Page 1473 - Week 05 - Wednesday, 1 June 2022
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In this case, for example, a female-only football team may be required to allow a female-identifying person who is of male sex to play, provided that their participation would not limit the fairness, safety or effectiveness of the competition. Alternatively, having undertaken the human rights analysis, a basketball team might conclude that they need to exclude a person with disability if their participation in the league would be a safety risk.
However, the exceptions for sport do not extend to the grounds of gender identity, so organisers of a marathon race could not discriminate against a gender non-binary athlete where their sex has no bearing on the fairness, safety or effectiveness of the competition.
These proposed amendments provide a framework to assist organisers and athletes to navigate how to make a decision with regard to the particular circumstances, the nature of the sport and the individual athlete. Our intention, as contained in provisions throughout the bill, is to limit permissible discrimination to where it is reasonable, proportionate and justified.
This consultation draft bill changes where discrimination is permitted at work. The bill proposes requiring employers who seek to discriminate on the basis of genuine occupational qualification to demonstrate that the conduct is reasonable, proportionate and justifiable in all the circumstances. This exception will be expanded to cover all protected attributes.
For example, having considered the human rights implications, an employer could preference a job applicant with lived experience of drug use as a peer support worker. Discrimination will be permitted on the basis of inherent requirements where the conduct is reasonable, proportionate and justifiable in all the circumstances and cannot be mitigated by reasonable adjustments. It will also expand to all protected attributes. Importantly, there will be a duty to make reasonable adjustments for people with any protected attributes. For example, an employee may get time off work for Sorry Business.
The final work-related exception is for workers in private homes. Discrimination will be permitted where it is reasonable, proportionate and justifiable in all the circumstances. This might mean that a female personal carer is preferenced due to modesty concerns.
The last exception to be amended is for insurance and superannuation companies. They will only be able to discriminate where their decisions are based on actuarial or statistical data and relying on that data is reasonable, proportionate and justifiable in the circumstances.
Consumers, however, will be entitled to get the data on which decisions about them are based, or a meaningful explanation of that data. For example, motor insurance companies could charge young men higher premiums due to the increased rate of car accidents.
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