APPENDIX 1
Recommendations of the Senate Standing Committee on Legal and
Constitutional Affairs Report, Effectiveness
of the Sex Discrimination Act 1984 in eliminating discrimination and promoting
gender equality, December 2008
Recommendation 1
The committee recommends that the preamble to the Act and
subsections 3(b), (ba) and (c) of the Act[1]
be amended by deleting the phrase 'so far as is possible'.
Recommendation 2
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.
Recommendation 3
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,[2]
ICCPR,[3]
ICESCR[4]
and the ILO conventions[5]
which create obligations in relation to gender equality.
Recommendation 4
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
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
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.
Recommendation 7
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.
Recommendation 8
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 (Cth).
Recommendation 9
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
The committee recommends that the Act be amended:
-
to provide specific coverage to volunteers and independent
contractors; and
-
to apply to partnerships regardless of their size.
Recommendation 11
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.
Recommendation 12
The committee recommends that the Act be amended to make
breastfeeding a specific ground of discrimination
Recommendation 13
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
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).
Recommendation 15
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
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
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
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.
Recommendation 19
The committee recommends that the HREOC Act[6]
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
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
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
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
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
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.
Recommendation 25
The committee recommends that the Act be amended to remove
the exemption for voluntary organisations in section 39.
Recommendation 26
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
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
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.
Recommendation 29
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
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
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
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
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.
Recommendation 34
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.
Recommendation 35
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
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
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
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
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 (Cth).
Recommendation 40
The committee recommends that further consideration be given
to amending the Act or the EOWW Act[7]
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
The committee recommends that further consideration be given
to the relationship between the Act and the EOWW Act, in particular, whether:
-
the obligations under the EOWW Act...should be incorporated
within the Act; and
-
the functions of EOWA[8]
and HREOC should be combined.
Recommendation 42
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.
Recommendation 43
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.
Navigation: Previous Page | Contents | Next Page