Chapter 2 - Overview of the Bill


Chapter 2 - Overview of the Bill

2.1        Chapter 2 sets out the key provisions of the Bill.

Key provisions of the Bill

2.2        The Bill contains two schedules of amendments:

  • Schedule 1 would amend the Sex Discrimination Act to enhance protections against sex discrimination and sexual harassment to:
  • provide equal protection to both men and women;
  • create a separate ground of discrimination for breastfeeding;
  • broaden the prohibition on discrimination in employment on the grounds of family responsibilities to include indirect discrimination, and to provide protection to both women and men from discrimination on the grounds of family responsibilities; and
  • strengthen protections against sexual harassment in workplaces and schools; and
  • Schedule 2 would amend the Age Discrimination Act to create a dedicated position of Age Discrimination Commissioner in the Human Rights Commission.

Schedule 1 – amendments to the Sex Discrimination Act

Equal protection for men and women

2.3        The Sex Discrimination Act implements certain provisions of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).[1] Australia ratified CEDAW in July 1983, and has been a party to the convention for almost 30 years.[2] The ratification of CEDAW creates obligations on states to eliminate discrimination against women. The Senate Report recommended that the Sex Discrimination Act be amended to also refer to other relevant international conventions which create obligations to provide gender equality to both men and women.[3]

2.4        Relying on the external affairs power under subsection 51(xxix) of the Constitution, the Bill would extend the operation of the Sex Discrimination Act to men, by including in the definition of 'relevant international instrument' in subsection 4(1) a range of treaties which promote gender equality (in addition to CEDAW).[4]

2.5        A 'relevant international instrument' would therefore include:

  • the International Covenant on Civil and Political Rights (ICCPR);[5]
  • the International Covenant on Economic, Social and Cultural Rights (ICESCR);[6]
  • the Convention on the Rights of the Child;[7]
  • the International Labour Organisation Conventions (ILO Conventions):
  • ILO Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value;[8]
  • ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation;[9]
  • ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities;[10] and
  • ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer.[11]
Other constitutional powers

2.6        Currently, the Sex Discrimination Act only provides protection against acts of sexual harassment committed by a Commonwealth employee in connection with their duties as a Commonwealth employee, or by a staff member of an educational institution established by a Commonwealth or territory law, in connection with their duties as a staff member of that institution.[12]

2.7        The Bill would expand protections against sexual harassment in the Sex Discrimination Act to include harassment committed against:

  • Commonwealth employees, in connection with their duties as Commonwealth employees; and
  • staff members of an educational institution established by a law of the Commonwealth or a law of a territory, in connection with their duties as a staff member of that educational institution.[13]

2.8        Items 25 to 29 of Schedule 1 would broaden the reliance by the Sex Discrimination Act on:

  • the corporations power in subsection 51(xx) of the Constitution – to enable the protections of the Sex Discrimination Act to apply to discriminatory acts and sexual harassment committed against employees or officers of foreign corporations, or of trading or financial corporations formed within the limits of the Commonwealth, as well as discriminatory acts committed by those officers or employees;[14] and
  • the 'postal, telegraphic, telephonic or other like service power' in subsection 51(v) of the Constitution – to prohibit sexual harassment by way of new technologies, such as email, SMS, mobile-phone cameras and social networking websites.[15]
Creating a separate ground of discrimination for breastfeeding

2.9        Item 17 of Schedule 1 of the Bill would insert a separate ground of discrimination in relation to breastfeeding into the Sex Discrimination Act, to implement Recommendation 12 of the Senate Report.[16] The Senate Report recommended that a separate ground be created because:

...the intent of the Act is to protect women from discrimination based upon them breastfeeding. This is achieved by providing in subsection 5(1A) that breastfeeding is a characteristic that appertains generally to women. This seems a somewhat circuitous path. It would be desirable for the Act to provide for specific protection against discrimination on the ground of breastfeeding.[17]

2.10      The separate ground of discrimination, provided for in proposed new section 7AA, only applies to women who are breastfeeding.[18] 'Breastfeeding' would be defined as 'the act of expressing milk';[19] 'an act of breastfeeding';[20] and 'breastfeeding over a period of time'.[21] The inclusion of a reference to 'breastfeeding over a period of time' would ensure that a respondent cannot claim that a discriminatory act was lawful because the complainant was not actually breastfeeding at the time the act occurred.[22]

2.11      The protections against discrimination on the ground of breastfeeding would be extended to both direct discrimination and indirect discrimination, under proposed subsections 7AA(1) and (2) respectively.[23] Under subsection 7AA(1), direct discrimination would occur if a person treats a woman less favourably than someone else, 'in circumstances that are the same or not materially different',[24] by reason of:

...the woman's breastfeeding; or

...a characteristic that appertains generally to women who are breastfeeding; or...that is generally imputed to women who are breastfeeding.[25]

2.12      The EM also provides an example of both direct and indirect discrimination in relation to breastfeeding:

  • direct discrimination would occur where an employer refuses to hire any woman who is breastfeeding, or a restaurateur declined to serve a breastfeeding patron;[26] and
  • indirect discrimination would occur where an employer imposes a requirement on employees that they 'must not take any breaks for set periods during the day under any circumstances', which would have the effect of disadvantaging women who 'need to express milk'.[27]

2.13      The Bill provides that discrimination on the grounds of breastfeeding is also prohibited in the following areas of public life (subject to certain exemptions in Division 4 of the Sex Discrimination Act):

  • education;
  • goods, services and facilities;
  • accommodation;
  • land;
  • clubs; and
  • the administration of Commonwealth laws and programs.[28]

2.14      Item 60 of Schedule 1 would prevent a man from bringing a complaint of unlawful sexual discrimination on the basis that a person grants to a woman rights or privileges related to the fact that they are breastfeeding. This amendment recognises that breastfeeding may 'give rise to special needs, such as for private areas for breastfeeding, or hygienic areas for storage of expressed milk', which should not be subject to complaints of discrimination.[29]

Broadening prohibition on discrimination on grounds of family responsibilities

2.15      The existing prohibition of discrimination on the grounds of family responsibilities in the Sex Discrimination Act protects employees from termination of employment only.[30] Further, the protection is limited to direct discrimination and does not include indirect discrimination.

2.16      The Senate Report recommended that the prohibition of discrimination on the grounds of family responsibilities should be broadened to include indirect discrimination and discrimination in all areas of employment:

[e]vidence to the committee overwhelmingly supported the view that the protection against discrimination on the basis of family responsibilities under the Act is too limited. The current protection is limited to direct discrimination resulting in termination. This excludes the most common types of discrimination on this ground such as employees being denied training or promotion, or being demoted or otherwise treated less favourably as a result of their family responsibilities.

The committee also notes...that a failure to strike an appropriate balance between work and caring responsibilities has negative consequences for the health of carers and for their workforce participation...[This is] also important to overcoming some entrenched aspects of gender discrimination which continue to lock women into the role of carer and men into the role of bread-winner to the detriment of both sexes. The committee recommends broadening protection against discrimination on this ground. Specifically, both direct and indirect discrimination should be prohibited and protection should extend to all aspects of employment – not just termination.[31]

2.17      A replacement section 7A would be inserted into the Sex Discrimination Act by the Bill, to prohibit discrimination on the ground of family responsibilities in employment more generally.[32] The expanded ground of discrimination would be equally applicable to both men and women, but complaints will not be able to be brought by people without family responsibilities in relation to 'rights, privileges, or other conditions' which recognise the special needs of people with family responsibilities.[33] The EM states that these amendments will address Recommendation 13 of the Senate Report.[34]

2.18      Proposed new subsections 7A(1) and (2) would protect people with family responsibilities from both direct and indirect discrimination.[35] Direct discrimination would occur if a person treats another person less favourably than someone else, 'in circumstances that are the same or not materially different',[36] by reason of:

...the family responsibilities of the aggrieved person; or

...a characteristic that appertains generally to persons with family responsibilities or...that is generally imputed to persons with family responsibilities.[37]

2.19      The EM provides an example of both direct and indirect discrimination in this context:

  • direct discrimination would occur where an employer terminates a person's employment 'before they return to work from parental leave, on the basis that they consider that the employee's new family responsibilities will interfere with their work';[38] and
  • indirect discrimination would occur where an employer refuses to consider flexible working arrangements 'under any circumstances', which would particularly disadvantage people with family responsibilities.[39]

2.20      However, the prohibition on indirect discrimination, for both breastfeeding and family responsibilities, would be subject to the reasonableness test in section 7B of the Sex Discrimination Act.[40] This test provides that a condition, requirement or practice, which has the effect of disadvantaging people with family responsibilities, is not discriminatory if it is reasonable in the circumstances.[41]

Special measures relating to breastfeeding and family responsibilities

2.21      The amendments which relate to both the inclusion of breastfeeding as a separate ground of discrimination and the prohibition on discrimination on the grounds of 'family responsibilities', are addressed together in this section of the committee's report to avoid duplication.

2.22      The Bill would also amend the Sex Discrimination Act to ensure that special measures may be taken to address the needs of breastfeeding women or people with family responsibilities without being capable of 'producing claims of unlawful discrimination'.[42]

2.23      Section 8 of the Sex Discrimination Act provides that where a person who is alleged to have discriminated against someone else had two or more reasons for undertaking a discriminatory act, the discriminatory reason need be only one of the reasons for the act, regardless of whether it is the dominant or substantial reason.[43] The Bill would incorporate the new grounds of discrimination for the purposes of applying this test of causation to these grounds.[44]

2.24      The Sex Discrimination Act is not intended to limit or exclude the operation of state and territory anti-discrimination laws that operate concurrently with the Sex Discrimination Act.[45] The Bill would ensure that, as a consequence of the inclusion of the new grounds of discrimination, these provisions preserve 'the operation of state and territory laws which also relate to the new grounds of discrimination'.[46]

2.25      The Bill would also ensure that discrimination on the grounds of breastfeeding and family responsibilities is prohibited in the following areas of work regulated by the Sex Discrimination Act, subject to the exemptions in Division 4:

  • employment;
  • commission agents;
  • contract workers;
  • partnerships;
  • qualifying bodies;
  • registered organisations under the Fair Work (Registered Organisations) Act 2009 (Cth); and
  • employment agencies.[47]

2.26      Section 27 of the Sex Discrimination Act makes it unlawful for a person to request information that would enable that person to unlawfully discriminate. For example, 'it is unlawful for an employer to ask prospective female employees about their children but not to ask the same question of prospective male employees, in order to avoid hiring women with caring responsibilities'.[48] The Bill would amend this section to ensure that requests for information in connection with discrimination on the grounds of either breastfeeding or family responsibilities are also unlawful.[49]

2.27      Section 39 of the Sex Discrimination Act provides that it is not unlawful for a voluntary body to discriminate against a person on the grounds of the person's sex, marital status or pregnancy, in relation to the 'admission of persons as members of the body' or the 'provision of benefits, facilities, or services'.[50] The Bill would enable voluntary bodies to discriminate against a person on the grounds of their family responsibilities, or against a woman who is breastfeeding.[51] The Bill would also apply an exemption to discrimination on the ground of family responsibilities to new superannuation fund conditions[52] and existing superannuation fund conditions.[53]

2.28      The functions of the Human Rights Commission, under the Sex Discrimination Act, would be amended by the Bill to ensure that the Human Rights Commission's powers to 'produce reports, guidelines, and intervene in proceedings appropriately' extend to the new grounds of discrimination for breastfeeding and family responsibilities.[54] This amendment would implement Recommendation 30 of the Senate Report.[55]

Strengthening protections against sexual harassment in workplaces and schools

2.29      Recommendation 15 of the Senate Report supported the broadening of the definition of sexual harassment in the Sex Discrimination Act to provide that a 'reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct'. Recommendation 16 of the Senate Report supported the inclusion of a list of factors to consider in conjunction with the new definition to assist in determining whether a reasonable person would have anticipated the possibility that another person would be harassed by his or her actions. Recommendations 17 and 18 of the Senate Report supported strengthening the protections against sexual harassment in both schools and workplaces.[56] The Bill would amend the Sex Discrimination Act to implement all of these recommendations.

2.30      Section 28A of the Sex Discrimination Act currently defines sexual harassment as a situation where:

  • a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  • a person engages in other unwelcome conduct of a sexual nature in relation to the person harassed; and
  • a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.[57]

2.31      'Conduct of a sexual nature' is defined in subsection 28(2A) of the Sex Discrimination Act to include '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'.

2.32      The Senate Report concluded that the current definition is too narrow:

...because it requires that a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated by the conduct. Under this definition, the Act seems to permit, for example, unwelcome conduct of a sexual nature where a person realises that it is possible the other person will be humiliated by that conduct but thinks the odds are against it and decides to run the risk. The committee prefers the definition under section 119 of the Anti‑Discrimination Act 1991 (Qld) which requires that a 'reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct' (emphasis added).[58]

2.33      The Bill would amend the test for sexual harassment by inserting the words 'the possibility', after 'anticipated', in subsection 28A(1), in accordance with Recommendation 15 of the Senate Report.[59] The EM states that this amendment would require 'that a reasonable person need only anticipate the possibility that the person harassed would be offended, humiliated, or intimidated by the conduct'.[60] The provision is modelled on section 119 of the Anti-Discrimination Act 1991 (Qld).[61]

2.34      The Senate Report also concluded that:

...it would be desirable for the Act to provide additional guidance on what factors are relevant circumstances to be considered in assessing whether a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated by the conduct. Specifically, the Act should include a provision equivalent to section 120 of the Anti‑Discrimination Act 1991 (Qld). Section 120 provides that the relevant circumstances include the individual characteristics of the person harassed, including factors such as the person's age, race and sex. Such a provision would ensure that the courts apply the sexual harassment provisions having particular regard to characteristics of the person harassed which have an impact upon how the person experiences the unwelcome conduct.[62]

2.35      To implement Recommendation 16 of the Senate Report, the Bill would insert a new subsection 28A(1A) into the test for sexual harassment.[63] This subsection would provide a non‑exhaustive list of factors, set out below, which may be relevant in determining whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated:

...the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person harassed;

...the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

...any disability of the person harassed;

...any other relevant circumstance.[64]

2.36      These factors are based on those in section 120 of the Anti-Discrimination Act 1991 (Qld).[65] However, the factors have been reworded to provide greater consistency with other federal anti-discrimination law.[66] The EM states that, for example, references to 'impairment' in the Anti-Discrimination Act 1991 (Qld), have been replaced with references to 'disability', as used in the Disability Discrimination Act.[67] The list also includes additional factors not found in the Anti-Discrimination Act 1991 (Qld), such as marital status, sexual preference and religious belief.

2.37      Section 28F of the Sex Discrimination Act prohibits sexual harassment at educational institutions, and provides that:

  • it is unlawful for a member of staff of an educational institution to sexually harass:
  • a person who is a student at the institution; or
  • a person who is seeking to become a student at the institution; and
  • it is unlawful for a person who is an adult student (a student who has attained the age of 16 years) at an educational institution to sexually harass:
  • a person who is an 'adult student' at the institution; or
  • a member of the staff of the institution.[68]

2.38      The Senate Report noted that the Sex Discrimination Act does not currently protect a student who is harassed, if he or she is under 16 years of age, or if he or she is harassed by someone from a different educational institution'.[69]

2.39      To implement the first part of Recommendation 17 of the Senate Report, the Bill would remove the requirement that a student who suffers sexual harassment must be an 'adult student' for the sexual harassment to be unlawful.[70] This would make the sexual harassment of any student by an adult student at the same educational institution unlawful.[71]

2.40      Item 57 of Schedule 1 of the Bill would further amend section 28F to insert two new subsections, 28F(2A) and 28F(2B). These subsections would, respectively, make it unlawful to sexually harass a student if the harasser is a member of staff of another educational institution, and for an adult student to harass students or staff at another educational institution. In relation to both subsections, the sexual harassment must have a causal connection with the harasser being either a member of staff of that educational institution, or an adult student at the relevant educational institution.

2.41      The EM states that these amendments are designed to prohibit sexual harassment which may occur at inter-school events, such as debating competitions and sporting carnivals or where educational institutions share facilities or are co-located.[72] These amendments would implement the second part of Recommendation 17.[73]

2.42      Section 28B of the Sex Discrimination Act prohibits sexual harassment in the workplace. Workplace harassment is generally prohibited between specified classes of workplace participants, including:

  • employers against employees/prospective employees (subsection 28B(1));
  • employees against fellow employees/prospective employees (subsection 28B(2));
  • a person against their existing or prospective commission agents or contract workers (subsection 28B(3));
  • commission agents or contract workers against their fellow existing or prospective commission agents or contract workers (subsection 28B(4));
  • partners against other partners, or people seeking to become partners in the same partnership (subsection 28B(5)); and
  • workplace participants against other workplace participants at a place that is a workplace of both the workplace participants (subsection 28B(6)).[74]

2.43      The Bill would amend subsection 28B(6) to provide that the sexual harassment need only occur at the workplace of one of the workplace participants.[75] This amendment would ensure that sexual harassment between combinations of classes of workforce participants which are not otherwise covered by subsections 28B(1)-(5) is prohibited.[76] This could include, for example, sexual harassment by an employee against a contract worker or between people employed by different organisations.[77]

2.44      The Senate Report noted that:

[t]here are other gaps in the coverage of the sexual harassment provisions of the Act that relate to workplaces. The committee accepts that sexual harassment of workers by clients or customers is clearly possible...The committee therefore recommends that the Act be amended to provide protection to workers who are harassed by clients, customers or other persons they have contact with through their employment, rather than being limited to harassment by workplace participants.[78]

2.45      Section 28G of the Sex Discrimination Act, which makes sexual harassment in the provision of goods, services and facilities unlawful, does not protect service providers from sexual harassment by 'their customers and clients'.[79] To remedy this, the Bill would amend section 28G to make it unlawful for a person to sexually harass someone in the course of seeking or receiving goods, services or facilities from the harassed person.[80] Along with some minor and consequential amendments, these provisions of the Bill would implement Recommendation 18 of the Senate Report.[81]

Other amendments

2.46      Item 9 of the Bill would insert a definition of an 'official record of a person's sex' into the definitions section of the Sex Discrimination Act.[82] An 'official record of a person's sex' would be defined as 'a record of a person's sex in a register of births, deaths and marriages', or a document issued under a state or territory law which is created to identify or acknowledge a person's sex.[83]

2.47      This definition is included to complement changes made by item 62 of Schedule 1 of the Bill, which would amend section 40 of the Sex Discrimination Act. Section 40 sets out exemptions under the Sex Discrimination Act to acts done under statutory authority. The Bill would amend the Sex Discrimination Act to provide that nothing in Division 2 of Part II makes it 'unlawful 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'.[84]

Schedule 2 – amendments to the Age Discrimination Act

2.48      The Age Discrimination Act makes it unlawful to discriminate on the grounds of age in specified areas of public life. Schedule 2 of the Bill would amend the Age Discrimination Act to establish a dedicated position of Age Discrimination Commissioner (Commissioner) in the Human Rights Commission.

Appointment of Age Discrimination Commissioner

2.49      The Bill would insert a new Part 6A, including new sections 53A to 53G, into the Age Discrimination Act.[85] These sections would establish the office of the Commissioner and provide for the terms and conditions of appointment of the Commissioner.[86]

2.50      Some of the proposed new provisions (as set out in Item 3 of Schedule 2) are:

  • the Commissioner would be appointed by the Governor-General if the Minister[87] is satisfied that 'the person has appropriate qualifications, knowledge or experience' (proposed new subsection 53A(2));
  • the Commissioner holds full-time office for a period of time 'specified in the instrument of appointment' (proposed new subsections 53B(1) and 53B(2));[88]
  • the period of appointment must not exceed seven years (proposed new subsection 53B(1));[89]
  • the Commissioner holds office on the terms and conditions determined by the Governor‑General, unless otherwise provided by the Age Discrimination Act (proposed new subsection 53B(3));
  • the Commissioner's remuneration is set by the Remuneration Tribunal (however, if the Remuneration Tribunal has not made a determination, the Commissioner will be paid remuneration prescribed by the regulations) (proposed new subsection 53C(1));
  • the Commissioner must not engage in paid employment outside of his or her duties as the Commissioner without the Minister's approval (proposed new section 53E); and
  • the Commissioner may be terminated on the grounds of 'misbehaviour or physical or mental incapacity', or the Governor‑General may also terminate the appointment if the Commissioner:
  • is involved in insolvency or bankruptcy proceedings;
  • is absent from the office outside particular time periods, unless he or she is taking a leave of absence; or
  • engages in paid employment without the Minister's approval (proposed new subparagraphs 53G(2)(a)-(c)).

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