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Sex and Age Discrimination Legislation Amendment Bill 2011

Schedule 1 Amendments relating to sex discrimination

Part 1 Amendment of the Sex Discrimination Act 1984

Division 1—Amendments

Sex Discrimination Act 1984

1  Title

After “ potential pregnancy ”, insert “ , breastfeeding ”.

2  Preamble

After “potential pregnancy” (wherever occurring), insert “, breastfeeding or family responsibilities”.

3  Paragraph 3(a)

After “Women”, insert “and to provisions of other relevant international instruments”.

4  Paragraph 3(b)

After “potential pregnancy”, insert “or breastfeeding”.

5  Paragraph 3(ba)

Omit “involving dismissal of employees on the ground of family responsibilities”, substitute “on the ground of family responsibilities in the area of work”.

6  Subsection 4(1)

Insert:

breastfeeding has a meaning affected by subsections 7AA(3) and (4).

7  Subsection 4(1) (definition of Convention )

Repeal the definition.

8  Subsection 4(1)

Insert:

disability has the same meaning as in the Disability Discrimination Act 1992 .

9  Subsection 4(1)

Insert:

official record of a person’s sex means:

                     (a)  a record of a person’s sex in a register of births, deaths and marriages (however described); or

                     (b)  a document (however described), issued under a law of a State or Territory, the purpose of which is to identify or acknowledge a person’s sex.

10  Subsection 4(1)

Insert:

relevant international instrument means:

                     (a)  the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9) (a copy of the English text of which is set out in the Schedule); or

                     (b)  the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); or

                     (c)  the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); or

                     (d)  the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); or

                     (e)  ILO Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value done at Geneva on 29 June 1951 ([1975] ATS 45); or

                      (f)  ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation done at Geneva on 25 June 1958 ([1974] ATS 12); or

                     (g)  ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities done at Geneva on 23 June 1981 ([1991] ATS 7); or

                     (h)  ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer done at Geneva on 22 June 1982 ([1994] ATS 4).

Note:          In 2010, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

11  Subsection 4A(1)

Omit “an employee”, substitute “a person”.

12  Subsection 4A(1)

Omit “the employee” (wherever occurring), substitute “the person”.

13  Subsection 4A(2) (definition of dependent child )

Omit “the employee”, substitute “the person”.

14  Subsection 4A(2) (definition of immediate family member )

Omit “the employee” (wherever occurring), substitute “the person”.

15  Subsection 5(1A)

Repeal the subsection.

16  Subsection 7(2)

Omit “also”.

17  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 of the aggrieved woman’s breastfeeding if, by reason of:

                     (a)  the aggrieved woman’s breastfeeding; or

                     (b)  a characteristic that appertains generally to women who are breastfeeding; or

                     (c)  a characteristic that is generally imputed to women who are breastfeeding;

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.

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

             (3)  To avoid doubt, a reference in this Act to breastfeeding includes the act of expressing milk.

             (4)  To avoid doubt, a reference in this Act to breastfeeding includes:

                     (a)  an act of breastfeeding; and

                     (b)  breastfeeding over a period of time.

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

18  Section 7A

Repeal the section, substitute:

7A   Discrimination on the ground of family responsibilities

             (1)  For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person’s family responsibilities if, by reason of:

                     (a)  the family responsibilities of the aggrieved person; or

                     (b)  a characteristic that appertains generally to persons with family responsibilities; or

                     (c)  a characteristic that is generally imputed to persons with family responsibilities;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person without family responsibilities.

             (2)  For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person’s family responsibilities if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons with family responsibilities.

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

19  Subsection 7B(1)

Omit “or 7(2)”, substitute “, 7(2), 7AA(2) or 7A(2)”.

20  At the end of subsection 7D(1)

Add:

               ; or (e)  women who are breastfeeding and people who are not breastfeeding; or

                      (f)  people with family responsibilities and people without family responsibilities.

21  Subsection 7D(2)

Omit “or 7”, substitute “, 7, 7AA or 7A”.

22  Section 8

Omit “or 7(1) or section 7A”, substitute “, 7(1), 7AA(1) or 7A(1)”.

23  Subsection 9(9)

After “done by” (wherever occurring), insert “or in relation to”.

24  Subsections 9(10) and (10A)

Repeal the subsections, substitute:

           (10)  The prescribed provisions of Part II, and the prescribed provisions of Division 3 of Part II, have effect to the extent that the provisions give effect to a relevant international instrument.

25  Subsection 9(11)

After “or by”, insert “or in relation to”.

26  Subsection 9(12)

After “done, by”, insert “or in relation to”.

27  Subsection 9(13)

After “or by”, insert “or in relation to”.

28  Subsection 9(14)

After “done, by”, insert “or in relation to”.

29  At the end of section 9

Add:

           (21)  The prescribed provisions of Division 3 of Part II have effect in relation to acts done using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).

30  Subsection 10(1)

Omit “or (10A)”.

31  Subsection 10(2)

Omit “or discrimination on the ground of pregnancy or potential pregnancy”, substitute “, discrimination on the ground of pregnancy or potential pregnancy, discrimination on the ground of breastfeeding or discrimination on the ground of family responsibilities”.

32  Subsection 11(2)

Omit “or discrimination on the ground of pregnancy or potential pregnancy”, substitute “, discrimination on the ground of pregnancy or potential pregnancy, discrimination on the ground of breastfeeding or discrimination on the ground of family responsibilities”.

33  Subsection 11(3)

Omit “the Convention”, substitute “a relevant international instrument”.

Note:       The heading to section 11 is altered by omitting “ Convention ” and substituting “ relevant international instruments ”.

34  Paragraph 11(4)(a)

Omit “the Convention”, substitute “a relevant international instrument”.

35  Paragraph 11(5)(a)

Omit “the Convention”, substitute “a relevant international instrument”.

36  Section 11A

Repeal the section.

37  Subsections 14(1) and (2)

After “potential pregnancy”, insert “, breastfeeding or family responsibilities”.

38  Subsection 14(3A)

Repeal the subsection.

39  Subsections 15(1) and (2)

After “potential pregnancy”, insert “, breastfeeding or family responsibilities”.

40  Section 16

After “potential pregnancy”, insert “, breastfeeding or family responsibilities”.

41  Subsections 17(1), (2) and (3)

After “potential pregnancy”, insert “, breastfeeding or family responsibilities”.

42  Section 18

After “potential pregnancy”, insert “, breastfeeding or family responsibilities”.

43  Subsections 19(1) and (2)

After “potential pregnancy”, insert “, breastfeeding or family responsibilities”.

44  Section 20

After “potential pregnancy”, insert “, breastfeeding or family responsibilities”.

45  Subsections 21(1) and (2)

After “potential pregnancy”, insert “, or breastfeeding”.

46  Subsection 22(1)

After “potential pregnancy”, insert “, or breastfeeding”.

47  Subsections 23(1) and (2)

After “potential pregnancy”, insert “, or breastfeeding”.

48  Subsection 24(1)

After “potential pregnancy”, insert “, or breastfeeding”.

49  Subsections 25(1) and (2)

After “potential pregnancy”, insert “, or breastfeeding”.

50  Subsection 26(1)

After “potential pregnancy,”, insert “or breastfeeding,”.

51  Paragraph 27(1)(b)

After “potential pregnancy”, insert “, breastfeeding or family responsibilities”.

52  After subparagraph 27(1)(c)(iii)

Insert:

                       or (iv)  who are not breastfeeding; or

                             (v)  without family responsibilities;

53  Subsection 28A(1)

After “anticipated”, insert “the possibility”.

54  After subsection 28A(1)

Insert:

          (1A)  For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:

                     (a)  the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person harassed;

                     (b)  the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

                     (c)  any disability of the person harassed;

                     (d)  any other relevant circumstance.

55  Subsection 28B(6)

After “workplace of”, insert “either or”.

56  Paragraph 28F(2)(a)

Omit “an adult”, substitute “a”.

57  After subsection 28F(2)

Insert:

          (2A)  It is unlawful for a person (the first person ) who is a member of the staff of an educational institution (the first educational institution ) to sexually harass a person who is a student at another educational institution if the sexual harassment occurs in connection with the first person being a member of staff of the first educational institution.

          (2B)  It is unlawful for a person (the first person ) who is an adult student at an educational institution (the first educational institution ) to sexually harass:

                     (a)  a person who is a student at another educational institution; or

                     (b)  a member of the staff of another educational institution;

if the sexual harassment occurs in connection with the first person being a student at the first educational institution.

58  Section 28G

Omit “It”, substitute “(1) It”.

Note:       The heading to section 28G is altered by omitting “ Provision of goods ” and substituting “ Goods ”.

59  At the end of section 28G

Add:

             (2)  It is unlawful for a person to sexually harass another person in the course of seeking, or receiving, goods, services or facilities from that other person.

60  Section 31

Omit “or childbirth”, substitute “, childbirth or breastfeeding”.

Note:       The heading to section 31 is altered by omitting “ or childbirth ” and substituting “ , childbirth or breastfeeding

61  Section 39

Omit “or pregnancy”, substitute “, pregnancy, breastfeeding or family responsibilities”.

62  After subsection 40(4)

Insert:

             (5)  Nothing in Division 2 renders it unlawful to refuse to make, issue or alter an official record of a person’s sex if a law of a State or Territory requires the refusal because the person is married.

63  Paragraph 41A(1)(a)

Omit “or marital status”, substitute “, marital status or family responsibilities”.

64  Subparagraph 41A(1)(b)(iii)

Omit “or marital status”, substitute “, marital status or family responsibilities”.

65  Subsection 41A(2)

Repeal the subsection, substitute:

             (2)  For the purposes of this section:

                     (a)  discrimination on the ground of a person’s sex is taken to be indirect if paragraph 5(1)(b) or (c) or subsection 5(2) applies to the discrimination; and

                     (b)  discrimination on the ground of a person’s marital status is taken to be indirect if paragraph 6(1)(b) or (c) or subsection 6(2) applies to the discrimination; and

                     (c)  discrimination on the ground of a person’s family responsibilities is taken to be indirect if paragraph 7A(1)(b) or (c) or subsection 7A(2) applies to the discrimination.

66  Paragraph 41B(3)(a)

Omit “or marital status”, substitute “, marital status or family responsibilities”.

67  Subparagraph 41B(4)(b)(i)

Omit “or marital status”, substitute “, marital status or family responsibilities”.

68  Paragraphs 48(1)(g), (ga) and (gb)

After “potential pregnancy”, insert “, breastfeeding or family responsibilities”.

Division 2—Application of amendments

69  Application of amendments

The amendments of the Sex Discrimination Act 1984 made by this Part apply in relation to acts or omissions occurring after the commencement of this Part.



 

Part 2 Consequential amendment

Equal Opportunity for Women in the Workplace Act 1999

70  Subsection 3(1) (definition of discrimination )

Omit “or 7”, substitute “, 7, 7AA or 7A”.