KEY PROVISIONS OF THE BILL
The Bill contains one Schedule, consisting of three Parts. Part 1 of
Schedule 1 of the Bill deals with amendments to the SDA.
Definitions of key terms
Items 4, 6, 7, 9, 12 and 13 of Schedule 1 would insert new definitions
in subsection 4(1) of the SDA, including definitions of the new protected
grounds introduced in the Bill.
Item 6 of Schedule 1 provides for a definition of 'gender identity' for
the purposes of the SDA, as follows:
gender identity means the gender-related
identity, appearance or mannerisms or other gender-related characteristics of a
person (whether by way of medical intervention or not), with or without regard
to the person's designated sex at birth.
The EM notes that the definition adopted in the Bill is based on the
definition use in the Tasmanian Anti-Discrimination Amendment Bill 2012:
This definition provides maximum protection for gender
diverse people. It includes the way a person expresses or presents their gender
and recognises that a person may not identify as either male or female. This
acknowledges that it is often the discord between a person's gender
presentation and their identity which is the cause of the discrimination.
Item 7 of Schedule 1 provides for a definition of 'intersex status':
intersex status means the status of having
physical, hormonal or genetic features that are:
(i) neither wholly female nor wholly
(ii) a combination of female and male;
(iii) neither female nor male.
This definition is also based on the definition used in the Tasmanian
Anti‑Discrimination Bill 2012.
According to the EM:
The definition recognises that being intersex is a biological
condition, not a gender identity. It does not require a person who is intersex
to identify as either male or female in order to access protections under the
SDA. The definition is not intended to create a third sex in any sense. It
does, however, recognise that sex is not a binary concept and that an intersex
person may have the biological attributes of both sexes, or lack some of the
biological attributes considered necessary to be defined as one or other sex.
Marital or relationship status
Items 9-10 of Schedule 1 would repeal the current definition of 'marital
status' and replace it with a new definition of 'marital or relationship
status'. This definition incorporates the previous components of the definition
of 'marital status'; and includes new additional paragraphs covering de facto
partners, to include both same-sex and opposite-sex de facto couples.
Item 12 of Schedule 1 provides for a definition of the term 'sexual
orientation' as follows:
sexual orientation means a person's sexual
(a) persons of the same sex; or
(b) persons of a different sex; or
persons of the same sex and
persons of a different sex.
The EM states:
The definition does not use labels, such as homosexuality,
lesbianism, bisexuality or heterosexuality, which some people find offensive
and can be inaccurate. However, it is intended that the definition covers each
of these sexual orientations. The definition, along with other provisions in the
Bill, uses the terminology 'different sex', instead of 'opposite sex' as is
currently used in the SDA. This is consistent with the protection of gender
identity and intersex status, which recognises that a person may be, or
identify as, neither male nor female.
The EM also notes that, while the Bill introduces discrimination
protection on the basis of 'sexual orientation' for the first time in
Commonwealth law, 'sexual orientation' is already protected in all other
Australian state and territory anti‑discrimination legislation.
Definition of discrimination for the proposed new grounds
Rather than provide a unified definition of discriminatory behaviour,
the SDA sets out separate provisions detailing what constitutes discrimination
for each of the protected grounds. There are also separate provisions
prohibiting sexual harassment.
Item 17 of Schedule 1 would insert three new tests for discrimination
into the SDA, for the new protected grounds of 'sexual orientation' (proposed
new section 5A), 'gender identity' (proposed new section 5B) and 'intersex
status' (proposed new section 5C) respectively. Each of these proposed new
sections is framed in identical terms, modelled on existing section 6 of the
SDA (which provides the definition of discrimination on the ground of marital
Each of these proposed new sections contains tests both for 'direct' and
'indirect' discrimination. The provisions relating to direct discrimination provide
that a person (the discriminator) discriminates against another person (the
aggrieved person) if, on the basis of the aggrieved person's protected
characteristic, they treat that person less favourably than they would treat
someone without that protected ground in the same circumstances.
The EM gives possible examples of this kind of discrimination, including that
it would likely constitute discrimination if:
- a hotel refused accommodation to a person on the basis of their
an employer refused to employ a transgender man on the basis of
his gender identity; or
- a bank teller refused to serve an intersex person because the
person's biological characteristics made the bank teller uncomfortable.
The proposed new tests for 'indirect' discrimination provide that the
discriminator commits unlawful discrimination against an aggrieved person if
the discriminator imposes a condition, requirement or practice that has, or is
likely to have, the effect of disadvantaging persons with the particular
Areas of public life covered
The SDA prohibits discrimination and sexual harassment in specified
areas of public life.
The Bill proposes to make discrimination on the grounds of 'sexual
orientation', 'gender identity', 'intersex status' and 'marital or relationship
status' unlawful in each of the areas of public life currently covered under
the SDA in relation to the existing protected grounds.
Items 27 and 29-34 of Schedule 1 seek to amend sections 14-20 of the SDA
in order to make discrimination on the new protected grounds unlawful in
Discrimination on the basis of the new protected grounds would also be made
unlawful in the areas of: education;
the provision of goods, services and facilities;
and the administration of Commonwealth laws and programs.
Exemptions to discrimination prohibitions
The SDA contains several exemptions from discrimination prohibitions.
The Bill would extend several of these exemptions to cover some or all of
the new protected grounds included in the Bill. The Bill also seeks to
introduce two new exemptions in relation to the interaction between the SDA and
other Commonwealth, and state and territory laws.
Sections 37-38 of the SDA deal with exemptions for religious
Section 37 provides that certain activities conducted by religious
bodies do not constitute unlawful discrimination for the purposes of the SDA.
These activities include: the ordination or appointment of ministers; the
selection or appointment of persons to perform religious duties or functions;
and any other act or practice of a religious body that 'conforms to the
doctrines, tenets or beliefs of that religion or is necessary to avoid injury
to the religious susceptibilities of adherents of that religion'.
The exemption in section 37 currently applies to all grounds protected
under the SDA, and will encompass the new grounds introduced by the Bill.
Section 38 of the SDA contains an exemption for religious educational
institutions, which provides that it is not unlawful for such institutions to
discriminate in matters of employment (subsections 38(1)-(2)), or the provision
of education and training (subsection 38(3)), if the discrimination is
undertaken 'in good faith in order to avoid injury to the religious
susceptibilities of adherents of that religion or creed'.
The exemption in section 38 currently applies to the protected grounds
of sex, marital status or pregnancy in relation to employment, and sex or
marital status in relation to the provision of education or training. Under
item 50 of Schedule 1 of the Bill (proposed new subsections 38(1)-(3)),
the current exemption in section 38 will also apply to the new grounds of
'sexual orientation', 'gender identity' and 'marital or relationship status'.
It will not apply to the new attribute of 'intersex status'. The EM notes:
During consultation, religious bodies raised doctrinal
concerns about the grounds of sexual orientation and gender identity. However,
no such concerns were raised in relation to 'intersex status'. As a physical
characteristic, intersex status is seen as conceptually different. No religious
organisation identified how intersex status could cause injury to the religious
susceptibilities of its adherents.
Item 51 of Schedule 1 (proposed new section 39) extends the current
exemption in relation to voluntary bodies to the new protected grounds introduced
by the Bill. Section 39 of the SDA exempts voluntary bodies from discrimination
prohibitions in relation to admission into membership and the provision of
benefits, facilities or services to members of such bodies.
Acts done under statutory authority
Section 40 of the SDA provides for exemptions for acts done in
accordance with specified statutory authority, Commonwealth Acts and other
statutory schemes. Item 52 of Schedule 1 (proposed new subsections 40(2A)
and 40(2B)) would introduce two new exemptions into this section of the SDA.
The first new exemption (proposed new subsection 40(2A)) provides that
prohibitions against discrimination on the basis of sexual orientation, gender
identity and intersex status do not apply to anything done by a person in
direct compliance with the Marriage Act 1961 (Cth). The EM states:
The purpose of this provision is to make clear that
introducing protections against discrimination on these grounds does not affect
current Government policy on same-sex marriage. It will apply to persons such
as Commonwealth-registered marriage celebrants, as well as statutory bodies
such as the registers of births, deaths and marriages.
The second new exemption (proposed new subsection 40(2B)) provides that
prohibitions against discrimination on the basis of sexual orientation, gender
identity and intersex status do not apply to any acts done by a person in
direct compliance with a Commonwealth, or state or territory law prescribed by
regulations. According to the EM, this provision reflects an existing exemption
in the Disability Discrimination Act 1992 (Cth), and 'recognises that
there may be laws which appropriately make distinctions on [the grounds of
sexual orientation, gender identity or intersex status]'.
Further, the EM states that initial consideration of laws which may be
prescribed under this exemption will occur prior to the commencement of the
Bill, in consultation with state and territory governments.
Section 42 of the SDA provides that it is not unlawful discrimination to
exclude persons of one sex from participation in any competitive sporting
activity in which the strength, stamina or physique of the competitors is
relevant. Item 59 of Schedule 1 (proposed new subsection 42(1)) would extend
this exemption to the protected grounds of gender identity and intersex status.
The EM states:
It is legitimate to recognise that biological differences
between men and women are relevant to competitive sporting activities. Limiting
this exemption to situations in which strength, stamina or physique are
relevant is a proportionate means of achieving this objective...
This amendment is necessary to preserve existing policy in
relation to this exemption, restricting competitive sporting events to people
who can effectively compete.
Exemption relating to data
Item 60 of Schedule 1 introduces a new exemption relating to requests
for information. This exemption provides that it is lawful to request
information, or keep records, that do not allow for identification of
individuals as being neither male nor female (that is, allowing
individuals only to be identified as 'male' or 'female'). The EM states:
The intention of these exemptions is to ensure that the new
protections for gender identity and intersex status do not require a person or
organisation to provide an alternative to male and female in any data
collection or personal record. It will ensure that there is no requirement to
amend forms as part of the new protections for gender identity and intersex
status, which may be an onerous exercise for organisations.
The need for these exemptions may be reconsidered in the
future, if organisations (both government and private sector) have revised
their data collection and record keeping practices to allow for a person to
identify as neither male nor female.
Amendments to other Acts
Part 2 of Schedule 1 of the Bill provides for two minor amendments to
the Migration Act 1958 (Cth) (Migration Act), in order to update
references to 'marital status' in section 507 of the Migration Act to
'marital or relationship status', consistent with the re-naming of this ground
in the Bill.
Proposed government amendments
On 30 May 2013 the Attorney-General, the Hon Mark Dreyfus QC MP,
announced that the government had circulated proposed amendments to the Bill,
to be introduced in the Senate.
The proposed amendments would provide for a limitation on religious exemptions
in the SDA in relation to Commonwealth-funded aged care provisions, and would
also update terminology in several other Commonwealth Acts to bring them into
line with the language used in the Bill.
Limitation on religious exemptions
for Commonwealth-funded aged care services
The proposed amendments would insert new items 3A and 39A into
Schedule 1 of the Bill, in order to introduce a limitation on the
exemption in section 37 of the SDA in respect of religious organisations
providing Commonwealth‑funded aged care services.
This means that faith-based aged care providers would not be able to
discriminate on any grounds protected by the SDA in the provision of aged care
services, except in matters relating to employment by those organisations. In
relation to these proposed amendments, the Minister for Ageing, the Hon
Mark Butler MP, stated:
While most aged care service providers are accepting of
residents regardless of sexual orientation, gender identity or intersex status,
we think there should be legal protection that ensures such discrimination
cannot occur...When such services are provided with tax payer dollars, it is not
appropriate for providers to discriminate in the provision of those services.
This measure was previously included in the Exposure Draft of the Human
Rights and Anti-Discrimination Bill 2012.
Updating terminology in other
The proposed government amendments also seek to insert new items into
Part 2 of Schedule 1 of the Bill, in order to replace references to
'sexual preference' in the Broadcasting Services Act 1992, the Fair
Work Act 2009, and the Fair Work (Registered Organisations) Act 2009
with the term 'sexual orientation'.
This would make the terminology relating to sexual orientation consistent
across the SDA and these other Commonwealth Acts; it would not, however,
include 'gender identity' or 'intersex status' in those other Acts.
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