Australian National Breastfeeding Strategy 2010-2015

3.6 The legislative and regulatory environment

Page last updated: 15 July 2010

An important contextual issue influencing breastfeeding in Australia is the legislative and regulatory environment, particularly with respect to the protection of breastfeeding. Breastfeeding protection is about enabling mothers to breastfeed their babies and young children with confidence and without harassment and includes legislative and regulatory environments, employment entitlements, such as parental leave, and restrictions on the marketing of infant formula.

The legislative environment plays an important role in reducing discrimination against breastfeeding mothers. It is legal to breastfeed in public in every state and territory of Australia. Most jurisdictions also have specific legislation making it unlawful to discriminate against breastfeeding mothers.

In some cases of family separation, parents may need to consider parenting arrangements that facilitate the breastfeeding of children. The Family Law Act 1975 provides that in proceedings for a parenting order in relation to a child, family law courts must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, the court must consider relevant facts and circumstances which may include the benefits of maintaining breastfeeding. The Best Start inquiry identified concerns about some legal professionals perceiving the desire to breastfeed as a strategy to limit fathers’ access to children without giving consideration to the importance of breastfeeding to the child’s health (HoR 2007). Recent reports about babies removed by child protection services being unable to continue breastfeeding and concerns about support within the correctional system for mothers to breastfeed have also been raised. The highest priority for child protection should be the health, safety, and wellbeing of the child and maintaining and promoting breastfeeding must be considered in that context.

Australia supports the WHO’s International Code of Marketing of Breast-milk Substitutes and has implemented key elements of the WHO Code through regulatory and quasi-regulatory mechanisms rather than legislation. Australia’s response to the WHO Code is discussed in more detail below.