Bills Digest No. 174 2001-02
Sex Discrimination Amendment (Pregnancy and Work) Bill 2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Sex Discrimination
Amendment (Pregnancy and Work) Bill 2002
Date Introduced:
14 February 2002
House:
House of Representatives
Portfolio:
Attorney-General
Commencement:
The introductory provisions commence on Royal
Assent, and the functional parts of the legislation commence 28 days after
Royal Assent.
Purpose
To make amendments to the Sex Discrimination Act (1984)
('the SDA' or 'the Sex Discrimination Act') which clarify the intention
of the Act.
In 1998 the Attorney-General gave a reference to the
Human Rights and Equal Opportunity Commission (‘HREOC’) to enquire into
‘matters relating to pregnancy and work’. The enquiry was overseen by
Susan Halliday, the Sex Discrimination Commissioner from April 1998 to
April 2001. The Report, delivered in June 1999, was called Pregnant
and Productive: It’s a right not a privilege to work while pregnant.(1)
The Government responded to the Report in November 2000,
some 17 months later. The response accepted roughly half of the recommendations
made. There were twelve recommendations calling for amendments to the
SDA, and of these recommendations the Government accepted three. The Sex
Discrimination Amendment (Pregnancy and Work) Bill 2002 represents
the Government’s implementation of these three recommendations.
The SDA already contains prohibitions on discrimination
on the basis of pregnancy or potential pregnancy (s. 7), and none of the
amendments to be made change the substance of the legislation, they just
clarify a few issues.
During its enquiry HREOC had many submissions which emphasised
that post-pregnancy issues are central to issues of sex discrimination.
One from the Women's Electoral Lobby said:
Pregnancy is a workplace issue that
starts well before conception and ends long after birth. It is impossible
to separate pregnancy and family responsibilities.(2)
It was a result of submissions on these issues that HREOC
recommended that the Attorney-General amend the SDA to specifically cover
breastfeeding as a ground of unlawful discrimination.(3) The
current Bill chooses a method of implementing this recommendation that
does not create a new ground of unlawful discrimination. Instead the Bill
clarifies the fact, should it need clarification, that breastfeeding (and
expressing milk) is a characteristic of women, thereby bringing it under
the umbrella of the prohibition on sex discrimination in the Act. In contrast
to this approach taken by the Government, the private member's Bill dealing
with similar issues, introduced to the Parliament by Ms Jenny Macklin
in 2000, sought to implement HREOC's recommendation by creating an entirely
new ground of discrimination.(4)
The Pregnant and Productive Report also identified
problems with s. 27 of the SDA in dealing with discrimination in advertising
and recruitment. The Report suggested that a broader range of people should
be able to take action against discriminatory advertising without having
to prove that they had themselves been affected by the discriminatory
advertisement. This would clarify that bodies such as a community legal
centre of an employee representative with a concern about a particular
job advertisement that may exclude or discourage pregnant or potentially
pregnant women from applying could lodge a complaint about such an advertisement.
The current legislation does not take up this recommendation, which was
not approved in the Government response to the Report.
The Report went on to say that:
Non-discriminatory employment selection
processes are crucial for ensuring that discrimination is eliminated.
Processes need to be transparent and fair; they should operate so
as to eliminate as far as possible any doubt about whether discrimination
actually occurred. Irrelevant questions about pregnancy or potential
pregnancy need to be removed from the process. A clear legislative
provision, and information about its application will assist with
this. (5)
The proposed legislation seeks to implement this approach
by inserting clarificatory provisions in s. 27.
There are three provisions in the Bill which amend the
SDA.
Item 1 inserts into the definition of sex discrimination,
a clarification that breastfeeding (including expressing milk) is a characteristic
that 'appertains generally to women'. This amendment does not change the
law, it is simply a clarification (should one be needed) that discrimination
against a breastfeeding women is a form of sex discrimination.
Item 2 inserts a new subsection 27(1) which
is designed to be more transparent in its rules regarding questions that
can be put to possible employees regarding pregnancy or potential pregnancy.
Essentially the subsection clarifies that a question regarding pregnancy
or potential pregnancy should not be put unless it falls within the category
of a general question that is asked of everyone involved – i.e. people
of both sexes and of different marital status. So, for instance, a standard
question at a job interview about 'future plans' may elicit information
about a planned pregnancy from a candidate. However, as long as this information
is not taken into account when determining who to give the job to, the
posing of the question is not necessarily wrong because it is not inherently
discriminatory.
Similarly to Item 2, Item 3 inserts a clarificatory
note to subsection 27(2) which explains that as long as a person asking
a question about someone's medical condition or pregnancy uses that information
in a legitimate way (the example given is occupational health and safety)
then the question is not discriminatory. The subsection allows employers
to ask questions about someone's medical or pregnancy status in a manner
which distinguishes between the sexes because it may assist in the enforcement
of appropriate precautionary measures.
- Human Rights and Equal Opportunity Commission, Sydney, 1999.
- ibid, p. 225.
- ibid, p. 226.
- Sex Discrimination Legislation Amendment (Pregnancy and Work) Bill
2000 [No. 2], item 10.
- Pregnant and Productive: It’s a right not a privilege to work while
pregnant, Human Rights and Equal Opportunity Commission, Sydney,
1999, p. 171.
Kirsty Magarey
24 June 2002
Bills Digest Service
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ISSN 1328-8091
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