INTRODUCTION AND BACKGROUND
On 21 March 2013, the Sex Discrimination Amendment (Sexual Orientation,
Gender Identity and Intersex Status) Bill 2013 (Bill) was introduced into the
House of Representatives by the Attorney-General, the Hon Mark Dreyfus QC MP
On the same day, the Senate referred the provisions of the Bill to the Senate
Legal and Constitutional Affairs Legislation Committee (committee), for inquiry
and report by 17 June 2013.
To assist the parliament's timely consideration of the Bill, the committee
decided to present its report on 14 June 2013.
Purpose of the Bill
The Bill seeks to amend the Sex Discrimination Act 1984 (Cth) (SDA)
in order to:
- extend protection from discrimination to the new grounds of
sexual orientation, gender identity and intersex status; and
- extend the existing ground of 'marital status' to 'marital or
relationship status' to provide discrimination protection for same-sex de facto
The Explanatory Memorandum to the Bill (EM) states:
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.
The Bill would add to the number of grounds already protected under the SDA,
which currently provides protection for individuals against discrimination on
the basis of: sex; marital status; pregnancy or potential pregnancy;
breastfeeding; and family responsibilities.
The introduction of the Bill comes in the context of a broader proposed
reform project relating to Commonwealth anti-discrimination law and previous
committee inquiries into anti‑discrimination law, including the SDA.
Commitment to extend discrimination
Introducing protection against discrimination on the grounds of sexual
orientation and gender identity implements a 2010 election commitment by the
In bringing the Bill before the parliament, the Attorney-General stated:
Members of Australia's lesbian, gay, bisexual, transgender
and intersex communities continue to experience high levels of discrimination.
However, there is currently little protection in federal law from discrimination
on the basis of sexual orientation and gender identity.
That is why this government [has] committed to introduce
sexual orientation and gender identity as protected grounds of discrimination
at the federal level. This bill honours that long-standing Labor commitment.
Proposed consolidation of
Commonwealth anti-discrimination laws
The government has committed to consolidate the five Commonwealth Acts
which deal with anti‑discrimination matters
into a single Act. The project to consolidate Commonwealth anti-discrimination
legislation was announced in 2010 as part of the Australian Government's Human
Exposure Draft legislation and recent
inquiry by this committee
Following a discussion paper and consultation process, the government
released a draft consolidation bill on 20 November 2012: the Exposure Draft of the
Human Rights and Anti-Discrimination Bill 2012 (Exposure Draft).
One of the proposals contained in the Exposure Draft was the introduction
of protection against discrimination on the grounds of sexual orientation and
This committee conducted an inquiry into the Exposure Draft, and tabled
its report in February 2013.
The report included 12 targeted recommendations regarding various aspects of
the Bill, and also directed the Attorney-General's Department (Department) to
consider additional issues raised by submitters during the formulation of the
final legislation before its introduction into the parliament.
Two of the committee's recommendations related to the proposed
introduction of anti-discrimination protection on the basis of gender identity.
The committee recommended, first, that the definition of 'gender identity' in
the Exposure Draft be amended to read:
gender identity means the gender-related identity,
appearance or mannerisms or other gender-related characteristics of an
individual (whether by way of medical intervention or not), with or without
regard to the individual's designated sex at birth, and includes transsexualism
The committee also recommended that 'intersex status' be included as a
stand-alone protected attribute (rather than being encompassed within the
concept of 'gender identity'), with the term 'intersex' being defined as
intersex means the status of having physical, hormonal
or genetic features that are:
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male.
Announcement to delay the consolidation
project and introduce the Bill
On 20 March 2013, the Attorney-General announced that the introduction
of the final version of the consolidation bill had been delayed to allow for
further consideration to be given to the final drafting of the legislation.
The Attorney‑General subsequently stated:
[The consolidation] is a worthy but complex project, and it
is important that we get it right. That means taking the time to carefully
consider the many recommendations put forward by the committee and submitters
to the inquiry, developing a comprehensive government response, drafting a
final bill and fully debating it in this place.
The Attorney-General explained further that, while the broader
consolidation project was being put on hold, the government had decided to
proceed in initiating protection against discrimination on the basis of sexual
orientation and gender identity, through the introduction of separate and
[Such a] reform is long overdue and too important to be
delayed any further. The Government will proceed immediately with the new
protection while detailed work continues on consolidating Australia's
2008 committee inquiry into the Sex
Discrimination Act 1984
In 2008, the Senate Standing Committee on Legal and Constitutional
Affairs conducted an inquiry into the effectiveness of the SDA in eliminating
discrimination and promoting gender equality. The committee's final report,
released in December 2008, made 43 recommendations, including over 25
recommendations advocating amendments to the SDA.
The government subsequently introduced legislation to implement eight
recommendations concerned directly with sex discrimination.
The remaining recommendations were noted by the government, with the government
response stating that '[t]hose recommendations with wider implications for
federal anti‑discrimination laws will be considered by the Government in
light of its broader commitment to streamline and harmonise Commonwealth anti-discrimination
Conduct of the inquiry
The committee advertised its inquiry in The Australian on 27
March 2013. Details of the inquiry, including links to the Bill and associated
documents, were placed on the committee's website at www.aph.gov.au/senate_legalcon.
The committee also wrote to 83 organisations and individuals, inviting
submissions by 26 April 2013. Submissions continued to be accepted after
The committee received 128 submissions to the inquiry. For
administrative purposes, 38 of these submissions were categorised as 'form
letters' (or variations of form letters).
All of the 'form letter' submissions expressed opposition to the Bill.
The committee published examples of each type of form letter on the
committee's website, along with all other public submissions received from
organisations and individuals. The submissions published on the committee's
website are listed at Appendix 1 to this report.
The committee did not hold any public hearings for this inquiry due to
its detailed examination and consideration of broad-ranging anti-discrimination
policy matters during the recent inquiry into the Exposure Draft of the Human
Rights and Anti-Discrimination Bill 2012.
The committee thanks those organisations and individuals who made
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