Human Rights and Equal Opportunity Commission
Annual Report 2003 - 2004
Chapter 10: Sex Discrimination
Pru Goward
Sex Discrimination Commissioner
Statement from the Commissioner
The work of the Sex Discrimination Unit (SDU) over the past year has been at its usual hectic pace - at any time there were three major projects on the go and my public advocacy role meant there were always new ideas and issues with which to grapple. The allegations about male footballers' sexual and social behaviour being a case in point.
Although public interest in the vexed question of work life balance has continued, including strong interest in my proposal for a national scheme of paid maternity leave, it was clear that other emerging issues needed attention.
With the passing of the federal Budget and advent of the Maternity Payment in May 2004, I have taken the view that a national scheme of paid maternity leave is well on the way. The payment, which is to be $3,000 for each child whether or not the mother is in work, is equivalent to 6.4 weeks of paid leave at about the minimum wage. The federal Government has said it will increase this amount to $5,000, roughly equivalent to 10.7 weeks paid leave. This falls below the recommended 14 weeks of paid leave and includes no provision of a fortnightly payment rather than an upfront lump sum, nor does it make the payment available to all adoptive parents. On the other hand, it is untaxed. Although the amount is not indexed to any wage level, and does not provide any form of required leave for the mother from paid work, the government could argue that the Maternity Payment Scheme is equivalent to national paid maternity leave schemes of other countries. This is particularly the case when considered in conjunction with the statutory 12 months of unpaid leave available to most Australian workers after the birth of a child.
For this reason I have written to the federal Government urging them to consider whether the new payment, in conjunction with other rights, would allow Australia to remove our long standing and vexatious reservation to the Convention for the Elimination of All Forms of Discrimination against Women (CEDAW). For 21 years this reservation has allowed Australia not to have a scheme of Paid Maternity Leave, despite being a signatory to this important Convention. Within the OECD, only Australia and the United States do not have a national scheme of paid maternity leave. If the current arrangements do not constitute paid maternity leave, we are at least nearly there, and I have urged the government to take the final steps. It should be a matter of pride for an Australian Government to apply to have this reservation finally removed.
Sexual harassment continues to be an issue for Australian women. Sexual harassment complaints under the Sex Discrimination Act 1984 (the Act) have declined to about a quarter of all complaints received by the Commission by ground, partly due to the rapid rise in the number of pregnancy discrimination complaints. But even so, those complaining of sexual harassment under the Act make up just under half of all people complaining to the Commission. This includes men complaining about sexual harassment.
Twenty years after the Act first made this conduct unlawful we still did not know what the general incidence of sexual harassment was in the broader community. To address this shortfall, we first reviewed our own complaints data, suspecting that they were the tip of the iceberg. The review of complaints established one fact which should startle employers - 67 percent of those who made a complaint had left their employment. Other findings of concern were: 78 percent of complainants had reported the harassment within their workplace and 72 percent of complainants reported that the harassment began in the first 12 months of the complainant's employment. The implications for staff turnover costs are clear.
In late 2003, the Sex Discrimination Unit commissioned the Gallup Organization to conduct a statistically significant telephone survey about the incidence and nature of sexual harassment. The main findings were salutary:
- Incidence - 41 percent of women and 14 percent of men stated that they have personally experienced sexual harassment at sometime in an area of public life.
- Nature - 94 percent of the sexual harassment experienced involved 'crude or offensive behaviour'.
- Duration - 50 percent stated that the sexual harassment in the workplace continued for up to six months.
It was a pleasure to have the federal Attorney-General, the Hon. Philip Ruddock MP, launch 20 Years On: The Challenges Continue . . . Sexual Harassment in the Australian Workplace in Parliament House. The launch included the Commission's updated Code of Practice for Employers to reflect both new legal developments and the survey's findings.
The Code, which was written in discussion with employer and business groups, unions, government agencies and non-government organisations, is available to any employer and serves as a very useful and clear guide to those wishing to establish sexual harassment prevention policies or who wish to better understand the nature of their legal obligations.
The liability provisions of the Act in cases of sexual harassment do not absolve employers (no matter how small) from responsibility for their or their staffs' actions. There is a tendency perhaps for smaller employers to believe, incorrectly, that they are exempt from the Act's requirements. The Code enables all employers to meet these liabilities and advises them what is reasonable in their circumstances. I would like to see the major employer groups adopt the Code as a service to their members. In these circumstances, prevention is always better, and cheaper, than the cure.
The survey has one clear long-term purpose - to provide future researchers with base line data. It will now be possible to compare the incidence of sexual harassment over time and develop policies and approaches which respond to any changes.
The federal Government has taken a strong international stand against people smuggling, including trafficking in women, and has appointed an Ambassador for People Smuggling, Ms Carolyn Millar (First Assistant Secretary, International Organisations and Legal Division, Department of Foreign Affairs and Trade), to represent the Australian Government on trafficking issues. However, addressing the position of trafficked women within Australia, with Australia being a destination country, has been more problematic. The inquest into the death of Puangthong Simaplee, a young Thai woman who worked as a prostitute who died at Villawood Detention Centre in September 2001, made trafficking in women front page news and reignited concerns about the absence of strong protection available to these victims of crime.
The Commission worked with the federal Government in the development of their trafficking package, which not only involves the expenditure of significant amounts of money ($20 million over four years), but vastly improves protections for women who claim to have been trafficked into Australia. Their human rights are recognised and steps are now being actively taken to protect them.
As part of our trafficking work the Commission co-hosted a two-day conference on trafficking in Melbourne titled Stop the Traffic 2. The conference was designed not only for those who work in the area of crime prevention and detection, but also for parliamentarians and the general public. The forum enabled a vigorous exchange of ideas and methodologies and was a useful contribution to awareness-raising. A training workshop for agencies and organisations working on trafficking was also held.
2004 is also the 20th anniversary of the Sex Discrimination Act and many of my public engagements this year have been part of these anniversary celebrations. Women's organisations and arms of both major political parties have celebrated this important milestone with dinners and forums. In addition, we will host a number of twentieth anniversary seminars on the history and future of the Act.
In June 2004, as part of the 20th anniversary celebrations, HREOC partnered the Centre for Refugee Research to present a two-day Women's Human Rights Court and workshops on the 12 critical areas to Beijing Plus 10. Beijing Plus 10 is the 10 year review of the United Nation's World Conference on Women, at the Commission for the Status of Women in New York, which will be held in March 2005. The workshops were part of the process of consulting with women around Australia on each of those critical areas and had in turn drawn from regional meetings of women throughout Australia. The workshop findings will be reported to a regional conference and go some way to representing the views of Australian women.
Finally, I have been amicus curiae in a number of cases this year (details in the Legal Section of this report), all in an effort to develop a better understanding of the Act's practical meaning.
To be Australia's Sex Discrimination Commissioner has and continues to be an honour, a pleasure and a responsibility of some weight. The support of the Unit and of the Commission are crucial to the success of the role I am able to play in public debate, which in turn is crucial to the respect Australians have for the Act and its aspirations. While the role of the advocate is to be vigilant and passionate, fundamentally the success of the work I do will be judged by its rigour, accuracy and fairness. The intellectual effort of the Unit and the Commission's legal and public affairs officers are vital in ensuring the on-going respect of the Australian community and I thank them for it.
Education and Promotion
20th Anniversary of the Sex Discrimination Act
2004 is the 20th anniversary of the Sex Discrimination Act 1984 (Cth). The date of assent was 21 March 1984 and the date of commencement was 1 August 1984. The Commission has been involved (also in partnership) in a number of events and activities to celebrate the occasion. A 20th anniversary logo has also been used in publications and correspondence to promote awareness of the anniversary.
Trafficking of women
The Commissioner and the Sex Discrimination Unit (SDU) have continued to monitor the situation in relation to the trafficking of women in Australia. The Commissioner and SDU staff met with Minister for Justice and Customs, Senator the Hon. Chris Ellison, to discuss trafficking issues, and has had informal discussions with members of the inter-departmental committee that developed a government package to address trafficking.
The Commission, in partnership with non-government organisation Project Respect, RMIT University and VicHealth, presented a very successful conference on trafficking called 'Stop the Traffic 2' on 23-24 October 2003 in Melbourne.
The President gave the opening address to the conference and the Commissioner closed the conference. Members of Parliament from all the major political parties attended or spoke at the conference events, including Senator Ellison, who took the lead role in the development of the government package to address trafficking.
The conference received significant press and broadcast media attention.
Conference keynote speaker, Paul Holmes, an international expert in counter trafficking, child prostitution, paedophilia and the commercial exploitation of human beings, also provided training to the Commissioner, SDU staff, officers of Project Respect and representatives of members and the secretariat of the Asia Pacific Forum of National Human Rights Institutions on 21 October 2003. Paul Holmes addressed members of the Australian Federal Police and state police forces on 22 October 2003 at the Australian Federal Police College. SDU staff and officers of Project Respect observed the training session as part of a train-the-trainer program.
Evidence to the Parliamentary Joint Committee on the Australian Crime Commission's (ACC) inquiry into the trafficking of women for sexual servitude
The Parliamentary Joint Committee on the Australian Crime Commission (ACC) conducted an inquiry into the ACC's involvement in assessing trafficking for the purposes of sexual servitude in Australia, its relationship with the relevant state and Commonwealth agencies, and the adequacy of the current legislative framework.
On 25 February 2004, the Director of the Sex Discrimination Unit gave evidence before Committee. The committee's report was tabled in Parliament on 24 June 2004.
Roundtable series
The role of men and boys in achieving gender equality
On 17 February 2004, the Commissioner hosted a roundtable discussion on the issue of the role of men and boys in achieving gender equality.
The roundtable drew together a number of women's organisations and academics. The motivation for the roundtable was the inclusion of this issue as a theme for the 48th session of the United Nations' Commission on the Status of Women and the community debate around men and boys in Australia.
The roundtable was used to inform the side event on practical strategies for involving men in family responsibilities that the Commissioner held at the United Nations' Commission on the Status of Women in New York.
Pay equity and human capital management
On 1 March 2004, the Commissioner and the Work and Organisational Studies, School of Business at the University of Sydney co-hosted a roundtable discussion with Denise Kingsmill CBE (lawyer, economist and company director) on pay equity and human capital management. Roundtable participants included academics, employers and employer groups, unions and Commonwealth government officers.
The roundtable provided a valuable opportunity to discuss strategies that are being used in the United Kingdom and how they could be applied in Australia.
Work-life balance
On 3 June 2004, the Commissioner hosted a roundtable discussion with Grant Fitzner (Director, Employment Market Analysis and Research (EMAR) in the United Kingdom Department of Trade and Industry) on the issue of work-life balance. Roundtable participants included academics, employer groups, unions and government officers.
The roundtable provided a valuable opportunity to discuss strategies that are being used in the United Kingdom and how they could be applied in Australia. This discussion was particularly useful given new employment laws that have been introduced in the United Kingdom and their relevance to the Australian Industrial Relations Commission's Family Provisions Case.
Youth Challenge
The Commissioner and the Public Affairs Unit conducted a Youth Challenge program for students on 'Tackling Sexual Harassment in your school'. Each Youth Challenge brought together secondary students from a number of schools to work through a day's activities related to sexual harassment in schools.
Four Youth Challenge programs were held during September 2003 - Ayr (Qld); Brisbane (Qld); Fremantle (WA); and Adelaide (SA). Five Youth Challenges were presented in March/April 2004 in Darwin, (NT) Melbourne, (VIC) Sydney (NSW), Wollongong (NSW) and Canberra (ACT).
Commissioner Goward presented in conjunction with Ryebuck Media at the Brisbane, Fremantle, Adelaide, Melbourne, Sydney, Wollongong and Canberra programs. The President presented at the Darwin and Adelaide program. Representatives of state and territory Anti-Discrimination Commissions attended the programs in their respective states and territories.
Research and Policy
Sexual harassment
A Bad Business: Review of Sexual Harassment in Employment Complaints 2002
On 12 November 2003, the Commissioner launched A Bad Business: Review of Sexual Harassment in Employment Complaints 2002 at the Commission. Nareen Young, Director of the NSW Working Women's Centre also spoke at the launch. The paper analysed 152 sexual harassment complaints finalised in 2002.
Approximately 70 people attended the launch, including employers, legal practitioners, academics, policy makers, and representatives from employer groups, unions and the media.
Sexual Harassment in the Workplace materials
The Commissioner and the Attorney-General launched the Sexual Harassment in the Workplace materials on 24 March at Parliament House, Canberra. Materials launched included:
- 20 Years On: The Challenges Continue . . . Sexual Harassment in the Australian Workplace - this paper reports the findings of the first national survey on the incidence and nature of sexual harassment in the Australian community. The paper also compares the results of the survey with the findings of A Bad Business: Review of Sexual Harassment in Employment Complaints 2002;
- a revised and updated version of the sexual harassment code of practice, entitled Sexual Harassment in the Workplace: A Code of Practice for Employers; and
- two posters - one aimed at young women in schools, TAFEs and universities; the other aimed at the perpetrators of workplace sexual harassment.
Approximately 80 people attended the launch, including employer groups, union representatives, representatives from women's groups and NGOs, Members of Parliament and their staff, academics and federal public servants. The launch received considerable media coverage.
A copy of the Code of Practice and posters were mailed to almost 1,200 employers, employer groups, unions, women's organisations and community groups.
National Women's Human Rights Court and Workshop
The Commission, in partnership with the Australian National Committee on Refugee Women (ANCORW) and the Centre for Refugee Research (CRR) hosted the Women's Human Rights Court and Women Taking Action Locally and Globally Workshop.
The court was held on 15-16 June and the workshop on 17-19 June 2004 at the University of New South Wales and were key events to mark the 20th anniversary of the Sex Discrimination Act. Approximately 160 people attended the workshop and the Court was also very popular.
ARC linkage project 'Parental leave in Australia: access, utilization and efficacy'
The SDU, on behalf of the Commission, is an industry partner to an ARC linkage project 'Parental leave in Australia: access, utilization and efficacy'. The project aims to provide benchmark information on: access to, and utilisation of, parental leave in Australia; identify parents' preferences and unmet needs; and assess broader implications for gender equality.
The project will be conducted over three years from 2004. The Chief Investigators for the project are Dr Gillian Whitehouse, Associate Professor, School of Political Science & International Studies, University of Queensland and Dr Marian Baird, Senior Lecturer, School of Business, Faculty of Economics and Business, University of Sydney. The other industry partners are the NSW Office of Industrial Relations, the Queensland Department of Industrial Relations, the NSW Department for Women, the Queensland Office for Women and the Women's Electoral Lobby.
Work has been currently progressing on the first phase of the project, which will involve surveying parents on their experience of parental leave.
Legislative Development
Sex Discrimination Amendment (Pregnancy and Work) Bill 2003
The Sex Discrimination Amendment (Pregnancy and Work) Bill 2003, implementing Recommendations 36, 37 and 43 of the report Pregnant and Productive: It's a right not a privilege to work while pregnant, received Royal Assent on 15 October 2003. The amendments, which took effect on 12 November 2003, make it clear that discrimination on the basis of breastfeeding is a form of unlawful sex discrimination; that it is unlawful to ask women for information about pregnancy or potential pregnancy in job interviews; and that requests for medical information about a woman's pregnancy or potential pregnancy may only be sought for legitimate reasons such as occupational health and safety purposes.
Sex Discrimination Amendment Bill 2002
On 27 June 2002, the federal Government introduced a Bill to amend the Sex Discrimination Act to enable states and territories to legislate to limit access to assisted reproductive technology services to married couples (or married couples who are not living separately and apart from their spouse) and couples in a de facto marriage. The Selection of Bills Committee considered the Bill but did not refer it to a Committee.
The Bill is in substance the same as the Sex Discrimination Amendment Bill (No. 1) 2001 as passed in the House of Representatives in the previous Parliament. The 2001 Bill was referred to the Senate Legal and Constitutional Legislation Committee on 31 October 2000 for inquiry and report by 4 December 2000. On 4 December 2000 the Senate extended the reporting date until 27 February 2001. The Commission made a submission to, and appeared before, the Committee in relation to this earlier Bill.
The Bill remains current.
Family Assistance Legislation Amendment (More Help for Families - Increased Payments) Bill 2004
The Family Assistance Legislation Amendment (More Help for Families-Increased Payments) Bill 2004, implementing the 'Maternity Payment' and other federal Budget measures, received Royal Assent on 26 May 2004.
The new 'Maternity Payment' is also relevant in terms of the provisions of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 11(2)(b) of CEDAW provides that States' Parties should introduce paid maternity leave as a means of redressing discrimination against women, ensuring their right to work and supporting them in their mothering role.
Australia has a reservation to Article 11(2)(b) that has been in place since Australia ratified CEDAW in 1983. The Commissioner has called on the government to remove this reservation to CEDAW and has suggested that the government seek legal advice to determine whether the introduction of the 'Maternity Payment' in combination with workplace rights meets the standard in CEDAW.
Amicus curiae function
The Commissioner, along with the Legal section, has been involved in the progress of the following litigation as amicus curiae:
- Howe v Qantas Airways Ltd; and
- Jacomb v Australian Municipal Services and Clerical Union.
For further details see the Legal Section of the report (Chapter 5).
Exemptions
Sex Discrimination Act exemption applications
On 19 March, the Commission granted to the Trustees of the Roman Catholic Church for the Archdiocese of Sydney (the 'Trustees') a temporary exemption pursuant to section 44(1) of the Sex Discrimination Act to enable them to offer 24 new scholarships to students undertaking primary teaching courses; 12 of these scholarships to be awarded to men and 12 to women. The temporary exemption was granted for five years.
The Catholic Education Office withdrew its proceedings before the Administrative Appeals Tribunal (AAT) in relation to its earlier exemption application that sought to offer scholarships for male trainee primary school teachers.
International activities
Analysis of the situation of children and women in Cambodia for UNICEF Cambodia
In late November 2003, a tender was awarded by UNICEF Cambodia to a team, including the Director of the SDU and managed by the Asia Pacific Forum of National Human Rights Institutions, to conduct an analysis of the situation of children and women in Cambodia. The project involved two field trips to Cambodia, one in January and one in May, and the preparation of a written report. The Director of the Sex Discrimination Unit participated in the project as a specialist on women's issues.
Australia-China Human Rights Technical Co-operation Program
The SDU is working with the international section on the trafficking and domestic violence activities of the Australia-China Human Rights Technical Co-operation Program. Between 29 March and 9 April 2004, a tour was undertaken to Thailand and Vietnam for 10 Chinese officials and three Australian participants to study anti-trafficking initiatives in those countries. The Director of the Sex Discrimination Unit accompanied the tour as a specialist in the area of trafficking in women.
Commission on the Status of Women
The Commissioner and a member of the Sex Discrimination Unit attended the 48th session of United Nations' Commission on the Status of Women (CSW) as part of the Australian Government delegation. The meeting was held in New York on 1 to 12 March 2004.
Agreed conclusions on both of the themes were adopted by the meeting. The Australian Delegation played an active role in the negotiation of the two texts.
The Commissioner also held a side event at CSW on 8 March 2004 which was attended by approximately 300 non-government organisations and government representatives.
Australia-Vietnam Dialogue on International Organisations and Legal Issues, including Human Rights
The Commissioner and the Executive Director of the Commission attended the Australia-Vietnam Dialogue on International Organisations and Legal Issues, including Human Rights as part of the Australian Government delegation. The meeting was held in Hanoi on 22 to 25 June 2004.
The Commissioner also met with the President of Vietnam Women's Union and the Vice-Minister of Foreign Affairs and took part in a workshop with the Vietnam Women's Union to assess and critique various pilot programs introduced in Vietnamese communes.
Speeches
Commissioner Goward and SDU were involved in approximately 55 meetings and made 100 speeches during 2003-04. A selection of these are listed below, which can be accessed on the Commission's website at: www.humanrights.gov.au/speeches/sex_discrim/index.html
Three Legal Systems But Still No Justice: Aboriginal family violence and the challenge of reform, Northern Territory Criminal Lawyers Conference, Port Douglas, 1 July 2003.
Women's Human Rights, University of Melbourne Juris Doctor Lecture, Melbourne, 9 July 2003.
Women and Work: Key issues, MGSM Women, Management and Employment Relations Conference, Sydney, 24 July 2003.
Midwives - the Oldest Profession; Facing Future Challenges, NSW Midwives Conference, Sydney, 25 July 2003.
The Global Trade by Women, Austrade Women in Export Launch, Brisbane, Sydney Melbourne, 4, 6 & 8 August 2003.
Today's Revolution, Strategic Conference of Fatherhood, Canberra, 18 August 2003.
Values of Leadership, Australian Public Service Commission Annual Conference for Directors, Melbourne, 28 August 2003.
Why HILDA's Life Could do with a Little Balance, University of Melbourne Economic and Social Outlook conference, Melbourne, 14 November 2003.
Bearing the Burden of Culture, National Ethnic and Multicultural Broadcasters Association, Brisbane, 6 December 2003.
Diversity in Local Government Leadership, Local Government Professionals Annual Conference, Melbourne, 19 February 2004.
Managing Discrimination in the Workplace, Tasmanian Chamber of Commerce and Industry Conference, Tasmania, 25 February 2004.
Work and Family Balance: Men, women and harmony, Australian Workers Union and Australian Services Union conference, Adelaide, 26 February 2004.
Men, Women, Work and Family - Towards gender equality, 48th Session of the Commission for the Status of Women, New York, 8 March 2004.
The Work and Family Debate: Finding a solution for all, Families Australia Conference, Brisbane, 1 April 2004.
Protecting Women's Human Rights in Australia, Legal Studies conference, Sydney, 2 April 2004.
Managing Parental Leave Before, During and After, CPA Employment Law Symposium, Melbourne, Sydney and Brisbane (Gayle Balding), 15, 22 & 29 April.
Crisis of Masculinity, Ozprospect lecture series, Melbourne, 20 April 2004.
Women in Business, Women in Management, Adelaide, 23 April 2004.
Women and Work - Personal fulfilment or economic necessity? Australian Human Resources Institute National Conference, Melbourne, 11 May 2004.
Flexible Work Options, Australian Education Union Conference, Melbourne, 5 June 2004.
Why Work and Family Balance is Important to Us, Victorian Employers Chamber of Commerce and Industry, Melbourne, 29 June 2004.
19 November 2004
