Sex Discrimination Amendment (Pregnancy and Work) Act 2003
No. 103, 2003
An Act to amend the Sex Discrimination Act 1984, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Sex Discrimination Act 1984
Sex Discrimination Amendment (Pregnancy and Work) Act 2003
No. 103, 2003
An Act to amend the Sex Discrimination Act 1984, and for related purposes
[Assented to 15 October 2003]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Sex Discrimination Amendment (Pregnancy and Work) Act 2003.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent | 15 October 2003 |
2. Schedule 1 | The 28th day after the day on which this Act receives the Royal Assent | 12 November 2003 |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Sex Discrimination Act 1984
1 After subsection 5(1)
Insert:
(1A) To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.
2 Subsection 27(1)
Repeal the subsection, substitute:
(1) It is unlawful for a person (the first person) to request or require another person (the other person) to provide information (whether by way of completing a form or otherwise) if:
(a) the information is requested or required in connection with, or for the purposes of, the first person doing a particular act; and
(b) under Division 1 or this Division, it would be unlawful in particular circumstances for the first person, in doing that act, to discriminate against the other person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy; and
(c) persons:
(i) of the opposite sex; or
(ii) of a different marital status; or
(iii) who are not pregnant or potentially pregnant;
as the case requires, would not be requested or required to provide the information in circumstances that are the same or not materially different.
Example: Under section 14 of Division 1, it is unlawful to determine not to offer employment to a woman because she is pregnant or might become pregnant. Under this section, it is therefore also unlawful to ask a woman during a job interview whether she is pregnant or intends to become pregnant if that information is requested in connection with determining whether to offer her employment.
Note: The heading to section 27 is replaced by the heading “Requests for information”.
3 At the end of subsection 27(2)
Add:
Note: Information obtained under this subsection may be used provided the use is not for the purpose of a discriminatory act that is unlawful under any other section of this Act. For example, an employer may use such information for a purpose connected with occupational health and safety, but only if doing so does not amount to unlawful discrimination.
[Minister’s second reading speech made in—
House of Representatives on 14 February 2002
Senate on 3 March 2003]
Overview
The Sex Discrimination Amendment (Pregnancy and Work) Act 2003 was enacted by the Parliament of Australia to address the gap in protections against discrimination in the workplace based on pregnancy and potential pregnancy. This amendment was intended to ensure that women are not disadvantaged due to their pregnancy status or potential pregnancy in the employment context. The Act seeks to reinforce the prohibition of discrimination based on sex, marital status, pregnancy, or potential pregnancy by preventing employers from requesting information that could lead to discriminatory practices. The policy objective is to foster a fair and equitable workplace environment that does not penalise individuals based on their reproductive status.
Scope and Application
The Sex Discrimination Amendment (Pregnancy and Work) Act 2003 amends the Sex Discrimination Act 1984 to further protect individuals from discrimination on the grounds of sex, marital status, pregnancy, or potential pregnancy in the workplace. This Act applies to all individuals and entities within Australia, including employers, employees, and prospective employees, as well as any other parties who may be involved in employment-related transactions or conduct. The amendments extend to all states and territories within Australia, ensuring a consistent application of anti-discrimination laws across the nation. Notably, the Act includes breastfeeding as a characteristic that pertains generally to women, thereby reinforcing the protections afforded to women in the workplace. The Act's provisions commenced on 15 October 2003, with further amendments taking effect on 12 November 2003. Although the Act provides broad protections, it does not explicitly exclude or exempt any particular conduct or entities from its scope, ensuring comprehensive coverage against discriminatory practices. The Act can be further extended or detailed through subordinate instruments, although such instruments are not specified within the primary text of the Act itself.
Key Provisions
The Sex Discrimination Amendment (Pregnancy and Work) Act 2003 introduces several key changes to the Sex Discrimination Act 1984. The most prominent amendment, outlined in Schedule 1, is the explicit inclusion of breastfeeding, including expressing milk, as a characteristic that generally pertains to women (s 1). This ensures that breastfeeding is recognised and protected under the Act. Another significant amendment pertains to the unlawfulness of requesting or requiring information that could be used to discriminate against an individual on the grounds of sex, marital status, or pregnancy (s 2). This amendment aims to prevent employers and others from obtaining information that might be used to justify discriminatory practices.
Under the amended Act, it becomes unlawful for a person to request or require another person to provide information if the information is related to an act that would be discriminatory under the Act (s 27(1)). This includes information about an individual's sex, marital status, or pregnancy (s 27(1)(b)). Furthermore, if such information would not be requested from individuals of the opposite sex, different marital status, or who are not pregnant or potentially pregnant, it is considered discriminatory (s 27(1)(c)). An example provided in the Act clarifies that asking a woman during a job interview if she is pregnant or intends to become pregnant is unlawful if the question is related to the decision to offer employment (s 27, note).
The Act also imposes obligations on employers and others to avoid requesting or requiring information that could be used to justify discrimination. This means that employers and individuals must be cautious about the information they seek, particularly if it relates to sex, marital status, or pregnancy. The Act further specifies that while information obtained under the amended section may be used, it cannot be used for the purpose of a discriminatory act (s 27(2), note). This means that even if information is obtained, it must not be used in a way that constitutes discrimination.
In terms of penalties and consequences for breaches, the Act does not specify maximum penalties within the provided text. However, it is understood that breaches of the Sex Discrimination Act 1984, as amended, could result in legal action, including civil suits for damages or other remedies, and potentially criminal charges if the breach is severe enough. The specifics of penalties and consequences would be determined by the courts based on the nature and severity of the breach.