CHAPTER 2
Background
2.1 This chapter outlines background matters relevant to this inquiry
including the history of the Act, Australia’s international obligations
with respect to gender equality, the key provisions of the Act and other
inquiries and initiatives regarding gender equality issues.
History of the Act
2.2
The Act implements certain provisions of CEDAW.[1]
Australia ratified CEDAW in July 1983 and has thus been a party to the
convention for over 25 years.[2]
2.3
In general terms, CEDAW imposes obligations on states to eliminate
discrimination against women. Article 1 defines ‘discrimination against women’
as meaning:
...any distinction, exclusion or restriction made on the basis
of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any
other field.[3]
2.4
Article 2 creates general obligations on states to employ legislative
and other measures in order to eliminate discrimination against women. While
article 3 requires states to ensure the advancement of women so that they are
able to enjoy human rights and fundamental freedoms on a basis of equality with
men.[4]
2.5
CEDAW includes more specific obligations to eliminate discrimination
against women in areas including:
-
political and public life (article 7);
-
education (article 10);
-
employment (article 11);
-
health care (article 12); and
-
other areas of economic and social life (article 13).[5]
2.6
Australia has two reservations to CEDAW regarding the introduction of
paid maternity leave and excluding women from combat duties. This means that
CEDAW does not apply in Australia in relation to these two matters.[6]
2.7
The ratification of CEDAW was driven, at least in part, by the
government’s desire to rely on the external affairs power under section 51(xxix)
of the Constitution as a basis for broader sex discrimination legislation than would
have been possible relying upon other constitutional heads of power.[7]
2.8
In June 1983, Senator the Hon Susan Ryan, the Minister Assisting the
Prime Minister for the Status of Women, introduced the Sex Discrimination Bill
1983 (the Bill) in the Senate. The Bill was substantially amended before being
passed by the Senate in December 1983 and then by the House of Representatives in
March 1984. The Act commenced on 1 August 1984.[8]
2.9
The passage of the Act was extremely controversial. On the twentieth
anniversary of the Act, the Hon Susan Ryan stated that:
At the time, the politics surrounding the Bill were explosive.
From the first legislative step – the ratification of CEDAW – the initiative
met with sustained, vociferous and irrational opposition from powerful sectors
in the community. Parliament was besieged by thousands of petitions stating
opposition to the Bill in the most colourful terms. Inside and outside
Parliament, opponents claimed that the Bill would bring about the end of the
family, ruin the economy, undermine the male labour force and destroy
Christianity and the Australian way of life.[9]
2.10
As a result of this controversy, several submissions noted that the Act
represents a political compromise.[10]
Similarly, the Australian Law Reform Commission (ALRC) has noted that the
passage of the Act through Parliament was marked by controversy as great as
that which marked the passage of the Native Title Act 1993 and that:
As a result of the controversy and compromises, the Act is at
best a partial implementation of the Convention on the Elimination of All Forms
of Discrimination Against Women.[11]
2.11
This inquiry represents the first comprehensive national review of the
Act in more than ten years. However, several of the issues raised during the
course of this inquiry were previously considered by the House of
Representatives Standing Committee on Legal and Constitutional Affairs (the
House of Representatives Committee) in its 1992 report Half Way to Equal: Report
of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (the
Half Way to Equal report)[12]
and subsequently by the ALRC inquiry into women’s equality before the law which
reported in 1994 (the Equality Before the Law report).[13]
2.12
As a result of the recommendations of the Half Way to Equal
report, the Act was substantially amended by the Sex Discrimination and other
Legislation Amendment Act 1992 and the Sex Discrimination Amendment Act
1995.[14]
The 1995 amendments were also influenced by the Equality Before the Law
report.[15]
However several of the recommendations of the House of Representatives
Committee and ALRC have not been implemented.
Other international obligations in relation to gender equality
2.13
CEDAW is primarily directed at the elimination of discrimination against
women. However, other international conventions Australia has ratified create
obligations in relation to gender equality which are not directed solely at
women. In particular, article 2 of ICCPR provides:
Each State Party to the present Covenant undertakes to respect
and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without distinction
of any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.[16] (emphasis added)
2.14
Article 26 of the ICCPR provides that all persons are equal before the
law and are entitled, without any discrimination, to the equal protection of
the law. This provision also requires that the law prohibit any discrimination
and guarantee to all persons equal and effective protection against
discrimination on the grounds of sex (amongst other grounds).[17]
2.15
Similarly, under article 3 of ICESCR states undertake to ensure the
equal right of men and women to the enjoyment of the economic, social and cultural
rights set out in that convention.[18]
2.16
Australia has also ratified three ILO conventions which are of
particular relevance to the elimination of sex discrimination in the area of
employment:
-
the ILO Convention (No 111) concerning Discrimination in respect of
Employment and Occupation (ILO Convention 111);[19]
-
the ILO Convention (No. 100) concerning Equal Remuneration for Men and
Women Workers for Work of Equal Value (ILO Convention 100);[20]
and
-
the ILO Convention (No 156) concerning Equal Opportunities and Equal
Treatment for Men and Women Workers: Workers with Family Responsibilities (ILO
Convention 156).[21]
Related inquiries and initiatives
2.17
There are several other inquiries and initiatives which are relevant to
the terms of the reference of this inquiry.
2.18
The Joint Standing Committee on Treaties recently conducted an inquiry
regarding the proposed accession by Australia to the Optional Protocol to CEDAW
and recommended that Australia accede to the protocol.[22]
Accession would allow the United Nations Committee on the Elimination of
Discrimination against Women (the UN Committee) to receive and consider written
complaints about alleged violations of obligations under CEDAW where domestic
remedies have been exhausted. The UN Committee can issue views on whether a
breach has occurred and make recommendations for addressing any breach.[23] On
24 November 2008, the Attorney-General and the Minister for the Status of
Women indicated that the government has initiated the formal steps required to
accede to the Optional Protocol.[24]
In this context, the committee notes that it is particularly important to
consider the extent to which the Act implements Australia’s obligations under
CEDAW since domestic implementation of that treaty may now be subject to
additional international scrutiny.
2.19
The Productivity Commission is currently conducting an inquiry into paid
maternity, paternity and parental leave which is due to report in February
2009.[25]
The commission released a draft report on 29 September 2008 which sets out proposals for a national paid parental leave scheme.[26]
2.20
In addition to federal anti-discrimination legislation such as the Act,
each state and territory has its own anti-discrimination legislation but there
are slight differences in coverage and procedures under these acts.[27]
In March 2008, the Standing Committee of Attorneys-General (SCAG) established a
working group which will advise Ministers on options for harmonising state,
territory and Commonwealth anti-discrimination laws (see paragraph 8.25).[28]
2.21
Finally, the House of Representatives Standing Committee on Employment
and Workplace Relations is conducting an inquiry into pay equity and other issues
related to increasing female participation in the workforce.[29]
2.22
The committee has also considered several other recent reports relevant
to the terms of reference including:
-
the report on the Sex Discrimination Commissioner’s national
community consultation: Gender Equality: What Matters to Australian Women
and Men – The Listening Tour Community Report;[30]
-
a report to the Victorian Attorney-General on a review of the
Victorian Equal Opportunity Act 1995: An Equality Act for a Fairer
Victoria: Equal Opportunity Review Final Report;[31]
-
the HREOC report regarding balancing paid work with family and
carer responsibilities: It’s About Time: Women, men, work and family;[32] and
-
the 2006 report of the UN Committee on the reports Australia
submits under article 18 of CEDAW concerning measures adopted to give effect to
the convention.[33]
Key provisions in the Act
2.23
This section provides a brief description of some of the key provisions
of the Act.[34]
2.24
Section 3 sets out the objects of the Act which are to:
-
give effect to certain provisions of CEDAW;
-
eliminate, so far as is possible, discrimination:
-
on the ground of sex, marital status, pregnancy or potential pregnancy
in certain areas of public life;
-
involving dismissal of employees on the ground of family
responsibilities; and
-
involving sexual harassment in the workplace, in educational
institutions and in other areas of public activity; and
-
promote recognition and acceptance within the community of the principle
of the equality of men and women.
2.25
The definitions and interpretative provisions are set out in sections 4
to 8 of the Act. There is not a single definition of ‘discrimination’, rather separate
provisions set out what constitutes discrimination on the grounds of:
-
sex (section 5);
-
marital status (section 6);
-
pregnancy or potential pregnancy (section 7); and
-
family responsibilities (section 7A).
2.26
Sections 5 to 7 include both direct and indirect discrimination but section
7A includes only direct discrimination.
2.27
Under subsection 5(1) of the Act, direct sex discrimination occurs where
a person is treated less favourably, in circumstances that are not materially
different, to how someone of the opposite sex would be treated. The less
favourable treatment must be ‘by reason of’:
2.28
This definition of direct discrimination is mirrored in the following
sections with respect to the other grounds of discrimination, namely: marital
status in subsection 6(1), pregnancy and potential pregnancy in subsection 7(1),
and family responsibilities in section 7A.
2.29
Under subsection 5(2) of the Act, indirect sex discrimination occurs
where a condition, requirement or practice is imposed (or proposed) that has,
or is likely to have, the effect of disadvantaging people of one sex.[35]
Once again, this definition is mirrored in relation to marital status in
subsection 6(2) and with respect to pregnancy and potential pregnancy in
subsection 7(2). However, section 7B provides that a condition, requirement or
practice will not amount to indirect discrimination if it reasonable in the
circumstances.
2.30
Section 7D ensures that special measures, which are taken for the
purpose of achieving substantive gender equality, do not fall within the
definitions of discrimination set out in sections 5 to 7.
2.31
Section 9 sets out the circumstances in which the Act applies.[36]
In particular, subsections 9(4) to 9(20) set out the circumstances in which
most of the provisions of the Act prohibiting discrimination have effect. These
subsections draw on various heads of constitutional power to support the
prohibitions. For example, subsection 9(10) relies on the external affairs
power under section 51(xxix) of the Constitution, while subsection 9(11) rests
upon the corporations power in section 51(xx) of the Constitution.[37]
2.32
The Act does not contain a general prohibition on sex discrimination.
Instead it prohibits discrimination in particular areas of public life,
specifically, in relation to:
-
work (sections 14 to 20).
-
education (section 21);
-
the provision of goods, services, facilities and accommodation (sections
22 and 23);
-
dealings with land (section 24);
-
clubs (section 25); and
-
the administration of Commonwealth laws and programs (section 26).
2.33
Discrimination on the grounds of family responsibilities is only
prohibited in relation to an employer directly discriminating against an
employee on this ground by dismissing the employee (subsection 14(3A)).
2.34
Part II Division 3 of the Act deals with sexual harassment. Section 28A
defines sexual harassment as:
2.35
In addition, the conduct must occur in circumstances where a reasonable
person would have anticipated that the person harassed would be offended,
humiliated or intimidated.
2.36
Once again, the Act only prohibits sexual harassment in particular
spheres of public life as follows:
-
work (sections 28B to 28E);
-
educational institutions (section 28F);
-
the provision of goods, services, facilities and accommodation (section
28G and 28H));
-
dealings with land (section 28J);
-
clubs (section 28K); and
-
the administration of Commonwealth laws and programs (section 28L).
2.37
The Act provides for a number of permanent exemptions: that is
circumstances in which otherwise discriminatory behaviour is not unlawful. These
are set out in sections 30 to 43 and include exemptions relating to:
-
religious bodies (section 37);
-
educational institutions established for religious purposes
(section 38);
-
voluntary bodies (section 39);
-
sport (section 42); and
-
combat duties (section 43).
2.38
HREOC is also empowered under section 44 to grant temporary exemptions
from the operation of certain provisions of the Act.[38]
2.39
In addition to the section 44 power, section 48 sets out the functions
of HREOC under the Act including:
-
undertaking research and education programs;
-
publishing guidelines; and
-
intervening in court proceedings which involve sex discrimination.
2.40
Sections 85 to 95 of the Act create offences. In particular, section 94
makes it an offence to victimise a person who asserts his or her rights under
the Act (for example by making or proposing to make a complaint).
2.41
Finally, provisions dealing with the appointment of the Sex
Discrimination Commissioner are set out in sections 96 to 103 of the Act.
Related legislation
2.42
The Act operates in conjunction with the Human Rights and Equal
Opportunity Act 1986 (the HREOC Act) which sets out other functions and
powers of HREOC particularly in relation to complaints and inquiries.
2.43
With respect to complaints, section 46 of the HREOC Act sets out the
process for lodging a complaint of unlawful discrimination. Under section 46F,
the President of HREOC must inquire into the complaint and attempt to
conciliate it. If the complaint cannot be conciliated, or is terminated by the
President for some other reason, then section 46PO allows a complainant to make
an application to the Federal Court or the Federal Magistrates Court in
relation to the alleged discrimination.
2.44
These provisions in relation to complaints were introduced by the Human
Rights Legislation Amendment Act (No. 1) 1999. Prior to the 1999
amendments, the Act provided for HREOC to make determinations in relation to
the rights of the parties and for these determinations to be registered in the
Federal Court. However, the High Court decision in Brandy v Human
Rights and Equal Opportunity Commission struck down equivalent enforcement
provisions under the Racial Discrimination Act 1975. These provisions
purported to give the HREOC determinations effect as Federal Court orders. The
High Court held that this involved an exercise of federal judicial power by a
body that is not a court contrary to section 71 of the Constitution.[39]
As a result, the Act and other human rights legislation was amended to
establish the existing scheme under which complainants have direct access to
the federal courts if conciliation is unsuccessful.[40]
2.45
In addition to the provisions dealing with complaints, the HREOC Act gives
the Sex Discrimination Commissioner and other special-purposes commissioners the
function of assisting the Federal Court and the Federal Magistrates Court as
amicus curiae[41]
in matters which raise human rights issues.[42]
2.46
Each state and territory also has anti-discrimination legislation which provides
protection against sex discrimination.[43]
Subsection 10(3) of the Act allows these laws to operate concurrently with the
Act as far as possible. Subsection 10(4) of the Act prevents a person from
making a complaint under the HREOC Act where he or she has already lodged a
complaint under the relevant state or territory legislation.
2.47
While the Act prohibits sex discrimination, the Equal Opportunity for
Women in the Workplace Act 1999 (the EOWW Act) creates positive obligations
for employers to develop and implement workplace programs to ensure women have
equality of opportunity.[44]
Employers are required to report annually on these programs.[45]
These obligations apply to employers of 100 people or more, and higher
education institutions that are employers.[46]
The EOWW Act also establishes the Equal Opportunity for Women in the Workplace
Agency (EOWA) which monitors compliance with these obligations.[47]
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