Breastfeeding in public - your legal rights

Breastfeeding your baby is a normal and natural thing to do. Babies have a right to be breastfed and mothers have the right to breastfeed. Most mothers work out where and how they can feed their babies when they are out, so that they are comfortable. In our society however, although breastfeeding is acknowledged as important for mothers and babies, some people make critical remarks or confront mothers with unnecessary and illegal 'rules'.

Many mothers find any type of confrontation in relation to breastfeeding difficult to deal with and feel that it is a personal attack towards them. This is a normal response and one that is a very valid. It comes with a range of unsettling feelings that can be a roadblock to breastfeeding in public.

My little girl was around 6 months and was sent home from day care with a cold. She was at a centre 5 minutes from work so I fetched her. However I had a very important 2-hour meeting that afternoon, so I gave my colleagues the choice; me and baby, or no one! She fed/slept constantly on the breast for the whole meeting, which went very well. No one particularly commented, other than to say, 'Wow, she was no bother'. The situation was initially outside my comfort zone, but proved to be the best solution for everyone! I do love thinking back on the situation, as it was so unusual!

Frieda and daughter Erika

Controversy over breastfeeding in some public places may imply that breastfeeding is unnatural, undesirable or even illegal. Nothing could be further from the truth. Don't forget that conflict and bad news is more likely to make the newspapers, radio and television. Conflict is the essence of news reporting. The fact that things are going along smoothly is simply not news. That's why you don't hear much about the many mothers who happily breastfeed at work, in shopping centres, in parks, in restaurants, in railway carriages or just about anywhere, every day of the week without raising an eyebrow, let alone a ruckus.

What can mother do if she is verbally abused for breastfeeding her baby?

Thankfully this type of incident is uncommon, but if it does happen, it can really rock a mother's confidence. It may be essential to normalise breastfeeding again after the incident. To normalise breastfeeding, a mother may like to consider:

If a mother is ever in a situation where she is verbally threatened together with physical contact then this constitutes an assault and is classed as a criminal act. In this situation she should consider, in addition to the above:

  • not responding to aggressive behaviour to avoid an escalation of the situation
  • contacting the police when possible and reporting the incident

Many mothers find that as their breastfeeding experience grows and they become more confident, they are able to provide a comeback comment if confronted by a negative remark. This may include a breastfeeding fact or to state their legal right. The Dealing with Unwanted Criticism article on this website has some really useful information on handling negative comments.

What is the law?

In Australian Federal Law breastfeeding is a right, not a privilege.

Under the federal Sex Discrimination Act 1984 it is illegal in Australia to discriminate against a person either directly or indirectly on the grounds of breastfeeding. Direct discrimination happens when a person treats someone less favourably than another person. For example, it is discriminatory for a waiter to decline to serve a patron who is breastfeeding. Indirect discrimination happens when an apparently neutral condition has the effect of disadvantaging a particular group, in this case women who are breastfeeding. For example, an employer may impose a requirement on all employees that they must not make any breaks for set periods during the day under any circumstances. Such a condition would particularly disadvantage women who need to express milk.

A useful publication from the Australian Human Rights Commission is Getting to Know the Sex Discrimination Act: A Guide for Young Women.While not directly mentioning breastfeeding, this publication does explain your rights and responsibilities under the Act.

The law in Australia protects you from being discriminated against because you are a breastfeeding mother. This includes if you are expressing milk by hand or with a breast pump to give to your baby later.

… babies can be breastfed anywhere and anytime.

Australian Human Rights Commission - Indigenous Women and Pregnancy Discrimination
FACT SHEET 10: Breastfeeding and Work

The Law protects your right to breastfeed

As the former federal Sex Discrimination Commissioner, Pru Goward (2001-2006), stated: 'A mother's right to breastfeed is protected by the federal Sex Discrimination Act, which prohibits discrimination on the basis of sex, marital status, pregnancy and potential pregnancy. The Act also makes clear that discrimination because a woman is breastfeeding (or expressing) is regarded as sex discrimination because it is clearly a characteristic of women.'

Her predecessor, Susan Halliday (1998-2001) had earlier emphasised: 'Common sense dictates that hungry babies be fed and Australian parents have the right to choose the option of breastfeeding their children. For many years it has been illegal under federal, state and territory law to discriminate against breastfeeding women in the provision of goods and services, including service at restaurants, clubs, pubs and theatres and on public transport. It will be a particularly sad day when, in Australia, a woman is penalised for properly caring for her child in a public place.'

What about State and Territory laws?

In addition to the protection offered under the federal Sex Discrimination Act 1984, individual States and Territories have enacted their own laws to protect the rights of breastfeeding women in areas such as work, education and the provision of goods and services. Details vary, so check with your State or Territory government agency. The National Anti-Discrimination Information Gateway is a useful place to start. It has links to each State and Territory's commission's websites.

Australian Capital Territory
Breastfeeding is a protected attribute. Discrimination on the basis of breastfeeding is illegal in the areas of: provision of goods and services, accommodation, financial services, employment, sport, education, access to premises, access to membership in a trade or professional organisation, membership of or services in a licensed club, business partnerships, requests for information and unlawful advertising.

New South Wales

Discrimination and harassment on the grounds of sex is illegal in the contexts of: opportunities in employment, state education, goods and services, accommodation and registered clubs. This includes breastfeeding as a characteristic generally appertaining to women.

Northern Territory

Breastfeeding is a protected attribute. Discrimination or harassment on the basis of breastfeeding is illegal in the areas of education, work, accommodation, goods, services and facilities, clubs, insurance and superannuation. For protected attributes it is also illegal to fail to make reasonable accommodation for a person's special needs.

Queensland

Breastfeeding is a protected attribute. Discrimination on the basis of breastfeeding is explicitly illegal in all areas of public life.

South Australia

It is illegal to discriminate against someone in the areas of accommodation, customer service and education because of their association with a child, which includes breastfeeding.

Tasmania

Breastfeeding is a protected attribute. Discrimination or 'prohibited conduct' is illegal on the basis of breastfeeding in the areas of: education, employment, provision of goods, facilities and services, clubs, state laws and programs, awards and industrial agreements. 'Prohibited conduct' is any conduct that offends, humiliates, intimidates, insults or ridicules a reasonable person on basis of a protected attribute.

 Victoria

Breastfeeding is a protected attribute. Discrimination on the basis of breastfeeding is illegal in the areas of: accommodation, clubs, education, employment, goods and services, selling and transferring land, and sport.

Western Australia

Discrimination on the ground of breastfeeding is prohibited in the contexts of: employment, education, access to places and vehicles, provision of goods, services and facilities, accommodation, disposal of land, clubs, application forms, advertisements, insurance (in some instances) and sport (in some instances).

There is further general information about the various state laws from the Australian Human Rights Commission in A guide to Australia's anti-discrimination laws. More detailed information with regard to breastfeeding and discrimination in each individual state and territory is found near the end of this article in the section Suggested Further Reading.

I have been discriminated against and want to take it further. How do I make a complaint?

Where types of discrimination are covered by both state and federal laws, complaints may be lodged with either the state or federal agency, but not both. If you feel you have grounds for complaint, you can contact the Federal Commission for free advice on 1300 656 419 or online. You can also contact your state or territory agency before deciding who you will make your complaint with. This is especially important as there are differences between the state and federal jurisdictions. An example is the SA Equal Opportunity Commission's Where do I complain - state or federal?

Valid complaints are dealt with by conciliation. This is where the people involved in a complaint talk through the issues with the help of someone impartial and settle the matter on their own terms. It also helps the parties involved to better understand the issues and come up with solutions that are appropriate to their circumstances. This could be an apology, financial compensation, access to facilities previously denied, or something else that is agreed upon. 

A hungry baby shouldn't be expected to wait. No mother can be forced to ignore the needs of her baby.

 

FAQs

Q.Can I breastfeed wherever I am if my baby is hungry?
A.Yes. A mother has the right to breastfeed her baby wherever she happens to be. This right is legally supported through the Sex Discrimination Act 1984. The requirements of a baby are different to those of an adult, and all mothers have the right to meet their baby's needs. A hungry baby shouldn't be expected to wait, and no mother can be forced to ignore the needs of her baby.
Q. When out and about can someone tell me to stop breastfeeding?
A.Yes and No. In Australia, for example, if a person is telling you to stop breastfeeding resulting in them denying you a service because you are breastfeeding then this is classed as discrimination under the Sex Discrimination Act 1984. The Act makes it illegal to discriminate in the provision of goods and services, accommodation, financial services, employment, sport or education. Outside the provisions of the Act it is dependent on the 'harassment' or 'prohibited conduct' law in your State or Territory which may make this illegal in certain circumstances. Outside these circumstances there is no law against a member of the public telling you to stop breastfeeding. Regardless there is no law to say that a mother cannot breastfeed. So even though they may be able to tell you not to breastfeed, you have the right to continue breastfeeding.
Q.Can I breastfeed in a shop or restaurant?
A.Yes. You can breastfeed while you are a customer or using a service. This is a mother's right and is legally supported through the Sex Discrimination Act 1984.
Q. If a Baby Care Room is near, do I have to breastfeed in the room?
A.No. Baby Care Rooms are provided as a service only. Do not feel pressured to breastfeed in one if you do not wish to. Some mums are very glad of the privacy that a Baby Care Room offers them, but other mums prefer to breastfeed wherever they happen to be. By breastfeeding out and about these mums are also helping the next generation of Australians to learn that breastfeeding is normal.
Q.What if there is a sign saying 'NO FOOD or DRINK ALLOWED'. Can I still breastfeed?
A.Yes. This sign is not relevant to a baby who is breastfeeding. Again, common sense will be helpful in this situation. Look at why this sign may apply. If it is just to keep the area clean, you can breastfeed. However, if it is because there are chemicals present or some type of hazard, then it may not be an appropriate area to breastfeed in.
Q.I am expressing breastmilk for my baby? Do I have the same anti-discrimination rights to express as a woman who is breastfeeding?
A.Yes. Your rights to express are also protected under the Sex Discrimination Act 1984.

Remember breastfeeding is a mother's right. She has the right to feed her baby at her breast, or express breastmilk for her baby. As an added bonus breastfeeding is natural, normal, environmentally-friendly, affordable and healthy for all of humanity.

 Suggested further reading

  1. Australian Breastfeeding Association article - Continuing breastfeeding after separation and divorce
  2. Australian Breastfeeding Association article - Dealing with Unwanted Criticism
  3. La Leche League article - Breastfeeding in Public
  4. La Leche League article - How do I respond to and avoid criticism about breastfeeding?
  5. Australian Human Rights Commission - A Guide to Australia's Anti-Discrimination Laws
  6. Australian Human Rights Commission - Getting to Know the Sex Discrimination Act: A Guide for Young Women
  7. National Anti-Discrimination Information Gateway
  8. Table comparing types of discrimination laws state by state
  9. ACT Human Right Commission - Breastfeeding Your Rights Explained- pdf
  10. NSW Lawlink - Anti-Discrimination Board - Breastfeeding Discrimination
  11. . NT Anti-Discrimination Commission - Breastfeeding Discrimination or Women's' Right to Breastfeed in Public(bottom of page 4) - pdf
  12. Queensland Anti-Discrimination Commission - Pregnancy & breastfeeding discrimination
  13. SA Equal Opportunity Commission - Association with a child (includes breastfeeding)
  14. Tasmania - Office of Anti-Discrimination Commissioner - Breastfeeding Discrimination- pdf
  15. Victorian Equal Opportunity & Human Rights Commission - Breastfeeding
  16. WA Equal Opportunity Commission (no specific breastfeeding publications)

* Breastfeeding not specifically mentioned

Resources:

  1. Breastfeeding … naturally (3rd ed) Australian Breastfeeding Association

This information is as accurate as possible but is not intended to be relied on as legal advice.

© Australian Breastfeeding Association - reviewed  April 2014