CHAPTER 11
Summary of the views of Committee members
11.1
While the committee has received extensive evidence of areas in which
the Act could be improved, it is notable that the submissions to this inquiry
were overwhelmingly supportive of the Act and its objects. That represents a
very dramatic shift in public attitudes since the controversial passage of the
Act nearly 25 years ago. It is not possible to disentangle from other factors
what contribution the Act has made to this widespread acceptance of the goal of
gender equality, but it seems likely to have been a substantial one. As
commentators including Dr Smith have pointed out, legislation plays a normative
role: it acts as a powerful symbol of what behaviour society regards as
unacceptable, what we value and what we aspire to.[1]
11.2
The committee shares the view expressed by the Sex Discrimination
Commissioner that:
[T]he Sex Discrimination Act matters. It matters as a tool for
driving systemic and cultural change which is needed if we are to live in a
country where men and women enjoy true gender equality in their daily lives.
The Act has been in operation for nearly 25 years. Like most law, it is time to
renew it to ensure that it continues to be an effective platform for
progressing gender equality.[2]
11.3
Some submissions suggested that the time frame of this inquiry was too
short and others argued that some changes to the Act require further
consultation.[3]
The committee believes that a review of the Act was timely and that there are
clearly a number of immediate changes which could be made to improve the Act.
However, the committee accepts that other changes are more complex and require
further consultation and consideration. The committee has therefore grouped its
recommendations according to whether they are:
-
changes which ought to occur immediately;
-
changes which require further consultation but should be
considered over the next 12 months; or
-
longer term changes which require significant further
consultation and consideration.
11.4
The committee has not made recommendations regarding implementation of a
paid parental leave system. While the committee supports such a system, it
considers that the draft report and recommendations of the Productivity
Commission have more than adequately addressed this issue.
Suggested changes for immediate implementation
Objects
11.5
The committee believes that the Act should set out an unequivocal
commitment to the elimination of sex discrimination and sexual harassment. The
qualification of the commitment to eliminate discrimination in the preamble to
the Act and the objects in section 3 by the phrase ‘as far as is possible’ is
unhelpful at best. At worst, it suggests only a half-hearted conviction that
eliminating discrimination is desirable and achievable.
11.6
The objects of the Act currently include giving effect to CEDAW which is
directed primarily at the elimination of discrimination against women. The
objects do not refer to ICCPR, ICESCR or the ILO conventions which create
obligations in relation to eliminating sex discrimination and promoting gender
equality.[4]
In the committee’s view, it is important that the Act represents a commitment
to achieving gender equality rather than the narrower goal of eliminating
discrimination against women. The objects of the Act should therefore explicitly
refer to these other international conventions which create obligations in
relation to gender equality.
Recommendation 1
11.7
The committee recommends that the preamble to the Act and subsections
3(b), (ba) and (c) of the Act be amended by deleting the phrase ‘so far as is
possible’.
Recommendation 2
11.8
The committee recommends that subsection 3(a) of the Act be amended to
refer to other international conventions Australia has ratified which create
obligations in relation to gender equality.
Interpretation and definitions
11.9
The committee is concerned by evidence it received suggesting that the
courts have adopted a narrow approach to interpretation of the Act. A key
purpose of the Act is to implement Australia’s international obligations to
eliminate sex discrimination. The committee agrees that the Act ought to be
interpreted broadly given its beneficial purpose and, in particular, that
interpretation of the Act should be consistent with Australia’s international
obligations. There is already a presumption at common law that domestic
legislation should be interpreted consistently with Australia’s obligations
under international law. However, as HREOC pointed out, there are a plethora of
competing interpretative principles. The committee therefore considers that
there should be an express requirement under the Act for the courts to
interpret the provisions of the Act consistently with the international
conventions it seeks to implement.
Recommendation 3
11.10
The committee recommends that the Act be amended by inserting an express
requirement that the Act be interpreted in accordance with relevant international
conventions Australia has ratified including CEDAW, ICCPR, ICESCR and the ILO
conventions which create obligations in relation to gender equality.
11.11
The committee considers that the definition of ‘de facto spouse’ in
section 4 of the Act should be amended to include same-sex couples. This would
protect same-sex couples from discrimination on the basis of their relationship
status. In its inquiry into the Same-Sex Relationships (Equal Treatment in
Commonwealth Laws—General Law Reform) Bill 2008, the committee received
submissions expressing concern that amendments to social security and tax
legislation to remove discrimination against same-sex couples will require
those couples to declare their relationship status. This includes many elderly
couples who may not previously have declared their relationship to others. In
this context, the committee is particularly concerned to ensure that the Act
provides protection to same-sex couples from discrimination based upon their
relationship status.
11.12
Evidence to the committee clearly demonstrated the difficulties in
making out a complaint of discrimination under the Act caused by the current
definitions of discrimination. In particular, the requirement for complainants
to show that they were treated less favourably than a comparator seems to add
unnecessary complexity to consideration of whether the treatment of the
complainant was discriminatory. It appears both simpler and more in keeping
with the purpose of the Act to use a definition of direct discrimination similar
to that under paragraph 8(1)(a) of the Discrimination Act 1991 (ACT)
which simply requires the applicant to show that he or she has been treated
unfavourably because of a protected attribute (such as sex, marital status or
pregnancy). The committee has accordingly recommended amendment of the
definitions of direct discrimination in sections 5 to 7A of the Act to replace
the comparator test with a test of unfavourable treatment.
11.13
The committee also supports replacing the reasonableness test in
relation to indirect discrimination with a test requiring that the condition,
requirement or practice be legitimate and proportionate. Comparable jurisdictions
including the United States and the United Kingdom provide for a more stringent
test than reasonableness. The committee considers that something more than
reasonableness should be required where practices are likely to disadvantage
one sex, people of a particular marital status or pregnant women. Specifically,
conditions, requirements or practices that disadvantage such groups should only
be imposed in pursuit of a legitimate object and where they are proportionate,
in the sense that they are the least restrictive means of achieving that
object.
11.14
The committee notes concerns about the narrow interpretation of the
phrase ‘condition, requirement or practice’ in the Kelly case but, with
respect, considers that this case did not interpret that phrase correctly: a
decision by an employer to refuse to provide part-time work is surely an employment
practice and not merely the withholding of a benefit from an employee. Evidence
to the committee also pointed to the High Court decision in Amery but
that decision concerned an equivalent provision under the Anti-Discrimination
Act 1977 (NSW) which is not worded in the same way as the indirect
discrimination provisions in the Act and, in particular, refers only to ‘a requirement
or condition’ and not to ‘practices’.
Recommendation 4
11.15
In order to provide protection to same-sex couples from discrimination
on the basis of their relationship status, the committee recommends that:
-
references in the Act to ‘marital status’ be replaced with
‘marital or relationship status’; and
-
the definition of ‘marital status’ in section 4 of the Act be
replaced with a definition of ‘marital or relationship status’ which includes
being the same-sex partner of another person.
Recommendation 5
11.16
The committee recommends that the definitions of direct discrimination
in sections 5 to 7A of the Act be amended to remove the requirement for a
comparator and replace this with a test of unfavourable treatment similar to
that in paragraph 8(1)(a) of the Discrimination Act 1991 (ACT).
Recommendation 6
11.17
The committee recommends that section 7B of the Act be amended to
replace the reasonableness test in relation to indirect discrimination with a
test requiring that the imposition of the condition, requirement or practice be
legitimate and proportionate.
Scope of the Act
11.18
The committee strongly believes that the Act should provide equal
protection to men from sex discrimination. This is important for both practical
and symbolic reasons. On a practical level, removing discrimination against men
in relation to their role as parents and carers is important in the process of
recasting gender roles in a manner which is more equitable to both men and
women. Furthermore, public support for the Act increasingly depends upon it being
directed, not just at eliminating discrimination against women, but at the
broader goal of gender equality. The committee therefore recommends that
subsection 9(10) of the Act be amended to refer not only to CEDAW but also to Australia’s
other international obligations with respect to gender equality. This will
ensure that the Act provides equal coverage to men and women. The committee
notes that a similar amendment to the Act was made by the Same-Sex
Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act
2008 to provide a constitutional basis for the provisions extending
protection against discrimination on the basis of family responsibilities to
same-sex couples.
Recommendation 7
11.19
The committee recommends that subsection 9(10) of the Act be amended to
refer to ICCPR, ICESCR, and the ILO conventions which create obligations in
relation to gender equality, as well as CEDAW, in order to ensure that the Act
provides equal coverage to men and women.
11.20
The committee is concerned by evidence it received of specific gaps in
coverage under the Act. At present, it is doubtful whether the Act protects
volunteers and independent contractors from sex discrimination and sexual
harassment. In addition, the Act expressly excludes from coverage partnerships
with fewer than six partners, and the Crown in right of the states and state
instrumentalities.
11.21
While it is true that some complainants may be able to rely on state and
territory legislation for a remedy, the committee does not consider that
coverage under the federal Act should be so partial or depend upon such
arbitrary distinctions. The committee has therefore recommended amendments to
the Act to remove the most significant gaps in coverage identified by the
inquiry.
11.22
Moreover, the existing patchwork approach to coverage under the Act
appears both unnecessarily complex and undesirable. The committee recommends
that the Act be amended to include a general prohibition against sex discrimination
and sexual harassment in all areas of public life equivalent to section 9 of
the Racial Discrimination Act 1975. Similarly, the committee supports
proposals that the Act be amended to include a general equality before the law provision
equivalent to section 10 of the Racial Discrimination Act 1975.
11.23
While HREOC has suggested that these changes be the subject of further
consultation, the committee is mindful that it is now 14 years since ALRC made
similar recommendations. In addition, the operation of similar provisions under
the Racial Discrimination Act 1975 for over thirty years does not
suggest that there are likely to be any unforeseen problems with the
introduction of similar protection from sex discrimination and sexual
harassment in public life. As a matter of principle, it is difficult to justify
providing narrower protection from sex discrimination than the protection
afforded from discrimination on the basis of race. Further, the absence of
general protection provisions in the Act sends an unfortunate message that sex
discrimination and sexual harassment are primarily private matters which should
only be prohibited in narrowly specified public spheres.
Recommendation 8
11.24
The committee recommends that the Act be amended to include a general prohibition
against sex discrimination and sexual harassment in any area of public life equivalent
to section 9 of the Racial Discrimination Act 1975.
Recommendation 9
11.25
The committee recommends that the Act be amended to include a general
equality before the law provision modelled on section 10 of the Racial
Discrimination Act 1975.
Recommendation 10
11.26
The committee recommends that the Act be amended:
Recommendation 11
11.27
The committee recommends that subsection 12(1) of the Act be amended and
section 13 repealed to ensure that the Crown in right of the states and state
instrumentalities are comprehensively bound by the Act.
11.28
The committee acknowledges that the intent of the Act is to protect
women from discrimination based upon them breastfeeding. This is achieved by
providing in subsection 5(1A) that breastfeeding is a characteristic that
appertains generally to women. This seems a somewhat circuitous path. It would
be desirable for the Act to provide for specific protection against discrimination
on the ground of breastfeeding in order to send a clear message that
discrimination on this basis is prohibited.
Recommendation 12
11.29
The committee recommends that the Act be amended to make breastfeeding a
specific ground of discrimination.
11.30
Evidence to the committee overwhelmingly supported the view that the protection
against discrimination on the basis of family responsibilities under the Act is
too limited. The current protection is limited to direct discrimination
resulting in termination. This excludes the most common types of discrimination
on this ground such as employees being denied training or promotion, or being
demoted or otherwise treated less favourably as a result of their family
responsibilities.
11.31
The committee also notes the evidence it received demonstrating that a
failure to strike an appropriate balance between work and caring
responsibilities has negative consequences for the health of carers and for their
workforce participation. Striking such a balance is also important to overcoming
some entrenched aspects of gender discrimination which continue to lock women into
the role of carer and men into the role of bread-winner to the detriment of
both sexes. The committee recommends broadening protection against
discrimination on this ground. Specifically, both direct and indirect
discrimination should be prohibited and protection should extend to all aspects
of employment – not just termination.
11.32
In addition, the committee supports providing for a positive duty on
employers not to unreasonably refuse requests for flexible working arrangements
to accommodate family or carer responsibilities. The committee notes ACCI’s
submission that the NES will provide a similar right to employees and that this
change should be bedded down before any expansion of the positive duty on
employers. However, the NES will not apply to all employees and does not extend
protection to parents and carers generally but only to those caring for
children under school age. Furthermore, the committee accepts HREOC’s view that
the indirect discrimination provisions in the Act already prohibit the
unreasonable imposition of work practices that disadvantage women with family
responsibilities. As a result, the change proposed by the committee would
simply recast this duty in positive terms and extend it to men with family
responsibilities.
Recommendation 13
11.33
The committee recommends that the prohibition on discrimination on the
grounds of family responsibilities under the Act be broadened to include
indirect discrimination and discrimination in all areas of employment.
Recommendation 14
11.34
The committee recommends that the Act be amended to impose a positive
duty on employers to reasonably accommodate requests by employees for flexible
working arrangements, to accommodate family or carer responsibilities, modelled
on section 14A of the Equal Opportunity Act 1995 (VIC).
11.35
The committee does not recommend narrowing the scope of the Act to allow
states and territories to discriminate, on the basis of marital status, in
relation to access to assisted reproductive technology, adoption and surrogacy.
The committee acknowledges that such proposals are motivated by the sincere
religious convictions of groups such as the Australian Christian Lobby and
their belief that the welfare of children is best served by being raised by a
mother and father. However, a bill to enact these changes was previously
subject to extensive scrutiny by this committee and the Parliament.[5]
Ultimately, that bill was not passed even after the previous government obtained
a majority in the Senate. There are clearly a wide diversity of views in relation
to this issue and evidence to the committee’s previous inquiry shows that many
within the community would view such an amendment as discriminatory. In
addition, it is likely that such an amendment would be contrary to Australia’s
obligations under CEDAW – the very convention the Act was enacted to implement.
Sexual harassment
11.36
The committee heard evidence that the existing definition of ‘sexual
harassment’ is too narrow because it requires that a reasonable person would
have anticipated that the person harassed would be offended, humiliated
or intimidated by the conduct. Under this definition, the Act seems to permit,
for example, unwelcome conduct of a sexual nature where a person realises that
it is possible the other person will be humiliated by that conduct but thinks
the odds are against it and decides to run the risk. The committee prefers the
definition under section 119 of the Anti-Discrimination Act 1991 (QLD)
which requires that a ‘reasonable person would have anticipated the possibility
that the other person would be offended, humiliated or intimidated by the
conduct’ (emphasis added).
11.37
The committee considers that it would be desirable for the Act to
provide additional guidance on what factors are relevant circumstances to be
considered in assessing whether a reasonable person would have anticipated that
the other person would be offended, humiliated or intimidated by the conduct.
Specifically, the Act should include a provision equivalent to section 120 of
the Anti-Discrimination Act 1991 (Qld). Section 120 provides that the relevant
circumstances include the individual characteristics of the person harassed
including factors such as the person’s age, race and sex. Such a provision
would ensure that the courts apply the sexual harassment provisions having
particular regard to characteristics of the person harassed which have an
impact upon how the person experiences the unwelcome conduct.
11.38
The inquiry received evidence of gaps in coverage under the sexual
harassment provisions, particularly in relation to harassment occurring in
educational institutions and workplaces. In relation to educational
institutions, there is not currently protection under the Act if the student
harassed is under 16 years of age, or if he or she is harassed by someone from
a different educational institution.
11.39
The committee notes the evidence of the Association of Independent
Schools of South Australia that schools have existing procedures for handling
sexual harassment involving students and the Association’s concerns that HREOC
may not best placed to handle such cases in the best interests of both
students. However, the committee is confident that HREOC’s existing complaint
handling procedures have sufficient flexibility to deal appropriately with such
sensitive issues. Furthermore, the availability of protection under the Act
does not preclude schools continuing to use their internal procedures for
resolving such matters; it merely provides an additional option where a matter
is not satisfactorily resolved under those procedures. Accordingly, the
committee considers that the Act should protect all students regardless of age from
sexual harassment. There should also be protection for students harassed by a teacher
or student from another educational institution.
11.40
There are other gaps in the coverage of the sexual harassment provisions
of the Act that relate to workplaces. The committee accepts that sexual
harassment of workers by clients or customers is clearly possible and that
harassment may also occur in the context of professional relationships, such as
between solicitors and barristers. The committee therefore recommends that the Act
be amended to provide protection to workers who are harassed by clients, customers
or other persons they have contact with through their employment, rather than being
limited to harassment by workplace participants.
11.41
This amendment should place liability for the harassment upon the
individual harasser. The committee is cognisant that the amendment would
marginally broaden the potential liability of employers because of the
operation of section 106 of the Act which imposes vicarious liability on
employers for the actions of their employees. For example, an employer may be
vicariously liable for an employee solicitor harassing a barrister. However, in
practical terms, it seems unlikely that any additional steps would be required
of employers beyond those needed to meet their existing obligation to take all
reasonable steps to ensure their employees do not engage in harassment of other
employees or workplace participants.[6]
11.42
The committee notes with concern the evidence it received from ACCI about
employers dismissing employees in an effort to enforce their sexual harassment
policies but subsequently being required to reinstate those employees as a
result of unfair dismissal proceedings. The committee acknowledges that
striking an appropriate balance between the rights of workers to be protected
from sexual harassment and the right of workers not to be dismissed unfairly is
a complex task both for employers and for industrial relations commissions. The
committee also notes advice from the Attorney-General’s Department that two of
the case ACCI referred to were overturned on appeal. Given the introduction of the
Fair Work Bill 2008 on 25 November 2008 and, thus the likelihood of
significant changes to federal industrial relations legislation in the near
future, the committee makes no recommendation on this issue.
Recommendation 15
11.43
The committee recommends that the definition of sexual harassment in
section 28A of the Act be amended to provide that sexual harassment occurs if a
reasonable person would have anticipated the possibility that the person
harassed would be offended, humiliated or intimidated.
Recommendation 16
11.44
The committee recommends that the section 28A of the Act be amended to
provide that the circumstances relevant to determining whether a reasonable
person would have anticipated the possibility that the other person would be
offended, humiliated or intimidated by the conduct include:
-
the sex, age and race of the other person;
-
any impairment that the other person has;
-
the relationship between the other person and the person engaging
in the conduct; and
-
any other circumstance of the other person.
Recommendation 17
11.45
The committee recommends that section 28F of the Act be amended to:
-
provide protection to students from sexual harassment regardless
of their age; and
-
remove the requirement that the person responsible for the
harassment must be at the same educational institution as the victim of the
harassment.
Recommendation 18
11.46
The committee recommends that the Act be amended to protect workers from
sexual harassment by customers, clients and other persons with whom they come
into contact in connection with their employment.
Complaints process
11.47
The committee is conscious that the complaints process for sex
discrimination and sexual harassment claims is shared with other federal
anti-discrimination legislation. It seems very likely that much of the evidence
the committee received regarding the difficulties in pursuing complaints under
the Act has equal application to complaints under the other federal
anti-discrimination laws. The committee has therefore framed most of the
recommendations in this section generally rather than limiting their
application to claims under the Act. However, given the wider implications of proposed
amendments related to the complaints process, the committee has taken a conservative
approach to these recommendations.
11.48
The committee accepts the evidence it received that a clear deficiency
of the existing Act and other federal anti-discrimination legislation is its
inability to deal with claims of discrimination on intersecting grounds. The
committee believes there is some merit in the proposal to address this
difficulty by replacing the existing anti-discrimination acts with a single
Equality Act. However, this is a change which clearly requires further
consultation.
11.49
As an interim approach, the Act and other anti-discrimination laws
should provide for the joining of complaints which allege discrimination on
grounds prohibited by separate anti-discrimination acts. In essence, the committee
adopts recommendation 3.9 of the ALRC Equality Before the Law report
that the Act or the HREOC Act should be amended to provide that, where a
complainant formulates his or her complaint on the basis of different grounds
of discrimination covered by separate federal legislation, then HREOC or the
court must consider joining the complaints under the relevant pieces of
legislation.[7]
The committee notes that the Age Discrimination Act 2004 was passed
after ALRC made its recommendation and should be included within the scope of
this proposed amendment.
11.50
Evidence to the committee clearly demonstrated that individuals seeking
to enforce their rights under the Act confront a series of almost insuperable
difficulties not the least of which is obtaining legal representation. The
committee therefore makes two recommendations aimed at improving representation
and support for complainants.
11.51
Firstly, the committee agrees that public interest organisations should
have standing to pursue sex discrimination or sexual harassment complaints on
behalf of complainants in the Federal Court or the Federal Magistrates Court.
This would have the added benefit of making the standing provisions for lodging
an application in the courts consistent with the standing requirements for
lodging a complaint with HREOC.
11.52
Secondly, the committee supports increasing funding to legal aid
commissions and organisations which providing free or low cost advice in
relation to sex discrimination or sexual harassment matters. The committee
envisages that this additional funding would significantly enhance the
effectiveness of the Act as these organisations will often be able to resolve
matters which might otherwise escalate into complaints simply through the
provision of accurate advice about what the Act requires.
11.53
The committee notes the evidence it received in relation to the
difficulties posed by the restrictive tests applicable to the funding of
discrimination matters under existing legal aid guidelines. The committee draws
this evidence to the attention of the Attorney-General’s Department so that
this issue can be addressed in the context of the current negotiations for new
legal aid agreements with the legal aid commissions.
11.54
The committee accepts HREOC’s advice that the existing time allowed,
after termination of a complaint, for the complainant to lodge an application
with the Federal Court or the Federal Magistrates Court is too short. This
seems an unnecessary hurdle for complainants and the committee therefore
recommends increasing the time allowed for complainants to lodge applications with
the Federal Court or Federal Magistrates Court from 28 days to 60 days.
11.55
A further hurdle for complainants is demonstrating that the reason for the
respondent’s conduct was the complainant’s sex, marital status, pregnancy or
family responsibilities. Almost invariably, respondents will be in a better
position to produce evidence in relation to the reason for their conduct than
applicants. As a result, the committee considers that a shifting burden of
proof would be more appropriate in sex discrimination cases. The committee
therefore recommends that a provision be inserted in the Act in similar terms
to section 63A of the Sex Discrimination Act 1975 (UK). This
would mean that, where the complainant proves facts from which the court could conclude,
in the absence of an adequate explanation, that the respondent discriminated
against the complainant, the court must uphold the complaint unless the
respondent proves that he or she did not discriminate.
11.56
At present, the remedies available for breaches of the Act focus upon redressing
the harm caused to particular individuals by acts of discrimination or
harassment by providing those individuals with damages or, in cases involving
termination of employment, reinstatement. However, discrimination rarely
affects a single individual in isolation. No doubt the hope when the Act was
passed was that individual complaints would have a ripple effect producing
broader compliance with obligations under the Act. The committee believes that
a key means of ensuring that individual complaints do have such an effect would
be to broaden the existing remedies available to include corrective and
preventative orders. In particular, there should be the capacity for the courts
to order the respondent to perform any reasonable act or course of conduct
aimed at ensuring future compliance with the Act.
11.57
The committee is concerned by evidence it received that complainants are
deterred from pursuing claims in the courts because of the risk that they will
be liable for the costs of the respondent. It was suggested that either costs
should routinely be capped or that parties should generally bear their own
costs. However, the committee notes that there is existing provision for the
Federal Court and the Federal Magistrates Court to make orders capping costs. Further,
a rule that each party will generally bear its own costs would have both
advantages and disadvantages for complainants in that those who are successful
would generally be left to pay their own legal fees. More fundamentally, the
committee considers that this issue would be better addressed through changes
to allow for enforcement of the Act by a public body rather than changes to the
general rules in relation to costs.
Recommendation 19
11.58
The committee recommends that the HREOC Act should be amended to provide
that, where a complaint is based on different grounds of discrimination covered
by separate federal anti-discrimination legislation, then HREOC or the court
must consider joining the complaints under the relevant pieces of legislation.
In so doing, HREOC or the court must consider the interrelation of the
complaints and accord an appropriate remedy if the discrimination is
substantiated.
Recommendation 20
11.59
The committee recommends that subsection 46PO(1) of the HREOC Act be
amended to make the standing requirements for lodging an application with the
Federal Court or the Federal Magistrates Court consistent with the requirements
for lodging a complaint with HREOC as set out in subsection 46P(2) of the HREOC
Act.
Recommendation 21
11.60
The committee recommends that subsection 46PO(2) of the HREOC Act be
amended to increase the time limit for lodging an application with the Federal
Court or Federal Magistrates Court from 28 days after termination of the
complaint to 60 days.
Recommendation 22
11.61
The committee recommends that a provision be inserted in the Act in
similar terms to section 63A of the Sex Discrimination Act 1975 (UK) so
that, where the complainant proves facts from which the court could conclude,
in the absence of an adequate explanation, that the respondent discriminated
against the complainant, the court must uphold the complaint unless the
respondent proves that he or she did not discriminate.
Recommendation 23
11.62
The committee recommends that the remedies available under subsection
46PO(4) of the HREOC Act where a court determines discrimination has occurred
be expanded to include corrective and preventative orders.
Recommendation 24
11.63
The committee recommends that increased funding be provided to the
working women’s centres, community legal centres, specialist low cost legal
services and legal aid to ensure they have the resources to provide advice for
sex discrimination and sexual harassment matters.
Exemptions
11.64
The committee is attracted to the idea of a general limitations clause replacing
the existing permanent exemptions. Such an approach is clearly more flexible
and allows for a more nuanced approach to balancing of rights and interests
where these are in conflict. While the committee acknowledges that this
approach provides less certainty, Australia would have the experience of other
jurisdictions to draw upon and HREOC would be able to play a role in educating
the public about the practical application of the provision. Most importantly,
it would allow the Act to evolve with prevailing community attitudes rather
than freezing the exceptions at a particular point in time.
11.65
Nevertheless, the committee accepts that this would be a major change to
the Act and it warrants more in depth consultation than has been possible in
the course of this inquiry, particularly in light of the diverse range of
groups likely to be affected. The committee has therefore recommended that
further consideration be given to replacing the permanent exemptions under the
Act with a general limitations clause and that there be additional consultation
on this issue over the next 12 months (see recommendation 36).
11.66
If the exemptions are not replaced by a general limitations clause then
the committee considers that the drafting of the exemption relating to religious
educational organisations in section 38 should be reviewed. The purpose of the
exemption in section 38 is to protect religious freedom. However, Christian
Schools Australia noted that the exemption in section 38 is not used by its
members to discriminate on the basis of sex and pregnancy but only on the basis
of marital status. The Independent Education Union also suggested that, in
addition to being in ‘good faith’, discrimination under section 38 should be
‘reasonable’.
11.67
The committee has therefore recommended that there be further
consultation regarding the drafting of section 38 with a view to ensuring that:
-
protection of the right to freedom of religion is maintained; and
-
the provision limits the rights of employees and students to be
protected from sex discrimination as little as possible (see recommendation
35).
11.68
The committee considers that there are a number of changes to the
exemptions which should be implemented immediately. The committee heard persuasive
arguments for the removal of the exemption relating to voluntary organisations
(section 39). Both ALRC and a previous Sex Discrimination Commissioner have recommended
the removal of this exemption. The committee supports this view and notes that
if this permanent exemption was removed it would still be possible for
organisations to apply to HREOC for temporary exemptions if necessary. However,
the committee is conscious that this approach may have particular impact on
voluntary organisations with single-sex membership.[8]
As a result the committee recommends that consideration should be given to
broadening the definition of ‘clubs’ in section 4 so that the prohibitions on
discrimination under section 25 apply to a broader range of organisations and
those organisations will have the benefit of the exception in subsection 25(3)
which permits single-sex clubs.
11.69
The committee acknowledges that strong arguments were made for the
removal of other exemptions particularly the exemptions relating to sport
(section 42) and combat duties (section 43). While the committee has not
recommended the immediate removal of these exemptions, it considers that those
arguments reinforce the case for replacing all of the permanent exemptions with
a general limitations clause.
11.70
As a technical matter, the committee agrees that the incorporation of
sections 31 and 32 in Division 4 of Part II which deals with exemptions to the
operation of the Act is likely to add to confusion about when differential
treatment is permitted, or even required, in the interests of equality.[9]
The committee agrees that these provisions should more logically be placed
alongside the provisions which define discrimination, in particular, section 7D
which deals with temporary special measures.
11.71
Finally, the committee agrees that HREOC should exercise its power to
grant temporary exemptions in accordance with the objects of the Act. This is
simply codifying the existing approach HREOC takes under its guidelines. Nevertheless,
it is important that this power should not be described so broadly as to permit
the granting of exemptions which might undermine the fundamental purposes of
the Act.
Recommendation 25
11.72
The committee recommends that the Act be amended to remove the exemption
for voluntary organisations in section 39.
Recommendation 26
11.73
The committee recommends that the definition of ‘clubs’ in section 4 be
expanded so that:
-
the prohibition on discrimination with respect to clubs applies
to a broader range of organisations; and
-
those organisations have access to the automatic exception in
subsection 25(3) permitting single-sex clubs.
Recommendation 27
11.74
The committee recommends that provisions such as sections 31 and 32,
which clarify that certain differential treatment is not discriminatory, should
be removed from Part II Division 4 which deals with exemptions and instead be
consolidated with section 7D.
Recommendation 28
11.75
The committee recommends that section 44 of the Act be amended to clarify
that the power of HREOC to grant temporary exemptions is to be exercised in
accordance with the objects of the Act.
Powers of HREOC and the Sex
Discrimination Commissioner
11.76
The committee is persuaded by the evidence it received indicating that
there are deficiencies in the existing powers of the HREOC and the Sex
Discrimination Commissioner to enforce the obligations created by the Act. Some
of these are technical matters related to the drafting of various provisions in
the Act and the HREOC Act which can be quickly remedied. Others are more
fundamental issues linked to the enforcement model adopted by the Act which
require additional consultation to identify the best solution.
11.77
The committee accepts that the most fundamental limitation of the Act is
its reliance on enforcement through individuals pursuing complaints. The
committee considers that there is merit in the proposal that the Sex Discrimination
Commissioner be empowered to initiate an investigation of alleged breaches of
the Act and have a range of powers aimed at resolving any breaches of the Act
she identifies without the necessity for court action. The committee also
supports HREOC being empowered to pursue enforcement of the Act in the Federal
Court or the Federal Magistrates Court where resolution through these
mechanisms is not possible.
11.78
Providing additional powers to the commissioner and HREOC, would not
prevent the continued use of more cooperative approaches such as education
programs and informal advice on the requirements of the Act. Furthermore, the
committee envisages that the use of these powers to initiate investigation and
enforcement of breaches of the Act would be limited to the most serious and
persistent cases of sex discrimination. However, these changes would represent
a fundamental change to the Act. The committee is particularly concerned about
how these new functions would interact with HREOC’s conciliation function. As a
result, the committee suggests that these proposed changes be the subject of
additional consultation to ensure that the most effective means of improving
enforcement mechanisms under the Act is adopted.
11.79
HREOC’s powers to conduct formal inquiries are limited to inquiries into
Commonwealth laws or actions done by the Commonwealth or its territories. This
limitation seems both unnecessary and artificial. More importantly, it
hamstrings the capacity of HREOC to examine the more intractable or systemic
areas of sex discrimination which generally cross the boundaries between the
Commonwealth and the states. The committee believes that Australia’s national
human rights institution should have broad ranging formal inquiry powers that
enable it to identify and suggest solutions to these remaining areas of gender
inequality. Some evidence to the committee suggested vesting the Sex
Discrimination Commissioner with an inquiry function but, in light of the
existing function of HREOC to conduct inquiries, the committee believes that it
would be more logical to expand HREOC’s existing powers.
11.80
The committee also considers that HREOC should have the power to intervene
and the Sex Discrimination Commissioner to act as amicus curiae as of right. It
would seem appropriate to allow HREOC and the commissioner to determine whether
a case is sufficiently important, in terms of the human rights issues it
raises, to warrant their intervention. Furthermore, providing for a right to
intervene or act as amicus acknowledges that there is a public interest in
eliminating discrimination and that discrimination is not merely a private
matter. In any case, HREOC and the commissioner are constrained by resources to
use these powers sparingly.
11.81
In addition, these functions appear to be limited in two technical respects
and the committee considers that these limitations should be removed. Firstly, HREOC
should explicitly have the power to intervene in court proceedings relating to
family responsibilities discrimination or victimisation. Secondly, the special
purpose commissioners should be empowered to appear as amicus curiae in appeals
from discrimination decisions made by the Federal Court and Federal Magistrates
Court as well as the proceedings at first instance.
11.82
Finally, the committee considers that there should be a requirement for
the Sex Discrimination Commissioner to report to Parliament every four years. These
reports should precede Australia’s reports to the UN committee by twelve months.
This would demonstrate the Australian Government’s commitment to independent
monitoring and assessment of progress towards gender equality. In addition, it
would ensure that reports are produced against a timeframe in which it is
reasonable to expect measurable progress. Most importantly, it would allow for
an assessment of whether existing legislation and programs are succeeding in
eliminating discrimination and allow for adjustments if they are not. The
committee believes it is important that these reports be mandatory to ensure
that this function is not ‘crowded out’ by more immediate concerns such as
complaint handling.
Recommendation 29
11.83
The committee recommends that the Act and the HREOC Act should be
amended to expand HREOC’s powers to conduct formal inquiries into issues relevant
to eliminating sex discrimination and promoting gender equality and, in
particular, to permit inquiries which examine matters within a state or under
state laws.
Recommendation 30
11.84
The committee recommends that paragraph 48(1)(gb) of the Act be amended
to explicitly confer a function on HREOC of intervening in proceedings relating
to family responsibilities discrimination or victimisation.
Recommendation 31
11.85
The committee recommends that subsection 46PV(1) of the HREOC Act be
amended to include a function for the special purpose commissioners to appear
as amicus curiae in appeals from discrimination decisions made by the Federal
Court and the Federal Magistrates Court.
Recommendation 32
11.86
The committee recommends that paragraph 48(1)(gb) of the Act and subsection
46PV(2) of the HREOC Act be amended to empower HREOC to intervene in
proceedings, and the special purpose commissioners to act as amicus curiae, as
of right.
Recommendation 33
11.87
The committee recommends that the Act be amended to require the Sex Discrimination
Commissioner to monitor progress towards eliminating sex discrimination and
achieving gender equality, and to report to Parliament every four years.
Resources for HREOC
11.88
The committee is conscious that implementation of some of its
recommendations involves a significant additional workload for HREOC both in
terms of initial public education regarding changes to the Act as well as
ongoing work in relation to the broader powers to intervene in court
proceedings and conduct inquiries, and the requirement for the Sex
Discrimination Commissioner to prepare reports. Furthermore, the committee is
concerned by evidence from HREOC that existing reductions in its funding will
limit the work HREOC can undertake in educating the public about the Act.
11.89
The committee accepts the evidence from business groups that businesses
are keen to comply with their obligations under the Act for financial,
reputational and ethical reasons and that providing businesses, particularly
small and medium sized businesses, with additional advice and support to meet
their obligations is an effective way of promoting equality. As a result,
ensuring HREOC efforts in relation to its public education functions are not
compromised by a lack of funding ought to be a high priority. For all of these
reasons, the committee recommends that HREOC should be provided with additional
resources including additional ongoing funding.
Recommendation 34
11.90
The committee recommends that HREOC be provided with additional
resources to enable it to:
-
carry out an initial public education campaign in relation to
changes to the Act;
-
perform the additional roles and broader functions recommended in
this report; and
-
devote additional resources to its functions to educate the
public about the Act.
Recommendations requiring further consultation
11.91
As already noted, there are several medium term changes which require
further consultation. The committee has already discussed the need for
additional consultation in relation to proposals:
-
to remove the permanent exemptions from the Act and replace these
provisions with a general limitations clause; and
-
to empower the Sex Discrimination Commissioner and HREOC to
pursue enforcement of the Act without the need for an individual complaint.
11.92
The evidence regarding empowering HREOC to promulgate legally binding
standards indicated some of the complex considerations involved in adopting
such an approach. In particular, there is a risk that such standards may be
overly prescriptive or inflexible. On the other hand, the advantages of binding
standards include providing greater certainty about what is required to ensure
compliance with the obligations imposed by the Act. The committee considers
that a power to issue binding standards, if used judiciously, would be a useful
additional tool for HREOC to employ to encourage and facilitate compliance with
the Act.
11.93
The committee also considers that there is a clear need to strengthen
the positive obligations to eliminate discrimination imposed by the EOWW Act. Legislation
aimed at promoting equal opportunity for women in the workplace should require
something more than the development of a program and reporting on that program:
it should require progress. In the committee’s view, it would be worthwhile
considering the creation of broad positive duties:
11.94
In particular, the positive duties under the Equality Act 2006 (UK)
may provide a useful model which could be adopted and applied either to public sector
organisations or to both the public and private sector.
11.95
There is also a need to examine the relationship between the Act and the
EOWW Act. There may well be advantages to incorporating the obligations under
the EOWW Act within the Act and combining the functions of EOWA and HREOC.
11.96
While it is the committee’s view that these changes require additional
consultation, there are models available in other jurisdictions or under other
federal anti-discrimination legislation for each of these proposals. It should therefore
be possible to complete this consultation within 12 months. Given the largely
technical nature of these proposed changes, the committee has recommended that
the Attorney-General’s Department conduct the consultation.
Recommendation 35
11.97
The committee recommends that further consideration be given to reviewing
the operation of section 38 of the Act, to:
-
retain the exemption in relation to discrimination on the basis
of marital status; and
-
remove the exemption in relation to discrimination on the grounds
of sex and pregnancy; and
-
require a test of reasonableness.
Recommendation 36
11.98
The committee recommends that further consideration be given to removing
the existing permanent exemptions in section 30 and sections 34 to 43 of the
Act and replacing these exemptions with a general limitations clause.
Recommendation 37
11.99
The committee recommends that further consideration be given to amending
the Act to give the Sex Discrimination Commissioner the power to investigate
alleged breaches of the Act, without requiring an individual complaint.
Recommendation 38
11.100 The committee
recommends that further consideration be given to amending the Act to give
HREOC the power to commence legal action in the Federal Magistrates Court or
Federal Court for a breach of the Act.
Recommendation 39
11.101 The committee
recommends that further consideration be given to expanding the powers of HREOC
to include the promulgation of legally binding standards under the Act
equivalent to the powers exercised by the Minister under section 31 of the Disability
Discrimination Act 1992.
Recommendation 40
11.102 The committee
recommends that further consideration be given to amending the Act or the EOWW
Act to provide for positive duties for public sector organisations, employers,
educational institutions and other service providers to eliminate sex
discrimination and sexual harassment, and promote gender equality.
Recommendation 41
11.103 The committee
recommends that further consideration be given to the relationship between the
Act and the EOWW Act, in particular, whether:
Recommendation 42
11.104 The committee
recommends that the Attorney-General’s Department conduct consultations
regarding the further possible changes to the Act outlined in recommendations 35
to 41 and report publicly on the outcomes of that consultation within 12
months.
Broader review of Commonwealth anti-discrimination law
11.105 Some evidence to
the committee advocated changes which require much broader and more in depth
consultation than has been possible during the course of this inquiry. Foremost
among these is the proposal that the Act and other federal anti-discrimination
laws be replaced by a single Equality Act.
11.106 The merits of
introducing a single Equality Act may be one of options for harmonisation which
will be examined through the SCAG process. However, the committee considers
that such a significant change warrants a public inquiry and that HREOC is best
placed to conduct that inquiry.
11.107 The committee
received some evidence about both the benefits and disadvantages of a single
omnibus act. That evidence highlighted the complexity of the issues involved
and the broad range of groups likely to be affected by such a change. The
committee is also mindful that some of the existing anti-discrimination acts
have an iconic status for some groups in the community. As a result, the
mechanics of how anti-discrimination law operates are not the only
consideration.
11.108 Such an inquiry should
also consider whether federal anti-discrimination law should provide protection
from discrimination on additional grounds including sexuality and gender
identity.
11.109 Further the
inquiry could more generally consider the enforcement model adopted under the
Act and other anti-discrimination legislation and examine the merits of
alternative approaches such as whether there should be provision for civil
fines for egregious instances of sex discrimination or sexual harassment.
11.110 When the Act was
passed, it placed Australia at the forefront of countries seeking to redress
centuries of discrimination against women. However, two decades have seen the
Act overtaken by more innovative approaches to addressing discrimination both overseas
and in our own states and territories. A national inquiry will provide us with
an opportunity to re-invigorate all of Australia’s anti-discrimination laws and
place them at the vanguard of legislative schemes that promote equality.
Recommendation 43
11.111 The committee
recommends that HREOC conduct a public inquiry to examine the merits of replacing
the existing federal anti-discrimination acts with a single Equality Act. The
inquiry should report by 2011 and should also consider:
-
what additional grounds of discrimination, such as sexual
orientation or gender identity, should be prohibited under Commonwealth law;
-
whether the model for enforcement of anti-discrimination laws
should be changed; and
- what additional mechanisms Commonwealth law should adopt in order
to most effectively promote equality.
Senator Trish
Crossin
Chair
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