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1996 GUIDELINES FOR SPECIAL MEASURES UNDER THE SEX DISCRIMINATION ACT 1984

Legal Legal
Friday 14 December, 2012

1996 GUIDELINES FOR SPECIAL MEASURES
UNDER THE SEX DISCRIMINATION ACT 1984

1.
INTRODUCTION

2.
CRITERIA

3.
CASE EXAMPLES

4.
COMPLAINTS PROCESS

5.
CHECKLIST

APPENDICES:

A:
DEFINITIONS

B: AREAS COVERED BY THE SEX DISCRIMINA T1ON ACT 1984
C: PERMANENT EXEMPTIONS


FOREWORD

This publication, 1996 Guidelines for Special Measures
under the Sex Discrimination Act 1984
, is produced to increase awareness
and understanding of the recently amended special measures provisions
in the Sex Discrimination Act 1984 (SDA). It aims to offer guidance
on the effective implementation of special measures, or measures designed
to achieve equality, in areas covered by the SDA.

Under the SDA, special measures were considered to be discriminatory because
they are measures specifically directed to members of one sex, or persons
of a particular marital status, or pregnant or potentially pregnant women
and not to those persons who fall outside the group targeted by the measure.
The Sex Discrimination Amendment Act 1995 amended the special
measures provision in the SDA to ensure that these measures are, properly
understood as non-discriminatory. The amendment recognises that measures
which aim to achieve equality between a disadvantaged group and those
who are not disadvantaged do not promote discrimination, rather, they
are a crucial means of preventing and eliminating it.

The increasing number of enquiries which I receive about special measures,
has brought to my attention the need to provide explanatory material to
encourage their implementation. I hope that these guidelines will further
the incentive to introduce special measures by offering a means by which
employers, educational institutions, provides of goods, services, facilities
and accommodation and administrators of Commonwealth law and programs
can assess their own equity initiatives for consistency with the SDA.

I would like to acknowledge the work of Cara Seymour
(author) and Kathryn Freytag, Sex Discrimination Policy Unit, for producing
and writing this publication, also, Prudence Borthwick (publication consultant).
I would like to thank Kate Eastman and Mark Nicholls, Legal Section, for
their assistance.

Sue Walpole
Sex Discrimination Commissioner


1. INTRODUCTION

1.1 SHORT TITLE

These guidelines may be
cited as the Sex Discrimination Act 1984 Special Measures Guidelines.

1.2 PURPOSE

The purpose of these
guidelines is to increase awareness and understanding of the recently amended
special measures provisions in the Sex Discrimination Act 1984 (SDA).
They aim to encourage the implementation of measures designed to achieve equality
in employment, education, the provision of goods, services, facilities and accommodation
and in the administration of Commonwealth laws and programs by:

  • explaining the
    importance of sex specific initiatives as a strategy for eliminating systemic
    discrimination;
  • providing criteria
    based on case law to assist in determining when an action or program is likely
    to constitute a special measure;
  • providing case
    examples which illustrate special measures;
  • explaining the
    complaint handling process for complaints of discrimination under the SDA.

Definitions of terms used in these guidelines are provided in Appendix
A.

1.3 INTERPRETATION

These guidelines are issued under section 48(ga) of the SDA which empowers the
Human Rights and Equal Opportunity Commission to prepare and publish guidelines
for the avoidance of discrimination on the grounds of sex, marital status, pregnancy
or potential pregnancy and discrimination involving sexual harassment.

It is important that these guidelines are read in conjunction
with the SDA. They are not legally binding. In any action or proceeding based
on an alleged unlawful act of discrimination under the SDA, a respondent shall
not be protected from a finding of unlawful discrimination if he/she claims
or proves that the act complained of was in conformity with, or in reliance
on these guidelines. The guidelines do, however, provide information based on
case law as to appropriate steps to be taken in order to meet the requirements
of the SDA.
These guidelines do not apply for the purpose of legal determination as to whether:

  • the measure is
    adequate to remedy the inequality it is designed to address;
  • a measure constitutes
    a special measure under the SDA.

This will be a question of fact to be determined on a case by case basis.
Conformity with or reliance on these guidelines does not constitute a prima
facie defence nor a complete defence to an allegation of discrimination under
the SDA.

1.4 DEFINITION

“Special measure”
means a measure (act, practice, program, plan, policy arrangement, mechanism
or activity) taken 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; or
(d) women who are potentially pregnant and people who are not potential pregnant.
[1]

1.5 SCOPE

These guidelines apply to special measures taken in areas
covered by the SDA. Those areas are set out in Divisions 1 and 2 of Part II
of the SDA. Appendix B of these guidelines provides a summary
of those areas.

These guidelines do not apply to areas which are exempt from the operation of
the SDA. Exemptions are discussed in Chapter Two, section 2.2 of these guidelines.
A list of the permanent exemptions to the SDA is provided in Appendix
C
of these guidelines.

1.6 THE SEX DISCRIMINATION ACT 1984

The Sex Discrimination Commissioner and the Human Rights and Equal Opportunity
Commission are responsible for administering the Sex Discrimination Act
1984
(SDA) which prohibits direct and indirect discrimination on the grounds
of sex, marital status, pregnancy and potential pregnancy in specified areas
of public life.

The objects of the Sex Discrimination Act

The objects of the Sex Discrimination Act are:

  • to give effect
    to certain provisions of the Convention on the Elimination of All Forms of
    Discrimination Against Women; and
  • to eliminate
    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, services and facilities, the disposal of land, the activities
    of clubs and the administration of Commonwealth laws and programs; and
  • to eliminate
    discrimination involving dismissal of employees on the ground of family responsibilities;
    and
  • to eliminate
    discrimination involving sexual harassment in the workplace, in educational
    institutions and in other areas of public activity; and
  • to promote recognition
    and acceptance within the community of the principle of the equality of men
    and women.

Grounds of discrimination

The SDA prohibits discrimination on the grounds of:

  • sex;
  • marital status;
  • pregnancy;
  • potential pregnancy;
  • sexual harassment;
  • family responsibilities
    (but only in the area of dismissal from employment).

Areas where discrimination is unlawful

  • Discrimination
    on these grounds is unlawful in the areas of:
  • employment;
  • education;
  • the provision
    of goods, services and facilities;
  • the provision
    of accommodation;
  • the disposal
    of land;
  • clubs;
  • the administration
    of Commonwealth laws and programs; and
  • application forms.
    [2]

Discrimination and equality

The direct discrimination provisions of the SDA make it unlawful
to treat people less favourably on the basis of sex, marital status, pregnancy
or potential pregnancy.[3]

Example:
It is direct sex discrimination to refuse to employ a woman because
she is a woman.

It should be noted that sex, marital status, pregnancy or potential
pregnancy need only be one of the reasons for a discriminatory act.
Direct discrimination can also occur on the basis of characteristics which appertain
generally or are generally imputed to persons of a particular sex or marital
status or women who are pregnant or potentially pregnant. The phrase “characteristics
that appertain generally to” refers to characteristics which are usually
associated or identified with persons in a particular group.

Example:

The
capacity to bear children is a characteristic that appertains generally
to women.

The phrase “characteristics generally imputed to”
refers to characteristics which are generally assumed to be indicative of a
particular group whether that assumption is true or not.

Example:

If
an employer refused to employ a woman because it was assumed that women
leave their jobs to have children, that would be direct discrimination
on the basis of a characteristic generally imputed to women.

Behind these provisions is the idea that formal equality
results where people in the same or similar circumstances, are treated the same.

However, the indirect discrimination provisions make it unlawful
to impose, or propose to impose, a rule or policy which is the same for everyone,
where it has the effect of disadvantaging persons of one sex, or of a particular
marital status, or pregnant or potentially pregnant women, if imposing, or proposing
to impose that rule or policy is not reason in the circumstances. [4]
The burden of proving that the imposition or proposed imposition of the rule
or policy is/was reasonable is on the person who imposed or sought to impose
it.

Example:

An
employer implements a company wide policy that employees’ prospects
for promotion in the company will be dependent on their availability to
work overtime on request. That policy may be indirectly discriminatory
where most women in the company are unable to work overtime because they,
to a greater extent than men, experience conflict with overtime hours
and their family responsibilities

These provisions recognise that identical treatment of people
may produce unequal results and that consideration must sometimes be given to
differences based on sex, marital status, pregnancy and potential pregnancy.
Indirect discrimination is concerned with the effect not the form of the treatment.

At the same time, the SDA protects voluntary actions taken to achieve equality
for women, or between persons of different marital status, or between women
who are pregnant or potentially pregnant and those who are not. The voluntary
actions, or ‘special measures” which the SDA protects, are measures
which have the purpose of addressing disadvantages experienced by members of
one or more of these groups in areas where they have been and continue to be
unequal.

A special measure is a measure (act, practice, program, plan, policy, arrangement,
mechanism or activity) which is taken for the purpose of achieving substantive
equality
between these groups. The concept of substantive equality
recognises that creating equal opportunities for people or treating people equally
may lead to serious inequality for groups that have been disadvantaged by a
system which fails to take their situations and perspectives into account. Substantive
equality is concerned with changing aspects of that system which have disadvantaged
particular groups. It is concerned with equality of outcomes whereas formal
equality is concerned with equal treatment regardless of the outcomes. [5]

Previously, it was thought that the existence of the “special measures”
provision in the SDA created a tension. On the one hand, the direct discrimination
provisions suggest that sex, marital status, pregnancy or potential pregnancy
should not be a basis for differential treatment while on the other, the special
measures provision protects different treatment on those grounds. For this reason,
special measures were considered to be discriminatory but exempt under the Act.

This produced the unsatisfactory result that measures aimed
at redressing past discrimination and ensuring that women or persons of a particular
marital status or women who are pregnant have equal opportunities with others,
required exemption from an Act which aims to eliminate discrimination against
those groups. The provision referred only to “equal opportunities”,
the purpose of special measures was not well understood and narrow interpretations
of the section by courts and tribunals inhibited initiatives to achieve equality
for women.

The Sex Discrimination Amendment Act 1995 amended the special measures
provision in the SDA to ensure that these measures are properly understood as
non-discriminatory. The amendment is in recognition of the substantive difference
between providing benefits for a dominant group (promoting discrimination) and
redressing the inequality experienced by a disadvantaged one (eliminating discrimination).

The amendment makes clear that special measures are measures intended to achieve
substantive equality. For example, in many areas, existing social structures
and institutions do not take into account the perspectives of women or adequately
cater to their needs with consequent sex-based inequality or “systemic
discrimination”
. Measures designed to redress that inequality
should not be considered as special benefits which discriminate against men.
In this context, men have not experienced the particular disadvantage which
the measure aims to redress. The aim of special measures is not to discriminate
by conferring favours but rather to achieve equal outcomes
for people who have been disadvantaged people who have not.

The SDA now provides a framework for the resolution of this tension between
discrimination and special measures in accordance with the objects and spirit
of the Act. The new provision is specifically designed to save initiatives to
promote equality from attack on the ground of discrimination It is hoped that
this change will act as an incentive for employers, educators, providers of
goods, services, facilities and accommodation and administrators of Commonwealth
laws and programs to implement special measures. These guidelines are issued
to further that incentive by providing practical assistance to those who wish
to do so.


2. CRITERIA

2.1 WHAT IS A SPECIAL MEASURE?

A special measure
is a type of affirmative action. Affirmative action may be defined as
the systematic identification and elimination of the institutional barriers
that women and minority groups encounter in areas of public life.

Special measures
encompass a broad and diverse range of actions which focus on the root
cause of unequal outcomes. They require people to look to structural barriers
to equality or systemic discrimination. The actions which fall within
the ambit of special measures are many, varied and difficult to articulate
because the problem they are designed to address systemic discrimination,
involves a complex interrelationship of directly and indirectly discriminatory
practices.

For this reason,
it is only possible to determine with any certainty that a measure is
a special measure on a case by case basis. The following outline of criteria,
which are illustrated by case examples provided in Chapter Three, are
intended to provide general guidance on issues likely to be considered
in determining whether a special measure exists.

Purpose of the
measure

  • The measure must be
    taken for the purpose of achieving substantive equality. [6]
  • The purpose of achieving
    substantive equality does not have to be the “sole” (only) purpose
    or the “dominant or substantial” (main) purpose of the measure.
    [7]

Example:

A
women’s health centre may be set up for the purpose of providing
health care and at the same time have the purpose of redressing inequality
experienced by women whose health needs have not been adequately met by
generalist health services.

  • The measure must not
    be taken for a purpose which has been achieved. The identified inequality
    which the measure is designed to address must still exist for the measure
    to be justified. [8]

Identifying inequality

The legal definition of
a special measure requires that it be a measure taken for the purpose of achieving
substantive equality between men and women, people of different marital status
or women who are pregnant or potentially pregnant and those who are not. It
also provides that where substantive equality exists, there is no justification
for the measure. Clearly then, the basis of the measure must be an existing
inequality experienced by people in the designated groups. Those who wish to
implement a special measure must have a clear idea of the problem which their
action is designed to redress. This requires an analysis to determine whether,
in the relevant area (service delivery, employment etc.), there are practices
which do, or tend to, exclude, disadvantage, restrict, or result in an adverse
effect on people in those groups, or leave uncorrected the effects of past discrimination
against them.

There is no mandatory
method under the SDA for conducting an analysis to identify inequality. Any
analysis or study, whether formal or informal, showing an awareness, either
through numerical evidence or otherwise, that individuals are not achieving
equal outcomes with others in a particular area and that the disadvantages they
experience are based on or related to their sex/marital status/pregnancy or
potential pregnancy is sufficient. The most important aspect of identifying
substantive inequality is to look at the overall effect of
current practices and to trace unequal outcomes to their source.

Example:

A
number of recent studies have shown that more women than men graduate
from law school and that women achieve higher results at law school. Yet,
far more men than women reach senior positions in law firms. For the purposes
of implementing a special measure to redress the situation, an analysis
would need to determine what factors are behind these unequal outcomes
and identify any employment practices which are responsible for or contribute
to that inequality.

Reasonable basis

If the analysis shows that
practices exist in the relevant area, which do, or tend to result in and perpetuate
substantive inequality, the person making the analysis has a reasonable basis
for concluding that action is warranted.

These are important points to note:

  • the criteria for special
    measures are sufficiently broad to cover societal discrimination;
  • there does not have
    to be a prior formal finding of discrimination to justify a special measure;
  • there does not have
    to be sufficient evidence to make a prima facie case of discrimination
    to justify a special measure;
  • a special measure does
    not have to be based on an admission of a person’s own discriminatory
    practices;
  • the people for whom
    the special measure is intended do not have to be the victims of the specific
    discrimination which the measure is designed to address.

Example:

An
employer in a computer company may decide to implement an education and
training program to assist women re-entering the paid workforce after
leaving to have children. The employer has noted that across the industry,
the employment and promotion prospects of women who have interrupted their
employment have been impaired because they were not up to date with the
constant changes in computer technology. The purpose of the program is
to ensure that women in this situation be kept abreast of new developments
in the industry. This may be a valid special measure even though none
of the female employees in the company have actually experienced this
discrimination.

Reasonable action

The action taken as a special measure must be reasonably related to the inequality
identified. That is, the solution should be tailored to the problem. The question
to ask is what action can be taken to ensure equal outcomes. In considering
whether a particular measure is reasonable or appropriate in the circumstances,
there are a number of points to note:

  • there is no test under
    the SDA to determine whether the measure taken for the purpose of achieving
    substantive equality is an effective or necessary means of fulfilling that
    purpose;
  • The Commission is not required
    to determine whether the special measure is in fact necessary or wholly suitable
    for achieving that purpose;
  • what is required is
    that those who undertake the measure do so with that purpose in view and that
    it is reasonable for them to conclude that the measure would further that
    purpose. [9] Whether this requirement has been met is a question
    of fact to be determined on a case by case basis.

It is more likely that
a person who undertakes a measure will meet this requirement if they have:

  • a comprehensive analysis
    of the inequality which the measure is designed to address;
  • a carefully planned
    and implemented measure;
  • an explanation of the
    way in which the measure will achieve the purpose;
  • ongoing evaluation
    methodology to determine whether equality has been achieved.

The special measures
provision is designed to protect and encourage voluntary action, and therefore
provides for flexibility in the way special measures are implemented

The terms of the special
measures provision are sufficiently broad to cover a range of actions. Special
measures may include actions which are narrowly directed to disadvantages experienced
by a group of women within an organisation, such as a program to redress a disproportionately
small number of women in a particular company, or broad measures directed to
widespread disadvantage experienced by a group, such as a government departmental
education and training program for women in male dominated industries.

The purpose of a special measure is to ensure that employment practices, service
delivery, program delivery and so on, operate fairly, but the action taken should
not result in unnecessary adverse effects on individuals who are not members
of the groups targeted by the measure.

Example:

An
employment program for women should not require the discharge of an incumbent
male employee to make a position available for a woman.

The action taken does not
have to be part of a specific affirmative action plan or a formal written plan.
Less formal arrangements are covered. However, more formal arrangements often
make it easier to provide credible evidence that the action taken meets the
requirements of a special measure.

Formal affirmative action
plan example:

The Affirmative
Action Agency which is responsible for administering the Affirmative Action
(Equal Employment Opportunity for Women) Act 1986 has published a useful
report to assist employers establish and report on their affirmative action
initiatives. The report,
Your Issues Your Directions: Developing
an effective affirmative action program (Affirmative Action Agency
Model Directions Series, Commonwealth of Australia, 1995.) provides practical
guidance about the process for implementing an effective employment affirmative
action program. The report provides that a program should contain a policy
statement from senior management expressing the organisation’s commitment
to affirmative action and how the particular measure or program is related
to the organisation’s wider objectives. All employees should be
aware of that policy statement. In order to identify areas where policies
and practices are contributing to inequality, an organisation should begin
with an examination of the organisation’s employment profile, an
examination of statistics such as turnover of employees, recruitment and
promotion rates of pay and consultation with employees.

The second stage
of the process recommends that employers measure their statistics to find
out why there is an imbalance in their employment profile, whether their
policies and practices are effective and what their targets should be
The third stage of the process involves consultation with employees through
surveys or focus groups, preferably with union involvement, to collect
information concerning any barriers that have not been evident in the
investigation process and to discuss potential solutions with staff and
union representatives. The final stage involves linking problems with
practical solutions.

2.2 WHAT IS NOTA SPECIAL MEASURE?

Mandatory affirmative
action

Affirmative action programs
are often categorised as “hard” or “soft”. The former
mandate particular results, sometimes through the imposition of quotas. Mandatory
programs have characterised affirmative action in the United States. “Soft”
affirmative action programs specify targets and goals only and encourage and
protect voluntary action to achieve them. Affirmative action programs in Australia
generally take this form. Special measures are designed to encourage and protect
voluntary affirmative action rather than mandate or require it. This is an important
distinction which must be clearly understood.

Example

A
nationwide survey of universities shows that there continues to be a
disproportionately low number of women in the traditionally male dominated
engineering faculties.

Quotas

To
redress the imbalance, legislation is enacted requiring engineering
faculties in all universities to reserve a specified number of places
for women students in the next intake. This would be a mandatory affirmative
action pro gram based on quotas.

Special
Measures

Engineering
faculties in a number of universities aim to even up the numbers by
offering five scholarships for women each year to encourage women into
the faculty until there is a significant increase in the number of women
electing to study engineering. This would be a special measure.

This example illustrates
one important difference between quotas and special measures. Quotas focus primarily
on numbers: redressing statistical imbalance, sometimes at the expense of the
merit principle. Special measures usually accord to members of a particular
group an advantage in an otherwise competitive process, while quotas remove
certain positions or privileges from competition altogether.

Exemptions

Division 4 of Part II of the SDA provides for three different classes of exemption:
permanent exemptions, exemptions for specified acts done under statutory authority
and temporary exemptions on application to the Commission.
There are fundamental differences between exemptions and special measures.

1. Exemptions,
and in particular permanent exemptions are in conflict with the overall spirit
and objects of the SDA which include the aim of eliminating discrimination “so
far as is possible”. Exemptions allow sex discrimination in certain spheres
of activity. Provision for exemptions to the Act was made to ensure its passage
through Parliament and to enable certain areas of public life to make the changes
necessary to ensure consistency with the Act. Special measures are aimed
at eliminating discrimination and are not in conflict with the objects of the
Act.

2. Exemptions
make it lawful to do a discriminatory act but do not make the act non-discriminatory
whereas an act that is a special measure is lawful because the act itself
is non-discriminatory.

3. The
granting of an exemption provides a complete defence to a subsequent
complaint of unlawful discrimination whereas a special measures determination
cannot be made before a complaint of discrimination is investigated

(see complaints process below).

4. Exemptions
cannot be granted retrospectively. If a formal complaint alleging discrimination
has been lodged with the Commission and it is found that the acts or practices were
discriminatory and unlawful at the time the complaint was lodged, an exemption
granted after that time will not affect the outcome of the complaint. It will
only protect against future complaints of discrimination being lodged against
the act or practice. A special measures determination occurs after the
complaint is lodged and affects the outcome of the complaint.

Permanent exemptions

The SDA contains a number
of permanent exemptions which are set out in Appendix C. Permanent exemptions
can only be removed by legislative amendment to the SDA. Some exemptions for
acts done under statutory authority specify the termination date for the exemption
in the SDA itself.

Temporary exemptions
Section 44 authorises the Commission to grant administrative exemptions for periods
not exceeding five years upon such terms and conditions as it considers appropriate.

The Commission exercises the
power to grant exemptions in a way which is as consistent as possible with the
objects of the Act. While all applications are considered on their merits, the
Commission will seldom consider it necessary or appropriate to grant any person
or organisation a general licence to discriminate. To do so would undermine
the objects of the SDA. Consequently, these exemptions are rarely granted
and strictly limited.

Persons or organisations applying for an exemption should set out the reasons
why the exemption is required, together with any relevant evidence in support.
The reasons should state why it is not possible immediately to comply with the
Act. It is also advisable that the application address why other non-discriminatory
means are not available or are inadequate to achieve a satisfactory result to
the matters which are the subject of the proposed exemption.
The Commission is unlikely to grant an exemption that is sought by applicants on
a speculative basis, based on a possibility or probability that direct or indirect
discrimination will occur. The granting of exemptions must be tied to a particular
set of facts which exist or are highly likely to exist. Exemptions will only
be granted in carefully defined situations.

In granting a section 44
exemption, the Commission must set out in writing and publish:

  • its findings on the
    relevant facts in the matter;
  • all the evidence upon
    which these findings of fact are based; and
  • the reasons for its
    decision.

The decision of the Commission
about whether or not to grant the exemption is reviewable by the Administrative
Appeals Tribunal (AAT).

This means for granting
exemptions is important in that it recognises the extraordinary nature of exemptions.
Exemptions should be subject to conditions, limited in duration and capable
of being monitored and reassessed at regular intervals. Review by the AAT provides
an additional level of scrutiny.

The following provides
a clear example of the rationale for limiting the circumstances in which exemptions
will be granted.

Example:


The lead industry has historically excluded women from employment on the
grounds that lead, which is hazardous for all workers, is particularly
dangerous to the foetus. At the time when the SDA came into force on 1
August 1984, women were prohibited from employment in the lead industry
by State legislation. In recognition of the need to provide an opportunity
for governments to review and amend existing discriminatory legislation
and policy, section 40 of the SDA provided an exemption from the Act where
a person was acting in direct compliance with any Federal or State law
in force at the commencement of the SDA. This exemption ceased to have
effect after 1 August 1986 unless regulations were made under section
44(2) of the SDA to extend the period of exemption.

The
National Occupational Health and Safety Commission (NOHSC) sought to formulate
a new national occupational health and safety standard. The NOHSC issued
a public discussion paper to assist in the formulation of the standard.
However, the central assertion in the paper was that it was impossible
to comply both with occupational health and safety standards and the SDA.
The NOHSC stated that the SDA must be amended to allow a permanent exemption
for the industry.

The
HREOC submitted that rather than amending the SDA, it would be more appropriate
to provide a temporary exemption so that the NOHSC could seriously attempt
to address discrimination in the industry.(For a discussion of the lead
industry exemption see Occasional Papers from the Sex Discrimination Commissioner
- Number 5: “Discrimination against Women in the Lead Industry”,
HREOC, November 1990.)

A
standard for the control of inorganic lead in the workplace has now been
redrafted and issued as a national standard by the NOHSC. It applies a
test which refers to the reproductive health of both men and women and
is designed specifically to work so that occupational health and safety
standards can be met with the least possibility of a breach of the SDA.
Only if it is absolutely not possible to comply with both, may the industry
apply to the Commissioner for a temporary exemption. Had a permanent exemption
been granted, there would have been less incentive to find strategies
to reduce discrimination against women in employment in the lead industry.


3.
CASE EXAMPLES

These guidelines refer
to special measures in areas covered by the SDA (see Appendix B). This section
sets out those areas and provides case examples of actions which are likely
to be special measures in some of those areas. It should be noted that
actions which are lawful special measures under the SDA may be unlawful actions
under State anti- discrimination legislation. Any person who wishes to implement
a special measure should ensure that the measure is not unlawful under State
law. Contact details for the equal opportunity and anti- discrimination bodies
in each State are provided in Appendix D.

3.1 WORK

Division 1 of Part II
of the SDA sets out the areas of work covered by the Act. This division of the
Act is divided into sections which relate to different types of work and to
work-related organisations. [10]

Employment

Section 14 covers employment
including selection and recruitment of employees, the terms and conditions of
employment, career development opportunities such as promotion, transfer and
training, the dismissal of employees and superannuation.

The SDA specifically includes full-time, part-time and temporary employees.
Casual employees are also covered by the Act. [11] Volunteer
workers are not employees and are not therefore protected under the SDA. [12]

Section 106 also provides that an employer is vicariously liable (legally responsible)
for the unlawful acts committed by employees in the course of their employment.

Case
Example:

Identifying inequality

A
television station is concerned that there is a continuing significant
under representation of women in engineering and technical positions (less
than 5%). The organisation draws up an Equal Employment Opportunity Management
Plan confirming the need for special initiatives and recruitment strategies
to ensure women‘s equitable participation and representation in
all areas of employment within the organisation. The organisation conducts
an analysis of its recruitment and selection procedures and collects statistics
on the potential pool of qualified women applicants in the labour force
as a whole. The managers in the relevant areas then conduct a survey to
be filled out anonymously by current staff

Reasonable basis

On
the basis of the information collected, management identifies a number
of possible causes for the under representation of women in technical
and engineering areas including:


  • that the organisation does not fully advertise all positions through
    an agency or CES to ensure that women with the skills know that jobs
    are available, but rather recruits from a list of those who have worked
    in the area and are currently looking for jobs;

  • that the selection criteria for the jobs places an unnecessary emphasis
    on previous experience in the industry or the particular position;
  • that
    the culture in this area of work is not accepting of women; and

  • that there is a lack of women with the required skills in the area.

Reasonable
action

The organisation wishes to take a range of actions with the purpose of
attracting and retaining larger numbers of qualified women in engineering
and technical positions. The first and second problems identified can
be addressed through non-sex specific strategies: advertising through
an agency and emphasising skills and qualifications in selection rather
than previous experience. The third problem is to be dealt with through
cultural change and anti-discrimination training for existing employees
and the introduction of policies that may attract female applicants, such
as flexible work practices, the introduction of part-time work and family
leave.
To address the fourth problem the organisation decides to introduce sex
specific strategies to increase the recruitment pool of women by:


  • providing traineeships for women in television production operations;

  • conducting education initiatives for women such as visiting schools,
    TAFE colleges, CES and universities to explain the nature of the work,
    the knowledge which is required and to encourage women to apply for
    positions in the organisation;
  • offering
    scholarships to women enrolled in the final year of relevant tertiary
    studies such as electrical engineering;
  • advertising
    positions which encourage women to apply;

  • targeting a maximum of two base grade positions to be filled by women
    in technical areas.

The
television station would argue that these strategies are likely to be
special measures, should a complaint be made.

Commission agents,
contract workers

These areas are covered
in sections 15 and 16 of the SDA respectively. Like the employment provisions
in the Act, they include recruitment and selection processes, terms and conditions
of the work provided, career development opportunities associated with the work
and termination of the work.

Partnerships

Section 17 of the SDA deals
with partnerships or proposed partnerships of six or more persons. The section
covers extending invitations to people to become partners, determining who should
become a partner, the terms and conditions of the partnership, accessing benefits
arising from the partnership and expelling a partner from the partnership.

Case
example:

Identifying inequality

A
partner in a firm of chartered accountants announces his retirement. The
women in senior management in the firm are concerned that despite a significant
proportion of women managers in the firm, there are no women partners.

Reasonable basis

Management
has identified a number of employment practices contributing to this under
representation in the partnership including:

  • the
    tendency for decision-makers in selection processes to choose people
    most like themselves;

  • the assumption that women will be less able to make the necessary
    commitment to the firm because of their existing or potential family
    responsibilities;

  • the firm’s policy of promotion to partnership based on seniority
    and length of service rather than merit.

Reasonable
action

The
partners respond to management’s concerns by issuing a circular
to all staff stating that as part of their commitment to the equitable
representation of women at all levels of the firm, they are implementing
a new policy on partnerships.
As a general rule:

  • all
    senior managers will be eligible for consideration as partners in the
    firm;

  • existing partners will ensure that they do not assess potential partners
    on the basis of discriminatory assumptions about women and will take
    into account concerns raised by women in senior management on this issue;

  • eligibility will be based on demonstrated knowledge and management skills
    rather than seniority or length of service.

In
the immediate instance:

  • women
    in senior management who possess the required high level of knowledge
    and skill will be favoured for the vacant partnership position and for
    subsequent vacancies which may arise until the number of male and female
    partners is approximately equal.

Qualifying bodies

Section 18 of the SDA covers
authorities or bodies that are empowered to confer, renew, extend, revoke or
withdraw a qualification or authorization that is needed to practise a profession,
carry on a trade or engage in an occupation. The section deals with the refusal
or failure to provide a qualification or authorization, the terms and conditions
on which it is provided, the revocation or withdrawal of the qualification or
authorization and the variation of the terms on which it is held.

This section refers to
bodies such as universities, TAFE colleges and other vocational education and
training organisations which provide degrees, diplomas, practising certificates
or trade certificates which a person needs to perform their job (see case example
below).

Case
example:

Identifying inequality

An
Australia wide analysis of women in trades shows a significant disparity
between the increasing number of women qualifying for trade certificates
in the metal trades industry, and the small number of women being employed
in the industry.

Reasonable basis

The
study identifies as a major cause of the under employment of qualified
women, the fact that it is industry practice to recruit using selection
criteria heavily weighted towards previous experience in the industry.

Reasonable action

A
technical college which conducts vocational education and training for
trades and confers trade certificates implements a program for women,
which provides that on qualification from the course, women will be entitled
to take part in an employment placement program to gain necessary work
experience in the industry. Participants in the program will receive trade
certificates with an additional clause in recognition of their on-the-job
experience.

Registered organizations
under the Industrial Relations Act

Section 19 of the SDA covers
membership of registered organizations (such as a union) and membership of committees
of management of registered organizations. In particular the section deals with
applications for membership, the terms and conditions of membership, access
to the benefits of membership, denying or varying the terms of membership (see
case example below).

Case
example:

Identifying inequality

The
National Executive of a union identifies a significant under representation
of women elected to the National Executive and Branch Executive bodies
of the union so that the interests of women in the industry are not being
properly represented.

Reasonable basis

The
union attributes the under representation to a number of structural barriers
to women’s advancement including the traditionally male-dominated
nature of the industry, the male- dominated membership of the union and
the majority voting system for electing representatives to the Executive
bodies.

Reasonable action

The
union proposes a new rule which will reserve for women a senior position
on the National Executive and one position on each Branch Executive body
which can only befitted by a woman and for which only women members can
vote until equal representation is achieved. The union provides a submission
to the Industrial Relations Commission which has the power to disallow
changes to union rules if they would be contrary to law. If the new rule
is a special measure it will not be contrary to the SDA.

Employment agencies

Section 20 of the SDA covers
the actions of employment agencies (private employment agencies as well as the
Commonwealth Employment Service). These actions include the provision of any
of its services, the terms and conditions on which the services are provided
and the manner in which those services are provided.
Division 2 of Part II of the SDA covers areas other than work.

3.2 EDUCATION

Section 21 of the SDA
covers the treatment of students by educational authorities with regard to applications
for admission, the terms and conditions of admission, access to benefits provided
by the educational authority and expulsion of students.
The SDA does not apply to the admission of members of one sex to institutions
which are conducted for members of the opposite sex only.

Section 21 covers private,
State and Commonwealth educational institutions. However, the Act does not cover
educational institutions established for religious purposes such as religious
schools. Most educational institutions are regulated by the State governments.
Educational institutions established under Commonwealth law are the Australian
National University and the University of Canberra. State educational institutions
are also covered under State anti-discrimination legislation.

Case
example:

Identifying inequality

An
educational institution runs a course which provides retraining and vocational
education for people who have been out of the paid workforce for a significant
period of time for reasons such as unemployment or family responsibilities.
The course co-ordinator notes that the rate of absenteeism for classes
is significantly greater for women than for men.

Reasonable basis

Because
of the small number of facilities available, the course sets aside a specified
number of places for day classes and for night classes. A survey of students
reveals that the cause of women’s absenteeism is their frequent
inability to attend night classes because of their family responsibilities.

Reasonable action

The
course co-ordinator implements a policy whereby the women have preference
in the choice of class times provided this does not prevent a male student
from attending the course altogether.

Case
example:

Identifying inequality

A
scientific research organisation is concerned by the small number of women
in high level research positions in chemistry in the organisation.

Reasonable basis

A
review of employment practices reveals that a cause of this under representation
is the small number of women with the level of post graduate studies in
chemistry required for the positions.

Reasonable action

The
organisation provides funding to a Research School of Chemistry in a university
to offer women research grants for PhD studies in areas identified by
the organisation

3.3 GOODS, SERVICES AND FACILITIES

Section 22 of the SDA
covers the provision of goods, services and facilities. It is concerned with
whether or not goods, services or facilities are provided, the terms on which
they are provided and the manner in which they are provided.

Case
example:

Identifying inequality

A
local council is informed by the police station of a marked increase in
incidents of domestic violence in the area. 90% of the victims of the
violence are women. The police are concerned that their female officers
are increasingly being called upon to act as informal counsellors to women
who are the victims of this violence, in preference to the qualified counsellors
provided by the local community legal and resource centre run by the council
with State government funding.

These
women have told women police officers that the local council’s centre
which provides counselling for men and women across a broad range of issues,
does not adequately cater to their particular needs. In addition, the
women are having difficulty obtaining legal advice and representation.


Reasonable basis

The
local council conducts an analysis of the staffing structure and budget
allocation in the centre and a survey of clients. It finds that:

  • the
    management and staff of the generalist service provided by the council
    are male-dominated and in particular, there are very few women lawyers
    or counsellors;

  • the way in which funds are allocated indicates that women’s issues
    are often seen as peripheral and it is difficult to get funds committed
    to women’s resources;

  • there are no staff who specialise in domestic/family violence or sexual
    assault in the centre;

  • there is a lack of appropriate and relevant information about sexual
    assault and domestic/family violence so that women are able to make
    informed decisions about possible courses of action;

  • the women have had difficulty in securing legal representation in violence
    cases because of the centre’s conflict of interest policy which
    provides that where the centre is representing a man who has violence
    charges against him, it will not also represent the alleged victim of
    the violence;

  • many of the women who have been subjected to violence by a man do not
    feel comfortable discussing their situation with a male lawyer or counsellor;

  • some of the women who had been subjected to violence by a male partner
    did not want to access a generalist service where other men in the local
    area would be aware that they had been subjected to violence by their
    male partner or were seeking to take legal action against their male
    partner.

Reasonable
action

The council decides to establish and seek government funding for a women’s
legal and resource centre run by women, for women in the area, to provide
legal advice, legal representation, resources, information, counselling,
support networks and referral services. In particular, the centre will
provide women who have been subjected to domestic/family violence and
sexual assault with access to appropriate and accessible legal representation,
legal advice and referral.

The centre will have the advantage of providing a specialised service
in an atmosphere of mutual support and understanding. It will also avoid
the need for expensive private representation where a woman in a conflict
of interest situation chooses to pursue the case.

The
council prefers the option of establishing this separate service for women
to targeting employment positions for women lawyers and counsellors within
the generalist service on the basis that women who work in these centres
would be better supported, resourced and ultimately better informed about
women’s issues than those who attempted to assist women within the
generalist service.

A
separate service will also provide a place where women can discuss and
share their own concerns, experiences, needs and different strategies
for dealing with violence against them in a supportive environment, without
feeling guilty or concerned that men in the community will know or presume
that they are seeking to take action against a male partner.

3.4 ACCOMMODATION

Section 23 of the SDA applies
to the provision of accommodation whether the person providing the accommodation
to another person acts as a principal or an agent (such as an owner or a real
estate agent). In particular, the section covers the consideration and acceptance
of applications for accommodation, the conditions on which accommodation is
provided and evictions from accommodation.

The section does not cover
accommodation provided for near relatives, or by a religious body, or by a charitable
or non-profit organisation where the accommodation is only provided to persons
of one sex or of a particular marital status.

The section covers private
accommodation and State and Commonwealth government housing. State housing is
also covered by State anti-discrimination laws.

Case
example:

Identifying inequality

A
national survey conducted for the Australian Institute of Family Studies
concludes that women, to afar greater extent than men, have difficulties
securing adequate housing on relationship/marriage breakdown.

Reasonable basis

The
study identifies a number of socio-economic factors which contribute to
this problem.
Women experience higher rates of poverty on relationship breakdown largely
because they, to a greater extent than men, take time out from paid work
to care for children and perform unpaid work in the home. The unpaid work
performed largely by women allows male partners to participate to the
full in the paid workforce.

However,
this factor is seldom recognised in calculating each partner’s financial
contribution to the relationship. The unpaid contribution to the financial
assets of the marriage relationship is not valued by the legal system
to the same extent as paid work performed by men.

Largely because of their unpaid work, single mothers and women who have
continued throughout the marriage to participate in paid work, often work
on a part time or casual basis with obvious consequences for remuneration
and status. Even where women work full time, they continue to earn less
than men, on average, in all categories of earnings, all components of
earnings and all industries and occupations.

Consequently, women often find themselves in a precarious financial situation
after divorce or relationship breakdown. Additional hardship arises because
women generally continue to care for the children of the relationship
as sole parents and, in the face of inadequate and expensive formal child
care, must attempt to find employment which enables them to combine work
and family.

Women in this situation have difficulty finding adequately paid employment
which is the basis on which private accommodation is provided. Public
accommodation is provided for those who are unable to meet the financial
commitments of private accommodation.

However,
public housing is insufficiently available and there are massive waiting
lists. Conditions are often overcrowded and there is a high incidence
of depression related illnesses, suicide and violence.

Reasonable
action

A group of women who are sole parents are concerned by the accommodation
options for women who experience financial hardship. They decide to apply
to the State housing service for grants to establish a “Women’s
Housing Co-operative” The co-operative aims to work with State housing
to implement a financial model to fund other existing and future housing
co-operatives for women around the State. Although there are other housing
co-operatives, this would be the only housing co-operative for one sex
only.

The co-operative will provide secure, tenant managed housing for members
of the co-operative as an alternative to public housing. Each person in
the co-operative will be expected to pay rent while the co operative plays
a managerial role and pays insurance, rates, electricity etc. The rent
from the houses is expected to fund 30% of the total capital for the co-operative.

The co-operative will have a membership system in which all members are
women. Men are not excluded from living in the houses, but they are unable
to have membership and therefore to hold a lease.

The co-operative primarily aims to assist women, and particularly women
who are sole parents, who experience a loss of control over their financial
security and their housing situation upon relationship breakdown. The
co-operative provides a supportive environment which provides childcare
to members so that women are better able to gain employment and establish
financial independence. The purpose of the membership system is to ensure
that the women both gain and maintain control over their housing. The
membership system serves the purpose of acting as a safety net for women
should they enter into another relationship which breaks down in the future
because it ensures that they still hold the lease.

3.5 LAND

Section 24 of the SDA
covers the disposal, by a principal or agent, of an estate or interest in land.
The principal or agent must not discriminate by refusing or failing to dispose
of the estate or interest or by disposing of the estate or interest on less
favourable terms and conditions.

3.6 CLUBS

Section 25 of the SDA
covers membership and access to the benefits and facilities of a club and the
committee of management of a club including applications for membership and
the terms and conditions of the membership, access to benefits and facilities
provided by the club, depriving membership or varying the terms of the membership.
However, the section does not cover clubs which only offer membership to members
of one sex.

3.7 COMMONWEALTH LAWS AND PROGRAMS

Section 26 of the SDA
deals with the performance of functions or powers under a Commonwealth law or
program, or any other responsibility for administering a Commonwealth law or
conducting a Commonwealth program.
The section covers any program or scheme which is funded or administered by
the Commonwealth government and applies even if the program is run through a
private sector organisation or State government department. [13]

Case
example:

Identifying inequality

The
Commonwealth Government Department of Health conducts an Australia wide
survey of women’s health. The survey is designed to determine whether
women have particular health needs as the result of either physiological
or socio-economic factors and whether the current system is meeting those
needs. The women surveyed identify several major areas of concern.

The
survey clearly indicates that current health service delivery does not
adequately cater to women’s health needs in those areas. These areas
include women’s reproductive health and sexuality, the health of
ageing women, violence against women, occupational health and safety and
the health needs of women as carers.

Reasonable basis

The
survey identifies current practices which are responsible for inadequate
service delivery in the area of women’s health. It notes that:


  • there are too few services with knowledge and expertise in women’s
    health;

  • there is inadequate health information for women;

  • there is a lack of sensitivity to and understanding of women’s
    health needs in generalist medical services;

  • there is inadequate research conducted and data collected on women’s
    health;

  • health care providers do not receive adequate training in women’s
    health issues;
  • women
    are not well represented in the key decision-making processes on health.

Reasonable
action

The
Commonwealth Government launches a National Women’s Health Program
which is designed to address major health issues identity by Australian
women in the national survey.
As part of the Program, State Governments receive Commonwealth government
funding to establish women’s health centres in a number of areas
around their State. The health centres are set up to provide:


  • an information and referral service on women’s health issues and
    child care;

  • a women’s counselling service with women counsellors including
    specialists in domestic violence, child care and I women’s emotional
    and mental health needs;

  • a professional clinical health service provided by women medical practitioners
    for women.


4.
COMPLAINTS PROCESS

This section explains the
process which is followed should a complaint of discrimination be lodged against
you.

4.1 LODGING A COMPLAINT

Who can lodge
a complaint?

Complaints can be lodged by:

  • individuals on their
    own behalf;
  • individuals on behalf
    of themselves and others with the same complaint;
  • two or more people,
    on their own behalf or on behalf of others also;
  • members of a particular
    class of people, on behalf of the class (called “representative complaints”);
  • a trade union on behalf
    of one or more of its members.

Requirements for
lodging a complaint

For a complaint to be lodged it must be:

  • a complaint in writing;
  • lodged with the Human
    Rights and Equal Opportunity Commission;
  • alleging that a person
    has done an act which is unlawful under Part II of the SDA which deals with
    prohibited discrimination;
  • lodged by an aggrieved
    person or persons.

There are three points
to note about these last two requirements:

1. Allegations
of unlawful discrimination

As long as a person alleges
that an act has occurred which, if it were proved, would be unlawful sex discrimination
under the SDA, the person has a prima facie case and the complaint
must be referred to the Sex Discrimination Commissioner, even if it is plain
to the Commission that the allegation is misconceived, wrong in law or in some
other way defective.[14] Special measures usually appear,
at first instance, to be discriminatory because they are designed specifically
to cater to members of one sex, to persons of a particular marital status or
to women who are pregnant or potentially pregnant. In the interests of natural
justice, a complaint against such a measure will be accepted and investigated
even if it appears at first glance that the measure may constitute a non discriminatory
special measure.

2. When is a person
aggrieved

An aggrieved person is
a person who alleges that they have been discriminated against. For example,
a man claims that he has applied for a Commonwealth training program for women
and that his application has been rejected because he is a man. Where the man
has not yet applied and been rejected from the program he is not an aggrieved
person. [15]

3. Limits on male
complainants

The Commonwealth Government
cannot make laws about anything it likes. The Commonwealth Government’s
law-making power is derived from section 51 of the Australian Constitution which
sets out the areas about which it has power to legislate. The Commonwealth Government’s
power to implement international treaties (to make them part of Australian law)
is conferred upon the Commonwealth by s51 paragraph (xxix) of the Constitution:
the external affairs power. The exercise of the external affairs power and Australia’s
obligations under the international Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) provides much of the constitutional
foundation of the SDA. The Act also relies for its validity, on other heads
of power such as those relating to regulation of the Commonwealth and of foreign,
trading or financial corporations. Section 9 delineates the application of the
SDA so as not to exceed the Commonwealth’s constitutional powers.

As CEDAW concerns the rights of women, all women (irrespective of age) are covered
by the SDA unless a specific exemption applies. However, men are only covered
by the SDA where another head of power confers jurisdiction under the Act. Unless
provisions of the SDA proscribing sex, marital status, pregnancy and potential
pregnancy discrimination and sexual harassment draw on other heads of Commonwealth
constitutional power, those provisions underpinned solely by the external affairs
power have effect only in relation to discrimination against women, by virtue
of section 9(10) of the SDA. [16] This limits the circumstances
in which men can lodge complaints under the SDA.

Employment

In the area of employment,
men can lodge complaints of discrimination in employment if they are:

  • Commonwealth Government
    employees;
  • employees of a foreign,
    financial or trading corporation (which covers most private sector companies).

Education

There is no constitutional
power relating to education. Education is primarily an area regulated by the
States. This means that in most circumstances, male students cannot make complaints
of discrimination in education under the SDA and would need to rely on State
anti-discrimination laws.

Commonwealth
laws and programs

Men are able to lodge complaints
of discrimination in the administration of Commonwealth laws and programs.

4.2 INVESTIGATION

If the complaint appears
on its face to be a complaint of unlawful discrimination, it is referred to
the Sex Discrimination Commissioner. The Commissioner accepts the complaint
and allocates the complaint file to a Complaints Officer. The Complaints Officer
notifies the respondent that a complaint has been made against him/her and provides
the respondent with the opportunity to respond to the allegations.

Process where the act complained of may be a special measure

It is at this point in
the proceedings that the respondent is given the opportunity to raise special
measures as a reason for his or her actions and provide evidence in support
of his or her claim that the act complained of is a special measure.

The SDA makes clear that if an act which appears to be directly or indirectly
discriminatory is found to be a special measure, the claim of discrimination
has not been made out and the complainant has not discharged his or her burden
of proving discrimination.

Special measures are not a respondent defence to discrimination, so the respondent
does not have the onus of establishing that the act complained of is a special
measure. However, respondents may still be required to produce evidence in support
of any claim that their measure is a special measure. Respondents would be wise
to mitigate against the chances of a successful discrimination claim against
them by presenting a vigorous prima facie defence on behalf of their
actions.
If there is any dispute about the facts, the Complaints Officer will investigate
the complaint and collect supporting evidence from both parties including statements
from witnesses and relevant documentation.

After all the relevant information has been obtained and discussed with the
parties, the Sex Discrimination Commissioner is able to assess whether a special
measure exists in the case under investigation. She may request a formal legal
advice on the matter from the Commission’s legal section. The assessment
is made on the basis of the terms of the SDA itself and case law. The section
on “criteria” above sets out the relevant considerations.

Process where the act complained of is a special measure

If it is clear that the
act complained of is a special measure, the Commissioner may decline to inquire
further on the basis that the act is not unlawful discrimination under the SDA.
The complainant then has the right to request that the matter be referred to
an inquiry (also referred to as “hearings”) conducted by the Commission.
(See “declining complaints” and “public inquiries” sections
below.)

Process where the
act complained of is discrimination

If the complainant has
produced sufficient evidence to show that the act is not a special measure and
that the alleged unlawful act of discrimination occurred, the matter may proceed
to conciliation. In situations where it is clear that the matter is not appropriate
for conciliation, it can be referred directly to an inquiry conducted by the Commission.

Evidence collected during
the investigation stage is admissable in any subsequent legal proceedings.

4.3 CONCILIATION

Conciliation usually involves
holding a conference (either voluntary or compulsory) where the Complaints Officer
acting as an independent third party, assists the parties to settle the complaint
on mutually agreed terms. The Complaints Officer must not force the parties
to settle the dispute by imposing an outcome. The Complaints Officer must observe
the principles of natural justice and maintain confidentiality.

Anything said or done during conciliation is not admissable in any subsequent
legal proceedings.

Outcomes of conciliation may include specific redress for the individual complainant
such as monetary compensation, an apology, access to an employment program or
a service as well as more general strategies to avoid discrimination such as
the introduction of equal employment policies and the introduction of non-discriminatory
practices.

If conciliation is unsuccessful, it can be referred to an inquiry conducted
by the Commission.

4.4 DECLINING COMPLAINTS

At any stage in the complaints
process, the Sex Discrimination Commissioner may refuse to inquire into a complaint
or discontinue an inquiry which has already commenced if:

  • she is satisfied that
    the act complained of is not unlawful;
  • the complainant/s does/do
    not desire an inquiry;
  • the act occurred more
    than 12 months ago;
  • she forms the view
    that the complaint is frivolous, vexatious, misconceived or lacking in substance.

If the complaint is declined
because the Commissioner believes that no unlawful act has occurred, the complainant
still has the right to request that the matter be referred to an inquiry for
determination. If the complaint is declined on any other ground, the complainant
may request that the decision be reviewed by the President of the Commission. The decision
of the President is final.

4.5 PUBLIC INQUIRIES

Commission inquiries have the
following features:

1. They are usually
open to the public and press but there is provision under the SDA to request
a private hearing and orders may be made which prevent publication of the
complainant’s and/or respondent’s identity or the evidence in
the hearing.

2. A Hearing Commissioner
(which includes the President of Commission and the Commission's Commissioners, but not the
Sex Discrimination Commissioner in matters concerning the SDA) presides over
an inquiry.

3. The rules of evidence
do not apply and the process is designed to be conducted with as little formality
and technicality as possible.

4. Legal representation
is by leave.

5. Evidence is taken
under oath, witnesses can be summoned to appear and parties can be examined,
cross-examined and re-examined.

6. After holding an inquiry,
a decision is made as to whether the complaint is dismissed or upheld. Different
forms of redress for discrimination may be awarded including an award of compensation,
a declaration that the complainant should be able to apply for a position,
access a service or be provided with accommodation, or a declaration that
the act, policy or practice is unlawful and a recommendation of preventative
action to be taken so that discrimination will not continue.

4.6 ENFORCEMENT PROCEDURES

The Commission is an administrative
and not a judicial body. Consequently, it has no power under the Constitution
to enforce its own decisions [17]. If a respondent, refuses
to comply with a particular order of the Commission, the complainant (or the
Commission on behalf of the complainant) has to initiate separate enforcement proceedings
in the Federal Court. The Commonwealth government is currently exploring a more
satisfactory the means of enforcing Commission determinations.

However, where the respondent
is a Commonwealth government department or agency, the Commission’s decisions
are enforceable. The SDA provides that a Commonwealth respondent must comply
with a Commission determination, although an application for review regarding
the amount of compensation awarded can be made to the Administrative Appeals
Tribunal with the permission of the Minister.

[ADDENDUM - Please
Note: On 13 April 2000, the Human Rights Legislation Amendment Act (No.1) 1999
(Cth) (HRLAA) commenced operation. This legislation was introduced to ensure
enforceability of determinations under Federal anti-discrimination law. The
legislation has removed HREOC's public hearing function with complainants being
provided access to the Federal Court or the Federal Magistrates Service should
conciliation fail to resolve their complaint or where the complaint is terminated
for some other statutory reason. Please see http://www.humanrights.gov.au/complaints_information/lodge/index.html
for information on the current complaint process]

4.7 CERTIFICATION

There is no provision
in the SDA which permits the Commission or the Sex Discrimination Commissioner to
certify that a measure constitutes a special measure under the Act prior to
a complaint of discrimination being lodged with the Commission.
In some circumstances, the Sex Discrimination Commissioner has provided “a
letter of comfort” to a person/s who, or organisation which, proposes
to implement a measure which appears to be a special measure. A “letter
of comfort” states that, on the information provided to the Commissioner,
the proposed measure may fall within the ambit of a special measure. In the
interests of natural justice, the Sex Discrimination Commissioner will not provide
a letter of comfort unless there is a clear likelihood that the measure is a
special measure.

Example:

A Commonwealth Government inquiry into women and the law has identified
that particular measures are required to improve women’s access to
the legal system. One of these measures involves the provision of Commonwealth
Government funding to legal centres to employ women legal officers. Specifically
targeted government employment programs of this kind are likely to be special
measures

However, the Commission must
refer a complaint to the Sex Discrimination Commissioner if it alleges that
an act has occurred which appears at first instance to be unlawful sex discrimination
under the SDA, even if the Commissioner has issued a letter of comfort indicating
that the act may be a non-discriminatory special measure. A letter of
comfort will not prevent a complaint of discrimination being brought against
those implementing such a measure and it cannot be used as any form of defence
should a complaint of discrimination be made against them. Generally, it will
be up to those wishing to implement an affirmative action initiative, to assess
whether their proposal would constitute a special measure by reference to these
guidelines.


5. CHECKLIST

Case examples illustrating
the application of this checklist are provided in Chapter Three of these guidelines.

IS IT A SPECIAL MEASURE?

1. Is the measure
taken in an area covered by the SDA?

Check whether the area
is covered.

Divisions 1 & 2 of
the SDA set out the areas covered by the Act. See Appendix B and Chapter Three
of these guidelines.

NO the measure
is not a special measure under the SDA and the measure is not unlawful under
the SDA
Stop

YES
the measure may be a special measure under the SDA or the measure may be
unlawful discrimination under the SDA
GO

2. Do any exemptions
apply?

Check if any exemptions
apply.

Division 4 of the SDA sets
out the Exemptions to the SDA. See Chapter Two, section 2.2 and Appendix C of
these guidelines.

YES
the measure is not a special measure under the SDA and the measure is not
unlawful under the SDA.
Stop

NO
the measure may be a special measure under the SDA or the measure may be
unlawful discrimination under the SDA.
GO

3. Is there
an existing inequality?


Check whether the measure is based on evidence of unequal outcomes between:

i) men and women; or,
ii) people of different marital status; or
iii) women who are pregnant or potentially pregnant and those who are not.

See s7D(1) and (4) of the
SDA. See Chapter Two, section 2.1 of these guidelines.

NO
the measure is not a special measure
Stop

YES
the measure may be a special measure
GO

4. Is there a reasonable basis for the measure?

Check whether the measure
is based on evidence of practices in the relevant area which are responsible
for or contribute to the unequal outcomes identified.

The SDA does not
require
any such analysis but it will assist those implementing a measure
to prove that it is a special measure. See Chapter Two, section 2.1 of these
guidelines.

5. Is the measure reasonable?

There is no test
under the SDA
to determine whether the measure is an effective or adequate
way to achieve substantive equality between the groups and in the area which
it targets. However, it must be reasonable for those undertaking it to conclude
that it will further that purpose. See Chapter Two, section 2.1 of these guidelines.

Check whether a purpose
of the measure is to achieve substantive equality. Identify why you think it
will achieve or further this purpose?

Check whether
there is evidence to show that your opinion is reasonable in the circumstances.

NO
the measure is not a special measure.
Stop

YES the
measure is a special measure.
GO


APPENDIX
A

DEFINITIONS

For the purpose of these
guidelines the following definitions apply in these areas:

Employment

Employee
means:
a person who works under employment contract (a contract of service).

Employment includes:

  • part-time and temporary
    employment;
  • work under a contract
    for services; and
  • work as a Commonwealth
    employee.

Employment contract
means:
a contract formed on the pre-condition that both parties (employer and employee)
mutually intend to enter into a relationship with legally binding obligations
and the presence of consideration.

Commonwealth employee
means a person who:

  • holds an office or
    appointment in the Australian Public Service;
  • is employed in a department
    under the Public Service Act 1922 in a temporary capacity;
  • holds an administrative
    office;
  • is employed by a Commonwealth
    public authority;
  • holds an office or
    appointment in the Commonwealth Teaching Service;
  • is employed as a temporary
    employee under the Commonwealth Teaching Service Act;
  • is employed under the
    Australia Security Intelligence Organisation Act 1979, the Supply
    and Development Act 1939
    or the Naval Defence Act 1910;
  • is a member of the
    Defence Force.

Commission agent
means:
a person who does work for another person as the agent of that other person
and who is wholly or partly paid by commission.

Contract worker
means:
an independent contractor / a person who performs work in an industry other
than under a contract of employment (i.e. person who enters a “contract
for services”).

Employment agency
means:
a person or body that assists persons to find employment or other work or assists
employers to find employees and workers.

Partnership
means:
the relationship which subsists between parties carrying on a business in common
with a view to profit. [18]
Qualifying body means:

an authority or body
which has the power to confer, renew, extend, revoke or withdraw an authorisation
or qualification that is needed for, or facilitates

  • the practice of a
    profession;
  • the carrying on of
    a trade; or
  • the engaging in of
    an occupation.

Registered organisation
means:
a registered organisation as defined in the Industrial Relations Act 1988,
PART IX - Division 1, Section 188 “Associations Capable of Applying for
Registration”. An association may apply for registration as an organisation
if: 1) it is an employers’ association which must employ an aggregate
of 1000 employees or 2) it is an employees’ association which must have
10000 members and be an industry based organisation. [19]

Vicarious liability means:
an employer’s legal responsibility for wrongs committed by employees in
the course of work.

Voluntary employment means:
work performed by a volunteer which is not performed as part of an employment
contract. A volunteer is not an employee.

Education
Educational authority
means:
a body or person administering an educational institution.

Educational institution means:
a school, college, university or other institution at which education or training
is provided.

Goods, services
and facilities

Services includes, but is not limited to:

  • services relating to
    banking, insurance and the provision of grants, loans, credit or finance;
  • services relating to
    entertainment, recreation or refreshment;
  • services relating to
    transport or travel;
  • services of the kind
    provided by the members of any profession or trade; and
  • services of a kind
    provided by a government, a government authority or a local government body.

Accommodation
Accommodation
includes:
residential and business accommodation.

Clubs
Club
means:
a social, literary, cultural, political, sporting or athletic association of
30 or more persons which wholly or partly provides and maintains its facilities
from association funds and which sells or supplies alcohol for consumption on
its premises.

Commonwealth law
or program
Administration of a Commonwealth law or program
refers to administration
by:

  • a person who performs
    any function or exercises any power under a Commonwealth law;
  • a person who performs
    any function or exercises any power for the purposes of a Commonwealth program;
  • a person who has any
    other responsibility for the administration of a Commonwealth law;
  • a person who has any
    other responsibility for the conduct of a Commonwealth program.

Complaint handling
Aggrieved person
means:
a person who is/has been discriminated against within the terms of the SDA.

Complainant means:
a person/s who has/have lodged a complaint with the Commission.

Commission
means:
the Australian Human Rights Commission (legally known as the Human Rights and Equal Opportunity Commission).

Conciliation means:
the process of bringing two disputing parties together to reach a mutually satisfactory
agreement with the aid of an independent third party (a Complaints Officer).

Discriminator
means:
a person who discriminates against another person or other persons within the
terms of the SDA.

Natural Justice
means:
the minimum standard of fairness to be applied in the investigation and adjudication
of a dispute. This is also referred to as procedural fairness. The substantive
procedural requirements of natural justice involve:

  • informing a person
    of the full particulars of any allegation/s made against them;
  • giving a person against
    whom an allegation/s is made reasonable opportunity to state their case, provide
    an explanation or put forward a defence;
  • ensuring that proper
    investigation of the allegations occurs, that all parties are heard and relevant
    submissions considered;
  • ensuring that the decision
    maker acts fairly and without bias.

Onus of proof means:
the burden of proving (or disproving) on the balance of probabilities that the
alleged discrimination has (or has not) occurred.

Prima facie
case
means:
the existence of information which appears to support allegations that unlawful
discrimination has occurred.

Prima facie
defence
means:
the existence of information which appears to rebut allegations of discrimination.

Respondent
means:
a person or organisation against whom a complaint is lodged with the Commission.

Vicarious liability means:
an employer’s legal responsibility for wrongs committed by employees in
the course of their employment.

Discrimination
Direct discrimination means:
a person or persons is/are treated less favourably than another person or persons
is/are treated in circumstances that are the same or not materially different
on the basis of specified grounds. Those grounds are sex or marital status or
pregnancy or potential pregnancy.

Indirect discrimination
means:
a person (the “discriminator”) indirectly discriminates against
another person (the “aggrieved person”) if he/she imposes or proposes
to impose a condition, requirement or practice that is not reasonable in the
circumstances, and that has, or is likely to have, the effect of disadvantaging
persons of the same sex or marital status as the aggrieved person or women who,
like the aggrieved person, are pregnant or potentially pregnant.

Systemic discrimination
means:
a complex of directly and/or indirectly discriminatory practices which operates
to produce general structural disadvantage for a particular group.

Equality
Formal equality means:
people should be treated the same in all circumstances regardless of their sex,
marital Status, pregnancy or potential pregnancy except where relevant differences
based on sex, marital status, pregnancy or potential pregnancy justify different
treatment.

Substantive equality
means:
people should be treated in a way which ensures that they achieve equal outcomes.

Grounds
Sex means:
a member of the male or female sex irrespective of age.

Marital status
means:
the status or condition of being:

(a) single;
(b) married;
(c) married but living separately and apart from one’s spouse;
(d) divorced;
(e) widowed; or
(f) the de facto spouse of another person.

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 of that person on a bona fide
domestic basis although not legally married to that person.

Potential pregnancy
means:
a woman:

(a) is or may be capable
of bearing children; or
(b) has expressed a desire to become pregnant; or
(c) is likely, or is perceived as being likely, to become pregnant.

Other Terms

Voluntary body
means:
an association or other body (whether incorporated or unincorporated) which
engages in non-profit making activities, but excludes a club, registered organisation
(eg. union), statutory body or financial / money lending institution.


APPENDIX B

AREAS COVERED BY THE SEX DISCRIMINATION
ACT 1984

Employment

These guidelines apply
to special measures in employment in the following areas:

  • Commonwealth government
    departments and agencies;
  • Commonwealth government
    business enterprises;
  • private sector organisations;
  • non government organisations.

These guidelines do not
apply to employment in:

  • State government departments
    and agencies;
  • State government instrumentalities
    ;[21]
  • other areas of employment
    which are exempt from the operation of the SDA. [22]

Education

These guidelines apply
to the provision of education by:

  • Commonwealth government
    educational institutions;
  • State government educational
    institutions;
  • independent educational
    institutions established by statute;
  • private educational
    institutions.

These guidelines do not
apply to areas of education which are exempt from the operation of the SDA.
[23]

Goods, Services
and Facilities

These guidelines apply
to the provision of goods, services and facilities by:

  • Commonwealth government
    departments and agencies;
  • Commonwealth government
    business enterprises;
  • State government departments
    and agencies;
  • State government instrumentalities;
  • Private sector organisations;
  • Non government organisations.

These guidelines do not
apply to the provision of goods, services and facilities in areas which are
exempt from the operation of the SDA. [24]

Accommodation

These guidelines apply
to the provision of accommodation by:

  • Commonwealth government
    departments and agencies;
  • Commonwealth government
    business enterprises;
  • State government departments
    and agencies;
  • State government instrumentalities;
  • Private sector organisations;
  • Non government organisations.

These guidelines do not
apply to the provision of accommodation in areas which are exempt from the operation
of the SDA. [25]

Commonwealth laws
and programs

These guidelines apply
to the administration of Commonwealth laws and programs by:

  • Commonwealth government
    departments and agencies;
  • Commonwealth government
    business enterprises;
  • State government departments
    and agencies;
  • State government instrumentalities;
  • Private sector organisations;
  • Non government organisations.

These guidelines do not
apply to the areas which are exempt from the operation of the SDA.


APPENDIX C

PERMANENT EXEMPTIONS

The SDA contains permanent exemptions in relation to the following:

  • employment by an instrumentality
    of a State (section 13);
  • sex discrimination
    in employment where the sex of the employee is a genuine occupational qualification
    (section 30);
  • sex discrimination
    for granting to a woman rights or privileges in connection with pregnancy
    or childbirth (section 31);
  • sex discrimination for
    services which can only be provided to members of one sex (section 32);
  • accommodation provided
    for employees or students (section 34);
  • sex and marital status
    discrimination in employment involving the care of a child/children at their
    residence (section 35);
  • charitable benefits
    (section 36);
  • religious bodies (section
    37);
  • educational institutions
    established for religious purposes (section 38);
  • voluntary bodies (section
    39);
  • insurance (section
    41);
  • some aspects of superannuation
    (sections 41A and 41B);
  • sex discrimination
    in competitive sport in which strength, stamina or physique of competitors
    is relevant (section 42);
  • exclusion of women
    from direct combat positions in the Defence Forces (section 43).

Exemptions for
acts done under statutory authority

Section 40 of the SDA provides
exemption from discrimination for anything done by a person in direct compliance
with:

  • a determination or
    decision of the Commission;
  • an order of a court;
  • listed statutes which
    include laws relating to taxation and social security .[26]

1. Special
measures intended to achieve equality are defined in s7D of the SDA

2. The
areas in which it is unlawful to discriminate are set out ii following Divisions
and sections of the SDA: Division I – Discrimination in Work - Discrimination
in employment or in superannuation s14, Discrimination against commission agents
s15, Discrimination against contract workers s 16, Partnerships s 17, Qualifying
bodies s 18, Registered organizations s 19, Employment agencies s20; Division
2 – Discrimination in Other Areas - Education s21, Goods, services and
facilities s22, Accommodation s23, Land s24, Clubs s25, Administration of Commonwealth
laws and programs s26, Application forms etc. s27. (Sections concerning areas
where sexual harassment is prohibited are in Division 3 of the Act.)

3. Direct discrimination is defined in the following sections
of the SDA: sex discrimination s5(1), marital status discrimination s6(1), pregnancy
and potential pregnancy discrimination s7(1), family responsibilities discrimination
s7A..

4. The
Sex Discrimination Amendment Act 1995 amended the provisions relating to indirect
discrimination. The new test for indirect discrimination is set out in the following
sections of the SDA: sex discrimination s5(2), marital status s6(2), pregnancy
and potential pregnancy s7(2). The “reasonableness test” is in s7B.
Section 7C provides that the burden of proving reasonableness lies on the respondent.

5. The
special measures provision in the SDA gives effect to Article 4(1) of the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW) which
states that:
Adoption by States Parties of temporary special measures aimed at accelerating
de facto equality between men and women shall not be considered discrimination
as defined in the present Convention, but shall in no way entail as a consequence
the maintenance of unequal or separate standards; these measures shall be discontinued
when the objectives of equality of opportunity and treatment have been achieved.
Note: “defacto equality” is another term for substantive equality.

6.Section
7D.(l) of the SDA provides:
7D.(l) A person may take special measures for the purpose of achieving substantive
equality between:
men and women; or
people of different marital status; or
women who are pregnant and people who are not pregnant; or
women who are potentially pregnant and people who are not potentially pregnant

7. Section
7D.(3) provides:
(3) A measure is to be treated as being taken for a purpose referred to in subsection
(1) if it is taken:
solely for that purpose; or
for that purpose as well as other purposes, whether or not that purpose is the
dominant or substantial one.

8. Section
7D.(4) provides:
(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.

9. Proudfoot
& Ors v Australian Capital Territory Board of Health & Ors (1992) EOC
92-417 at p.78,983.

10. See
“Definitions” in Appendix A of these guidelines for the meaning
of terms.

11. Casual
employment is covered by the common law definition of employment. A number of
factors must be taken into account to determine whether an employment relationship
exists at common law. There is a string of cases which define criteria for determining
a common law employment relationship including: the nature of the task, the
degree of skill, the freedom of action given, who gives the orders, the power
of selection and dismissal, the power to delegate functions, who determines
the amount and manner of payment, the method of tax deduction, who provides
tools and equipment, who controls the regularity of the hours of work and the
manner of work.

12. Jarry
v County Fire Authority unreported, Equal Opportunity Board (Vic.), 8 February
1984.

13. There
is recent case law to suggest that the presence of Commonwealth funding could
be sufficient to bring the program within the SDA’s definition of a “Commonwealth
program” This may be the case even if the program is administered by a
State or is jointly funded by the Commonwealth and a State.

14. Ellenbogen
v Human Rights and Equal Opportunity Commission & Ors (1994) EOC 92-564.

15. See
Proudfoot & Ors v ACT Board of Health, Commonwealth of Australia & Canberra
Women’s Health Centre Inc (1992) EOC 92-417.

16. This
was confirmed in Aldridge v Booth (1988) EOC 92-222.

17. This was confirmed by the High Court in Brandy v Human
Rights and Equal Opportunity Commission & Ors (1995) 127 ALR 1 which held
as invalid the 1992 legislative provisions in the Racial Discrimination Act
1975 (and the comparative provisions in the SDA and the Disability Discrimination
Act 1992) which enabled determinations of the HREOC to be registered and enforced
as if they were orders of the Federal Court of Australia unless the respondent
applied to the Federal Court for a review of the decision of the Commission
within 21 days.

18. Pooley v Driver (1876) 5 Ch D458 at 472

19. For case law on special measures and registered organisations
see: Re Australian Journalists Association (1988) EOC 92-224 and Municipal Officers
Association of Australia & Anor: Approval of Submission of Amalgamation
to Ballot (1991) EOC 92-344.

20. Adapted from the definition provided by Rosemary Hunter,
Indirect Discrimination in the Workplace Federation Press, Leichhardt, 1992,
p.13

21. State government departments, State authorities and their
employees are exempt from the discrimination in employment and sexual harassment
provisions in the Federal SDA pursuant to sections 12 and 13 of the Act. However,
State government departments, authorities and their employees are required to
comply with State and Territory anti-discrimination legislation where it exists.

22. Employment exemptions include: an exemption in section
14(3) relating to employment to perform domestic duties at the employer’s
residence; section 30 relating to jobs where it is a genuine occupational qualification
to be a person of a particular sex; exceptions concerning religious bodies and
employment in educational institutions established for religious purposes in
sections 37 and 38(1), (2); and exemptions from certain forms of discrimination
in superannuation (s4lA and 41B).

23. In particular, section 38(3) provides that it is not unlawful
“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.”

24. Exemptions relevant to the provision of goods, services
and facilities include: section 31 which exempts sex discrimination against
a man where a woman is granted rights or privileges in connection with pregnancy
or childbirth; section 32 which exempts the provision of services which can
only be provided to members of one sex; section 39 which exempts the provision
of benefits, facilities and services to members of a voluntary body; and, section
42 which provides a qualified exemption in relation to the provision of sporting
facilities and access to sporting teams.

25. Relevant exemptions include section 34 which provides limited
exemption for accommodation provided for employees or students; section 38 which
exempts accommodation provided by religious bodies; and section 39 which excludes
accommodation or accommodation services provided to members of voluntary bodies.

26. The section also provides an exemption for acts done in
direct compliance with an order or award of a court or tribunal having power
to fix minimum wages and other terms and conditions of employment. However,
following amendments to the SDA and the Industrial Relations Act 1988 (IRA)
complaints can now be made about discriminatory provisions in awards and agreements
under section 50A of the SDA. Section 111A of the IRA requires the Australian
Industrial Relations Commission to remedy any discrimination it finds in awards
referred to it by the Sex Discrimination Commissioner under these provisions

Last
updated 20 April 2004.