Chapter 3 - Key issues
Chapter 3 discusses the key issues raised in submissions during the
Some submitters only provided comments on either Schedule 1 or Schedule
2 of the Bill.
However, on the whole, both Schedule 1 and Schedule 2 received overwhelming
support from the majority of submitters, including the Office of the
Anti-Discrimination Commissioner (Tas), the ACT Human Rights Commission, the Office
of the Commissioner for Equal Opportunity (SA), the Equal Opportunity Commission
(WA), the Human Rights Commission, the Law Council of Australia (Law Council),
the Independent Education Union of Australia (IEUA) and the Australian Council
of Trade Unions (ACTU).
Enhanced protections against sex discrimination and sexual harassment
As outlined in Chapter 2, Schedule 1 of the Bill would enhance
protections against sex discrimination and sexual harassment in the Sex
Discrimination Act in a number of ways. As nearly all submissions on the
provisions in Schedule 1 of the Bill were supportive, this section of the
committee's report focuses mainly on any reasons for opposition to this schedule
or suggestions that particular provisions should go further than currently
Providing equal protection to both
men and women
Only a few submitters specifically supported the provision of equal protection
to both men and women.
The submission of the National Association of Community Legal Centres and the Kingsford
Legal Centre was the only one that made any suggestions in relation to the
provisions in this part of the Bill.
Reference to other international
The National Association of Community Legal Centres and the Kingsford
Legal Centre supported the extension of international instruments upon which constitutional
support for the Sex Discrimination Act relies.
However, the Association and the Centre argued that other international
conventions should also be specifically incorporated, particularly the
Convention on the Rights of People with Disabilities
and the Convention for the Elimination of Racial Discrimination,
'due to the diversity of women and girls who experience discrimination'.
Creating a separate ground of discrimination for breastfeeding
The Bill would create a separate ground of discrimination for
breastfeeding and enhance protections for women who breastfeed.
As noted in Chapter 2, discrimination on the basis of breastfeeding is already
prohibited as a subset of sex discrimination, as it is only women who breastfeed.
The Attorney-General's Department (Department) observed that one of the
reasons for establishing breastfeeding as a separate ground of discrimination
is that it will 'make it clearer that actions known as special measures can be
taken by employers to address specific requirements of women who are
While nearly all submissions on these proposed amendments were
a few submitters raised concerns with the operation of the provisions.
There was also outright opposition to the amendments by FamilyVoice Australia.
Support for creation of separate
ground of discrimination for breastfeeding
The Justice and International Mission Unit of the Synod of Victoria and
Tasmania, in the Uniting Church, were particularly supportive of these amendments,
and their submission noted that creating a separate ground of discrimination
would 'align Commonwealth legislation with state and territory legislation'.
The Uniting Church submitted that increasing breastfeeding rates in
Australia is a 'valuable health measure' and that discrimination against breastfeeding
women 'is one of the barriers to increasing breastfeeding rates'.
The Uniting Church drew the committee's attention to a Newspoll survey of 1,000
adults, commissioned by the Australian Lactation Consultants Association in
2009, which found that 'more than one in four Australians viewed breastfeeding
in public as unacceptable'.
Further, the survey 'found that a church was the most unacceptable place to
breastfeed (29%), followed by work (27%), cafés or restaurants (26%) and a
shopping centre (19%)'.
The Office of the Anti-Discrimination Commissioner (Tas) also supported
the creation of a separate ground of discrimination for breastfeeding and
submitted that 'clarity in relation to what 'breastfeeding' means and in what
areas of activity discrimination is prohibited on this ground is vital to
assist all parties to a complaint'.
Discrimination to protect women's
The Department of Premier and Cabinet, Government of Western Australia
(WA), while supportive of the breastfeeding amendments, raised a concern that the
provisions of the Occupational Safety and Health Regulations 1996 (WA) 'are
potentially in conflict with the proposed section 7AA'.
Regulation 5.63 of the WA Regulations enables employers to remove pregnant
or breastfeeding employees from employment with lead risks to a job that does
not have lead risks.
As a result, the Department of Premier and Cabinet submitted that
regulation 5.63 'may impose an obligation on employers which may be deemed
to be discriminatory under proposed section 7AA'.
The Department of Premier and Cabinet further noted that the Bill 'does
not acknowledge that there may be other laws in force that require what would
otherwise be discriminatory action to be taken'.
In response to the concerns of the WA Government, the Attorney-General's
Department advised the committee that discrimination on the grounds of
breastfeeding would only occur if an employer treated a breastfeeding woman
less favourably than a woman who is not breastfeeding, and further:
[the Sex Discrimination Act enables] special measures to be
taken to achieve substantive equality between women who are breastfeeding and
people who are not. Whether an action is discriminatory or constitutes a
special measure will depend on the individual circumstances of each case.
If a state or territory law required that a breastfeeding woman be
treated less favourably by an employer than a woman who is not breastfeeding,
other than for the purposes of achieving substantive equality, 'this law could
be found to be inconsistent with the Sex Discrimination Act by a court'.
Inclusion of the term 'associate'
Thomsons Lawyers submitted that, like the Disability Discrimination Act,
the Sex Discrimination Act should also prohibit discrimination against a person
on the basis that their 'associate' 'is pregnant, breastfeeding or has family
Thomsons Lawyers argued that amending the Bill to include these provisions would
enable complaints to be lodged in circumstances where, for example, 'a man
whose partner is breastfeeding might be discriminated against by an employer
who assumes that this will impose new family responsibilities on the man'.
The Department indicated to the committee that consistency in relation
to the 'associate' provisions across federal anti‑discrimination
legislation will be considered as part of the Consolidation Project.
Broadening protections against
discrimination on grounds of family responsibilities
The existing prohibition in the Sex Discrimination Act relating to
discrimination on the grounds of family responsibilities only protects
employees from direct discrimination resulting in dismissal.
The Bill would prohibit all discrimination on the ground of family
responsibilities in employment more generally, and would apply equally to both
men and women.
Many submitters supported these proposed changes.
For example, the Public Interest Advocacy Centre (PIAC) welcomed these proposed
[extending] protection...to indirect discrimination...will
make claims by women in relation to flexible working arrangements
easier...[T]he reliance on indirect discrimination...depended on courts making
a finding...that women are the primary carers of infants and children
[which]...perpetuates the stereotype that women should be responsible for
caring for infants and children. The Bill ensures that men are able to claim
indirect discrimination in relation to discrimination on the ground of family
responsibilities. This is significant because, in order to change societal
attitudes towards the role of women as carers, the responsibilities of men in
performing carer roles needs to be recognised and afforded legislative
Only two issues were raised in relation to these amendments. Firstly, a
number of submissions argued that the definition of 'family responsibilities'
should be further extended to cover a broader range of relationships.
Secondly, some submitters were of the view that protection against unlawful
discrimination on the ground of family responsibilities should be extended to
other areas of public life.
Definition of 'family
The Bill would expand the definition of 'family responsibilities' to
mean the 'responsibilities of a person', as opposed to an employee, 'to care
for or support a dependent child or any other immediate family member who is in
need of care and support'.
An 'immediate family member' includes: a spouse, an adult child, parent,
grandparent, grandchild or sibling of the person or their spouse.
The Young Women's Christian Association Australia (YWCA Australia)
submitted that the definition of 'family responsibilities' should also
...broader family and personal relationships for whom people may
have caring responsibilities, including caring responsibilities associated with
family kinship and community responsibilities.
Further, the ACTU noted that the Bill 'proposes a more limited ground of
'family responsibilities' than the Fair Work Act and various state
anti-discrimination legislation which protects those with 'family or caring
Amending the definition of 'family responsibilities' in the Sex
Discrimination Act, to recognise broader personal relationships and kinship responsibilities,
was also supported by Women's Legal Services NSW, the National Association of
Community Legal Centres and the Kingsford Legal Centre, Australian Lawyers for
Human Rights, the Equality Rights Alliance–Women's Voices for Gender Equality, and
the Human Rights Commission.
Protection in other areas of public
The Bill would also amend the Sex Discrimination Act to protect against
unlawful discrimination on the ground of family responsibilities in relation to
In its submission, the Office of the Anti-Discrimination Commissioner
(Tas) expressed its disappointment that the Bill would not also protect people
with family responsibilities from discrimination in other areas of public life.
The Office advised that it has received complaints from people 'who have
alleged both direct and indirect discrimination on the basis of family
responsibilities' in areas of public life.
The Office submitted that the Bill should be amended to 'ensure protection
against discrimination on the ground of family responsibility in all areas of
activity as is the case with the other grounds protected in the Sex
The Anti-Discrimination Commission Queensland advised the committee that
it too had received complaints about discrimination on the ground of family
responsibilities in other areas of public life.
The Commission also argued that the prohibition on the ground of family
responsibilities should be extended to all areas of public life:
[i]n the absence of any compelling reason to limit the
protection of family responsibilities to the work area, the extension of this
protection to the other areas is consistent with the expanded preamble to the
Sex Discrimination Act [and]....with various provisions of the relevant
PIAC and Equality Rights Alliance–Women's Voices for Gender Equality
also supported extending the protections against discrimination on the basis of
family responsibilities to other areas of public life.
Strengthening protections against
sexual harassment in workplaces and schools
As noted in Chapter 2, the Bill would strengthen the test for sexual
harassment and extend the protections of the sexual harassment provisions in
the Sex Discrimination Act to new situations in both workplaces and schools.
Nearly all submissions were supportive of these amendments.
However, a number of submitters raised concerns with the operation of the
Definition of 'sexual harassment'
The Bill would amend the definition of 'sexual harassment' to require that
a 'reasonable person, having regard to all the circumstances, would have
anticipated the possibility that the person harassed would be offended,
humiliated or intimidated by the conduct'.
Thomsons Lawyers submitted that including 'the possibility' in the
definition, 'goes too far'. This is because 'if it is sufficient that there be
the 'possibility' that the person would be 'offended, humiliated or intimidated',
then there will be unlawful sexual harassment whenever there is 'unwelcome
conduct of a sexual nature''
since a reasonable person would appreciate that 'there is always the
possibility that a person will be offended by such conduct'.
Definition of conduct of a sexual
The definition of 'sexual harassment' includes engagement in 'other
unwelcome conduct of a sexual nature in relation to the person harassed'.
'Conduct of a sexual nature' includes 'making a statement of a sexual nature to
a person, or in the presence of a person, whether the statement is made orally
or in writing'.
The Anti-Discrimination Commission Queensland noted that the phrase 'in
relation to' has been interpreted by the NSW Administrative Decisions Tribunal as
'including being aware of something of a sexual nature a person does or writes
or says about the person to a third person'.
This is a broader definition than the current requirement in the Sex
Discrimination Act. The Anti-Discrimination Commissioner submitted that the use
of the phrase 'to a person, or in the presence of a person', could 'potentially
limit' the operation of subsection 28A(1), because the requirement that an act
be done 'to a person, or in the presence of a person' would prevent the expanded
interpretation given by the NSW Administrative Decisions Tribunal from applying.
In response to the issue raised by the Anti-Discrimination Commissioner,
the Department responded by stating that, while subsection 28A(2) provides
clarity about what may constitute 'conduct of a sexual nature', 'it is not
intended to be exhaustive'. Further, it 'does not limit what can constitute
sexual harassment [and] merely provides a guide for the courts'.
Inclusion of matters to consider
The National Association of Community Legal Centres and the Kingsford
Legal Centre expressed concern about the Bill's proposed inclusion of a list of
factors that may be taken into account in determining whether a person should
have anticipated the possibility that a person would be offended by the
In particular, while agreeing that 'in some cases the characteristics of the
person harassed could make the nature of the complaint aggravated', they argued
that placing 'a focus on the characteristics of the victim could result in a
minimising of the harassment'; in addition, they proposed
that the Bill be amended to enable these factors to 'result in circumstances of
aggravation' for which 'aggravated damages could be awarded'.
The Department indicated to the committee that the inclusion of a list
of factors which may be taken into account is intended to 'direct courts to take
a more sensitive approach' and that a court 'would be entitled to take these
and any other circumstances into account in assessing any damages to be
Displaying matter related to a
The Office of the Anti-Discrimination Commissioner (Tas) submitted that
the definition of 'sexual harassment' in the Sex Discrimination Act is narrower
than that in the Anti-Discrimination Act 1998 (Tas).
The Office advised the committee that the Anti-Discrimination Act 1998
defines conduct of a sexual nature to include displaying matter related to a
prescribed attribute, such as sex, which could encompass the displaying of
The Office argued that the Bill should be amended to include such conduct in
the definition of 'sexual harassment' 'in an age of increasing technology where
people have access to a range of electronic media through, for example, mobile
phones and the internet'.
The Department advised that the definition of 'conduct of a sexual
nature' is 'deliberately broad and inclusive' and has been interpreted to cover
situations such as displaying pornographic images.
However, the definition of key terms in all the federal anti-discrimination
legislation would be reviewed as part of the Consolidation Project.
Sexual harassment by way of new
The Bill would also rely on the 'postal, telegraphic, telephonic or
other like service' power of subsection 51(v) of the Constitution to prohibit
sexual harassment by way of new technologies.
The Australian Family Association particularly supported these
amendments, submitting that prohibiting sexual harassment by way of new
technologies would result in the law being 'brought up to date with the latest
technology in both workplaces and educational institutions'.
The IEUA, while also supporting the amendments, expressed a general
preference for legislation which provides strong protections by 'specifically
making reference to cyber harassment'.
It stated that 'communication technologies like mobile phones, internet instant
messaging programs, blogs and social networking community websites, like
Facebook, play an important part in many people's social lives', and that 'too
often these technologies are used to sexually harass and bully others'.
The Bill would amend section 28F of the Sex Discrimination Act to
protect students of any age against harassment from a teacher or an adult
student (aged over 16 years).
However, the Anti-Discrimination Commission Queensland submitted that including
the requirement that the harasser be an 'adult student' is not necessary and 'has
not been an issue in successfully managing complaints in Queensland'.
Exemptions for official records of
a person's sex
As outlined earlier in this report, the Bill would preserve the
operation of state and territory laws to 'refuse to make, issue or alter an
official record of a person's sex if a law of a state or territory requires the
refusal because the person is married'.
The Human Rights Commission raised concerns about these amendments because
they would enable states and territories to 'continue to discriminate against
people who wish to alter the official record of their sex on identity documents
(such as birth certificates) on the basis of their marital status'.
The Human Rights Commission advised that it undertook a consultation
regarding legal recognition of sex in identity documents and government records
for 'people who are sex diverse and/or gender diverse'.
In the Concluding Paper to that consultation, the Human Rights Commission specifically
recommended that 'being married should not prevent a person from changing the
notation of their sex on their identity documents such as birth certificates'.
The Human Rights Commission argued that, if enacted, this provision should only
be temporary, and that the Australian Government should take a leadership role
in ensuring that there is a nationally consistent approach to the legal recognition
of sex in official records.
Similarly, Changeling Aspects submitted that the Sex Discrimination Act
does not prevent discrimination against transgender people, such as, 'not being
able to amend birth certificates if remaining married after sex change
This issue was also raised by another submitter, who stated that, as a 'post
operative trans‑woman', she refuses to divorce her wife, even though 'the
New South Wales Births Deaths and Marriages Department require[s] us to do so
if I am to have the 'sex' changed on my birth certificate'.
The National Association of Community Legal Centres and the Kingsford
Legal Centre submitted that it was not clear whether these amendments would include
'transgender women and intersex people'.
The Department informed the committee that the Australian Government is
working with the states and territories to consider the issues raised by the Human
Rights Commission's Concluding Paper, referred to above.
The Department also advised the committee that the Marriage Act 1961 (Cth)
does not prohibit a person who is married from legally changing their sex.
Further, the Department stated that it would be 'premature to alter the
existing law without full consideration and consultation on the effect this
might have on state and territory Births, Deaths and Marriage laws'.
Creation of an Age Discrimination Commissioner (Schedule 2)
Schedule 2 would create a dedicated position of Age Discrimination
Commissioner in the Human Rights Commission.
Support for creation of Age Discrimination
The Australian Association of Gerontology, the Office of the Anti‑Discrimination
Commissioner (Tas), the Council on the Aging Australia (COTA Australia), the ACT Human Rights
Commission, the Office of the Commissioner for Equal Opportunity (SA), National
Seniors Australia, the Law Council and the Human Rights Commission all strongly
supported the creation of a dedicated position of Age Discrimination
For example, National Seniors Australia expressed its support as follows:
...the creation of this position is vitally important to
ensuring that the barriers preventing older people from participating in
society, and the workplace in particular, are being removed and age equality is
This is especially important when there is evidence of a
growing age discrimination problem in this country. According to the...Human
Rights Commission's 2009-10 Annual Report, complaints received under the [Age
Discrimination Act] jumped by 15% in the most recent twelve month period albeit
from a small base, and has reached the highest total in the last five years.
Opposition to creation of Age
Only the submission of FamilyVoice Australia opposed the creation of the
Age Discrimination Commissioner. FamilyVoice argued that 'age discrimination
does not seem to be an area of significant community concern'.
Further, in its view, the 'creation of an additional human rights commissioner
for age discrimination cannot be justified on the basis of need, and could give
rise to an increased number of unmerited complaints'.
Other issues with Schedule 2
Two additional issues were raised by submitters on the provisions of
Schedule 2 of the Bill: first, whether there is the need for additional
funding for the position,
and, second, whether the Attorney‑General should consult with the
Minister for Aging on the appointment of the Commissioner.
Both COTA Australia and National Seniors Australia suggested that
additional funding should be made available to enable the Commissioner 'to work
effectively with the community and industry to combat the attitudes and
stereotypes that contribute to age discrimination'.
National Seniors Australia noted that the 'estimated expense of $2.1 million
over three years from 2011-12 is attributable to personnel costs only'.
COTA Australia submitted that 'there may need to be more specific funding if
there are to be some broad public education campaigns to influence the broader
community's attitude to older people'.
Consultation with Minister for
Aging on appointment of Commissioner
The Attorney‑General is the Minister responsible for the Age
As a result, it is the Attorney-General who must be satisfied that the person
to be appointed as the Commissioner has the 'appropriate qualifications,
knowledge or experience' under proposed new subsection 53A(2).
The Australian Association of Gerontology argued that the Bill should be
amended to provide that 'the Minister responsible for the Ageing portfolio also
be consulted on the appropriateness of the appointment' of the Commissioner.
Broader amendments to Age
A number of submitters suggested that additional broader‑reaching
amendments to the Age Discrimination Act should be included in the Bill.
Removing or limiting exemptions
The Office of the Anti-Discrimination Commissioner (Tas) submitted that
the Bill should be amended to strengthen the Age Discrimination Act by 'removing
or limiting the scope of exceptions and exemptions'.
While acknowledging the Australian Government's proposed consolidation of federal
anti‑discrimination legislation (Consolidation Project), the Office
argued that the Age Discrimination Act should be brought up 'to best practice [as
reflected] in the other federal anti‑discrimination legislation'. Alternatively,
and at a minimum, its protections should be strengthened.
The Office submitted that the committee should:
...recommend, as part of this inquiry, a full review of the
scope of the exceptions and exemptions in the Age Discrimination Act...with a
view to ensuring effective protection against discrimination on the basis of
age to the greatest extent possible.
The Human Rights Commission also stated that the Age Discrimination Act 'offers
a lower level of protection from discrimination compared with other federal
discrimination Acts, particularly with respect to the exemptions.'
The Commission also acknowledged the government's Consolidation Project, suggesting
that this process should consider 'increasing the protection against age
discrimination currently provided by the Age Discrimination Act'.
Enhanced powers to address systemic
The Law Council submitted that the Bill should be amended to expand the
powers of the Commissioner to address systemic discrimination.
To support this argument, the Law Council pointed out that the current Sex
Discrimination Commissioner, as 'Commissioner responsible for Age
Discrimination', has 'noted that Australia has an ageist culture in which many
people see age discrimination as acceptable and that victims of age
discrimination are often unwilling to report cases'.
Broader issues beyond the scope of the Bill
A number of other issues were raised more generally during this inquiry,
most particularly, the need for the Australian Government to develop a more
comprehensive response to the Senate Report. Some submitters also suggested
that the Bill should go further and incorporate broader improvements to the Sex
Implementation of Senate Report's
Nearly all submitters who supported the operation of Schedule 1
indicated that, in their view, the Bill should be amended to fully implement the
recommendations of the Senate Report.
Concerns about the Consolidation
The recommendations of the Senate Report not directly relevant to sex
discrimination are considered by the Australian Government as being relevant to
the operation of other federal anti‑discrimination laws.
As a result, these recommendations are to be considered later as part of the
Consolidation Project, which would streamline federal anti‑discrimination
Despite submissions supporting the Bill's passage,
many were concerned that the Consolidation Project would be 'limited in scope',
and that a 'stronger commitment to the implementation of the more far-reaching
recommendations in the Senate Committee Report is required'.
The Law Council argued that the 'specific recommendations made by the 2008
Senate Inquiry in relation to the Sex Discrimination Act could and should be
implemented now and should not be delayed by the broader review process'.
The majority of submitters suggested that amendments be made to the Bill
to implement some or most of the recommendations of the Senate Report,
providing protection to same-sex couples from discrimination on
the basis of their relationship status by:
replacing references to 'marital status' in the Sex
Discrimination Act with references to 'marital or relationship status'; and
amending the definition of 'marital status' in section 4 of the Sex
Discrimination Act with a definition of 'marital or relationship status' which
includes being the same-sex partner of another person (Recommendation 4);
including a general prohibition of sex discrimination and sexual
harassment in any area of public life (Recommendation 8);
imposing a positive duty on employers to reasonably accommodate
requests by employees for flexible working arrangements, such as family or
carer responsibilities, modelled on section 14A of the Equal Opportunity Act
1995 (Vic) (Recommendation 14);
removing the exemption for voluntary organisations in section 39 of
the Sex Discrimination Act (Recommendation 25);
requiring the Sex Discrimination Commissioner to monitor progress
towards eliminating sex discrimination and achieving gender equality, and to
report to Parliament every four years (Recommendation 33);
giving the Sex Discrimination Commissioner the power to initiate
inquiries without a complainant (Recommendation 37).
Implementation of other suggestions
Some submitters used the opportunity afforded by the committee's inquiry
to reiterate arguments or suggestions that they had previously made to the committee
and which were not reflected in the Senate Report's recommendations.
A significant number of changes to the Sex Discrimination Act were also
proposed by way of amendments to the Bill, including:
providing protection against intersectional discrimination, where
discrimination involves more than one ground of discrimination (for example,
discrimination against a woman with a disability);
removing the distinction between direct and indirect
protecting against discrimination on the basis of either sexual
orientation or gender identity;
- capping costs in the Federal Court of Australia and the Federal
Other suggestions for amendments, which are not related to the Bill,
were also made. These include:
removing Australia's reservations under CEDAW;
strengthening agencies that contribute to gender equality, such
as the Equal Opportunity for Women in the Workplace Agency and the Human Rights
addressing systemic discrimination against men, such as 'the
imposition on male youth of educational methods deliberately biased towards
Two issues were raised with respect to the EM: first, the EM fails to
acknowledge that the Age Discrimination Act is designed to protect all people
from age discrimination; second, the purpose and effect of items
9 and 62 of Schedule 1, which establish exemptions from the operation of
the Sex Discrimination Act for official records of a person's sex, is unclear.
On behalf of the ACT Human Rights Commission, the Human Rights and
Discrimination Commissioner, Dr Helen Watchirs, submitted that, while the
Commission supports the creation of the office of the Commissioner:
[she is] troubled by the language of the [EM] to the Bill,
'The [Age Discrimination Act] makes discrimination on the
grounds of age unlawful in specified areas of public life but does not provide
for a dedicated...Commissioner to advocate for the rights of people,
particularly older Australians, who experience age discrimination.'
Whilst there are well documented issues of employment
concerning older workers, age discrimination can be unlawful in a range of
areas and the particular issues of children and young people should not be
forgotten. [I]f the concerns of children and young people are not to be
prioritised by the Federal Age Discrimination Commissioner, then a dedicated
Federal Children and Young People Commissioner should be considered. 
Both the wording of the EM and the Attorney-General's second reading
speech refer to 'older' and 'aging', respectively.
However, the Age Discrimination Act clearly prohibits discrimination on the
basis of age, and includes discrimination against younger and older people.
The Department agreed that the Age Discrimination Commissioner would be an
advocate for all Australians, but noted that the EM specifically referred to
older Australians as, in practice, discrimination in employment for older
workers has been 'the most common cause for complaint under the Age
Exemptions for official records of
a person's sex
It is not clear from the EM what the provisions in items 9 and 62 of
Schedule 1, in relation to exemptions for official records of a person's
sex, would achieve and why they are required. The EM states that item 62 'will
amend section 40 to include an exemption to preserve the operation of state and
territory laws regarding official records of a person's sex'.
These amendments do not have any correlation to the Senate Report, so it is
unclear why they have been included in the Bill.
A drafting issue in relation to subsection 4A(1) of the Sex Discrimination
Act was raised by Thomsons Lawyers.
This section defines 'family responsibilities' as:
...responsibilities of the employee to care for or support:
(a) a dependent child of the employee; or
(b) any other immediate family member who is in need of care and
Thomsons stated that the definition 'refers to an obligation to 'care
for or support', and then immediately refers to a family member being in
need of 'care and support'.
The different use of terms in the definition may mean that, in order to
demonstrate 'family responsibilities' for 'any other immediate family member',
that person would have to require both 'care and support'. However, in relation
to a dependent child, a person would only need to demonstrate that the child
required 'care or support'. It is unclear if this is the intended meaning of
In relation to the issue raised by Thomsons Lawyers, the Department
advised the committee that while it notes the point made by Thomsons Lawyers, its
view is that it is unlikely that the courts would take such a limited
interpretation, as courts would usually 'give a broad reading to legislation
which is designed to protect people's rights'.
The two key objectives of the Bill are to give effect to some of the
recommendations of the Senate Report, and to provide greater recognition to the
issue of age discrimination, by creating a dedicated position of Age
Discrimination Commissioner in the Human Rights Commission. The committee
supports these objectives and commends the Australian Government's initiatives
in this regard.
During the course of the inquiry, submitters were overwhelmingly
supportive of the Bill. Particular provisions were, nonetheless, singled out
for comment, and the Department's response to those comments was sought. While
the response clarified many of the committee's queries, some concerns remain about
provisions relating to an exemption for official records of a person's sex, if
a state or territory law would require a refusal to amend the records because
the person is married.
The Bill would implement two of the government's election commitments;
however, the committee notes that these commitments also included 'the enactment
of legislation prohibiting discrimination on the basis of a person's sexual
orientation or gender status, and the removal of such discrimination from
In this context, the Senate Standing Committee for the Scrutiny of Bills
raised concerns about these exemption provisions in its Ninth Report of 2010,
dated 17 November 2010.
Following the Department's response to the issues raised by the Scrutiny of
Bills Committee (which was similar to the response provided by the Department
during this inquiry), that Committee remained 'concerned that the proposed
provisions have the effect that people in similar circumstances will be treated
differently when the official status of a person's sex is important'. 
The Department has advised that 'the amendments to the Sex
Discrimination Act in the Bill are primarily intended to implement the accepted
recommendations' of the Senate Report.
However, providing for these exemptions was not raised in the Senate Report,
and the Senate Report explicitly recommended extending the Sex Discrimination
Act to protect against discrimination on the basis of either sexual orientation
or gender identity.
Given that the Department has advised the committee that 'the Marriage
Act 1961 does not prohibit a person who is married from legally changing
it is unclear to the committee why the Sex Discrimination Act would need to be
amended to specifically exempt state and territory laws which enable refusals
to make or alter official records of the person's sex because the person is
married. The Department has failed to explain to the committee how this
exemption for these state and territory laws operated prior to its proposed inclusion
in the Act, exactly which state and territory laws are being referred to, and, most
importantly, what changes to the law the Bill would effect which require these
amendments to preserve the existing law.
In particular, the committee expresses concern about the lack of
explanation provided in the EM to the Bill in relation to amendments to provide
exemptions for official records of a person's sex. Given the opposition to
these provisions from a number of submitters, it would have been of assistance
to the committee if a more comprehensive explanation was provided in the EM.
While the committee expresses its concerns about these provisions, since
the government is undertaking consultations with the states and territories on
the recommendations of the Human Rights Commission's Concluding Paper, the
committee endorses the Human Rights Commission's suggestion that these
exemption provisions should only be enacted temporarily. Further, the committee
strongly encourages the Australian Government to take a leadership role in
ensuring that there is a nationally consistent approach to the legal
recognition of sex in official records.
In the context of the amendments to the Age Discrimination Act, while
the committee recognises the detrimental effect that discrimination can have on
older Australians, particularly those seeking employment, the committee is also
concerned that the EM fails to mention discrimination against younger
Australians in relation to the role of the Age Discrimination Commissioner.
In a general sense, the committee also expresses its disappointment with
the overall quality of the EM produced to accompany this Bill. The EM is
particularly difficult to navigate, and did not assist the committee by clearly
explaining the operative provisions of the Bill. The EM also relies very
heavily on cross-references to the particular recommendations of the Senate
Report, rather than existing as a single stand-alone document.
As a final point, the committee appreciates the concerns raised by a
large number of submitters who were of the view that the reforms in the Bill should
have gone further to implement all of the recommendations of the Senate Report.
The committee also understands concerns raised by some submitters that the Consolidation
Project may not result in the implementation of the outstanding recommendations
of the Senate Report. The committee strongly urges the government, as part of
the Consolidation Project, to further consider, and implement as soon as
possible, the recommendations of the Senate Report.
The committee recommends that the Attorney-General's Department revise
and reissue the Explanatory Memorandum to specifically recognise that an
objective of the Age Discrimination Act is to protect younger Australians from
age discrimination, and that this objective should be addressed by the Age
The committee recommends that the Australian Government consider, as
part of the consolidation project for federal anti-discrimination laws, all
outstanding recommendations of the Senate Standing Committee on Legal and
Constitutional Affairs' 2008 Report into the Effectiveness of the Sex
Discrimination Act 1984 in eliminating discrimination and promoting gender
Subject to the above recommendations, the committee recommends that the
Senate pass the Bill.
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