Anti-Discrimination Legislation Amendment (Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner) Bill 2026
Senator McKIM (Tasmania—Australian Greens Whip) (16:33): I move: That this bill be now read a second time. I seek leave to table an explanatory memorandum relating to the bill. Leave granted.
Senator McKIM: I table an explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard. Leave granted. The speech read as follows— For background The Anti-Discrimination Legislation Amendment (Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner) Bill 2026 (the Bill) will create the role of Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner (the Commissioner) under the Sex Discrimination Act 1984.
The role of the Commissioner will be to protect and promote the legislated human rights of lesbian, gay, bisexual, transgender, intersex, queer/questioning, and asexual (LGBTIQA+) people in Australia regarding sexual orientation, gender identity, and sex characteristics. The Bill will provide for discrimination against, and advocacy for, LGBTIQA+ people to be treated in the same way at a Commonwealth level as discrimination against other vulnerable groups with protected attributes under Commonwealth law, such as women, people with disability, culturally and linguistically diverse communities, etc.
In 2013, amendments were made to the Sex Discrimination Act 1984 that added sexual orientation, gender identity and intersex status as protected attributes. These are currently the only attributes in the four main Commonwealth anti-discrimination laws that do not have a Commissioner attached to them. The Anti-Discrimination Legislation Amendment (Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner) Bill 2026 fills this gap in human rights advocacy.
The Commissioner will work within the Australian Human Rights Commission—an independent statutory authority that protects and promotes human rights in Australia—under its President and alongside the Sex Discrimination Commissioner, Human Rights Commissioner, Age Discrimination Commissioner, Disability Discrimination Commissioner, Aboriginal and Torres Strait Islander Social Justice Commissioner, Race Discrimination Commissioner, and Children's Commissioner.
The Bill will also replace all instances of the term 'intersex status' found in the Sex Discrimination Act 1984 with 'innate variations of sex characteristics'. When the term 'intersex status' was introduced into the Act in 2013, the supporting Explanatory Memorandum stated its usage was 'not intended to create a third sex in any sense'. However, this is essentially what it has done.
This ignores the diverse range of people and sex characteristics the term was supposed to represent, many of whom do not identify as intersex. This simple and small change in language will bring the Sex Discrimination Act 1984 into line with legal reforms called for in the Darlington Statement, a 2017 joint consensus statement by Australian and Aotearoa/New Zealand intersex organisations and independent advocates which the governments of Victoria, Tasmania, the Australian Capital Territory, and the Northern Territory have already acted on.
The Bill will also make necessary consequential amendments to the Australian Human Rights Commission Act 1986, to recognise the role of the Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner it creates under the Sex Discrimination Act 1984, and to the Fair Work Act 2009, to introduce definitions for 'Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner' and 'sex characteristics' and replace all instances of the term 'intersex status' with 'innate variations of sex characteristics'.
On commencement The Bill commences the day after the day on which it receives the Royal Assent. On the structure The Bill provides for a role and office of Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner. The Bill also provides for a merit-based process to appoint the Commissioner, which will include meaningful engagement with LGBTIQA+ civil society.
On the scope The scope of the Bill is summarised in the title of the Bill, which is reflected in the title of the new Commissioner role that it provides for. The title Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner directly aligns with international human rights language. The Bill also replaces the term 'intersex status' with 'innate variations of sex characteristics'.
The Bill is based on evidence and is in line with the wishes of relevant representative organisations at the time of drafting. On the implementation of scope through definitions As with the role of Sex Discrimination Commissioner, the Bill provides for the role of Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner to be provided for under the Sex Discrimination Act 1984 rather than the Australian Human Rights Commission Act 1986.
Providing for the role of Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner under the Sex Discrimination Act 1984 allows the Bill to provide a delineation of duties with the existing role of Sex Discrimination Commissioner. The Bill would allow the Sex Discrimination Commissioner to retain responsibility for matters relating to discrimination on the ground of sex, and for the Sexual Orientation, Gender Identity and Sex Characteristics Discrimination Commissioner to assume responsibility for matters regarding sexual orientation, gender identity, and sex characteristics, noting that the Australian Human Rights Commission is responsible for assigning functions which have been conferred on it between different commissioners.
Under the Bill, both Commissioners have some overlapping responsibility for the other attributes in the Sex Discrimination Act 1984—marital or relationship status, pregnancy, potential pregnancy, breastfeeding or family responsibilities, and hostile workplace environments—given these matters affect people of different sexes as well as LGBTIQA+ people. Senator McKIM: I seek leave to continue my remarks later.
Leave granted; debate adjourned.