HREOC - Annual Report 2001 - 2002: Chapter 8: Sex Discrimnation

Human Rights and Equal Opportunity Commission

Annual Report 2001-2002

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Chapter 8: Sex Discrimnation

Sex
Discrimination Commissioner

Commissioner
Pru Goward's appointment to the position of Commonwealth Sex Discrimination
Commissioner was announced on 29 June 2001. She commenced her term
on 30 July 2001.

Statement from the Commissioner

Since assuming
the position of Sex Discrimination Commissioner in July 2001, I have
sought to deal with a number of issues important to the rights of
Australian women. Over a five year term such as mine there is clearly
the opportunity to pursue a number of major objectives but at the
outset I considered there was also the need to ensure the approach
was neither piece-meal nor the outcomes insubstantial.

At the time,
I identified the issues of work and family (including paid maternity
leave), discrimination and harassment in sport and the needs of Indigenous
women as particular areas where I would devote attention. In the event,
the year has ranged more broadly than this and the Sex Discrimination
Unit has found itself dealing with the implications of in vitro fertilisation
practice for the Sex Discrimination Act, transgender marriage and
harassment in the Australian navy, amongst other matters of public
interest and concern.

An underlying
theme of much of the year's work has been the importance of jurisprudence,
seen as the clarification and the development of social issues through
the judicial or quasi-judicial processes. The Commission has either
intervened or I have sought to be amicus curiae in a number
of court proceedings. In my view it is important to do so wherever
possible, affordable and prudent in order to assist with and hasten
the development of sound jurisprudence in sex discrimination law.
In large part the acceptability of human rights to the Australian
community depends upon the soundness of their legal basis, that is,
upon the case law.

There have been
still other issues with which I have chosen not to engage at this
stage, but the job remains one where the views of the Commission are
sought and expected on a very broad front.

The Sex Discrimination
Unit's major work this year has been the development of an interim
options paper on paid maternity leave, Valuing Parenthood.
The paper was intended to inform public debate about the need or otherwise
for such a scheme. Australia is now one of only two member countries
in the Organisation for Economic Cooperation and Development without
a national entitlement to paid maternity leave; that is to income
replacement when one parent, usually the mother, stays out of the
workforce directly following the birth of their children.

Australia provides
generous income support to low income families and limited but non-means-tested
support to families where one parent stays at home for a number of
years. However, Australia is yet to recognise the particular needs
of a growing number of young women whose personal, professional or
financial circumstances mean that, in the absence of paid maternity
leave, they need to return to paid work when their children are very
young, as young as a few weeks. The increasing participation of women
with young children in the workforce is a paradigm shift; it has occurred
very rapidly and reflects the social patterns in other developed countries.
Paid maternity leave, in an age when the majority of families are
two income families, responds to this national need.

The paper also
explored the consequences for Australia's birth rate of compromising
the choices women make concerning work and family commitments. Arguably,
failing to provide income support to women who are able to choose
not to have children, will encourage women to have no children at
all, or fewer, or later in life. Valuing Parenthood also explores
the business case for providing paid maternity leave at the enterprise
level. It considers the macro economic consequences of not maximising
the work force participation of a significant proportion of the potential
workforce in a declining population also engaged in global economic
competition. Additionally it reflects on the importance of maximising
the nation's economic return on its investment in the education and
training of young women.

The paper does
not recommend any particular national model although it warned against
the adoption of a scheme solely funded by employers, pointing out
the possible discrimination consequences of direct employer funding
in those enterprises where a business case cannot be made.

The paper's release
has sparked a wide ranging debate about the need or otherwise for
such a scheme. This has reflected the community's concern about work
and family life and the need to examine any paid leave proposal in
this broader context.

As part of the
development of my final report, the Sex Discrimination Unit has engaged
in a lengthy consultation process throughout Australia. We have consulted
with employers, unions, community groups, academics and individual
women in every state and territory, including in regional centres.

Unsurprisingly,
there has been a significant majority of people who have opposed the
mandating of individual employer-funded leave and a minority of people
who oppose the provision of paid maternity leave, even if government
funded.

The final report
will be released at the end of 2002.

Other major issues
that I turned my attention to in the past year included race and gender,
sex discrimination and sport and a High Court case on IVF.

In preparation
for my attendance at the United Nations World Conference against Racism,
Racial Discrimination, Xenophobia and Related Intolerance held in
August and September 2001 in South Africa, the Sex Discrimination
Unit produced an issues paper on the intersection of race and gender,
highlighting the gendered nature of racism. The paper drew on focus
groups with immigrant and Indigenous women and will inform my future
work in this area.

Netball Australia's
ban on all pregnant players led to the involvement of the Unit in
the development of appropriate guidelines for clubs, players and coaches,
under the leadership of the Australian Sports Commission. However
the year has also seen my direct involvement in discrimination against
women in sport when I became amicus curiae in the case of Holly Ferneley,
the female kick boxer banned from competition in New South Wales.
The Federal Court rejected her appeal against the ban but recognised
it as a matter for the State legislature. Accordingly I have written
to every member of the New South Wales State Parliament. The former
Minister for Women, Faye Lo Po, replied that "…the question
of women's participation in boxing and kick boxing is an inherently
difficult issue". All other members who replied were either silent
on the desirability of the discrimination or expressed their desire
to see the law changed.

One of the most
contentious legal issues of the year has been the High Court case
Re McBain; Ex parte Australian Catholic Bishops Conference and
Another in which the Commission intervened. The case considered
whether Victorian State legislation preventing practitioners from
providing fertility treatment to single women was in conflict with
the Sex Discrimination Act. Moral and social concerns aside, my interest
and that of the Commission was in upholding the powers of the Sex
Discrimination Act, which make it unlawful to discriminate, inter
alia, on the grounds of marital status.

As the debate
over paid maternity leave has demonstrated, there is a profound desire
among Australians to better address work and family responsibilities.
This is especially relevant to enhancing the choices of women through
the amelioration of the economic and social disadvantage they bear
as mothers and continuing campaigning against workplace discrimination,
direct and indirect. Undoubtedly the coming year will see my continued
involvement in these issues.

Meanwhile Indigenous
women remain the most disadvantaged group in Australia and I hope
to advance better understanding of their position over the next 12
months. Likewise the intersectionality of race and gender and of ethnicity
and gender, are of growing importance in Australia and therefore to
the Commission. There are some difficult conceptual issues as well
as sensitivities involved. However it should be possible to work constructively
and practically in these areas so long as our principal focus remains
the achievement of better outcomes and better lives for Australian
women by enhancing the choices they wish to make.

Research and policy

Valuing Parenthood
Options for Paid Maternity Leave: Interim Paper 2002

Australia
at present does not have in place legislation that deals with the
provision of universal paid parental or maternity leave at either
the national or state or territory level. Australia retains its reservation
to article 11(1) of the Convention on the Elimination of All Forms
of Discrimination Against Women concerning paid maternity leave.

In 1999, the
Commission's report of the National Pregnancy and Work Inquiry, Pregnant
and Productive: It's a right not a privilege to work while pregnant,
recognised the importance of paid maternity leave to Australian women
and recommended that the Government commission economic modelling
to assess the viability and consequences of such a scheme.

Economic modelling
has not yet been made publicly available by the Government. The Commissioner
decided that the debate around paid maternity leave in Australia would
be assisted by the production of a paper raising for discussion the
various options for a national scheme for paid maternity leave in
Australia.

An interim options
paper on paid maternity leave Valuing Parenthood Options for Paid
Maternity Leave: Interim Paper 2002 was released in April 2002
in order to consult, inform the debate and examine the options for
paid maternity leave in Australia. Consultations on the Interim Paper
were conducted with major stakeholders in each State and Territory
capital and two regional centres.

The Interim Paper
provides background material on current provisions for paid maternity
leave, statistics on women's arrangements for combining work and family
obligations and information about current government assistance to
families. The Interim Paper discusses the objectives for any national
paid maternity leave scheme. It also outlines a number of criteria
on which a paid maternity leave system could be based and potential
options for establishing a paid maternity leave system in Australia.
It raises questions and seeks input from interested people, organisations
and agencies.

The paper has
generated a great deal of interest within government, the media and
the community.

A final options
paper will be produced at the end of 2002.

Race and gender intersectionality

The Commissioner
attended the United Nations World Conference Against Racism, Racial
Discrimination, Xenophobia and Related Intolerance held in August
and September 2001 in Durban, South Africa.

In preparation
for the Conference, the Commission produced an issues paper on the
intersection of race and gender, highlighting the gendered nature
of racism. As part of the process focus groups were held with immigrant,
refugee and Indigenous women.

Pregnancy and sport

A ban imposed
on all pregnant players participating in netball competitions by Netball
Australia instigated a national debate about the issues concerning
pregnancy and sport.

The Australian
Sports Commission developed Pregnancy and Sport Guidelines Pregnancy
in Sport: Guidelines for the Australian Sporting Industry aimed
at coaches, sporting administrators and facility managers. The guidelines
address legal, medical and ethical issues surrounding pregnancy and
sport.

The Commission
was represented on the consultation group for the Guidelines, which
were launched in May 2002.

Implementation of the
pregnancy report and the Sex Discrimination Amendment Bill (No 2)
2002

The Commissioner
continued to monitor and implement the recommendations of the Commission's
report of the National Pregnancy and Work Inquiry Pregnant and
Productive: It's a right not a privilege to work while pregnant and
to work with relevant government departments to ensure that progress
is made towards achieving the goals outlined in the Government's response
to the Report.

In particular,
the Sex Discrimination Unit provided advice to the Department of Employment
and Workplace Relations on the development of a brochure entitled
Working Your Way Through Pregnancy. This was undertaken in
response to the recommendation that information be made available
to all workplace participants on their rights and responsibilities
under the Workplace Relations Act 1996, federal awards and
agreements.

In addition,
the Sex Discrimination Unit completed an analysis of the data received
from Office of the Employment Advocate relating to employees' workplace
pregnancy and maternity experiences. The data will be used to inform
future work in this area including the paid maternity leave project.

On 27 September
2001 the Attorney-General introduced legislation to amend the Sex
Discrimination Act 1984 to prevent pregnancy or potential pregnancy
discrimination during the recruitment process and to ensure that breastfeeding
was included under the Act as a characteristic appertaining to sex.
The legislation passed the House of Representatives and was referred
to the Senate during 2001. The legislation lapsed when Parliament
rose for the federal election in November 2001. It was reintroduced
into Parliament in March 2002.

The Sex Discrimination
Amendment Bill (No 1) 2002

The Sex Discrimination
Amendment Bill (No 1) 2002 was prepared in response to the Federal
Court decision of Justice Sundberg in McBain v State of Victoria
et al in July 2000, in which His Honour held that certain provisions
of the Victorian Infertility Treatment Act 1995 were inconsistent
with certain provisions of the Sex Discrimination Act, and to that
extent were inoperative pursuant to section 109 of the Australian
Constitution.

The Bill is intended
to make clear that states reserve the right to restrict single people
and same sex couples from accessing IVF and other assisted reproduction
services. The Bill seeks specifically to exempt from the operation
of the Sex Discrimination Act state legislation that discriminates
on the basis of marital status in relation to the provision of such
services.

The Australian
Catholic Bishops Conference and the Australian Episcopal Conference
of the Roman Catholic Church took proceedings in the High Court to
challenge the decision of Sundberg J. The Commission appeared at the
hearing of Re McBain; Ex parte Australian Catholic Bishops Conference
and Another before the High Court on 5 and 6 September 2001, having
previously been granted leave to intervene. These proceedings are
mentioned below and discussed in detail in the report of the Legal
Section.

The Sex Discrimination
Amendment Bill (No 1) 2001 was passed in the House of Representatives
before it lapsed when Parliament rose for the election in November
2001. The Commission is on record criticising the Bill. The Government
re-introduced the Bill to the House of Representatives on 27 June
2002.

International projects

Trafficking in women and
children

The Commission
was a member of a project design mission for the Australian Agency
for International Development (AusAID), developing a project design
to assist in the prevention of trafficking of women and children in
the South East Asian region. The design mission focused on the legal-policy
infrastructure of project countries and took a human rights and gender
central approach to the issue of preventing trafficking of women and
children. The team, of which the Director of the Sex Discrimination
Unit was a member, travelled to Jakarta, Bangkok, Phnom Penh, Vientiane
and Yangon. The project design document has been submitted to AusAID.

Submissions

Comments to the Senate
Foreign Affairs, Defence and Trade References Committee

On 11 June 2002
the Commissioner contributed comments on behalf on the Commission
for input into the Senate Foreign Affairs, Defence and Trade References
Committee report entitled Japan Politics and Society: Report 2
on the Enquiry into Japan.

Intervention and amicus
curiae functions

The Commission
has the power, under both the Human Rights and Equal Opportunity Commission
Act and the Sex Discrimination Act, to intervene with the leave of
the court in court proceedings that involve human rights or discrimination
issues. In addition, section 46PV of the Human Rights and Equal Opportunity
Commission Act confers on the special purpose Commissioners, including
the Sex Discrimination Commissioner, the function of assisting the
Federal Court and the Federal Magistrates Court in certain cases as
amicus curiae or friend of the court.

With the assistance
of the Sex Discrimination Unit the Legal Section monitors and intervenes
in appropriate matters concerning discrimination based on sex.

Interventions

The Commission
intervened in Re McBain; Ex parte Australian Catholic Bishops Conference
and Another, Human Rights and Equal Opportunity Commission and others
intervening which was heard by the High Court in September 2001.
This matter is referred to above and discussed in detail in the Legal
Section of this Report. The Australian Industrial Relations Commission
heard an appeal about an interim matter in the case of Gunn and Taylor
Pty Ltd v AMWU.

Australian
Industrial Relations Commission intervention - Gunn and Taylor
Pty Ltd v AMWU (interim matter appeal)

The Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union brought
proceedings in the Australian Industrial Relations Commission against
Gunn and Taylor Pty Ltd on behalf of a female employee requesting
an order for equal remuneration for work of equal value under the
Workplace Relations Act.

At first instance,
the employer argued that the employee had an adequate alternative
remedy under the Sex Discrimination Act and the Human Rights and Equal
Opportunity Commission Act or the Victorian Equal Opportunity Act
1995 and that therefore section 170BE of the Workplace Relations
Act ousted the jurisdiction of the Australian Industrial Relations
Commission to determine the matter.

Commissioner
Whelan of the Australian Industrial Relations Commission found that
the remedies available under the Sex Discrimination Act, the Human
Rights and Equal Opportunity Commission Act and the Victorian Act
did not provide 'adequate alternative remedies' to the equal
remuneration provisions of the Workplace Relations Act. The employer
appealed.

The Commission
was granted leave to intervene in this interim matter appeal and appeared
before the Full Bench on 21 May 2002.

The Commission
argued that:

• The Workplace
  Relations Act extended to both systemic discrimination and cases
  of direct discrimination and this contention was supported by section
  40(1) of the Sex Discrimination Act and section 46PW of the Human
  Rights and Equal Opportunity Commission Act.
• The remedies
  available under the Workplace Relations Act are different to those
  available under the Sex Discrimination Act and Human Rights and
  Equal Opportunity Commission Act.

In its decision
of 4 June 2002, the Full Bench of the Australian Industrial Relations
Commission upheld Commissioner Whelan's decision on this interim matter.
The Commission is currently monitoring the progress of the substantive
proceedings.

Amicus curiae function

For the first
time, the Sex Discrimination Commissioner exercised her function as
amicus curiae in the case of Ferneley v Boxing Authority of NSW
& State of NSW. This matter is discussed in detail in the
Legal Section at Chapter 2 of this Report.

In addition,
a number of matters were monitored by the Commission with a view to
considering seeking leave to appear as amicus curiae. Matters monitored
included Song v Ainsworth, Farrell v Travel Corporation, Sandra
Escobar v Rainbow Printing Pty Ltd and Rispoli v Merck Sharpe &
Dohme (Aust) Pty Ltd. For details on these matters see the Legal
Section of this report.

Speeches

A selection of
speeches, seminars and presentations made by, or on behalf of, Commissioner
Goward during 2001-02 are listed below. Further speeches are available
on the Commission's website at www.humanrights.gov.au/speeches/sex_discrim/.

Pregnant Sportswomen
and the Sex Discrimination Act, Australian Sports Commission -
National Forum on Pregnancy and Sport, Canberra, 1 August 2001.

Briefing on
the World Conference Against Racism, Human Rights and Equal Opportunity
Commission, Sydney, 4 October 2001.

Transforming
the Workplace: Cultural Change for Equality, Women Chiefs of Enterprise
International National Conference, Perth, 17 November 2001.

Human Rights
and Economic Development, Committee for Economic Development of
Australia Conference, Melbourne, 12 February 2002.

Human Rights
and Economic Development, Australian Mines and Metals Association
Conference, Sydney, 1 March 2002.

Obligations
under the Sex Discrimination Act, New South Wales Department of
Transport, Sydney, 5 March 2002.

Intersectionality,
Beyond tolerance: national conference on racism, Panel Chair,
Sydney, 13 March 2002.

Role of the
Sex Discrimination Commissioner, Murdoch University Women's Networking
Forum, Perth, 25 March 2002.

Women and
Work: Future Challenges, 25th Anniversary Conference of the New
South Wales Spokeswomen's Program, Sydney, 3 May 2002.

Paid Maternity
Leave: Can it affect Australia's population growth?, Migration:
Benefiting Australia Conference, Sydney, 8 May 2002.

Pregnancy
Discrimination and Sport, Australian Sports Commission, Launch
of the National Pregnancy in Sport Guidelines for the Australian
Sporting Industry, Canberra, 13 May 2002.

National Structures
Protecting Women's Rights, International Council of Jewish Women,
Sydney, 26 May 2002.