SEX DISCRIMINATION AMENDMENT (SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX STATUS) BILL 2013 Explanatory Memorandum
SEX DISCRIMINATION AMENDMENT (SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX STATUS) BILL 2013
2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
SEX DISCRIMINATION AMENDMENT (SEXUAL ORIENTATION, GENDER IDENTITY
AND INTERSEX STATUS) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Hon Mark Dreyfus QC MP)
SEX DISCRIMINATION AMENDMENT (SEXUAL ORIENTATION, GENDER IDENTITY
AND INTERSEX STATUS) BILL 2013
GENERAL OUTLINE
The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill
2013 (the Bill) contains measures to extend the protection from discrimination to the new grounds
of:
sexual orientation
gender identity, and
intersex status.
It also extends the existing ground of `marital status' to `marital or relationship status' to provide
protection from discrimination for same-sex de facto couples.
These amendments give effect to the Government's commitment to introduce new protections
against discrimination on the basis of sexual orientation and gender identity. The Sex
Discrimination Act 1984 (SDA) is the most appropriate vehicle of the existing Commonwealth
anti-discrimination Acts to introduce these new protections.1
A separate ground of discrimination on the basis of intersex status is also introduced. People who
are intersex may face many of the same issues that are sought to be addressed through the
introduction of the ground of gender identity. However, including the separate ground of intersex
status recognises that whether a person is intersex is a biological characteristic and not an identity.
The Bill also extends the existing ground of `marital status' to `marital or relationship status' to
provide protection from discrimination for same-sex de facto couples, who are currently excluded
from the definition of `marital status'.
The key amendments made by this Bill will:
insert definitions for `sexual orientation', `gender identity' and `intersex status', replace the
definition for `marital status' with `marital or relationship status', and make related changes
to other definitions
provide that discrimination on these new grounds is unlawful in the same circumstances as
for other grounds already covered by the SDA
amend existing exemptions as appropriate to include the new grounds, and introduce three
new exemptions, for conduct in compliance with the Marriage Act 1961, for conduct in
compliance with prescribed Commonwealth, State or Territory laws, and for requests for
information and keeping of records in relation to sex and/or gender, and
extend the functions of the Australian Human Rights Commission to include the new
grounds.
The Bill also contains minor amendments to address drafting anomalies in relation to family
responsibilities discrimination and will make a minor consequential amendment to the Migration
Act 1958.
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Age Discrimination Act 2004, Disability Discrimination Act 1992 and Race Discrimination Act 1975, with the
complaints mechanism contained in the Australian Human Rights Commission Act 1986.
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FINANCIAL IMPACT STATEMENT
The amendments in this Bill will have negligible financial implications. While a small number of
new complaints to the Australian Human Rights Commission is likely to occur, this cost can be
absorbed within existing resources.
REGULATION IMPACT STATEMENT
A Regulation Impact Statement (RIS) for these proposals was previously prepared as part of the
project to consolidate anti-discrimination laws into a single Act. An amended version of that RIS
which extracts content relevant to this proposal is at Attachment A of this Explanatory
Memorandum.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status)
Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The Bill will amend the Sex Discrimination Act 1984 (SDA) to introduce new protections against
discrimination on the basis of a person's sexual orientation, gender identity and intersex status, and
extend the ground of `marital status' to `marital or relationship status' to provide protection from
discrimination for same-sex de facto couples.
There is substantial evidence demonstrating that discrimination against lesbian, gay, bisexual,
transgender and intersex (LGBTI) people occurs in the community. This discrimination occurs in a
range of areas of public life, including work, accommodation and the provision of goods and
services. This range of conduct is highly detrimental to LGBTI people, manifesting in barriers to
how they carry out their day-to-day lives.
The purpose of the Bill is to foster a more inclusive society by prohibiting unlawful discrimination
against LGBTI people and promoting attitudinal change in Australia. It proposes to prohibit
discrimination in all areas of life currently covered by the SDA, as follows:
Areas of work, including:
o Employment and superannuation
o Commission agents
o Contract workers
o Partnerships
o Qualifying bodies
o Registered organisations under the Fair Work (Registered Organisations) Act 2009,
and
o Employment agencies, and
Education
Goods, services and facilities
Accommodation
Land
Clubs, and
Administration of Commonwealth laws and programs.
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Human rights implications
By introducing new grounds of discrimination in a number of areas of public life, the Bill primarily
engages:
the rights to equality and non-discrimination
the rights in work
the right to an effective remedy
the right to a fair hearing
the right to freedom of thought, conscience and religion or belief, and
the right to freedom of association.
Rights to equality and non-discrimination
The rights to equality and non-discrimination are contained in articles 2 and 26 of the International
Covenant on Civil and Political Rights (ICCPR) and article 2(2) of the International Covenant on
Economic, Social and Cultural Rights (ICESCR). The rights to equality and non-discrimination are
also contained in the other core human rights treaties to which Australia is a party (articles 1, 2, 4
and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination,
article 2 of the Convention on the Rights of the Child, articles 2, 3, 4 and 15 of the Convention on
the Elimination of All Forms of Discrimination Against Women and articles 3, 4, 5 and 12 of the
Convention on the Rights of Persons with Disabilities).
The rights to equality and non-discrimination provide that all persons are equal before the law and
entitled, without any discrimination, to the equal protection of the law. As a result, laws shall
prohibit discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or `other status'.
In particular, article 26 of the ICCPR is a `free-standing' bar on discrimination, prohibiting
discrimination in law or in practice in any field regulated by public authorities. The list of grounds
in article 26 is not exhaustive and decisions by the United Nations Human Rights Committee
suggest that a clearly definable group of people linked by their common status is likely to fall
within `other status'. `Other status' has been found by the Committee to include age, sexual
orientation and marital status.
The Bill introduces three new grounds of discrimination: sexual orientation, gender identity and
intersex status; and strengthens the protections against discrimination on the ground of marital or
relationships status. The inclusion of these new grounds will increase protection for groups that are
often the target of discrimination. The Bill will therefore promote the rights to equality and non-
discrimination for LGBTI people.
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Legitimate differential treatment
Discrimination is impermissible differential treatment between persons or groups that results in a
person or a group being treated less favourably than others, based on one of the prohibited grounds
for discrimination. However, the international human rights law principle of `legitimate differential
treatment' enables particular groups of people to be treated differently in certain circumstances.
This differential treatment must be aimed at achieving a legitimate objective, be based on
reasonable and objective criteria and be proportionate to the objective to be achieved.
The SDA recognises that differing treatment may be permissible in certain circumstances by
providing a range of exceptions (defences) to the prohibition on unlawful discrimination. The Bill
amends some of these exceptions to apply to the new grounds of discrimination and also introduces
two new exceptions specifically relevant to these attributes.
Of the existing exceptions, the following have been amended to apply to the new grounds of
discrimination:
Exemption for voluntary bodies, which ensures that the Act does not apply to the
membership of voluntary organisations. This exemption recognises that rights may be
limited by other rights, with the right to equality and non-discrimination limited by the right
to freedom of association (see further the section on this right below).
Exemption for competitive sporting activity, which ensures that the Act does not make it
unlawful to restrict competitive sporting events to people who can effectively compete. It is
legitimate to recognise that biological differences between men and women are relevant to
competitive sporting activities. Limiting this exemption to situations in which strength,
stamina or physique are relevant is a proportionate means of achieving this objective.
Exemptions for religious organisations. This exemption recognises rights may be limited by
other rights, with the right to equality and non-discrimination limited by the right to freedom
of thought, conscience and religion or belief (see further the section on this right below).
Two new exceptions are proposed.
The first new exception makes clear that introducing protections against discrimination on the basis
of sexual orientation does not affect the current policy position regarding same-sex marriage. The
UN Human Rights Committee has stated that it does not consider a refusal to grant marriages
between people of the same sex in and of itself to be a violation of the rights under the ICCPR,
including Article 26. It is not contrary to the ICCPR for a State to refuse to do so, provided that the
status of marriage does not give couples treatment that is more favourable than couples who are not
married and have no possibility of being married because of the restriction on the basis of sexual
orientation. As a result of the 2008 same-sex reforms, all couples, whether married or de facto,
opposite-sex or same-sex, are given the same treatment by Commonwealth law.
The second new exception applies to requests of information and keeping of records that do not
allow for identification as being neither male nor female. This seeks to achieve the legitimate
objective of minimising regulatory impact on organisations. Mandating that all forms must be
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amended to offer an alternative category could have a significant regulatory impact for a wide range
of organisations. This impact would be disproportionate to the small number of people who do
identify as neither male or female. The limited nature of the exception is a proportionate means of
achieving this objective.
The Government is currently developing guidelines on gender recognition for departments and
agencies. Changes as a result of these guidelines may mean those departments and agencies would
no longer require this exemption.
Rights in work
Articles 6 and 7 of the ICESCR provide for the right to work and rights in work, including the
enjoyment of just and favourable conditions of work. The UN Committee on Economic Social and
Cultural Rights in General Comment 18 has stated that the right to work includes:
the right not to be deprived of work unfairly. This definition underlines the fact that respect
for the individual and his dignity is expressed through the freedom of the individual
regarding the choice to work, while emphasizing the importance of work for personal
development as well as for social and economic inclusion.
Article 2(2) of ICESCR provides that:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated
in the present Covenant will be exercised without discrimination of any kind as to race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.
As a result, there can be no discrimination in access to and maintenance of employment on the
grounds enumerated in article 2(2) of ICESCR.
Rights in work for LGBTI people are promoted by the Bill. Introducing protections against
discrimination the grounds of sexual orientation, gender identity and intersex status in work will
prohibit conduct that results in unfair deprivation of work or discrimination in work, such as by
denying a person employment or terminating their employment on the basis of those grounds.
Exemptions for religious organisations also apply to these protections, recognising that rights may
be limited by other rights (see further the section on the right to freedom of thought, conscience and
religion or belief below).
Right to an effective remedy and right to a fair hearing
The right to an effective remedy for breaches of the ICCPR is contained in article 2(3) of the
ICCPR. The right to an effective remedy encompasses an obligation to bring to justice perpetrators
of human rights abuses, including discrimination, and also to provide appropriate reparation to
victims. Reparation can involve measures including compensation, restitution, rehabilitation, public
apologies, guarantees of non-repetition and changes in relevant laws and practices.
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Article 14(1) of the ICCPR provides that, in the determination of rights and obligations in a suit at
law, all persons have a right to a fair and public hearing before a competent, independent and
impartial court or tribunal established by law.
The introduction of the grounds of sexual orientation, gender identity and intersex status into the
SDA, in conjunction with the existing complaints provisions of the Australian Human Rights
Commission Act 1986, will provide a complaints mechanism for people who consider they have
been discriminated against on these bases. The Australian Human Rights Commission may
investigate and attempt to conciliate such complaints.
Where a complaint cannot be conciliated, an individual may bring their complaint to the Federal
Circuit Court or Federal Court of Australia.
By providing these avenues of redress, the Bill promotes to the right to an effective remedy in
instances where the rights to equality and non-discrimination are breached for an LGBTI person.
The Commission attempts to conciliate claims of discrimination as an independent body.
Complaints which cannot be conciliated are considered in full by an independent court. This will
afford a person who is accused of unlawful discrimination a fair hearing, as the claim against them
will be objectively assessed, and they will have an opportunity to answer and respond to any claim
against them.
Right to freedom of thought, conscience and religion or belief
Article 18(1) of the ICCPR provides:
Everyone shall have the right to freedom of thought, conscience and religion. This right
shall include freedom to have or to adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching.
The importance of the right to freedom of religion is recognised in sections 37 and 38 of the SDA.
These sections provide exemptions for religious bodies and education institutions from the
operation of the prohibition of discrimination provisions of the SDA in order to avoid injury to the
religious susceptibilities of adherents of that religion or creed.
This right manifestly extends to the freedom of religious bodies to organise themselves, including
the selection of religious leaders, recognition of members and other religious acts and practices.
These freedoms are expressly recognised in the exemption at section 37 of the SDA. The
exemption applies to all grounds protected in the SDA, which will encompass the new grounds
introduced in the Bill.
The Bill will extend the exemption at section 38 of the SDA, so that otherwise discriminatory
conduct on the basis of sexual orientation and gender identity will not be prohibited for educational
institutions established for religious purpose. Consequently, the Bill will not alter the right to
freedom of thought, conscience, and religion or belief in respect of the new grounds of sexual
orientation and gender identity.
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The Bill will not extend the exemption to cover the new ground of intersex status. During
consultation, religious bodies raised doctrinal concerns about the grounds of sexual orientation and
gender identity. However, no such concerns were raised in relation to `intersex status'. As a
physical characteristic, intersex status is seen as conceptually different. No religious organisation
identified how intersex status could cause injury to the religious susceptibilities of its adherents.
Consequently, prohibiting discrimination on the basis of intersex status will not limit the right to
freedom of thought, conscience and religion or belief.
Right to freedom of association
Article 22 of the ICCPR provides that everyone should have the right to freedom of association with
others. No restrictions may be placed on the exercise of this right, other than those which are
prescribed by law and which are necessary in a democratic society in the interests of national
security or public safety, public order, the protection of public health or morals or the protection of
the rights and freedoms of others.
Section 25 of the SDA prohibits discrimination in determining membership of a club, where `club'
means an association of at least 30 people who maintain facilities out of the proceeds of the club
and sells or supplies liquor for consumption on its premises. This applies to all existing grounds
covered by the SDA (other than family responsibilities) and will apply to the new grounds included
under the Bill.
This provision limits the right to freedom of association. However, it does so to protect the rights
and freedoms of others, in accordance with the right to equality and non-discrimination. It is a
limitation which is recognised in the terms of Article 22 and is therefore a legitimate objective. The
limited terms of the prohibition on discrimination, namely to `public' rather than `private' clubs, is
a proportionate means of achieving this objective exemption and is therefore permissible.
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights,
particularly the right to equality and non-discrimination. To the extent that it may limit rights, those
limitations are reasonable, necessary and proportionate.
The Hon Mark Dreyfus QC MP
Attorney-General
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NOTES ON CLAUSES
Clause 1--Short title
1. This clause provides a short title for the Act, the Sex Discrimination Amendment (Sexual
Orientation, Gender Identity and Intersex) Act 2013.
Clause 2--Commencement
2. This clause provides that clauses 1 to 3 in the Bill will commence on the day the Act
receives the Royal Assent. This clause also outlines that the amendments to the SDA set out in
Schedule 1 will commence on a day to be fixed by Proclamation, or at the end of 6 months after
Royal Assent if they have not commenced earlier.
3. This provides time for any necessary regulations to be made (such as prescribing State and
Territory laws) and for business and other duty holders to make any necessary changes to policies.
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.
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Schedule 1--Amendments
Part 1--Amendment of the Sex Discrimination Act 1984
Sex Discrimination Act 1984
Item 1
5. This item will amend the long title of the SDA to reflect the introduction of sexual
orientation, gender identity and intersex status as separate grounds of discrimination, and the
extension of the ground `marital status' to `marital or relationship status' to provide protection from
discrimination for same-sex de facto couples.
Item 2
6. This item will amend the preamble to the SDA to reflect the introduction of sexual
orientation, gender identity and intersex status as separate grounds of discrimination in this Bill, and
the extension of the ground `marital status' to `marital or relationship status' to provide protection
from discrimination for same-sex de facto couples.
Item 3
7. This item will amend the objects of the SDA as a consequence of the introduction of sexual
orientation, gender identity and intersex status as separate grounds of discrimination, and the
extension of `marital status' to `marital or relationship status' to provide protection from
discrimination for same-sex de facto couples. This amendment will ensure that the objects of the
Act include the elimination, so far as is possible, of discrimination against persons on the grounds
of sexual orientation, gender identity, intersex status and marital or relationship status.
Items 4-5 and 15
8. These items will repeal the definition of `de facto spouse' in subsection 4(1) and replace it
with the definition of `de facto partner' used in subsection 4A(2). This will ensure that same sex
couples have the same level of protection under the SDA as opposite sex couples, consistent with
the extension of `marital status' to `marital or relationship status'. The meaning of `de facto
partner' is that given by section 2D of the Acts Interpretation Act 1901, which provides that:
a person is the de facto partner of another person (whether of the same sex or a different sex)
if:
(a) the person is in a registered relationship with the other person under section 2E
[which provides a mechanism to recognise relationships registered under prescribed
State and Territory registered relationship laws]; or
(b) the person is in a de facto relationship with the other person under section 2F
[which sets out a range of factors to consider in determining whether two people are
in a de facto relationship].
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9. Item 15 will repeal the definition of `de facto partner' from subsection 4A(2), where it
applied only in relation to the concept of family responsibilities. It will now apply generally across
the SDA and therefore should be located with the general definitions in subsection 4(1).
Item 6
10. This item will insert a definition of `gender identity', which is introduced in this Bill as a
protected attribute at the Commonwealth level. It is based on the definition used in the Tasmanian
Anti-Discrimination Amendment Bill 2012, and was also recommended by the Senate Standing
Committee on Legal and Constitutional Affairs in its inquiry into the exposure draft Human Rights
and Anti-Discrimination Bill 2012.
11. This definition provides maximum protection for gender diverse people. It includes the way
a person expresses or presents their gender and recognises that a person may not identify as either
male or female. This acknowledges that it is often the discord between a person's gender
presentation and their identity which is the cause of the discrimination.
12. The definition varies in a minor way from the definition in the Tasmanian Bill. It uses `a
person' rather than `an individual' for consistency with the rest of the SDA, and removes the
explicit reference to transsexualism and transgenderism. The definition is still intended to apply to
transsexual and transgender persons, but the definition does not use these descriptions to ensure the
definition is not unnecessarily limited in its application. This is also consistent with the approach
taken in the definition of sexual orientation.
13. `Gender' is used in this definition rather than `sex' as it is a different concept, understood to
be part of a person's social identity (rather than biological characteristics). Gender refers to the way
a person presents and is recognised within the community. A person's gender might include
outward social markers, including their name, outward appearance, mannerisms and dress. It also
recognises that a person's sex and gender may not necessarily be the same. Some people may
identify as a different gender to their birth sex and some people may identify as neither male nor
female.
Item 7
14. This item will insert a definition of `intersex status', which is introduced in this Bill as a
protected attribute at the Commonwealth level. It is also based on the definition used in the
Tasmanian Anti-Discrimination Amendment Bill 2012, and was also recommended by the Senate
Standing Committee on Legal and Constitutional Affairs in its inquiry into the exposure draft
Human Rights and Anti-Discrimination Bill 2012.
15. The definition recognises that being intersex is a biological condition, not a gender identity.
It does not require a person who is intersex to identify as either male or female in order to access
protections under the SDA. The definition is not intended to create a third sex in any sense. It
does, however, recognise that sex is not a binary concept and that an intersex person may have the
biological attributes of both sexes, or lack some of the biological attributes considered necessary to
be defined as one or other sex.
16. While there may be some overlap between the grounds of `sex', `gender identity' and
`intersex status', it is important that intersex status is protected as a separate ground because people
who are intersex are also vulnerable to discrimination. It also recognises that discrimination on this
ground manifests differently to discrimination on the grounds of sex and gender identity.
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17. The definition uses the term `intersex status' rather than `intersex' as it is a better
description of an attribute and fits in with the structure of the SDA.
Items 8 and 14
18. These items will repeal the definitions of `man' and `woman' from subsection 4(1). To the
extent these terms appear in the Act, they will take their ordinary meaning. These definitions are
repealed in order to ensure that `man' and `woman' are not interpreted so narrowly as to exclude,
for example, a transgender woman from accessing protections from discrimination on the basis of
other attributes contained in the SDA.
19. It is not intended that by repealing these definitions the SDA would be limited in its
application to only adult persons, but that `man/men' and `woman/women' continue to refer to all
males and females respectively.
Items 9-10
20. The protection against marital status discrimination in the SDA currently protects
opposite-sex de facto couples but not same-sex couples. These items will repeal the existing
definition of `marital status' from subsection 4(1) and replace it with a definition of `marital or
relationship status'. The new definition extends protections against relationship discrimination to
same-sex de facto couples, ensuring equal coverage for opposite-sex and same-sex couples.
21. This new definition replaces existing paragraphs (e) and (f), which refer to being widowed
or the (opposite sex) de facto spouse of a person, with four new paragraphs covering the status of
being:
the de facto partner of another person
the de facto partner of another person, but living separately and apart from that other person
the former de facto partner of another person, and
the surviving spouse or de facto partner of a person who has died.
22. The above paragraphs use the concept of `de facto partner' which, in accordance with the
definition in the Acts Interpretation Act inserted by item 4, covers both same-sex and opposite-sex
couples.
Item 11
23. This item will replace the term `de facto spouse' with `de facto partner' in the definition of
`near relative'. This definition applies for the purposes of the exception from discrimination in the
provision of accommodation to near relatives. It is consistent with other changes to the SDA to
ensure it treats opposite-sex and same-sex couples equally (see, for example, items 4-5).
Item 12
24. This item will insert a definition of `sexual orientation', which is introduced in this Bill as a
protected attribute at the Commonwealth level. Sexual orientation is protected in all other
Australian anti-discrimination laws.
25. Sexual orientation is defined to mean a person's sexual orientation towards persons of the
same sex, persons of a different sex, or both persons of the same sex and persons of a different sex.
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The definition does not use labels, such as homosexuality, lesbianism, bisexuality or
heterosexuality, which some people find offensive and can be inaccurate. However, it is intended
that the definition covers each of these sexual orientations. The definition, along with other
provisions in the Bill, uses the terminology `different sex', instead of `opposite sex' as is currently
used in the SDA. This is consistent with the protection of gender identity and intersex status, which
recognises that a person may be, or identify as, neither male nor female.
Item 13
26. This item will insert a definition of `surviving spouse or de facto partner', for the purposes
of the definition of `marital or relationship status'. It replaces the concept of `widowed' used in the
existing definition of `marital status'. It means a person who was the person's spouse or de facto
partner (whether same- or opposite-sex) immediately before the person died.
Item 14 - see above at item 8.
Item 15 - see above at item 4.
Item 16
27. This item will replace the reference to `the opposite sex' in subsection 5(1) with `a different
sex'. This amendment will ensure these provisions are consistent with the introduction of
protections for gender identity and intersex status, which recognise that a person may be, or identify
as, neither male nor female.
Item 17
28. This item will insert three new definitions of discrimination, in relation to sexual orientation
(section 5A), gender identity (section 5B) and intersex status (section 5C). Each of these definitions
apply to both direct discrimination (eg subsection 5A(1)) and indirect discrimination (eg subsection
5A(2)). Each ground 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
(eg subsection 5B(3)).
Discrimination on the ground of sexual orientation
29. Subsection 5A(1) relates to direct discrimination against a person on the basis of their sexual
orientation. Direct discrimination occurs where a person treats someone less favourably than
another person. The subsection provides that it is discrimination to treat a person with a particular
sexual orientation less favourably than someone who does not have the same sexual orientation in
the same or similar circumstances. For example, it would likely be discrimination for a hotel to
refuse accommodation to a person on the basis of their sexual orientation. Subsection 5A(1) is
modelled on existing subsection 6(1) (direct discrimination on the ground of marital status).
30. Subsection 5A(2) relates to indirect discrimination against a person on the basis of their
sexual orientation. Indirect discrimination arises where an apparently neutral condition,
requirement or practice has the effect of disadvantaging a particular group, in this case persons who
have the same sexual orientation as the aggrieved person. This subsection provides that it is
discrimination to impose, or propose to impose, a condition, requirement or practice that has, or is
likely to have, the effect of disadvantaging persons who have the same sexual orientation as the
aggrieved person. For example, an employer may specify that employees may only bring their
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spouse along to the staff Christmas party. This may disadvantage any staff member with a
same-sex partner and may likely be indirect discrimination on the ground of sexual orientation
and/or marital or relationship status.
31. This prohibition of indirect discrimination has effect subject to the reasonableness test in
section 7B (see subsection 5A(3)). Subsection 5A(2) is modelled on existing subsection 6(2)
(indirect discrimination on the ground of marital status).
32. Subsection 5A(3) provides that section 5A 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 persons with the same sexual orientation as the aggrieved person is not
discriminatory if the condition, requirement, or practice is reasonable in the circumstances
(subsection 7B(1)). For example, a requirement that a couple acting as chaperone of a school trip
be male and female may be reasonable if this is necessary to comply with guidelines that require
male and female staff supervisors for coeducational groups (ie both male and female students).
Subsection 5A(3) also provides that section 5A has effect subject to section 7D (special measures
intended to achieve equality).
Discrimination on the ground of gender identity
33. Subsection 5B(1) relates to direct discrimination against a person on the basis of their
gender identity. Direct discrimination occurs where a person treats someone less favourably than
another person. The subsection provides that it is discrimination to treat a person with a particular
gender identity less favourably than someone who does not have the same gender identity in the
same or similar circumstances. For example, it would likely be discrimination for an employer to
refuse to employ a transgender man on the basis of his gender identity. Subsection 5B(1) is
modelled on existing subsection 6(1) (direct discrimination on the ground of marital status).
34. Subsection 5B(2) relates to indirect discrimination against a person on the basis of their
gender identity. Indirect discrimination arises where an apparently neutral condition, requirement
or practice has the effect of disadvantaging a particular group, in this case persons who have the
same gender identity as the aggrieved person. This subsection provides that it is discrimination to
impose, or propose to impose, a condition, requirement or practice that has, or is likely to have, the
effect of disadvantaging persons who have the same gender identity as the aggrieved person. For
example, a human resources policy of an organisation that does not permit amendments to existing
records. This may disadvantage a trans woman by forcing her to disclose information regarding her
trans status in order to explain discrepancies in personal details of employment records.
35. This prohibition of indirect discrimination has effect subject to the reasonableness test in
section 7B (see subsection 5B(3)). Subsection 5B(2) is modelled on existing subsection 6(2)
(indirect discrimination on the ground of marital status).
36. Subsection 5B(3) provides that section 5B 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 persons with the same gender identity as the aggrieved person is not
discriminatory if the condition, requirement, or practice is reasonable in the circumstances
(subsection 7B(1)). For example, a policy that prohibits changes to existing identity records may be
reasonable in circumstances where it is necessary to preserve the integrity of those records.
Subsection 5B(3) also provides that section 5B has effect subject to section 7D (special measures
intended to achieve equality).
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Discrimination on the ground of intersex status
37. Subsection 5C(1) relates to direct discrimination against a person on the basis of their
intersex status. Direct discrimination occurs where a person treats someone less favourably than
another person. The subsection provides that it is discrimination to treat a person who is intersex
less favourably than someone who is not intersex. For example, it would likely be discrimination
for a bank teller to refuse to serve an intersex person because the person's biological characteristics
made the bank teller uncomfortable. Subsection 5C(1) is modelled on existing subsection 6(1)
(direct discrimination on the ground of marital status).
38. Subsection 5C(2) relates to indirect discrimination against a person on the basis of their
intersex status. Indirect discrimination arises where an apparently neutral condition, requirement or
practice has the effect of disadvantaging a particular group, in this case persons who are intersex.
This subsection provides that it is discrimination to impose, or propose to impose, a condition,
requirement or practice that has, or is likely to have, the effect of disadvantaging persons who are
intersex. For example, a medical records system may fail to recognise that a person who identifies
as a man could have some female sex characteristics. This may disadvantage an intersex man who
requires treatment for, for example, ovarian cancer.
39. This prohibition of indirect discrimination has effect subject to the reasonableness test in
section 7B (see subsection 5C(3)). Subsection 5C(2) is modelled on existing subsection 6(2)
(indirect discrimination on the ground of marital status).
40. Subsection 5C(3) provides that section 5C 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 persons of intersex status is not discriminatory if the condition,
requirement, or practice is reasonable in the circumstances (subsection 7B(1)). For example, a
requirement that strip searches be conducted by a person of the same sex, which may disadvantage
an intersex person who does not identify as either male or female, may be reasonable. Subsection
5C(3) also provides that section 5C has effect subject to section 7D (special measures intended to
achieve equality).
Items 18-19
41. These items will amend the definition of discrimination on the ground of marital status in
section 6 to replace references to `marital status' with `marital or relationship status'.
Item 20
42. This item will amend subsection 7B(1) as a consequence of the insertion of new grounds of
indirect discrimination in relation to sexual orientation (section 5A), gender identity (section 5B)
and intersex status (section 5B) by item 17. This amendment to subsection 7B(1) will ensure that
indirect discrimination on the ground of sexual orientation, gender identity or intersex status cannot
arise where the condition, requirement or practice complained of is reasonable in the circumstances.
Item 21
43. This item will remove the reference `or section 7A' from section 7B, as it does not perform
any function in the legislation. This is because section 7A does not prohibit indirect discrimination
on the ground of family responsibilities, and the reasonableness test in section 7B only applies to
indirect discrimination.
16
44. This amendment will correct an unintended drafting anomaly arising from Parliamentary
amendments to the Sex and Age Discrimination Legislation Amendment Act 2011. Substantive
amendments in the Senate removed the protection for indirect discrimination from family
responsibilities, but consequential amendments, which were agreed to without specific
consideration, resulted in the anomalies above.
Items 22-23
45. These items will amend section 7D as a consequence of the insertion of new grounds of
discrimination in relation to sexual orientation, gender identity and intersex status, and the
extension of the ground `marital status' to `marital or relationship status'.
46. Section 7D authorises `special measures' intended to achieve substantive equality in specific
circumstances. Section 7D provides for the taking of special measures in relation to the existing
grounds of discrimination in the SDA. Special measures do not constitute unlawful discrimination.
47. The amendments to section 7D in these items will ensure that special measures can be taken
to address the particular needs of people who have different sexual orientations, people who have
different gender identities and people who are of intersex status, without producing claims of
unlawful discrimination under the new sections 5A, 5B and 5C.
Item 24
48. This item will amend section 8 as a consequence of the insertion of new grounds of
discrimination in relation to sexual orientation, gender identity and intersex status by item 17.
49. Section 8 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.
50. The amendment in item 24 will apply this test for causation to the grounds of discrimination
of the basis of sexual orientation (section 5A), gender identity (section 5B) and intersex status
(section 5C).
Items 25-26
51. These items will amend subsection 10(2) and subsection 11(2) as a consequence of the
insertion of new grounds of discrimination in relation to sexual orientation, gender identity and
intersex status by item 17, and the extension of the ground of `marital status' to `marital or
relationship status' to provide protection from discrimination for same-sex de facto couples.
52. 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)).
53. Amendment of subsection 10(2) to include references to the new grounds of discrimination
will ensure that this provision preserves the operation of State and Territory laws which also relate
to the new grounds of discrimination.
17
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 a relevant international instrument and is
capable of operating concurrently with the SDA (see subsection 11(3)). In this context, the relevant
international instruments are set out in the definition in subsection 4(1):
the Convention on the Elimination of All Forms of Discrimination Against Women
the International Covenant on Civil and Political Rights
the International Covenant on Economic, Social and Cultural Rights
the Convention on the Rights of the Child
ILO Convention (No. 100) concerning Equal Remuneration for Men and Women Workers
for Work or Equal Value
ILO Convention (No. 111) concerning Discrimination in respect of Employment and
Occupation
ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men
and Women Workers: Workers with Family Responsibilities, and
ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the
Employer.
55. Amendment of subsection 11(2) to include references to the new grounds of discrimination
will ensure that this provision preserves the operation of State and Territory laws which further the
objects of these international instruments and also relate to the new grounds of discrimination.
Items 27 and 29-34
56. These items will amend provisions of Division 1 of Part II of the SDA to prohibit
discrimination on the grounds of sexual orientation, gender identity, intersex status and marital or
relationship status in the following areas of work:
Employment and superannuation (section 14 of the SDA, item 27 of the Bill)
Commission agents (section 15 of the SDA, item 29 of the Bill)
Contract workers (section 16 of the SDA, item 30 of the Bill)
Partnerships (section 17 of the SDA, item 31 of the Bill)
Qualifying bodies (section 18 of the SDA, item 32 of the Bill)
Registered organisations under the Fair Work (Registered Organisations) Act 2009 (section
19 of the SDA, item 33 of the Bill), and
Employment agencies (section 20 of the SDA, item 34 of the Bill).
57. These amendments will ensure that discrimination on the ground of sexual orientation,
gender identity, intersex status and marital or relationship status are prohibited in all areas of work
covered by the SDA.
Item 28
58. This item will amend subsection 14(4) to insert `sexual orientation' and replace `marital
status' with `marital or relationship status'. This is to ensure that there is no discrimination between
18
same-sex de facto couples and opposite-sex de facto couples in relation to the payment of a
superannuation benefit, which is consistent with the Commonwealth same-sex reforms in 2008.
Items 35, 37-41 and 43
59. These items will amend provisions of Division 2 of Part II of the SDA to prohibit
discrimination on the ground of sexual orientation, gender identity, intersex status and marital or
relationship status in the following areas of public life:
Education (section 21 of the SDA, item 35 of the Bill)
Goods, services and facilities (section 22 of the SDA, item 37 of the Bill)
Accommodation (section 23 of the SDA, items 38-39 of the Bill)
Land (section 24 of the SDA, item 40 of the Bill)
Clubs (section 25 of the SDA, item 41 of the Bill), and
Administration of Commonwealth laws and programs (section 26 of the SDA, item 43 of the
Bill).
60. These amendments will ensure that discrimination on the ground of sexual orientation,
gender identity, intersex status and marital or relationship status is prohibited in all the other areas
of public life covered by the SDA.
Items 36 and 42
61. These items will replace references in paragraphs 21(3)(a) and (b) (which relate to
admission as a student at a single sex educational institution) and subsection 25(3) (which relates to
membership of single sex clubs) to `the opposite sex (to)' with `a different sex (from)'. These
amendments will ensure these provisions are consistent with the introduction of protections for
gender identity and intersex status, which recognise that a person may be, or identify as, neither
male nor female.
Items 44-45
62. These items will amend section 27 as a consequence of the insertion of new grounds of
discrimination in relation to sexual orientation, gender identity and intersex status by item 17, and
the extension of the ground `marital status' to `marital or relationship status' to provide protection
from discrimination for same-sex de facto couples.
63. 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 would be unlawful for an employer to ask an applicant of female appearance with a masculine
sounding voice for her medical history, but not to ask the same question of other applicants, in order
to avoid hiring a transgender person.
64. The amendments in items 44 and 45 will ensure that requests for information in connection
with discrimination on the grounds of sexual orientation, gender identity, intersex status and marital
or relationship status are also unlawful.
19
65. Item 45 will also replace the reference to `the opposite sex' with `a different sex'. This is
consistent with the introduction of protections for gender identity and intersex status, which
recognise that a person may be, or identify as, neither male nor female.
Item 46
66. This item will amend the list of circumstances to be taken into account in
paragraph 28A(1A)(a) as part of the test for sexual harassment to replace `marital status' and
`sexual preference' with `marital or relationship status' and `sexual orientation', and to insert
gender identity and intersex status.
67. This amendment recognises that a person's gender identity or intersex status may increase
their vulnerability to sexual harassment.
Item 47
68. This item will amend the genuine occupational qualification exemption in section 30 to
replace references to `the opposite sex' with `a different sex'. This will ensure the section is
consistent with the introduction of protections for gender identity and intersex status, which
recognise that a person may be, or identify as, neither male nor female.
Items 48-49
69. These items will amend the exemption for residential care of children in section 35 as a
consequence of protecting same-sex de facto couples against discrimination. Item 48 will replace
`marital status' with `marital or relationship status' in subsection 35(2) and item 59 will amend
paragraph 35(2)(b) to include a reference to `de facto partner'.
Item 50
70. This item will amend the exemption for educational institutions established for religious
purposes in section 38 to insert the new grounds of sexual orientation and gender identity, and to
replace `marital status' with `marital or relationship status.' As with other grounds covered by this
exemption, it only applies if a person discriminates in good faith in order to avoid injury to the
religious susceptibilities of adherents of that religion or creed.
71. The Government has not been informed of any religious doctrines which require
discrimination on the ground of intersex status. Therefore, intersex status is not included in this
exception.
Item 51
72. This item will amend the exemption for voluntary bodies in section 39. Consistent with
other grounds in the SDA, it will not be unlawful for a voluntary body to discriminate against a
person on the ground of sexual orientation, gender identity, intersex status or marital or relationship
status, 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.
20
Item 52
73. This item will introduce two new exemptions into subsection 40(2) to ensure there are no
unintended consequences for Commonwealth, State and Territory laws as a result of the new
protections.
74. The first exemption provides that the prohibitions on discrimination on the basis of sexual
orientation, gender identity, intersex status and marital or relationship status in Division 1 and 2 do
not apply to anything done by a person in direct compliance with the Marriage Act 1961 (Cth). The
purpose of this provision is to make clear that introducing protections against discrimination on
these grounds does not affect current Government policy on same-sex marriage. It will apply to
persons such as Commonwealth-registered marriage celebrants, as well as statutory bodies such as
the registers of births, deaths and marriages.
75. The second exemption provides that the prohibitions on discrimination on the basis of
sexual orientation, gender identity and intersex status in Division 1 and 2 do not apply to anything
done by a person in direct compliance with a prescribed law of the Commonwealth, or of a State or
Territory. Any laws to utilise this exemption will be prescribed by regulation.
76. This exemption reflects an existing exemption in the Disability Discrimination Act 1992. It
recognises that there may be laws which appropriately make distinctions on these grounds. Once
identified, regulations may be made preserving the operation of these laws (which are subject to
parliamentary scrutiny, including under the Human Rights (Parliamentary Scrutiny) Act 2011).
77. The Government has not made any decisions regarding the prescription of laws under this
provision. Initial consideration of laws will be done prior to commencement in consultation with
State and Territory governments.
Items 53-55 and 58
78. These items will amend the exemptions in relation to superannuation fund conditions in
sections 41A and 41B as a consequence of extending protection against discrimination to same-sex
de facto couples. Items 53, 55 and 58 will replace `marital status' with `marital or relationship
status' in sections 41A and 41B, and item 54 will amend paragraph 41A(1)(b)(ii) to replace `no
spouse (whether legal or de facto)' with `no spouse or de facto partner'. These amendments are
necessary to preserve existing policy in relation to superannuation fund conditions.
Items 56-57
79. These items will amend the exemption in relation to new superannuation fund conditions in
section 41A to repeal paragraph 41A(2)(c), which refers to when discrimination on the ground of
family responsibilities is taken to be indirect. This paragraph will be removed because it does not
perform any function in the legislation, as indirect discrimination on the basis of family
responsibilities is not prohibited by the SDA.
80. As with item 21 above, this amendment also corrects an unintended drafting anomaly arising
from Parliamentary amendments to the Sex and Age Discrimination Legislation Amendment Act.
Item 59
81. This item will amend the exemption for competitive sporting activity in section 42 to
include gender identity and intersex status. Subsection 42(1) will provide that it is not unlawful to
21
discriminate on the ground of sex, gender identity or intersex status by excluding persons from
participation in any competitive sporting activity in which the strength, stamina or physique of
competitors is relevant. This amendment is necessary to preserve existing policy in relation to this
exemption, restricting competitive sporting events to people who can effectively compete.
Item 60
82. This item will insert a new exemption into Division 4 applying to requests of information
and keeping of records that do not allow for identification as being neither male nor female.
83. Subsection 43A(1) provides that it is not unlawful discrimination to request information in a
way that does not allow for a person to identity as being neither male nor female. Similarly,
subsection 43A(2) provides that it is not unlawful discrimination to make or keep records in a way
that does not provide for a person to be identified as being neither male nor female.
84. The intention of these exemptions is to ensure that the new protections for gender identity
and intersex status do not require a person or organisation to provide an alternative to male and
female in any data collection or personal record. It will ensure that there is no requirement to
amend forms as part of the new protections for gender identity and intersex status, which may be an
onerous exercise for organisations.
85. The need for these exemptions may be reconsidered in the future, if organisations (both
government and private sector) have revised their data collection and record keeping practices to
allow for a person to identify as neither male nor female. For example, the Government is currently
developing guidelines on gender recognition for departments and agencies. Changes as a result of
these guidelines may mean those departments and agencies would no longer require this exemption.
Item 61
86. 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 sexual orientation, gender identity and intersex
status by item 17, and the extension of the ground `marital status' to `marital or relationship status'.
87. 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.
Part 2--Amendments of other Acts
Migration Act 1958
Items 62-63
88. These items will amend section 507 of the Migration Act 1958 to replace references to
`marital status' with `marital or relationship status', consistent with the re-naming of this ground.
22
Part 3--Application of amendments
Item 64
89. This item provides that the amendments will apply only in relation to acts or omissions
occurring after the commencement of Schedule 1 of the Bill. This ensures that the amendments of
the SDA made by Schedule 1 of this Bill will not have retrospective effect.
23
ATTACHMENT A
PROHIBITING DISCRIMINATION ON THE BASIS OF
SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX
STATUS
REGULATION IMPACT STATEMENT
SECTION ONE: BACKGROUND
Government policy has long recognised that anti-discrimination protections are crucial to
enable all Australians to participate fully in public life, address historical disadvantage, and
promote social cohesion. Since 1975, this policy has been supported by four separate
pieces of legislation, each of which deals with different grounds of discrimination:
Racial Discrimination Act 1975
Sex Discrimination Act 1984 (SDA)
Disability Discrimination Act 1992, and
Age Discrimination Act 2004.
Generally, these laws:
cover both `direct' and `indirect' discrimination2
prohibit discrimination on certain grounds or `attributes' (for example, race, sex,
disability, age)3 in key areas of public life (such as work, education, access to goods
and services, accommodation and administration of laws and government programs),
and
provide for a range of exemptions to ensure that the legislation strikes the right
balance between preventing inappropriate discrimination on the one hand while
making allowances for legitimate distinctions on the other hand (for example, the
inherent requirements of a particular job).
A fifth Act, the Australian Human Rights Commission Act 1986 (AHRC Act), establishes the
Australian Human Rights Commission (the Commission) and regulates the processes for
making and resolving complaints under the other four Acts.
2
Direct discrimination occurs where a person is treated less favourably than another person in the same
circumstances on the ground of their protected attribute. Indirect discrimination occurs where an apparently
neutral condition or requirement is imposed which has the effect of disadvantaging a group with a particular
protected attribute and which is not reasonable in the circumstances. For example, a shop imposing a `no
headwear' policy would indirectly discriminate against members of religions that require its adherents to
wear head coverings.
3
The term `protected attribute' is used to refer to a characteristic or attitude which is protected, ie discrimination
on the basis of that attribute is prohibited.
24
There are also provisions relating to discrimination in employment in the Fair Work Act 2009
(FW Act) on taking adverse action (such as restricting promotions) in or termination of
employment based on specified protected attributes. These attributes are not consistent
with those protected under other Commonwealth legislation.
During the 2010 election campaign, the Government committed to introduce new
prohibitions on discrimination on the basis of sexual orientation and gender identity.
Structure of Regulation Impact Statement
This regulation impact statement (RIS) is structured as follows in accordance with Office for
Best Practice Regulation guidelines:
Section Two: Problem
Section Three: Government's objectives
Section Four: Options
Section Five: Analysis of options
Section Six: Summary and Conclusion
Section Seven: Consultation
Section Eight: Implementation and Review
SECTION TWO: PROBLEM
The high levels of discrimination facing the lesbian, gay, bisexual, transsexual and intersex4
(LGBTI) community is well documented.5
4
The Tasmanian Anti-Discrimination Amendment Bill defines `intersex' as meaning `the status of having
physical, hormonal or genetic features that are (a) neither wholly female nor wholly male; (b) a
combination of female and male; or (c) neither female nor male'.
5
See, for example:
Inner City Legal Centre, Outing Injustice: Understanding the legal needs of LGBTI communities in NSW,
(2011), available at: http://www.iclc.org.au/outinginjustice/, access 13 March 2013.
Australian Human Rights Commission, Addressing sexual orientation and sex and/or gender identity
discrimination - Consultation report (2011), available at:
http://www.humanrights.gov.au/human_rights/lgbti/lgbticonsult/index.html, accessed 13 March 2013.
Gay & Lesbian Health Victoria and Australian Research Centre in Sex, Health & Society, Private lives: A
report on the health and wellbeing of GLBT Australians (2006), available at:
http://www.glhv.org.au/report/private-lives-report, accessed 14 June 2012, p. 51.
Working It Out, Homophobia in the Workplace, available at:
http://workingitout.org.au/homophobia_workplace.html, accessed 14 June 2012.
Suicide Prevention Australia, Position Statement: Suicide and self-harm among Gay, Lesbian, Bisexual and
Transgender communities (2009), available at: http://suicidepreventionaust.org/wp-
content/uploads/2012/01/SPA-GayLesbian-PositionStatement.pdf, accessed 14 June 2012, p. 3.
25
Currently there is limited protection in federal law from discrimination on the basis of sexual
orientation and gender identity. There is no protection against discrimination on the basis of
gender identity in Commonwealth legislation, and protection against discrimination based on
sexual orientation is only available in relation to `adverse action' in employment under the
FW Act. This means there is no protection from discrimination based on sexual orientation
in other areas of Commonwealth activity, which may not be covered by State and Territory
anti-discrimination legislation, such as the delivery of services.
All State and Territory anti-discrimination laws provide protection against discrimination
based on sexual orientation and gender identity. However, the coverage of these
protections is inconsistent, as the scope of the definitions vary between jurisdictions.6
Introducing protections against sexual orientation and gender identity discrimination at the
Commonwealth level is an opportunity to provide greater consistency in coverage of these
attributes. In addition, none of the State and Territory anti-discrimination Acts7 currently
provide adequate protection for people who are intersex.8
In October 2010, the Australian Human Rights Commission commenced a public
consultation process to canvass the experiences and views of people who may have been
discriminated against on the basis of their sexual orientation or sex and/or gender identity.9
The Commission's consultation report identified that discrimination against people based on
their sexual orientation and gender identity was prevalent, particularly in the areas of
employment and the provision of goods and services. Statistics reveal that 10.3% of LGBTI
people have been refused employment or denied a promotion based on their sexuality.10
Another study found that 52% of gay and lesbian people suffered discrimination in their
current employment because of their sexual orientation.11 Discrimination on the basis of
sexual orientation and gender identity also has a significant impact on the mental health and
wellbeing of LGBTI people - it is estimated that suicide attempts by gay, lesbian and
bisexual people are between 3.5 to 14 times higher than that of the heterosexual
population.12
A large number of participants in the Commission consultation argued that the introduction of
protection at the Commonwealth level would lead to cultural change in Australia by sending
a powerful message regarding equality. Participants commented on a number of other
practical benefits from this legislation, including that it would provide a wider range of
remedies for discrimination and lead to greater national consistency in anti-discrimination
protections.
6
For example, the New South Wales Anti-Discrimination Act 1977 only prohibits discrimination on the basis of
`homosexuality'.
7
The Tasmanian Anti-Discrimination Amendment Bill 2012, which is currently before the Tasmanian
Parliament, will introduce `intersex' as a separate attribute.
8
According to evidence provided by Organisation Intersex International Australia to the Senate Standing
Committee on Legal and Constitutional Affairs inquiry, there have been no successful discrimination cases
run by an intersex person under existing State and Territory anti-discrimination laws (Senate Committee
Report, Legal and Constitutional Affairs Legislation Committee, Exposure Draft of the Human Rights and
Anti-Discrimination Bill 2012 (February 2013) p 22).
9
Australian Human Rights Commission, op cit, n4.
10
Gay & Lesbian Health Victoria, et al, op cit n4, p 51.
11
Working It Out, op cit n4.
12
Suicide Prevention Australia, op cit n 4, p 3.
26
Many participants observed that there is gap in protection from discrimination as there is
uncertainty about the extent to which Commonwealth agencies are bound by State and
Territory anti-discrimination laws. The Law Council of Australia provided some examples of
potential everyday situations in which unfair discrimination might occur against individuals
who are in contact with Commonwealth agencies. For example, an employee in a
Commonwealth department who is discouraged by the Senior Executive from applying for
promotion due to his transgender status.13
Current anti-discrimination law
As noted above, there are four Commonwealth anti-discrimination laws which prohibit
discrimination on a number of grounds. There is no protection from discrimination on the
grounds of sexual orientation, gender identity or intersex status. The SDA prohibits marital
status discrimination, although this does not provide protection for same-sex de facto
couples.
The AHRC Act also contains a separate discrimination complaints stream that gives effect to
Australia's obligations under International Labour Organization (ILO) Convention No 111.
The Commission has the function of seeking to conciliate complaints of discrimination in
employment. This process does not include the option of proceeding to the federal courts. If
the Commission cannot conciliate the matter and considers that a discriminatory act has
occurred, it must report to the Attorney-General who must table the report in Parliament.
`Sexual preference' is one of the additional grounds covered under this scheme.
In addition, the FW Act also provides that it is unlawful to take `adverse action' against a
person based on certain attributes. `Sexual preference' is one of the grounds on which
adverse action is prohibited under the FW Act.
Finally, there is also anti-discrimination legislation at the State and Territory level. This
legislation operates concurrently, which means that an employer can have certain
obligations under both the relevant Commonwealth legislation and the State or Territory
legislation. Each State and Territory contains some protections against sexual orientation
and gender identity discrimination.
SECTION THREE: GOVERNMENT'S OBJECTIVES
The Government's objective is to prohibit discrimination against people on the basis of their
sexual orientation, their marital or relationship status, their gender identity and whether they
are intersex. The objective is also to provide an accessible remedy when such
discrimination occurs.
SECTION FOUR: DESCRIPTION OF OPTIONS
There are two only options addressed in this RIS:
- Option 1: maintain the status quo
13
Australian Human Rights Commission, op cit, n4, pp 17-20.
27
- Option 2: amend Commonwealth anti-discrimination law to introduce the new
protected attributes of sexual orientation, gender identity and intersex status, and
amend the definition of marital or relationship status to ensure it protects people in
same-sex de facto relationships.
SECTION FIVE: IMPACT ANALYSIS
This section provides an analysis of the impacts of the two options identified above.
Option One: Retain the status quo
Costs
This approach would not address the current inconsistencies or lack of coverage by
Commonwealth anti-discrimination law (with the exception of limited coverage under the
FW Act). The law would remain fragmented, with States and Territories providing different
coverage of discrimination on the basis of sexual orientation, gender identity and intersex
status, and only very limited coverage at the Commonwealth level. Additionally, this would
not reflect a best-practice model. Existing costs are likely to continue at current levels for
businesses, with the majority of these due to compliance with State and Territory legislation,
rather than any compliance costs associated with Commonwealth legislation.
Existing levels of discrimination are likely to continue, imposing costs on individuals with
these attributes with the fragmented approach limited in its ability to promote attitudinal or
systemic change. Some gaps in coverage (eg discrimination by Commonwealth agencies)
would remain. In addition, the inconsistencies in coverage will see costs incurred by
individuals in attempting to seek redress where discrimination has occurred remain at
current levels. Such costs would include the need to seek legal advice to determine whether
or not there is any protection from discriminatory behaviour, and under which regime
(FW Act or State and Territory legislation) any action could be commenced.
At a broader level, the costs to society of not enabling full engagement with society by
people based on their sexual orientation or gender identity, or being intersex, will remain.
Benefits
There would be no benefits for any stakeholders arising from this option.
Assessment against Government objectives
This Option does not meet the Government's objectives.
Option Two: introduce the new attributes into Commonwealth anti-discrimination law
The other option is to introduce the new attributes of sexual orientation, gender identity and
intersex status into Commonwealth anti-discrimination law. The most appropriate vehicle
would be the SDA.
28
Costs
There would be some costs under this approach, although it is likely to be limited, as the
protections in the SDA would largely mirror existing State and Territory definitions of these
attributes. Businesses which are already covered by State and Territory laws would only
need to make very minimal changes to existing policies or conduct further staff training.
However, Commonwealth agencies would be required to undertake some amendments to
update existing policies and procedures to reflect changes to the Commonwealth legislative
requirements, with associated training of staff to increase awareness of the new
responsibilities, although it is expected that such costs would be minimal and could be done
as part of general workplace training. As the only changes would be to add detail on the
coverage of the new protected attributes (sexual orientation, gender identity and intersex
status) which are already partly covered by State and Territory legislation and the FW Act,
the costs of updating policies would be expected to be quite low.
In addition, Commonwealth agencies and businesses risk incurring additional costs
associated with responding to any allegations of discrimination under the Commonwealth
regime, potentially including legal costs associated with defending any claims, although
these could already be incurred under State and Territory regimes.
Benefits
This option would lead to greater national consistency in anti-discrimination laws, and bridge
gaps in the existing legislation (eg discrimination by Commonwealth agencies). This
approach would reflect a move towards a best practice model in Commonwealth anti-
discrimination legislation, which will assist in moving towards later harmonisation between
Federal and State/Territory anti-discrimination law.
This option would also provide a wider range of remedies for people who are discriminated
against on the basis of their sexual orientation, gender identity or intersex status.
Additionally, introducing these protections will send a powerful message regarding equality,
and may lead to cultural change in the community.
Such change has the potential to result in some benefits for individuals with these attributes.
In its consultation on Addressing sexual orientation and sex and/or gender identity
discrimination, the Australian Human Rights Commission found that:
A large number of comments argued that the introduction of such protections would
lead to cultural change in Australia by sending a powerful message regarding
equality. Participants commented on a number of other practical benefits from this
legislation, including that it would provide a wider range of remedies for
discrimination and lead to greater national consistency in anti-discrimination
protections.14
A particular focus is the potential benefits of cultural change, following from this symbolic
statement by Government. For example, a reduction in the discrimination faced when
purchasing goods and services will potentially lead to an increase in wellbeing.
[S]uch a law would provide an important federal symbolic statement about the
unacceptable nature of such discrimination. This would contribute to ensuring that all
14
Australian Human Rights Commission, op cit n4, p 17.
29
persons are treated with dignity and respect regardless of their sexual orientation or
sex/gender identity. This symbolism would, it is hoped, extend beyond the formal
scope of the law to the community more generally and so affect the way in which
lesbian, gay, bisexual, intersex and trans people are treated by other individuals on a
day-to-day basis. The absence of this kind of legislation could be seen by some in
the Australian community as suggesting the Commonwealth government does not
take this kind of discrimination seriously, or worse, sees nothing wrong with such
discrimination.15
In its submission to the Senate Standing Committee on Legal and Constitutional Affairs'
2008 inquiry into the effectiveness of the SDA, the Australian Chamber of Commerce and
Industry (ACCI) noted that `[t]here is a strong business case for diverse and inclusive
workplace cultures which possess clear norms against discrimination'. ACCI acknowledged
that there are benefits to employers in achieving recognition as an employer with a
discrimination-free culture which can accrue in staff well being, high quality job applicants,
productivity, lower absenteeism, fewer conflict issues requiring resolution and higher rates of
retention. As part of the same process, Australian Women Lawyers noted the benefits of
introducing flexible work measures include improved staff retention, increased productivity
and reduced absenteeism.16
Assessment against Government objectives
This Option meets the Government's objectives.
SECTION SIX: SUMMARY AND CONCLUSION
The Government considers that LGBTI people are extremely vulnerable to discrimination
and recognises the message that prohibiting discrimination on the basis of sexual orientation
and gender identity will send to these individuals and society as a whole. For this reason,
the Government made an election commitment to introduce these grounds into
anti-discrimination law. On the basis that any cost impact on organisations will be limited,
given the existing obligations to not discriminate on these grounds under State and Territory
law, and in line with the Government's election commitment, Option Two is the preferred
option.
SECTION SEVEN: CONSULTATION STATEMENT
In 2011, the Australian Human Rights Commission released its report on Addressing sexual
orientation and sex and/or gender identity discrimination. The report is available at:
http://www.humanrights.gov.au/human_rights/lgbti/lgbticonsult/report/index.html.
On 22 September 2011, the Australian Government released a discussion paper to guide
public consultation on the consolidation of Commonwealth anti-discrimination laws and
undertook a four month consultation process. The Department received 240 submissions as
part of this process. The discussion paper and public submissions received are available at:
www.ag.gov.au/antidiscrimination.
15
Victorian Bar Association comment, cited in Australian Human Rights Commission, op cit n 4, p17.
16
Senate Standing Committee on Legal and Constitutional Affairs, The effectiveness of the Sex Discrimination
Act 1984 in eliminating and promoting gender equality (2008) (`SDA Report'), paragraphs 8.2 and 8.4.
30
These processes informed the development of draft anti-discrimination legislation which
included the attributes of sexual orientation and gender identity.
On 20 November 2012, the Australian Government released draft consolidated anti-
discrimination legislation, the Exposure Draft Human Rights and Anti-Discrimination Bill
2012. A Regulation Impact Statement was prepared as part of that process. All relevant
documents are available at www.ag.gov.au/antidiscrimination.
On 21 November 2012, the Senate referred the Exposure Draft Bill to the Senate Legal and
Constitutional Affairs Legislation Committee for inquiry and report. The Committee received
over 3400 submissions and conducted public hearings into the Exposure Draft Bill. The
Committee provided its report on 21 February 2013, recommending amendments to the
definitions of sexual orientation and gender identity and the introduction of a standalone
attribute of intersex status. These recommendations have formed the basis of the approach
to these attributes as analysed in this RIS.
The majority of stakeholders, including LGBTI groups, human rights organisations,
community legal centres, unions, academics and business, supported the introduction of
protections from discrimination on the basis of sexual orientation and gender identity at the
Commonwealth level. LGBTI stakeholders, human rights organisations and community legal
centres strongly supported the inclusion of intersex status as a standalone attribute. In
addition, these stakeholders generally objected to exemptions for religious organisations for
these attributes.
Some religious organisations opposed the introduction of these protections, but most were
supportive subject to the inclusion of appropriate exemptions for religious bodies.
SECTION EIGHT: IMPLEMENTATION
Draft legislation to implement the proposed approach will be introduced to Parliament in
2013. It is proposed to include a lead time of up to 6 months between passage of the
legislation and the new regime commencing to provide time for businesses and other duty
holders to familiarise themselves with the new regime. This will also provide the opportunity
for organisations to update any policies and practices to comply with the changed
arrangements.
The Government will ensure organisations of aware of the changed proposal, by working
with the Commission to develop and update relevant guidance material.
31