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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

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Table of Contents

• 1. Introduction
• 2. Executive summary
  • Stage one
  • Stage two
• 3. Table of Recommendations and Options for Reform..
• 4. Gender equality in Australia: the state of the nation
  • Economic independence for women
  • Work and family balance across the life cycle
  • Freedom from discrimination, harassment and violence
  • Overall findings of the Listening Tour
  • National Plan of Action towards Gender Equality.
  • Improving laws to address sex discrimination and promote gender equality: a national priority
• 5. The SDA and how it works: an overview
• 6. A two-staged process of reform
• 7. Objects and interpretation
  • Objects of the SDA
  • Interpretation of the SDA
  • Reservations to CEDAW
• 8. Definitions of discrimination
  • Direct discrimination
  • Indirect discrimination
  • Positive duty to eliminate discrimination and promote gender equality
  • Additional issues regarding the definition of discrimination
  • Equality before the law
• 9. Grounds of discrimination
  • Breastfeeding
  • Marital status
  • Sexuality, Sex Identity and Gender Identity
• 10. Family responsibilities
  • HREOC’s It’s About Time (2007) findings
  • Extending protection from discrimination under the SDA
  • Positive duty to reasonably accommodate family and carer responsibilities
• 11. Coverage of the SDA
  • A free-standing prohibition
  • States and State Instrumentalities
  • Men
  • Volunteers and unpaid workers
  • Independent contractors
  • Areas of public life in which discrimination is unlawful
  • Partnerships
  • Statutory appointees, judges, members of parliament
  • Other potentially excluded categories of workers
  • Discrimination in other areas of public life
  • Administration of Commonwealth laws and programs
  • Specific issues re coverage of sexual harassment provisions
  • Ancillary / accessory liability
• 12. Sexual Harassment
  • Importance of eliminating sexual harassment
  • Definition of sexual harassment
  • Extend the coverage of protection
  • Positive duty to prevent sexual harassment
• 13. Victimisation
  • Concerns over the victimisation provisions
• 14. Exemptions
  • The permanent and temporary exemptions and ‘special measures’ under the SDA
  • Permanent Exemptions which allow differential treatment consistent with substantive gender equality
  • Permanent exemptions that may be contrary to substantive gender equality but are sought to be justified by competing public policy consideration/s
  • Religious exemptions (s 37 and 38)
  • Voluntary Bodies (s 39)
  • Sport (s 42)
• 15. Complaint Handling
  • Introduction
  • Overview of the Complaint Process
  • Complaint Handling Statistics
  • The efficiency and effectiveness of the complaint handling service
  • Standing to bring complaints
• 16. Powers and Capacity of HREOC and the Sex Discrimination Commissioner
  • Existing functions and powers of HREOC and the Commissioner
  • Existing Capacity of HREOC and the Commissioner
  • Strengthening the functions, powers and capacity to address systemic discrimination and promote gender equality
  • Policy Development, Education, Research, Submissions and Public Awareness
  • Initiating Inquiries
  • Self-Initiated investigations
  • Certification of Special Measures
  • Amicus curiae and intervention functions
  • Independent Monitoring and Reporting of National Gender Equality Benchmarks and Indicators
  • Standards, Codes of Practice and Guidelines
  • Positive Duties and Action Plans
  • Procurement Standards
• 17. Impact on the economy, productivity and employment
• 18. Harmonisation of discrimination and equality laws
• 19. Merits of an Equality Act for Australia

Annexures

• Annexure A: Background to the SDA and subsequent amendments
• Annexure B:  Comparison of the SDA with the RDA, DDA, ADA and HREOC Act
• Annexure C: Comparisons with the United Kingdom, New Zealand and Canada
• Annexure D: Australian State and Territory Religious Exemptions for Educational Institutions
• Annexure E: A summary of the submissions made in Half Way to Equal (1992)
• Annexure F:  A summary of the submissions made Review of Exemptions (1992)
• Annexure G: Additional Information on the Background on Complaint Handling Function
• Annexure H: Table of Major Non-Complaint Work by HREOC under the SDA

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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.
    

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2. Executive summary

11. 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.
12. 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]
13. 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.
14. HREOC recommends a two-staged reform process to achieve this result.
    

Stage one

15. 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.
16. 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.

17. 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
18. Full details of all Recommendations are set out in the Table of Recommendations and Options for Reform, below.
    

Stage two

19. 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.
20. 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]
21. 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.
22. 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.
23. 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.
24. 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’.
25. 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.
26. 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.
27. A second stage of inquiry is essential to complete the process of converting the SDA into a first class national gender equality law.
28. 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.

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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

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

29. 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.
30. 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.
31. 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.
32. 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

33. 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.
34. 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]
35. 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]
36. 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.
37. 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.
38. 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]

39. 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]

40. 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

41. 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]
42. 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.
43. 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]
44. 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]
45. 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]

46. 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

47. 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.
48. 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]
49. 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]
50. 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]
51. 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]

52. 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

53. 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.
54. 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]
55. 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.
56. 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

57. 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

58. 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.
59. Accordingly, this Inquiry is timely, commencing immediately after the findings of the Commissioner. The Inquiry poses the crucial question:
60. “In 2008, is the SDA effective as a national law to eliminate gender-based discrimination and promote gender equality?”
61. This Submission identifies ways in which the SDA is currently inadequate and presents proposals for necessary reform.
62. 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.
63. 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.
64. Finally, the Submission discusses:
    • Harmonisation of federal discrimination and equality laws; and
    • The merits of an Equality Act for Australia.
65. 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.
66. 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.
      
67. 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.

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5. The SDA and how it works: an overview

68. 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]
      
69. This Inquiry represents the first national inquiry into the SDA since 1994.
70. The SDA sets out a range of objectives to be achieved by the Act, which include giving effect to certain provisions of CEDAW.
71. The SDA protects direct and indirect discrimination on the following grounds: sex, marital status, pregnancy or potential pregnancy.
72. 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.
73. It also provides limited protection from discrimination on the grounds of family responsibilities in relation to dismissal from employment.
74. The SDA addresses sexual harassment and also provides protection from certain kinds of victimisation under the Act.
75. There are limits to the coverage under the SDA. There are also a large number of permanent exemptions.
76. 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.
77. 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.
78. 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).
79. 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.
80. 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.

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6. A two-staged process of reform

81. 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.
82. 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.
83. 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’).
84. 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.
85. 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.
86. 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).
87. 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.
88. 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’.
89. There may be merit to considering how an Equality Act could simplify compliance for business and simplify the law for affected bodies, including applicants.
90. 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.
91. These are complex questions. The adoption of an Equality Act would be a major reform and is outside the terms of the current Inquiry.
92. 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.
93. 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.
94. 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.

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

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7. Objects and interpretation

96. 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.
97. 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).
98. 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

99. 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.

100. The objects currently fall short of reflecting international legal obligations under CEDAW in a number of ways.
101. 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.
102. 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.
103. 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.
     

Interpretation of the SDA

104. 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.

105. 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.
     

 

Reservations to CEDAW

106. HREOC notes that Australia retains two reservations under CEDAW:
     • Paid maternity leave (Art 11(2)(b)); and
     • Combat duties (Art 11(1)(c). ^[46]
       
107. 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.
108. HREOC does not express a view in relation to combat duties at this time.
     

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8. Definitions of discrimination

109. 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.
     

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Direct discrimination

110. 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.

111. 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).
112. 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).
113. 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).
114. 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

115. 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.
116. 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.
117. 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.
118. 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]

 

Comparator element

119. 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]
120. 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.
121. 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.
122. 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]
123. 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.^[52] In particular, to what extent should circumstances or characteristics related to the protected attribute be included or excluded from the comparison?^[53]
124. Earlier cases appeared more receptive to the notion that direct discrimination included less favourable treatment on the ground of a characteristic associated with a protected attribute, rather than a narrower approach which distinguishes attributes from their related characteristics. For example, in Sullivan v Department of Defence,^[54] Sir Ronald Wilson observed:

     It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment ... could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act.^[55]

125. However, the current approach is to exclude consideration of the characteristics extension when applying the comparator element. That is, the courts have held that the comparison required is with a person without the protected attribute. The comparison is not with a person without the relevant characteristic appertaining or imputed to the protected attribute.^[56] This approach has been premised on a close reading of the relevant definitions of direct discrimination under the SDA, which include the characteristics extension in the causation element but not the comparator element.
126. For example, in Thomson v Orica,^[57] the applicant (Ms Thomson) had been employed for nine years before taking 12 months maternity leave to which she was entitled under the company’s family leave policy (which reflected a statutory right to return under the Industrial Relations Act 1996 (NSW)). A few days before she was due to return to work, Ms Thomson was effectively demoted.
127. Allsop J accepted that the taking of maternity leave is a characteristic that appertains to women who are pregnant (and to women generally). However, comparing the treatment of Ms Thomson with that of someone who did not take maternity leave was not, in his Honour’s view, ‘what the SDA calls for’.^[58] Rather, his Honour held, the comparison required was with a person who is not pregnant (or with a person of the opposite sex), not with a person without the relevant characteristic.^[59]
128. A similar approach was taken in relation to marital status discrimination by a majority of the Full Federal Court in Commonwealth v HREOC (‘Dopking No 1’).^[60] The facts of the case involved a member of the armed forces who challenged a particular relocation allowance that only applied to members with a family. The applicant (who was single and without a family) successfully argued at first instance^[61] that not having a family was a characteristic generally appertaining to the marital status of being single and, accordingly, he had been treated less favourably on the basis of his marital status. The majority of the Full Federal Court disagreed, on the basis that the comparison was with a person of a different attribute, not with a person without the characteristic.^[62]
129. The above narrow approach to identifying the comparator is now consistent with the narrow approach subsequently taken under the DDA by the majority of the High Court in Purvis v New South Wales (Dept of Education)^[63] (‘Purvis’). The court accepted that, for the purposes of identifying or defining a person’s disability, the behavioural manifestations associated with that disability are to be included.^[64] However, when it came to applying the comparator element, the behavioural manifestations were discarded. Rather than comparing the treatment of the student with another hypothetical student without his disability and the violent behaviour it caused, the majority required a comparison with another hypothetical student who also engaged in the same violent behaviour.^[65]
130. The practical effect of the approach taken by the courts to the comparator element in cases such as Thomson and Dopking No 1 (and consistent with Purvis) is that the characteristics extension is effectively stripped out of the definition of direct discrimination under the SDA. Whilst consistent with a close reading of the statute, it is at odds with the beneficial objects of the legislation. Applicants may still be able to repackage their claim under indirect discrimination. However, this would appear to be contrary to Parliament’s intent in including the characteristics extension in the definition of direct discrimination in the first place. As noted earlier, the significance of the characteristics extension is that it seeks to prevent less favourable treatment not only on the basis of protected attributes, but related and imputed characteristics as well.^[66]
131. Furthermore, the application of the comparator element has effectively resulted in characteristics associated with protected attributes being devalued, particularly where the characteristic is unique to women. For example, in cases involving discrimination associated with maternity leave, such as Thomson, the courts have consistently held that the appropriate comparison is with other types of leave, such as study leave.^[67] Accordingly, the reason behind the taking of maternity leave (namely, to have a baby) is regarded as irrelevant, with all types of leave essentially treated as being of equal significance.
132. However, to equate maternity leave with any other type of leave for the purposes of assessing direct discrimination devalues the central importance that society places on child-birth and child-rearing. As a matter of principle, should a person who wishes to take 12 months leave to go surfing or write their memoirs be entitled to the same level of protection against less favourable treatment as a person taking 12 months leave to have a child?^[68]
133. Furthermore, the current approach ignores the significance of characteristics associated with a protected attribute as a discrete source of disadvantage in need of protection. Equating maternity leave with other types of leave, for example, ignores the systemic and historical barrier for women in obtaining, retaining and regaining employment as a consequence of the need to take maternity leave.^[69] To achieve substantive equality in this context requires a recognition that not all forms of leave are deserving of equal treatment – that some reasons for leave are more important than others.^[70]
134. HREOC further submits that the comparator element is an unnecessary (and often distracting) element in the definition of direct discrimination. In circumstances where the court must apply the comparison using a hypothetical comparator, it is meaningless to consider whether there was less favourable treatment without also considering the reason for such treatment. As the NSW Administrative Decision Tribunal has observed:

     [I]t is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant’s race would have been treated differently.^[71]

135. The House of Lords reached the same conclusion in Shamoon v Chief Constable of the RUC^[72] (‘Shamoon’), where it was acknowledged that a two-step approach to assessing discrimination, namely assessing the comparator element first followed by the causation element second, was often inappropriate and apt to mislead. Rather, their Lordships accepted that the comparator question and the causation question were frequently ‘intertwined’.^[73] Indeed, Lord Hope noted that:

     ...the need for a comparator has been one of the most problematic and limiting aspects of direct discrimination...^[74]

136. HREOC considers that the central question in discrimination matters is one of causation – was the relevant treatment because of the applicant’s protected attribute or related/imputed characteristic? As Lord Nicholls observed in Shamoon,

     [E]mployment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the applicant was treated as she was.^[75]

137. Whilst a comparative analysis may assist in answering that question, it is not a necessary ingredient of the definition.^[76] In this respect, HREOC agrees with the conclusion of Lord Scott in Shamoon that comparators:

     ...are no more than tools which may or may not justify an inference of discrimination on the relevant ground.^[77]

138. HREOC considers that the comparator element has significantly eroded the capacity of the direct discrimination provisions to advance the objects of the SDA. As Neil Rees, Katherine Lindsay and Simon Rice rightly point out:

     Despite the superficial appeal of the idea of differential treatment, it has brought unnecessary complexity and artificiality to the notion of direct discrimination.^[78]

139. Similarly, whilst not putting forward a clear alternative, the Final Report of the recent Equal Opportunity Review in Victoria recommended that the definition of direct discrimination required amendment to ‘overcome the limitations of the comparator test’.^[79]
140. An alternate approach is that taken in the ACT, where the legislation retains the causation element but does away with the comparator element.^[80] Applicants need only establish that they have been treated unfavourably because of their protected attribute or a characteristic imputed to, or associated with, their protected attribute.^[81] In this respect, the focus of the test is on whether the applicant has suffered a detriment by reason of their protected attribute or characteristic.^[82]
141. The application of the relevant definitions by the ACT courts has indicated that a comparative-based mode of inquiry will often be adopted by the courts in assessing whether the unfavourable treatment was on the ground of a protected attribute or characteristic.^[83] This is not surprising. As noted above, a comparative analysis will often provide a useful analytical tool in determining whether particular treatment was partly or wholly on the ground of a protected attribute and not some other unrelated reason.^[84]
142. Importantly, however, under the ACT approach the comparator element is not a rigid threshold requirement which must be met by an applicant in every case. Where good reasons warrant departing from a comparative analysis in assessing the causation element, such as where a particular circumstance is unique to women (or pregnant women), a court is not bound to still apply the comparator element as a necessary element of the definition.
143. HREOC also notes that the SDA itself adopts a similar model to the ACT approach in relation to the test for victimisation under s 94. Rather than requiring a comparative approach, s 94 simply asks whether the applicant was subjected to a detriment on the ground that he or she had engaged in protected action. The approach is therefore essentially the same as under the ACT definition of direct discrimination.
144. HREOC considers that this amendment would not raise any constitutional difficulties, as a definition of direct discrimination based on whether treatment is ‘unfavourable’ would be reasonably capable of being considered an appropriate and adapted implementation of Australia’s treaty obligations^[85] under CEDAW, as well as other relevant international conventions that deal with discrimination such as the ICCPR,^[86] ICESCR^[87] and relevant ILO Conventions.^[88]

Causation element

Relationship between the ‘true basis’ approach and s 8

145. The causation element requires the applicant to establish that the relevant treatment complained of was by reason of his or her protected attribute (such as sex, pregnancy, potential pregnancy, marital status or family responsibilities) or a characteristic generally appertaining or imputed to that attribute.
146. The authorities make clear that, in establishing causation, an applicant need not prove that the respondent was actuated by a discriminatory motive or ill-intent.^[89] However, the applicant must nevertheless establish a causal nexus between the relevant treatment and the relevant attribute.^[90] This requires an assessment of why the respondent acted as it did, by asking what was the ‘true basis’ or ‘real reason’ for the relevant treatment.^[91]
147. The ‘true basis’ approach appears to have evolved from the judgment of Deane and Gaudron JJ in Australian Iron & Steel Pty Ltd v Banovic,^[92] where their Honours noted that:

     ...there may be other situations in which habits of thought and preconceptions may so affect an individual’s perception of persons with particular characteristics that genuinely assigned reasons for an act or decision may, in fact, mask the true basis for that act or decision.^[93]

148. Their Honours’ use of the ‘true basis’ test seems to have been employed by their Honours to encourage courts to look behind a respondent’s proffered explanation to identify whether the ‘true’ causal basis of the respondent’s conduct may have been nevertheless based on a protected attribute, albeit perhaps only in part or even subconsciously. In other words, the true basis approach appears to have been initially intended as a reminder that courts must properly scrutinise the alternate explanations put forward by a respondent.
149. However, since the decision of the High Court in Purvis, the ‘true basis’ approach has often tended to translate into an attempt to distil the causal basis of particular treatment down to a single or dominant cause, usually to confound an apparent connection with a protected attribute.
150. For example, in Purvis, Gleeson CJ was of the view that the ‘true basis’ of the school’s decision to expel the student was to protect the other students and staff of the school.^[94] His Honour continued:

     Even though functional disorders may constitute a disability, and disturbed behaviour may be an aspect of a disability, it is not contrary to the scheme and objects of the Act to permit a decision-maker to identify a threat to the safety of other persons for whose welfare the decision-maker is responsible, resulting from the conduct of a person suffering from a disorder, as the basis of a decision. ...[T]o identify the pupil’s disability as the basis of the decision would be unfair to the principal and to the first respondent. In particular, it would leave out of account obligations and responsibilities which the principal was legally required to take into account.^[95] (emphasis added)

151. The above passage invites courts to weigh up the various contributing factors that motivated the respondent’s conduct in an attempt to isolate ‘the’ (singular) true basis. Where the conduct of the respondent was motivated by other more pressing considerations, such as public safety concerns, the complainant’s disability (or other protected attribute) is not to be regarded as the ‘true basis’ and the claim fails for lack of causation.^[96]
152. The problem with this development of the ‘true basis’ approach is that it has diminished the significance of s 8 of the SDA (and the equivalent provisions in the DDA^[97] and RDA^[98]). Section 8 provides that if an act is done for two or more reasons, it is sufficient that a protected attribute or characteristic is a reason for the doing of the act, even if not the dominant or a substantial reason. As Neil Rees, Katherine Lindsay and Simon Rice point out:

     Over time the ‘true basis’ or ‘real reasons’ approach to causation has evolved. It is unsatisfactory because it deflects attention away from the central issue of determining whether a prohibited ground of discrimination, such as race or sex, influenced the conduct in question.^[99] (emphasis added)

153. The authors go on to conclude that:

     The ‘real reason’ (or ‘true basis’) approach, when stripped bare, seems to focus on the respondent’s underlying reason, or motive, for acting as he or she did rather than on the actual factors which influenced the decision in question. This is a highly problematic approach to the issue of causation in direct discrimination cases because it introduces, by judicial invention rather than by legislative action, an excuse or defence of ‘pure motive’ in those cases where the respondent was clearly influenced by the complainant’s protected attribute when making the decision in question but maintains that his or her underlying reason for doing so was good, or pure.^[100]

154. HREOC agrees with these observations and recommends that consideration be given to options for resolving the current uncertainty surrounding the relationship between s 8 of the SDA and the prevailing ‘true basis’ or ‘real reason’ approach to assessing causation.

Difficulties for an applicant in establishing causation

155. There are a number of additional difficulties for an applicant in establishing the causation element. Notwithstanding that a discriminatory motive is not required, the court’s assessment almost invariably involves an inquiry into the respondent’s state of mind. This is a notoriously difficult and imprecise line of inquiry. As Kirby J pointed out in IW v City of Perth,^[101] ‘typically, human motivation is complex’^[102] and ‘[d]iscriminatory conduct can rarely be ascribed to a single “reason” or “ground”.’^[103] Similarly, in Australian Iron & Steel Pty Ltd v Banovic,^[104] Deane and Gaudron JJ observed that

     there may be other situations in which habits of thought and preconceptions may so affect an individual’s perception that genuinely assigned reasons for an act or decision may, in fact, mask the true basis for that act or decision.^[105]

156. The line of inquiry into the respondent’s state of mind is especially difficult for the applicant to sustain. It is, after all, a matter within the domain of the respondent, yet it is a matter in respect of which the applicant carries the onus of proof.^[106] As Lord Browne Wilkinson observed in Glasgow City Council v. Zafar:^[107]

     [Discrimination claims] present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them.^[108]

157. The difficulty is compounded by the fact that prejudices against disadvantaged groups are often infused with, or disguised by, seemingly neutral factors such as individual merit or whether the person is a ‘team player’. For example, Margaret Thornton has noted that individual prejudice, such as sexism or racism:

     quickly becomes interwoven with bona fide considerations of merit, including formal qualifications, experience, workplace practices and relations with one’s peers.^[109]

158. She concludes:

     The concept of merit – a central value in determining the ‘best person for the job’ – conveys a veneer of neutrality because of its assumptions of genuine job-relatedness but, in fact, is capable of disguising racism (as well as sexism, homophobia, etc).^[110]

159. HREOC considers that further consideration is warranted of possible options for alleviating the difficulties for an applicant in establishing the causation element.
160. One option would be for the SDA to clarify that where an inference is available that the respondent’s conduct may have been based on the applicant’s sex (or other protected attribute or characteristic), the failure on the part of the respondent to plausibly explain the basis of the relevant conduct gives rise to an adverse inference that sex (etc) was a causal factor.^[111] This would be an appropriate and adapted extension of the settled rule in Jones v Dunkel^[112] that an adverse inference may be drawn where particular information is within the domain of a particular party who fails to present it. For example, in G v H,^[113] Deane, Dawson and Gaudron JJ stated:

     [I]t is well settled that, in the course of the ordinary processes of legal reasoning, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so.^[114]

161. Similarly, the Full Federal Court recently confirmed that, when assessing whether evidence supports an inference of discrimination, courts should apply

     ...the long standing common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and the power of the other party to contradict...^[115]

162. A similar approach was taken by the UK courts (prior to the enactment of s 63A, discussed below) in discrimination matters. For example, in King v Great-Britain-China Centre,^[116] Neil LJ noted that once an applicant had established a prima facie case of less favourable treatment in circumstances where race was a possible basis:

     ...the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.^[117]

163. Similarly, in Shamoon, Lord Scott noted that, in assessing whether evidence gave rise to an inference of discrimination:

     Unconvincing denials of a discriminatory intent given by the alleged discriminatory, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in some cases suffice.^[118]

164. A second option would be to adopt a provision similar to s 63A^[119] of the Sex Discrimination Act 1975 (UK).^[120] Section 63A was enacted in 2001 to give effect to the EU Burden of Proof Directive,^[121] which had been introduced to try and address concerns over the persistent failure of applicants to succeed in discrimination claims due to the difficulties in proving why the respondent had acted as it did. The Equality and Human Rights Commission (UK) has explained the effect of s 63A as follows:

     The effect of s.63A of the SDA is that the [employment tribunal] must find unlawful discrimination where the claimant proves facts from which the [employment tribunal] could conclude - in the absence of an adequate explanation from the respondent - that the respondent has unlawfully discriminated, unless the respondent provides a non-discriminatory explanation for the act complained of.^[122] (emphasis in original)

165. The leading authority on the effect of s 63A is the decision of the Court of Appeal in Wong v Igen Ltd Ors,^[123] in which the Court annexed to its reasons a detailed set of guiding principles on the applicant of s 63A.^[124] Those principles make clear that the main object of s 63A is to overcome the difficulties discussed above in establishing causation.^[125]
166. Alternatively, a third and more robust option would be for the SDA to follow the approach taken under the Workplace Relations Act 1996 (Cth).^[126] Pursuant to s 664, in claims alleging termination of employment for a proscribed reason (including sex, marital status, pregnancy, family responsibilities and absences from work during maternity leave or other parental leave^[127]), the onus is on the respondent to establish that the termination was not for a proscribed reason.^[128]
     

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Indirect discrimination

Operation of indirect discrimination provisions

167. Section 5(2) of the SDA defines what is commonly described as ‘indirect discrimination’ on the ground of sex, as follows:

     For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

168. The definitions of indirect discrimination on the grounds of marital status (s 6(2)) and pregnancy or potential pregnancy (s 7(2)) are set out in similar terms.
169. In essence, the indirect discrimination provisions require the applicant to establish that the respondent imposed a requirement, condition or practice that disadvantaged persons who share the applicant’s protected attribute. The onus then shifts to the respondent to establish that the relevant requirement, condition or practice was ‘reasonable’.^[129] Section 7B(2) provides some assistance to the courts in assessing reasonableness, by outlining a non-exhaustive list of factors to be taken into account.^[130]

Significance of the indirect discrimination provisions

170. The indirect discrimination provisions are of critical significance in achieving substantive equality under the SDA. Indirect discrimination targets facially neutral barriers which appear to treat everyone equally, but which disproportionately impact on particular groups (ie women) due to structural, historical, attitudinal, biological and social inequalities and barriers.
171. In this respect, whilst direct discrimination is predominantly concerned with the relationship between individual applicants and individual respondents, indirect discrimination is often about challenging a status quo that harms disadvantaged groups generally. The claim will therefore often have important implications for a wider class of persons than just the individual applicant. This point was noted by the Western Australian Equal Opportunity Commission in its recent review of the Equal Opportunity Act 1984 (WA), where it observed:

     [W]hereas an act of direct discrimination might affect one person, possibly several, indirect discrimination, in the form of an apparently neutral policy or procedure, can impact adversely on hundreds of people at once.^[131]

172. Furthermore, the increasingly narrow approach taken by the courts to the direct discrimination provisions has made establishing direct discrimination very difficult. This in turn has placed additional strain on the indirect discrimination provisions in achieving substantive equality under the SDA.^[132]
173. HREOC therefore submits that the Committee should be mindful of ensuring that the indirect discrimination provisions are as broad and effective as possible in facilitating the achievement of substantive equality. HREOC considers that previous amendments to the definition of indirect discrimination significantly improved the effectiveness of the SDA. However, the current Review provides a valuable opportunity to consider whether further improvements in this area may be warranted.

Requirement, condition or practice

174. As noted above, the applicant must establish that the respondent imposed a requirement, condition or practice. The courts have held that this element should be interpreted broadly, such as to encompass ‘any form of qualification or prerequisite demanded by an employer of his employees’.^[133] Similarly, in Waters v Public Transport Corporation, the High Court emphasised the need for a beneficial approach when identifying the requirement or condition that is consistent with the remedial objects of anti-discrimination legislation.^[134]
175. However, two more recent cases have raised some cause for concern as to whether this element has been unduly narrowed by the courts, which has undermined the capacity of the SDA to achieve its objects.
176. In Kelly v TPG Internet Pty Ltd,^[135] the applicant alleged indirect discrimination because of her employer’s failure to grant her request for part-time work following her return from maternity leave. Raphael FM rejected this aspect of the claim on the basis that there was no relevant requirement, condition or practice. His Honour reasoned that the refusal of part-time work was merely the refusal of an employment-related benefit, which his Honour distinguished from a requirement, condition or practice of employment.^[136]
177. The other case of concern is the latest word from the High Court on indirect discrimination, New South Wales v Amery^[137] (‘Amery’). The applicants in Amery alleged that different pay scales for permanent and long-term causal teachers under a NSW industrial award indirectly discriminated against women, because:
     • (a) a significantly greater proportion of casual teachers were women compared with men;
     • (b) the requirements for becoming a permanent teacher disadvantaged women; and
     • (c) the upper limit of the pay scale applicable to casual teachers was significantly lower than for permanent teachers, even where the casual teachers were performing the same work as permanent teachers on a long-term basis.
178. A majority of the High Court held that the applicants had failed to establish a relevant requirement or condition of the position (the NSW legislation does not include ‘practices’). The majority distinguished casual and permanent teachers as being separate positions and, accordingly, the pay scales applicable to one position could not be regarded as a condition, requirement or practice in relation to the other position.^[138]
179. The above decisions have compounded the difficulties for applicants in establishing indirect discrimination. By taking an unduly narrow approach to identifying the requirement, condition or practice, the decisions run counter to the objects of the SDA and earlier pronouncements by the courts on the need for a broad approach on this issue. The decisions also arguably risk permitting excessive deference to the discretion of employers in dividing and classifying their workforce to avoid their obligations under the SDA, even when such divisions and classifications clearly disadvantage women or permit unequal pay for essentially the same work. As K Lee Adams has observed:

     The very mischief anticipated and avoided in Waters –that if the ‘requirement or condition’ was interpreted narrowly, defendants would be able to evade scrutiny under discrimination law simply through how they define their services or structure jobs – has captured a majority in Amery.^[139]

180. In cases involving facts such as Amery or TPG, HREOC considers that the role of the court should be to consider whether the relevant classifications imposed by management can in fact be justified by the employer, rather than allowed to pass unscrutinised on a technical approach to the requirement, condition or practice element.
181. One approach to remedying this situation would be to require that an applicant 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. This would remove the need for technical disputes over whether the respondent has imposed a relevant requirement, condition or practice. Instead, the focus would be on the impact of the prevailing circumstances on the relevant protected group and whether the circumstances can be regarded as reasonable. To the extent that the relevant circumstances are not directly referable to the employer, but are due to external factors or pressures, this would be taken into account in assessing reasonableness.

 

Reasonableness element

182. The test for reasonableness in respect of indirect discrimination has been described by the courts as ‘less demanding than one of necessity, but more demanding than one of convenience.’^[140]
183. A number of commentators have queried whether reasonableness is a sufficiently rigorous standard in assessing whether barriers that disproportionately disadvantage women (or other protected groups) should be tolerated. In particular, the reasonableness standard is sometimes seen as operating to legitimise historically oppressive practices rather than challenging respondents to justify why such practices are in fact necessary. For example, Beth Gaze argues:

     Because of its open texture, the test of reasonableness can be a vehicle for the transmission of traditional views of social practices, and the rejection of any requirement for change.^[141]

184. HREOC also notes that the reasonableness standard is somewhat weaker than the approach required under international human rights law when assessing the legitimacy of acts or practice that infringe a person’s rights. In essence, a human rights approach requires the respondent to demonstrate that the infringement was pursuant to an aim that was legitimate under the relevant instrument and was proportionate to the achievement of that aim. This generally requires the respondent to establish that a less restrictive measure was not available.^[142]
185. HREOC also notes that the approach taken to this issue in comparable jurisdictions overseas has been more closely aligned with human rights principles. In the United Kingdom, for example, a respondent is required to establish that the relevant requirement or condition is ‘a proportionate means of achieving a legitimate aim’.^[143] Under European Community law, the threshold is slightly higher,^[144] with the Equal Treatment (Amendment) Directive requiring a respondent to establish that the relevant requirement or condition is ‘justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’^[145]
186. In Canada, once an applicant has established a prima facie case of discrimination, the respondent must establish that the impugned requirement or condition was a ‘bona fide occupational requirement’. This expression has been interpreted strictly to involve an application of a proportionality test.^[146]
187. In the United States, a respondent must satisfy a standard of ‘business necessity’.^[147] In New Zealand, the test applied is whether the respondent has a ‘good reason’ for the requirement or condition.^[148] However, this apparently weaker standard has been bolstered by the strict interpretation given to it by the courts. For example, in Northern Regional Health Authority v Human Rights Commission,^[149] Cartwright J observed:

     Where the test is an objective one, it is not sufficient for the plaintiff to assert that it has good reason for adopting a particular policy; it must also satisfy the Court that there are no other non-discriminatory mechanisms which would meet its objectives. Otherwise it cannot satisfy the Court that its policy is a suitable means of achieving those objectives.^[150]

188. Similarly, the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) now introduces a proportionality test in respect of any limitation of a person’s human rights by a public authority. Such limitations are only permitted if they are ‘demonstrably justified in a free and democratic society’ taking account of certain factors, such as whether there were ‘any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve’.^[151]
189. HREOC acknowledges that a reasonableness standard is a familiar concept to Australian courts. HREOC also acknowledges that the SDA explicitly includes a reference to proportionality as a relevant factor in assessing reasonableness.^[152] However, as a statute giving effect to Australia’s international human rights obligations, HREOC considers that the applicable standard for assessing whether a limitation on a person’s rights is permissible should be more closely aligned with a human rights approach. In particular, HREOC recommends that consideration be given to adopting a revised standard which more explicitly requires an assessment of the legitimacy of the object being sought as compatible with human rights and the proportionality of the means being adopted as the least restrictive available.

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Positive duty to eliminate discrimination and promote gender equality

190. Another criticism sometimes made of the existing SDA model is that it is expressed as a purely proscriptive, negative-based standard. Discriminatory conduct is prohibited, rather than non-discriminatory or other positive conduct being required.^[153]
191. For example, the indirect discrimination provisions effectively prohibit employers from imposing unreasonable requirements, conditions or practices that disadvantage women with family responsibilities,^[154] rather than being stated as a positive obligation to reasonably accommodate the needs of workers with family responsibilities.

Shift towards positive obligations under the DDA

192. By contrast to the proscriptive approach under the SDA, in the context of disability discrimination there has been an increasing shift towards imposing positive obligations on employers, educators, service providers and other would-be respondents to take reasonable steps to improve access and equality for people with disabilities.
193. The Disability Standards for Education 2005 (‘Education Standards’), for example, introduce a positive obligation on education providers to make ‘reasonable adjustments’ to accommodate the needs of students with disabilities, subject to an unjustifiable hardship defence.^[155] The Education Standards also impose an obligation on education providers to consult with affected students and their associates in relation to the development of such adjustments.^[156] The failure to comply with the Education Standards is itself a form of unlawful discrimination.^[157]
194. Likewise, the Disability Standards for Accessible Public Transport 2002 (‘Transport Standards’) introduce fixed targets and detailed compliance criteria for operators and providers of public transport to ensure that transport premises, conveyances and related infrastructure meet specified minimum standards of accessibility.^[158] Again, non-compliance with the Transport Standards constitutes unlawful discrimination of itself.^[159]
195. The Productivity Commission, in its review of the DDA, has also recommended the introduction of a general obligation to make reasonable adjustments in all areas in which the DDA applies, counterbalanced with a defence of unjustifiable hardship.^[160] HREOC understands that the government will introduce legislation in the Spring session of Parliament to incorporate this recommendation.^[161] A similar recommendation was also made in the Final Report of the Equal Opportunity Review in Victoria.^[162]
196. A similar shift has also occurred in United Kingdom, where employers are now under a positive duty to take appropriate reasonable steps to prevent conditions or physical barriers from having a disadvantaging impact on workers with a disability.^[163]
197. HREOC supports the adoption of a positive duty provision in the SDA to take appropriate reasonable steps to eliminate discrimination and promote gender equality. This would improve the effectiveness of the SDA as a law which supports systemic change to achieve gender equality and would be consistent with Australia’s obligations under CEDAW.
198. For example, s 24 of the Anti-Discrimination Act (NT) sets out a positive obligation to accommodate the special needs of a person arising due to their sex, disability or other protected ‘attribute’. Section 24 provides:

     A person shall not fail or refuse to accommodate a special need that another person has because of an attribute [including ‘sex’].

     (2) For the purposes of subsection (1) -

     (a) a failure or refusal to accommodate a special need of another person includes making inadequate or inappropriate provision to accommodate the special need; and

     (b) a failure to accommodate a special need takes place when a person acts in a way which unreasonably fails to provide for the special need of another person if that other person has the special need because of an attribute.

     (3) Whether a person has unreasonably failed to provide for the special need of another person depends on all the relevant circumstances of the case including, but not limited to -

     (a) the nature of the special need;

     (b) the cost of accommodating the special need and the number of people who would benefit or be disadvantaged;

     (c) the financial circumstances of the person;

     (d) the disruption that accommodating the special need may cause; and

     (e) the nature of any benefit or detriment to all persons concerned.

199. HREOC recognises that the move towards the adoption of a positive duty to eliminate discrimination and promote gender equality may require further consultation to identify the way in which a positive duty should be defined, and how it should be applied. For this reason, HREOC recommends that introduction of a general positive duty should be considered in Stage Two of reform. However, as discussed below in Family Responsibilities, HREOC considers that immediate steps are required in relation to establishing a positive duty on employers to reasonably accommodate the needs of workers who are pregnant or have family responsibilities or caring responsibilities.
     

Additional issues regarding the definition of discrimination

200. HREOC also notes that the definitions of discrimination under the SDA are arguably narrower than equivalent provisions in other Federal, State and Territory anti-discrimination statutes in the following respects:
     • (a) The SDA definition of direct discrimination only applies to actual treatment but not proposed treatment.[164] Whilst HREOC considers that most cases of threatened or proposed discriminatory conduct would be caught under the SDA,[165] it is noted that a number of discrimination claims at the State level have failed because no act of discrimination had yet occurred.[166]
     • (b) The SDA only prohibits discrimination on the basis of personally having a protected attribute, but not on the basis of an association or relationship with another person having a protected attribute or characteristic (ie. a husband being treated less favourably because his wife is pregnant).[167]
     • (c) Several Australian jurisdictions clarify that it is not necessary for an applicant to establish that the respondent regarded the relevant treatment as unfavourable or less favourable.[168]
201. In the interests of national harmonisation, as well as ensuring that the SDA represents ‘best practice’ in providing the most effective means of achieving substantive equality, the current definitions of discrimination under the SDA would benefit from statutory clarification in relation to the issues set out above.
     

 

 

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Equality before the law

Section 10 of the RDA

202. Section 10 of the RDA provides a general right to equality before the law, implementing Australia’s obligations under article 5 of ICERD to ‘guarantee the right to everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.’
203. The purpose of s 10 is not to make acts, omissions or practices of individuals unlawful, but rather is ‘concerned with the operation and effect of laws.’^[169] To make a successful claim under s 10, the applicant must be able to show that:
     • (d) by reason of a law of the Commonwealth or of a State or Territory (or a provision of the law);
     • (e) persons of a particular race, colour or national or ethnic origin:
     1. do not enjoy a right that is enjoyed by persons of another race; or
     2. enjoy a right to a more limited extent than persons of another race.^[170]
204. Accordingly, the applicant must be able to show that the discrimination complained of arises by reason of the terms or practical effects of a statutory provision.^[171]
205. However, in assessing whether particular legislation limits the enjoyment of the rights of a particular racial group, the courts have acknowledged that the enjoyment of rights in most cases is not absolute, but may involve a balancing against competing rights and interests. In Bropho v Western Australia,^[172] for example, the Full Federal Court held that, in applying s 10, it is necessary to recognise that some rights, such as property rights, are not absolute in their nature. Accordingly, actions that impact upon the ownership of property may not necessarily invalidly diminish the right to ownership of property. The Court held that ‘no invalid diminution of property rights occur where the State acts in order to achieve a legitimate and non-discriminatory public goal.’^[173] The Court noted, however, that its reasoning was not ‘intended to imply that basic human rights protected by the [RDA] can be compromised by laws which have an ostensible public purpose but which are, in truth, discriminatory’.^[174]
     

Application to the SDA

206. Like ICERD, CEDAW also creates an obligation on Australia to ‘accord to women equality with men before the law’.^[175] The right to equality before the law is also enshrined in Article 26 of the ICCPR^[176] and has recently been given domestic legislative expression in the Victorian Charter.^[177] Indeed, the Human Rights Committee has stated:

     Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights.^[178]

207. It is noted that the Preamble to the SDA affirms the right to equal protection and equal benefit of the law without discrimination on the ground of sex, marital status, pregnancy or potential pregnancy. However, the Preamble does not give rise to enforceable legal rights or obligations. It has no application to the discriminatory effects of statutory provisions. The current wording of the Preamble also fails to mention family and carer responsibilities.
208. In the interests of ensuring complete and faithful implementation of Australia’s international human rights obligations, HREOC considers that the reference to equality before the law in the Preamble of the SDA is insufficient. Rather, it may be appropriate to include the right to equality before the law within the body of the SDA by inclusion of a similar provision to s 10 of the RDA.
209. HREOC proposes that this reform be considered during stage two of the reform process, as part of harmonising federal equality laws.

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9. Grounds of discrimination

210. The SDA prohibits direct and indirect discrimination on the grounds of:
     • (a) sex;^[179]
     • (b) marital status;^[180] and
     • (c) pregnancy or potential pregnancy.^[181]
211. In addition, a limited prohibition also applies in relation to discrimination on the basis of family responsibilities.
212. Sexual harassment may also amount to sex discrimination. However, protection from sexual harassment is dealt with separately under the Act.
213. This section considers the following issues in relation to the grounds of discrimination covered under the SDA:
     • (a) whether breastfeeding should be included as a separate ground of discrimination;
     • (b) the need to ensure the definition of marital status does not discriminate against same sex couples; and
     • (c) protection from discrimination on the grounds of sexuality or gender identity.
214. The section makes several recommendations for immediate improvement. It also presents options for future reform.
215. Subsequent sections will then deal specifically with the need to expand the prohibition against discrimination on the basis of family responsibilities (see Family Responsibilities, below) and the adequacy of the prohibition on sexual harassment (see Sexual Harassment, below).
     

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Breastfeeding

216. The SDA clarifies that breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women for the purposes of the definition of direct discrimination.^[182] However, as noted earlier in this submission, the approach taken by the courts to the comparator element has cast doubt on the effectiveness of the characteristics extension in direct discrimination claims.
217. Whilst discrimination on the basis of breast-feeding has not featured heavily in Australian discrimination law, its current protection under the SDA is arguably unclear. Furthermore, in the interests of national harmonisation, HREOC notes that breastfeeding is protected as a separate ground in most Australian jurisdictions.^[183] In Pregnant and Productive (1994), HREOC has previously recommended that the SDA be amended to specifically cover breastfeeding as a ground of unlawful discrimination.^[184]

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Marital status

218. Section 6 of the SDA provides for a prohibition on discrimination on the grounds of marital status. Section 4 defines ‘marital status’ as the status or condition of being single, married, married but living separately and apart from one’s spouse, divorced, widowed, or the de facto spouse of another person.’
219. The term ‘de facto spouse’ is then also separately defined, as follows

     De facto spouse in relation to a person, means a person of the opposite sex to the first-mentioned person who lives with the first-mentioned person as the husband or wife or that person on the bona fide domestic basis although not legally married to that person.

220. Accordingly, same-sex couples are not be protected from discrimination on the grounds of their couple status on an equal footing with couples already protected by the SDA.
221. HREOC is committed to promoting equality before the law for people regardless of sexuality, or gender identity. HREOC considers that the SDA should be amended to ensure that same-sex couples are protected from discrimination on the grounds of their couple status on an equal footing with couples currently protected under the SDA.
222. HREOC considers that this amendment would not raise any constitutional difficulties, as protection from discrimination in these areas would be reasonably capable of being considered an appropriate and adapted implementation of Australia’s treaty obligations^[185] under CEDAW, as well as other relevant international conventions that deal with discrimination such as the ICCPR,^[186] and ICESCR.^[187]
     

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Sexuality, Sex Identity and Gender Identity

223. The SDA does not include sexuality, sex identity or gender identity as prohibited grounds of discrimination.^[188]
224. HREOC supports the principle of equality for people regardless of sexuality, sex identity or gender identity.
225. Between 2006 and 2007, HREOC conducted its National Inquiry into Discrimination against People in Same-Sex Relationships. The report from that inquiry, Same-Sex: Same Entitlements (2007),^[189] identified 58 laws which have operated to discriminate against people on the grounds of their sexuality in the area of financial and work-related entitlements and benefits. HREOC continues to advocate for reform to remove this discrimination. HREOC did not include protection from discrimination on the grounds of sexuality generally in the scope of that national inquiry.
226. On 8 August, the federal Human Rights Commissioner, Graeme Innes AM , launched the HREOC Sex and Gender Diversity Blog, entitled Sex files: The legal recognition of sex in documents and government records. This online blog is providing an opportunity to consult with people of diverse sex and gender identity about key issues affecting them, including discrimination.^[190]
227. HREOC considers that it is important that the Australian Government commit to securing legal protection from discrimination on the grounds of sexuality, or diverse sex and gender identity. However, HREOC has not conducted public consultation on the best legal method for achieving this outcome. HREOC therefore does not make recommendations about this issue. HREOC instead urges the Australian Government to include this issue in stage two of an inquiry into improving equality laws in Australia, for example, through an Equality Act.
     

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10. Family responsibilities

This section addresses Term of Reference I of the Inquiry.

Family and carer responsibilities are inadequately protected under the SDA.

Protection should be extended to indirect discrimination, and apply to work generally.

A positive duty to reasonably accommodate pregnancy, and family and carer responsibilities should be included to build on existing case law, complement National Employment Standards, provide clarity about employer responsibilities, and equally protect men.

228. Section 7A sets out the current protection from discrimination on the ground of family responsibilities under the SDA. However, it is more limited than other grounds, in only providing protection from:
     • direct discrimination; and
     • dismissal (including constructive dismissal^[191]) from employment.^[192]
229. Family responsibilities are defined in the Act as the responsibility to care for or support a dependent child or immediate family member, being a spouse, adult child, parent, grandparent, grandchild or sibling of the employee or of a spouse of the employee.^[193] The definition of de facto spouse excludes a same sex partner.^[194]
230. Section 7A was inserted into the SDA in 1992.^[195] The context of this amendment was Australia's ratification of the International Labour Organisation Convention (No 156) Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers and Family Responsibilities (‘ILO 156’).^[196]
231. Australia ratified ILO 156 in 1990.^[197] Amongst other things, ILO 156 obliges Australia:

     to ensure that family responsibilities shall not, as such, constitute a valid reason for termination of employment;^[198] and

     with a view to creating effective equality of opportunity for men and women workers, to take measures to take account of the needs of workers with family responsibilities in terms and conditions of employment.^[199]

232. ILO 156 has a dual purpose, to create:

     [e]quality of opportunity...between men and women with family responsibilities, on the one hand, and between men and women with such responsibilities and workers without such responsibilities, on the other. ^[200]

233. The rationale for that approach was that:

     [i]t was considered that full equality of opportunity and treatment for men and women could not be achieved without broader social changes, including a more equitable sharing of family responsibilities and that the excessive burden of family and household tasks still borne by women workers constituted one of the most important reasons for their continuing inequality in employment and occupation...^[201]

234. When s 7A was inserted into the SDA in 1992, the Australian Government said the new provision was the first legislative stage in improving protection, and the second stage was to:

     enter into wide ranging consultation with a view, at this point, to a further amendment to the SDA to prohibit more generally, discrimination in employment on the ground of family responsibilities...While some members of the community may be concerned that this amendment does not go far enough, I am confident that it points the way to a much broader direction being pursued by the Government, with the assistance of employees and employers.^[202]

235. Section 7A has not since been amended.
236. Family responsibilities are also dealt with in CEDAW.^[203] CEDAW requires governments to ‘take all appropriate measures to eliminate discrimination against women in ... employment’^[204] and to ‘encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities.’^[205]
237. The Preamble to CEDAW states that:

     ... the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole ...

238. The preamble also recognises:

     ... the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children ....

[and that] ... a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women ... ^[206]

239. As noted above, the family responsibilities provisions are more limited than other grounds of discrimination under the SDA in the following respects:

• family responsibilities discrimination is limited to direct discrimination on dismissal. There is no protection for discrimination during the period of employment;
• family responsibilities discrimination is limited to employment arrangements only and does not include partnerships or other workplace arrangements; and
• indirect discrimination is not covered.
240. The fact that the family responsibilities provision is limited to direct discrimination only has proved to be a serious restriction.^[207] Most unfavourable treatment that people experience in the workplace because of family responsibilities is the indirect effect of inflexible workplace policies and practices. For example, requirements to work full time, overtime or rotating shifts appear to be fair because they apply to all employees equally. However, workers with family responsibilities will often be disadvantaged by them, for example, by being unable to apply for promotion to a position if it requires overtime.
241. As a result of these limitations, there are relatively few complaints under these provisions of the SDA.^[208]
242. Many women complainants use the sex and pregnancy discrimination provisions of the SDA to pursue allegations of workplace failure to accommodate family responsibilities rather than relying on the limited family responsibilities provisions. In particular, the indirect sex and pregnancy discrimination provisions of the SDA have proved useful to complainants. In a number of cases requests for part time work have been considered in the context of the definition of indirect sex discrimination.^[209]
243. Despite the fact that the family responsibilities provisions of the SDA are equally available to both men and women, men have not generally made use of them.^[210]
244. However, as explained later in this submission, certain restrictions apply to men in their use of some provisions of the SDA (see Coverage, below). Men are unable to access the indirect sex discrimination provisions to address discrimination on the basis of their family responsibilities, as women have done. This is because men cannot argue, as women have, that as a sex they are more likely to take on family care obligations and that less favourable treatment because of family responsibilities is therefore attributable to their sex. Men have not traditionally had primary responsibility for caring work, and so could not argue that such responsibilities were associated with being a man.^[211]
245. This in effect restricts men’s abilities to seek assistance under the SDA. This is of particular concern in light of the SDA’s broader objective of promoting gender equality. The application of the indirect sex discrimination provisions in these cases may, by protecting women but not men, actually serve to entrench traditional domestic arrangements as the responsibility of women and discourage a more equal sharing of caring and domestic work. This in turn may limit women’s workforce participation.
246. Equal use of family friendly work arrangements by men and women is important in promoting gender equality. The protection that currently exists under the SDA for men is an obstacle to achieving this objective.
247. In HREOC’s view, the family responsibilities provisions of the SDA provide insufficient protection for men and women workers with family responsibilities, and a limited platform to support and promote systemic change.

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HREOC’s It’s About Time (2007) findings

248. HREOC has undertaken extensive work on the importance of improving support for women and men to balance paid work and family responsibilities.
249. A key focus of HREOC’s Women, Men, Work and Family Project was an examination of how the SDA operates to support people to balance paid work and family responsibilities and whether any law reform was necessary.^[212]
250. One of the key findings of HREOC’s 2007 It’s About Time: Women, Men, Work and Family final paper (‘It’s About Time (2007)’ was the need for expansion of the family responsibilities provisions of the SDA in order to better support men and women workers with family and carer responsibilities across the life cycle.
251. Another key finding of It’s About Time (2007) was that this failure of the federal anti-discrimination framework to provide adequate coverage for workers with family responsibilities does not work well for women and effectively locks men into what has been termed the ‘ideal worker’ model of working life.^[213]
252. The ‘ideal worker’ norm refers to a traditional male breadwinner pattern of continuous full time work with no recognition of caring responsibilities.^[214] Together with inflexible workplace structures and family-hostile workplace cultures, this model maintains the status quo whereby women remain disproportionately responsible for family responsibilities and as a consequence remain disadvantaged in the workplace relative to men.
253. This historical model of working life is at odds with the work and family preferences of the majority of Australian families. As reported in It’s About Time (2007) and confirmed in Listening Tour Community Report (2008), HREOC has found that many men and women workers with family responsibilities want to share the care of children and other dependents more equally. However, they face a number of barriers to doing so.
254. One of the major barriers for men with family responsibilities that HREOC has identified is a lack of support within workplaces either in terms of lack of access to family-friendly policies such as flexible working arrangements and paid paternity leave, or where there is access to such policies, family-hostile workplace cultures prevent their take up.^[215]
255. As was the case in 1984 when the SDA was introduced, women in Australia continue to experience workplace disadvantage despite a gradual increase in workforce participation over time. Pay inequity, occupational segregation in low paid, undervalued work and women’s under-representation in leadership and senior decision-making positions are ongoing policy challenges with harsh effects on women’s daily lives.^[216] Workforce inequities such as these all impact on the capacity of women to balance their paid work with their family responsibilities.
256. Despite the overall increase in women’s workforce participation over time, with women’s labour market participation rate now 58.4 per cent,^[217] mothers’ workforce participation continues to be low by international standards. The employment rates for Australian women with children, particularly those where the youngest child is under six years of age, are low by comparison with other OECD countries. The employment rate of mothers with a youngest child under six years of age is 49.6 per cent, compared with the OECD average of 59.2 per cent.^[218]
257. Women’s continuing workforce disadvantage due to their maternal role underscores the need for improved legislative protection against discrimination, particularly given that the working population is ageing and more and more women in particular will be combining child rearing and elder care with paid work.^[219]
258. Legislation prohibiting discrimination is not the only answer to these problems. HREOC acknowledged this when it made 45 wide-ranging recommendations across a range of policy and program areas in It’s About Time (2007) in order to better support men and women workers with family responsibilities.
259. However the legislative framework is a crucial plank of the support that men and women workers with family responsibilities need to achieve equality in the workforce.
260. Discrimination and equality legislation serves a dual purpose in this respect. First, laws provide a legal avenue for redress for discriminatory acts and practices. Second, discrimination laws promote principles of non-discrimination as they are a public policy statement of the right to equality. As Belinda Smith has noted, anti-discrimination laws promote ‘non-discrimination through the persuasive, normative power of a legislated, public policy statement of the right to equality.’^[220]
261. Further, limiting family responsibilities discrimination to direct discrimination the SDA ‘fails to address the primary forms of family responsibilities discrimination which are structural and systemic (which indirect discrimination prohibitions better address), rather than individual and blatant (which direct discrimination prohibitions best address)’.^[221]
262. Drawing on evidence collected for It’s About Time (2007), HREOC recommended the expansion of the family responsibilities provisions to broaden its coverage to all forms of family and carer responsibilities across the life cycle and in all aspects of employment.
263. In It’s About Time (2007) HREOC recommended that this expansion could be implemented through a separate specialised piece of legislation called a Family Responsibilities and Carers’ Rights Act (‘FRCRA’). It was also proposed that the FRCRA include a right to request flexible work arrangements.
264. HREOC’s argument was that family responsibilities discrimination is distinct from sex discrimination and that it warrants its own legislative framework. Further, to include expanded family responsibilities protection in the SDA could serve to entrench the idea that caring is women’s work and thereby mitigate against the achievement of substantive gender equality.
265. As a separate Act, It’s About Time (2007) proposed that the FRCRA would expressly encompass both men and women with family responsibilities. Such a specialised piece of legislation would assist in overcoming gendered stereotypes around caring, and be more accessible to men. These broader objectives were less likely to be achieved if the family responsibilities provisions were extended within the SDA.
266. As Dr Charlesworth argued in her submission to HREOC, broadening the family responsibilities provisions within a framework that better assists men would have an important influence on equality between men and women within the workplace and the home as it would challenge the notion of the ‘ideal worker’ as one unencumbered by family responsibilities.^[222] Broader provisions would not only mean greater access to redress for family responsibilities discrimination by men, it would also influence what both employees and employers consider to be discrimination and potentially have a flow on effect to gendered divisions of unpaid work.^[223] If a specialised equality law, such as the FRCRA was enacted, it could mirror other HREOC legislation by requiring HREOC to conduct relevant educative, research and policy work, and extend amicus curiae and intervention functions to a Commissioner.^[224]
267. Since the release of It’s About Time (2007), the new Australian Government has now incorporated a ‘right to request flexible work arrangements’ in its National Employment Standards (‘NES’)
268. HREOC reiterates its view that protection from discrimination on the grounds of family and carer responsibilities needs to be extended. The question arises as to how best to achieve this in light of the new NES and the present inquiry into the SDA.
     

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Extending protection from discrimination under the SDA

269. HREOC considers that the SDA should be amended as soon as possible to ensure that all forms of discrimination on the grounds of family and carer responsibilities^[225] are unlawful. The amendment should:
     • make unlawful discriminatory treatment in all aspects of work, rather than restricting protection to discriminatory treatment in employment that results in dismissal.^[226]
     • make unlawful indirect family and carer responsibilities discrimination.^[227]
     • extend the definition of family responsibilities to include family and carer responsibilities, to remove discrimination against people on the grounds of their sexuality, and provide a definition of family members and dependents which ensures adequate cover for both children and adults to whom care is being provided.^[228]
270. As discussed below (see Coverage), HREOC is also proposing that the SDA be amended to ensure its provisions apply equally to both women and men.
271. This reform may not address the concern that inclusion of family and carer responsibilities in the SDA may entrench the perception that family and carer responsibilities is a ‘women’s issue’ rather than an issue of equality for workers. However, it would significantly improve current protections for both women and men in line with Australia’s responsibilities under ILO 156, as was the intention of parliament in 1992, subject to ensuring that the coverage of the SDA for men is as expansive as is constitutionally feasible.
272. In a stage two inquiry about federal equality laws, the Australian Government could then either insert family and carer responsibilities as a distinct protected ground under a federal Equality Act, or give consideration to a specialised piece of legislation, such as the FRCRA, proposed in It’s About Time (2007).
     

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Positive duty to reasonably accommodate family and carer responsibilities

273. As noted above, the new NES, due to become operational by 2010, have introduced a right to request flexible working arrangements into the industrial relations system.^[229]
274. A right to request flexible work arrangements is a form of positive obligation to promote gender equality, in the specific area of family responsibilities (Positive obligations to eliminate discrimination and promote gender equality are discussed in general terms above, under Definitions of Discrimination).
275. Similar to the current trend in the area of disability discrimination, there has been a sustained push for the introduction of obligations to make reasonable adjustments in other areas of discrimination, including family and carer responsibilities.
276. For example, the decision of the Australian Industrial Relations Commission in the Family Provisions Test Case established the right of workers under a relevant federal award to request flexible work arrangements to accommodate their family responsibilities. Employers bound by such awards are required to consider such a request and only refuse ‘on reasonable grounds related to the effect on the workplace or the employer’s business’.^[230]
277. However, the impact of the Family Provisions Test Case was blunted by the limited number of awards to which it applied.
278. Whilst the new National Employment Standard is a positive development, it is insufficient to address the needs of workers with family responsibilities in a number of respects.^[231] In particular, the right to request is confined to children under school age, does not apply to workers unless they have at least 12 months continuous service and also, in the case of casual workers, a reasonable expectation of continuing employment. Regrettably, these limitations disproportionately impact on employment categories dominated by women with family responsibilities. As Sara Charlesworth and Iain Campbell observe:

     This qualification requirement will exclude many of the working parents of pre school age children who are most likely to make requests. In 2006 for example, 21 percent of working women of child bearing age (25-44 years) and 44 percent of women employed on a casual basis had less than 12 months service with their current employer.^[232]

279. HREOC has also jointly commissioned recent research which shows that parents with children of school age nominate greater flexibility in paid work as a priority for providing better support in balancing their paid work and family responsibilities.^[233]
280. HREOC has previously made recommendations to the Australian Government about ways in which the National Employment Standard could be expanded to better implement international obligations and be more effective in supporting women and men to secure flexible work arrangements to balance their paid work and family and carer responsibilities across the life cycle.^[234] These recommendations were not adopted.
281. Accordingly, notwithstanding the promising potential of the relevant NES in assisting workers with family responsibilities, they are an incomplete solution. Scope remains for the SDA to supplement the NES by making the ‘unreasonable refusal’ of requests for flexible work arrangements an actionable form of unlawful discrimination.
282. HREOC considers that the SDA be amended to include a positive duty on employers (and other relevant respondents) to reasonably accommodate the needs of their workers in relation to pregnancy and family and carer responsibilities, including an obligation to not ‘unreasonably refuse’ requests for flexible work arrangements.
283. The move towards an obligation within anti-discrimination legislation to reasonably accommodate workers with family responsibilities has already taken place in Victoria.^[235] From 1 September 2008, employers, principals and partnerships are under an obligation to not 'unreasonably refuse' to accommodate the responsibilities that a person has as a parent or carer.^[236] The failure to comply with this obligation constitutes a new and discrete form of unlawful discrimination.^[237] The Act also provides detailed guidance on the facts and circumstances to be taken into account when assessing the reasonableness of an employer’s refusal.^[238]
284. Whilst the Victorian model is by no means a complete solution to the issues surrounding family responsibilities and work/life balance, it is a positive development. In particular, the amendments shift the emphasis away from individuals to justify their need for reasonable adjustments and on to employers to justify their refusal to make such adjustments. As Belinda Smith observes, the new Victorian model

     reflects a shift in thinking about family responsibilities away from formal equality and toward substantive equality. Rather than merely requiring all workers to be treated the same regardless of their circumstances, the duty requires employers to reasonably accommodate the specific needs of workers with family responsibilities in order to promote substantive equality. Thus, it is akin to a duty to reasonably accommodate, although limited to the specific issue of flexible work arrangements.^[239]

285. Similarly, HREOC notes that the NSW Law Reform Commission recommended in 1999 that the Anti-Discrimination Act 1977 (NSW) be amended to introduce an obligation to take reasonable steps to accommodate the needs of women who are pregnant, potentially pregnant or breastfeeding, as well as the needs of persons with carer or family responsibilities, subject to a defence of unjustifiable hardship.^[240]
286. A positive duty obligation would not involve a substantial change from the current system under the SDA. At present, as noted earlier, the practical effect of the prohibition against indirect discrimination translates into a prohibition against the unreasonable imposition of barriers that disadvantage, for example, women with family responsibilities.^[241] In this respect, the imposition of a positive obligation on an employer (and other would-be respondents) to reasonably accommodate the needs of workers who are pregnant or have family responsibilities would involve a subtle re-positioning of the SDA, rather than a dramatic change.
287. Nevertheless, the change is an important one. Firstly, the current obligation is merely implied and may not be immediately apparent to employers and others unless they or their advisers have considerable experience in the operation of the SDA. By making the obligation clear and mandatory, respondents are therefore on clear notice of what they are required to do, rather than having to fathom their obligations from the case law.
288. Secondly, repositioning the obligation as a positive duty is an important statement of principle that employers must actually take steps to redress discrimination. It is a clear call to action, rather than a muffled warning that doing nothing carries a liability risk.
289. Thirdly, reliance on the indirect discrimination provisions will not assist men with family responsibilities, given that indirect discrimination on the basis of family responsibilities is not presently unlawful and the authorities clearly establish that women bear the dominant burden of family responsibilities.^[242]
290. Fourthly, cases such as Kelly v TPG Internet Pty Ltd^[243], have cast doubt on the effectiveness of the indirect discrimination route for claims relating to flexible work arrangements and family responsibilities.^[244] As discussed earlier, Raphael FM held that employees did not have a right to request part-time employment, which his Honour regarded as a ‘benefit’ which employers were entitled to refuse.^[245]
291. HREOC recommends that consideration be given to amending the SDA along similar lines to the Victorian model discussed above, to introduce an obligation on employers, partnerships and principals (and possibly other appropriate categories of respondents) to make reasonable adjustments, or to not unreasonably refuse requests for adjustments, to accommodate the needs of workers who are pregnant or have family responsibilities.
292. Consideration would also be required as to whether an unjustifiable hardship defence would also be necessary, or whether the issues relevant to such a defence would be already accommodated within the limitation that requests for adjustments or accommodation must be reasonable.
     

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11. Coverage of the SDA

293. The coverage of the SDA is confined to particular areas of public life, such as employment, education and the provision of goods, services and facilities. This section considers the following issues relevant to this coverage:
     • (a) the benefits of incorporating a free-standing prohibition against discrimination and sexual harassment in all areas of public life and a general guarantee of equality before the law, as is the case under the RDA;
     • (b) the need to expand the coverage of the SDA in relation to discrimination and sexual harassment:
     1. by and against States and State instrumentalities and their employees;
     2. against men; and
     3. against independent contractors,
     • (c) potential ways of enhancing the existing provisions that identify particular areas of public life for protection; and
     • (d) the need to expand s 105 (ancillary/accessory liability) to include any act that is unlawful under the SDA, including sexual harassment or victimisation.

A free-standing prohibition

294. The existing SDA model carves out only selected areas of public life for protection against discrimination. As many commentators have noted, this approach represents an incomplete incorporation of Australia’s obligations under CEDAW.^[246] Article 1 of CEDAW introduces a free-standing prohibition against discrimination in the enjoyment or exercise by women of all ‘human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.’ Accordingly, the scope of CEDAW is not confined to specific areas of public life, but operates more generally.
295. The language of Article 1 of CEDAW follows closely the equivalent Article 1(1) of ICERD, which finds expression in s 9 of the RDA. Similar with the SDA, the RDA identifies particular areas of public life in which racial discrimination is made unlawful.^[247] However, the RDA operates more broadly, by also containing a free-standing prohibition in s 9 against racial discrimination in all areas of public life.^[248] In this respect, the RDA is a more complete and faithful implementation of Australia’s international obligations in relation to prohibiting discrimination.
296. CEDAW, as well as the ICCPR and ICESCR, imposes an obligation on states parties to take appropriate and positive steps to ensure that individuals who have been discriminated against have access to an effective remedy.^[249] Indeed, the Human Rights Committee has stated that the failure to provide an effective remedy is itself a breach of a person’s human rights.^[250] HREOC considers that when individuals have been discriminated against in circumstances in which CEDAW (and other relevant international conventions) applies, they should be entitled to an effective remedy. The patchwork approach under the SDA therefore represents an incomplete implementation of Australia’s obligations under CEDAW, by allowing applicants to potentially fall between the cracks due to drafting complexities in the relevant areas of public life carved out for protection.
297. For the above reasons, HREOC considers that the inclusion of a free-standing prohibition against discrimination, along the lines of s 9 of the RDA, may be required to ensure compliance with Australia’s obligations under CEDAW. HREOC also notes that the experience under the RDA has not shown this to present impracticalities or excessive burdens on the community.
298. Furthermore, HREOC is of the view that a blanket prohibition against discrimination in all areas of public life could represent an important statement of principle. It would make clear that discrimination offends against fundamental human rights in any area of public life and should not be tolerated. This point was noted by both the ALRC and the House of Representatives Standing Committee on Legal and Constitutional Affairs in their respective reviews of the SDA, which each recommended enactment of a free-standing prohibition against sex discrimination along similar lines as the RDA.^[251]
299. A blanket prohibition against discrimination in all areas of public life would also make the SDA clearer and simpler. It would minimise the need for complex litigation in interpreting the various provisions giving coverage to specific areas of public life. Rather, the general prohibition would operate largely as a ‘catch-all’ provision.
300. HREOC proposes that these reforms be considered in stage two of the reform process, in conjunction with reviewing all permanent exemptions under the SDA (see Exemptions, below).
301. As noted in the section on Sexual Harassment, the comments set out above apply equally to the prohibition against sexual harassment under the SDA, which is also confined to particular areas of public life.

 

States and State Instrumentalities

302. Pursuant to s 12(1), the SDA does not bind the Crown in right of a State unless expressly provided. The prohibitions against discrimination in employment (in s 14) and sexual harassment (in Division 3) do not expressly provide that they bind the Crown in right of a State.
303. Section 13(1) also provides that the prohibition against discrimination in employment does not apply in relation to employment by an instrumentality of a State. Likewise, s 13(2) provides that the prohibition against sexual harassment does not apply to an act done by an employee of a State or State instrumentality.
304. The combined effect of the above provisions is that the prohibitions against discrimination in employment and sexual harassment do not bind the States or State instrumentalities (or their employees). HREOC notes that the definition of State under the SDA includes the ACT and Northern Territory.^[252] HREOC also notes that the scope of the term ‘instrumentality of a State’ is potentially very broad.^[253]
305. Whilst an aggrieved person remains at liberty to pursue a claim against a State or State instrumentality in the relevant State-based jurisdiction, this may be insufficient in some cases. For example, most State tribunals are:
     4. subject to a jurisdictional limit, such as the $40,000 damages cap in the NSW Anti-Discrimination Tribunal; and
     5. no-costs jurisdictions, which may be a disincentive for applicants likely to incur significant legal costs in pursuing a strong claim.
306. In addition, the anti-discrimination legislation in the relevant State may provide less protection than under the SDA in material respects. For example, the vicarious liability provisions are broader and less onerous for applicants under the SDA compared with most of the States.^[254] Indeed, the ACT legislation does not include vicarious liability provisions at all. Furthermore, unlike the SDA, the onus to prove unreasonableness in indirect discrimination claims rests with the applicant in most State legislation.^[255] Moreover, whilst the SDA requires that a protected attribute or characteristic need only be a reason for the relevant conduct, even if not the dominant or a substantial reason, the legislation in Victoria, South Australia and Queensland is more difficult for applicants by requiring that the relevant ground is a substantial reason for the doing of the act.^[256]
307. The existing exclusion of States and State instrumentalities is also inconsistent with Australia’s international human rights obligations to ensure protection of CEDAW rights (and other relevant convention rights) to all peoples of Australia. HREOC notes that the CEDAW Committee has already expressed its concern about the inadequacy of CEDAW protection throughout the States and Territories despite the Federal government’s capacity to legislate nationally to provide such coverage.^[257]
308. In Equality Before the Law (1994), the ALRC recommended that the exemption for the States be repealed,^[258] on the basis that:

     Women in all parts of Australia should have access to the same levels of protection against discrimination and sexual harassment.^[259]

309. Likewise, the House of Representatives Standing Committee on Legal and Constitutional Affairs in Halfway to Equal (1992) concluded:

     Whilst this exclusion may have been seen as politically necessary when the legislation was introduced in 1984, there is no longer a need or justification to exclude from the protection of the SDA persons who are employed by State Governments.^[260]

310. HREOC also notes that the SDA is anomalous from the other Federal discrimination Acts, which all comprehensively bind the Crown in right of the State.^[261]
311. In its 1992 Review of the SDA exemptions, HREOC recommended the repeal of the exemption of State instrumentalities under s 13. HREOC repeated that recommendation in Pregnant and Productive (1999) in 1999.^[262] HREOC remains of that view. HREOC further considers that the provisions relating to discrimination in employment and sexual harassment require amendment to bind the Crown in right of the State, to remove this significant omission in the SDA’s coverage and bring the SDA into line with other federal discrimination Acts.
     

 

 

Men

312. The prohibition against discrimination under the SDA is expressed in gender neutral terms, applying equally to discrimination against women and men.
313. Furthermore, the limited application of the SDA by operation of s 9, which draws on all available heads of Commonwealth legislative power, is also expressed in gender neutral terms - with one exception. The exception is s 9(10), which gives effect to the prescribed provisions of Division 3 of Part II to the extent that they give effect to CEDAW. Given that CEDAW only operates for the benefit of women, only female applicants may rely on this provision.^[263] Accordingly, whilst in most cases men and women have equal protection under the SDA, in certain limited circumstances where no other head of legislative power applies other than the external affairs power, women will have access to a remedy but men will not, such as where the respondent is an unincorporated entity.^[264]
314. As an Act intended to implement Australia’s obligations under CEDAW, HREOC considers that the primary purpose of the SDA should be to achieve substantive equality for women. Nevertheless, HREOC agrees with the views expressed by the NSWLRC that limiting protection against discrimination to particular groups is neither practical nor appropriate, and may in fact be counter-productive and offensive to some members of that group.^[265]
315. In addition, as HREOC has noted in this submission and elsewhere, the inadequate level of protection for men against discrimination on the basis of family responsibilities provides a strong disincentive for men to take on a greater care-taking role within the family unit.
316. Furthermore, at the level of principle, HREOC considers that discrimination on the basis of sex is offensive and contrary to Australia’s international human rights obligations irrespective of the sex of the victim.^[266]
317. Accordingly, HREOC recommends that s 9(10) of the SDA be amended to more closely resemble the equivalent s 12(8) of the DDA, such as by drawing on Australia’s obligations under relevant international instruments such as the ICCPR, ICESCR and ILO Convention 156 on the Rights of Workers with Family Responsibilities.^[267] This would ensure that the SDA provides equivalent coverage in relation to both men and women.

 

Volunteers and unpaid workers

318. The discrimination and sexual harassment provisions of the SDA do not currently provide explicit coverage for volunteers and other types of unpaid workers. Whilst the SDA may apply in many cases involving volunteers and unpaid workers, even in the absence of explicit provisions, HREOC considers that the existing coverage is unclear and insufficient and in need of immediate amendment. HREOC addressed this issue in Pregnant and Productive (1999) and recommended that the SDA be amended to ensure coverage of unpaid workers.^[268]
319. As the Victorian Equal Opportunity and Human Rights Commission recently observed in its submission to the Victorian Equal Opportunity Review:

     Volunteers make an enormous contribution to the Victorian Community. Given volunteers do this for no payment, it seems especially unreasonable that they should also be expected to sacrifice their fundamental rights. It is also illogical to suggest that simply because a person is not receiving a wage or salary, harassment or discrimination that may be directed toward them is any less repugnant.^[269]

320. HREOC notes that the Final Report of that Review has recommended that volunteers and other unpaid workers be explicitly protected from discrimination and sexual harassment.^[270]
321. HREOC also notes that volunteers and other unpaid workers are covered in several of the States and Territories.^[271] For example, in Queensland, in addition to the forms of employment covered under the SDA, protection against discrimination in ‘work’ also applies to:^[272]
     • (a) work remunerated in whole or in part on a commission basis;
     • (b) work under a statutory appointment;
     • (c) work under an arrangement within the meaning of s 3(1) of the Education (Student Work Experience) Act 1978;
     • (d) work on a voluntary or unpaid basis; and
     • (e) work under a guidance program, apprenticeship training program or other occupational or retraining program.
322. Given that unpaid and voluntary workers are often at junior and trainee levels, they will often be in positions of particular vulnerability within the workplace. This makes the need for adequate protection against sexual harassment, as well as discrimination, all the more pressing.
323. 
     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.

Independent contractors

324. At present, neither the discrimination provisions nor the sexual harassment provisions adequately protect independent contractors. The discrimination provisions are narrowly geared towards discrimination within standard employer/employee or principal/contractor relationships. This arguably excludes protection for independent contractors.
325. The sexual harassment provisions appear to be cast more broadly, by including the possibility of claims by one ‘workplace participant’ against another. The Explanatory Memorandum for the Bill that introduced this provision stated that:

     The amendment is necessary to ensure that sexual harassment at work is made unlawful without regard to the particular employment or professional relationship between the two persons.^[273]

326. Unfortunately, the current drafting does not fully realise this objective. Whilst the definition of ‘workplace participant’ in s 28B(7) includes contract workers, the definition of ‘contract worker’ in s 4(1) is confined to persons who perform work under a contract with an employer. This leaves the coverage of independent contractors unclear and potentially excluded.
327. HREOC notes that the proportion of independent contractors within workplaces has increased significantly since the SDA was first enacted. Accordingly, it is important that the SDA keeps pace with these developments by ensuring that independent contractors are protected against discrimination and sexual harassment to the same degree as workers in other employment relationships.

 

Areas of public life in which discrimination is unlawful

328. As noted above, the introduction of a free-standing prohibition against discrimination would provide comprehensive coverage for all areas of public life. In the absence of such a reform, or in the interim, HREOC considers that further amendments are required to enhance the existing provisions that identify the protected areas of public life to ensure that victims of discrimination are not deprived access to an effective remedy.
     

Discrimination in work

329. Part II, Division I of the SDA deals with sex discrimination in work. Broadly speaking, the provisions prohibit discrimination:
     • (a) in employment;^[274]
     • (b) by principals against commission agents;^[275]
     • (c) by principals against contract workers;[276]
     • (d) by partners in a firm against potential and existing partners;^[277]
     • (e) by qualifying bodies against people seeking qualifications;^[278]
     • (f) by registered organisations against potential and existing members;^[279] and
     • (g) by employment agencies against people seeking employment.^[280]
330. The prohibition against discrimination in work is the most significant area in which the SDA operates. As discussed below, work-related complaints have consistently accounted for the vast bulk of complaints under the SDA.^[281] Discrimination in work is also of particular importance given its potential impact on the livelihood of the person affected, as well as their families.
331. In light of the prominence and significance of employment-related complaints under the SDA, HREOC submits that it is vital that the scope of coverage provided under Part II, Division I is as fulsome as possible in order to ensure that the objects of the SDA are fully realised. The following sections therefore consider various options for enhancing the existing protection against work-related discrimination.
     

Personal liability for employees

332. Pursuant to s 14 of the SDA, liability in employment is limited to discrimination engaged in by ‘an employer’. This is supplemented by s 106, which provides that an employer is vicariously liable for the conduct of its employees in connection with their employment.
333. Importantly, however, a victim of discrimination has no right of redress against the employee who actually engaged in the discriminatory conduct. This is a significant deficiency of the SDA. Whilst in most cases an applicant will be content to simply bring a claim against the employer, this may not always be the case. For example:
     • (a) the employer may be a company that has been wound up or has no assets, whereas the offender employee may have substantial assets;
     • (b) the employer may be able to avoid vicarious liability under the ‘all reasonable steps’ defence under s 106(2) whereas this defence is not available to the offender employee; or
     • (c) the applicant may have personal reasons for seeking to bring the claim against just the individual and not the employer, such as to avoid being perceived by the employer as a trouble-maker. Indeed, the applicant may not wish to bring the matter to the employer’s attention to avoid damaging the offender’s standing in the workplace, which might be more conducive to ensuring a satisfactory outcome.
334. Furthermore, as a matter of principle, the exclusion of personal liability for employees sends the disappointing message that eliminating discrimination is simply a matter for employers, but is not an individual responsibility of all employees.
335. On one view, an applicant might be able to utilise s 105 of the SDA to bring a claim against the offender employee, on the basis that the employee ‘caused’, ‘aided’ or ‘permitted’ another person (the employer) to do the unlawful act. This approach has been supported in NSW,^[282] where the legislation also suffers from the same deficiency as the SDA. However, this line of reasoning has not attracted support at the Federal level^[283] and imposes an unnecessarily indirect right of action. Furthermore, a successful claim under s 105 would be dependent on their also being a primary finding of discrimination by the employer.^[284]
336. In failing to provide a right of redress against the offender employee who engaged in the discriminatory conduct, HREOC also notes that the SDA is inferior to equivalent employment provisions in all other Federal discrimination Acts,^[285] most of the States and Territories,^[286] as well as the coverage provided under the SDA in respect of sexual harassment.^[287]

 

Partnerships

337. The prohibition under s 17 of the SDA in relation to discrimination by partnerships (including proposed partnerships) against existing and potential partners is limited to partnerships of 6 or more persons.^[288]
338. Many women in the workforce, particularly those who have faced difficulties in advancing their career due to family responsibilities, rely on employment in smaller sized partnerships, either as an end in itself or as a stepping stone towards opportunities with larger partnerships. HREOC is therefore concerned that the current provision provides insufficient protection due to the exclusion of smaller partnerships.
339. HREOC also submits that the current minimum size of partnerships covered by s 17 is both arbitrary and unnecessary. HREOC notes, for example, that a size requirement is not imposed in the ACT^[289] or South Australia.^[290] Likewise, there are no minimum size requirements that apply in relation to other employers bound by the SDA. There are also no size limitation requirements in relation to the remaining provisions of the SDA that apply to partnerships.

 

Statutory appointees, judges, members of parliament

340. By virtue of s 9(5) of the SDA, the discrimination and sexual harassment provisions have effect in relation to actual and prospective Commonwealth employees. Section 108 also deems all Commonwealth employees to be employed by the Commonwealth.
341. However, there is potentially some uncertainty as to the coverage of the SDA in relation to statutory appointees, judges and members of Parliament, who may not be considered ‘employees’ of the Commonwealth. This issue was raised by HREOC in Pregnant and Productive (1999). At that time, HREOC recommended that:

     The Attorney-General examine the issues of coverage for federal statutory appointees, judicial office holders and Members of Parliament, to provide clarification of coverage and, if necessary, extend the provisions of the Sex Discrimination Act 1984 (Cth) to cover these positions formally.

342. HREOC directs the Committee to the relevant paragraphs of that report for further consideration.^[291]
343. Conversely, in line with the discussion earlier about the need to impose personal liability for individual employees, there is potentially some ambiguity as to bringing a claim directly against a statutory appointee, judge or member of parliament who engages in discriminatory or sexually harassing conduct.^[292] In light of the senior and important role played by such persons within our community, HREOC considers that it would be anomalous if they could avoid personal liability under the SDA for such conduct on the basis that they may not be technically an ‘employer’.^[293]
344. HREOC notes that, in making this submission, it is not suggesting any amendment to the existing judicial immunity in respect of the exercise of judicial functions or any amendment to Parliamentary privilege.

 

Other potentially excluded categories of workers

345. HREOC further recommends that consideration be given as to whether any other categories of workers potentially fall outside the operation of the SDA, such as:
     • franchisees / franchisors;
     • commissioned officers, such as police officers who arguably may not meet the definition of employees; and
     • bailors / bailees.
       

 

Discrimination in other areas of public life

Provision of goods and services

346. The definition of ‘services’ under the SDA is defined exhaustively to mean:
     • (a) services relating to banking, insurance and the provision of grants, loans, credit or finance;
     • (b) services relating to entertainment, recreation or refreshment;
     • (c) services relating to transport or travel;
     • (d) services of the kind provided by the members of any profession or trade; and
     • (e) services of the kind provided by a government, a government authority or a local government body^.[294]
347. The above definition is arguably narrower than in some other Australian jurisdictions, which also include:
     • (f) ‘access to, and the use of, any place that members of the public are permitted to enter’;^[295]
     • (g) selling, buying, leasing, assigning or disposing of an interest in land;^[296]
     • (h) services provided by an employment agency^;[297]
     • (i) the provision of a scholarship, prize or award;^[298]
     • (j) services provided by an introduction agency;^[299]
     • (k) the provision of coaching or umpiring in a sport.^[300]
       

 

Administration of Commonwealth laws and programs

348. Section 26 of the SDA renders it unlawful for a person to discriminate in performing any function or exercising any power under a Commonwealth law or program, or when fulfilling any other responsibility for the administration of a Commonwealth law or program.
349. Section 26 binds the Crown in right of a State, but only to the extent that the State is administering a Commonwealth law or program. Importantly, s 26 does not prohibit discrimination in the administration of State (including Territory^[301]) laws or programs.
350. To date, applicants bringing such claims in the Federal jurisdiction have been forced to rely on characterising the relevant circumstances as the provision of a service.^[302] HREOC submits that this is anomalous and imposes an unnecessarily circuitous path. As the Western Australian Equal Opportunity Commission submitted in its review of the Equal Opportunity Act 1984 (WA):

     It should not matter that the ‘service’ in question may be in fact a coercive or regulatory function of government, whatever the source of the authority. The Commission should be able to investigate discriminatory regulatory and compliance functions of government – policing, local government, and other enforcement powers – to the extent that those functions deny a person a benefit or entitlement on discriminatory grounds.^[303]

351. Whilst ‘service’ has typically been interpreted broadly in discrimination cases to cover many functions provided by State governments and instrumentalities,^[304] potential gaps remain. For example, there has been ongoing confusion as to the circumstances in which State prison authorities are regarded as providing a service to prisoners.^[305]
352. HREOC considers it unsatisfactory that an applicant who faces discrimination in the administration of State laws or programs should be deprived a remedy under the SDA simply because they are unable to characterise the relevant conduct as a ‘service’. HREOC also considers that this is an incomplete implementation of Australia’s international obligations to provide an effective remedy against discrimination.

 

Specific issues re coverage of sexual harassment provisions

353. There are several issues under the SDA that relate specifically to the extent of the coverage of protection from sexual harassment. These issues are dealt with in the next section. (See Sexual harassment, below).
     

Ancillary / accessory liability

354. Pursuant to s 105 of the SDA, a person who ‘causes, instructs, induces, aids or permits’ another person to do an act that is unlawful act under Division 1 or 2 of Part II is taken to have done that act also. Section 105 therefore imposes a form of ancillary, or accessory, liability in relation to sex discrimination.
355. However, ancillary liability under s 105 is confined to sex discrimination and does not explicitly include sexual harassment. HREOC considers that this is a significant anomaly that requires immediate amendment. There is no rational basis as to why the SDA renders it unlawful to be an accessory to discriminatory conduct but not sexual harassment, especially given that the courts have accepted that sexual harassment is a ‘species’ of sex discrimination.^[306] Indeed, sexual harassment may involve significantly more heinous (possibly criminal) conduct compared with discriminatory conduct.
356. As a matter of practicality, there may be circumstances where an applicant can only rely on the ancillary liability provisions, such as where the alleged harassment was carried out by a customer or where the applicant seeks to bring a claim directly against a fellow employee. In such situations, the applicant must currently bring their claim as one of sex discrimination, notwithstanding that the conduct may fall squarely within the definition of sexual harassment. This is unsatisfactory and likely to engender confusion.
357. HREOC also notes that the exclusion of sexual harassment from ancillary liability under s 105 is inconsistent with the DDA, where the equivalent ancillary liability provision^[307] expressly includes the prohibition against harassment.^[308] Similarly, HREOC notes that the equivalent ancillary liability provisions in most of the States and Territories apply to all of the operative provisions under the relevant Acts,^[309] rather than being confined to discriminatory conduct only.
358. HREOC also notes that ancillary liability under s 105 does not apply to victimisation. For the same reasons noted above, this is also a significant weakness of the SDA in need of immediate amendment.

^Top

12. Sexual Harassment

This section addresses Term of Reference K.

Sexual harassment continues to affect significant numbers of people, with the vast majority being women

Legal protection from harassment needs to be strengthened by correcting the reasonable person test.

Consider creating a positive duty to avoid sexual harassment in stage two of a reform process

Importance of eliminating sexual harassment

359. HREOC regards the elimination of sexual harassment as critical to achieving gender equality in the workplace and implementing Australia’s obligations under CEDAW. The CEDAW Committee has emphasised that

     [e]quality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace.^[310]

360. The Committee has also specifically recognised sexual harassment as a form of discrimination and gender based violence under CEDAW.^[311]
361. In addition to meeting Australia’s obligations under CEDAW, there is a strong business imperative to eliminate sexual harassment. Sexual harassment presents a significant cost to employers through lost productivity, absenteeism, workers compensation, staff turnover, drop in staff morale and reputational damage. A review of sexual harassment in employment complaints conducted by HREOC in 2002 found that only 7 per cent of complainants were still working for the organisation where the alleged harassment occurred.^[312] It is therefore in everyone’s interests - employers and employees alike - to take active steps to eradicate sexual harassment from our workplaces.
362. HREOC acknowledges that important steps have been taken in Australia to combat sexual harassment in the workplace, particularly by making sexual harassment unlawful under the SDA and creating an avenue for redress. However, sexual harassment continues to significantly affect the lives of many people in Australia, particularly workers. A national telephone survey of 1006 respondents commissioned by HREOC in 2003 found that 28 per cent of women and seven per cent of men had experienced sexual harassment in the workplace. Fourteen per cent of respondents had witnessed sexual harassment in the workplace in the five years prior to the survey.^[313]
363. Sexual harassment also arose as a key topic of discussion during the Sex Discrimination Commissioner’s recent Listening Tour. For example, a young female focus group participant shared her experience of working in the cleaning industry:

     We were playing [and] mucking around. I knew he liked me. I didn’t like him back. He made physical sexual advances and I had to fight him off. He was the boss. It was my word against his [so] I didn’t raise it with the employer.^[314]

364. Victims of sexual harassment report experiencing a broad range of behaviours including serious criminal offences such as sexual or physical assault. The 2003 HREOC telephone survey found that of those who experienced sexual harassment in the workplace in the last five years 94 per cent experienced crude or offensive behaviour; 85 per cent experienced unwanted sexual attention; 43 per cent experienced sexist behaviours; 20 percent experienced sexual assault; 19 per cent experienced sexual coercion; and 62 percent experienced physical harassment.^[315]
365. The available research also reveals that the overwhelming majority of sexual harassment victims do not make formal complaints. HREOC’s telephone survey found that less than one third of those who experienced sexual harassment made a formal report or complaints about sexual harassment. For those who did not report their experience, almost half expressed a lack of faith in the grievance process as the reason.^[316]
366. This finding accords with a survey conducted by Working Against Sexual Harassment, a coalition of women’s services in Victoria. This research found that 63 per cent of respondents did not report their experience of sexual harassment. Only five per cent reported using a state or federal complaints mechanism. Based on qualitative interviews, the study also found that there was low levels of awareness and understanding of state and federal complaints mechanisms.^[317]
367. Given the understandable hesitancy that inhibits some women coming forward with complaints of sexual harassment, HREOC is currently investigating the merits of alternate strategies for providing assistance and support to victims of sexual harassment in addition to the existing complaints mechanisms. In Powers of HREOC and the Sex Discrimination Commissioner, below, HREOC recommends that the Committee support additional funding for these kinds of strategies.
368. HREOC views the consideration of such additional strategies to complement the prohibition and complaints mechanism under the SDA as an important topic for ongoing discussion in conjunction with the current Review.
369. The ongoing prominence and significance of sexual harassment also highlights the importance of ensuring that the existing provisions under the SDA are as effective as possible in achieving their intended objective of eliminating sexual harassment in employment and other areas of public activity.^[318] With these thoughts in mind, HREOC sets out proposals for improving the capacity of the SDA to redress sexual harassment.
     

Definition of sexual harassment

370. Sexual harassment is defined under s 28A of the SDA as follows:

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

(2) In this section:

conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

371. The following section considers particular concerns with the above definition in relation to the reasonable person standard.
     

Reasonable person standard

372. The definition of sexual harassment includes a ‘reasonable person’ standard for assessing whether the conduct amounted to sexual harassment. The definition refers to an unwelcome sexual advance or request for sexual favours, or other unwelcome conduct of a sexual nature:

     ...in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.^[319] (emphasis added)

373. The male gender bias of the reasonable person standard has long been a subject of academic criticism, particularly in the context of sexual harassment.^[320] Fiona Pace provides a useful summary of this commentary:

     Many commentators also argue that the reasonableness standard is itself gendered; that it is male experiences, views and perspectives that are embodied in the notion of reasonableness and how it is applied. Gender differences dictate that a reasonable woman and a reasonable man are likely to differ in their judgments of what is offensive yet it is assumed that women’s experiences are part of everyone’s commonsense knowledge. In actual fact, ‘common knowledge’ about women and the reasonableness of conduct is based on male knowledge. According to Thornton, decision-makers in sexual harassment cases derive as much of their ‘knowledge’ about what a woman is, what a woman can do and what is reasonable, from ‘stereotypes, ideology, folklore, prejudice, and intractable misconceptions’ as they do from efforts to understand the complex realities of women’s experiences. The conduct of both victims and perpetrators of sexual harassment are measured against male standards and as a result, incidents of sexual harassment are trivialised and stereotypes reinforced by decision-makers.^[321]

374. In the United States, attempts to counterbalance the male gender bias of the reasonable person standard in sexual harassment claims has led some courts to apply a ‘reasonable woman’ standard.^[322] However, this approach has also attracted criticism, particularly on the basis that it is premised on an artificial assumption of sameness amongst women and reinforces stereotypes of women as the ‘weaker sex’.^[323]
375. An alternate approach is sometimes described as the ‘reasonable victim’ standard, which requires courts to focus more closely on the particular circumstances of the individual victim when assessing the reasonableness of the impugned conduct.^[324] For example, a ‘reasonable victim’ standard has been applied under the racial hatred provisions of the RDA. The courts have emphasised that in assessing whether particular conduct was ‘reasonably likely to offend, insult, humiliate or intimidate’, regard should be had to the particular attributes and circumstances of the victim.^[325]
376. Similarly, the NSWLRC recommended that the Anti-Discrimination Act 1977 (NSW) be amended to more clearly direct the court to have regard to the particular circumstances of the victim when applying the reasonable person element of the sexual harassment definition:

     The appropriate standard is a reasonable person standard, but one which explicitly and thoroughly addresses the reality of sexual harassment by determining whether the actions are unacceptable from the viewpoint of the victim and a reasonable person sharing the victim’s characteristics of race, gender, etc. The Commission is satisfied that the current reasonable person test is adequate and should remain, but that there should be explicit reference to the need to take into account the pertinent characteristics of the victim.^[326]

377. This approach has been adopted in Queensland^[327] and the Northern Territory.^[328] In Queensland, for example, the reasonable person element within the definition of sexual harassment is expressed as follows:

     in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.^[329]

378. The legislation goes on to provide that:

     The circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct include:

     (a) the sex of the other person; and

     (b) the age of the other person; and

     (c) the race of the other person; and

     (d) any impairment that the other person has; and

     (e) the relationship between the other person and the person engaging in the conduct; and

     (f) any other circumstances of the other person.^[330]

379. The relevant provisions in the Northern Territory are expressed in essentially identical terms.^[331]
380. The above approach has two main advantages over the SDA. First, by setting out the relevant circumstances of the victim to be taken into account, the Queensland and Northern Territory legislation clearly directs the court to assess the reasonableness of the impugned conduct by reference to the individual circumstances and characteristics of the victim. This takes into account any gender, race, cultural, age or other relevant circumstances or factors that might help to explain why the individual victim regarded the conduct as unwelcome and inappropriate. By contrast, the SDA contains only a vague reference to ‘having regard to all the circumstances’.^[332]
381. Secondly, the Queensland and Northern Territory definition is broader than the SDA by including circumstances where a reasonable person would have ‘anticipated the possibility’ that the other person would be offended, humiliated or intimidated. As Fiona Pace notes:

     This broadens the definition of sexual harassment significantly and makes the [Queensland Act] test relatively easy to satisfy.^[333]

 

Extend the coverage of protection

382. As noted earlier in the Submission, there are several ways in which the coverage of protection from sexual harassment under the SDA is inadequate.
     

Goods, services and facilities

383. Section 28G makes it unlawful to sexually harass another person ‘in the course of providing, or offering to provide, goods, services or facilities to that person.’[334] Importantly, the prohibition only applies to the sexual harassment by workers of customers, but not vice versa.
384. HREOC considers that many workers are just as vulnerable to sexual harassment by customers as by fellow employees or supervisors. In response to sexual harassment (or conduct escalating towards sexual harassment) by an important customer or client, many workers may feel reluctant to take assertive action out of fear of the repercussions from the employer. The customer may be in a position to exploit a significance imbalance of power between him or her and the worker, particularly if the client is important to the business or directly impacts on the worker’s salary.
385. Where a person is sexually harassed by a customer (or client, colleague etc), he or she may be able to bring a claim against their employer by relying on ancillary liability under s 105, such as by showing that the employer ‘permitted’ the harassment to occur. However, reliance on s 105 ancillary liability is insufficient. For starters, the applicant will need to show that the employer was aware of the situation and failed to take appropriate steps.[335] This may be very difficult to prove, especially in respect of the first occasion when harassment occurs or when the employee is at a remote location.
386. Furthermore, reliance solely on the employer to take preventative steps may be inadequate. An employer’s resolve in providing a harassment-free workplace for its staff may be weakened by competing commercial imperatives to please the customer. Furthermore, an employer’s capacity to control the conduct of its customers may be limited in some circumstances. Whilst an employer may be able to remove a customer from the premises or cancel a contract, for example, it does not exercise equivalent powers to caution, redistribute, demote or fire a customer as it does with an employee.
387. For the above reasons, as well as the reasons already expressed in relation to making employee’s personally liable for sex discrimination, HREOC considers that the current exclusion of customers from personal liability is unsatisfactory. The prohibition against sexual harassment should not be limited to just the service-provider, but should also bind customers, clients and any other person who engages or seeks to engage with a person in connection with the provision of goods, services or facilities. This would ensure that a person who is sexually harassed in connection with their employment has a direct right of action against the individual offender, irrespective of his or her status. HREOC also notes that this is already the case in most of the States and Territories.[336]

 

Education

388. The SDA makes it unlawful for an ‘adult student’ (defined as a student aged 16 years or over) to sexually harass another adult student at the relevant educational institution.
389. Whilst HREOC can understand the rationale for limiting liability for students aged over 16, it does not understand why the availability of a remedy for the victim is dependent on his or her age. This may yield the unjust result that if a 16 year old student sexually harasses two fellow students, one aged 15 and the other aged 16, only the older student is entitled to a remedy under the SDA.^[337] Given that younger students are often at increased vulnerability to sexual harassment by fellow students the greater the age gap, this anomaly is of particular concern. Constitutional power to extend coverage to students under 16 would be available by reason of the United Nations Convention on the Rights of the Child (‘CROC’), to which Australia is a party.
390. HREOC also notes that the prohibition against staff is confined to sexual harassment of current and prospective students ‘at the institution’. Likewise, the prohibition against adult students is confined to sexual harassment of adult students and staff ‘at the institution’. This potentially leaves unclear the situation where a staff member or adult student sexually harasses a student of another institution.^[338]
391. For example, students from different educational institutions often mix at combined events, such as sporting carnivals or to put on theatrical productions. In such circumstances, whilst students from one institution many not be directly answerable to teachers and staff of another institution, there is clearly a relationship of power and authority which makes students vulnerable.
392. Similarly, it is not clear why the prohibition against sexual harassment is confined to members of staff. This potentially leaves unclear the situation of other persons with whom students come into contact in connection with attendance at school and related activities, such as visiting school chaplains, sporting coaches, after class music or drama teachers etc who might not technically be a member of staff.
393. HREOC considers that there is also no logical reason why students who have been sexually harassed in connection with their attendance at school or a school-related activity or event should be deprived a remedy depending on whether or not their harasser was a student or member of staff from their own educational institution.
     

 

 

Free-standing prohibition

394. Under the SDA, protection from sexual harassment only relates to specified areas of public life. This is the same as the protection from discrimination.
395. As discussed above, HREOC proposes that, in stage two of reforms, consideration be given to amending the SDA to include a free-standing prohibition against discrimination in all areas of public life. For the same reasons, HREOC also recommends that stage two should also consider including a similar free-standing prohibition in relation to sexual harassment.
396. There is merit to extending the coverage of protection from sexual harassment to all aspects of public life, in light of the seriousness of the impact of sexual harassment to people affected.
397. HREOC notes that the legislation in Queensland goes even further, by containing a free-standing prohibition against sexual harassment in all areas of life, including private life.^[339] It means that victims of sexual harassment have a remedy under the law regardless of whom their harasser is or the context in which the harassment occurs. However, the Queensland approach raises complex questions over the appropriate reach that human rights laws should have in regulating the private lives and relationships of individual citizens.

 

Positive duty to prevent sexual harassment

398. As noted earlier in this submission, the current model of the SDA has been criticised for being expressed as a negative based standard, rather than imposing obligations to take positive action.
399. In relation to sexual harassment, for example, an employer is vicariously liable for sexual harassment engaged in by its employee in connection with his or her employment. An employer can avoid such liability if it took ‘all reasonable steps’ to prevent the harassment from occurring.^[340] The taking of reasonable steps will therefore aid in defending a claim. However, the failure to take such steps is not actionable of itself. Accordingly, an employee in a workplace with a dismal lack of any sexual harassment policies or grievance procedures is arguably a ‘sitting duck’, having to wait until the harassment has occurred before being entitled to commence an action or even to engage HREOC’s investigation and conciliation process.^[341]
400. HREOC notes that the Final Report of the Equal Opportunity Review reached a similar conclusion in relation to the Equal Opportunity Act 1984 (Vic), where it noted:

     As currently framed, the Act relies upon a reactive approach to discrimination. The prohibition against unlawful discrimination is mainly enforced via complaints about specific acts of discrimination after they have occurred.^[342] (emphasis added)

401. Courts applying the ‘all reasonable steps’ defence in sexual harassment cases under the SDA have emphasised that there is no single standard which much be applied by all employers. Rather, the obligation to take steps is variable depending on the size and circumstances of the employer.^[343] However, the cases also indicate that, at a minimum, all employers should have a sexual harassment policy and grievance procedure of some description which is adequately communicated to their staff.^[344]
402. Nevertheless, whilst an employer who fails to take any such steps is unlikely to avoid vicarious liability, its liability remains contingent on sexual harassment having occurred. HREOC considers that it is a sensible step to require employers to take all reasonable steps as a positive obligation, with the failure to comply itself an actionable harm. Therefore, an employee who finds him or herself in a working environment without adequate safeguards can legitimately seek the court’s intervention without having to await sexual harassment occurring.
403. This would not involve a substantial burden on employers, but would merely recast the existing implied obligation in clear and positive terms. This would assist employers to understand their obligations, as well as empowering employees to pressure their employers to implement appropriate policies and procedures. HREOC has already prepared a detailed sexual harassment Code of Practice,^[345] to assist employers in meeting such an obligation. HREOC also notes that precedent for such approach exists under the South Australian legislation, which provides:

     It is unlawful for an employer to fail to sake such as steps as may be reasonably practicable to prevent an employee from subjecting a fellow employee, or a person seeking employment, to sexual harassment.^[346]

404. Furthermore, a general obligation to take reasonable steps would obviate the current uncertainty around the liability of employers in respect of sexual harassment of its employees by a customer or client. At present, as discussed above, an applicant must bring such a claim against their employer under s 105 as ancillary liability, on the basis that the employer ‘permitted’ the harassment from occurring where the employer was on notice that the employee was at risk and failed to take appropriate steps.^[347] Once again, this effectively imposes an indirect obligation to take reasonable steps to avoid sexual harassment of an employee, irrespective of identity or status of the offender. Stating this as a positive obligation to take all reasonable steps would make this obligation clearer.

 

13. Victimisation

405. The SDA creates an offence of victimisation.^[348] An act of victimisation also constitutes unlawful discrimination giving rise to a right to seek a civil remedy.^[349]
406. An act of victimisation occurs when a person subjects, or threatens to subject, another person to any detriment ‘on the ground that’ the other person has done or proposes to do (or the person believes that the other person has done or proposes to do) one of a number of protected acts, including:
     • (a) making a complaint under the SDA or the HREOC Act;[350]
     • (b) bringing proceedings under the SDA or HREOC Act;[351]
     • (c) furnishing information, attending a conciliation conference or appearing as a witness in connection with a complaint or proceeding;[352]
     • (d) reasonably asserting any rights of the person or any other person under the SDA or HREOC Act;[353] or
     • (e) making an allegation that a person has done an act that is unlawful by reason of Part II of the SDA.[354]
     (collectively, ‘the protected acts’) .

Concerns over the victimisation provisions

407. The courts have repeatedly held that s 8 of the SDA, which provides that a protected attribute or characteristic need only be a reason for particular conduct even if not the dominant or a substantial reason, does not apply to victimisation. Rather, the applicant must establish that the protected act was a ‘substantial or operative factor’ in causing the respondent to inflict the alleged detriment.^[355]
408. HREOC considers that fear of reprisal is one of the primary reasons why victims of discrimination and sexual harassment refrain from pursuing a formal complaint. Indeed, in some cases the detriment a person faces from complaining about unlawful conduct out-shadows the original conduct giving rise to the complaint.
409. On the Commissioner’s recent Listening Tour, one female focus group participant reflected on her own experience of sexual harassment and why she decided not to bring a formal complaint:

     I would not just have been a victim of the incident; I would have become a victim of [the] repercussions of bringing the incident to attention.^[356]

410. Other women referred to the idea of bringing a sexual harassment complaint as ‘career death’, fearing that the stigma would impede future promotions and career progression.^[357] One woman said that bringing a complaint forward would mean being known to be a ‘bit unhinged’^[358] for the rest of her career while another said:

     It absolutely still is an issue and people have a fear of making a complaint because it is a career killer. You try and deal with it informally or you just get out.^[359]

411. Effective victimisation provisions are therefore vital to ensuring that the discrimination and harassment provisions are utilised, by providing some measure of protection for victims against reprisal when seeking to vindicate their rights. As Lord Nicholls observed in Shamoon v Chief Constable of the RUC:^[360]

     [The victimisation provisions are] an essential safeguard. Persons who exercise their rights are not to be penalised for doing so.^[361]

412. Similarly, his Lordship explained in Khan v Chief Constable of West Yorkshire Police:^[362]

     [T]he primary object of the victimisation provisions is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise under the legislation or are intending to do so.^[363]

413. As discussed earlier in this submission, applicants in discrimination claims already face considerable difficulty in establishing that a prohibited ground was even a reason in causing particular treatment. The ‘substantial or operative factor’ test employed by the courts in relation to victimisation claims sets an unacceptably high bar which few applicants would be able to meet. Similar criticisms have been widely made, including by HREOC,[364] in relation to the dominant reason test under the ADA. Likewise, similar criticisms led to the abolition of the (former) dominant reason test under the RDA.^[365]
414. By discouraging victims of discrimination and sexual harassment from pursuing their complaints, HREOC considers that the current weakness of the victimisation provisions significantly undermines the effectiveness of the SDA in its entirety. HREOC therefore considers that the SDA requires immediate amendment to introduce an equivalent provision to s 8 in relation to the test for causation in establishing a claim of victimisation.
415. HREOC also reiterates its earlier comments in relation to the need to consider options for alleviating the difficulties faced by applicants in establishing causation, such as by adjusting or reversing the onus or directing the court to draw adverse inferences in particular circumstances. These same observations and recommendations would apply equally in relation to establishing causation in a claim of victimisation.
416. HREOC also notes that vicarious liability under s 106 does not explicitly extend to victimisation.^[366] There is no logical rationale for this omission. For an individual to express his or her rights under the SDA within an organisation often comes at great personal cost. Much of the fall out comes not only from the employer, but from fellow employees, particularly where an applicant is seeking to disrupt a status quo that disadvantages a minority within the workplace. To excuse employers from vicarious liability for victimisation which it could reasonably have prevented clearly undermines the effectiveness of the SDA and is contrary to its objects. This is also inconsistent with the approach taken in almost all of the States and Territories, as well as the DDA and ADA, which extend vicarious liability to all of the operative provisions under the relevant Acts.^[367]

 

 

14. Exemptions

This section addresses Term of Reference M.

Differential treatment may not be unlawful under the SDA, either because it is:

• a ‘special measure’;
• covered by a permanent exemption or exception; or
• covered by a temporary exemption.

The permanent exemptions for religious bodies, educational institutions for religious purposes, sport and voluntary bodies are discussed to highlight some of the debates

All permanent exemptions should be made subject to a three (3) year sunset clause in their current form, and reviewed during stage two of the reform process to see whether they should be retained, narrowed or removed

Permanent exemptions could be replaced by a general reasonable limitations provision which is strictly defined in accordance with human rights principles. This reform should be considered in stage two as well

The permanent and temporary exemptions and ‘special measures’ under the SDA

417. Part II, Division 4 of the SDA (ss 30 – 47) sets out 15 categories of permanent exemptions from parts of the Act (ss 30 – 43). Section 44 provides the ability to grant temporary ‘exemptions’ from parts of the SDA.
418. Section 7D provides for ‘special measures.’
419. Each of these provisions allows for different treatment on the basis of sex and/or some other protected attribute under the SDA. However, there are important distinctions to be made between different treatment which is beneficial to achieving gender equality, and different treatment which detrimentally affects gender equality but which may be justified for some other reason (‘exemptions or limitations’). The 15 permanent exemptions under the SDA are currently a mixture of both.
420. Some permanent exemptions operate to benefit substantive gender equality and should be removed from Division IV. Other permanent exemptions are truly limitations on the human right to gender equality.
     

Background to ‘Special Measures’

421. Section 7D recognises that some different treatment on the basis of sex or other protected attribute may be necessary to promote substantive gender equality. Section 7D provides that
     

(1) A person may take special measures for the purpose of achieving substantive equality between:

(a) men and women; or

(b) people of different marital status; or

(c) women who are pregnant and people who are not pregnant;

(d) women who are potentially pregnant and people who are not potentially pregnant.

(2) A person does not discriminate against another person [on the grounds of sex, marital status or pregnancy or potential pregnancy] by taking special measures authorised by subsection (1)

(3) A measure is to be treated as being taken for a purposes referred to in subsection (1) if it is taken:

(a) solely for that purpose; or

(b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(4) This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.

422. Section 7D was added to the SDA in 1995^[368] to replace s 33 to recognise that special measures to promote substantive gender equality are not discriminatory at all, but are ‘affirmative action’ or ‘positive discrimination’ measures consistent with CEDAW and other international human rights obligations. Section 7D replaced s 33 to the SDA as a response to the recommendations of the Australian Law Reform Commission in Equality Before The Law (1994). Equality Before the Law (1994) had reviewed s 33 which allowed for differential treatment to ensure ‘equal opportunity.’ Section 33 provided that:
423. “[n]othing in Division 1 or 2 renders it unlawful to do an act a purpose of which is to ensure that persons of a particular sex or marital status or persons who are pregnant have equal opportunities with other person in circumstances in relation to which provision is made by this Act. “
424. Equality Before the Law (1994) found that s 33 was inadequate in its formulation of special measures. Firstly, s 33 was cast as an ‘exemption’ from the SDA when, in fact, the SDA should treat special measures as non-discriminatory acts or practices which are beneficial to women’s equality.

     special measures should be presented and understood as

     ‘an expression of equality, rather than an exception to it. Adopting such an approach affirms a primary commitment to the remedying of widespread, deeply entrenched and identifiable group-based patterns of inequality.’^[369]

425. Secondly, s 33 was confined to ‘equal opportunity’ measures, a term which is often used to describe measures designed to achieve formal equality only – i.e. equal treatment of women and men or different treatment which may only emphasises differences between women and men to women’s disadvantage.[370] According to Equality Before the Law (1994), a focus on ‘equal opportunity’ ‘ignores historical and structural barriers which impede women’s utilisation of formally equal opportunities.’^[371]
426. Accordingly, the new s 7D no longer treats special measures as ‘exemptions’ and is no longer confined to equal opportunity measures.^[372]
427. In 1996, HREOC developed guidelines for assessing a special measure.^[373]
428. HREOC considers that s 7D is an adequate formulation of special measures for the purposes of CEDAW subject to ensuring that it covers all grounds protected under the SDA, including family and carer responsibilities (see Family Responsibilities, above). Section 7D has been appropriately applied by the courts to give effect to CEDAW obligations.^[374] CEDAW expressly provides that ‘temporary special measures aimed at accelerating defacto equality between men and women shall not be considered discrimination as defined in the present Convention’,^[375] whilst emphasising that special measures should ‘in no way entail as a consequence the maintenance of unequal or separate standards’.^[376] Special measures are to ‘be discontinued when the objectives of equality of opportunity and treatment have been achieved.’^[377]
429. However, as proposed elsewhere in this Submission, HREOC recommends that HREOC have the power to certify acts or practices which are temporary special measures under the SDA and consistent with CEDAW. (See Powers of HREOC and the Sex Discrimination Commissioner, below).
     

Background to Permanent Exemptions

430. Permanent exemptions under the SDA currently apply in the following areas:
431. Certain discrimination, such as due to a genuine occupation requirement, (s 30)
     • Pregnancy or childbirth (s 31)
     • Services for members of one sex (s 32)
     • accommodation for employees or students (s 34)
     • residential care of children (s 35)
     • charities (s 36)
     • religious bodies (s 37)
     • educational institutions established for religious purposes (s 38)
     • voluntary bodies (s 39)
     • acts done under statutory authority (s 40)
     • insurance (s 41)
     • new superannuation fund conditions (s 41A)
     • existing superannuation fund conditions (s 41B)
     • sport (s 42)
     • combat duties (s 43)
432. In addition to these permanent exemptions, the SDA includes a number of ‘exceptions’ to specific areas in which gender-based discrimination is otherwise prohibited. These exceptions are found elsewhere in the SDA, not Division 4. Current ‘exceptions’ include:
     • Employment in a household (s 14(3))
     • Single sex accommodation (s 23(3))
     • Accommodation by a religious body (s23(3)).
433. In practice, there is no conceptual difference between permanent exemptions or exceptions, with both operating to exclude certain categories of conduct, entities or areas of public life from being the subject of a complaint of unlawful gender-based discrimination.^[378]
434. Most of the permanent exemptions and exceptions have been in place since the SDA was enacted in 1984. As noted by the ALRC,

     [t]he inclusion of many of the exemptions was part of the compromise and negotiation process in having the Act passed. Their continuance, after ten years of the Act’s operation, limits the effectiveness of the SDA.’^[379]

Background to Temporary Exemptions

435. Part II, Division 4, s 44, also empowers HREOC to grant temporary exemptions from the SDA for up to five (5) years.
436. The SDA does not set out the factors that HREOC is to take into account in exercising its discretion to grant a temporary exemption. However, HREOC has developed its own guidelines for the granting of temporary exemptions under the SDA. HREOC will consider:
     • the objects of the SDA;
     • the reasonableness of the exemption sought – HREOC will weigh up the nature and extent of the discriminatory effect against the reasons advanced in favour of the exemption;
     • whether the circumstances, while not falling precisely within any of the permanent exemptions to the SDA, bear a close resemblance to any of those exemptions so as to be within the spirit or broad scheme of those exemptions;
     • whether the exemption could be granted subject to terms and conditions which further the objects of the SDA (see below).^[380]
437. Once granted, a temporary exemption operates as a complete defence to a claim of unlawful discrimination.
438. An aggrieved person can seek a review of the decision granting the temporary exemption to the Administrative Appeals Tribunal.^[381]
439. From the commencement of the SDA to January 2007, HREOC had granted 27 temporary exemptions under s 44.
440. HREOC does not use the power to grant a temporary exemption where the differential treatment is a special measure. This is because s 7D provides that a special measure is not unlawful under the SDA, and therefore a temporary exemption is not necessary.^[382]
441. HREOC considers that the existing power to grant temporary exemptions should be retained, on the basis that it is used subject to the objects of the act, the duties of HREOC under the HREOC Act, and exercised in a transparent fashion.
442. However, HREOC supports an amendment to the SDA which would confirm that the power to grant exemptions should be exercised in accordance with the objects of the SDA, to reflect the existing HREOC guidelines. This is not currently specified.
     

 

Permanent Exemptions which allow differential treatment consistent with substantive gender equality

443. A number of permanent exemptions under the SDA, whilst still described as ‘exemptions’, are in fact consistent with, and may promote, substantive gender equality.
444. For example, s 31 provides that the unlawful discrimination provisions in Division 1 (Discrimination at Work) and Division 2 (Discrimination in other areas, such as education, goods and services, and accommodation) do not make it unlawful to ‘discriminate against a man on the ground of his sex by reason only of the fact that the first-mentioned person grants to a woman rights or privileges in connection with pregnancy or childbirth.’
445. This section is designed to permit different and beneficial treatment for women which is in connection with their unique child-bearing role. For example, it would permit an employer to only offer paid maternity leave to child-bearing women. It accords with CEDAW which provides that the adoption of programs or other acts which meet the test of being special measures ‘aimed at protecting maternity shall not be considered discriminatory.’^[383] CEDAW also places an obligation on state parties to, for example, take all appropriate measures to ‘provide special protection to women during pregnancy in types of work proved to be harmful to them’,^[384] whilst noting that protective legislation relating to matters should be reviewed periodically ‘in light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.’^[385]
446. Similarly, s 32 provides that Division 1 or 2 does not apply where services, by their very nature, can only be provided to members of one sex. This section enables, for example, specialist services for amnio centisis, or for vasectomies, to address health needs which are unique to women, or to men. This section is also consistent with CEDAW and is not an exemption to the obligation to promote gender equality.
447. Recommendation 3.7 of Equality Before the Law (1994) proposed that s 32 be amend as follows: ‘The provision of services the nature of which is such that they can only be provided to members of one sex shall not be considered discrimination as defined by Division 1 or 2’. This recommendation has not been implemented.^[386]
448. Section 30 also allows for different treatment between men and women where it is a genuine occupational qualification for a person to be of one sex. Section 30 contains some provisions which would be considered categories of special measures. For example, s 30(2)(d) allows only women to be employed to conduct searches of clothing or bodies of women, and the same for men. (However, in other cases, s 30 may be contrary to promoting substantive equality, but is a permitted exemption on the grounds of ‘reasonableness’. For example, s 30(2)(f) allows employers to discriminate against women or men, when it is not reasonable to expect the employer to provide separate accommodation and sanitary facilities for employees of both sexes. This latter provision operates to limit substantive gender equality on the basis of another competing interest, such as unjustifiable hardship to the employer. These permanent exemptions are discussed further below.)
449. HREOC proposes that the current permanent exemptions in the SDA which promote gender equality, such as ss 31 and 32, be consolidated with s 7D as categories of lawful differential treatment which promote gender equality.
450. Section 7D would retain the general temporary special measures clause which makes it clear that special measures are not to be continued once the gender equality purpose for which they have been adopted has been achieved – for example, special measures to address the gender pay gap. If the gender pay gap is closed, the different treatment may be subject to review to determine if it still needs to be retained. This would be compliant with CEDAW.^[387]
     

Permanent exemptions that may be contrary to substantive gender equality but are sought to be justified by competing public policy consideration/s

451. Other permanent exemptions under the SDA operate to permit gender-based discrimination in specified cases but also appear to address some other public policy considerations apart from promoting gender equality, for example, in relation to religious bodies, or voluntary bodies.
452. There has been long standing criticism of the SDA providing for so many exemptions. As noted in Equality Before the Law (1994), ‘[t]he number of exemptions from the application of the SDA provisions are seen to limit its effectiveness to achieve its goals.’^[388] As noted by Rees et al.,

     [i]t is sometimes quite challenging to identify the public policy considerations which may lie behind a particular exception [in anti-discrimination laws generally], or to assert that those considerations still justify the existence of an exception to a general prohibition against discrimination on a particular ground.^[389]

453. The SDA is not alone in the number of permanent exemptions. Whilst the RDA has only a limited number of statutory ‘exceptions’ to the operation of the RDA^,[390] the DDA provides for a significant number of permanent exemptions^[391] and the ADA has the largest number of permanent exemptions.^[392] Anti-discrimination laws at state and territory level also include various permanent exemptions.^[393]
454. Like most human rights, the right to equality is inherently qualified to the extent necessary to strike an appropriate balance with competing rights and interests. So, for example, the UN Human Rights Committee has stated that:

     not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.^[394]

455. Similarly, in Sporong and Lonroth v Sweden,^[395] the European Court of Human Rights observed:

     The Court must determine whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. The search for this balance is inherent in the whole of the [European Convention on Human Rights].^[396]

456. As discussed earlier in this submission, the concept of substantive equality also contemplates that a formal equality approach of treating everyone the same can actually reinforce existing inequalities and perpetuate disadvantage. Accordingly, in certain circumstances differences in treatment are required in order to ensure a just outcome and the acceleration of substantive equality or equality of outcome.
457. The search for an appropriate balance between sameness or difference of treatment, and between competing rights and interests, goes to the heart of what anti-discrimination laws seek to achieve. The model adopted under the SDA is one that seeks to resolve many of these tensions in advance. That is, the legislation adopts a formulaic approach that identifies specific criteria for defining whether particular conduct:
     • (f) is directly or indirectly discriminatory,
     • (g) occurred within a protected area of public life; and, if so,
     • (h) is excused via one of the exemptions (or alternatively because the conduct amounts to a special measure and therefore is not discriminatory at all).
458. This model is consistent with the model adopted under the DDA and ADA, as well as the anti-discrimination legislation in each of the States and Territories. The advantage of this model is that it seeks to provide a degree of clarity and certainty in advance, so that individuals and businesses can adequately regulate their affairs. As Neil Rees, Katherine Lindsay and Simon Rice observe:

     In order to be effective anti-discrimination law must stipulate with reasonable clarity the circumstances in which it is impermissible for an attribute possessed by a person, such as his or her race or sex, to influence a decision that is made about that person. That is what the existing law seeks to do, albeit with limited success.^[397]

459. The existence of fixed permanent exemptions is also inflexible. Whilst providing a degree of certainty, permanent exemptions also carry the risk of excluding too much or too little depending on the circumstances. Indeed, some commentators have observed that, in circumstances where an appropriate exemption does not apply, the courts have at times adopted an overly restrictive interpretation of the definition of discrimination to avoid unjust or impractical results on the particular facts, although with adverse consequences for discrimination jurisprudence in the longer term.^[398] Others have queried whether many of the existing exemptions are unnecessarily broad, or just plain unnecessary.
460. HREOC considers that the removal of permanent exemptions under the SDA also needs proper consideration and consultation.
461. The last occasion upon which the permanent exemptions under the SDA were subject to a full public review was the Equality Before the Law (1994) by the ALRC. The ALRC took into account the findings of Half Way to Equal (1992) which included only limited recommendations to amend some permanent exemptions under the SDA. The ALRC also took into account the Sex Discrimination Commissioner’s review of specific permanent exemptions, A Review of Exemptions (1992),^[399] which dealt only some exemptions, being: instrumentalities of the state (s 13, dealt with under Coverage, in this submission); education institutions established for religious purposes; voluntary bodies; acts done under statutory authority; and sport. In Equality Before the Law (1994), the ALRC did not go so far as recommending the removal of all permanent exemptions, but made a number of recommendations to remove specific provisions.
462. Removal of all permanent exemptions under the SDA would be a significant change to federal equality law. As noted above, permanent exemptions exist in virtually all existing federal, as well as state and territory anti-discrimination legislation in Australia.
463. In light of the short time available for submissions to this Inquiry, and the inability to conduct detailed consultations at this time, HREOC proposes that the removal of permanent exemptions be dealt with in two stages.
464. HREOC proposes that the permanent exemptions be made subject to a three (3) year sunset clause now. In addition, the Committee should recommend that all permanent exemptions be reviewed as part of a stage two inquiry process. The stage two reform could either lead to permanent exemptions being removed, narrowly defined strictly in accordance with human rights principles, or retained in some cases, and inserting a general limitations provision.
465. HREOC notes that a general limitations clause may need to be narrowly crafted to ensure that the right to gender equality is limited strictly in accordance with human rights principles. If a general limitations clause was adopted, the definition of discrimination under the SDA would also need to be reformed to lower the threshold of conduct that may initially engage the right to equality.

 

466. HREOC has considered several of the permanent exemptions under the SDA to highlight some of the issues that are raised by permanent removal. In this Submission, HREOC sets out some of the debates about the nature and scope of permanent exemptions relating to:
     • Religious exemptions
     • Voluntary bodies
     • Sport
467. The following sections about these three categories of exemptions are provided to give examples of the background to the history and debates about permanent exemptions. They are examples of exemptions which continue to have significant effect. In these sections, HREOC also suggests issues to be dealt with in a second stage of review.
     

Religious exemptions (s 37 and 38)

468. There are two permanent exemptions under Division II Part 4 of the SDA which are of a religious nature. Section 37 exempts religious bodies from the operation of the Act and s 38 exempts educational institutions established for religious purposes in some areas of employment from the operation of the Act.
469. These exemptions exist at the intersection of two fundamental human rights, namely the right to practice a religion and belief and the right not to be discriminated against on the basis of sex, marital status, pregnancy or potential pregnancy. These two exemptions are discussed in this section.

Religious Bodies (s 37)

470. Section 37 of the SDA exempts religious bodies from the operation of the Act in relation to:
     
     • (a) the ordination or appointment of priests, ministers of religion or members of any religious order;
     • (b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
     • (c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or
     • (d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
471. There are no exemptions on religious grounds in the provisions of the RDA or the DDA. The ADA contains an exemption from discrimination provisions for a body established for religious purposes that:
     • (e) conforms to the doctrines, tenets or beliefs of that religion; or
     • (f) is necessary to avoid injury to the religious sensitivities of adherents of that religion.[400]
472. The Workplace Relations Act 1996 (Cth) prohibits the termination of employment on the ground of sex, marital status, family responsibilities and pregnancy.^[401] However there is an exemption to this prohibition in the same terms as that in the SDA.^[402]
473. Section 37 of the SDA has not been the subject of inquiry since the Act came into force in 1984 although there has been continued discussion about the role of women within religious institutions up to the present time. There is clearly a strong body of opinion amongst some religious institutions that opposes any change to the religious exemptions. However, the rights to religious freedom and to gender equality must be appropriately balanced in accordance with human rights principles.
474. Due to tight time constraints, HREOC has not been able to consult widely on this issue.
475. The existing permanent exemption provides little incentive for religious bodies to re-examine their beliefs about the role of women and to ensure adequate representation of women in areas that do not conflict with the doctrines, tenets and beliefs of the religion. The permanent exemption does not provide support for women of faith who are promoting gender equality within their religious body.
476. Within many religious bodies, there are now organised groups of women leading discussion about the appropriate balance between religious freedom and gender equality. Groups representing Anglican, Catholic and Muslim women have made submissions to this Inquiry. The Anglican and Catholic women are recommending the removal of the s 37 exemption^[403] while the Islamic women argue that is should be retained.^[404]
477. The UN Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief specifically affirms the right to appoint religious personnel as one of the freedoms of belief covered by the Charter.^[405] However that principle is narrower than s 37 which, in s 37(d), also exempts from the SDA

     any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

478. As noted above, HREOC recommends that s 37, together with other permanent exemptions, be made subject to a three (3) year sunset clause. The question of whether s 37 should be removed, retained or replaced with a more narrowly tailored exemption on strictly human rights grounds should be addressed during the second stage reform process, to be completed within three (3) years.
479. HREOC’s view is that the right to religious freedom must be balanced by the right to equality. It considers that, at a minimum, the exemption may be narrowed or alternatively, s 37 could include a mechanism which would allow religious bodies, on request to the Minister, to opt out of the exemption.
480. For example, s 37 could be amended to include that, if a religious body wishes to be removed from the operation of s 37, or parts of it, it could apply to the Minister. Subject to appropriate transparency arrangements, the Minister could then schedule the religious body to the Act. From that date, the named religious body would no longer be exempted from the SDA under s 37 (or the part they nominate) and would be bound by its terms.
481. This option would enable religious bodies to make a public declaration that they are committed to substantive gender equality within their specific areas of religious practice and expressions of faith.
482. These options could be considered during the second stage of the reform process.

Educational institutions established for religious purposes (s 38)

483. An exemption exists under s 38 of the SDA which allows educational institutions established for religious purposes to discriminate on the grounds of sex, marital status and pregnancy in some areas of employment.
484. Section 38 of the SDA states:
     

     (1) Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, marital status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

     (2) Nothing in paragraph 16(b) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, marital status or pregnancy in connection with a position as a contract worker that involves the doing of work in an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

     (3) Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person’s marital status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed

485. The explanatory memorandum accompanying the SDA stated:

     Sub-clause (1) of this clause provides an exemption in relation to discrimination on the ground of marital status or pregnancy for the hiring or dismissal of staff for employment at an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a religion or creed where the discrimination is done in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed. Sub-clause (2) provides a similar exemption in relation to the hiring or dismissal of contract workers. Sub-clause (3) provides a similar exemption in relation to discrimination on the grounds of marital status or pregnancy for educational institutions with regard to their educational practices.

486. Section 38 therefore permits discrimination if the discrimination occurs in good faith in order to avoid injury to the religious susceptibilities of the adherents of that religion or creed. The exemption does not apply to sexual harassment or family responsibilities. Sub-clauses 1 and 2 cover the hiring and dismissal of staff and sub-clause 3 covers discrimination in educational practices.
487. All Australian state and territory legislation includes some form of exemption for educational institutions established for a religious purpose. Details of these state and territory exemptions are included in Annexure D.

History of the s 38 Exemption

488. The inclusion of s 38 in its present form was the culmination of extensive consultation between the Federal government and church lobby groups.
489. In the first government Sex Discrimination Bill of 1983, introduced by Senator the Hon Susan Ryan, Minister Assisting the Prime Minister for the Status of Women, into the Senate on 2 June 1983 (and closely resembling her 1981 Private Member's Bill), the provisions extended to the employment of teachers in private schools. When the Bill was circulated, there was strong opposition from the Catholic Bishops and other Catholic and non-Catholic education organisations. Lobbying was strong from private schools, which said they wanted the right to decline to employ, for example, teachers living in de facto relationships or those who become unmarried parents. It was reported at the time that the Government was under attack about private school funding and was sensitive to the concerns of private schools at the time.^[406]
490. The Opposition proposed an amendment to take into account the needs of private schools. At this stage the Government apparently still hoped to secure bipartisan support for the Bill and agreed to consider the amendment.
491. On 16 September 1983, Senator Ryan announced that the Government would consider giving private schools a two-year exemption from the employment provisions pending an inquiry to assess the future of the exemption. Senator Ryan said:

     It is not the Government's intention to damage the special character of non-government schools or to interfere with the beliefs and ethical standards of parents and educational authorities ... However, the Government has a general commitment to ensuring that men and women should not be discriminated against in employment because of their sex, marital status or pregnancy.

492. She also said that during the two-year exemption the Attorney-General would ask the Human Rights Commission to inquire into and report on the application of the legislation to non-government schools.^[407]

Inquiries into the s 38 Exemption

493. Since the introduction of the SDA, there have been a number of reviews into the exemptions under the Act including Half Way to Equal (1992), The Review Report (1992) and Equality Before the Law (1994). The major conclusions from these reports are discussed below.
494. Half Way to Equal (1992) considered the exemption in section 38. A summary of the submissions made in 1992 is set out in Annexure E.
495. Halfway to Equal (1992) stated that ‘the exemption allowing discrimination against teachers in educational institutions established for religious purposes was of great concern’,^[408] but acknowledged the need to balance the right of religious schools to set standards of behaviour for students and staff with the right of men and women to be treated equally in their employment when compared to teachers in government schools. Half Way to Equal (1992) recommended that s 38 be amended to add the requirement of ‘reasonableness’ so that an employer was required to meet a common law standard which permitted an objective assessment of the circumstances.^[409] The minority report of the Committee stated that s 38 should remain unchanged.^[410]
496. In 1992, the Sex Discrimination Commissioner conducted a review of the five permanent exemptions under the SDA, including s 38: A Review of Exemptions (1992). Review of Exemptions (1992) argued that the wide ranging exemptions were a product of political compromise necessary to secure the passage of the then controversial SDA though parliament and did not reflect changing social acceptance of anti-discrimination law. A summary of the submissions made is contained in Annexure F.
497. Review of Exemptions (1992) isolated the three main positions in relation to the exemption:

     (1) Retention of the exemption

     Although some church groups argue that the exemption is essential, the evidence suggests that view is not prevalent. Community attitudes change and pressure from these changed community attitudes to review s38 now exists. Increasing numbers of women in the workforce have brought pressure to bear on employers and government to safeguard the rights of working women who, because of bearing children, are more likely than men to experience discrimination because of pregnancy and family responsibility. The section has operated to cover all kinds of employment, even though the arguments about the need to retain it are aimed almost solely at teaching positions. Arguments based on the exemplar role of teachers would be hard to apply to secretarial, gardening and maintenance staff.

     (2) Removal of the exemption

     Arguably other sections of the SDA cover instances where some types of discrimination are countenanced. For instance, sex can be a genuine occupational qualification in some circumstances. Removal would be the best option for delivering social justice for women in their work, and ultimately the best option for children and schools because it would encourage the development of positive anti-discrimination and equal opportunity in schools.

     (3) Amendment of the exemption

     The Lavarch Inquiry believed section 38 should be reworded to avoid ambiguity to meet the common law standard of reasonableness and to allow for an objective assessment of the circumstances. This approach would tighten the exemption to restrict the area of countenanced discrimination thus widening the area where women's right to work is protected. Countenanced discrimination should he 'reasonable having regard to the circumstances of the case as well as being in good faith'. This would allow a standard to be set in the Commission's determinations because reasonableness is a familiar concept in law. Additionally, s38 could be tied to a sunset clause.

498. Review of Exemptions (1992) concluded by recommending that the exemption be removed to ensure protection against discrimination to all Australians including the large number of teachers and other staff employed in the non-government school system. Review of Exemptions (1992) stated:

     This would locate anti-discrimination practices in all Australian schools. Students at non-government schools would be able to see anti-discrimination practices in action. The Australian Government has a commitment and an obligation to protect human rights. That commitment could be expressed by requiring that if Commonwealth funds are accepted by non-government schools, those schools must comply with the expectations of Australian society.^[411]

499. Review of Exemptions (1992) also suggested a less desirable, but satisfactory solution, to adopt the proposal that any discrimination must be ‘reasonable’ in addition to being in ‘good faith’, as suggested by Half Way to Equal (1992).
500. In Equality Before the Law (1994), the ALRC did not receive any submissions on the exemption from religious organisations or schools. However in its Report, it referred to submissions of groups to Halfway to Equal (1992), as well in Review of Exemptions (1992) to the Sex Discrimination Commissioner.^[412]
501. The ALRC concluded that the right to religious freedom and the right to enjoy culture and religion must be balanced by the right to equality and the principle of non-discrimination. The ALRC considered that s 38 preferred one right over the other with no consideration of where the balance should be. It stated that ‘women employed in religious educational institutions should have the same right to be free from discrimination as other women.’^[413]
502. The ALRC endorsed the recommendation of the Review of Exemptions (1992) that the exemption contained in s 38 be removed or, at the very least, the exemption be removed in relation to discrimination on the ground of sex and pregnancy. The ALRC recommended that, if the exemption on the ground of marital status was to be retained, it should be amended to require a test of reasonableness. In Pregnant and Productive (1999), HREOC also recommended that the exemption be removed in relation to pregnancy.^[414]
503. Section 38 impacts on a large number of people. In 2006, non-government schools alone employed 112,027 staff which is about a third of Australia's school staff.^[415] This exemption is wider than non-government schools and covers all educational institutions established for a religious purpose including primary, secondary and tertiary education.
504. As noted above, HREOC recommends that s 38, together with other permanent exemptions, be made subject to a three (3) year sunset clause. The question of whether s 38 should be removed, retained or replaced with a more narrowly tailored exemption on strictly human rights grounds should be addressed during the second stage reform process, to be completed within three (3) years.
     

Voluntary Bodies (s 39)

505. Section 39 of the SDA provides for an exemption for ‘voluntary bodies’ from Division 1 and 2, in connection with the admission of persons as members, or the provision of benefits, facilities and services to members.^[416] Voluntary bodies are defined to include non-profit associations or bodies, not including ‘clubs, registered organisations, bodies established by a law of the Commonwealth, state or territory, or a body that provides grants or loans.^[417] The effect of the permanent exemption of voluntary body is therefore linked to the definition of a club. A club - not a voluntary body for the purposes of the SDA - is defined in s 4 as an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that: (a) provides and maintains its facilities, in whole or in part, from the funds of the association; and (b) sells or supplies liquor for consumption on its premises. Note that persons engaged in paid work for voluntary bodies are covered by the employment provisions of the SDA.
506. In her Review of Exemptions (1992), the Sex Discrimination Commissioner noted that the voluntary body exemption arose because of concern expressed at the time of Cabinet consideration of the Sex Discrimination Bill (1984) that the legislation should not affect the activities of organisations such as Rotary and Lions clubs.
507. The Commissioner recommended that the exemption be removed. Arising from her inquiry, the Commissioner found that

     Voluntary bodies have had sufficient time to debate fully the membership and benefits issues [arising under s 39], and justify any discrimination that occurs. Responsible organisations have chosen to remove discriminatory requirements from their rules. Those which have not reflected the spirit of the SDA in their rules, are permitting the denial of many benefits to women and girls.^[418]

508. This recommendation was not adopted by the Commonwealth at that time.
509. The Australian Law Reform Commission in Equality Before the Law (1994) also recommended that this permanent exemption be removed.
510. HREOC has since, in its role as amicus curiae in proceedings before the Federal Magistrates Court, made further submissions in relation to how s 39 should be interpreted. In these submissions, HREOC has recommended a narrow interpretation be adopted.^[419]
511. The extent to which voluntary bodies are exempt from discrimination and equality laws in other federal, state and territory acts varies considerably at the present time.
512. For example, the Anti-Discrimination Act 1977 (NSW) makes it unlawful for registered clubs to discriminate on the ground of sex in relation to membership and access. Registered clubs with membership available to one sex are exempted and it is not unlawful to discriminate in relation to use and enjoyment of a benefit provided by a club, where it is not practicable for the benefit to be enjoyed simultaneously by both sexes. In Queensland, clubs which function for the purpose of profit are covered by the Anti-Discrimination Act 1991 (QLD). Under the Equal Opportunity Act 1984 (SA), membership of voluntary bodies is not exempt from the prohibition against discrimination on the ground of sex.
513. Under the Anti Discrimination Act 1998 (Tas), membership and activities of clubs are covered by the Act. The Act does not mention voluntary associations specifically, but there is a competitive sport exemption which permits discrimination against persons eleven years of age or more on the basis of gender. Services are to be provided without discrimination (see Sport, below). Under s 59 of the Equal Opportunity Act 1995 (Vic), a social, recreational, sporting or community service club, or a community service organisation cannot discriminate against people in relation to an application for membership and in the terms on which they are prepared to admit people to membership. Club is defined as a club or community service organisation which occupies Crown land or receives financial assistance from State or local government. A group that is a club under the Equal Opportunity Act 1995 (Vic) would be a voluntary body under the SDA. There is no separate definition of voluntary bodies in Victoria. There are exemptions within the Victorian Act for separate access to benefits for men and women if: (1) it is not practicable for men and women to enjoy the benefits at the same time and either access to the same or equivalent benefit is provided for men and women separately; or (2) men and women are each entitled to a reasonably equivalent opportunity to enjoy the benefit.
514. The provisions of the Equal Opportunity Act 1984 (WA) in relation to clubs and associations are similar to those in the SDA. A club is not a voluntary body in terms of the Western Australian Act. Section 71(1) provides an exemption to unlawful discrimination a voluntary body in the admission of persons as members or the provision of benefits, facilities or services. Section 31 of the Discrimination Act 1991 (ACT) exempts voluntary bodies in relation to the admission of members and the provision of benefits and services.
515. As noted above, HREOC recommends that s 39, together with other permanent exemptions, be made subject to a three (3) year sunset clause. The question of whether s 39 should be removed, retained or replaced with a more narrowly tailored exemption on strictly human rights grounds should be addressed during the second stage reform process, to be completed within three (3) years.
     

Sport (s 42)

516. Section 42 of the SDA provides that it is not unlawful to exclude persons of one sex from participation in any competitive sporting activity ‘in which strength, stamina or physique of competitors is relevant.’ The exemption does not apply to coaching, umpiring or refereeing, administration, any prescribed sporting activity, or sporting activities by children under the age of twelve.
517. The Sex Discrimination Commissioner reviewed this exemption during her Review of Exemptions (1992). She noted that

     ...the present section is not easy to apply. There are few areas where strength, stamina and endurance is not relevant and there is difficulty in determining the relevance of physical strength in an objective manner.^[420]

518. The Commissioner recommended that the exemption be removed. In her view.

     Section 42 has been relied upon to prevent women and girls gaining access to sporting competitions when, on merit and skill, some women are well able to compete with men and boys.

     When used in conjunction with s 39, s 42 can result in elite male standards being applied to women’s sporting activities especially where competitions are controlled by organisations which fall within the definition of ‘voluntary bodies’ in s 4 of the SDA.^[421]

519. This recommendation was not adopted by the Commonwealth at that time.
520. The Australian Law Reform Commission in Equality Before the Law (1994) also recommended that this permanent exemption be removed.^[422]
521. The extent to which sporting activities are exempt from discrimination and equality laws in other federal, state and territory acts varies at the present time.
522. For example, in New South Wales, s 38 of the Anti-Discrimination Act 1977 (NSW) provides for an exemption for sport, not including coaching, administration or any proscribed sporting activity. Section 11 of the Anti-Discrimination Act 1991 (Qld) permits restrictions on participation if the restriction is reasonable having regard to strength, stamina or physique, or is confined to people who can compete effectively, or to certain age groups or persons with specific impairments. It does not apply to children under twelve years of age, coaching, umpiring, administration or activities prescribed by regulation.
523. In the Equal Opportunity Act 1984 (SA), there is a general exemption to the provisions prohibiting discrimination on the ground of sex in relation to competitive sporting activity. Section 48 permits discrimination in competitive sport where strength, stamina or physique of the competitor is relevant. The Anti Discrimination Act 1998 (Tas) contains an exemption for competitive sporting for persons of one gender of 12 years of age or more. In Victoria, there is a general exemption for competitive sporting activities, not including coaching, umpiring, refereeing, sporting administration and the non-competitive practice of a sport.^[423] Section 35 of the Equal Opportunity Act 1984 (WA) includes an exemption in terms identical to section 42 of the SDA. In May 2007, the WA Commissioner for Equal Opportunity released the results of the Review of the Equal Opportunity Act along with recommendations for amendment to the Act. The sporting exemption under s 35 of the Act was not identified in the Review as a provision requiring amendment. The Northern Territory also has a general exemption for competitive sport.^[424] Section 41 of the Discrimination Act 1991 (ACT) is similar to the SDA provision except that it also exempts sporting activities by children who have not yet attained 12 years of age.
524. Gender inequality in sporting activities remains an ongoing concern. In September 2006, the Senate Environment, Communications, Information Technology and Arts Reference Committee Report released its report, About Time! Women in Sport and Recreation in Australia (‘About Time! (2006)’). The report contained several welcome recommendations regarding increased funding for the promotion of women and girls in sporting activities, including Recommendations 2, 9, 12 and 14.
525. Following the release of About Time! (2006), Commissioner Broderick raised with the Australian Government additional issues of gender inequality in relation to the funding of sport for girls and women. The Commissioner understands that current Commonwealth funding arrangements for sport do not enable assessment of the extent to which public funds are provided to girls and women on an equal basis with boys and men.
526. The Commissioner encourages the Australian Government to monitor the proportion of public funds provided to sporting activities at all levels, in order to ensure that funding is available to girls and women on an equal basis with boys and men.  One of the primary tools for the promotion of gender equality is the monitoring of budgeting and expenditure of public funds to ensure that women and men equally benefit from government support. The United Nations Commission on the Status of Women (‘CSW’) urges governments to improve financing for gender equality. The Agreed Conclusions of CSW, adopted by member states in New York in March 2008, recommend that governments should:
     

     Develop and implement, where appropriate, methodologies and tools, including national indicators, for gender-responsive planning and budgeting, in order to systematically incorporate gender perspectives into budgetary policies at all levels, with a view to promoting gender equality in all policy areas. ^[425]

527. As noted above, HREOC recommends that s 42, together with other permanent exemptions, be made subject to a three (3) year sunset clause. The question of whether s 42 should be removed, retained or replaced with a more narrowly tailored exemption on strictly human rights grounds should be addressed during the second stage reform process, to be completed within three (3) years.
     

15. Complaint Handling

Introduction

528. A recognised function of HREOC, as a National Human Rights Institution (‘NHRI’), as noted in the Paris Principles^[427] and by the United Nations^[428], is receipt and action on complaints regarding alleged violations of human rights. Handling complaints is central to the role of NHRIs in protecting and promoting human rights and complements other NHRI functions, such as providing advice to government in relation to law and policy and conducting public education. The complaint handling role of NHRIs, with its focus on Alternative Dispute Resolution (ADR), also complements processes for the protection of human rights offered by judicial institutions. In considering the complaint function of NHRIs, the United Nations has noted that complaint mechanisms should offer something that the judiciary cannot and has referred positively to the role of NHRIs in providing an accessible, quick and inexpensive means to resolve human rights disputes.^[429]
529. The federal anti-discrimination legislation administered by HREOC, including the SDA, provides a complaint process through which individuals and groups can voice and seek redress for alleged breaches of rights stipulated in the law. Where complaints cannot be resolved, complainants can pursue their allegations to the Federal Court of Australia or the Federal Magistrates Court. In comparison with judicial determination, the HREOC complaint process with its focus on informal dispute resolution, provides an accessible, timely and cost efficient way for parties to deal with discrimination related disputes. While the complaint process has a necessary focus on individual remedy, it also operates as a significant educative force and a means to achieve outcomes that contribute to the broader social change objectives of anti-discrimination law^[430]. As such, the HREOC complaint process complements and assists the broader policy, education and inquiry powers granted to HREOC under the HREOC Act and the SDA.
530. The HREOC complaint process has been utilised by thousands of women since the SDA came into effect in 1984. The following sections provide information about HREOC’s complaint process, detailed statistics on complaints lodged under the SDA, data on the efficiency and effectiveness of the complaint process and data from HREOC’s research projects which address concerns that have been raised about complaint processes in this legal context.
531. The information provided in the following sections demonstrates that HREOC’s complaint process is well respected by users of the service^[431] and provides an accessible^[432], timely^[433] and effective means of addressing disputes regarding sex discrimination. It is noted however, that while the number of complaints being brought to HREOC under federal anti-discrimination law has continued to increase over recent years^[434], additional funds that had been provided to HREOC to manage this increase in demand, have been cut. This decrease in funding will impact on HREOC’s ability to continue to provide an efficient and effective complaint service. It will also limit the work HREOC can undertake to educate the public about the law and the complaint process. This issue is addressed in the recommendations, below.
     

verview of the Complaint Process

532. The president of HREOC with the assistance of the Complaint Handling Section (CHS), is responsible for the management of complaints lodged under federal human rights and anti-discrimination law. The legislative directions for handling complaints of unlawful discrimination, including complaints under the SDA, are detailed in Part IIB of the HREOC Act. HREOC has developed detailed complaint handling procedures which build on the legislative directions and these are documented in HREOC’s Complaint Procedures Manual. These procedures aim to ensure that the process is accessible, flexible, timely and effective.
533. A flow chart of the process for handling complaints of unlawful discrimination, including complaints under the SDA, is provided below.

* When complaints under the Age, Racial, Sex and Disability Discrimination Acts are terminated, the complainant may apply to have the allegations heard and determined by the Federal Court or the Federal Magistrates Court

534. Key features of HREOC’s complaint process are summarised below and an expanded account of the process, including information about the legislative and theoretical framework, is provided at Annexure G.
     

Complaint lodgement and assessment

535. Complaints can be lodged by individuals on their own behalf, or by individuals or organisations on behalf of others; including on behalf of a class of people. Complaints can be lodged in any written form including by letter, fax or e-mail. On-line and hard copy complaint forms are available. CHS Officers will assist a person put their complaint in writing if necessary and complaints can be made in any language.
536. All incoming correspondence is assessed by the Director of Complaint Handling generally within two days of receipt. This ensures quality assessment of issues and enables matters to be allocated for priority handling and fast-tracked to resolution, where this is appropriate. Complaints assessed for priority action, such as those where the person is in ongoing employment, are generally allocated to an officer within a few days of receipt^[435].

Complaint Inquiry

537. In many cases, the first step in the complaint process involves the President issuing a customised letter of inquiry to the respondent. The letter requests a reply to the complaint. The complaint process is, however, flexible and when respondents are advised of complaints either verbally or in writing, they are also provided with the opportunity to proceed to conciliation prior to the provision of any formal reply^[436].
538. It is HREOC’s view that anti-discrimination complaint processes should include provision for the investigation of complaints, rather than requiring that all complaints proceed directly to conciliation. This is because in many cases, some level of investigation assists with successful and appropriate resolution of a complaint as it enables the parties and their advocates to have a clearer understanding of how the allegations fit within the law and to assess the relative strengths and weakness of the claim.^[437]
539. Where investigation is undertaken, respondents are generally very cooperative with the process and there are few instances where a respondent does not reply to HREOC or comply with specific requests for information.
540. On receipt of the respondent’s reply to the complaint, the information provided by both parties is assessed and a recommendation is made that either conciliation should be attempted, or the President should terminate the complaint. It is HREOC’s general practice to provide complainant’s with a copy of a respondent’s written reply.
     
541. Prior to any decision that a complaint is to be terminated, for example on the ground that it is lacking in substance, complainants are given an opportunity to provide further information or submissions. Where a complaint is terminated, detailed reasons for the decision are provided.

Conciliation

542. HREOC has detailed practice guidelines for officers undertaking conciliation^[438] which reflect best practice principles for ADR practitioners and specific knowledge and skills relevant to ADR in the anti-discrimination and human rights law context.^[439]
543. HREOC’s approach to conciliation accords with the ADR process of ‘statutory conciliation’ ^[440] and HREOC conciliators are seen to have a legitimate role to: provide information to parties regarding the law and HREOC’s assessment of the complaint; assist parties consider and explore possible terms of resolution; and intervene with a view to enabling substantive equality of process.^[441]
     The appropriateness of attempting conciliation is assessed on a case by case basis and conciliation is not required to be undertaken with every complaint.^[442]
544. Conciliation may be attempted at any time during the complaint process and as noted above, this can take place very early in the process.
545. Most parties to complaints assessed as suitable for conciliation are willing to participate in a conciliation process, and therefore the legislative power to compel parties to attend conciliation is rarely used.
546. HREOC aims to hold conciliation conferences in locations that are convenient and accessible to the parties and CHS officers regularly travel to conduct conferences interstate and in regional and remote areas^[443].
547. The conciliation process may take many forms depending on the circumstances of the complaint. However, the majority of HREOC’s conciliation processes are conducted in the form of a face–to-meeting between the parties.
548. HREOC cannot include anything that is said or done in the course of conciliation proceedings in any report that may be provided the court if the complaint is not resolved. Where a complaint is resolved through a HREOC conciliation process, this is usually documented in a conciliation agreement which is signed by the parties. Parties can seek a wide range of outcomes in conciliation. HREOC does not require the terms of conciliation agreements to be confidential and this is a matter that is negotiated between the parties.
549. HREOC is not a party to conciliation agreements nor does it have a legislative role to monitor or enforce agreements. However, it is HREOC’s experience that there is high compliance with the terms of conciliation agreements.^[444]

Complaint Handling Statistics

Complaints received under the SDA

Table CH1 - Sex Discrimination Act - complaints received

	2002-03	2003-04	2004-05	2005-06	2006-07	2007-08
Received SDA	380	353	348	347	472	438
Total complaints received by HREOC	1 236	1 113	1 241	1 397	1779	2077
SDA complaints as a total of complaints received by HREOC	31%	32%	28%	25%	27%	21%

550. Complaints received under the SDA have remained consistent at around 350 complaints a year since 2002-03, increasing by 36% in the 2006-07 reporting year and remaining at this increased level in the current year. These figures are consistent with findings of research undertaken by HREOC in 2001 and 2004-05 which indicated that legislative changes in 2000, which transferred the hearing and determination of complaints to the Federal Court and then the Federal Magistrates Court, had not deterred complainants from bringing complaints to HREOC.^[445]

Table CH2 - Sex Discrimination Act - complaints received by sex of complainant

	2002-03	2003-04	2004-05	2005-06	2006-07	2007-08
Female	331 (87%)	305 (86%)	288 (83%)	284 (82%)	412 (87%)	369 (84%)
Male	49 (13%)	47 (13%)	60 (17%)	60 (17%)	60 (13%)	66 (15%)
Joint/multiple	-	1 (1%)	-	3 (1%)	-	3 (1%)
Total	380	353	348	347	472	438 (100%)

551. It is predominantly women who make complaints of discrimination and harassment under the SDA. Since 2002-03, women have represented at least 82% of complainants.

Table CH3 - Sex Discrimination Act - complaints received by ground

	2002-03	2003-04	2004-05	2005-06	2006-07	2007-08
Sex discrimination	184 (28%)	216 (34%)	218 (36%)	418 (51%)	449 (45%)	399 (47%)
Marital status	25 (4%)	28 (5%)	22 (4%)	34 (4%)	30 (3%)	43 (5%)
Pregnancy	230 (35%)	177 (28%)	158 (26%)	165 (20%)	170 (17%)	185 (22%)
Sexual harassment	172 (27%)	179 (28%)	167 (28%)	155 (19%)	186 (19%)	157 (18%)
Family responsibility	19 (3%)	14 (2%)	20 (3%)	25 (3%)	39 (4%)	56 (6%)
Victimisation	21 (3%)	19 (3%)	17 (3%)	15 (2%)	118 (12%)	17 (2%)
Aids, permits, instructs (s.105)			2	3 (1%)	3	-
Total*	651	633	604	815	995	857 (100%)

* One complaint may have multiple grounds.

Table CH4 - Sex Discrimination Act – complaints received by area

	2002-03	2003-04	2004-05	2005-06	2006-07	2007-08
Employment	568 (87%)	556 (88%)	516 (85%)	697 (85%)	805 (81%)	746 (87%)
Goods, services and facilities	39    (6%)	41   (6%)	40    (7%)	67     (8%)	95    9%)	75   (9%)
Land	-	-	-	-		-
Accommodation	1	1	1	4	11    1%)	2      (-)
Superannuation, insurance	-	4     (1%)	3      (1%)	-	6      1%)	-
Education	9     (1%)	8     (1%)	12    (2%)	13     (2%)	6     (1%)	7     (1%)
Clubs	7     (1%)	5     (1%)	2	5       1%)	-	10   (1%)
Administration of Commonwealth laws and programs	17   (3%)	17   (3%)	24   (4%)	23     (3%)	72   (7%)	16   (2%)
Application forms etc	4     (1%)	-	2	-	-	1     (-)
Trade unions, accrediting bodies	6     (1%)	1	4     (1%)	6     (1%)	-	-
Total*	651	633	604	815	995	857 (100%)

* An area is recorded for each ground, so one complaint may have multiple and different areas.

552. The above tables reveal that the vast majority of complaints made under the SDA relate to the area of employment. The next main area of complaint is the provision of goods and services. The largest ground of complaint is sex discrimination and this has increased over the past three years.^[446] The next most frequent ground of complaint is pregnancy discrimination followed by sexual harassment. The types of complaints HREOC receives about pregnancy discrimination include allegations that a woman has been dismissed after she advises her manager about her pregnancy, given fewer shifts or less demanding work because of her pregnancy, and /or made redundant because she is on maternity leave.
553. Sexual harassment remains a persistent area of complaint under the SDA. The most common scenario is a woman alleging sexual harassment in employment by either co-workers or a manager. Over the past few years HREOC has seen an increase in complaints alleging sexual harassment through the use of new technologies such as emails, SMS, digital imaging and internet sites (see, further, Sexual harassment, above).
554. HREOC receives a low number of complaints alleging discrimination on the ground of family responsibilities, as the SDA only covers discrimination based on family responsibilities if a person is dismissed from employment (see, further, Family responsibilities, above).^[447]
555. This table also indicates that generally HREOC receives low levels of complaints alleging that a person has been victimised for making a complaint to HREOC or asserting their rights under the SDA.

Table CH5 – SDA Complaints received by geographical location of complainant

	2002/03	2003/04	2004/05	2005/06	2006/07	2007/08
NSW	202	183	163	154	249	185
VIC	57	60	58	68	74	78
QLD	34	34	49	39	49	63
SA	49	43	49	47	50	58
WA	23	18	18	20	29	20
TAS	-	4	8	5	1	5
NT	8	2	3	3	6	4
ACT	6	8	-	7	14	20
Unknown/ OS	1	1	-	4	-	5
Total rec’d	380	353	348	347	472	438

Outcomes of complaints under the SDA

Table CH6 - SDA Outcomes of finalised complaints

	2002-03	2003-04	2004-05	2005-06	2006-07	2007-08
Finalised	395	382	375	314	452	421
Conciliated*	43% (32%)	47%(38%)	47% (38%)	44% (39%)	46% (38%)	53% (48%)
Terminated – no reasonable prospect of conciliation	27%	27%	26%	29%	20%	20%
Terminated – other reason[448]	19%	18%	14%	13%	22%	16%
Withdrawn	11%	8%	13%	14%	12%	11%

* The figures in brackets are the conciliation rates for finalised complaints across all jurisdictions.

556. Complaints under the SDA have a consistently high rate of conciliation which has increased to 53% in the last reporting year. Each year the SDA conciliation rate exceeds the section average. This suggests that complaints under the SDA may be more amenable to resolution through a conciliation process. For complaints under the SDA there has been a 23% increase in the conciliation rate since 2002-03.
557. In the 2007-08 reporting year, of those matters under the SDA where conciliation was attempted, 72% were able to be resolved. The conciliation success rate in the previous year was 69%.
558. Research undertaken by HREOC indicates that the move to a court determination process for federal anti-discrimination complaints^[449] has not negatively impacted on the willingness of respondents to participate in conciliation. The possibility of enforceable determinations and the fact that the new process provides complainants with access to court regardless of the reason for termination, can be seen as providing incentives for respondents to resolve complaints through HREOC’s conciliation process.^[450]
559. The settlements which have been agreed upon by parties involved in complaints under the SDA are many and varied. Outcomes have included:
     • payment of financial compensation for such things as economic loss or hurt feelings and humiliation
     • written and verbal apologies
     • provision of flexible working conditions
     • provision of part-time work and/or maintenance of a comparable work role on return from maternity leave
     • development or review of anti-discrimination policies
     • training for staff in discrimination and harassment
560. As the above list suggests, outcomes achieved through conciliation extend beyond those likely to be awarded in a judicial process. Outcomes can include training and/or changes to policy and procedures which have benefits for similarly situated individuals and groups and contribute to furthering the social change objectives of the SDA.^[451] Additionally, conciliation allows for early intervention in disputes which means that employment relationships can be restored or maintained and effective, practical remedies can be achieved without the need for formal and often lengthy legal proceedings.
561. Some examples of complaints under the SDA that have been successfully resolved are provided at Annexure G.

Applications to the Federal Court and the Federal Magistrates Court

562. In relation to statistics on applications to the court, HREOC relies on information from complainants and the Federal Court or the Federal Magistrates Court registries. Therefore HREOC can not guarantee the accuracy of this information.
563. It should be noted that where a complaint has been terminated by HREOC, irrespective of the reason for termination, the affected person can make an application to the court for the allegations in their complaint to be heard and determined. A person has 28 days to make an application, from the date of the issue of a termination by HREOC.^[452] The time can be extended by the court. The court has a broad discretion to do so.^[453] HREOC considers that the time limit for lodging an application the court could be extended to 60 days, in light of the fact that applicants may be experiencing disadvantage, and may require additional time to make arrangements for preparation of their case.

Table CH7 - Complaints terminated and the number or applications made to the Federal Court and the Federal Magistrates Court

	2002-03	2003-04	2004-05	2005-06	2006-07	2007-08
Complaints terminated - all grounds[454]	173	163	141	124	181	142
Complaints terminated - nrpc[455]	103	98	92	86	88	80
Applications	54	55	45	35	34	30

564. Over the past six reporting years, on average, 28% of terminated complaints under the SDA were pursued to court. The SDA has the highest number of applications to the courts as a proportion of terminated complaints.
565. Over the past six reporting years, on average, 46% of complaints under the SDA that were terminated because the President was of the view that there was no reasonable prospect of conciliation, were pursued to court.
     

The efficiency and effectiveness of the complaint handling service

Key performance indicators and standards

566. HREOC is committed to providing a timely, fair, efficient and consistent complaint service. HREOC has developed key performance indicators and standards which provide the basis for ongoing assessment of the complaint service. These are summarised below.
     

• Timeliness - the HREOC performance standard is for 80% of complaints to be finalised within 12 months of receipt. In 2007-08 93% of complaints were finalised within 12 months. For complaints under the SDA over this period, 94 % of complaints were finalised within 12 months. A detailed breakdown of the timeliness for the handling of complaints under the SDA is contained in Table CH8 below.
  
• Conciliation rate – the HREOC performance standard is for 30% of finalised complaints to be conciliated. In 2007-08, 48% of finalised complaints were conciliated which is 10% higher than the conciliation rate for the previous year. In 2007-08, 53% of complaints under the SDA were successfully conciliated.
  
• Customer satisfaction – the HREOC performance standard is for 80% of parties to be satisfied with the complaint handling process. Data for the 2007-08 year indicates that 93% of parties were satisfied with the service they received and 64% rated the service as ‘very good’ or ‘excellent’. More details on the Customer Satisfaction Survey including specific breakdowns for complaints under the SDA is provided below.

Customer satisfaction survey

567. HREOC seeks feedback on aspects of the complaint service from both complainants and respondents. This feedback is obtained by means of a customer satisfaction survey which was first implemented in 1997 with assistance from the Australia Bureau of Statistics^[456]. Data from the survey is recorded in HREOC’s Annual Report and overall, feedback on the complaint service has been very positive with satisfaction ratings of over 90% for the past four years.
568. Since 02-03, it has generally been the case the SDA customer satisfaction ratings have been equal to or above the overall complaint service figures. Survey results for the SDA in the 2007-08 reporting year are as follows:
     
     • 97% of parties felt that staff explained things in a way that was easy for them to understand
     • 92% of parties felt that the forms and correspondence from HREOC were easy to understand
     • 78% of parties felt that HREOC dealt with the complaint in a timely manner
     • 94% of parties did not consider staff to be biased.
     • 93% of parties were satisfied with the service they received.
     • 64% of parties rated the service they received as very good or excellent.

Timeliness of the service

Table CH8 - Time from receipt to finalisation for finalised SDA complaints

	2002-03	2003-04	2004-05	2005-06	2006-07	2007-08
0 - 3 months	16% (16)*	19% (19)	23%(23)	19% (19)	20% (20)	21% (21)
3 – 6 months	25% (41)	31% (50)	34%(57)	38%(57)	35% (55%)	27% (48)
6 – 9 months	31%(72)	25% (75)	22%(79)	28%(85)	25% (80)	28% (76)
9 – 12 months	17% (89)	14% (89)	13% (92)	10.5%(95.5)	15%  (95%)	18% (94)
More than 12 months	11%(100)	11% (100)	8%(100)	4.5%(100)	5% (100%)	6% (100)

* Figures in brackets are cumulative totals

569. HREOC’s timeliness calculations are based on the time from receipt to finalisation of a complaint as this provides a true ‘customer perspective’ of the timeliness of the process. Over the past years there has been improvement in the timeliness for handling complaints under the SDA.
     

Charter of Service

570. HREOC’s complaint service operates in accordance with a Charter of Service. This Charter outlines the level of service that will be provided and the mechanisms available to people who have concerns about how their complaint has been handled. A copy of the Charter is at Annexure G. No complaints have been received under the Charter regarding the handling of any complaint under the SDA in recent years.
     

Accessibility of the service

571. HREOC has a national complaint handling responsibility and is located in Sydney. HREOC is committed to providing an accessible complaint handling service to everyone in Australia who wants to use it. Processes and practices are in place to ensure the accessibility of all aspects of the service.
572. HREOC’s Complaint Information Service (‘CIS’) provides information about the legislation and the complaint handling process to people from all over Australia. The CIS can be contacted by telephone (including local call cost), e-mail, office visit, fax and TTY (also local call cost). In the 2007-08 reporting year the CIS handled 18 765 telephone/TTY calls, e-mails and office visits. Of the 27,943 issues raised by enquirers, 3,279 raised issues relating to sex discrimination and sexual harassment.
573. A large amount of information about the law and the complaint process is available on HREOC’s webpage – http://www.hreoc.gov.au/complaints_information/index.html.
574. The complaint section of HREOC’s webpage received 299,631 page views during the 2007-08 reporting year. Information available on the webpage includes:
     • Information on what people can complain to HREOC about
     • Information on how to make a complaint
     • A complaint form that can be downloaded or completed online
     • Information on conciliation and how it works including clips from HREOC’s DVD on the conciliation process
     • A conciliation register that provides de-identified summaries of complaints that have been resolved through conciliation
     • A detailed guide to the complaint process
575. Information about the law and the complaint process is also provided in alternative accessible formats where required.
576. HREOC has a Concise Complaint Guide and an information poster that is available in 14 community languages. During 2007-08 the multilingual poster was sent to over 3,000 organisations around Australia who work with people from culturally and linguistically diverse communities. These publications can also ordered from the Complaint Information Service or downloaded from the HREOC webpage at http://www.humanrights.gov.au/languages/index.html and http://www.humanrights.gov.au/pdf/complaints/translations_posterA3.pdf
577. HREOC also has a community education strategy in relation to the complaint service which aims to ensure that people: understand about HREOC and the SDA; understand their responsibilities under the law; recognise when they may have been discriminated against or sexually harassed and understand how to make a complaint. The community education strategy includes:
     • Conducting presentations and information sessions for community organisations, advocacy groups, professional associations, advisory bodies, industrial organisations and legal centres
     • Coordinating mail outs of information kits
     • Undertaking complaint related research and delivering papers at conferences relating to investigation, Alternative Dispute Resolution, industrial relations and anti-discrimination and human rights law.
578. In the 2006-07 reporting year, over 100 organisations throughout all states and territories either attended information sessions on the law and the complaint process run by CHS staff or were visited by CHS staff. These organisations included: community legal centres; professional associations and unions; Aboriginal legal centres; working women’s centres and other women’s advocacy organisations, multicultural organisations; youth organisations and legal centres; neighbourhood centres and disability advocacy bodies and legal centres.^[457]
579. HREOC has concerns however, that whilst the number of complaints being brought to HREOC under federal anti-discrimination law has continued to increase over recent years, additional funds that had been provided to HREOC to manage this increase in demand have been cut. This decrease in funding will impact on HREOC’s ability to continue to provide an efficient and effective complaint service and limit the work HREOC can undertake to educate the public about the law and the complaint process.

 

580. It is HREOC’s experience that women workers benefit from being able to access government funded specialist advocacy and legal centres, such as the Working Women’s Centre. These organisations are an important point of contact and support for people wanting to make complaints to HREOC. HREOC is aware that submissions are being made to the Committee from legal aid organisations, community legal centres and working women’s centres which will address the issue for funding support in these areas.
     

581. HREOC also supports extending the time limit for applicants to commence proceedings in the Federal Court or Federal Magistrates Court to support access for people who are financially disadvantaged or experience other difficulties in securing assistance. At present, an applicant who wishes to pursue his or her complaint through the Federal Court or Federal Magistrates Court has 28 days to lodge with the court from the date on which the complaint is terminated by the President of HREOC.^[458]
     
582. HREOC considers that 28 days is an insufficient period for applicants to seek appropriate advice as to whether to commence court proceedings, and to arrange legal assistance, especially given that:
     
     • victims of discrimination and sexual harassment are typically from socially disadvantaged groups;
     • a significant portion of complainants who lodge complaints under the SDA with HREOC are not legally represented;
     • access to free legal advice and representation in relation to discrimination matters is limited; and
     • once proceedings are commenced, applicants face an inherent risk of an adverse costs order;^[459]
583. HREOC therefore recommends that the current 28 day period for commencing proceedings be extended to 60 days. HREOC considers that this would not impose a disproportionate burden on respondents.
     

 

Standing to bring complaints

584. Standing to lodge a complaint under the SDA with HREOC and, subsequently, to commence proceedings in the Federal Court or Federal Magistrates Court derives not from the SDA, but the HREOC Act. The standing provisions are therefore the same for all of the federal discrimination acts.
585. Pursuant to s 46P(2) of the HREOC Act, a complaint may be lodged with HREOC:

     (g) by a person aggrieved by the alleged unlawful discrimination:

     (i) on that person’s own behalf; or

     (ii) on behalf of that person and one or more other persons who are also aggrieved by the alleged unlawful discrimination; or

     (h) by 2 or more persons aggrieved by the alleged unlawful discrimination:

     (i) on their own behalf; or

     (ii) on behalf of themselves and one or more other persons who are also aggrieved by the alleged unlawful discrimination; or

     (i) by a person or trade union on behalf of one or more other persons aggrieved by the alleged unlawful discrimination.

586. However, the standing provisions then narrow when seeking to commence proceedings in the court. Standing is limited to a ‘person affected’, which is defined to mean a person on behalf of whom the complaint was lodged with HREOC.^[460] The upshot of this distinction is that, whilst a person or organisation may lodge a complaint with HREOC on behalf of a person (or persons) aggrieved by the offending conduct, it is then up to the aggrieved person (or persons) to pursue their claim through the courts on their own.
587. In Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council^[461] (‘Access for All’), for example, Collier J held that an incorporated disability rights organisation lacked standing to commence proceedings in relation to a number of bus stops that allegedly contravened the Disability Standards for Accessible Public Transport 2002.^[462] The court held that, whilst the organisation’s individual members may have been aggrieved by the inaccessible bus stops, the organisation itself was not so aggrieved because it did not use bus stops.^[463]
588. The decision in Access for All has highlighted an unfortunate barrier in the legislation which prevents public interest-based organisations from pursuing complaints in the courts in the vast majority of cases, even if the very purpose of the organisation’s existence is to tackle such issues. In light of the widely reported difficulties, costs and pressures for an individual to pursue a claim of discrimination or sexual harassment through the courts, often against well resourced respondents, this significantly undermines the capacity of the SDA to bring about systemic change. For example, as the Public Interest Law Clearing House noted in its submission to the Equality Opportunity Review in Victoria:

     Given the very nature of discrimination and the difficulties that victims face in bringing claims, in order to be effective it is imperative that representative bodies have the power to bring complaints on behalf of victims who are often disadvantaged and may not have the means to commence costly litigation.^[464]

589. The important role of civil society, NGOs and other public interest organisations in contributing to systemic outcomes has been widely proclaimed on the international stage. For example, the Chair of the Panel of Eminent Persons on United Nations–Civil Society Relations, Fernando Henrique Cardoso, has stated that:

     The rise of civil society is indeed one of the landmark events of our times. Global governance is no longer the sole domain of Governments. The growing participation and influence of non-State actors is enhancing democracy and reshaping multilateralism. Civil society organizations are also the prime movers of some of the most innovative initiatives to deal with emerging global threats.^[465]

590. HREOC acknowledges that there are already provisions to enable the lodging and commencing of representative complaints and court proceedings. However, the rules are technical and complex, compounded by the fact that the requirements at the HREOC and Federal Court stages are not consistent.^[466] The provisions also require that court proceedings be commenced by one or more persons aggrieved by the relevant conduct, which raises the same difficulties encountered in Access for All.^[467] Furthermore, the Federal Magistrates Court does not permit representative proceedings, which limits such proceedings to the more expensive Federal Court jurisdiction. Indeed, to date very few representative proceedings have been commenced under any of the Federal discrimination Acts.^[468]
591. HREOC considers that there are sound reasons of public policy to enable appropriate organisations with a legitimate interest in a particular subject-matter to commence discrimination proceedings, particularly where the claim involves a systemic problem that affects a wide class of persons. HREOC notes that a similar conclusion was reached by the ALRC in its two comprehensive reviews of the rules of standing, where it recommended a significant overhaul to facilitate the bringing of public interest-based litigation by individuals and organisations.^[469]
592. HREOC also notes that there is precedent for such an approach in other legislative contexts. For example, under the Classification (Publications, Films and Computer Games) Act 1995 (Cth), review of a classification decision by the Classification Board may be sought by a ‘person aggrieved’,^[470] which is defined to include (in most cases^[471]):
     • (a) a person who has engaged in a series of activities relating to, or research into, the contentious aspects of the theme or subject matter of the publication, film or computer game concerned;[472] and/or
     • (b) an organisation or association, whether incorporated or not, whose objects or purposes include, and whose activities relate to, the contentious aspects of that theme or subject matter.^[473]
593. HREOC considers that the above approach provides a suitable model for amending the standing provisions under the HREOC Act. It provides greater flexibility for the courts in assessing whether an applicant has a legitimate interest in bringing the claim, even if their interest is indirect, vicarious or simply as a matter of principle. Given that discrimination laws protect fundamental human rights, HREOC considers that there is a broad public interest in facilitating, rather than limiting, the bringing of appropriate claims. To the extent that courts or respondents may have concerns over wasting of resources by ‘busybody’ complaints, these concerns could be addressed by the proposals discussed above, together with the existing powers of the court to control their own proceedings, including by summarily dismissing vexatious or hopeless claims or in requiring security for costs.
594. HREOC notes that commencement of an action by a public interest organisation should not affect the remedies which are available for an individual who is alleging a breach of the SDA.
595. HREOC also notes that the above approach would also extend standing to include HREOC. As discussed further below, one option for reform to the SDA is to create a power for HREOC to be able to initiate proceedings for enforcement of the SDA in the Federal Court or Federal Magistrates Court, without requiring an individual complaint to be lodged with HREOC.

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16. Powers and Capacity of HREOC and the Sex Discrimination Commissioner

596. This section addresses the powers and capacity of HREOC and the Sex Discrimination Commissioner (‘the Commissioner’), not including the complaint handling functions. For discussion of the complaint handling functions, see above, Complaint handling.
597. This section is divided into three parts. The first part summarises the existing statutory functions and powers of HREOC and the Commissioner under the SDA and the HREOC Act, not including the complaint handling function. The second part describes the existing capacity – that is, funding and resources – available to perform these functions and powers. The third section presents to the Inquiry proposals which could strengthen the functions, powers and capacity of HREOC/the Commissioner to eliminate discrimination and promote gender equality.
598. Some proposals are recommendations for immediate reform under the SDA, as well as further options which could be addressed in stage two of an inquiry process, including into a potential Equality Act.
599. HREOC highlights that, if new functions are to be supported for HREOC or the Commissioner, additional funding will be required in order for those functions to be exercised effectively.
     

Existing functions and powers of HREOC and the Commissioner

600. The importance of HREOC and the role of the Commissioner as the independent statutory officer responsible for eliminating discrimination and promoting gender equality in Australia has been widely recognised and supported.
601. The office of the Commissioner is created by s 96 of the SDA. The Commissioner is appointed by the Governor-General,^[474] and, by convention, the appointment is made on the advice of the Federal Attorney General. The appointment is to be for a specified period, not exceeding 7 years, and the Commissioner is eligible for re-appointment at the end of her or his term.^[475] The gender of the person is not specified.
602. Since the enactment of the SDA, the federal government has appointed six Sex Discrimination Commissioners for a full term, and two acting Commissioners:
     • Ms Pam O'Neill: 1984 - 1988
     • Ms Quentin Bryce: 1988 – 1993
     • Ms Susan Walpole: 1993 - 1996
     • Ms Moira Scollay: 1996 - 1998 (Acting)
     • Ms Susan Halliday: 1998 - 2001
     • Ms Pru Goward: 2001 - 2006
     • The Hon John von Doussa 2006- 2007 (Acting)
     • Ms Elizabeth Broderick 2007 – Present
603. Under the current SDA and HREOC Act, the majority of the functions and powers relevant to the SDA (and CEDAW) are not given to the Sex Discrimination Commissioner but to HREOC or the ‘Commission’. This is not necessarily well understood in the public arena.
604. The ‘Commission’ is defined in the SDA and HREOC Act as ‘the Human Rights and Equal Opportunity Commission established under the Human Rights and Equal Opportunity Act 1986,’^[476] which consists of the President and all the federal special purpose commissioners, being the Human Rights Commissioner, the Race Discrimination Commissioner, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Sex Discrimination Commissioner and the Disability Discrimination Commissioner.^[477] A separate Age Discrimination Commissioner is not appointed under the ADA. Within HREOC, primary responsibility for age discrimination has been allocated to the Sex Discrimination Commissioner.^[478]
605. The Sex Discrimination Commissioner has the following functions that may be exercised acting alone, as follows:
     • To appear as amicus curiae in the Federal Court and Federal Magistrates Court, with leave of the court concerned (introduced in 1999);^[481]
       • To intervene in a matter referred by HREOC to the Australian Industrial Relations Commission under s46PW of the HREOC Act. Under s 46PW, a person, group of persons, or trade union may lodge a complaint to HREOC about a discriminatory act under an industrial agreement. If the President of HREOC forms the view that the act appears to be discriminatory, the President must refer the complaint to the Australian Industrial Relations Commission. The AIRC may then convene a hearing to consider if the award is discriminatory. Section 554 of the Workplace Relations Act 1996 (Cth) empowers the Sex Discrimination Commissioner to intervene in those proceedings as a party to the proceedings.^[482]
     • To make an application to the Australian Industrial Relations Commission for an order to ensure that employees covered by an order of that Commission receive equal remuneration for work of equal value.^[483]
606. The individual amicus curiae function vested in the Sex Discrimination Commissioner is similar to most of the other special-purpose commissioners, being the Disability Discrimination Commissioner under the DDA, the Race Discrimination Commissioner under the RDA, and the Human Rights Commissioner under the HREOC Act. The Aboriginal and Torres Strait Islander Social Justice Commissioner exercises additional functions ‘on behalf of the Commission’ in a range areas, including public awareness, research and education, examination of laws and proposed laws, and submitting an annual report to the Minister.^[484]
607. The SDA sets out a range of functions to be carried out by HREOC as a whole, including:
     • Granting temporary exemptions;^[485]
     • Promoting understanding and acceptance of, and compliance with, the SDA;^[486]
     • Conducting research and education, and others programs on behalf of the Commonwealth.
     • Promoting the objects of the SDA;^[487]
     • Examining laws or (where requested by the Minister) proposed laws and reporting to the Minister;^[488]
     • Reporting to the Minister on new laws or action that should be taken by the Commonwealth about unlawful discrimination or sexual harassment;
     • Preparing non-legally binding guidelines;^[489]
     • Intervening in any court proceedings, with leave of the court;^[490]
     • Doing anything ‘incidental or conducive to’ the performance of the above functions.^[491]
608. In addition to these functions under the SDA, HREOC also has general duties, functions and powers under the HREOC Act which may be used to promote ‘human rights’. ‘Human rights are defined to include ‘the rights and freedoms recognised in...any relevant international instrument [including CEDAW]’.^[492]
     
609. HREOC is under a general duty to use its functions under the SDA and HREOC Act:
     • ‘with regard for the indivisibility of human rights’ and ‘the principle that every person is free and equal in dignity and rights’; ^[493]
     • ‘efficiently and with the greatest possible benefit to the people of Australia.’^[494]
       
610. HREOC has a wide range of general functions, outside of the handling of complaints, under HREOCA,^[495] including:
     • To examine laws which may be inconsistent with human rights and report to the Minister;^[496]
     • To report to the Minister about action that needs to be taken by Australia in order to comply with human rights;^[497] and
     • To inquire into any act or practice that may be inconsistent with or contrary to any human right, and, where appropriate, to attempt conciliation to effect a settlement, and, in the absence of a settlement, to report to the Minister (although this function does not apply to an intelligence agency, such as ASIO).^[498]
611. HREOC has the following powers in relation to the exercise of its functions:
     • to do all things necessary or convenient to be done for or in connection with its functions; and
     • To report to the Minister at its discretion on ‘any matter arising in the course of the performance of its functions’ and an obligation to report to the Minster if requested by the Minister to do so;^[499]
     • To work with and consult appropriate persons, governmental organisations and non-governmental organisations;^[500] and
     • In relation to its formal inquiry function, to require a person to give information or produce documents and to examine witnesses. Failure to comply constitutes an offence.^[501]
612. The President is the senior member of HREOC and is solely responsible for a number of matters, including:
     • managing the administrative affairs of the Commission, such as employment of staff and financial matters;^[502] and
     • the handling of complaints under the SDA.^[503]
613. Examples of some of the major work conducted by HREOC and the Commissioners under the SDA and the HREOC Act using these functions and powers is annexed to this Submission, particularly in relation to:
     • Policy development, education, research, and submissions
     • Inquiries
     • Guidelines
     • Amicus curiae and interventions
614. See Annexure H for a non-exhaustive Table of major non-Complaint work under the SDA.
615. The next section describes the existing resources available to HREOC and the Commissioner to carry out its functions, beyond the complaint handling role.
     

Existing Capacity of HREOC and the Commissioner

616. HREOC and the Commissioner have endeavoured to use their existing functions and powers to be as effective as possible in eliminating discrimination and promoting gender equality.
617. The capacity of HREOC and the Commissioner to eliminate discrimination and promote gender equality through complaint handling, policy development, education, research, submissions, public awareness and inquiries is dependent upon HREOC being adequately resourced.
     

HREOC’s budget

618. HREOC’s appropriation revenue in 2008-09 is $13.55 million. This is approximately 12.5% less than the budget appropriation for 2007-08.^[504] This is the greatest decrease in HREOC’s budget since 1996 when HREOC’s total funding base was reduced by 40% over four years. The effect of the decrease in 1996 was that staffing across HREOC had to be reduced by approximately 60.^[505]
619. By way of background, HREOC has received the following ‘new money’ over 2006-07 and 2007-08:^[506]
     • Following the commencement of the Age Discrimination Act 2004 (Cth) (ADA), government allocated additional funding of approximately $250,000 per year to HREOC to undertake non-complaint handling functions, such as research and education, under the ADA. HREOC allocated these funds to the Sex Discrimination Unit, which became the Sex and Age Discrimination Unit.^[507]
     • $4.34 million over four years under the National Action Plan to Build on Social Cohesion, Harmony and Security led to the HREOC Community Partnerships for Human Rights Program to help build community capacity and social cohesion with Muslim communities and the wider community.
     • $1.8 million per year to manage the increase in complaints to HREOC as a result of the introduction by the former government of the Workchoices reforms.
620. In Additional Estimates in 2007-08, the $1.8 million for the increase in complaints was reversed (despite HREOC continuing to experience a significant increase in complaints – 67% since 2004-5) when the relevant Workchoices reforms were repealed.
621. This reversal of funding together with an additional efficiency dividend of 2% has reduced HREOC’s appropriate revenue in 2008-09 by 12.5% compared to its appropriation revenue in 2007-08.
622. To accommodate the reduction in HREOC’s appropriation in 2008-09, all of HREOC’s business units^[508] (including the Sex and Age Discrimination Unit) have had their operating budgets reduced by 14.5%.
     

Sex and Age Discrimination Unit

623. The Sex and Age Discrimination Unit (‘the Unit’) is the dedicated policy unit within HREOC which supports the work of HREOC and the Commissioner to conduct the policy development, education, research, submission, public advocacy and inquiry functions related to gender equality issues.^[509][5]
624. As a result of the factors referred to above, the Sex and Age Discrimination Unit has experienced a reduction in its budget in 2008-09 of 14.5%. The Unit employs five full-time equivalent permanent staff, including management and administration, to carry out policy development, education, research, submissions, public awareness and inquiry functions under both the SDA and ADA.
625. On 22 July 2008, Elizabeth Broderick, the current Sex Discrimination Commissioner launched her Plan of Action towards Gender Equality arising out of her national Listening Tour. The Plan of Action identifies five key areas for strategic positive action to address gender inequalities.
626. In order to progress significant work in these five areas, the Commissioner and HREOC will be dependent upon success in securing additional funding, partnership opportunities, and pro bono assistance, in light of the limited resources currently available to carry out their functions.
627. The work of HREOC and the Commissioner to address systemic discrimination and to progress gender equality is therefore significantly constrained due to available resources.
628. HREOC notes that, if amendments to the SDA arise from this inquiry, the Australian Government will need to consider additional resources for an education strategy regarding the reforms. An education strategy will need to be accessible and appropriate to the needs of the range of groups affected by the changes.

 

Strengthening the functions, powers and capacity to address systemic discrimination and promote gender equality

629. HREOC is aware that past reviews of the SDA and external commentators have acknowledged the positive role of the Commissioner and HREOC. However, HREOC is also aware that recommendations have been made over an extended period of time about how to strengthen the statutory functions of HREOC and the Commissioner to increase effectiveness in promoting substantive gender equality and eliminating discrimination. As noted at the commencement of the Submission, whilst the SDA has been successful in contributing to reducing direct discrimination (except in the areas of exemptions, discussed elsewhere in this Submission), there has been less progress on addressing systemic discrimination or achieving substantive gender equality. There is clearly much more that could be done.
630. This section sets out a range of options for reform to strengthen the role of HREOC and beyond its complaint handling function.
631. HREOC notes that the recommendations and options for reform set out in this section have not been developed through recent external consultation, due to the short time-frame available for preparation of this Submission. Consultation and participation are central to a human-rights based approach to policy formulation.
632. Accordingly, HREOC puts forward both recommendations and options for future reform, during a stage two inquiry process. HREOC does not have a concluded view in relation to which options may be a priority at this stage. The options for reform are presented to the Committee for consideration in light of other submissions to this inquiry, and for any further appropriate consultation with governments, and the Australian public.
     

Policy Development, Education, Research, Submissions and Public Awareness

633. HREOC considers that the statutory functions to enable policy development, education, research, submissions and public awareness activities to be conducted are adequately set out in the SDA and HREOC Act and are vital to achieving gender equality. However, as noted above, the Commissioner and HREOC are constrained in their ability to carry out activities in these areas due to limited resources and competing priorities.
     

Initiating Inquiries

634. The SDA and HREOC Act currently include statutory functions which enable HREOC to undertaken formal inquiries or to carry out ‘inquiry-like&#