Dissenting report by Liberal Senators

Dissenting report by Liberal Senators

1.1        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.

1.2        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

1.3        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.

1.4        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 liabilities.

1.5        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 legislation.

 

Inadequate time for conducting the inquiry and considering the Chair's Report

1.6        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. 

1.7        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.

1.8        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.

 

Overall view

1.9        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 Report.

1.10      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 Australia noted:

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.[1]

1.11      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.[2] The index measures the extent to which countries are delivering equality for men and women by looking at factors including educational enrolment, income and life expectancy.

1.12      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.

1.13      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.[3]

 

Interpretation of the Act

1.14      Liberal Senators do not support recommendation 3 which would impose a requirement that the courts interpret the Act in accordance with six international conventions.[4] 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

1.15      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.

1.16      These difficulties and recommendations for resolving them are discussed in more detail below.

Measures to redress gender imbalance in teaching

1.17      Liberal Senators are concerned by evidence that educational outcomes for boys are lagging behind outcomes for girls[5] and consider that redressing the imbalance between male and female teachers is a key means of improving outcomes for boys.

1.18      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...[6]

1.19      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.[7]

1.20      Accordingly Liberal Senators consider there is merit in the principle espoused above.

 

Access to assisted reproductive technology, surrogacy and adoption

1.21      McBain v State of Victoria (McBain)[8] determined that the Act prevents the states and territories from restricting access to IVF services for single women and lesbians.

1.22      Whilst not necessarily agreeing with all the sentiments expressed, Liberal Senators note:

      1. 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...[9]

      2. Mr Wallace’s opinion that the McBain case represents an unfortunate instance of judicial activism.[10]

1.23      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.

1.24      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

1.25      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.

1.26      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.[11] 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’.[12] 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.[13]

1.27      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).

1.28      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 (recommendation 24).

1.29      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 supported.

1.30      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.[14] 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.

1.31      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’.

1.32      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.

1.33      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.

 

Exemptions

1.34      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.

1.35      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.[15] 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 discrimination occurring.

1.36      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.[16]

1.37      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.[17] 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

1.38      The majority propose immediate changes to the Act and the HREOC Act which would:

  • 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).

1.39      In addition, the majority report suggests that consideration should be given to:

  • 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 39).

1.40      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.

1.41      Evidence to the committee clearly demonstrated that businesses are keen to comply with their obligations under the Act for reputational, ethical and commercial reasons.[18] 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.[19]

1.42      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.[20] 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.[21] 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.

 

Positive duties

1.43      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 employers.’[22] Yet the majority report gives scant consideration to the additional compliance costs broader or more onerous obligations under the Act would impose on business.

1.44      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.[23]

1.45      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.[24]

1.46      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.[25] 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.[26] It shows how the layering of regulatory obligations on employers can produce conflicting obligations. ACCI described this position as invidious;[27] 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.[28]

1.47      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.[29]

1.48      Liberal Senators consider there is merit in the principle espoused above.

 

Accession to Optional Protocol to CEDAW

1.49      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.[30] 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.[31] 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 been made.[32]

1.50      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 adequate.

 

Conclusion

1.51      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 (recommendation 2);

  • 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 circumstances;

  • 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 21);

  • 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 28);

  • requiring the Sex Discrimination Commissioner to monitor and to report on progress towards eliminating sex discrimination (recommendation 33); and

  • 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).

1.52      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.

1.53      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.

1.54      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 recommendation.

 

Senator Guy Barnett
Deputy Chair

Senator Mary Jo Fisher

Senator Helen Kroger

Senator Russell Trood

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