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Failure to meet this obligation would be an actionable form of discrimination Option for Reform E: Protection from discrimination in any area of public life (Stage Two) Consider the merits of amending the SDA to include a general prohibition against discrimination in all areas of public life, along the lines of s 9 of the RDARecommendation 19: Extend coverage to bind the Crown in right of the state (Stage One) Amend s 12(1) of the SDA to comprehensively bind the Crown in right of the State, along the lines of s 14 of the DDA, s 6 of the RDA and s 13 of the ADA.

Recommendation 22: Extend coverage of independent contractors (Stage One) Provide equivalent protection against discrimination and sexual harassment to independent contractors as applies to other categories of workers Recommendation 23: Liability of individual employees (Stage One) Amend s 14 of the SDA to confer personal liability on the individual employee, or other worker, who engaged in the discrimination rather than just the employer.

(3) Alternatively, refer stage two of the SDA inquiry to the ALRC or other suitable body.

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Recommendation 1: A Two-Stage Inquiry Process (1) Support a two-stage inquiry process for the SDA, with some amendments made now to the existing law (Recommendations), and the rest completed within three (3) years (Options for Reform) (2) Complete reforms as part of an inquiry into an Recommendation 2: Objects of the SDA (Stage One) Amend the objects of the SDA to remove ‘so far as is possible’ and fully reflect the obligations of CEDAW and other international legal obligations under the ICCPR, ICESCR and ILO Conventions to eliminate discrimination and promote substantive gender equality.

Recommendation 3: Interpretation of the SDA (Stage One) Insert in the SDA the express requirement that it be interpreted in accordance with Australia’s international legal obligations, including relevant provisions of CEDAW, ICCPR, ICESCR and ILO Conventions Recommendation 5: Direct Discrimination (Characteristics extension) (Stage One) Amend the wording of the characteristics extension in the definitions of direct discrimination to include characteristics that are actually imputed by the alleged discriminator, even if not generally imputed by others Recommendation 7: Clarifying causation (Stage One) In making any changes to the definition of direct discrimination, parliament should make clear its intention, either via legislation or even extrinsic materials such as explanatory memoranda or second reading speech to any amending Bill, that the SDA does not require an applicant to prove that the relevant ground of discrimination was the true basis or real reason for the impugned conduct and confirm the operation of s 8 of the SDARecommendation 8: Shifting the onus (Stage One) Amend the SDA to make establishing causation more achievable, such as by: (a) directing courts to draw an adverse inference where a respondent fails to establish a non-discriminatory basis for its conduct; (b) shifting the onus to the respondent to establish a non-discriminatory basis for its conduct in circumstances where its conduct was plausibly based (in whole or in part) on a protected attribute or characteristic, such as along the lines of s 63A of the Recommendation 9: Requirement, condition or practice element (Stage One) Amend the SDA to remedy the narrow approach taken in certain cases to the requirement, condition or practice element, such as by providing that an applicant must simply establish that the relevant circumstances (including any terms, conditions or practices imposed by the respondent) disadvantaged women (or other relevant groups).

A second stage of inquiry, preferably to consider the merits of a comprehensive Equality Act for Australia, would: Recommendation 1: A Two-Stage Inquiry Process (Stage One) (1) Support a two-stage inquiry process for the SDA, with some amendments made now to the existing law, and the rest completed within three (3) years.

(2) Complete reforms as part of an inquiry into an Equality Act for Australia.

Recommendation 38: A three (3) year sunset clause on permanent exemptions (Stage One) (1) Place a three (3) year sunset clause on all permanent exemptions and exceptions that limit gender equality (2) Refer all permanent exemptions to a second stage of review, with a view to them either being removed, or narrowed on human right grounds Option for Reform H: Process for removing permanent exemptions (Stage Two) (1) Consider removal of all permanent exemptions, or narrowing on strictly human rights grounds (2) Consider introducing a general limitations clause which is strictly compliant with human rights principles Recommendation 39: Increase funding for complaint handling service (Stage One) Increase funding to ensure that HREOC is adequately resourced to (i) continue to provide information to ensure people understand the law and rights and responsibilities under the law and (ii) ensure the ongoing provision of an efficient and effective complaint service.

Recommendation 40: Increase funding for free and low cost legal services (Stage One) Increase funding provided to Working Women’s Centres, Community Legal Centres, specialist low cost legal services and Legal Aid to assist people make complaints under federal anti-discrimination law.

Recommendation 31: Extend coverage of sexual harassment to better protect workers (Stage One) Amend the SDA to protect workers from sexual harassment by customers, clients and other persons with whom they come into contact in connection with their employment Recommendation 32: Extend sexual harassment protection to all students regardless of their age (Stage One) Amend s 28F (2)(a) of the SDA by removing the words ‘an adult student’ and replacing with the words ‘a student’.

Recommendation 33: Extend sexual harassment to provide protection to students from all staff members and adult students, not just those at their own education institution (Stage One) Amend s 28F of the SDA to ensure that students who are sexually harassed in connection with their education or attendance at school-related activities are entitled to bring a claim against the perpetrator, irrespective of whether the harasser is from the same or a different educational institution.

Option for Reform F: Enact a free standing prohibition against sexual harassment in public life (Stage Two) Consider amending the SDA to include a general prohibition against sexual harassment in any area of public life, along the lines of s 9 of the RDAOption for Reform G: Positive duty to avoid sexual harassment (Stage Two) Consider imposing a positive obligation on employers (and other appropriate respondents) to take all reasonable steps to avoid sexual harassment of or by their employees Recommendation 34: Protected action need only be a reason (Stage One) Amend s 94 of the SDA to clarify that an applicant need only establish that a protected action was a reason for the victimising conduct even if not the dominant or a substantial reason.

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