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Thursday, 27 September 2001
Page: 31640


Mr WILLIAMS (Attorney-General) (10:29 AM) —I move:

That the bill be now read a second time.

The Sex Discrimination Amendment Bill (No. 2) 2001 will clarify a number of provisions of the Sex Discrimination Act 1984 that protect pregnant, potentially pregnant and breastfeeding women from discrimination. In doing so, the bill addresses important concerns raised by Human Rights and Equal Opportunity Commission last year in its report Pregnant and productive: it's a right not a privilege to work while pregnant.

The report resulted from the inquiry that I requested the commission to undertake into the rights and responsibilities of employers and employees in relation to pregnancy and work issues. This was the first national inquiry into pregnancy and work issues, aimed at addressing the concerns and protecting the interests of both employees and employers.

In November last year, the government announced its acceptance of the majority of the recommendations made in the report.

Three of these recommendations were directed at addressing confusion as to the meaning and operation of the act. These related to the asking of questions about pregnancy or potential pregnancy, the use of pregnancy related medical information and whether breastfeeding is a ground of sex discrimination. The amendments to the act put forward in this bill will assist in eliminating the confusion. In doing so, it will not only help to prevent discrimination against employees but greatly assist employers to manage their staff and to ensure that they meet their legal obligations.

Proving that a woman was not offered a position because she told her prospective employer that she was pregnant or planning a pregnancy can be difficult. The report identified that the current provisions of the act are unclear about whether such information can be requested in the first place. This can lead to confusion for employers seeking to engage new staff and for potential employees. The amendments to section 27 of the act will clarify that it is unlawful to request information—for example, during a job interview or a recruitment process—that could be used to unlawfully discriminate against a woman— for example, by refusing to employ a woman because she is pregnant or may become pregnant. Such questions can marginalise women and may be detrimental to their performance in job interviews. This amendment will clarify that asking such questions is unlawful. Importantly, the clarification ensures that employers will better understand their obligations and avoid unintentionally breaching the act.

Currently, the act provides an exception to the general prohibition on requesting information about pregnancy or potential pregnancy, where medical information concerning the pregnancy is requested. The report identified that without clarification the current provision may lead to the inappropriate conclusion that it is not unlawful to discriminate in relation to medical examinations of pregnant employees during recruitment. The addition of a note at the end of section 27(2) clarifies that information about pregnancy or potential pregnancy may be sought only for legitimate reasons, such as for occupational health and safety purposes. It may not be used by an employer to discriminate unlawfully against a woman in contravention of other provisions of the act.

The report also noted that there is some confusion over whether discrimination on the grounds of breastfeeding is covered by the act. The government considers that discrimination on the grounds of breastfeeding is prohibited by the act. However, to make this clear, the bill amends the definition of `sex discrimination' in section 5 of the act to make it clear that breastfeeding is a characteristic that pertains generally to women, removing any doubt that discrimination against a woman on the basis that she is breastfeeding is unlawful. In making these amendments, the bill does not expand the operation of the act but greatly improves, simplifies and clarifies its operation.

Once again, practical and concrete steps are being taken by this government to remove sex based workplace discrimination and to improve the lives of working women, while assisting employers to understand laws that impact upon their business in important ways. Of course, the provisions apply not only in the workplace but also to other areas of public life where the act applies, such as when applying for rental accommodation, purchasing goods or services or applying for a bank loan. These amendments clarify the operation of the act in these important areas.

The bill was prepared in consultation with the Human Rights and Equal Opportunity Commission, as well as with the Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions.

The bill will have little, if any, financial impact.

Legislation is only part of the answer in preventing unlawful discrimination. An important aspect of eliminating discrimination rests with employers and employees themselves in individual workplaces. There are many different employment situations which may require different approaches to address these issues. What may work well for one woman or one business may not necessarily work well for another. Employers and employees are likely to know best what can and cannot work for their particular situation. Cooperation can go a long way to ensuring that non-discriminatory arrangements are developed between employers and employees that meet the particular needs of a business or employee.

In addition to these amendments, the government is working to raise awareness of pregnancy and work issues, to ensure information is available to all workplace participants about their rights and responsibilities. This is fundamental to achieving cultural change and lasting improvements in equal opportunity for women in employment and other areas of public life.

The bill, together with the other initiatives arising from the government response to the report, will go a long way to redressing remaining discrimination against women— especially pregnant, potentially pregnant and breastfeeding women. I commend the bill to the House, and I present the explanatory memorandum.

Debate (on motion by Mr Laurie Ferguson) adjourned.