Dissenting report by Liberal Senators
The evidence gathered during this inquiry is an inadequate base for most
of the far-reaching recommendations made in the Chair's Report. Liberal
Senators therefore cannot support the majority of the recommendations in the
Chair’s Report. To the extent we support any of those recommendations, we
identify them later in this dissenting report. Liberal Senators also consider
that there was little to no evidence of widespread or systemic discrimination
that is not able to be adequately addressed by existing legislation, including
the Sex Discrimination Act 1984.
This dissenting report addresses the inquiry and report consideration
processes, and then focuses on some of the recommendations made in the Chair's Report.
A limited inquiry
Liberal senators are of the view that the process of testing and
challenging evidence is an important part of any inquiry process. This is
particularly the case in an inquiry of this nature, recommendations from which
could, if adopted, result in far reaching changes and significant costs to
business. As such, propositions for change must be thoroughly tested and their
implications carefully examined before they are advanced as recommendations.
Liberal Senators are not convinced that this process was sufficiently rigorous
during this inquiry. As such, the evidence available does not provide a
sufficiently credible foundation on which the committee majority can
responsibly base or justify many of its recommendations for amending the Act.
Particularly given the extensive ambit of the Chair's Report, Liberal
Senators question whether there was a sufficiently broad representation of
views in the public hearing process. In particular, the perspective of the
business community was significantly under represented. The credible but sole
representative of this important interest group at the public hearings was the Australian
Chamber of Commerce and Industry (ACCI). A wider business perspective should
have been obtained before proceeding to formulate recommendations of the nature
of those in the Chair's Report, especially as a number of the recommendations
proposed, if adopted, may lead to significant costs, obligations and
Further, the committee did not hear from a sufficiently broad range of
religious or educational organisations, which stand to be significantly
affected if the recommendations in the Chair's Report are translated into
Inadequate time for conducting the inquiry and considering the Chair's Report
Senators should be permitted a reasonable period of time to conduct
inquiries and then to read, confer about and carefully consider the
implications of any recommendations proposed by the Chair.
Liberal Senators understand and accept the imperative to conclude some
inquiries within a set time frame. However, such a constraint has not been
suggested and does not exist in relation to this inquiry.
Liberal Senators consider that the committee should have been given a
more reasonable timeframe to consider and discuss the Chair's Report, both
privately and in the committee. An extensive and complex report of this nature,
with potentially significant recommendations for change to important
legislation, requires a more extensive and measured approach.
It is the view of Liberal Senators that the inquiry received inadequate
evidence to support any argument that the Act requires fundamental changes. There
is an insufficient foundation for the bulk of the changes proposed by the Chair's
It is clear that the Act has helped to reduce discrimination against
women. Women’s workforce participation, wages and representation in leadership
positions have all improved since 1984. For example, the Diversity Council of
While direct evidence of the social and societal impacts of the
implementation of the provisions of the Act have not been tracked in any
meaningful way, indirect evidence of the positive impact of the Act in DCA’s
specific area of interest – employment market participation - can be found in
the increase in women’s workforce participation, from 49% in 1984 to more than
58% in 2006, and the reduction (albeit slight) in the gender pay gap from 18.2%
in 1984 to 15.2% in 2004.
Moreover, in terms of international comparisons, Australia has an enviable
record in relation to gender equality. The United Nations Development Programme
Gender Related Development Index ranked Australia second in its 2007-08 report.
The index measures the extent to which countries are delivering equality for
men and women by looking at factors including educational enrolment, income and
However, it is important to recognise the limits of what can be achieved
through legislation. Some of the proposals to the committee, particularly those
related to imposing positive duties to promote equality, represent misguided
attempts at social engineering. Those proposals go beyond the proper and
constructive role of legislation by suggesting that the Act should not only
prohibit discrimination but that it should also compel employers and others to proactively
embrace the cause of gender equality.
Some change requires the gradual shifting of cultural mores and beliefs.
Amending legislation does not necessarily produce these changes needed to
influence hearts and minds. As Mr Scott Barklamb of ACCI pointed out to the
committee, in this context those changes occur not because of regulatory
requirements but because of the daily experience of individuals:
[I]t is a far more powerful notion to see a more diverse
workplace, to see a more diverse [range] of people in work and the benefits
they provide in your company and in your peer companies and to hear personal
stories of successes.
Interpretation of the Act
Liberal Senators do not support recommendation 3 which would impose a
requirement that the courts interpret the Act in accordance with six
The interpretation of these conventions can change over time in the light of
rulings by the various treaties bodies. Ordinary rules of interpretation already
require the courts to take relevant international law into account where the
meaning of a statute is ambiguous. However, including a new interpretive clause
in the Act itself may open up new uncertainties in its interpretation. Such
uncertainty is inappropriate and counter-productive in an Act which imposes
duties on employers and others.
Issues arising from overly broad
interpretations of the Act
The inquiry received evidence that there are some impractical results arising
from an overly broad interpretation of the Act. These include:
educational institutions being unable to adopt measures to
encourage men to take up or remain in teaching; and
the inability of the states and territories to limit access to assisted
reproductive technology, adoption and surrogacy on the grounds of what is in
the best interests of the child.
These difficulties and recommendations for resolving them are discussed
in more detail below.
Measures to redress gender
imbalance in teaching
Liberal Senators are concerned by evidence that educational outcomes for
boys are lagging behind outcomes for girls
and consider that redressing the imbalance between male and female teachers is a
key means of improving outcomes for boys.
At present, the Act prohibits targeted initiatives aimed at increasing
the number of male teachers on the basis that they discriminate against women. Liberal
Senators noted the view expressed by Mr James Wallace of the Australian
Christian Lobby that the Act should not prevent common sense approaches to
addressing the shortage of male teachers:
I do not think an act of this nature should be so loose or so
prescriptive in its intent to remove sexual discrimination against women ...to
cause a situation where a state government, for instance, cannot offer scholarships
specifically to males to get more of them into schools. Clearly, we need more
male teachers in schools. Once again, this is about restoring the intent of the
bill. It is not about allowing it to be used as it probably would be in that
case ...by a very active feminist movement...
Liberal Senators also noted the submission made by Family Voice Australia
that the Act should be amended as proposed (by the Coalition) by the Sex
Discrimination Amendment (Teaching Profession) Bill 2004. This would involve inserting
a section to provide that:
...a person may offer scholarships for persons of a particular
gender in respect of participation in a teaching course. The section would
apply only if the purpose of doing so is to redress a gender imbalance in teaching—that
is, an imbalance in the ratio of male to female teachers in schools in Australia
or in a category of schools or in a particular school.
Accordingly Liberal Senators consider there is merit in the principle
Access to assisted reproductive technology, surrogacy and adoption
McBain v State of Victoria (McBain)
determined that the Act prevents the states and territories from restricting
access to IVF services for single women and lesbians.
Whilst not necessarily agreeing with all the sentiments expressed, Liberal
- the views of the Australian Christian Lobby that:
...the rights of children are paramount in any discussion of
reproductive technology. Evidence clearly supports the proposition that
children do best when raised by both a mother and a father. Using the Sex
Discrimination Act 1984 to challenge this fundamental principle is a social
engineering experiment that deliberately fails to give children the most basic
building blocks of development...
Mr Wallace’s opinion that the McBain case represents an
unfortunate instance of judicial activism.
A consequence of recommendations in the Chair's report would be to
provide adults with access to assisted reproductive technology, adoption and
surrogacy on equal terms, regardless of sex, marital or – if recommendation 4
were to be implemented – relationship status. Any restrictions to access would
be able to be challenged under the Act.
Liberal Senators consider that, all things being equal and as part of
our federal system of government, State and territory parliaments should be
able to make or amend such laws on the basis that the best interests of the
child concerned are the overriding consideration.
Proposals to broaden the operation of the Act and facilitate complaints
Liberal Senators note that there was no evidence given to the inquiry of
any systemic or widespread discrimination on the grounds of gender, pregnancy,
marital status or family responsibilities that is not adequately addressed by
existing legislation, including the Act.
There is little to no legislative gap in coverage with respect to sex
discrimination and sexual harassment. On the contrary, there are overlapping
and, in some cases inconsistent obligations, under federal, state and territory
anti-discrimination legislation as well as workplace relations legislation. It
goes without saying that this causes considerable difficulty for businesses
particularly for small and medium size businesses.
Mr Daniel Mammone of ACCI gave evidence that there is a complex array of
anti-discrimination obligations under federal, state and territory laws. This
means that a single set of circumstances may expose employers to the
possibility of legal action, in various jurisdictions, alleging breaches of the
Act, breaches of state or territory anti-discrimination legislation, unfair
dismissal, unlawful termination or breach of contract. He described this
situation as a ‘legal minefield’.
ACCI’s comprehensive submission noted in summary that:
[I]t does not appear that, in practical terms, there is a
significant ‘regulatory’ gap that requires addressing.
Despite this evidence, several of the recommendations proposed by the
majority report would amend the Act to:
expand its scope (recommendations 4, 8-11, 13-14 and 18);
broaden the definitions of discrimination (recommendations 5-6); and
broaden the definition of sexual harassment (recommendations 15-16).
In addition, the majority has made recommendations aimed at facilitating
claims under the Act and expanding the remedies available in discrimination
cases. These include:
providing for a shifting onus of proof in sex discrimination
cases (recommendation 22);
expanding the remedies available under the Human Rights and Equal
Opportunity HREOC Act where a court determines discrimination has occurred to
include corrective and preventative orders (recommendation 23); and
increasing funding to organisations which provide complainants
with legal advice in sex discrimination and sexual harassment matters
Liberal Senators are concerned that the combined effect of these
recommendations will be to impose significant compliance costs on employers and
to encourage and facilitate unfounded claims. In the absence of any clear basis
for these changes, or evidence of systemic or obvious failure of the current
legislative regime across the federation, these recommendations are not
Business organisations told the committee that many employers already feel
compelled to settle speculative claims under the Act, irrespective of the
strength of the applicant’s case, in order to avoid the costs of litigation or
damage to their reputation.
In unnecessarily and inappropriately broadening the scope of the Act and the
definitions of discrimination and harassment, the recommendations of the
Chair's Report would simply exacerbate this problem.
More specifically, Liberal Senators do not support recommendation 4
which would add a new ground of discrimination on the basis of ‘relationship
status’ to the Act. There is no specific provision in the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) which imposes
an obligation on Australia to provide protection against discrimination on this
ground. Nor do any of the additional conventions, which recommendation 2 proposes
to add to subsection 3(a) of the Act, specifically require the elimination of
discrimination on the grounds of ‘relationship status’.
Nor do Liberal Senators support recommendation 11 which, contrary to the
federal nature of the Australian constitution, would amend the Act to provide
that the Crown in right of the states and state instrumentalities are bound by
the provisions of the Act. There is no need for such an amendment given that
all states and territories have their own anti-discrimination legislation.
Similarly, the arguments in the majority report for inserting a general
prohibition on sex discrimination or sexual harassment in any area of public
life and a general equality before the law provision (recommendations 8 and 9)
seem based more upon symbolic considerations than the resolution of any
specific practical problems with the operation of the Act. Accordingly, Liberal
Senators do not support those recommendations.
The passage of the Act involved a prolonged period of negotiation
regarding appropriate exemptions from the prohibitions on discrimination under
the Act. Those negotiations involved a complex balancing of different rights
and interests. Liberal Senators consider that, as a result of this rigorous
process, the Act strikes an appropriate balance between the right to equality and
other rights such as the right to freedom of religion. By contrast, after
comparatively preremptory consideration, the majority of the committee have
proposed significant changes to the existing exemptions.
The majority report also proposed the removal of section 39 which
creates an exemption for voluntary organisations. Voluntary organisations make
a major contribution to our community. This is evidenced in a range of reports
from the Australian Government and Volunteering Australia.
Removing the exemption in section 39 would require these organisations to comply
with the prohibitions on discrimination in Divisions 1 and 2 of Part II of the
Act. This may impose significant compliance costs on such organisations that
would only serve to lessen their ability to sustain this contribution.
Furthermore, there was no evidence that discrimination by voluntary
organisations in relation to membership is a widespread problem. Rather the
arguments for removal of this exemption rested almost entirely on an
ideological objection to the provision and the theoretical possibility of such
As a result, Liberal Senators do not support recommendation 25 which
would remove the exemption for voluntary organisations. Similarly, Liberal
Senators do not support recommendation 26 which would broaden the definition of
‘clubs’ in section 4 and thus apply the prohibition on discrimination with
respect to membership of clubs to a wider range of organisations.
Liberal Senators do not oppose the intent of recommendation 36 which
proposes that further consideration be given to replacing the permanent
exemptions with a more flexible general limitations clause.
However, this is a significant proposed change to the Act which would require
very careful consideration and more extensive consultation with affected groups
than is envisaged by recommendation 36. In addition Liberal Senators support
maintaining an exemption for combat duties and also for sporting organisations
and disagree with the view expressed in the Chair’s report that there were
strong arguments for the removal of such exemptions. Liberal Senators also
recognise the importance of retaining appropriate exemptions for religious
organisations and do not support recommendation 35. Freedom of religion is a
fundamental human right and any restriction on freedom of religion should be
limited to what is required to achieve a legitimate public purpose.
Powers of HREOC and the Sex Discrimination Commissioner
The majority propose immediate changes to the Act and the HREOC Act
expand the powers of HREOC to conduct inquiries and intervene in
court proceedings, and the powers of the special purpose commissioners to act
as amicus curiae (recommendations 29-32); and
increase the resources provided to HREOC (recommendation 34).
In addition, the majority report suggests that consideration should be
investing the Sex Discrimination Commissioner and HREOC with
investigative and enforcement powers (recommendations 37-38);
allowing HREOC to issue legally binding standards under the Act (recommendation
Liberal Senators believe that HREOC and the Sex Discrimination
Commissioner already have adequate powers and resources to fulfil their
legislative responsibilities and that there is thus no sound basis for these recommendations.
Evidence to the committee clearly demonstrated that businesses are keen
to comply with their obligations under the Act for reputational, ethical and
In this context, there is simply no justification for adopting a more punitive
approach to enforcement of the Act. Despite this, the majority report
recommends that consideration be given to investing the Sex Discrimination
Commissioner and HREOC with investigative and enforcement powers. No clear
argument was expounded as to why such an approach is necessary when in the
words of Mr Daniel Mammone of ACCI:
The underlying objectives and assumptions of anti-discrimination
law that employees deserve equal treatment in employment enjoy an extremely
high level of support within Australian industry.
Similarly, recommendation 39 proposes that consideration be given to
empowering HREOC to promulgate legally binding standards under the Act. HREOC
acknowledged that there are some disadvantages to issuing binding standards but
considered that on balance such a power would be useful.
One argument HREOC made in support of such a power was that it would provide
greater clarity to employers and others about their obligations under the Act.
However, HREOC already has the power to issue non-binding standards which can
fulfil this educative function. Liberal Senators consider that fixed standards
are too inflexible and would in fact inhibit the capacity of employers and
others to develop innovative approaches to eliminating discrimination and
promoting gender equality.
The majority report recommends that consideration be given to imposing
positive duties on public sector organisations, employers and others to
eliminate discrimination and harassment, and promote equality (recommendation 40).
Liberal Senators consider that this proposal would impose an additional
regulatory burden on Australian businesses for little or no gain. ACCI told the
committee that implementing anti-discrimination and anti-harassment measures
‘has not been done without imposing significant costs and challenges for
Yet the majority report gives scant consideration to the additional compliance
costs broader or more onerous obligations under the Act would impose on
Furthermore, Liberal Senators agree with the assessment of ACCI that if
such an amorphous obligation is imposed on the private sector it will be difficult
for businesses to know precisely what their legal obligations are, let alone
how to comply with them.
The more specific proposals that employers and others be required to
develop gender equality plans fail to take into account the complex range of
factors required to produce cultural change within organisations. Requiring the
production of a plan will not produce non-discriminatory attitudes and a
valuing of diversity within the workplace. As Mr Scott Barklamb of ACCI pointed
out, there is a risk that such plans:
...will simply become an exercise in compliance and will not
contribute to further cultural change and awareness ...but will also be
potentially resented because they cost money or will be quite narrowly complied
with and put away.
Finally, ACCI pointed to the difficulties employers face reconciling
their existing obligations under anti-discrimination legislation with the laws
prohibiting unfair dismissal or unlawful termination.
ACCI’s evidence regarding cases in which employers were ordered to reinstate
employees who had been sacked as a result of the employer seeking to enforce
its policies in relation to sexual harassment is instructive.
It shows how the layering of regulatory obligations on employers can produce
conflicting obligations. ACCI described this position as invidious;
Liberal Senators would argue it represents a Catch 22 since employers
who do not act decisively to prevent sexual harassment will be vicariously
liable for any harassment which occurs, whilst those that do are exposed to
liability for unfair dismissal or unlawful termination.
Liberal Senators note ACCI’s proposal that there should be a presumption
of fairness where a dismissal is the result of an employer seeking to meet its
obligations with respect to preventing sexual harassment or sex discrimination.
Liberal Senators consider there is merit in the principle espoused
Accession to Optional Protocol to CEDAW
Liberal Senators support the dissenting report of Opposition members of
the Joint Standing Committee on Treaties which opposes accession to the
Optional Protocol to CEDAW.
Accession would mean that organisations and individuals can complain to the UN
Committee about alleged violations of CEDAW. The government announced after the
tabling of the Joint Standing Committee’s report that it has commenced the
process required to accede to the Optional Protocol.
Liberal Senators agree that rights for women in Australia are better advanced:
...through the continued development of our own robust legal
frameworks rather than being accountable to a panel whose recommendations have
never been fully implemented by any country to which such recommendations have
No evidence was received by this inquiry to justify providing an
overarching level of appeal to an unaccountable UN body. On the contrary, it is
clear that the avenues available under Commonwealth, state and territory laws
for hearing and determining complaints of sex discrimination are more than
Liberal Senators support the following changes proposed by the majority
report which are largely administrative or technical in nature:
redrafting the objects of the Act to refer to other international
conventions which create obligations in relation to gender equality
amending subsection 9(10) to refer to other international
conventions which create obligations in relation to gender equality so that the
Act provides equal coverage to men and women (recommendation 7);
amending the Act to make breastfeeding a specific ground of
discrimination (recommendation 12) on the condition it is reasonable in the
ensuring that the sexual harassment provisions protect students
regardless of their age and regardless of whether they are harassed by someone
from the same or another educational institution (recommendation 17);
amending the HREOC Act to provide that where related complaints
allege discrimination on different grounds, which are covered by separate
federal anti-discrimination legislation, HREOC or the court must consider
joining the complaints (recommendation 19);
increasing the time limit for lodging an application with the
courts from 28 days to 60 days after termination of a complaint (recommendation
locating existing sections 31 and 32 with the provisions dealing
with the definitions of discrimination rather than the provisions dealing with
exemptions (recommendation 27);
amending the Act to require HREOC to exercise its power to grant
temporary exemptions under the Act in accordance with the objects of the Act (recommendation
requiring the Sex Discrimination Commissioner to monitor and to
report on progress towards eliminating sex discrimination (recommendation 33);
consider the merit of examining the relationship between the Act
and the EOWW Act and the possible advantages of incorporating the obligations
and combining the functions of EOWA and HREOC (recommendation 41).
However, we do not support the balance of the recommendations made in
the Chair's report, which are at best unnecessary and at worst
counter-productive with many unintended consequences. Many of them are
far-reaching in scope and are simply not supported by the evidence put to our
committee. Rather than adopt a constructive approach of supporting the efforts
of businesses, educational, volunteer, religious and other organisations and
other potentially affected parties to continue to build a culture to eliminate
harassment and discrimination, the majority report is reminiscent of the confrontational
gender politics of the past. The private and public sector and the community at
large have long since moved on.
Liberal Senators suggest that consideration be given to loosening the
shackles on the private and public sector and others to enable them to develop
more innovative approaches to issues, such as eliminating harassment and
balancing work and family responsibilities, rather than burdening them with
further layers of counter-productive regulation.
The majority’s final recommendation calls for a national inquiry to
consider replacing federal anti-discrimination statutes with a single Equality
Act. Given the lack of any compelling evidence of deficiencies in the existing
legislative scheme (particularly in light of additional protection available
under state and territory legislation), there is no evidentiary basis for this
Senator Guy Barnett
Mary Jo Fisher
Senator Helen Kroger
Senator Russell Trood
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