Chapter 9: Language and drafting

Plain language

The Review considered how to draft legislative terms in plain, modern language. It also considered how to reduce unnecessary prescription, process, and complexity in the Act. This chapter considers how this goal may be best achieved.

Many submissions to the Review observed that the Act is overcomplicated and difficult to interpret. It contains long sections and legalistic language that does not align with plain language drafting principles.[235] For example, section 6 of the Act covers five pages and includes 15 subsections. Some important aspects of entitlements, such as the 12-month qualifying period, are not clearly defined. A further area requiring clarity is how the Act interacts with the Fair Work Act, the Paid Parental Leave Act, and other legislation relating to long service leave and superannuation.

"The Act is difficult to interpret, unnecessarily prescriptive, and complex to administer, even for experienced HR practitioners"

- Agency submission[236]

The Act's current form makes it unnecessarily complex for agencies and employees to understand entitlements. This creates further stress for employees and increases administrative burden for agencies, who spend time interpreting the Act and dealing with queries relating to its application.

Simplifying the Act's wording will enable agencies to more easily implement the Act's provisions with fewer errors, while allowing employees to understand their entitlements more easily. Including an 'objects' section will also assist with interpreting the Act, in line with current legislative drafting practice.

Modern language

The Act uses outdated language that is both confusing and out of step with current practice.

For example, the Act uses the term 'confinement' to refer to 'the birth of a child, or other termination of the pregnancy, that occurs not earlier than twenty weeks before the expected date of birth of the child'.[237] Many submissions to the Review commented that this term is inappropriate and sought for its replacement with modern terminology.

Submissions also noted that the use of the word 'termination' to describe a the end of a pregnancy does not recognise or align with commonly used terms for some of the many ways pregnancies may end, such as miscarriage, stillbirth, or neonatal death.

"[The Act] uses complex, archaic language that does not sensitively recognise pregnancy loss"

- Individual submission[238]

Any revised Act should be written in a modern language that reflects the role of all employees in work and family life. It should be easy to read, interpret and apply.

"Revised parental leave legislation should incorporate objectives to reflect the legislation's broad purpose, including to provide financial support and flexibility to all new parents regardless of gender"

- CPSU submission[239]

Recommendation 21: Draft the Act in plain language

21.1   The Act be drafted in clear language that allows readers to easily understand entitlements. The Act's wording may be supported by use of notes, tables, and references to other legislation that interacts with the Act.

21.2   Outdated terms such as 'confinement' be removed and replaced with modern language that reflects the sensitivities of pregnancy and pregnancy loss.

21.3   The Act include an 'objects' section to facilitate interpretation. Recommended objects may include to:

1. protect the health and development of pregnant employees and their children;
2. facilitate flexibility for parents in balancing caregiving with their work in the Commonwealth; and
3. promote inclusion and gender equality.

Inclusive language

The Review received feedback that the Act should support all parents who want and are otherwise eligible to take parental leave. Modern families all look different, and the current Act's assumptions about family structures are inconsistent with many families and households in the 21^st^ century. The Review recommends that the Act's drafting should be inclusive for all families, ensuring entitlements can be accessed by those who need them and that workplace policies reflect community standards.

Australian employers are moving towards parental leave policies that use gender neutral language, recognising changing family structures and that all parents are responsible for the upbringing of children and associated domestic labour.[240] Submissions to the Review overwhelmingly called for the Act to facilitate gender neutral parental leave.

Gender neutral language is important for inclusivity.[241] The APS Workforce Strategy 2025 highlights that the APS is a diverse workforce and is continuing to build inclusive workplace cultures deep-rooted in respect for all people, including their rights and their gender.[242] It is important the Act recognises this diversity, including through the use of gender neutral language.

The APS Gender Equality Strategy 2021-26 notes that gender identity is one of many identity dimensions that agencies should consider to reduce the impact of compounding disadvantage.[243]

The Act's reference to female employees was designed to facilitate maternity leave entitlements for working mothers in the APS. While any employee who is pregnant is eligible for all entitlements under the current Act regardless of their gender identity, a revised Act could make this clear by using more inclusive language.

A revised Act using gender neutral language will continue to provide protections for mothers, while at the same time better reflect the diversity of the APS and more effectively support the many ways in which families raise children.

Gender equity and recognition of women

The Review acknowledges and recognises that there are varied perspectives and evolving discussions relating to gender neutral language, including whether this is sufficiently inclusive of women.[244]

The Review received submissions raising concerns that the use of gender neutral language may serve to reduce the visibility of women, and undermine accuracy and clarity of meaning in some publications, particularly relating to healthcare.

It is noted that the inequity resulting from raising children, unpaid caring and domestic work, and the gender and superannuation pay gap disproportionately affects women.[245] As discussed in detail throughout this report, parental leave policies and legislation raise issues and have consequences that are inherently gendered.

The Review notes its role is to provide recommendations that deal with conditions of employment, and not healthcare or medical guidance. In this context, terms such as 'employee' and 'pregnant employee' make a necessary connection with the employment relationship.

Recommendation 22: Draft the Act in inclusive and gender neutral language

22.1   The Act be renamed the Pregnancy and Parental Leave Act.

22.2   The Act be drafted in language appropriate to employment conditions, and is inclusive and gender neutral as appropriate, including the terms:

1. Pregnancy Leave
2. Parental Leave
3. Pregnant employee
4. Parent
5. Adoptive parent.