Site navigation

Change font size: SmallerLargerReload

Legal Research & Resources navigation

Submission of the
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

to the

SENATE LEGAL AND CONSTITUTIONAL AFFAIRS COMMITTEE

on the

INQUIRY INTO THE EFFECTIVENESS OF THE SEX DISCRIMINATION ACT 1984 (Cth) IN ELIMINATING DISCRIMINATION AND PROMOTING GENDER EQUALITY

1 September 2008

Human Rights and Equal Opportunity Commission
Level 8, 133 Castlereagh St
GPO Box 5218
Sydney NSW 2001
Ph. (02) 9284 9600

Table of Contents

Annexures

1. Introduction

  1. The Human Rights and Equal Opportunity Commission (‘HREOC’) makes this submission to the Senate Legal and Constitutional Affairs Committee for its Inquiry into the effectiveness of the Commonwealth Sex Discrimination Act 1984 (Cth) (‘SDA’) in eliminating discrimination and promoting gender equality (‘the Inquiry’).
  2. HREOC is Australia’s national human rights institution (‘NHRI’)[1] and is responsible for administration of the SDA.
  3. This Inquiry is the first occasion upon which HREOC has developed specific recommendations for reform to the SDA as an entire piece of legislation since 1994.
  4. HREOC has undertaken recent policy work about ways in which national laws could be improved to increase legal protection from discrimination on the grounds of pregnancy and family responsibilities, relevant to some of the Terms of Reference of this Inquiry. In particular, HREOC conducted its National Pregnancy and Work Inquiry, which led to publication of Pregnant and Productive: It’s a right not a privilege to work while pregnant (‘Pregnant and Productive (1999)’) .[2] HREOC also conducted its Women, Men, Work and Family Project, leading to publication of It’s About Time: Women, Men, Work and Family (2007) (‘It’s About Time (2007)’).[3]
  5. The SDA has also been subject to two previous national inquiries:
    • House of Representatives Standing Committee on Legal and Constitutional Affairs. ‘Inquiry into Equal Opportunity and Equal Status for Women in Australia’ (1992). Findings from this inquiry are published in Halfway to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (1992) (‘Halfway to Equal (1992)’)[4] ; and
    • Australian Law Reform Commission, Inquiry into Equality before the Law Justice for Women (1994). Findings from this inquiry are published in Equality Before the Law: Justice for Women (1994) (‘Equality Before the Law (1994)’).[5]
  6. Each report made many recommendations about how to improve the SDA, only some of which have been implemented.
  7. In Victoria, the Equal Opportunity Act 1995 (Vic) has been the subject of a recent review. The Victorian review raises many similar issues to the present Inquiry. The findings of the Victorian review were released on 30 June 2008 in An Equality Act for a Fairer Victoria: Equal Opportunity Review Final Report (2008).
  8. HREOC draws on its recent policy work, recommendations from past national inquiries, the Victorian review process, external academic and civil society analysis, relevant jurisprudence and HREOC’s direct experience of the operation of the SDA for this Submission.
  9. However, in light of the limited time available to prepare this submission, HREOC has not had the opportunity to undertake external consultations regarding its proposals for reform. HREOC would welcome the opportunity to make supplementary submissions to the Committee during the course of this Inquiry, as required.
  10. HREOC is committed to working with the Australian Government and all interested parties to achieve a high quality outcome from this Inquiry.

^top

2. Executive summary

  1. HREOC welcomes this Inquiry as a unique opportunity to assess the effectiveness of the SDA in 2008 and to make proposals for reform that will ensure it exists as a first class national gender equality law.
  2. There has been significant progress in reducing direct sex discrimination since 1984, when the SDA was passed by the Australian Parliament. However, the application of the SDA over a quarter of a century has highlighted some serious limitations with its current form and content. It is clear that our progress on achieving substantive gender equality in Australia has stalled, and the SDA is currently limited in its ability to proactively address this problem. It is also widely acknowledged that the SDA has never fully implemented our international legal obligations, particularly under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’).[6]
  3. HREOC believes the SDA needs to be amended to:
    • Address the problems with existing provisions which have emerged in the quarter of a century since its adoption;
    • Enhance its ability to actively progress substantive gender equality and promote systemic reform; and
    • Fulfil our international legal obligations.
  4. HREOC recommends a two-staged reform process to achieve this result.

Stage one

  1. In Stage One, HREOC urges the Committee to adopt as soon as possible a range of ‘Recommendations’ to strengthen the SDA and improve associated institutional arrangements.
  2. In summary, in Stage One, HREOC recommends that the SDA should be amended now to:

Objects and Interpretation
  • Improve the objects and interpretation of the Act to comply with international obligations

Definition of discrimination
  • Remove the comparator element in direct discrimination
  • Reform indirect discrimination in accordance with human rights principles

Grounds of discrimination
  • Specify breastfeeding as a separate protected ground
  • Remove discriminatory effects of the current definition of ‘marital status’ by renaming as ‘couple status’ and expanding the definition of ‘de facto’

Family Responsibilities
  • Increase protection from discrimination on the grounds of family and carer responsibilities and include a positive duty

Coverage
  • Provide equal coverage for women and men
  • Expand coverage regarding state and territory governments, instrumentalities, and laws and programs, as well as volunteers, independent contractors, partnerships and other business enterprises, and students

Sexual harassment
  • Strengthen sexual harassment laws, both in terms of what constitutes harassment and who is protected and liable

Exemptions
  • Place a sunset clause of three (3) years on all permanent exemptions and exceptions (and undertake an inquiry into removing or refining the exemptions and exceptions strictly in accordance with human rights principles)

Complaint handling
  • Extend the time limit for commencing actions in the Federal Court or Federal Magistrates Court.
  • Enable public interest organisations to commence actions for breaches under the SDA

Powers and capacity of HREOC and the Commissioner
  • Increase the statutory functions of HREOC and the Sex Discrimination Commissioner (subject to being appropriately funded) in relation to:
    • broad inquiries into gender equality;
    • initiating complaints for breaches of the SDA;
    • certifying special measures;
    • intervening and appearing as amicus curiae in court proceedings; and
    • independent monitoring and reporting to the Australian Parliament on progress to achieve gender equality.

  1. In addition to the above amendments, HREOC also recommends the following in relation to funding:
    • Increase funding for HREOC to handle complaints, and to perform existing non-complaint handling functions;
    • Increased availability of legal aid and specialist free and low cost legal assistance to help people take action for breaches of the SDA, including working women’s centres, community legal centres and legal aid
    • Assess new funding that would be needed to undertake new functions for HREOC and the Commissioner
  2. Full details of all Recommendations are set out in the Table of Recommendations and Options for Reform, below.

Stage two

  1. HREOC also sets out in this submission a range of ‘Options for Reform’ which it proposes for a second stage of reform of the SDA, to be completed within three (3) years.
  2. This Inquiry represents a significant law reform opportunity. It raises fundamental issues about the adequacy of the way in which the human right to gender equality – and equality in general – should be protected under Australian law. Some changes to the SDA could have implications for other discrimination and equality laws in Australia, including the Age Discrimination Act 2004 (Cth) (‘ADA’), the Disability Discrimination Act 1992 (Cth) (‘DDA’) and the Race Discrimination Act 1975 (Cth) (‘RDA’). There is also a need to consider other areas in need of equality protection, including sexuality and ‘sex and gender identity’.[7]
  3. Some changes to the SDA could affect significant constituencies, including religious bodies, sporting bodies, and voluntary bodies. Proposed reforms may raise important public debates about our national culture of equality and how we view the role of men and women in modern Australian life.
  4. For these reasons, HREOC submits that Options for Reform discussed in this Submission may require further consultation with all interested parties, in order to reach firm recommendations.   This is outside the time available for this Inquiry.
  5. Accordingly, HREOC recommends that the Committee support a second stage of reform to the SDA, arising out of this Inquiry, to be completed within three (3) years. The form of Stage Two would be either:
    • A national inquiry into the merits of a comprehensive Equality Act for Australia; or, alternatively,
    • A reference to the Australian Law Reform Commission (‘ALRC’) or other suitable body to consider adopting a human-rights based framework for the SDA, including:
      • A general prohibition on gender-based discrimination;
      • A general right to gender equality before the law;
      • A general positive duty to eliminate gender-based discrimination, including sexual harassment, and promote gender equality;
      • Removal of all permanent exemptions under the SDA in their current form or limit them on strictly human rights grounds (linked to the sunset clause introduced in Stage One);  
      • A general limitations clause, which permits differential treatment strictly in accordance with human rights principles; and
      • Power to adopt legally-binding standards and audit gender equality action plans.
  6. HREOC would welcome the Committee’s support for a second stage inquiry into the merits of a comprehensive Equality Act. An inquiry into an Equality Act would be an appropriate vehicle to consider harmonising and improving existing federal anti-discrimination laws. It would also be an opportunity to consider extending protection from discrimination on other grounds, such as sexuality, and ‘sex and gender identity’.
  7. An inquiry into an Equality Act could also take place as a stage of reform arising out of the forthcoming Australia-wide consultation to determine how best to recognise and protect human rights and responsibilities. HREOC expresses support for the national consultation into human rights.
  8. If an inquiry into an Equality Act does not proceed, HREOC supports a second stage reference to the ALRC or other suitable body to complete the necessary reforms to the SDA.
  9. A second stage of inquiry is essential to complete the process of converting the SDA into a first class national gender equality law.
  10. Full details of all Options for Reform for consideration in stage two are set out in the Table of Recommendations and Options for Reform, below.

^top

3. Table of Recommendations and Options for Reform

Issue Recommendations (Stage One) or Options for Reform (Stage Two) Terms of Reference

Two Stage Reform Process

(Page 45)

Recommendation 1: A Two-Stage Inquiry Process

(1) Support a two-stage inquiry process for the SDA, with some amendments made now to the existing law (Recommendations), and the rest completed within three (3) years (Options for Reform)

(2) Complete reforms as part of an inquiry into an Equality Act for Australia

(3) Alternatively, refer stage two of the SDA inquiry to the ALRC or other suitable body

 M
Objects and interpretation (Page 48)

Recommendation 2: Objects of the SDA (Stage One)

Amend the objects of the SDA to remove ‘so far as is possible’ and fully reflect the obligations of CEDAW and other international legal obligations under the ICCPR, ICESCR and ILO Conventions to eliminate discrimination and promote substantive gender equality.

 A, B
(Page 49)

Recommendation 3: Interpretation of the SDA (Stage One)

Insert in the SDA the express requirement that it be interpreted in accordance with Australia’s international legal obligations, including relevant provisions of CEDAW, ICCPR, ICESCR and ILO Conventions

 A, B
CEDAW (Page 50)

Recommendation 4: Removal of Paid Maternity Leave Reservation under CEDAW (Stage One)

The Australian Government should remove its reservation under art 11(2)(b) of CEDAW about paid maternity leave

 B
Definition of discrimination (Page 54)

Recommendation 5: Direct Discrimination (Characteristics extension) (Stage One)

Amend the wording of the characteristics extension in the definitions of direct discrimination to include characteristics that are actually imputed by the alleged discriminator, even if not generally imputed by others

 A
Definition of discrimination (Page 62)

Recommendation 6: Removal of comparator element (Stage One)

Amend the definition of direct discrimination to remove the comparator element, along the lines of the equivalent definition in the ACT

 A
Definition of discrimination (Page 65)

Recommendation 7: Clarifying causation (Stage One)

In making any changes to the definition of direct discrimination, parliament should make clear its intention, either via legislation or even extrinsic materials such as explanatory memoranda or second reading speech to any amending Bill, that the SDA does not require an applicant to prove that the relevant ground of discrimination was the true basis or real reason for the impugned conduct and confirm the operation of s 8 of the SDA

 A
Definition of discrimination (Page 71)

Recommendation 8: Shifting the onus (Stage One)

Amend the SDA to make establishing causation more achievable, such as by:

(a) directing courts to draw an adverse inference where a respondent fails to establish a non-discriminatory basis for its conduct;

(b) shifting the onus to the respondent to establish a non-discriminatory basis for its conduct in circumstances where its conduct was plausibly based (in whole or in part) on a protected attribute or characteristic, such as along the lines of s 63A of the Sex Discrimination Act 1975 (UK); or

(c) reversing the onus of proof in relation to establishing causation, along the lines of s 664 of the Workplace Relations Act 1996 (Cth)

 A
Definition of discrimination (Page 76)

Recommendation 9: Requirement, condition or practice element (Stage One)

Amend the SDA to remedy the narrow approach taken in certain cases  to the requirement, condition or practice element, such as by providing that an applicant must simply establish that the relevant circumstances (including any terms, conditions or practices imposed by the respondent) disadvantaged women (or other relevant groups). The onus would then shift to the respondent to establish that the relevant circumstances were reasonable

 A
Definition of discrimination (Page 79)

Recommendation 10: Reasonableness standard (Stage One)

Review the standard of reasonableness as part of the definition of indirect discrimination to become more closely aligned with human rights based principles of legitimacy and proportionality

 A
Definition of discrimination (Page 82)

Option for Reform A: Positive duty to eliminate discrimination and promote gender equality (Stage Two)

Consider inserting into the SDA a positive duty to take reasonable steps to eliminate discrimination and promote gender equality, in addition to the prohibition on discrimination

 A, B
Definition of discrimination (Page 84)

Recommendation 11: Proposed treatment (Stage One)

Amend the definitions of discrimination to cover proposed treatment

 A
Definition of discrimination (Page 84)

Recommendation 12: Associate of a person (Stage One)

Amend the definitions of discrimination to cover disadvantage suffered as a result of an association with a person with a protected attribute or characteristic

 A
Definition of discrimination (Page 84)

Recommendation 13: Unfavourable or less favourable treatment (Stage One)

Clarify that it is not necessary for an applicant to establish that the respondent regarded the relevant treatment as unfavourable or less favourable

 A
Definition of discrimination (Page 87)

Option for Reform B: Equality before the law (Stage Two)

Consider the merits of amending the SDA be amended to provide equality before the law, along the lines of s 10 of the RDA or by giving binding effect to paragraph 2 of the Preamble to the SDA (including family and carer responsibilities)

 A, B
Grounds of discrimination (Page 90)

Recommendation 14: Breastfeeding as a separate ground (Stage One)

Amend the SDA to specifically prohibit discrimination on the ground of breastfeeding as a protected attribute.

 A
Grounds of discrimination (Page 91)

Recommendation 15: Ensure equal protection from discrimination on the grounds of couple status for all couples (Stage One)

Amend the SDA to replace the protected ground of ‘marital status’ with ‘couple status’ and ensure that definitions such as ‘de facto spouse’ are amended to give all couples equal protection under the SDA, including same-sex couples

A, B
Grounds of discrimination (Page 92)

Option for Reform C (Stage Two): Protection from discrimination on the grounds of sexuality, sex identity and gender identity

Consider securing the legal protection from discrimination on the grounds of sexuality, sex identity or gender identity as part of a stage two inquiry into improving equality laws in Australia, for example, through a federal Equality Act.

 A, B
Family responsibilities (Page 104)

Recommendation 16: Extend family and carer responsibilities protection under the SDA (Stage One)

(1) Make direct and indirect family and carer responsibilities discrimination unlawful in all areas covered by Part II Div 1

(2) Extend the definition of family responsibilities to include family and carer responsibilities which is inclusive of same-sex families, and provide a definition of family members and dependents which ensures adequate cover for both children and adults to whom care is being provided.

I, B
Family responsibilities (Page 104)

Option for Reform D: Include family and carer responsibilities as a specified ground in a potential Equality Act, or enact specialised legislation (Stage Two)

If an Equality Act is adopted, insert family and carer responsibilities as a specified protected ground. Alternatively, a specialised piece of federal equality legislation could be enacted, as recommended in It’s About Time (2007)

 I, B
Family responsibilities (Page 109)

Recommendation 17: Positive duty to reasonably accommodate the needs of workers who are pregnant and/or have family or carer responsibilities (Stage One)

Introduce a positive obligation on employers and other appropriate persons to reasonably accommodate the needs of workers in relation to their pregnancy or family and carer responsibilities. Failure to meet this obligation would be an actionable form of discrimination

 I, B
Coverage (Page 113)

Option for Reform E: Protection from discrimination in any area of public life (Stage Two)

Consider the merits of amending the SDA to include a general prohibition against discrimination in all areas of public life, along the lines of s 9 of the RDA

 A, B
Coverage (Page 116)

Recommendation 18: Extend coverage to state and state instrumentalities (Stage One)

Repeal s 13 of the SDA

 A
Coverage(Page 116)

Recommendation 19: Extend coverage to bind the Crown in right of the state (Stage One)

Amend s 12(1) of the SDA to comprehensively bind the Crown in right of the State, along the lines of s 14 of the DDA, s 6 of the RDA and s 13 of the ADA.

 A
Coverage (Page 117)

Recommendation 20: Provide equal coverage for men and women (Stage One)

Amend s 9(10) of the SDA to ensure equal coverage for men as women, such as along the lines of s 12(8) of the DDA.

 A, B
Coverage (Page 119)

Recommendation 21: Extend coverage to volunteers and other unpaid workers (Stage One)

Provide equivalent protection to volunteers and other unpaid workers as with paid workers

 A
Coverage (Page 120)

Recommendation 22: Extend coverage of independent contractors (Stage One)

Provide equivalent protection against discrimination and sexual harassment to independent contractors as applies to other categories of workers

 A
Coverage (Page 123)

Recommendation 23: Liability of individual employees (Stage One)

Amend s 14 of the SDA to confer personal liability on the individual employee, or other worker, who engaged in the discrimination rather than just the employer.

 A
Coverage (Page 124)

Recommendation 24: Abolish minimum size regarding partnerships (Stage One)

Amend s 17 of the SDA to abolish the minimum size requirement of partnerships and proposed partnerships

 A
Coverage (Page 125)

Recommendation 25: Extend coverage to statutory appointees et al (Stage One)

Clarify that statutory appointees, judges and members of parliament are adequately protected, as well as personally liable, under the SDA.

 A
Coverage (Page 126)

Recommendation 26: Review coverage to ensure all types of workers protected (Stage One)

Review Part II Div 1 of the SDA to ensure that all potential categories of workers are protected

 A
Coverage (Page 127)

Recommendation 27: Expand definition of services (Stage One)

Expand the definition of services under the SDA or, alternatively, amend the definition to be non-exhaustive

 A
Coverage (Page 128)

Recommendation 28: Administration of state and territory laws and programs (Stage One)

Amend the SDA to make discrimination in the administration of State (including Territory) laws or programs unlawful.

 A
Coverage (Page 130)

Recommendation 29: Extend coverage of ancillary liability (Stage One)

Amend s 105 to include acts that are unlawful under the SDA generally, rather than being limited to acts that are unlawful under Divisions 1 or 2 of Part II only.

 A
Sexual harassment (Page 138)

Recommendation 30: Amend the reasonable person standard (Stage One)

Amend the definition of sexual harassment in relation to the reasonable person standard, along the lines of the relevant provisions in Queensland and the Northern Territory.

 K
Sexual harassment (Page 140)

Recommendation 31: Extend coverage of sexual harassment to better protect workers (Stage One)

Amend the SDA to protect workers from sexual harassment by customers, clients and other persons with whom they come into contact in connection with their employment

 K
Sexual harassment (Page 141)

Recommendation 32: Extend sexual harassment protection to all students regardless of their age (Stage One)

Amend s 28F (2)(a) of the SDA by removing the words ‘an adult student’ and replacing with the words ‘a student’.

 K
Sexual harassment (Page 142)

Recommendation 33: Extend sexual harassment to provide protection to students from all staff members and adult students, not just those at their own education institution (Stage One)

Amend s 28F of the SDA to ensure that students who are sexually harassed in connection with their education or attendance at school-related activities are entitled to bring a claim against the perpetrator, irrespective of whether the harasser is from the same or a different educational institution.

 K
Sexual harassment (Page 143)

Option for Reform F: Enact a free standing prohibition against sexual harassment in public life (Stage Two)

Consider amending the SDA to include a general prohibition against sexual harassment in any area of public life, along the lines of s 9 of the RDA

 K
Sexual harassment (Page 145)

Option for Reform G: Positive duty to avoid sexual harassment (Stage Two)

Consider imposing a positive obligation on employers (and other appropriate respondents) to take all reasonable steps to avoid sexual harassment of or by their employees

 K
Victimisation (Page 150)

Recommendation 34: Protected action need only be a reason (Stage One)

Amend s 94 of the SDA to clarify that an applicant need only establish that a protected action was a reason for the victimising conduct even if not the dominant or a substantial reason.

 A
Victimisation (Page 150)

Recommendation 35: Extend vicarious liability (Stage One)

Amend s 106(1) to apply to any act that is unlawful under the SDA, including victimisation.

 A
Exemptions (Page 157)

Recommendation 36: Temporary exemptions in accordance with the objects of the SDA (Stage One)

Amend s 44 of the SDA to make it clear that the power to grant a temporary exemption is to be exercised in accordance with the objects of the SDA

 N, B
Exemptions (Page 159)

Recommendation 37: Consolidate permanent ‘exemptions’ which are consistent with gender equality with s 7D about temporary special measures (Stage One)

Remove permanent exemptions, such as 31 and 32 which are consistent with gender equality, from Division 4, and consolidate with s 7D regarding temporary special measures.

N
Exemptions (Page 164)

Recommendation 38: A three (3) year sunset clause on permanent exemptions (Stage One)

(1) Place a three (3) year sunset clause on all permanent exemptions and exceptions that limit gender equality

(2) Refer all permanent exemptions to a second stage of review, with a view to them either being removed, or narrowed on human right grounds

 N, B
Exemptions (Page 164)

Option for Reform H: Process for removing permanent exemptions (Stage Two)

(1) Consider removal of all permanent exemptions, or narrowing on strictly human rights grounds

(2) Consider introducing a general limitations clause which is strictly compliant with human rights principles

 N, B
Funding (Page 203)

Recommendation 39: Increase funding for complaint handling service (Stage One)

Increase funding to ensure that HREOC is adequately resourced to (i) continue to provide information to ensure people understand the law and rights and responsibilities under the law and (ii) ensure the ongoing provision of an efficient and effective complaint service.

H
Funding (Page 203)

Recommendation 40: Increase funding for free and low cost legal services (Stage One)

Increase funding provided to Working Women’s Centres, Community Legal Centres, specialist low cost legal services and Legal Aid to assist people make complaints under federal anti-discrimination law. This may also require changes to Legal Aid funding guidelines.

 H
Complaints (Page 204)

Recommendation 41: Extend time limit for taking court action (Stage One)

Amend the HREOC Act to extent the time limit for taking court action from 28 to 60 days

 H
Complaints (Page 209)

Recommendation 42: Extend standing to public interest organisations to bring proceedings (Stage One)

Review the provisions in the HREOC Act relating to standing to bring claims under the SDA (and other federal discrimination Acts) to widen the scope for proceedings to be brought by public interest-based organisations.

 H
Funding (Page 219)

Recommendation 43: Impact of Reduction in Funding (Stage One)

Increase funding to HREOC to perform its existing policy development, education, research, submissions, public awareness and inquiry functions to eliminate discrimination and promote gender equality.

 C
Powers (Page 224)

Recommendation 44: Broad inquiry function (Stage One)

Amend the SDA to include a broad formal inquiry function in relation to the elimination of discrimination and the promotion of gender equality in Australia.

C
Funding (Page 225)

Recommendation 45: Dedicated funding to be made available for formal inquiries, particularly on referral from the Minister (Stage One)

Where HREOC undertakes a formal inquiry, particularly when undertaken on referral from the Minister, adequate resources should be made available, in order to preserve the capacity of HREOC to undertake other ongoing functions relevant to addressing systemic discrimination and promoting gender equality.

 C
Powers (Page 229)

Recommendation 46: Self-initiated investigation (Stage One)

(1) Insert a function for the Sex Discrimination Commissioner to commence self-initiated investigations for alleged breaches of the SDA, without requiring an individual complaint. The new function would include the ability to enter into negotiations, reach settlements, agree enforceable undertakings, and issue compliance notices.

(2) Insert a function for HREOC to commence legal action in the Federal Magistrates Court or Federal Court for a breach of the SDA.

C
Powers (Page 231)

Recommendation 47: Certification of special measures (Stage One)

Amend s 7D of the SDA to give HREOC power to certify temporary special measures for up to five (5) years.

C, B
Powers (Page 235)

Recommendation 48: Extend the amicus curiae function (Stage One)

Amend s 46PV of the HREOC Act to include appeals from discrimination decisions in the Federal Court and Federal Magistrates Court.

 C
Powers (Page 235)

Recommendation 49: Intervening or appearing as amicus curiae as of right (Stage One)

Consider empowering HREOC to intervene, and the Sex Discrimination Commissioner to appear as amicus curiae, as of right.

 C
Powers (Page 235)

Recommendation 50: Broadening the intervention power (Stage One)

Consider redrafting s 48(1)(gb) of the SDA to operate more broadly.

 C
Powers (Page 240)

Recommendation 51: Independent monitoring of national gender equality indicators and benchmarks (Stage One)

(1) Insert into the SDA a specific function for the Commissioner, on behalf of HREOC, to undertake periodic, independent monitoring of gender equality indicators and benchmarks and report to the Australian Parliament, subject to appropriate and specific funding being made available.

(2) Consider the merits of inserting this function as a statutory duty, taking into account the concerns of HREOC about the need for tied funding.

C
Powers (Page 245)

Option for Reform I: Implement legally-binding standards (Stage Two)

Consider inserting into the SDA the ability to adopt legally-binding standards

 C
Powers(Page 248)

Option for Reform J: Gender Equality Action Plans (Stage Two)

Consider introducing the ability for EOWA and/or HREOC to receive Gender Equality Action Plans, from bodies other than employers currently covered by the EOWW Act.

C
Powers (Page 249)

Option for Reform K: Auditing function (Stage Two)

Consider amending the EOWW Act or the SDA Act to provide for an auditing function of Gender Equality Action Plans which is properly resourced.

C
Powers (Page 249)

Recommendation 52: New functions will require new funding (Stage One)

If new functions are created for HREOC or the Commissioner, provide new funding reasonably necessary for the effective use of that function.

 C
Powers (Page 250)

Recommendation 53: Purchasing power of the Australian Government (Stage One)

Consider how the Australian Government can best use its purchasing power to promote gender equality and address systemic discrimination.

 O
Harmonisation(Page 258)

Recommendation 54: Harmonisation should promote ‘best practice’ in equality law and ensure compliance with international legal standards (Stage One)

Any process of harmonisation should: (a) Ensure laws comply with international human rights standards; (b) Promote ‘best practice’ models rather than the ‘lowest common denominator’ from each jurisdiction; (c) Provide greater clarity about the practical application of equality rights and responsibilities in specific contexts; (d) Reduce the transactional costs for both applicants and respondents; and (e) Promote access to justice, with particular focus on improving access for people who are mostly intensely affected by inequality and violation of other human rights in Australia.

 D

^top

4. Gender equality in Australia: the state of the nation

This section is for information.

It summarises:

  • key issues of gender inequality in Australia in 2008: and
  • Commissioner Broderick’s national Listening Tour about gender equality in Australia and her Plan of Action towards Gender Equality.

The Plan of Action towards Gender Equality identifies reforming the SDA as a national priority.

The section also explains the structure of the Submission.


  1. This Inquiry signifies the beginning of an important new process for women and men in Australia committed to gender equality. It enables us to focus our attention at the national level on what must be done now, almost a quarter of a century after the enactment of the SDA, to secure a first-class national gender equality law which will build a fair and equal Australia.
  2. In 2007, Elizabeth Broderick was appointed as the new federal Sex Discrimination Commissioner at HREOC. Commissioner Broderick embarked on a national Listening Tour over the first months of her term. The Listening Tour was designed to assess the current state of gender equality in Australia through direct experiences. It addressed three key themes:
    • Economic independence for women;
    • Work and family balance over the life cycle; and
    • Freedom from discrimination, harassment and violence.
  3. During the Listening Tour, Commissioner Broderick personally met over 1000 women and men from all walks of life. Many more contributed through the Listening Tour blog.
  4. While people acknowledged the progress made towards achieving equality between women and men, the Listening Tour confirmed that ongoing and persistent gender inequality remains entrenched in Australian life.

Economic independence for women

  1. Achieving economic independence for women is at the core of gender equality. Economic independence is about expanding the capacity of women to make genuine choices about their lives through full and equal participation in all spheres of life. Importantly, it involves recognising women’s work, paid and unpaid, as valuable, both socially and in monetary terms.
  2. Currently, women working full-time earn 16 per cent less than men.[8] The gender pay gap is even greater when women’s part-time and casual earnings are considered, with women earning two thirds what men earn overall.[9] Women are more likely to be working under minimum employment conditions and be engaged in low paid, casual and part time work. Australian women are overrepresented in low paid industries with high levels of part time work such as retail, hospitality and personal services.[10]
  3. The gender pay gap has a number of critical flow-on effects. Women, having earned less than men and carried a significantly greater share of unpaid work, have significantly less retirement savings compared to men. Current superannuation payouts for women are one third of those for men[11]. And half of all of women aged 45 to 59 have $8000 or less in superannuation savings, compared to $31,000 for men.[12]
  4. In Australia, women continue to be significantly under-represented in senior leadership positions across business, government and the community, despite Australia leading the world levels of educational attainment for women.[13] For the top 200 companies listed on the Australian Stock Exchange at 1 February 2006, women held only 8.7 per cent of board directorships.[14] Women make up 25 per cent of the House of Representatives in the Parliament of Australia.[15] The statistics of women’s representation in leadership positions are indicative of the barriers faced by women to equal participation and progression in the workplace.
  5. The Listening Tour confirmed that women’s full and equal participation in the workforce is impeded by a range of factors including: ongoing direct and indirect discrimination based on sex, pregnancy and family responsibilities; limited availability of quality part-time work; gendered assumptions about women’s roles as carers; and a lack of family friendly work policies.
  6. One Listening Tour participant shared her story on the Commissioner’s blog, giving voice to a common trajectory for women of her generation in Australia. This story highlights the persistent barriers to economic independence experienced by women over the life course:

    I’m a mother who has been out of the paid workforce for two years and will probably be for the next 4 years, until my children are ready for pre-school. My return to work will probably be on a part-time basis and I will probably have to re-start my career after so many years out so I don’t expect that I will earn very much. I never thought this would be the case - I studied for many years, earned a higher degree, worked overseas and then started my family...I can’t see how, after this time out of the workforce, my earnings will ever come close to my partner’s. I dread to think of how I will ever manage if I have to rely upon my meagre superannuation contributions in retirement.[16]

  7. An explanation offered by Listening Tour participants for the gap between women and men’s earnings is the lack of value ascribed to what is commonly characterised as ‘women’s work’. A woman working in the child care sector drew attention to the complex set of skills required in her work and the social benefit of high quality care for children. She pointed out that the pay and status of workers in this sector fails to acknowledge the skills required or the benefits returned:

    The amount of pay is incredibly low and the work is undervalued. Caring for children should be valued in our society but we are invisible.[17]

  8. Many older women who participated in the Listening Tour expressed their anxieties about living in poverty in their later years, providing a personal narrative to the notable difference between women and men’s retirement savings. One woman commented that many women are working longer for financial security:

    As a baby boomer approaching retiring age and having spent most of my years raising children, I have very little hope of retiring and will need to work for as long as possible. I will not be independent financially...The pressure is really on women who have not been high income earners and the outlook for the future is bleak. I see many tired women who are working fulltime, supporting husbands and trying to be a helpful grandparent.[18]

Work and family balance across the life cycle

  1. Successfully balancing paid work with caring responsibilities remains a major challenge for a large number of Australian women and men. With women continuing to carry the majority of Australia’s unpaid caring work, creating workplaces to support women and men to balance paid work and share caring responsibilities is critical to achieving gender equality.[19]
  2. Women and men are juggling their paid work with caring for their children, their grandchildren, family members with disability and increasingly, for their parents. Yet there remains a notable gap in support provided by governments and employers in allowing women and men to take on these responsibilities without a personal cost.
  3. Australia remains one of only two OECD countries without a legislated paid maternity leave scheme. Paid maternity leave is accessed by only around one third of employed pregnant women.[20] The use of paid paternity or parental leave by male partners is even lower at 25 per cent.[21]
  4. A culture of long work hours is a further barrier to employees balancing their paid work with family responsibilities. Over one third of men are currently working longer than 45 hours per week, with fathers of young children likely to work longer hours.[22]
  5. Securing flexible work arrangements, without a cost to career progression, is a major challenge for women. One Listening Tour focus group participant described her frustration with the difficulty she experienced finding work that would allow her to fulfil her caring responsibilities:

    I followed my husband around so wherever he has had a job I’ve had to either find a job or just sit back and watch the world go by. It has been difficult because at certain points of my life I’ve had a young child that I’ve really wanted to look after or be with a little bit more than a full time job would allow me to be with her. So, it’s the inflexibility of the work place that I found really difficult to deal with.[23]

  6. In addition, men who also want greater ability to participate in family life need to be supported to do so. There was a widely held view on the Listening Tour that supporting women and men to equally share caring responsibilities is at the heart of gender equality. A male participant expressed his frustration in attempting to gain access to workplace policies to allow him to equally share caring responsibilities with his partner:

You can create all the policies in the world. If they’re not binding then they’re not going to change. Try and be the person who walks in and says, I’m going to work an eight hour day - start work at eight and walk out of the office between four and five o’clock. They’re going to stare at you when you leave...you don’t want to walk out of the office early and have all your mates look at you. You’re letting the team down.[24]

Freedom from discrimination, harassment and violence

  1. The continuing presence of discrimination, harassment and violence against women is a key marker of gender inequality. Ending discrimination, harassment and violence against women is essential for women to be able to equally contribute to and benefit from economic, social, cultural and political life.
  2. Sex discrimination and sexual harassment overwhelmingly affect women more than men. There were 472 complaints made to HREOC under the Sex Discrimination Act 1984 (Cth) in the 2006-07 financial year. Of these complaints, 87 per cent came from women.[25]
  3. A telephone poll commissioned by HREOC in 2003 found that 41 per cent of women have experienced sexual harassment and 28 per cent of women experienced it in the workplace, compared to seven per cent of men. The research also found that 70 per cent of all sexual harassment involved men sexually harassing women.[26]
  4. Violence against women remains a major human rights issue facing Australia. Research has found that nearly one in five women has experienced sexual violence since the age of fifteen.[27] An international study found that around one in three Australian women have experienced violence from an intimate partner in their lifetime.[28] Domestic violence presents a significant cost to the economy with Australian businesses losing at least $500 million per year because of the effects of violence on their employees.[29]
  5. On the Listening Tour, the Commissioner heard that sex discrimination remains a reality of women’s lives, despite nearly 25 years of legislation. A participant at the Hobart community consultation described the experience of her daughter-in-law, highlighting the powerlessness that many women feel:

    I have a daughter-in-law who works for a call centre. She fell pregnant and had a baby, at this time her boss said that if she wanted to come back she could. After six months, he gave her a hard time and said she had to work full time if she wanted to work. He did this because he thought women should be in the home. She ended up leaving. She knew it was discrimination but he is the boss.[30]

  6. The Commissioner also heard many experiences of sexual harassment, ranging across industries and professions. One woman commented on her experience of repeated unwelcome sexual advances where she lives in close quarters to her male colleagues:

    I’ve been living [in these work quarters] for three years and I’ve had knocks on my door at night with guys saying, “Guess you’re feeling a bit lonely, love?” It shouldn’t happen. I’ve been sitting with a group of males and one will ask, “Don’t you think it’s my turn [for sex] tonight?”[31]

Overall findings of the Listening Tour

  1. The Sex Discrimination Commissioner concluded from her Listening Tour that, whilst there are far fewer examples of overt gender-based discrimination in Australia, our progress towards true substantive gender equality has clearly stalled.
  2. Systemic gender-based discrimination remains the key barrier to achieving substantive gender equality. Systemic discrimination was defined by the ALRC in Equality Before the Law (1994) to mean ‘practices which are absorbed into the institutions and structure of society and which have a discriminatory effect’.[32] Hunter has described it as ‘... a complex of directly and/or indirectly discriminatory (or subordinating) practices which operates to produce general... disadvantage for a particular group’.[33]
  3. Some examples of this systemic gender-based discrimination have been described above such as the gap between women and men’s earnings due to the lack of value ascribed to what is commonly characterised as ‘women’s work’, inflexible work practices, and systems that condone sex discrimination and sexual harassment. The disparity between women and men’s retirement savings due to the superannuation system being linked to paid work is another example, as is the disadvantage faced by women in engaging in paid work and the undervaluing of unpaid work. Addressing these forms of systemic discrimination is crucial to achieving gender equality.
  4. In July 2008, the Sex Discrimination Commissioner released the report setting out her findings from the Listening Tour, What matters to Australian women and men: Gender equality in 2008 (‘Listening Tour Community Report (2008)’).[34]

National Plan of Action towards Gender Equality

  1. On 22 July 2008, Commissioner Broderick launched her Plan of Action towards Gender Equality, based on her findings from the Listening Tour. The Plan of Action sets out five priority areas, each equally important, which the Commissioner will address during her term of office. The priorities are set in the Listening Tour Community Report.[35] The five priority areas are:
    • improving laws to address sex discrimination and promote gender equality;
    • advocating for policies and systems to achieve a greater balance of paid work and family responsibilities for women and men;
    • reducing the incidence and impact of sexual harassment in the workplace;
    • reducing the gender gap in retirement savings to increase women’s financial security across the lifecycle; and
    • increasing the number of women in leadership positions, including supporting Indigenous women’s leadership.

Improving laws to address sex discrimination and promote gender equality: a national priority

  1. In her Plan of Action Towards Gender Equality, Commissioner Broderick highlighted the need to improve legal protection against unlawful discrimination as a national priority. She identified that current laws need to be strengthened to actively promote gender equality and challenge entrenched systemic discrimination in Australian society.
  2. Accordingly, this Inquiry is timely, commencing immediately after the findings of the Commissioner. The Inquiry poses the crucial question:
  3. “In 2008, is the SDA effective as a national law to eliminate gender-based discrimination and promote gender equality?”
  4. This Submission identifies ways in which the SDA is currently inadequate and presents proposals for necessary reform.
  5. The Submission provides:
    • an overview of the current SDA and how it works; and
    • an explanation as to why a two stage reform process is a preferred approach.
  6. The Submission then addresses specific aspects of the SDA that are in need of reform to convert the SDA into a first class national gender equality law, including:
    • Objects and interpretation;
    • The definition of discrimination;
    • Grounds of discrimination;
    • Family responsibilities;
    • Coverage of the SDA;
    • Sexual Harassment;
    • Victimisation;
    • Exemptions;
    • Complaint Handling; and
    • Powers and Capacity of HREOC and the Sex Discrimination Commissioner.
  7. Finally, the Submission discusses:
    • Harmonisation of federal discrimination and equality laws; and
    • The merits of an Equality Act for Australia.
  8. Each section includes both Recommendations for immediate implementation in stage one of a reform process, and Options for Reform, to be considered in stage two, within the next three (3) years.
  9. HREOC has also prepared three Annexures for the Committee which set out detailed background information in three key areas. The Annexures include:
    • Annexure A: Background to the SDA and subsequent amendments;
    • Annexure B: Comparison of the SDA with the RDA, DDA, ADA and HREOC Act; and
    • Annexure C: Comparison of the SDA with gender equality laws in the United Kingdom, New Zealand and Canada.
  10. HREOC will refer to these Annexures, where relevant, in the Submission to highlight ways in which the SDA can be an effective gender equality law in 2008, and fulfil Australia’s international legal obligations under CEDAW and other international laws.

^top

5. The SDA and how it works: an overview

This section is for information.

The section provides an overview of the SDA and how it currently works.

Separate sections of the Submission, below, will then address specific provisions and make Recommendations to adopt now, or propose Options for Reform to be considered in a second stage of reform.

  1. The SDA was passed in 1984, and was designed to give effect, in part, to Australia’s international legal obligations under CEDAW. The SDA was highly controversial, and its enacted form represented a political compromise. The SDA has since been amended on many occasions.[36] Some amendments arose out of two past national inquiries into the SDA:
    • House of Representatives Standing Committee on Legal and Constitutional Affairs. ‘Inquiry into Equal Opportunity and Equal Status for Women in Australia’ (1992). See Halfway to Equal (1992);[37] and
    • Australian Law Reform Commission, Inquiry into Equality before the Law Justice for Women (1994). See Equality Before the Law (1994).[38]
  2. This Inquiry represents the first national inquiry into the SDA since 1994.
  3. The SDA sets out a range of objectives to be achieved by the Act, which include giving effect to certain provisions of CEDAW.
  4. The SDA protects direct and indirect discrimination on the following grounds: sex, marital status, pregnancy or potential pregnancy.
  5. The protection from discrimination applies in specified areas of life: work, education, goods and services and facilities, accommodation, land, clubs, administration of Commonwealth laws and programs, and requests for information.
  6. It also provides limited protection from discrimination on the grounds of family responsibilities in relation to dismissal from employment.
  7. The SDA addresses sexual harassment and also provides protection from certain kinds of victimisation under the Act.
  8. There are limits to the coverage under the SDA. There are also a large number of permanent exemptions.
  9. The SDA operates in conjunction with the HREOC Act to provide for:
    • complaints; and
    • non-complaint handling functions, including policy development, education, research, submissions, public awareness, inquiries, and amicus curiae and intervention applications.
  10. HREOC, the President of HREOC and the Sex Discrimination Commissioner have specified roles and responsibilities for exercising these functions under the SDA, and the HREOC Act. As Australia’s national human rights institution, HREOC operates in compliance with the United Nations General Assembly Principles relating to the status and functioning of national institutions for protection and promotion of human rights (‘Paris Principles’).[39] HREOC is an independent statutory authority, created under the Human Rights and Equal Opportunity Act 1986 (Cth) (‘HREOC Act’). It is funded by the Australian Government, and accountable to the federal Attorney-General.
  11. There are some significant similarities and differences between the SDA and other federal, state and territory anti-discrimination laws,[40] and there is a case for working towards harmonisation of equality laws in Australia generally (see Harmonisation of discrimination and equality laws, below). One way of achieving harmonisation at the federal level is to consider the merits of introducing a comprehensive Equality Act (see Merits of an Equality Act for Australia, below).
  12. The rest of this submission provides a more detailed assessment of the effectiveness of the SDA in eliminating discrimination and promoting gender equality. Sections deal with specific provisions of the SDA and associated institutional arrangements to support its operation. Each section includes proposals for reform.
  13. As explained in the next section, HREOC considers that the Committee should adopt a two-staged process of reform to fully achieve a first class gender equality law in Australia.

^top

6. A two-staged process of reform

This section is for information.

It explains why HREOC recommends a two stage process over three (3) years for reforming the SDA.

Many changes to the SDA and associated institutional arrangements can be made now. However, some changes require a more extended inquiry process, with the aim of completing reform within three (3) years.

A second stage of inquiry, preferably to consider the merits of a comprehensive Equality Act for Australia, would:

  • promote harmonisation of discrimination and equality laws;
  • include consideration of other grounds in need of equality protection, including sexuality and gender identity; and
  • enable a full assessment of how best to adopt a human rights framework for equality laws to fully prohibit discrimination, create positive duties and provide limitations strictly in accordance with human rights principles.
  1. In the following sections, HREOC makes ‘Recommendations’ to amend the SDA and to improve supporting institutional arrangements. HREOC considers that these Recommendations are suitable for immediate implementation.
  2. However, HREOC considers that some proposals for reform represent a major change in the equality law jurisdiction in Australia. The short time frame of this Inquiry and some of the complexities involved in major law reform call for a two-staged reform process to ensure adequate consultation with all parties, and to promote ongoing harmonisation of Australia’s equality law jurisdiction.
  3. Some reforms to the SDA would preferably be considered in conjunction with possible reform to other federal discrimination and equality laws, including the ADA, DDA, RDA and HREOC Act, and the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (‘EOWW Act’).
  4. For example, if Gender Equality Action Plans are to be supported (see Powers of HREOC and the Sex Discrimination Commissioner, below), it may be best to consider how this mechanism could operate with the current Disability Action Plan mechanism under the DDA and the operation of the EOWW Act.
  5. f permanent exemptions are to be removed, what is the best way to ensure that the right to equality is appropriately balanced with other human rights considerations, such as the right to freedom of association, and religious freedoms? When should the right to equality be limited? (See Exemptions, below). These are questions relevant to all areas of discrimination, not just gender equality. Some proposed changes to the SDA would significantly change the way that gender equality is protected in comparison to other areas of equality protection.
  6. HREOC supports the principle of harmonisation of discrimination and equality laws. In the interests of harmonisation, HREOC considers that there is merit to supporting a specific second stage of inquiry into the benefits of adopting a comprehensive Equality Act for Australia (see Merits of an Equality Act for Australia, below).
  7. An Equality Act could be an appropriate way to bring together existing federal discrimination laws including the ADA, DDA, RDA, and SDA whilst retaining special-purpose Commissioners. It could also be an appropriate legislative mechanism for adopting a substantive equality approach in the federal jurisdiction.
  8. An Equality Act could also extend equality protection in other areas in need of equality protection, for example in the area of sexuality and ‘sex and gender identity’.
  9. There may be merit to considering how an Equality Act could simplify compliance for business and simplify the law for affected bodies, including applicants.
  10. On the other hand, an Equality Act which replaces specific federal discrimination laws may reduce the focus on specific issues of inequality, such as race, sex and disability. The role of special-purpose Commissioners may be even more important.
  11. These are complex questions. The adoption of an Equality Act would be a major reform and is outside the terms of the current Inquiry.
  12. Accordingly, HREOC has proposed ‘Options for Reform’ to the SDA which may be more suitable to consider in a second-stage inquiry, preferably as part of considering the merits of a comprehensive Equality Act.
  13. An inquiry into an Equality Act could take place as a stage of reform arising out of the forthcoming Australia-wide consultation to determine how best to recognise and protect human rights and responsibilities. HREOC expresses support for the national consultation into human rights.
  14. Alternatively, a second stage of full inquiry into the SDA could be undertaken by the ALRC or other suitable body to consider some of the more fundamental reforms to the legal protection of gender equality.

  15. HREOC recommends that reforms from a second stage of inquiry regarding the federal equality jurisdiction be completed within three (3) years.

Recommendation 1: A Two-Stage Inquiry Process (Stage One)

(1) Support a two-stage inquiry process for the SDA, with some amendments made now to the existing law, and the rest completed within three (3) years.

(2) Complete reforms as part of an inquiry into an Equality Act for Australia.

(3) Alternatively, refer stage two of the SDA inquiry to the ALRC or other suitable body.

^top

7. Objects and interpretation

This section addresses Term of Reference B of the Inquiry. It explains that:

  • The statutory objects of the SDA do not meet our international obligations under CEDAW and other relevant international instruments, including the ICCPR, ICESCR and ILO Conventions.
  • There is no express requirement to interpret the SDA in accordance with international obligations.
  1. As noted above, the SDA was enacted to give effect to Australian’s obligations under CEDAW. However, it has always been acknowledged that the SDA did not fully implement all obligations under CEDAW[41] nor other relevant international legal obligations in the International Covenant on Civil and Political Rights (‘ICCPR’)[42], the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’)[43] and International Labour Organisation (‘ILO’) Conventions.
  2. In subsequent sections of this submission, HREOC presents recommendations or options for reform which would improve the extent to which the SDA would fulfil our international legal obligations, for example, by the areas of public life in which the SDA operates (see Coverage, below), or in the area of family responsibilities (see Family Responsibilities, below).
  3. However, there are also some areas of the SDA which could be reformed so that the entire law is a better framework for meeting our international legal obligations. In particular, the SDA should be amended to ensure that its objects better reflect our international legal obligations, and that the SDA is interpreted accordingly.

Objects of the SDA

  1. Section 3 of the SDA sets out the objects of the Act as follows:

    (a) To give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and

    (b) To eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs.

  2. The objects currently fall short of reflecting international legal obligations under CEDAW in a number of ways.
  3. In particular, s 3 qualifies its objects by use of the term ‘so far as is possible’ in relation to eliminating discrimination, including in the areas of sexual harassment and family responsibilities. The term ‘so far as is possible’ limits the object of the SDA in a way that is not provided under CEDAW. CEDAW provides that state parties are under a general obligation to eliminate discrimination against women. The term ‘so far as is possible’ reflects that the substantive provisions of the SDA do not go as far as this obligation under CEDAW.
  4. HREOC also observes that the term ‘so far as is possible’ is not one that is typically used by Parliament aside from the discrimination law context. HREOC considers that this term results in a qualified commitment to international obligations, which is inappropriate in respect of an Act of such importance as the SDA.
  5. HREOC considers that the objects of the SDA should fully reflect Australia’s international obligations under CEDAW and other relevant provisions international treaties, including the ICCPR, ICESCR and ILO Conventions. As discussed below, HREOC supports progressive amendment to the substantive sections of the SDA to fully implement international legal obligations to eliminate discrimination and promote gender equality. On this basis, HREOC considers that the objects of the SDA should also be amended, including an object to achieve substantive gender equality.

Recommendation 2: Objects of the SDA (Stage One)

Amend the objects of the SDA to remove ‘so far as is possible’ and fully reflect the obligations of CEDAW and other international legal obligations under the ICCPR, ICESCR and ILO Conventions to eliminate discrimination and promote substantive gender equality.


Interpretation of the SDA

  1. The SDA currently does not provide any guidance as to how its provisions are to be interpreted with respect to Australia’s international legal obligations. This may be contrasted with other more modern human rights laws, such as the Human Rights Act 2004 (ACT) and the Charter of Rights and Responsibilities Act 2006 (Vic). For example, s 32 of the Victorian Charter provides:

    (1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

    (2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

  2. HREOC acknowledges that, according to well settled rules of statutory construction, domestic legislation should be interpreted and applied consistently with Australia’s obligations under international law.[44] These rules have particular application where a domestic statute gives effect to Australia’s obligations under a particular international treaty or convention, in which case the statute should be interpreted in a manner consistent with that treaty or convention.[45] Nevertheless, HREOC considers that an explicit direction within the SDA to codify this common law principle would help to clarify this point for courts and litigants and help to ensure that the SDA is applied consistently with CEDAW and relevant international obligations under the ICCPR, ICESCR and ILO Conventions in all cases. It would also help to elevate this presumption of statutory construction above the melee of competing presumptions.

Recommendation 3: Interpretation of the SDA (Stage One)
Insert in the SDA the express requirement that it be interpreted in accordance with Australia’s international legal obligations, including relevant provisions of CEDAW, ICCPR, ICESCR and ILO Conventions.

 

Reservations to CEDAW

  1. HREOC notes that Australia retains two reservations under CEDAW:
    • Paid maternity leave (Art 11(2)(b)); and
    • Combat duties (Art 11(1)(c). [46]
  2. HREOC has previously recommended that the Australian Government should remove its reservation under art 11(2)(b). For example, see HREOC’s Submission to the Productivity Commission Inquiry into Paid Maternity Leave, Paternity Leave and Parental Leave (2008).[47] HREOC retains this view.
  3. HREOC does not express a view in relation to combat duties at this time.

Recommendation 4: Removal of Paid Maternity Leave Reservation under CEDAW (Stage One)
The Australian Government should remove its reservation under art 11(2)(b) of CEDAW about paid maternity leave.

^top

8. Definitions of discrimination

This section addresses Terms of Reference A, B and E of the Inquiry.

The current definitions of direct and indirect discrimination have operated to restrict protection from discrimination in a variety of ways.

Amendments should include addressing:

  • The characteristics extension (direct)
  • The comparator element (direct)
  • Proof of causation (direct)
  • The ‘requirement, condition or practice’ element (indirect)
  • The reasonableness standard (indirect)
  • Proposed treatment
  • Disadvantage of an associated person

Creating a general positive duty to eliminate discrimination and promote gender equality is also worthy of consideration.


  1. This section describes the current application of the provisions of the SDA which deal with direct and indirect discrimination. The section makes recommendations for clarifying the definition of direct and indirect discrimination. It also proposes that consideration be given to including a general positive duty to eliminate discrimination and promote gender equality in a stage two of reform.

^top

Direct discrimination

  1. Section 5(1) of the SDA defines what is commonly referred to as ‘direct discrimination’ on the ground of sex, as follows:

    (1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

    (a) the sex of the aggrieved person;

    (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

    (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

    the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

  2. Sections 6, 7 and 7A go on to define discrimination on the grounds of marital status, pregnancy, potential pregnancy and family responsibilities, following essentially the same statutory formula to s 5(1).
  3. The first point to observe is that direct discrimination is not limited to the protected attribute (ie. sex, marital status, pregnancy, potential pregnancy or family responsibilities), but includes discrimination on the ground of a characteristic that appertains generally, or is generally imputed, to the protected attribute (the characteristics extension).
  4. The second point to observe is that the definition requires an aggrieved person to establish both that:[48]
    1. he or she has been treated less favourably than a person of the opposite sex (or a person of a different marital status, a person who is not pregnant or potentially pregnant or who does not have family responsibilities) in circumstances that are the same or are not materially different (the comparator element); and
    2. the differential treatment was by reason of the aggrieved person’s sex, marital status, pregnancy, potential pregnancy or family responsibilities (the causation element).
  5. The following sections consider particular concerns in relation to the characteristics extension, comparator element and causation element under the current definitions of direct discrimination in the SDA.

Characteristics extension

  1. The characteristics extension is of critical importance in achieving the objects of the SDA. Less favourable treatment most frequently occurs because of the perceived undesirability and inconvenience that a respondent associates with a protected attribute, rather than the attribute per se.
  2. For example, the primary concern of employers in relation to pregnant or potentially pregnant women is not the fact of their pregnancy itself. Rather, it is the perceived impact that the pregnancy will have on the employer’s business due to absences for pregnancy-related illness and maternity leave as well as the ongoing demands and distractions of juggling work and family responsibilities following maternity leave.
  3. To limit direct discrimination to less favourable treatment based on the attribute itself, but not the characteristics that appertain or are generally imputed to that attribute, would rob direct discrimination of much of its force and render it a hollow promise of equality. As discussed below, HREOC is therefore concerned that the practical effect of the characteristics extension has been significantly diminished due to the approach taken by the courts to the comparator element.
  4. HREOC further submits that the current wording of the characteristics extension would benefit from re-drafting to cover the situation of a characteristic which is actually imputed to a group by the alleged discriminator, even if that characteristic is not generally imputed to that group by others.[49]

Recommendation 5: Direct Discrimination (Characteristics extension) (Stage One)

Amend the wording of the characteristics extension in the definitions of direct discrimination to include characteristics that are actually imputed by the alleged discriminator, even if not generally imputed by others.

 

Comparator element

  1. The comparator element requires a comparison between how the applicant was treated compared with how a person without the applicant’s relevant attribute (ie sex, pregnancy, potential pregnancy, marital status and/or family responsibilities) would have been treated in the same or similar circumstances. In a claim of sex discrimination by a woman, for example, the relevant comparison is with the treatment of a man in comparable circumstances.[50]
  2. For the following reasons, HREOC considers that the comparator element under the SDA is problematic and has undermined the effectiveness of the SDA in achieving its objects. For example, HREOC considers that it is highly artificial to hypothetically compare the treatment of two groups where the particular circumstances or experiences are unique to one group only.
  3. To take the example of breastfeeding, s 5(1A) of the SDA confirms that breastfeeding is a characteristic that appertains generally to women. However, as discussed below, the courts have held that the characteristics extension does not apply to the comparator element. Accordingly, the comparison required is not with the treatment of someone who was not breastfeeding, but with the treatment of a man. Given that breastfeeding is something unique to women, a comparison with the hypothetical treatment of a man in the same or similar circumstances is highly artificial.
  4. HREOC also notes that persuasive criticisms have also been raised that the comparative approach under most Australian discrimination statutes essentially incorporates an ideal, male-based standard, whereby only treatment that deviates from this standard is capable of falling foul of the comparator element.[51]
  5. The practical application of the comparator element by the courts has also proved problematic, due primarily to the thorny question of how to construct the same or similar circumstances for carrying out the comparison.[5