Recommendations
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.
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.
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.
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.
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.
Recommendation 12
11.29 The
committee recommends that the Act be amended to make breastfeeding a specific
ground of discrimination.
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).
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.
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.
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.
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.
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.
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.
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.
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