Withdrawal of Australia’s reservation under the Convention on the Elimination of all Forms of Discrimination against Women in relation to the exclusion of women from combat duties
The proposed treaty action is the withdrawal of Australia’s reservation to Article 11(1)(b) and (c) of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). The treaty action was referred to the Parliament on 20 March 2017.
Australia ratified CEDAW on 28 July 1983, with two reservations. The first reservation relates to maternity leave. The second reservation relates to women in combat roles, and is the subject of this chapter. The reservation reads as follows:
The Government of Australia advises that it does not accept the application of the Convention in so far as it would require the alteration of Defence Force policy which excludes women from combat duties.
This chapter will give an overview of CEDAW, the history behind Australia’s reservation, and recent reforms that have rendered the reservation unnecessary. The chapter will then provide an overview of women in the Australian Defence Force (ADF), before outlining the Committee’s conclusions and recommendations.
CEDAW promotes equality of rights between men and women and aims to eliminate gender based discrimination. CEDAW recognises that despite international instruments aimed at enshrining gender equality, extensive discrimination against women continues to exist. There are 189 Parties to CEDAW.
The initial reason for the reservation was that under the then defence policy, men and women could apply equally for all positions except for those involving ‘direct combat duties’. These were defined as:
Duties requiring a person to commit, or participate directly in the commission of an act of violence against an armed adversary; and exposing a person to a high probability of physical contact with an armed adversary.
At the time when the reservation was made, 93 per cent of jobs in the ADF were open to both men and women.
Policy change announced
In September 2011, the Government announced that it would remove all gender restrictions from ADF combat role employment categories. In so doing, the ADF committed to opening all roles in the ADF to women on the basis that determination for suitability for roles is to be based on their ability to perform the role, not gender.
Women are now able to apply for the following combat roles: Navy Clearance Divers and Mine Clearance Diver Officers; Air Force Airfield Defence Guards and Ground Defence Guards; and Army Infantry, Armoured Corps and all Army Artillery roles.
Two external reviews were key in removing the gender restrictions from ADF combat role employment categories: the Review into the Treatment of Women at the Australian Defence Force Academy and the Review into the Treatment of Women in the Australian Defence Force (collectively referred to as the Broderick Reviews). The latter provided 21 recommendations to increase the participation of women in the ADF, all of which were accepted.
Since January 2013 women already serving in the ADF have been offered the opportunity to transfer to these roles. From January 2016, all Australian women have been able to apply for these roles, including those through direct recruitment.
The policy change was given effect by the cancellation of the following policies in November 2012:
Defence Instruction (General) Personnel 32-1 Employment of Women in the Australian Defence Force; and
Defence Instruction (General) Personnel 35-2 Application of the Sex Discrimination Act to the Australian Defence Force.
The removal of gender restrictions from ADF employment policies has rendered Australia’s reservation to CEDAW unnecessary.
Implementing the policy change
Following the announcement, the Department of Defence (DoD) developed a five‑year implementation plan, based on previous experiences when opening up other employment categories to women. In a submission to the Committee, the DoD explained that implementation of the policy change was ‘thoroughly considered and that women would be fully supported should they choose to apply for, and enter, these roles’.
Under the implementation plan, the DoD has undertaken the following to address any concerns, issues or risks associated with the policy change:
the Physical Employment Standards review, which provide standards that are scientifically based, occupationally relevant and do not discriminate based on gender. While this project was already under way prior to the Government’s decision, the review was accelerated and prioritised to meet the implementation of direct recruitment into all combat roles from January 2016;
the implementation of the Pathway to Change: Evolving Defence Culture report – DoD’s ‘comprehensive five-year strategy for cultural change and reform’; and
reviewing and updating training, training materials, guidance, policy and any combat specific processes, policies and systems.
The submission states that ‘women who have applied for these roles and have either undertaken, or are undertaking the training programs for these roles, have expressed that they feel fully supported by their peers, trainers and other personnel’.
Since restrictions were removed, 30 women have commenced serving in combat roles and a further 65 women have commenced training for such roles. All of these women have volunteered for these combat roles, and a ‘very small number’ have been deployed.
Although the DoD did not want to ‘spotlight’ the combat roles women are performing or training for, the DoD advised the Committee that in the Army:
31 women are trained or undergoing training for armoured corps roles;
10 are trained or undergoing training for artillery roles; and
27 are trained or undergoing training for infantry.
In a submission to the Committee, the DoD stated that there is ‘no target’ for women serving in combat roles.
The DoD advised that the attrition rates of women who had commenced in combat roles, or the training for such positions, ‘is broadly no different to the male attrition rate’. The rate of applicants who apply for, but fail to meet the physical employment standard for, these roles is also no different between genders.
At the public hearing, the Department of the Prime Minister and Cabinet (DPMC) stated that the removal of gender restrictions has been ‘instrumental’ in driving a significant cultural shift within the ADF. The DPMC also noted that the DoD has,
…worked hard to create an environment that supports the aspiration of all members to contribute fully to the Australian Defence Force capability. Women are vital to Defence's role in establishing and maintaining international peace and security… Defence recognises that these changes will have a positive impact in terms of addressing the systemic factors impacting women's employment opportunities, economic security and safety. Within Defence, cultural reform continues to be a strategic driver and will further reduce barriers to women's participation by recognising the need to capitalise on the broadest diversity of Australia's talent pool.
Women in the Australian Defence Force
As of May 2017, women comprised 16.4 per cent of the permanent ADF. At the public hearing the DoD explained that there are ‘some specific targets’ for increasing the overall participation of women in the ADF. The DoD advised that the ADF has the following female participation targets:
Army - 15 per cent by 2023;
Navy – 25 per cent by 2023; and
Air Force – 25 per cent by 2023.
The gender imbalance is most pronounced in the upper levels of command. This becomes clear when considering the male to female ratio of Star Ranked officers across all three services. As at 2012:
in the Navy, one of 52 star ranked officers is female;
in the Army, four of 71 star ranked officers is female; and
in the Air Force, one of 53 star ranked officers is female.
At the public hearing, the DoD noted that there has been ‘gradual growth’ of women serving in senior roles within the ADF, commenting that in the past year an additional nine women have been promoted to senior roles.
According to the Chief of Defence Force, the removal of gender restrictions on ADF combat roles reflects the need to increase ADF capabilities. This need extends in general to a more rigorous attempt to encourage applicants for ADF service.
The DoD asserts that since the Broderick Reviews, ‘significant progress’ has been made to improve the following:
employment pathways to increase the representation of women in leadership roles;
mentoring, networking and development opportunities;
access to flexible working arrangements; and
the number of women applying and being recruited by the ADF.
Canada, the Netherlands, Norway and New Zealand have all officially removed restrictions on women’s participation in combat roles, albeit with some initial qualifications. The United Kingdom and the United States of America have made similar commitments in recent years.
However, the defence forces listed above experience a similar low level of participation of women as the ADF. As at 2012, none of the forces have a proportional representation of women at star rank officer level. In New Zealand, the highest ranking female officer is a brigadier. Despite the Dutch army opening up combat roles to women in 1979, in 2007, only two women in the Netherlands held positions at Two Star Rank or above.
Withdrawing the reservation from CEDAW will oblige the ADF to ensure future policy instruments and recruitment processes accord with Article 11(1)(b) and (c) of CEDAW. The specific section of CEDAW provides as follows:
State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;
(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training.
The effect of withdrawing the reservation is that ADF policy on gender‑equality in all roles cannot be reversed in the future without risking inconsistency with Australia’s obligations under Article 11(1)(b) and (c).
Reasons for implementing proposed treaty action
The withdrawal of the reservation gives women the right to the same employment opportunities and free choice of profession and employment on an equal basis with men.
According to the NIA, Australia’s reservation withdrawal will be positively received by stakeholders, including women’s rights organisations, human rights non‑government organisations and the international community.
The NIA also states that the withdrawal of the reservation forms part of broader initiatives to increase recruitment of women into the ADF, following the Review into the Treatment of Women in the ADF, led by former Sex Discrimination Commissioner Elizabeth Broderick AO.
The NIA advises that the Australian Human Rights Commission and human rights non‑government organisations have long advocated for the removal of gender restrictions in the ADF. The organisations welcomed the change in policy and the withdrawal of the reservation.
The Australian Human Rights Commission and the Australian Lawyers Alliance made submissions to the Committee’s review. Both welcomed the proposal to withdraw the reservation. The Commission commented that the withdrawal of the reservation will ‘also send a strong message of commitment by the Australian Government to eliminating all forms of discrimination against women’.
Similarly the Australian Lawyers Alliance strongly supported the treaty action, further commenting that the withdrawal of the reservation contributes ‘to the development of formal equality, but this must be supported by measures that create substantive equality’.
The withdrawal of the reservation accords with Australia’s existing domestic policy and legislation. As the removal of gender restrictions from ADF combat roles were finalised from 1 January 2016, no further policy action is required.
Reservations may be withdrawn at any time by notification to the United Nations Secretary‑General. It is proposed that the process to withdraw the reservation will occur as soon as practicable following the Committee’s consideration of the proposal.
The Government also intends to repeal section 43 of the Sex Discrimination Act 1984, which exempts the exclusion of women from combat duties from its scope. The repeal of section 43 is being progressed through the Civil Law and Justice Legislation Bill 2016. The Bill was introduced into the Senate on 22 March 2017. At time of writing, the Bill has not been brought on for debate.
The withdrawal of the reservation will not incur costs.
The Committee strongly supports the commitment of successive governments to gender equality within the ADF and the policy decision to remove gender restrictions for combat roles. The only determining factor for combat roles within the ADF should be physical and intellectual capability, not gender. Any Australian who wishes to serve in such roles should be selected on the basis of merit and ability.
The Committee notes however that, on the DoD’s own assessment, there is still a significant road ahead before gender balance is achieved within the ADF. The Committee is encouraged by the increase in women serving in senior roles, but notes that increases have been small and slow.
The Committee considers that broader cultural change is necessary to implement greater gender equity. Initiatives which allow greater flexibility through a working life – such as the Total Workforce Model – should contribute to recruiting and retaining women in the ADF.
The Committee strongly supports the proposed treaty action to withdraw Australia’s reservation to CEDAW on the women in combat roles within the ADF. The original reservation no longer reflects government policy nor the expectations of the Australian community.
The Committee supports the withdrawal of Australia’s reservation to Article 11(1)(b) and (c) of the Convention on the Elimination of all Forms of Discrimination Against Women and recommends that binding treaty action be taken.