Australia: Equality and diversity: What is Australia doing to recognise these values?

Last Updated: 24 September 2013
Article by Margaret Chan

With all the recent changes to bullying complaints, superannuation and parental leave, one could almost be forgiven for not noticing the passage through Parliament of the Sex Discrimination Amendment (Sexual orientation, Gender Identity and Intersex Status) Bill 2013 (Cth) (the "SD Amendment Bill") and its amendments to the Sex Discrimination Act 1984 (Cth) (the "SD Act").


Introduced in March 2013, the SD Amendment Bill stemmed from recommendations and proposed reforms by the Senate Legal and Constitutional Affairs Committee's inquiry into the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (Cth) (the "HRAD Bill") - which was announced last year and subsequently put on hold in March this year. HRAD followed a 2010 report by the Australian Human Rights Commission on discrimination experienced by members of the lesbian, gay, bisexual, transgender and intersex community and recommendations by the Senate Legal and Constitutional Affairs Committee in 2008 reflecting the need to reform the SD Act.

The changes under the SD Amendment Bill have commenced as of 1 August 2013 so employers need to be aware of their new obligations and ensure that workplace policies are up-to-date and compliant with the changes introduced by the amendments.

Snapshot of the Changes

  • Discrimination on the grounds of sexual orientation, gender identity and intersex status are now prohibited under the SD Act just as discrimination on these grounds are prohibited in employment, education, accommodation and the provision of goods and services.1
  • Prohibition of discrimination on the ground of 'martial status' will be extended to 'marital or relationship status' thus offering protection to same-sex de facto couples.
  • Introduction of new exemptions, meaning that prohibitions on discrimination will not:
    • apply to anything done in compliance with the Marriage Act 1961 (Cth) or other prescribed law; or
    • be contravened merely because a request for information or record-keeping does not provide for a person to be identified as being neither male nor female (however, this may be subject to reconsideration in the future).

Key Changes

The three new grounds of sexual orientation, gender identity and intersex status will be introduced by the insertion of sections 5A to 5C into the SD Act. These sections will set out the tests for direct and indirect discrimination, which are similar to the current tests for other grounds of discrimination.

Direct discrimination will usually involve discrimination on the basis of:

  • the person's sexual orientation/gender identity/intersex status;
  • characteristics that relate to or are associated with persons who have the same sexual orientation/gender identity/intersex status as the aggrieved person; or
  • characteristics generally imputed to persons who have the same sexual orientation/gender identity/intersex status as the aggrieved person.

Indirect discrimination will usually involve the imposition of, or proposal to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same sexual orientation/gender identity/intersex status as the aggrieved person. However, indirect discrimination on the new grounds will still remain subject to the reasonableness test currently imposed by section 7B as well as the special measures exception found in section 7D.

Aside from the introduction of these new grounds, a number of other definitional and semantic changes have been made to broaden protections offered by the SD Act to a more diverse groups of individuals– such as the broad definition of gender identity2 and the amendment of the term "opposite sex" to "different sex" in the definition of "sex discrimination" under section 5(1) – in recognition that a person may not be, or may not identify as strictly male or female.

It is also worth noting that going forward, the terms 'man' and 'woman' as they appear in the SD Act will adopt their ordinary meaning and their current SD Act definitions will be repealed. Again, this subtle change has taken place so as to ensure that transgender individuals are not excluded from the protections offered by the SD Act on the basis of other attributes. For instance, it would now also be discriminatory (and indeed, unlawful) to ask a transgender individual who identifies as female whether she intends to become pregnant in connection with determining whether to offer employment.3

The New Grounds Defined...

Gender Identity – the gender-related identity, appearance, or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person's designated sex at birth.

Intersex Status – the status of having physical, hormonal or genetic features that are:

  • neither wholly female nor wholly male;
  • a combination of female and male; or
  • neither male nor female.

Sexual orientation – a person's orientation towards persons of the same sex, persons of a different sex, or persons of the same sex and persons of a different sex.

Gender Equality Reforms

In a similar vein, the changes introduced by the Workplace Gender Equality Act 2012 (Cth) (the "WGE Act") are now in full swing and many employers will have completed and submitted their first public report under the WGE Act in May.

As a reminder to employers, the WGE Act also requires employers to inform employees, shareholders (as soon as possible) and employee organisations (within 7 days) that the public report has been lodged. Employers are also obliged to make the report available to these parties and to inform them that comments on the report will be received by it or the Workplace Gender Equality Agency (the "Agency").

While reporting requirements were simplified in the 2012/13 reporting year and only involved the provision of a workplace profile, reporting requirements from 2013/14 (the current reporting year) are set to increase slightly and employers will be required to report against a set of six Gender Equality Indicators ("GEIs") prescribed by the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument (Cth) (the "Instrument"). The GEIs may change from year to year and will be set out in the Instrument prior to the commencement of the reporting year (e.g. GEIs for the 2013/14 reporting year are set out prior to 1 April 2013).

Timeline For This Research
August 2013 National online survey conducted to assess the prevalence, nature and consequences of discrimination relating to pregnancy at work and return to work after parental leave
October 2013 Interim report released based on results of August survey
October 2013 – January 2014 Consultation and roundtable to take place nationally
May 2014 Final report containing recommendations to be delivered

The six GEIs for 2013/14 are:

  1. the gender composition of the workforce;
  2. the gender composition of an employer's governing bodies (e.g. the Board);
  3. equal remuneration between women and men;
  4. availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities;
  5. consultation with employees on issues concerning gender equality in the workplace; and
  6. sex-based harassment and discrimination.

From the 2014/15 reporting year onwards, minimum standards will also begin to apply to employers in relation to workplace gender outcomes. The standards will be set by the Minister for the Status of Women following consultation with the Agency. Where employers fail to meet minimum standards and are not able to improve against it by the end of two further reporting periods, the employer will be deemed non-compliant.

Possible Upcoming Changes

We may also see further changes in the sex discrimination arena with respect to pregnancy in the not too distant future, with the Australian Human Rights Commission announcing on 22 June 2013 that Sex Discrimination Commissioner, Elizabeth Broderick, would be commencing an 11 month research project into the "prevalence of experiences of discrimination relating to pregnancy at work and return to work after parental leave". It is expected that data will be collected from individuals in a range of family circumstances – including single parents and separating households.4

This research is being conducted following data released by the Australian Bureau of Statistics last year which indicated that some 67,000 women had experienced some form of discrimination following becoming pregnant, in addition to significant anecdotal evidence of demotions, dismissals or having their roles unfavourably 'restructured' while they were on or returning from parental leave.5

Next Steps

Given the number of changes in this area, it is important for employers to be reviewing their Discrimination and/ or Equal Opportunity policies to ensure that they are up-to-date and capture the changes to the SD Act, especially the introduction of the new and amended grounds of discrimination. It will also be important for employers to examine their practices around workplace gender equality and consider how they may seek to improve these going forward.


1 Most of the current exemptions for voluntary bodies, religious organisations and competitive sports will apply to the new protected grounds - however religious organisations will not be exempt from unlawful discrimination on the ground of intersex status.
2 Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (Cth), 12.
3 Ibid, 13.
4 Australian Human Rights Commission, Terms of Reference (22 June 2013), Australian Human Rights Commission < pregnancy-discrimination > accessed 24 June 2013.
5 Department of Attorney-General, 'Inquiry Into Parental Leave Discrimination: Fairer Workplace Practices to Benefit Families and the Economy' (Press Release, 22 June 2013), 1.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.