Footnotes
CHAPTER 1 - INTRODUCTION AND BACKGROUND
[1]
House of Representatives Votes and Proceedings, No. 160—21 March
2013, p. 2198.
[2]
Journals of the Senate, No. 143—21 March 2013, p. 3866.
[3]
Explanatory Memorandum (EM), p. 2.
[4]
EM, p. 4.
[5]
Sex Discrimination Act 1984, sections 5-7A.
[6]
See: Attorney-General's Department, Consolidation of Commonwealth
Anti-Discrimination Laws: Discussion Paper, September 2011, p. 21.
[7]
The Hon Mark Dreyfus QC MP, House of Representatives Hansard, 21
March 2013, p. 2893.
[8]
The existing Commonwealth Acts are: the Racial Discrimination Act
1975; the Sex Discrimination Act 1984; the Disability
Discrimination Act 1992; the Age Discrimination Act 2004; and
the Australian Human Rights Commission Act 1986.
[9]
Attorney-General's Department, Australia's Human Rights Framework,
http://www.ag.gov.au/RightsAndProtections/HumanRights/HumanRightsFramework/Pages/default.aspx (accessed 26
March 2013).
[10]
The Hon Nicola Roxon MP, Attorney-General, and Senator the Hon Penny Wong,
Minister for Finance and Deregulation, 'Clearer, simpler, stronger
anti-discrimination laws', Joint Media Release, 20 November 2012, http://pandora.nla.gov.au/pan/132822/20130204-0704/www.attorneygeneral.gov.au/Media-releases/Pages/2012/Fourth%20Quarter/20November2012-Clearersimplerstrongerantidiscriminationlaws.html
(accessed 25 March 2013).
[11]
Senate Legal and Constitutional Affairs Legislation Committee, Exposure
Draft of the Human Rights and Anti-Discrimination Bill 2012, 21 February
2013.
[12]
Senate Legal and Constitutional Affairs Legislation Committee, Exposure
Draft of the Human Rights and Anti-Discrimination Bill 2012, 21 February
2013, pp ix-x and 99.
[13]
Senate Legal and Constitutional Affairs Legislation Committee, Exposure
Draft of the Human Rights and Anti-Discrimination Bill 2012, 21 February
2013, p. 85.
[14]
Senate Legal and Constitutional Affairs Legislation Committee, Exposure
Draft of the Human Rights and Anti-Discrimination Bill 2012, 21 February
2013, p. 86.
[15]
The Hon Mark Dreyfus QC MP, Attorney-General, and Senator the Hon Penny
Wong, Minister for Finance and Deregulation, 'New anti-discrimination laws
to cover sexual orientation, gender identity and intersex status', Media
Release, 20 March 2013, http://www.attorneygeneral.gov.au/Mediareleases/Pages/2013/First%20quarter/20March2013-Newantidiscriminationlawstocoversexualorientationgenderidentityandintersexstatus.aspx
(accessed 26 March 2013).
[16]
The Hon Mark Dreyfus QC MP, House of Representatives Hansard, 21
March 2013, p. 2893.
[17]
The Hon Mark Dreyfus QC MP, Attorney-General, and Senator the Hon Penny
Wong, Minister for Finance and Deregulation, 'New anti-discrimination laws
to cover sexual orientation, gender identity and intersex status', Media
Release, 20 March 2013.
[18]
Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness
of the Sex Discrimination Act 1984 in eliminating discrimination and promoting
gender equality, December 2008, pp xiii-xviii.
[19]
Senate Legal and Constitutional Affairs Legislation Committee, Sex and
Age Discrimination Legislation Amendment Bill 2010, March 2011, p. 1.
[20]
Government Response, Senate Standing Committee on Legal and Constitutional
Affairs, Effectiveness of the Sex Discrimination Act 1984 in eliminating
discrimination and promoting gender equality, May 2010, p. 1.
[21]
A submission was categorised as a form letter where it contained a
specific, or easily identifiable, template of words. A submission was included
as a variation to a particular form letter where the template of words was
modified but could still be identified as having derived from a form letter, or
where the template was supplemented with additional material.
CHAPTER 2 - KEY PROVISIONS OF THE BILL
[1]
EM, p. 12.
[2]
EM, p. 12.
[3]
EM, p. 12.
[4]
EM, p. 13.
[5]
EM, p. 14.
[6]
EM, p. 13.
[7]
Sex Discrimination Act 1984, sections 28A-28L.
[8]
EM, pp 14, 15 and 16.
[9]
These are: proposed new subsection 5A(1) in relation to sexual
orientation; proposed new subsection 5B(1) in relation to gender identity; and
proposed new subsection 5C(1) in relation to intersex status. This construction
is used throughout the Sex Discrimination Act, and is known as the 'comparator
test' because it involves comparing the treatment of the aggrieved person with
that of others who lack their protected attribute. See: Attorney‑General's
Department, Consolidation of Commonwealth Anti-Discrimination Laws:
Discussion Paper, September 2011, p. 10.
[10]
EM, pp 14, 15 and 16.
[11]
See: proposed new subsection 5A(2) in relation to sexual orientation;
proposed new subsection 5B(2) in relation to gender identity; and proposed
new subsection 5C(2) in relation to intersex status.
[12]
Sex Discrimination Act 1984, sections 14-26 and 28B-28L.
[13]
These areas include: employment and superannuation; commission agents;
contract workers; partnerships; qualifying bodies; registered organisations
under the Fair Work Act 2009; and employment agencies.
[14]
Item 35 of Schedule 1 (proposed new subsections 21(1)-(2)).
[15]
Item 37 of Schedule 1 (proposed new subsection 22(1)).
[16]
Items 38-39 of Schedule 1(proposed new subsections 23(1)-(2) and proposed
new paragraph 23(3)(c)).
[17]
Item 40 of Schedule 1 (proposed new subsection 24(1)).
[18]
Item 41 of Schedule 1 (proposed new subsections 25(1)-(2)).
[19]
Item 43 of Schedule 1 (proposed new subsection 26(1)).
[20]
SDA, paragraph 37(d).
[21]
EM, p. 8.
[22]
EM, p. 9.
[23]
EM, p. 21.
[24]
EM, p. 21.
[25]
EM, p. 21.
[26]
EM, pp 6 and 22.
[27]
EM, p. 22.
[28]
EM, p. 22.
[29]
House of Representatives Hansard, 30 May 2013, pp 85-86.
[30]
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and
Intersex Status) Bill 2013, Proposed Government Amendments [Sheet AG264],
23 May 2013, pp 1-2, https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5026
(accessed 31 May 2013).
[31]
The Hon Mark Dreyfus QC MP and The Hon Mark Butler MP, 'New protections
for sexual orientation, gender identity and intersex people pass the house',
Media Release, 30 May 2013.
[32]
Exposure Draft Human Rights and Anti-Discrimination Bill 2012, subclause
33(3).
[33]
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and
Intersex Status) Bill 2013, Proposed Government Amendments [Sheet AG264],
23 May 2013, pp 2-3, https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5026
(accessed 31 May 2013)
CHAPTER 3 - KEY ISSUES
[1]
See, for example: Law Council of Australia, Submission 17, p. 4;
Australian Human Rights Commission (AHRC), Submission 9, p. 3;
Organisation Intersex International Australia, Submission 8, p. 3;
NSW Gay and Lesbian Rights Lobby, Submission 29, p. 2; Equality Rights
Alliance, Submission 21, p. 1; Australian Council of Trade Unions, Submission
28, p. 2; Anti‑Discrimination Board of NSW, Submission 81, p.
1.
[2]
Submission 83, p. 10.
[3]
Submission 82, p. 3.
[4]
See, for example: Dr Tiffany Jones, Submission 1, p. 8; ACT Human
Rights Commission, Submission 10, p. 2; Castan Centre for Human Rights
Law, Submission 12, p. 6; ACON, Submission 18, p. 1; Public
Interest Law Clearing House (PILCH), Submission 25, p. 2; Public Interest
Advocacy Centre (PIAC), Submission 50, p. 10; Transgender Victoria, Submission
27, p. 1; National LGBTI Health Alliance, Submission 76, p. 1.
[5]
Submission 9, p. 5.
[6]
Submission 29, p. 5.
[7]
Submission 8, p. 3.
[8]
See, for example: Equal Rights Trust, Submission 7, p. 6; ACT
Human Rights Commission, Submission 10, p. 5; Anti-Discrimination
Commissioner of Tasmania, Submission 49, pp 7-8.
[9]
See, for example: Equal Rights Trust, Submission 7, pp 6-7;
Victorian Gay and Lesbian Rights Lobby, Submission 83, pp 16-17.
[10]
Human Rights Law Centre, Submission 70, p. 15.
[11]
See, for example: Australian Human Rights Commission, Submission 9,
p. 10; Australian Council of Trade Unions, Submission 28, p. 3, NSW
Gay and Lesbian Rights Lobby, Submission 29, p. 9.
[12]
EM, pp 14, 15 and 16.
[13]
Responses to questions on notice provided by the Attorney-General's
Department on 21 May 2013, p. 2.
[14]
Responses to questions on notice provided by the Attorney-General's
Department on 21 May 2013, pp 2 and 3.
[15]
See, for example: Professor Margaret Thornton, Submission 6, pp
1-2; Equal Rights Trust, Submission 7, p. 8; ACT Human Rights
Commission, Submission 10, p. 3; Castan Centre for Human Rights Law, Submission
12, pp 7-8; Rainbow Families Council, Submission 14, pp 5-6; ACON, Submission
18, pp 1-2; Kingsford Legal Centre, Submission 19, [p. 6]; The AIDS
Council of South Australia, Submission 23, pp 9 and 11; PILCH, Submission
25, pp 3-4; National Association of Community Legal Centres, Submission
82, p. 8; Human Rights Law Centre, Submission 70, pp 19-21; Job
Watch, Submission 34, pp 7-8.
[16]
Submission 12, p. 8.
[17]
These proposed changes included: limiting the exemptions for organisations
delivering services to the public; adopting more limited religious exemptions
in line with those found in some state anti-discrimination laws; and
introducing a requirement for religious organisations to provide public
notification of their intention to utilise religious exemptions. See, for
example: Ms Anne Hewitt and Dr Laura Grenfell, Adelaide Law School, Submission
4, p. 4; ACON, Submission 18, pp 1-2; National LGBTI
Health Alliance, Submission 76, p. 2.
[18]
These proposed changes included introducing a broader protection for
individuals undertaking activities in accordance with their religious beliefs
or principles. See, for example: Freedom 4 Faith, Submission 16,
pp 3-5; Australian Christian Lobby, Submission 26,
pp 2 and 3-5; Catholic Women's League Australia, Submission
15, [pp 3-4].
[19]
See, for example: Law Council of Australia, Submission 17, pp
29-30; Organisation Intersex International Australia, Submission 8, pp
9-10.
[20]
Submission 9, p. 7.
[21]
Submission 75, p. 3.
[22]
See, for example: Professor Margaret Thornton, Submission 6, p. 2;
AHRC, Submission 9, pp 5‑6; ACT Human Rights Commission, Submission
10, p. 3; PIAC, Submission 50, pp 21-22; Law Council of Australia, Submission
17, pp 40-41; Northern Territory Anti-Discrimination Commission, Submission
20, pp 1-2; Combined Pensioners and Superannuants Association of NSW, Submission
52, pp 3-4.
[23]
Submission 71, pp 1-2.
[24]
See, for example: COTA Australia, Submission 71, p. 2; Liberty
Victoria, Submission 32, pp 3‑4; National LGBTI Health
Alliance, Submission 76, pp 3-4.
[25]
See, for example: Freedom 4 Faith, Submission 16, pp 2-3;
Australian Christian Lobby, Submission 26, p. 3; Catholic Women's League
Australia, Submission 15, [p. 4].
[26]
Submission 81, p. 2.
[27]
Submission 27, pp 1-2.
[28]
Submission 8, p. 7. See also: Kingsford Legal Centre, Submission
19, [p. 8]; National LGBTI Health Alliance, Submission 76, p. 6;
National Association of Community Legal Centres, Submission 82, pp 8-9.
[29]
Submission 8, p. 4.
[30]
Responses to questions on notice provided by the Attorney-General's
Department on 21 May 2013, p. 4.
[31]
Attorney-General's Department, 'Australian Government Guidelines on the
Recognition of Sex and Gender', http://www.ag.gov.au/Publications/Pages/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.aspx
(accessed 14 June 2013). See also: OII Australia, Submission 8, pp 8-9.
[32]
See, for example: PIAC, Submission 50, p. 12; Human Rights Law
Centre, Submission 70, pp 24-25; National Association of Community
Legal Centres, Submission 82, p. 9; OII Australia, Submission 8,
p. 9; AHRC, Submission 9, pp 8-9; Law Council of Australia, Submission
17, p. 39; Anti-Discrimination Commission Queensland, Submission 85,
p. 5.
[33]
Submission 50, p. 12.
[34]
Submission 75, pp 3-4.
[35]
Responses to questions on notice provided by the Attorney-General's
Department on 21 May 2013, p. 6.
[36]
Submission 70, p. 23. See also: The Equal Rights Trust, Submission
7, p. 11; AHRC, Submission 9, pp 9-10; PIAC, Submission 50,
pp 12-16.
[37]
Submission 17, pp 36-37.
[38]
Submission 75, p. 4.
[39]
Responses to questions on notice provided by the Attorney-General's
Department on 21 May 2013, p. 6.
[40]
See, for example: Anti-Discrimination Commissioner of Tasmania, Submission
49, p. 15; Law Council of Australia, Submission 17, p. 44; Anti-Discrimination
Commission Queensland, Submission 85, pp 3-4.
[41]
Responses to questions on notice provided by the Attorney-General's
Department on 21 May 2013, p. 5.
[42]
The instruments listed are: the Convention on the Elimination of All Forms
of Discrimination Against Women; the International Covenant on Civil and
Political Rights; the International Covenant on Economic, Social and Cultural
Rights; the Convention on the Rights of the Child; and four ILO Convention
(Nos. 100, 111, 156 and 158) relating to relevant employment matters.
[43]
See, for example: Law Council of Australia, Submission 17, pp 33
and 49; PIAC, Submission 50, pp 7-10; Women's Legal Services NSW, Submission
78, pp 4-5; Victorian Gay and Lesbian Rights Lobby, Submission 83,
p. 13.
[44]
Submission 70, pp 8-9.
[45]
Responses to questions on notice provided by the Attorney-General's
Department on 21 May 2013, p. 8.
[46]
Submission 9, p. 7.
[47]
Submission 29, pp 9-10. See also: National Association of Community
Legal Centres, Submission 82, p. 9; Victorian Gay and Lesbian
Rights Lobby, Submission 83, p. 36; Law Council of Australia, Submission
17, p. 46.
[48]
Responses to questions on notice provided by the Attorney-General's
Department on 21 May 2013, p. 8.
[49]
Submission 75, p. 5.
[50]
Submission 87, p. 2.
[51]
Submission 87, p. 3 (see also discussion on p. 4).
[52]
Submission 49, pp 16-17.
[53]
Responses to questions on notice provided by the Attorney-General's
Department on 21 May 2013, p. 11.
[54]
See, for example: Law Council of Australia, Submission 17, p. 45; Kingsford
Legal Centre, Submission 19, [p. 6]; NSW Gay and lesbian Rights Lobby, Submission
29, pp 10-11; Human Rights Law Centre, Submission 70, pp 18-19;
National Association of Community Legal Centres, Submission 82, p. 6.
[55]
Section 351 of the Fair Work Act provides protection against
discrimination in matters relating to employment, on the basis of a range of
protected attributes.
[56]
See, for example: Human Rights Law Centre, Submission 70, pp 18-19;
Women's Legal Services NSW, Submission 78, p. 2.
[57]
Submission 17, p. 45.
[58]
Responses to questions on notice provided by the Attorney-General's
Department on 21 May 2013, p. 9.
[59]
See: Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness
of the Sex Discrimination Act 1984 in eliminating discrimination and
promoting gender equality, December 2008, p. xxiii (Recommendation 5).
[60]
Senate Legal and Constitutional Affairs Legislation Committee, Exposure
Draft of the Human Rights and Anti-Discrimination Bill 2012, February 2013,
p. 97.
MINORITY REPORT BY COALITION SENATORS
[1]
Australian Christian Lobby, Submission 26, p. 1.
[2]
Catholic Women's League Australia, Submission 15, p. 3.
[3]
Submission 15, p. 4.
ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS
[1]
See: http://www.humanrights.gov.au/sex-files-legal-recognition-concluding-paper-sex-and-gender-2009.