On 24 May 2011, the Federal House of Representatives voted up the Sex and Age Discrimination Legislation Amendment Bill 2010.
The Bill which was voted up was a somewhat watered down version of the Bill that the Government originally presented to Parliament, because the Government was forced to accept a number of Opposition amendments to get the Bill through.
There are some significant changes to both the Sex Discrimination Act 1984 (SDA) and the Age Discrimination Act 2004 (ADA).
Breastfeeding as a separate ground of discrimination
The first change will be the establishment of breastfeeding as a separate ground of discrimination. Previously, discrimination on the grounds of breastfeeding was covered on the basis that breastfeeding was a characteristic which appertained generally to women. Protection from discrimination on the grounds of breastfeeding will be strengthened as a result of the amendments.The protections will extend across a broad range of situations, including employment and prospective employment.
Women who are breastfeeding will be given protection against both direct and indirect forms of discrimination. The Bill makes it clear that “breastfeeding” will include expressing milk, and both a single act of breastfeeding and breastfeeding over a period of time.
Extended protection against discrimination on grounds of family responsibilities
The Bill also extends the protections against discrimination on the grounds of family responsibilities. Employees were previously only protected from discrimination on these grounds in relation to termination of their employment, however the protections will now extend across all areas of work.
These protections will only apply to direct discrimination. The Government had hoped to extend the protections to cover indirect discrimination, but the removal of this was one of the Opposition amendments that the Government was forced to accept in order to get the Bill through.
Extended protection against sexual harassment
The protections against sexual harassment will also be broadened. The test for sexual harassment will be modified so that the person making a claim need only show that a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated by the conduct. The previous test required a reasonable person to anticipate that the person would be offended, humiliated or intimidated by the conduct.
The protections will also be further extended so that, in relation to sexual harassment in the workplace, the workplace need only be the workplace of one of the participants. Therefore, for example, employees will now be protected from sexual harassment by customers or clients, and vice versa.
Equality of protection for men and women
The Bill also makes changes which will improve the equality of the protections under the SDA for both men and women. Previously, the SDA was underpinned by the Convention on the Elimination of All Forms of Discrimination Against Women, which resulted in the SDA providing greater protections for women than for men.
The Bill amends the SDA so that it is underpinned by a broader range of international conventions which include protections against discrimination for men as well as women. This equality of protection will extend throughout the SDA as far as possible.
Creation of the position of Age Discrimination Commissioner
The position of Age Discrimination Commissioner is established by the Bill. The creation of this position will mirror similar positions which already exist under the sex, disability and racial discrimination legislation.
The Age Discrimination Commissioner will be an advocate for the rights of people, particularly older Australians, who experience age discrimination.