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Wednesday, 10 September 2003
Page: 19732


Mr WILLIAMS (Attorney-General) (4:56 PM) —I move:

That the amendments be disagreed to.

I would like to make some comments on the amendments passed in the Senate to the Sex Discrimination Amendment (Pregnancy and Work) Bill 2002. In the Senate the opposition, the Democrats and the Greens introduced numerous cumbersome, complex and unnecessary amendments to the bill, claiming that they more fully implement the recommendations of the Human Rights and Equal Opportunity Commission report, Pregnant and productive: it's a right not a privilege to work while pregnant. The main aims of the recommendations in the HROEC report were to eliminate potential confusion about the scope and operation of the Sex Discrimination Act and to improve its clarity.

The government's bill fulfils its commitment to address areas of confusion regarding the scope and operation of the Sex Discrimination Act. The bill would clarify a number of provisions of the Sex Discrimination Act that protect women from discrimination on the grounds of pregnancy, potential pregnancy or breastfeeding. The government's bill gives effect to the main recommendations in the HROEC's report by adopting a simple approach which clarifies rather than alters existing rights and obligations.

The amendments made by the Senate are cumbersome. They would introduce new terms, new provisions and a complicated regime of pregnancy equity standards. The amendments to the act put forward by the government's bill would clarify the definition of sex discrimination by making it clear that breastfeeding is a characteristic that pertains generally to women and consequently can be a ground of sex discrimination under the act. The cumbersome approach which was taken in the Senate of making some 28 separate amendments is unnecessary.

The government's bill would also clarify the operation of the provisions of the act relating to the asking of questions about pregnancy or potential pregnancy during job interviews and the use of pregnancy related medical information. The amendments pass-ed by the Senate are less comprehensive and less clear. The government's amendments to the act would clarify the obligations of employers but would avoid imposing onerous burdens on employers which might operate as disincentives to employ women. Amendments to the government's bill passed by the Senate are unnecessary and not as effective.

The government's response to the report, Pregnant and productive: it's a right not a privilege to work while pregnant, accepted most of the recommendations of the report. It is worth noting that many of HREOC's recommendations focused upon education, guidance and awareness-raising. The government has acted to support the appropriate education of employers and employees and the dissemination of quality information on pregnancy and work issues. In particular, the government supported the development and distribution of pregnancy guidelines by HREOC, released in April 2001, and the development and distribution of a booklet entitled Working Your Way Through Pregnancy, released in April 2002, to raise awareness about rights and responsibilities concerning pregnancy and potential pregnancy issues in the workplace. The booklet provides information about a number of pregnancy and work issues, including harassment, antidiscrimination and workplace relations laws, and access to parental leave. The booklet is intended to complement the pregnancy guidelines that were released by HREOC in 2001.

The government strongly believes an educative approach to sex discrimination issues is more effective than a legislative response or a heavy-handed or punitive approach. It is for this reason that the government declined to accept particular recommendations in the Pregnant and productive report such as those that would amend the Sex Discrimination Act to empower HREOC to publish enforceable standards in relation to pregnancy and potential pregnancy, those that would enable the award of punitive damages in sex discrimination cases and those that would provide standing for persons not directly affected to lodge complaints about advertisements. It is for this reason that the government rejects the amendments relating to these issues which were made to the bill by the Senate.

The Senate has also made amendments to the bill which are unnecessary or inappropriate for the purposes of the bill. Some of these are adequately covered by other legislation. For example, the Senate passed an amendment to allow the Sex Discrimination Commissioner to refer discriminatory awards or agreements to the Australian Industrial Relations Commission of her own initiative without requiring a written complaint. The government sees no need for further provision in this area. There is a variety of provisions in the Workplace Relations Act 1996 and the Human Rights and Equal Opportunity Commission Act 1986 that provide avenues for the AIRC to remedy or vary any discriminatory provisions in awards or agreements. The government considers that these protections for women are comprehensive and consequently does not accept this HREOC recommendation and does not accept the Senate amendments.

Likewise, the removal of the exemption from the act's operation of state instrumentalities is unnecessary as employees of most state and territory instrumentalities enjoy similar protections under state legislation. There are also complex constitutional implications. Other amendments are otherwise inappropriate. (Extension of time granted) The Senate passed a motion to include as a family responsibility an intention to adopt or the process of adoption. Prospective adoption raises broader policy questions than those considered in the Pregnant and productive report. It is an issue for both men and women and is primarily a state matter.

The Senate also passed an amendment to extend the operation of the act to cover Work for the Dole participants and volunteers. The government does not support this extension of the coverage of the act. Unpaid workers are not expressly excluded from the act. They may be covered if an employment relationship exists or if the discrimination is in the provision of goods, services and facilities. Likewise, the government considers the appropriate balance between the right to equal treatment under the Sex Discrimination Act and the right to freedom of religious practice is achieved by the current exemption for educational institutions established for religious purposes. The government is buoy-ed in its belief by the fact that the HREOC report on freedom of religion and belief supports the retention of the exemption.

The government's bill would give effect to the principal recommendations in HREOC's report by adopting a simple approach which clarifies rather than alters existing rights and obligations. The Australian government is committed to developing and implementing policy to ensure equality of opportunity for women and will continue to work on improving opportunities and choice for Australian women in the workplace.