religious bodies and religious schools (ss 82, 83) Religious bodies may lawfully discriminate on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity. Religious schools may lawfully discriminate on the basis of religious belief or activity. The discrimination must be reasonable and proportionate in the circumstances and conform with the doctrines, beliefs or principles of the religious order, or be reasonably necessary to avoid injury to the religious sensitivities of adherents of that religion. • Employment in religious bodies and religious schools (ss 82A–83A) Religious bodies and schools may lawfully discriminate in relation to the employment of another person on the basis of a person’s religious belief in limited circumstances, for example, if: – conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the position; and – the person cannot meet that inherent requirement because of their religious belief or activity; and – the discrimination is reasonable and proportionate in the circumstances, or the conduct is reasonably necessary to avoid injuring the religious sensibilities of adherents of the religion. • Religious bodies’ provision of government funded services (s 82B) Religious bodies may discriminate on the basis of religious belief or activity in certain circumstances that relate to the provision of government funded goods and services, only where the discrimination is reasonable and proportionate in the circumstances. • Protection of health and safety (s 86) Discrimination on the basis of disability or physical features may not be unlawful if it is reasonably necessary to protect the health, safety or property of any person, including the person discriminated against. A person may also discriminate against another person on the basis of pregnancy if it is reasonably necessary to protect the health or safety of any person (including the person being discriminated against). • Competitive sporting activities (s 72) A person may exclude: – people of one sex or gender identity who are 12 years or older from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant. Participation in a competitive sporting activity can also be restricted: – to people who can effectively compete, – to people of a specified age or age group, or – to people with a general or particular disability; – a person of one sex from competitive sporting activities where participation is necessary to