February 2005 page 17

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Human rights: Special measures and the Sex Discrimination Act

By JULIE O’BRIEN
Julie O’Brien is a senior legal officer with the Human Rights and Equal Opportunity Commission in Sydney.

Provisions which allow for ‘special measures’ – popularly referred to as affirmative action – to be taken to achieve substantive equality between men and women have been tested.

THE ‘SPECIAL MEASURES’ provision at s.7D of the Sex Discrimination Act 1984 (SDA) was considered for the first time by the Federal Court in Jacomb v Australian Municipal Administrative Clerical and Services Union.¹ The Sex Discrimination Commissioner appeared as amicus curiae in the proceedings and made submissions in relation to the interpretation of the provision.²

Section 7D provides that a person may take special measures for the purpose of achieving substantive equality between, inter alia, men and women. It provides that a person does not discriminate against another person by taking special measures authorised by the section – the focus of which is on the achievement of substantive equality or equality of outcomes, rather than formal equality or equality of opportunity.³ The provision contemplates that substantive equality requires more than the termination of discriminatory practices. It requires measures to correct or compensate for past or present discrimination, or to prevent discrimination from recurring in the future.

Facts

In Jacomb the rules of a union provided that particular elected positions on the branch executive were available only to women. A male applicant complained that the rules discriminated against men and were unlawful under the Sex Discrimination Act. The ess ence of the applicant’s objection to the rules was that the union policy of ensuring 50 per cent representation of women in the governance of the union (which was the basis of the quotas within the rules) exceeded the proportional representation of women in certain of the union branches. Consequently, women were guaranteed representation in particular branches of the union in excess of their membership, to the disadvantage of men.

The union successfully defended the proceedings on the basis that the rules complained of were special measures designed to achieve substantive equality between men and women in accordance with s.7D of the Sex Discrimination Act. The judgment of Crennan J in this matter provides useful guidance as to the scope and interpretation of the special measures provision.

Scope and interpretation

Section 7D is limited, in its terms, by a test as to purpose. A person may take special measures for the purpose of achieving substantive equality between men and women (s.7D(1)(a)). The achievement of substantive equality need not be the only, or even the primary purpose of the measures in question (s.7D(3)).

Any application of s.7D requires an assessment of whether the measure in question was taken for the purpose of achieving substantive equality. It was accepted by Crennan J that the test as to purpose is a subjective test.⁴ Her Honour stated “it is the intention and purpose of the person taking a special measure, which governs the characterisation of such a measure as non-discriminatory”.⁵ In applying this test, her Honour was satisfied that the union believed substantive equality between its male and female members had not been achieved, and that solving this problem required having women represented in the governance and high echelons of the union.

Section 7D also requires the court to consider the special measure objectively. Crennan J appeared to accept the submission of the Sex Discrimination Commissioner that s.7D requires the court to assess whether it was reasonable for the person taking the measure to conclude that the measure would further the purpose of achieving substantive equality.⁶ The Commissioner submitted that in making this determination the court must consider whether the measure was one which a reasonable person in the same circumstances would regard as capable of achieving that goal. The court ought not substitute its own decision, but should consider whether in the circumstances, the measure imposed was one which was proportionate to the goal. Crennan J was satisfied, on the evidence, that the union rules were a reasonable special measure when tested objectively.⁷

Finally, s.7D(4) provides that the taking, or further taking, of special measures for the purpose of achieving substantive equality is not permitted once that purpose has been achieved. This gives rise to the question: when can it be said that measures are no longer authorised because their purpose has been achieved? The judgment in Jacomb provides little guidance on this point. Her Honour stated: “having regard to the inflexibility of the quotas and the express provisions of s.7D(4), monitoring is important to ensure the limited impact of such measures on persons in the applicant’s position. The rules have only been utilised once and there was evidence that elections to the relevant positions were for four-year terms. Accordingly, it is too soon to find that the special measure is no longer needed ... However, [the] rules cannot remain valid as a special measure beyond the ‘exigency’ which called them forth.”⁸

It may be a practical consequence of employing special measures that persons monitor whether the measures employed continue to be required for the purpose of achieving substantive equality. Crennan J did not draw any conclusions in this regard.

Conclusion

Section 7D provides a welcome opportunity to implement measures aimed at achieving substantive equality. Section 7D is limited, in its terms, by a test as to purpose and the choice of a particular measure may be restricted by reference to the particular goal sought to be achieved and considerations of proportionality. It should also be acknowledged that despite the ongoing disadvantage suffered by women, such measures continue to be controversial and their implementation may be subject to challenge. In Jacomb, the union rules were challenged before the Human Rights and Equal Opportunity Commission, the Australian Industrial Relations Commission⁹ and the Federal Court. Nevertheless, the terms of s.7D are sufficiently broad to accommodate a range of actions and the provision should be seized as a means to effect the structural changes necessary to correct past and current forms and effects of discrimination.

Endnotes

1. [2004] FCA 1250. For further analysis of this decision and of the special measures provision of the Sex Discrimination Act 1984 see J.O’Brien, “Affirmative Action, Special Measures and the Sex Discrimination Act”, (2004) 27(3) UNSWLJ 840.

2. The case law on the former special measures provision, s.33, was of little assistance in the interpretation of s.7D as the section was in substantially different terms. Proudfoot v ACT Board of Health (1992) EOC 92-417; The Municipal Officers’ Association of Australia [1991] 93 IRCommA, per Moore DP, 6 February 1991; Australian Journalists Association (C No. 4060 of 1987) per Boulton J, 6 May 1988.

3. Second Reading Speech, Sex Discrimination Amendment Bill 1995 (Cth), Hansard, 28 June 1995, p.2456. See also Explanatory Memorandum, Sex Discrimination Amendment Bill 1995 (Cth), p.9.

4. [2004] FCA 1250, [61],[64].

5. Ibid [47].

6. Ibid [34],[62],[65].

7. Ibid [65].

8. Ibid [65].

9. Re Appeal by William Jacomb (2004) EOC 93-322.