Commonwealth Numbered Acts

SEX DISCRIMINATION AMENDMENT ACT 1995 No. 165, 1995 - SCHEDULE

                               SCHEDULE                      Section 3

AMENDMENTS OF THE SEX DISCRIMINATION ACT 1984 1. Title Omit "pregnancy",
substitute ", pregnancy, potential pregnancy". 2. After the title: Insert:

"Recognising the need to prohibit, so far as is possible, discrimination
against people on the ground of sex, marital status, pregnancy or potential
pregnancy in the areas of work, accommodation, education, the provision of
goods, facilities and services, the disposal of land, the activities of clubs
and the administration of Commonwealth laws and programs: Affirming that every
individual is equal before and under the law, and has the right to the equal
protection and equal benefit of the law, without discrimination on the ground
of sex, marital status, pregnancy or potential pregnancy:". 3. Paragraph 3(b):
Omit "or pregnancy", substitute ", pregnancy or potential pregnancy". 4.
Section 4: Insert:

" 'potential pregnancy' has a meaning affected by section 4B;". 5. After
section 4A: Insert: Meaning of "potential pregnancy"

"4B. A reference in this Act to potential pregnancy of a woman includes a
reference to:

   (a)  the fact that the woman is or may be capable of bearing children; or

   (b)  the fact that the woman has expressed a desire to become pregnant; or

   (c)  the fact that the woman is likely, or is perceived as being likely, to
        become pregnant.". 6. Subsection 5(2): Omit, substitute:

"(2) For the purposes of this Act, a person (the 'discriminator')
discriminates against another person (the 'aggrieved person') on the ground of
the sex of the aggrieved person if the discriminator imposes, or proposes to
impose, a condition, requirement or practice that has, or is likely to have,
the effect of disadvantaging persons of the same sex as the aggrieved person.

"(3) This section has effect subject to sections 7B and 7D.". 7. Paragraph
6(1)(a): Add at the end "or". 8. Subsection 6(2): Omit, substitute:

"(2) For the purposes of this Act, a person (the 'discriminator')
discriminates against another person (the 'aggrieved person') on the ground of
the marital status of the aggrieved person if the discriminator imposes, or
proposes to impose, a condition, requirement or practice that has, or is
likely to have, the effect of disadvantaging persons of the same marital
status as the aggrieved person.

"(3) This section has effect subject to sections 7B and 7D.". 9. Section 7:
Repeal, substitute: Discrimination on the ground of pregnancy or potential
pregnancy

"7.(1) For the purposes of this Act, a person (the 'discriminator')
discriminates against a woman (the 'aggrieved woman') on the ground of the
aggrieved woman's pregnancy or potential pregnancy if, because of:

   (a)  the aggrieved woman's pregnancy or potential pregnancy; or

   (b)  a characteristic that appertains generally to women who are pregnant
        or potentially pregnant; or

   (c)  a characteristic that is generally imputed to women who are pregnant
        or potentially pregnant; the discriminator treats the aggrieved woman
        less favourably than, in circumstances that are the same or are not
        materially different, the discriminator treats or would treat someone
        who is not pregnant or potentially pregnant.

"(2) For the purposes of this Act, a person (the 'discriminator')
discriminates against a woman (the 'aggrieved woman') on the ground of the
aggrieved woman's pregnancy or potential pregnancy if the discriminator
imposes, or proposes to impose, a condition, requirement or practice that has,
or is likely to have, the effect of disadvantaging women who are also pregnant
or potentially pregnant.

"(3) This section has effect subject to sections 7B and 7D.". 10. After
section 7A: Insert: Indirect discrimination: reasonableness test "7B.(1) A
person does not discriminate against another person by imposing, or proposing
to impose, a condition, requirement or practice that has, or is likely to
have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if
the condition, requirement or practice is reasonable in the circumstances.

"(2) The matters to be taken into account in deciding whether a condition,
requirement or practice is reasonable in the circumstances include:

   (a)  the nature and extent of the disadvantage resulting from the
        imposition, or proposed imposition, of the condition, requirement or
        practice; and

   (b)  the feasibility of overcoming or mitigating the disadvantage; and

   (c)  whether the disadvantage is proportionate to the result sought by the
        person who imposes, or proposes to impose, the condition, requirement
        or practice. Burden of proof

"7C. In a proceeding under this Act, the burden of proving that an act does
not constitute discrimination because of section 7B lies on the person who did
the act. Special measures intended to achieve equality

"7D.(1) A person may take special measures for the purpose of achieving
substantive equality between:

   (a)  men and women; or

   (b)  people of different marital status; or

   (c)  women who are pregnant and people who are not pregnant; or

   (d)  women who are potentially pregnant and people who are not potentially
        pregnant.

"(2) A person does not discriminate against another person under section 5, 6
or 7 by taking special measures authorised by subsection (1).

"(3) A measure is to be treated as being taken for a purpose referred to in
subsection (1) if it is taken:

   (a)  solely for that purpose; or

   (b)  for that purpose as well as other purposes, whether or not that
        purpose is the dominant or substantial one.

"(4) This section does not authorise the taking, or further taking, of special
measures for a purpose referred to in subsection (1) that is achieved.". 11.
Subsection 9(4): Omit "the provisions of Division 3", substitute "the
prescribed provisions of Division 3". 12. Subsection 10(2): Add at the end "or
potential pregnancy". 13. Subsection 11(2): Add at the end "or potential
pregnancy". 14. Section 14: Omit "or pregnancy" (wherever occurring),
substitute ", pregnancy or potential pregnancy". 15. Section 15: Omit "or
pregnancy" (wherever occurring), substitute ", pregnancy or potential
pregnancy". 16. Section 16: Omit "or pregnancy", substitute ", pregnancy or
potential pregnancy". 17. Section 17: Omit "or pregnancy" (wherever
occurring), substitute ", pregnancy or potential pregnancy". 18. Section 18:
Omit "or pregnancy", substitute ", pregnancy or potential pregnancy". 19.
Section 19: Omit "or pregnancy" (wherever occurring), substitute ", pregnancy
or potential pregnancy". 20. Section 20: Omit "or pregnancy", substitute ",
pregnancy or potential pregnancy". 21. Section 21: Omit "or pregnancy"
(wherever occurring), substitute ", pregnancy or potential pregnancy". 22.
Subsection 22(1): Omit "or pregnancy", substitute ", pregnancy or potential
pregnancy". 23. Section 23: Omit "or pregnancy" (wherever occurring),
substitute ", pregnancy or potential pregnancy". 24. Subsection 24(1): Omit
"or pregnancy", substitute ", pregnancy or potential pregnancy". 25. Section
25: Omit "or pregnancy" (wherever occurring), substitute ", pregnancy or
potential pregnancy". 26. Subsection 26(1): Omit "or pregnancy", substitute ",
pregnancy or potential pregnancy". 27. Subsection 27(1): Omit "or pregnancy",
substitute ", pregnancy or potential pregnancy". 28. Subsection 27(1): After
"pregnant", insert "or potentially pregnant". 29. Section 33: Repeal. 30.
Subsection 40(6): Omit "section 33", substitute "subsection 7D(1)". 31.
Paragraphs 43(1)(a) and (b): Omit "or combat-related duties". 32. Subsection
43(2) (definition of "combat-related duties"): Omit. 33. Paragraphs 48(1)(g),
(ga) and (gb): Omit "or pregnancy", substitute ", pregnancy or potential
pregnancy". 34. Subsection 48(2): Omit "section 33", substitute "subsection
7D(1)".

NOTE ABOUT SECTION HEADING 1. The heading to section 19 of the Sex
Discrimination Act 1984 is altered by omitting "Conciliation and Arbitration
Act" and substituting " Industrial Relations Act 1988".