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Legislative Assembly for the ACT: 2002 Week 7 Hansard (5 June) . . Page.. 1902 ..

MR STANHOPE (continuing):

potential pregnancy-that is, discrimination against a woman on the basis that at some future time she may become, or intends to become, pregnant-is not acceptable.

It is the government's view that these amendments are unnecessary, because discrimination on the grounds of potential pregnancy is already covered by the Discrimination Act. However, the fact that this bill has been put forward suggests that there does seem to be some level of misconception within the community about the fact.

The advice I have from my department is that it really is, as a matter of law, quite clear that potential pregnancy is already covered under the Discrimination Act, and that, in a strictly legal, technical sense, this amendment is totally unnecessary. However, accepting that there is some confusion about the legal effect and efficacy of the Discrimination Act, it is useful to clarify that discrimination on the basis of potential pregnancy is in fact unlawful in the ACT.

So the government's position essentially is that this amendment, as a matter of law, is totally unnecessary, but as a result of the need to perhaps clear up some misconceptions, or perceptions, about the effect and extent of the legislation, the government does support an amendment to the bill to put beyond doubt, in the mind of the community, that discrimination on the grounds of potential pregnancy is totally unacceptable. So we support the principle behind the bill.

There certainly are a number of concerns about the form of the amendments to give effect to the principle in the bill introduced by Mrs Cross. I understand there have been significant discussions between my office, my department and Mrs Cross' office. As a result of those discussions, a range of amendments will be moved by Mrs Cross to clear up the problems and difficulties inherent in her initial bill.

The concerns with the bill as presented go to its current form. That is an issue around the application of a technical, statutory interpretation argument, and the effect the application of a technical, statutory interpretation argument will have on the effect of narrowing the protection currently offered by the act.

The advice of the department of justice is that, if the bill as presented is implemented, the current protections afforded to women will be narrowed-they will be lessened. The argument propounded by the department of justice in relation to that runs along the lines-a line familiar to all lawyers and I assume legislators-that an express reference to one matter indicates an extension to exclude other matters.

As Mr Stefaniak would know very well, it is a basic tenet of interpretation that, if you include an express reference to a matter in a provision in an act and do not refer to other matters, the intention of the legislature is to restrict the matters to that one matter or to those named matters. That is an accepted rule of interpretation and is the attitude and view the department of justice takes to Mrs Cross' amended bill. So, including potential pregnancy as an attribute, along with pregnancy, raises the presumption that, in this Assembly, the legislature did not intend that other potential attributes would be covered by the act. That is the danger of the provision. By including only one attribute-namely, potential pregnancy-along with pregnancy, Mrs Cross' bill has raised the presumption

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