Senator MACKAY (11:08 AM) —We now move on to opposition amendments to the Sex Discrimination Act. Just to clarify the comments made by Senator Campbell, our understanding is that it is appropriate and germane to move these because they are within the purview of the previous act—that is the advice we have received—whereas the amendments that were circulated by Senator Greig were not germane to the issue before the committee.

The CHAIRMAN —Yes, that is correct.

Senator MACKAY —Thank you, Chair, in relation to that. I move opposition amendment No. 7:

(7) Schedule 1, page 11 (after line 9), at the end of the Schedule, add:

Part 3—Amendment of the Sex Discrimination Act 1984

28 Paragraph 3(b)

Omit "or potential pregnancy", substitute ", potential pregnancy or breastfeeding".

29 Subsection 4(1) (after paragraph (b) of the definition of Commonwealth employee )

Insert:

(ba) holds a judicial office;

30 Subsection 4(1) (at the end of the definition of Commonwealth employee )

Add:

; and includes a Senator or member of the House of Representatives.

31 Subsection 4(1) (at the end of the definition of employment )

Add:

and (d) unpaid or voluntary work, including under a scheme established under a law of the Commonwealth.

32 Subsection 4(1)

Insert:

judicial office means:

(a) an office of Justice of the High Court; or

(b) an office of judge of a court created by the Parliament or of a court of a Territory.

33 After section 7

Insert:

7AA Discrimination on the ground of breastfeeding

(1) For the purposes of this Act, a person (the discriminator ) discriminates against a woman (the aggrieved woman ) on the ground that the aggrieved woman is breastfeeding her child if, because the aggrieved woman is breastfeeding her child, the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not breastfeeding her child.

(2) For the purposes of this Act, a person (the discriminator ) discriminates against a woman (the aggrieved woman ) on the ground that the aggrieved woman is breastfeeding the child if the discrimination imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are also breastfeeding their children.

(3) This section has effect subject to sections 7B and 7D.

34 Subsection 10(2)

Omit "or potential pregnancy", substitute ", potential pregnancy or breastfeeding".

35 Subsection 11(2)

Omit "or potential pregnancy", substitute ", potential pregnancy or breastfeeding".

36 Subsection 13(1)

Repeal the subsection.

37 Subsection 14(1)

After "potential pregnancy", insert "or because the person is breastfeeding her child".

38 Subsection 14(2)

After "potential pregnancy", insert "or because the employee is breastfeeding her child".

39 Subsection 15(1)

After "potential pregnancy", insert "or because the person is breastfeeding her child".

40 Subsection 15(2)

After "potential pregnancy", insert "or because the commission agent is breastfeeding her child".

41 Section 16

After "potential pregnancy", insert "or because the contract worker is breastfeeding her child".

42 Subsections 17(1) and (2)

After "potential pregnancy" (wherever occurring), insert "or because the person is breastfeeding her child".

43 Subsection 17(3)

After "potential pregnancy", insert "or because the partner is breastfeeding her child".

44 Section 18

After "potential pregnancy", insert "or because the person is breastfeeding her child".

45 Subsection 19(1)

After "potential pregnancy", insert "or because the person is breastfeeding her child".

46 Subsection 19(2)

After "potential pregnancy", insert "or because the member is breastfeeding her child".

47 Section 20

After "potential pregnancy", insert "or because the person is breastfeeding her child".

48 Subsection 21(1)

After "potential pregnancy", insert "or because the person is breastfeeding her child".

49 Subsection 21(2)

After "potential pregnancy", insert "or because the student is breastfeeding her child".

50 Subsection 22(1)

After "potential pregnancy", insert "or because that other person is breastfeeding her child".

51 Subsections 23(1) and (2)

After "potential pregnancy" (wherever occurring), insert "or because that other person is breastfeeding her child".

52 Subsection 24(1)

After "potential pregnancy", insert "or because that other person is breastfeeding her child".

53 Subsection 25(1)

After "potential pregnancy", insert "or because the person is breastfeeding her child".

54 Subsection 25(2)

After "potential pregnancy", insert "or because the member is breastfeeding her child".

55 Section 26

After "potential pregnancy", insert "or because that other person is breastfeeding her child".

56 Subsection 27(1)

After "potential pregnancy", insert "or because that other person is breastfeeding her child".

57 Subsection 27(1)

Omit "or potentially pregnant", substitute ", potentially pregnant or breastfeeding".

58 After subsection 27(2)

Insert:

(2A) To avoid doubt, it is unlawful for a person to ask another person a question (whether orally or in writing) in connection with the employment or potential employment of that other person, which might reasonably be understood as intended to elicit information about that person's intentions in relation to pregnancy or in relation to meeting that person's family commitments.

59 At the end of subsection 27(2)

Add:

; but it is unlawful to discriminate in a recruitment process on the basis of that information.

60 After section 27

Insert:

27A Pregnancy equity standards

(1) The Minister may formulate standards, to be known as pregnancy equity standards, in relation to the employment of women who are pregnant or potentially pregnant.

(2) Pregnancy equity standards formulated in accordance with this section are to be laid before each House of the Parliament within 15 sitting days of that House after the pregnancy equity standards are formulated and take effect only as provided by the following provisions of this section.

(3) If:

(a) notice of a motion to amend the pregnancy equity standards is given in either House of the Parliament within 15 sitting days after the pregnancy equity standards have been laid before that House; and

(b) the pregnancy equity standards, whether or not as amended, are subsequently approved by that House; and

(c) the other House approves the pregnancy equity standards in the form approved by the first-mentioned House;

the pregnancy equity standards take effect in the form so approved from the day on which that other House approves the pregnancy equity standards in that form.

(4) If no notice of a motion to amend the pregnancy equity standards is given in the House of Representatives or the Senate within 15 sitting days of the particular House after the pregnancy equity standards have been laid before that House, the pregnancy equity standards take effect from the day immediately after that 15th sitting day or, where that day differs in respect of each House, the later of those days.

27B Unlawful to contravene pregnancy equity standards

It is unlawful for a person to contravene a pregnancy equity standard.

27C Division 4 not to apply to pregnancy equity standards

Division 4 does not apply in relation to a pregnancy equity standard.

27D This Part not to apply if person acts in accordance with pregnancy equity standards

If a person acts in accordance with a pregnancy equity standard this Part does not apply to the person's act.

61 Subsections 38(1) and (2)

Omit ", marital status or pregnancy" (wherever occurring), substitute "or marital status".

62 Subsection 38(3)

Omit "or pregnancy".

63 At the end of section 38

Add:

(4) In this section, a reference to a person's sex or marital status does not include a reference to pregnancy or potential pregnancy.

64 Section 39

After "pregnancy", insert "or because the person is breastfeeding her child".

Part 4—Amendment of the Human Rights and Equal Opportunity Commission Act 1986

65 At the end of subsection 46P(2)

Add:

; or (d) if the complaint is about an advertisement in connection with an ar rangement under paragraph 14(1)(a) of the Sex Discrimination Act 1984 —by any person.

66 After paragraph 46PO4(d)

Insert:

(da) where the unlawful discrimination relates to pregnancy or potential pregnancy—an order requiring a respondent to pay to an applicant exemplary or punitive damages;

67 After subsection 46PW(6)

Insert:

(6A) The Sex Discrimination Commissioner may refer an award to the Australian Industrial Relations Commission without a complaint having been lodged with the Commission if the Sex Discrimination Commissioner is of the opinion that the award is discriminatory.

68 Section 48

Omit "or potential pregnancy" (wherever occurring), substitute "potential pregnancy or breastfeeding".

I will briefly speak to each section of this amendment, which adds part 3 to schedule 1. The amendment to item 28, paragraph 3(b), inserts breastfeeding as a ground for unlawful discrimination and picks up recommendation 43 of the HREOC report entitled Pregnant and productive: it's a right not a privilege to work while pregnant . I think Senator Murray made comments about this. The need for breastfeeding to be explicitly recognised was noted by HREOC, which argued in the report:

. . . because it [breastfeeding] is not specifically covered as a separate ground under the Sex Discrimination Act, there is some confusion. HREOC receives a number of inquiries about breastfeeding and discriminatory treatment on that basis, which could generally be covered under other sections of the Sex Discrimination Act such as the prohibition of sex discrimination. To have breastfeeding specified as a separate ground of unlawful discrimination under the SD Act would, however, clarify the situation.

We are making it implicit and explicit and ensuring that the law as it currently stands is clarified with regard to this particular issue.

I move on to item 29 of opposition amendment No. 7 which amends subsection 4(1) of the Sex Discrimination Act. This amendment clarifies that the provisions of the act do in fact cover judicial office holders. As the Pregnant and productive report noted:

The extent of coverage provided by the Sex Discrimination Act for federal appointees, federal judges and federal members of Parliament was raised during the inquiry. Several submissions called for the clarification of the SD Act's coverage and amendment, if necessary, to ensure full coverage of these categories.

A Commonwealth employee is defined to include someone who holds an administrative office but does not extend to someone holding a federal judicial office. It appears that federal judicial office holders are in a relatively vulnerable position therefore. It seems that judges do not appear to be covered in any way by the SD act if they were to suffer unlawful pregnancy or potential pregnancy discrimination. This particular section of the amendment simply ensures that that protection is extended to them.

I move on to item 30 of opposition amendment No. 7, which also amends subsection 4(1). This amendment clarifies that the provisions of the act do in fact cover members of parliament. Again, the Pregnant and productive report noted:

Federal Members of Parliament do not appear to be covered by the Sex Discrimination Act either, as they are elected rather than employed.

The report went on to argue:

The intent of federal and state/territory anti-discrimination legislation is to ensure fair and equal access to all positions and fair non-discriminatory treatment. It is therefore essential that clarification of coverage of the Sex Discrimination Act for federal statutory appointments, federal judicial appointments, federal members of Parliament and their employees is achieved and that all parties of these arrangements are well informed of the situation.

I will move along to the section of the amendment dealing with unpaid or voluntary work. This amendment implements recommendation 8 of the Pregnant and productive report to ensure that the Sex Discrimination Act covers unpaid workers. The report argued as follows:

Unpaid work is increasing in incidence, with some people undertaking official and unofficial internships or work experience in order to obtain the experience needed to enter the workforce or retrain for another profession. Varying in duration and content, these periods of unpaid work can be highly structured programs that can provide employers and workers with considerable benefits.

Voluntary workers also make considerable contribution to the charitable and not-for-profit sector. It is our contention that these workers ought be covered and should be protected to ensure that they do not suffer discrimination on the basis of pregnancy or potential pregnancy.

I will move along to the section of this amendment dealing with judicial office. This section of the amendment follows on from areas already covered and provides a definition of what `judicial office' actually means. So I hope that would be reasonably clear. In relation to the section of our amendment dealing with discrimination on the grounds of breastfeeding, that simply clarifies the issue by including breastfeeding as a ground for unlawful discrimination, which I believe we have canvassed adequately. That applies similarly to items 34 and 35 of amendment No. 7.

Item 36 repeals subsection 13(1). This amendment removes the exemption of employment by an instrumentality of a state. It implements recommendation 10 of the Pregnant and productive report, which noted:

Under section 13 of the SD Act, employees of an instrumentality of a state or territory are not covered by section 14 of the SD Act. However, section 26 concerning the administration of Commonwealth laws and programs, is not subject to this exemption. An `instrumentality of a State' is defined as a body or authority established for a public purpose by a law of a state and includes a technical and further education institution conducted by a state, but does not include any other institution of tertiary education.

Employees not covered by the Sex Discrimination Act include employees in state and territory government departments, state and territory authorities, state and territory public or government schools, TAFEs, state and territory hospitals and local government. In addition, the Sex Discrimination Act may not cover statutory corporations or quasi-autonomous state bodies in the public sector. Most of these exempted employees are protected by state and territory legislation.

What we are doing with this amendment is repealing subsection 13 to provide the same basic level of protection for the rights of all women, whichever state or territory they inhabit. This amendment is part of a concerted effort to achieve a uniform national standard across Australia and removes unnecessary confusion about anti-discrimination laws. Items 35 and 37 are again simply to include breastfeeding as a ground of unlawful discrimination. I will not traverse that ground.

Item 58 inserts after subsection 27(2) a specific provision that prohibits the asking of questions, whether orally or in writing, which might reasonably be understood as intended to elicit information about whether or when a woman intends to become pregnant and/or her intentions in relation to meeting her current or pending family responsibilities. This is in line with recommendation 36 of the Pregnant and productive report. Under the current wording of the Sex Discrimination Act, it is not clear that discriminatory recruitment questioning is not permissible, something which we canvassed earlier. It is not obvious to a casual reader that the act may prohibit questions at interview about pregnancy and potential pregnancy. What we are intending to do here is clarify and confirm the intention of the Sex Discrimination Act. Again, this is leading directly from the Pregnant and productive report.

Item 59 inserts an amendment at the end of subsection 27(2). This is intending to clarify the unlawfulness of discriminating in medical examinations of pregnant women during the recruitment process. This is in line with recommendation 37 of the Pregnant and productive report, which had the view that a reading of section 27 of this act may lead to the inappropriate conclusion that it is not unlawful to discriminate in relation to medical examinations of pregnant women at the recruitment stage. Our intention here is to make it crystal clear that it is unlawful to discriminate during the recruitment process.

Item 60 inserts an amendment after section 27 to empower HREOC to publish enforceable standards in relation to pregnancy and potential pregnancy in the workplace and is in line with recommendation 1 of the Preg nant and productive report. The power to set enforceable guidelines goes beyond the current power of HREOC under the Sex Discrimination Act, and this was again a recommendation of the Pregnant and productive report. The drafting of these amendments is based on the disability model in the Disability Discrimination Act 1992.

Items 61 through 63 remove the exemption for educational institutions established for religious purposes in relation to pregnancy and potential pregnancy. This is in line with recommendation 11 of the Pregnant and productive report. Certain exemptions under the Sex Discrimination Act concern potential conflicts between anti-discrimination and religious beliefs and practices. The current act includes an exemption for the employment of members of staff at educational institutions that are conducted in accordance with doctrines, tenets, beliefs or teaching of a particular religion or creed, insofar as any discrimination is pursuant to those tenets. This exemption applies only to hiring and dismissal practices. It does not allow discrimination during the course of employment. The report states:

These provisions exempt discrimination on the grounds of sex, marital status and pregnancy. They do not actually exempt potential pregnancy from unlawful discrimination. It is unclear whether the ground of sex, which is included in the exemption, would include potential pregnancy in these circumstances.

The Pregnant and productive report noted on page 53 that several submissions argued that the provisions were too broad and interpreted and to result in unfair use to detriment of pregnant women.

The argument behind this amendment was aptly summarised by the Australian Law Reform Commission comment that:

. . . religious freedom and the right to enjoy culture and religion must be balanced with the right to equality and with the principle of non-discrimination. The statutory exemption prefers one right over another and precludes any consideration of where the balance between the rights should be.

It is our view that a woman's right to have children and her right to work are just as important as her right to adhere to a particular religious doctrine.

Finally, item 64 inserts the following amendment to item 39 as follows:

After "pregnancy", insert "or because the person is breastfeeding her child".

That again refers to the breastfeeding provisions which we have canvassed probably more than adequately so far in the debate.