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2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SEX AND AGE DISCRIMINATION LEGISLATION
AMENDMENT BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Hon Robert McClelland MP)
SEX AND AGE DISCRIMINATION LEGISLATION
AMENDMENT BILL 2010
Outline
The Sex and Age Discrimination Legislation Amendment Bill 2010 (the
Bill) contains two measures:
- amendments to the Sex Discrimination Act 1984 (SDA) to strengthen
protections in the legislation; and
- amendments to the Age Discrimination Act 2004 (ADA) to establish an Age
Discrimination Commissioner in the Australian Human Rights Commission.
The SDA makes discrimination on the grounds of sex, marital status,
pregnancy and family responsibilities unlawful in specified areas of
public life. It has been in place for over 25 years and has been an
important tool in addressing discrimination and changing attitudes
about the participation of women and men in a range of areas of public
life. The SDA, similar to other anti-discrimination laws, has been an
important mechanism in changing community perceptions and setting
appropriate standards to recognise that men and women should be able to
fully participate in the social, economic and public life of Australian
society.
These amendments give effect to recommendations of the Senate Standing
Committee on Legal and Constitutional Affairs (the Senate Committee) in
its 2008 report into the effectiveness of the Sex Discrimination Act in
eliminating discrimination and promoting gender equality (the Senate
Report). These amendments address issues of significant community
concern by strengthening protections for Australians in the workplace,
including workers with family responsibilities, as well as providing
specific protections for women who are breastfeeding.
The Senate Report also recommends a number of significant changes to
the SDA which are relevant to all federal anti-discrimination laws.
These recommendations will be considered as part of the work on
Australia's Human Rights Framework to streamline federal anti-
discrimination legislation into a single, comprehensive Act.
The key amendments made by this Bill will:
. extend protections from discrimination on the grounds of family
responsibilities to both women and men in all areas of work;
. provide greater protection from sexual harassment for students and
workers;
. ensure that protections from sex discrimination apply equally to women
and men; and
. establish breastfeeding as a separate ground of discrimination.
The ADA makes discrimination on the grounds of age unlawful in
specified areas of public life but does not provide for a dedicated Age
Discrimination Commissioner to advocate for the rights of people,
particularly older Australians, who experience age discrimination.
This Bill creates a stand-alone position of Age Discrimination
Commissioner for the first time at the federal level.
The Commissioner will also engage with stakeholders, including industry
and community representatives, to tackle discrimination in workplaces
and in the community, promote respect and fairness and tackle the
attitudes and stereotypes that can contribute to age discrimination.
Financial Impact
The establishment of the Age Discrimination Commissioner will cost
$1.0m per year from 2011-12, when the position is to be established.
The other amendments in this Bill have negligible financial
implications.
NOTES ON CLAUSES
Clause 1-Short title
1. This clause provides a short title for the Act, the Sex and Age
Discrimination Legislation Amendment Act 2010.
Clause 2-Commencement
2. This clause provides that the amendments to the SDA in the first
Schedule to the Bill will commence on the day after the Act receives
the Royal Assent.
3. This clause also provides that the amendments to establish the Age
Discrimination Commissioner will commence on a day fixed by
Proclamation, or at the end of 6 months after Royal Assent if the
amendments have not commenced earlier.
Clause 3-Schedule(s)
4. This clause provides that each Act specified in a Schedule to the Bill
will be amended or repealed as set out in the Schedules.
Schedule 1-Amendments relating to sex discrimination
Part 1-Amendment of the Sex Discrimination Act 1984
Division 1-Amendments
Sex Discrimination Act 1984
Item 1
5. This Item will amend the long title of the SDA to reflect the insertion
of breastfeeding as a separate ground of discrimination in new
section 7AA by Item 17 of this Bill.
Item 2
6. This Item will amend the preamble to the SDA to reflect the insertion
of breastfeeding as a separate ground of discrimination, and the
expanded coverage of family responsibilities discrimination.
Item 3
7. This Item will amend the objects of the SDA to provide that the objects
include giving effect to provisions of other relevant international
instruments in addition to the UN Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW). This reflects the
broadened constitutional support for the SDA which will be brought
about by the amendment to subsection 9(10) of the SDA by Item 24.
8. A definition of 'relevant international instruments' will be inserted
into subsection 4(1) by Item 10.
Item 4
9. This Item will amend the objects of the SDA to include the elimination,
so far as is possible, of discrimination against persons on the ground
of breastfeeding in specified areas of public life, to reflect the
insertion of breastfeeding as a separate ground of discrimination in
new section 7AA by Item 17.
Item 5
10. This Item will amend the objects of the SDA to include the elimination,
so far as possible, of discrimination on the ground of family
responsibilities in the area of work. The removal of the reference to
dismissal, and the reference to 'the area of work' rather than
'employees' reflect the broadened prohibition of discrimination on the
ground of family responsibilities which will be brought about by the
new definition of family responsibilities in section 7A inserted by
Item 18, and the amendments to Division 1 of Part II of the SDA made by
Items 37 and 39-44.
Item 6
11. This Item will amend the interpretation provisions of the SDA to
signpost that breastfeeding has a meaning described in
subsections 7AA(3) and (4). Under these subsections, which will be
inserted by Item 17, breastfeeding is defined inclusively to include
the act of expressing milk, single acts of breastfeeding, and
breastfeeding over a period of time.
Item 7
12. This Item will repeal the definition of 'Convention' in subsection 4(1)
of the SDA. 'Convention' is currently defined to mean CEDAW. However,
amendments to subsection 9(10) by Item 24, to widen the number of
international instruments which are relevant to the SDA, will make this
definition redundant.
Item 8
13. This Item will insert a definition of 'disability' into subsection 4(1)
of the SDA by reference to the meaning of that term in the Disability
Discrimination Act 1992, to support the reference to disability in the
list of factors which may be relevant in determining whether a sexual
harasser should have anticipated the possibility that the person
harassed would be offended, humiliated or intimidated which will be
inserted by Item 54.
Item 9
14. This Item will insert a definition of 'official record of a person's
sex' into subsection 4(1) of the SDA to support the amendments which
will be made by Item 62.
Item 10
15. This Item will insert a definition of 'relevant international
instrument' into subsection 4(1) of the SDA. This amendment is
necessary to support the amendment to subsection 9(10) which will be
made by Item 24, which widens the number of international instruments
which are relevant to the SDA.
Items 11-14
16. These Items will amend section 4A as a consequence of the application
of discrimination on the ground of family responsibilities to all of
the areas of work identified in Division 1 of Part II of the SDA by
Items 37 and 39-44. The new wording will ensure that the definition of
family responsibilities applies appropriately to all of the areas of
work in Division 1 of Part II.
Item 15
17. This Item will repeal subsection 5(1A) of the SDA. Subsection 5(1A) is
an avoidance of doubt provision, which clarifies that breastfeeding
(including the act of expressing milk) is a characteristic that
appertains generally to women; the purpose of the provision was to
ensure that discrimination against breastfeeding women was unlawful as
a form of sex discrimination. Subsection 5(1A) will no longer be
necessary as a consequence of the insertion of new subsection 7AA by
Item 17, which provides breastfeeding as a separate stand-alone ground
of discrimination under the SDA.
Item 16
18. This Item will amend the definition of indirect pregnancy
discrimination in subsection 7(2) to remove the word 'also'. The
inclusion of this word is unnecessary. Removal of the word ensures
that subsection 7(2) is consistent with new subsection 7AA(2).
Item 17
19. This Item will insert a new ground of discrimination in relation to
breastfeeding. This ground of discrimination is only available to
women who are breastfeeding. The ground is not available to men, or to
women who are not breastfeeding. The ground extends to both direct
discrimination (subsection 7AA(1)) and indirect discrimination
(subsection 7AA(2)), and applies subject to the reasonableness test for
indirect discrimination in section 7B and the authorisation of special
measures intended to achieve equality in section 7D
(subsection 7AA(5)). This amendment addresses Recommendation 12 of the
SDA Report.
20. Subsection 7AA(1) relates to direct discrimination against women who
are breastfeeding. Direct discrimination occurs where a person treats
someone less favourably than another person. The subsection provides
that it is discriminatory to treat a woman who is breastfeeding less
favourably than someone who is not breastfeeding in the same or similar
circumstances. For example, it would be discriminatory for an employer
to refuse to hire any woman who is breastfeeding, or for a restaurateur
to decline to serve a patron who is breastfeeding. Subsection 7AA(1)
is modelled on existing subsection 7(1) (direct discrimination on the
ground of pregnancy).
21. Subsection 7AA(2) relates to indirect discrimination against women who
are breastfeeding. Indirect discrimination arises where an apparently
neutral condition, requirement or practice has the effect of
disadvantaging a particular group, in this case women who are
breastfeeding. For example, an employer may impose a requirement on
all employees that they must not take any breaks for set periods during
the day under any circumstances. Such a condition would particularly
disadvantage women who need to express milk. This subsection provides
that it is discriminatory to impose, or propose to impose, a condition,
requirement or practice that has, or is likely to have, the effect of
disadvantaging women who are breastfeeding. This prohibition of
indirect discrimination has effect subject to the reasonableness test
in section 7B (see subsection 7AA(5)). Subsection 7AA(2) is modelled
on existing subsection 7(2) (indirect discrimination on the ground of
pregnancy or potential pregnancy).
22. Subsections 7AA(3) and (4) clarify the meaning of breastfeeding.
Subsection 7AA(3) provides that a reference to breastfeeding includes
the act of expressing milk. Subsection 7AA(4) provides that a
reference to breastfeeding includes individual acts of breastfeeding,
as well as the fact that a woman may be breastfeeding over a period of
time (for example, for a period of months following childbirth).
Subsection 7AA(4) is intended to avoid a respondent claiming that their
discriminatory act was lawful because the complainant was not actually
breastfeeding at the time that the act took place.
23. Subsection 7AA(5) provides that section 7AA has effect subject to
section 7B (reasonableness test for indirect discrimination). As a
result, a condition, requirement, or practice which has the effect of
disadvantaging women who are breastfeeding is not discriminatory if the
condition, requirement, or practice is reasonable in the circumstances
(subsection 7B(1)). For example, it may be reasonable in some
circumstances to impose a requirement not to take breaks during certain
periods if it is a requirement of the job to operate dangerous
machinery which cannot be left unattended. Subsection 7AA(5) also
provides that section 7AA has effect subject to section 7D (special
measures intended to achieve equality).
Item 18
24. The existing prohibition of discrimination on the grounds of family
responsibilities in the SDA only protects employees from termination on
the ground of family responsibilities (see subsection 14(3A)) and is
limited to direct discrimination.
25. Item 18 will repeal the existing definition of discrimination on the
ground of family responsibilities in section 7A and replace it with a
new definition modelled on the existing definition of discrimination on
the ground of pregnancy or potential pregnancy in section 7. This
ground of discrimination is intended to be equally available to both
women and men. The ground does not allow complaints to be brought by
people without family responsibilities in relation to rights,
privileges, or other conditions which recognise the special needs of
people with family responsibilities. This amendment addresses
Recommendation 13 of the SDA Report.
26. 'Family responsibilities' is defined in section 4A to mean
responsibilities of an employee to care for or support a dependent
child, or any other immediate family member who is in need of care and
support. This definition is not substantially affected by this Bill,
although, as noted at Items 11-14 above, some changes are required as a
consequence of the broadened application of the ground within
Division 1 of Part II of the SDA which will be effected by Items 37 and
39-44.
27. Subsection 7A(1) relates to direct discrimination against a person with
family responsibilities. Direct discrimination occurs where a person
treats someone less favourably than another person. Subsection 7A(1)
provides that it is discriminatory to treat a person (of either sex)
who has family responsibilities less favourably than the discriminator
treats or would treat someone who does not have family
responsibilities, in the same or similar circumstances. For example, it
would be discriminatory for an employer to terminate a person's
employment before they return to work from parental leave, on the basis
that they consider that the employee's new family responsibilities will
interfere with their work. Subsection 7A(1) is modelled on existing
subsection 7(1) (direct discrimination on the ground of pregnancy or
potential pregnancy).
28. Subsection 7A(2) relates to indirect discrimination against people with
family responsibilities. Indirect discrimination arises where an
apparently neutral condition, requirement or practice has the effect of
disadvantaging a particular group, in this case people with family
responsibilities. For example, an employer who refused to contemplate
flexible working arrangements under any circumstances would
particularly disadvantage people with family responsibilities. This
subsection provides that it is discriminatory to impose, or propose to
impose, a condition, requirement or practice that has, or is likely to
have, the effect of disadvantaging people who have family
responsibilities. Subsection 7A(2) is modelled on existing
subsection 7(2) (indirect discrimination on the ground of pregnancy or
potential pregnancy.
29. This prohibition on indirect discrimination has effect subject to the
reasonableness test in section 7B (see subsection 7A(3)). As a result,
a condition, requirement, or practice which has the effect of
disadvantaging people with family responsibilities is not
discriminatory if the condition, requirement, or practice is reasonable
in the circumstances (subsection 7B(1)).
30. Subsection 7A(3) provides that section 7A has effect subject to
sections 7B (reasonableness test for indirect discrimination) and 7D
(special measures intended to achieve equality).
Item 19
31. This Item will amend subsection 7B(1) as a consequence of the insertion
of new grounds of indirect discrimination in relation to breastfeeding
and family responsibilities by Items 17 and 18. The amendment to
subsection 7B(1) in Item 19 will ensure that indirect discrimination on
the ground of breastfeeding or family responsibilities cannot arise
where the condition, requirement or practice complained of is
reasonable in the circumstances.
Items 20 and 21
32. These Items will amend section 7D as a consequence of the insertion of
new grounds of discrimination in relation to breastfeeding and family
responsibilities by Items 17 and 18.
33. Section 7D authorises 'special measures' intended to achieve
substantive equality in specific circumstances. Section 7D provides
for special measures in relation to all of the existing grounds of
discrimination in the SDA except for family responsibilities (where it
is not required due to the very limited nature of the existing
protection).
34. The amendments to section 7D in these Items will ensure that special
measures can be taken to address the particular needs of persons who
are breastfeeding or who have family responsibilities without producing
claims of unlawful discrimination under new sections 7AA or 7A.
Item 22
35. This Item will amend section 8 as a consequence of the insertion of new
grounds of discrimination in relation to breastfeeding and family
responsibilities by Items 17 and 18.
36. Section 8 affects the causal requirement for direct discrimination that
the act complained of be 'by reason of' or 'because of' a protected
attribute. It provides that where the discriminator had two or more
reasons for doing a discriminatory act, the discriminatory reason need
only be one of the reasons for the act, whether or not it is the
dominant or substantial reason for the doing of the act. This test for
causation applies to all of the existing grounds of discrimination in
the SDA.
37. The amendments in Item 22 apply this test for causation to the grounds
of discrimination in new sections 7AA and 7A.
Items 23-29
38. These Items of this Bill will amend section 9 of the SDA. Section 9
limits the application of certain provisions of the SDA in accordance
with specified powers of the Commonwealth under the Commonwealth
Constitution.
39. Section 9 limits the application of two groups of provisions in the
SDA, defined in subsection 9(1) as follows:
. the prescribed provisions of Division 3 of Part II is defined to
include all of the SDA's sexual harassment provisions except for
sections 28D and 28L.
. the prescribed provisions of Part II is defined to include all of the
SDA's unlawful discrimination provisions except for sections 19, 26 and
27.
40. Subsection 9(4) provides that these two groups of provisions only have
effect as provided by subsections 9(3) and 9(5) and following
subsections. A person alleging unlawful discrimination or sexual
harassment must therefore in almost all cases find support for their
complaint in these sections. If they cannot, their claim will fail
even if it would have been valid, had subsection 9(4) not been applied.
41. Section 9 ensures that the SDA is within the constitutional power of
the Commonwealth. Items 23-29 will amend section 9 to incorporate
additional powers which have not previously been relied on, and expand
the extent to which powers already specified are relied upon.
42. The most important problem addressed by these amendments is the
situation in which none of the limited application provisions, other
than subsection 9(10), applies. Subsection 9(10) provides that the
discrimination and sexual harassment provisions of the SDA apply in
relation to discrimination against women, to the extent that the
provisions give effect to CEDAW. CEDAW generally only supports
protection for women against discrimination. Therefore there are
situations in which women enjoy greater protection against
discrimination than men under the SDA. The amendment in Item 24 aims
to address these situations by specifying additional relevant
international conventions to which Australia is a party which prohibit
discrimination against men, as well as women. The amendment addresses
Recommendation 7 of the SDA Report.
43. Other amendments are designed to ensure that the expanded protections
against sexual harassment inserted by Items 53-59 are appropriately
supported by section 9.
44. Item 23 will amend subsection 9(9) to support protection from sexual
harassment committed against:
. Commonwealth employees in connection with their duties as Commonwealth
employees, and
. Members of staff of an educational institution established by a law of
the Commonwealth or a law of a Territory in connection with their
duties as a member of the staff of such an educational institution.
45. Item 24 will repeal existing subsections 9(10) and (10A) and replace
them with a new subsection 9(10). Existing subsection 9(10) supports
the anti-discrimination and sexual harassment provisions of the SDA to
the extent that they give effect to CEDAW. Existing subsection 9(10A)
supports the existing family responsibilities provisions of the SDA to
the extent that they give effect to a broader range of international
instruments. New subsection 9(10) amalgamates these provisions, and
provides support for both the anti-discrimination and sexual harassment
provisions of the SDA to the extent that they give effect to a
'relevant international instrument'. A supporting definition of
'relevant international instrument' will be inserted into
subsection 4(1) by Item 10. As a result of this amendment, the limited
application provisions of the SDA will be better supported where the
other provisions of section 9 do not apply.
46. Items 25 and 27 will amend subsections 9(11) and 9(13) to expand
reliance on the corporations power in section 51(xx) of the
Constitution to support the anti-discrimination provisions of the SDA.
The expanded subsections will apply the protections of the SDA to
discriminatory acts committed against officers or employees of foreign
corporations, or of trading or financial corporations formed within the
limits of the Commonwealth, in addition to discriminatory acts
committed by those officers or employees.
47. Items 26 and 28 will amend subsections 9(12) and 9(14) to expand
reliance on the corporations power in section 51(xx) of the
Constitution to support the sexual harassment provisions of the SDA.
The expanded subsections will apply the protections of the SDA to
sexual harassment committed against officers or employees of foreign
corporations, or of trading or financial corporations formed within the
limits of the Commonwealth, in addition to sexual harassment committed
by those officers or employees.
48. Item 29 will insert a new subsection 9(21) into the SDA. New
subsection 9(21) will rely on the postal, telegraphic, telephonic and
other like services in section 51(v) of the Constitution to support the
sexual harassment provisions of the SDA. This power has gained
significant relevance in the context of sexual harassment given the
ubiquity of new technologies such as social networking websites, e-
mail, SMS communications, and mobile telephone cameras.
Item 30
49. This Item will amend subsection 10(1) as a consequence of the repeal of
subsection 9(10A) by Item 24.
Item 31
50. This Item will amend subsection 10(2) as a consequence of the insertion
of new grounds of discrimination in relation to breastfeeding and
family responsibilities by Items 17 and 18.
51. Section 10 preserves the operation of State and Territory anti-
discrimination laws by clarifying that the SDA is not intended to
exclude or limit the operation of an anti-discrimination law of a State
or Territory that is capable of operating concurrently with the SDA
(see subsection 10(3)).
52. Amendment of subsection 10(2) to include references to the new grounds
of discrimination is necessary to ensure that this provision preserves
the operation of State and Territory laws which also relate to the new
grounds of discrimination.
Item 32
53. This Item will amend subsection 11(2) as a consequence of the insertion
of new grounds of discrimination in relation to breastfeeding and
family responsibilities by Items 17 and 18.
54. Section 11 preserves the operation of State and Territory anti-
discrimination laws by clarifying that the SDA is not intended to
exclude or limit the operation of an anti-discrimination law of a State
or Territory that furthers the objects of CEDAW and is capable of
operating concurrently with the SDA (see subsection 11(3)).
55. Amendment of subsection 11(2) to include references to the new grounds
of discrimination is necessary to ensure that this provision preserves
the operation of State and Territory laws which also relate to the new
grounds of discrimination.
Item 33-35
56. These Items will amend section 11 as a consequence of the amendment to
subsection 9(10) by Item 24.
57. Section 11 preserves the operation of State and Territory laws that
further the objects of CEDAW. This is achieved by clarifying that the
SDA is not intended to exclude or limit the operation of laws of the
States and Territories that further the objects of CEDAW and are
capable of operating concurrently with the SDA.
58. Given the expanded reliance on other international instruments in
amended subsection 9(10) of the SDA, it is appropriate to also preserve
the operation of State and Territory laws that further the objects of
all of the relevant international instruments relied on in
subsection 9(10). These Items therefore replace references in
section 11 to CEDAW with references to relevant international
instruments.
Item 36
59. This Item will repeal section 11A as a consequence of the expanded
application of section 11 to State and Territory laws that further the
objects of relevant international instruments rather than only CEDAW
which will be brought about by Items 33-35.
Items 37, 39-44
60. These Items will amend provisions of Division 1 of Part II of the SDA
as a consequence of the insertion of new grounds of discrimination in
relation to breastfeeding and family responsibilities by Items 17 and
18. The amendments will apply the prohibitions of discrimination on
the grounds of breastfeeding and family responsibilities in the
following areas of work:
. Employment (Item 37)
. Commission agents (Item 39)
. Contract workers (Item 40)
. Partnerships (Item 41)
. Qualifying bodies (Item 42)
. Registered organisations under the Fair Work (Registered Organisations)
Act 2009 (Item 43), and
. Employment agencies (Item 44).
61. The amendments ensure that discrimination on the ground of
breastfeeding and family responsibilities are prohibited in all areas
of work regulated by the SDA. The application of the protection
against discrimination on the ground of family responsibilities to all
areas of work implements Recommendation 13 of the SDA Report.
Item 38
62. This Item will repeal subsection 14(3A) as a consequence of the
coverage of discrimination on the ground of family responsibilities in
all aspects of employment covered by section 14 by Item 37.
Item 45-50
63. These Items will amend provisions of Division 2 of Part II of the SDA
as a consequence of the insertion of a new ground of discrimination in
relation to breastfeeding by Item 17. The amendments will apply the
prohibition of discrimination on the ground of breastfeeding in the
following areas of public life:
. Education (Item 45)
. Goods, services and facilities (Item 46)
. Accommodation (Item 47)
. Land (Item 48)
. Clubs (Item 49), and
. Administration of Commonwealth laws and programs (Item 50).
Item 51 and 52
64. These Items will amend section 27 as a consequence of the insertion of
new grounds of discrimination in relation to breastfeeding and family
responsibilities by Items 17 and 18.
65. Section 27 makes it unlawful for a person to request or require another
person to provide information if the information would enable the
requester to unlawfully discriminate. For example, it is unlawful for
an employer to ask prospective female employees about their children
but not to ask the same question of prospective male employees, in
order to avoid hiring women with caring responsibilities.
66. The amendments in Items 51 and 52 will ensure that requests for
information in connection with discrimination on the grounds of family
responsibilities or breastfeeding are also unlawful.
Item 53
67. This Item will amend the test for sexual harassment provided by
section 28A of the SDA.
68. Section 28A provides that sexual harassment arises where:
. a person makes a sexual advance, request for sexual favours, or engages
in other conduct of a sexual nature in relation to another person
. that conduct is unwelcome, and
. in the circumstances a reasonable person, having regard to all the
circumstances, would have anticipated that the person harassed would be
offended, humiliated or intimidated.
69. During its inquiry into the SDA, the Senate Committee heard evidence
that this existing definition may be too narrow, because it may require
that a reasonable person anticipate that the person harassed would be
offended, humiliated or intimidated by the conduct.
70. This amendment will strengthen the protection against sexual harassment
in the SDA, by requiring that a reasonable person need only anticipate
the possibility that the person harassed would be offended, humiliated,
or intimidated by the conduct.
71. This amendment is modelled on the test in section 119 of the Anti-
Discrimination Act 1991 (Qld). This Item addresses Recommendation 15 of
the SDA Report.
Item 54
72. This Item will amend the test for sexual harassment provided by
section 28A of the SDA by inserting a new subsection 28A(1A). This
subsection will provide an indicative list of circumstances which may
be relevant to determining whether a reasonable person would have
anticipated the possibility that the person harassed would be offended,
humiliated or intimidated. The list is not intended to be exhaustive
of all the circumstances which may be relevant to this assessment.
73. The factors identified in new subsection 28A(1A) are based on the
factors identified in section 120 of the Anti-Discrimination Act 1991
(Qld). However, some terms have been updated for greater consistency
with Commonwealth anti-discrimination law. For example, references to
'impairment' have been replaced with references to 'disability', which
will be defined by reference to the definition in the Disability
Discrimination Act 1992 (see Item 8). In addition, the list has been
expanded to include additional factors of particular relevance to the
particular forms of harassment that some people may face. These
include marital status, sexual preference and religious belief. This
Item addresses Recommendation 16 of the SDA Report.
Item 55
74. This Item will amend subsection 28B(6) of the SDA to provide that
sexual harassment between workplace participants need only occur at the
workplace of one of the workplace participants.
75. Section 28B makes sexual harassment unlawful in the workplace.
Generally, workplace sexual harassment is prohibited between specified
classes of workplace participants, including:
. Employers against employees/prospective employees (subsection 28B(1))
. Employees against fellow employees/prospective employees
(subsection 28B(2))
. A person against their existing or prospective commission agents or
contract workers (subsection 28B(3))
. Commission agents or contract workers against their fellow existing or
prospective commission agents or contract workers (subsection 28B(4))
. Partners against other partners, or people seeking to become partners
in the same partnership (subsection 28B(5)), and
. Workplace participants against other workplace participants at a place
that is a workplace of both the workplace participants
(subsection 28B(6)).
76. Subsection 28B(6) is necessary to ensure that protection against sexual
harassment is prohibited between combinations of classes of workplace
participants which are not covered by subsections 28B(1)-(5) (for
example, employees against contract workers). However,
subsection 28B(6) is limited to sexual harassment which occurs at a
place which is the workplace of both the workplace participants.
77. Item 55 will amend subsection 28B(6) to remove the requirement that the
harassment must occur at the workplace of both of the workplace
participants, to encompass sexual harassment which arises between
people employed by different organisations.
78. Item 55, along with Item 59, addresses Recommendation 18 of the SDA
Report.
Item 56
79. This Item will amend paragraph 28F(2)(a) to remove the requirement that
a student who suffers sexual harassment must be an 'adult' student
(that is, a student who has attained the age of 16 years) for the
sexual harassment to be unlawful. After the amendment, sexual
harassment of a student by an adult student at the same educational
institution will be unlawful irrespective of the age of the student
harassed. Item 56 addresses the first limb of Recommendation 17 of the
SDA Report.
Item 57
80. This Item will amend section 28F to insert new subsections 28F(2A) and
28F(2B), which will prohibit sexual harassment of a student by a member
of staff of another educational institution, and sexual harassment by
an adult student of students or staff at another educational
institution.
81. These amendments are intended to prohibit sexual harassment which
occurs at inter-school activities, such as sporting carnivals, debating
competitions, or joint school theatrical productions, and where
educational institutions are co-located or share facilities. As noted
by the Senate Committee in its Report, the SDA presently does not
protect students or staff from harassment by persons attached to
different educational institutions.
82. Subsection 28F(2A) will make it unlawful for a member of staff of an
educational institution to sexually harass a student at another
educational institution, if the sexual harassment occurs in connection
with the harasser being a member of staff of their educational
institution. The subsection does not prohibit sexual harassment
between members of staff of different institutions, because this will
be appropriately regulated by subsection 28B(6) (as amended by
Item 55).
83. Subsection 28F(2B) will make it unlawful for an adult student at an
educational institution to sexually harass a member of staff or a
student at a different educational institution, if the sexual
harassment occurs in connection with the harasser being a student at
their educational institution. Item 57 addresses the second limb of
Recommendation 17 of the SDA Report.
Item 58
84. This Item will amend section 28G as a consequence of the insertion of a
new subsection 28G(2) by Item 59.
Item 59
85. This Item will amend section 28G, which prohibits sexual harassment in
the provision of goods, services and facilities.
86. At present, section 28G only protects customers and clients against
sexual harassment from service providers. Service providers are not
afforded the same protection against sexual harassment from their
customers and clients.
87. New subsection 28G(2) will make it unlawful for a person to sexually
harass another person in the course of seeking, or receiving, goods,
services or facilities from the harassed person. This will provide
protection to service providers against sexual harassment by customers
and clients, in addition to the existing protection for customers and
clients in what will become subsection 28G(1). Item 59, along with
Item 55, addresses Recommendation 18 of the SDA Report.
Item 60
88. This Item will amend the exemption in section 31 to ensure that a man
cannot bring a complaint of unlawful sex discrimination by reason only
of the fact that a person grants to a woman rights or privileges in
connection with breastfeeding. The amendment recognises that
breastfeeding may give rise to special needs, such as for private areas
for breastfeeding, or hygienic areas for storage of expressed milk,
that should not be subject to complaints of unlawful discrimination.
Item 61
89. This Item will amend the exemption for voluntary bodies in section 39
as a consequence of the insertion of the new grounds of discrimination
in relation to breastfeeding and family responsibilities by Items 17
and 18.
90. As a consequence of the amendment, it will not be unlawful for a
voluntary body to discriminate against a person on the ground of their
breastfeeding or family responsibilities, in connection with:
. the admission of persons as members of the body, or
. the provision of benefits, facilities, or services to members of the
body.
Item 62
91. This Item will amend section 40 to include an exemption to preserve the
operation of State and Territory laws regarding official records of a
person's sex.
Items 63-65
92. These Items will amend the exemption in relation to new superannuation
fund conditions in section 41A as a consequence of the insertion of the
new ground of discrimination on the basis of family responsibilities by
Item 18. These amendments are necessary to preserve existing policy in
relation to superannuation fund conditions.
Items 66 and 67
93. These Items will amend the exemption in relation to existing
superannuation fund conditions in section 41B as a consequence of the
insertion of the new ground of discrimination on the basis of family
responsibilities by Item 18. These amendments are necessary to
preserve existing policy in relation to superannuation fund conditions.
Item 68
94. This Item will amend paragraphs 48(1)(g), (ga) and (gb) as a
consequence of the insertion of the new grounds of discrimination in
relation to breastfeeding and family responsibilities by Items 17 and
18.
95. The amendments will ensure that the Australian Human Rights
Commission's powers to produce reports, guidelines, and intervene in
proceedings appropriately extend to the new grounds of discrimination.
The amendment to paragraph 48(1)(gb) addresses Recommendation 30 of the
SDA Report.
Division 2-Application of amendments
Item 69
96. This Item provides that the amendments of the SDA made by Part 1 of
this Bill will not have retrospective effect by providing that the
amendments will apply only in relation to acts or omissions occurring
after the commencement of Part 1 of this Bill.
Part 2-Consequential amendments
Equal Opportunity for Women in the Workplace Act 1999
Item 70
97. This Item will amend the definition of 'discrimination' in
subsection 3(1) of the Equal Opportunity for Women in the Workplace
Act 1999 as a consequence of the insertion of the new grounds of
discrimination in relation to breastfeeding and family responsibilities
by Items 17 and 18.
Schedule 2-Amendments relating to age discrimination
Part 1-Amendment of the Age Discrimination Act 2004
Age Discrimination Act 2004
Item 1
98. This Item will amend the outline of the Age Discrimination Act 2004
(ADA) to refer to the establishment of the Age Discrimination
Commissioner in the new Part 6A inserted by Item 3 of Schedule 2 to the
Bill.
Item 2
99. This Item will insert a definition of Age Discrimination Commissioner
to mean the person appointed under new section 53A inserted by Item 3.
Item 3
100. This Item will insert a new Part 6A to establish the office of the Age
Discrimination Commissioner. The new Part also contains provisions on
how the Commissioner is to be appointed, the terms and conditions of
appointment, salary and allowances, leave, outside employment,
resignation, termination of appointment and arrangements for the
appointment of an acting Commissioner.
101. This Part is based on equivalent provisions governing the Disability
Discrimination Commissioner, the Race Discrimination Commissioner and
the Sex Discrimination Commissioner in the Disability Discrimination
Act 1992 (DDA), the Racial Discrimination Act 1975 (RDA) and the Sex
Discrimination Act 1984 (SDA) respectively. There are, however, some
minor differences to reflect current drafting practice.
102. The Government is currently undertaking a project to consolidate
Commonwealth anti-discrimination legislation to remove unnecessary
regulatory overlap and address inconsistencies. As part of this
project, the administrative provisions relating to the Commissioners
will be harmonised and outdated provisions will be removed.
103. For example, there are provisions in the DDA, RDA and SDA which relate
to non-operative, historical functions of the Commissioners. As the
Commissioners no longer have these functions and the Age Discrimination
Commissioner will not either, there is no reason for these provisions
to be included in the ADA.
New section 53A
104. This section establishes the office of Age Discrimination Commissioner
and provides that the Commissioner is to be appointed by the Governor-
General, but only if the Minister is satisfied that the person has
appropriate qualifications, knowledge or experience. In this regard,
the current minister responsible for the ADA is the Attorney-General.
105. Under subsection 33(4A) of the Acts Interpretation Act 1901, a person
appointed to the position of Age Discrimination Commissioner is
eligible for reappointment.
New section 53B
106. This section provides that the Age Discrimination Commissioner is to
hold office for a period of up to seven years. This is consistent with
the appointment provisions in the DDA, RDA and SDA. In practice,
Commissioners are normally initially appointed for a period of five
years, consistent with the Australian Public Service Commission's
policy Merit and transparency: Merit-based selection of APS agency
heads and APS statutory office holders.[1] Commissioners are eligible
for reappointment after this period.
107. Section 53B provides that the Commissioner holds office on a full-time
basis. While the DDA, RDA and SDA do not expressly include an
equivalent provision, each Commissioner is appointed on a full-time
basis. It is current drafting practice to expressly refer to statutory
positions as full-time or part-time appointments.
108. The Commissioner is to hold office on terms and conditions, if any,
that are determined by the Governor-General.
New section 53C
109. This section provides that the Commissioner is to be paid the amount
determined by the Remuneration Tribunal. Where there is no such
determination by the Remuneration Tribunal, the Commissioner is to be
paid the amount set out in regulations. Remuneration Tribunal
Determinations for full-time statutory office holders can be found at