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Submission: Australia's Future Tax System (Retirement Income System) (2009)

Legal Legal
Friday 14 December, 2012

Australia's Future Tax System (Retirement Income System)

Australian Human Rights Commission
Submission to the Review Panel on Australia's Future Tax System

27 February 2009



Table of Contents


1 Introduction

  1. The Australian Human Rights Commission (‘the
    Commission’)[1] makes this
    submission to the Review Panel on Australia’s future tax system
    (‘the Review’). The submission specifically addresses
    Australia’s retirement income system.

  2. The Commission is Australia’s national human rights
    institution.[2]

  3. The Commission administers the Sex Discrimination Act 1984 (Cth)
    (‘SDA’). The SDA makes unlawful discrimination on the grounds of
    sex, marital status, pregnancy or potential pregnancy in many areas of public
    life including employment, education, and the provision of goods, services or
    facilities. The SDA makes unlawful discrimination on the ground of family
    responsibilities only in dismissal from employment.

  4. The SDA also aims to promote recognition and acceptance within the community
    of the principle of the equality of men and
    women.[3]

  5. The Commission has examined inequality between women and men with respect to
    retirement income and labour market participation in a variety of reports and
    submissions. It has also undertaken community consultation regarding issues
    relevant to the Review, most recently to inform the Report, It’s About
    Time: Women, Men, Work and Family
    (2007) and the Listening Tour Community
    Report
    (2008). The Commission draws on its previous consultation and policy
    work in making this submission.

  6. However, due to the timeframe of the Review, the Commission has not had the
    capacity to undertake detailed community consultation with respect to the Terms
    of Reference of this specific Review.

  7. This submission will focus on the following areas:

    • Australia’s international human rights obligations as they relate to
      Australia’s retirement income system

    • the nature and extent of Australia’s gender gap in retirement savings
      and retirement income

    • the implications of Australia’s gender gap in retirement savings and
      retirement income

    • the reasons for the gender gap in retirement savings and retirement
      income

    • solutions for increasing women’s financial security in
      retirement.

2 Summary

  1. The Commission welcomes the review of Australia’s retirement income
    system.

  2. There has been a growing global recognition of the role of retirement income
    systems in maintaining national economic stability and financial security across
    the lifecycle.[4] As such,
    Australia’s retirement income system is a vital element of the
    nation’s economic and social policy framework.

  3. Over the last two decades, there has been a strong public policy focus on
    superannuation as a means to provide income during retirement and reduce
    reliance on the Age Pension.

  4. However, the linking of the current system of compulsory savings enforced
    through the superannuation guarantee (‘the SG’) exclusively to
    engagement in paid work disadvantages women and other groups with marginal
    labour force attachment.

  5. Women are more likely to have broken paid work patterns due to caring
    responsibilities and have lower life-time earnings due to pay inequity. This
    means that not only do women generally have lower levels of superannuation
    coverage over the lifetime, but when they do engage in paid work, they
    accumulate lower amounts of superannuation.

  6. As a result, there is a significant disparity between the retirement savings
    and retirement income of men and women. Current figures show that women’s
    superannuation balances are less than half of those of
    men.[5] This stark figure is a clear
    marker of gender inequality in Australia.

  7. With women generally retiring earlier and living longer than men, there are
    a number of serious implications stemming from the gender inequality in
    retirement savings. Many women, after a life spent in unpaid caring work, face
    prospects of financial insecurity and poverty in retirement, often solely
    relying on the Age Pension. Around 73% of those on the single rate of the Age
    Pension are women.[6]

  8. During her national Listening Tour, the Sex Discrimination
    Commissioner consistently heard deep concerns from women about financial
    security in retirement and the adequacy of the Age Pension. Reducing the gender
    gap in retirement savings to increase financial security across the lifecycle is
    a key priority for the Sex Discrimination Commissioner as part of her Plan of
    Action Towards Gender
    Equality
    .[7]

  9. The Commission considers that Australia’s retirement income system
    must be underpinned by the principles of equality and fairness. To fulfill
    Australia’s international human rights obligations, particularly under the
    International Covenant on Economic, Social and Cultural Rights
    (ICESCR),[8] at a minimum, the
    retirement income system as a type of social
    security,[9] should protect
    individuals from poverty and provide for an adequate standard of
    living.[10] The system should ensure
    that all individuals are able to live with dignity and respect over their
    lifecycle. As required by ICESCR and also the Convention on the Elimination of
    All Forms of Discrimination Against Women (CEDAW), this outcome should be
    achieved without discrimination between women and
    men.[11]

  10. The current retirement income system needs urgent attention to redress the
    disadvantage experienced by women due to its link to paid work. Additionally,
    the Review should consider how the system can recognise the value of unpaid work
    to the nation’s economy, work such as caring for family members, the large
    majority of which continues to be carried out by women.

  11. The Commission urges the Australian Government to adopt women’s
    financial security in retirement as a national policy priority. Economic
    independence for women across the lifecycle is critical to achieving substantive
    gender equality and economic and social security for all.

  12. The Commission recommends strategies in the following areas to increase
    women’s economic security in retirement:

    • removing barriers to labour market participation for women and those with
      caring responsibilities

    • increasing life-time earnings for women by reducing the gender pay gap

    • extending initiatives to increase superannuation contributions for low
      income earners and those on welfare payments

    • ensuring the Age Pension protects individuals from poverty and fulfils
      Australia’s international human rights obligations for women and men to
      equally enjoy a right to an adequate standard of
      living,[12] and to social
      security[13]

    • introducing measures to achieve equality in women’s representation in
      superannuation fund governance positions

    • regular monitoring and reporting on the gender impact of Federal budgets and
      reforms

    • independent monitoring and reporting on Australia’s progress towards
      achieving substantive gender equality

    • reviewing the superannuation exemptions in the Sex Discrimination Act
      1984
      (Cth).

3 Recommendations

3.1 Remove Barriers
to Women’s Workforce Participation

Recommendation 1: Extend family and carer responsibilities protection
under the Sex Discrimination Act 1984 (Cth)

Implement recommendation 13 of the Standing Committee on Legal and
Constitutional Affairs’ report on the Effectiveness of the Sex
Discrimination Act 1984
in eliminating discrimination and promoting gender
equality:

The committee recommends that the prohibition on discrimination on the
grounds of family responsibilities under the Act be broadened to include
indirect discrimination and discrimination in all areas of
employment.[14]

Recommendation 2: Positive duty to reasonably accommodate the needs of
workers who are pregnant and/or have family or carer responsibilities

Implement recommendation 14 of the Standing Committee on Legal and
Constitutional Affairs’ report on the Effectiveness of the Sex
Discrimination Act 1984
in eliminating discrimination and promoting gender
equality:

The Committee recommends that the Act be amended to impose a positive duty on
employers to reasonably accommodate requests by employees for flexible working
arrangements, to accommodate family or carer responsibilities, modelled on
section 14A of the Equal Opportunity Act 1995
(VIC).[15]

Recommendation 3: Strengthen the right to request flexible work
arrangements National Employment Standard

To strengthen the right to request flexible work arrangements National
Employment Standard the Commission recommends the following:

    • qualification requirements that restrict the categories of employees who can
      make a request for flexible working arrangements should be removed.
    • the right to request flexible working arrangements should be extended to all
      forms of family and caring responsibilities.
    • the right to request flexible working arrangements be extended to employees
      with a disability.
    • same rights of redress applicable to the other nine National Employment
      Standards should be extended to the unreasonable refusal of a request for
      flexible work arrangements.
    • the right to request should be accompanied by an education campaign that
      includes clear information that employees may have access to the provisions of
      the Sex Discrimination Act 1984 (Cth) (and the Disability
      Discrimination Act
      ) where flexible arrangements are
      denied.[16]

Recommendation
4: Introduce a national scheme of paid leave for parents

The Australian Government should adopt the Productivity Commission’s
proposed model for paid parental leave as a matter of urgency. The scheme should
include compulsory additional superannuation payments.

Recommendation 5: Modify Family Tax Benefit Part B

Family Tax Benefit Part B should be modified to support choice within couple
families around the sharing of paid work and caring responsibilities.

3.2 Increase
life-time earnings for women by reducing the gender pay gap

Recommendation 6: Improve data collection and monitoring of the gender pay
gap

The Australian Government should revisit previous recommendations made by the
Commission in relation to data collection and monitoring of women’s pay
and employment conditions in order to:

    • address gaps in data collection by resourcing the Australian Bureau of
      Statistics to collect and publish regular gender disaggregated data in areas of
      need identified by Women in Economic and Social
      Research[17]
    • fund the Department of Education, Employment and Workplace Relations to
      conduct an annual national workplace relations survey to monitor gender
      differences in changes to pay and conditions and
    • establish a comprehensive set of indicators for measuring achievement
      towards gender equality in this area over time, either independently or as part
      of a broader set of indicators and monitoring to be developed by the Commission,
      subject to recommended legislative change to the SDA and appropriate, tied
      funding.

Recommendation 7: Strengthen legal and institutional
arrangements to reduce the gender pay gap

The Australian Government should consider the range of alternative approaches
for achieving pay equity as previously recommended by the Commission, including
workplace audit processes, monitoring and enforcement processes.

Possible options include:

  • setting up a specialist unit in the new wage setting body of Fair Work
    Australia to develop and monitor pay equity mechanisms

  • requiring Fair Work Australia to undertake investigations focused on
    undervaluation and comparative worth in female dominated occupations and
    industries

  • amending legislation to require pay equity audits and action plans to be
    carried out at the workplace level

  • introducing the ability for the Equal Opportunity in the Workplace Agency
    and/or the Commission to receive gender equality action plans, from bodies other
    than employers currently covered by the Equal Opportunity for Women in the
    Workplace Act 1999
    (Cth) (‘EOWW Act’), including specific plans
    on pay equity

  • amending the EOWW Act or the SDA to provide for an auditing function for
    gender equality action plans which is properly resourced

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

  • introducing specialised pay equity legislation.

3.3 Extend
initiatives to increase superannuation contributions for those not in paid work
due to caring responsibilities and low income earners

Recommendation 8: Provide superannuation for those not in paid work due to
caring responsibilities

The Australian Government should make direct superannuation contributions for
those who are not in the paid workforce because of caring responsibilities.
These contributions should be made at the same level as the SG in addition to
existing Centrelink income support.

This should include those eligible for the Carer Payment, Parenting Payment
or in receipt of the Carer allowance in addition to other Government income
support payment for people of working age.

The Australian Government should also extend the Superannuation
Co-contribution Scheme to these groups.

Recommendation 9: Investigate establishing a superannuation scheme for
carers

The Australian Government should investigate establishing a specific
retirement income scheme to recognise the value of unpaid caring work.

This could include government funded carer superannuation credits to be paid
at the time of retirement, or a national fund or social insurance scheme
established specifically for carers.

Recommendation 10: Model the gender impact of any proposed changes to the
Superannuation Guarantee

The Australian Government should model the gender impact of any proposed
changes in the coverage or level of the Superannuation Guarantee with a view to
minimising financial hardship for those on low incomes. This analysis should be
made publically available.

Recommendation 11: Equity in superannuation tax concessions

The Australian Government should review and modify superannuation tax
concessions to ensure that benefits are provided equitably between low, middle
and high income earners, and to maximise gender equality.

Recommendation 12: Superannuation for those in the Community Development
Employment Program

The Australian Government should make direct superannuation contributions at
the same level as the SG, in addition to existing benefits, for those who are in
the Community Development Employment Program.

3.4 Ensure the Age
Pension fulfils Australia’s international human rights obligations for
women and men to equally enjoy a right to social security

Recommendation 13: Ensure the Age Pension protects individuals against
poverty and meets international human rights standards

At a minimum, the Age Pension should protect individuals against poverty,
ensure an adequate standard of living and fulfil the right to social security
for individuals in line with relevant international human rights standards.

The couple and single rate of the Age Pension should be raised progressively
to eliminate poverty. This should start with an immediate increase of the single
rate to 66% of the couple rate.

Recommendation 14: Monitor and track the incidence and impact of
poverty

The Australian Bureau of Statistics should establish an agreed poverty
measure and issue an annual report on the incidence of poverty, disaggregated by
gender, age, Aboriginal and Torres Strait Islander status, disability,
sexuality, cultural background, household type and location.

3.5 Regularly monitor
and report on the gender impact of Federal budgets and reforms

Recommendation 15: Regular gender budget statements

The report from Australia’s future tax system review should include a
section containing modelling and analysis of the gender impact of the proposed
recommendations.

A Gender Analysis Unit should be established within Treasury to conduct
gender disaggregated public expenditure analysis, gender disaggregated tax
incidence analysis, and yearly gender budget statements.

3.6 Introduce
measures to achieve equality in women’s representation in superannuation
fund governance positions

Recommendation 16: Achieving equality in women’s representation in
superannuation fund governance positions.

The Australian Government should investigate specific strategies to achieve
equality in the representation of women in senior leadership positions, and
specifically, in superannuation fund governance positions. This could include
the introduction of mandatory quotas and targets, allocation of specific funding
to train women trustees and board directors or tax incentives for funds that
have an appropriate balance of gender in trustee positions.

At a minimum, superannuation funds should be required to report on the gender
balance of their trustee boards as part of their annual compliance reporting to
the Australian Prudential Regulatory Authority.

3.7 Independent
monitoring and reporting on Australia’s progress towards achieving
substantive gender equality

Recommendation 17: Independent monitoring of national gender equality
indicators and benchmarks

Implement recommendations 33 and 34 of the Standing Committee on Legal and
Constitutional Affairs’ report on the Effectiveness of the Sex
Discrimination Act 1984 in eliminating discrimination and promoting gender
equality:

The committee recommends that the Act be amended to require the Sex
Discrimination Commissioner to monitor progress towards eliminating sex
discrimination and achieving gender equality, and to report to Parliament every
four years.

...The Committee recommends that HREOC be provided with additional resources
to enable it to...perform the additional roles and broader functions recommended
in this report...[18]

3.8 Review the
superannuation exemptions in the Sex Discrimination Act 1984 (Cth)

Recommendation 18: Review superannuation exemption in the Sex
Discrimination Act 1984
(Cth)

With the objective of achieving gender equality, implement recommendation 36
of the Standing Committee on Legal and Constitutional Affairs’ report on
the Effectiveness of the Sex Discrimination Act 1984 in eliminating
discrimination and promoting gender equality:

The committee recommends that further consideration be given to removing the
existing permanent exemptions in section 30 and sections 34 to 43 of the Act and
replacing these exemptions with a general limitations
clause.[19]

4 Australia’s
international human rights obligations

  1. A review of the retirement income system in Australia needs to assess the
    extent to which people in retirement can exercise and enjoy their basic human
    rights. This section provides an overview of Australia’s international
    human rights obligations, particularly in relation to:

    • the human right to social security

    • the human right to gender equality.

  2. The Australian Government has agreed to be bound by a number of
    international instruments relevant to the retirement income system. .

  3. The UN Convention on the Elimination of all forms of Discrimination against
    Women (CEDAW) obligates Australia to take all appropriate measures to eliminate
    discrimination against women to ensure the equal enjoyment of the right to
    social security.[20]

  4. The right to social security is articulated under the ICESCR.

  5. Australia’s international human rights obligations under the ICESCR
    include:

    • everyone’s human right to enjoy the right to social
      security[21]

    • the human right for women and men to equally enjoy the right to social
      security.[22]

  6. One essential element of the right to social security is that it supports
    the realization of the right to an adequate standard of
    living.[23]

4.1 Convention on the
Elimination of all Forms of Discrimination Against Women (CEDAW)

  1. CEDAW is scheduled to the SDA. Under CEDAW, Australia is required
    to:

    ...take all appropriate measures to eliminate discrimination
    against women in the field of employment in order to ensure, on a basis of
    equality of men and women, the same rights, in particular...The right to social
    security, particularly in cases of retirement, unemployment, sickness,
    invalidity and old age and other incapacity to work, as well as the right to
    paid leave...[24]

  2. The Committee on the Elimination of all forms of Discrimination against
    Women (‘CEDAW Committee’) is responsible for monitoring the
    implementation of CEDAW by those States which are party to it.

  3. In reviewing state party obligations in this area, the CEDAW Committee has
    made several observations about the nature and extent of this obligation. For
    example, in its concluding comments on Canada’s report under CEDAW in
    2006, the CEDAW Committee noted with concern that:

    In most Provinces
    and Territories, social assistance benefits are lower than a decade ago, in that
    they do not provide adequate income to meet basic needs for food, clothing and
    shelter, and that welfare levels are often set at less than half the Low-Income
    Cut-Off.[25]

  4. Similarly, in its concluding comments to the United Kingdom in 1999, the
    CEDAW Committee notes that

    Demographic change in the State party
    requires urgent action with regard to the situation of older women, and of
    related implications for women’s health, poverty and especially pension
    entitlements...[26]

  5. Earlier, in its concluding comments to the United Kingdom in 1993, the CEDAW
    Committee noted that the UK had reported implementing independent taxation for
    husbands and wives, and was taking steps to make discrimination in occupational
    pensions illegal.[27]

4.2 International
Covenant on Economic, Social and Cultural Rights (ICESCR)

  1. The ICESCR articulates what is meant by the right to social security.
(a) The
human right to social security
  1. Australia became a state party to the ICESCR in 1976, which
    provides:

    The States Parties to the present Covenant recognize the
    right of everyone to social security, including social
    insurance.[28]

  2. Under the ICESCR, social security includes:

    • Systems of social insurance: This is where individuals, employers and
      in some cases governments make contributions to ensure people have access to
      income support when their earnings are interrupted or cease. Old age or
      retirement is one of these circumstances. The Australian Superannuation
      Guarantee is an example.

    • Universal schemes of social assistance: These are met entirely
      through the general resources of governments and provide important financial
      support and protection for people who are particularly vulnerable or need
      particular assistance to realise basic rights such as older people, people with
      a disability or other marginalised groups. The Australian Age Pension is an
      example.

  3. The Committee on Economic, Social and Cultural Rights (‘the
    Committee’) is responsible for monitoring the implementation of ICESCR by
    those States which are party to it. The Committee states:

    The right
    to social security is of central importance in guaranteeing human dignity for
    all persons when they are faced with circumstances that deprive them of their
    capacity to fully realise their Covenant
    rights.[29]

  4. The obligation to fulfill the right to social security requires the
    Australian Government to:

    • Adopt necessary measures directed towards the full realization of the right
      to social security.[30]

    • Take positive measures including legislative and policy measures, to assist
      individuals and communities to equally enjoy the right to social
      security.[31]

    • Ensure appropriate education and public awareness of social security
      schemes.[32]

    • Establish non-contributory schemes and other measures to provide support to
      people who are unable to make contributions to social insurance
      schemes.[33]

  5. At a minimum, governments have a core obligation to ensure people have
    access to a social security system and benefits which allow them to acquire
    essential health care, basic housing, water and sanitation and food as well as
    the most basic forms of
    education.[34]

  6. The Committee has set out a number of factors essential to the right to
    social security.[35].

    • Available, accessible and non-discriminatory: Social security must be
      provided under a system which is established under domestic law and administered
      or supervised by public authorities. Social security must be available and
      accessible to all people who are in need, especially people who belong to
      marginalised or disadvantaged groups. Social security must be provided in a way
      which is not discriminatory.

    • Comprehensive: Social security systems must provide income support in
      a range of possible circumstances or life events which affect people’s
      ability to maintain employment or provide themselves with an adequate standard
      of living. These include:

      1. Old-age – Governments must ensure that older people who reach an age
        specified by national government and who do not have access to an income based
        pension or any other income have access to old-age benefits, services and other
        assistance.

      2. Sickness, injury and disability – Governments must provide cash and
        other health benefits to people who are incapable of working either temporarily
        or permanently due to ill-health, injury or disability.

      3. Unemployment – Governments must endeavour to provide adequate
        protection for people who are unable to secure suitable employment.

      4. Maternity – Governments must provide all working mothers with paid
        leave or leave with adequate social security benefits. The right to paid
        maternity leave is also recognised in article 11(2)(b) of CEDAW.

      5. Families and children – Governments must provide cash benefits and
        social services to families including survivors and orphans.

      6. Health care – Governments have an obligation to guarantee the
        establishment of health systems which provide adequate access to health services
        for all.

    • Adequate: Social security benefits can take the form of cash payments
      and in kind benefits such as concessions. In order to be considered adequate,
      social security benefits must ensure that people are able to afford the goods
      and services to realise the other rights under the ICESCR, including adequate
      food, clothing and housing. Access to health care should also ensure people are
      able to enjoy the highest attainable standard of physical and mental
      health.

    • Participation and information: People who receive social security
      benefits must be able to participate in the administration of the system. Social
      security systems must ensure the right of individuals and organisations to seek,
      receive and impart information on all social security entitlements.

    • Affordable: Where a social security system requires contributions,
      the costs and charges associated with making those contributions must be
      affordable for all people and must not impinge upon the enjoyment of other
      rights.

  7. Additionally, governments have the following obligations:

    • To avoid any deliberate retrogressive measures that will reduce the
      availability and accessibility (including coverage) of the right to social
      security.[36]

    • To adopt a national strategy and plan of action to realise the right to
      social security.[37]

    • To regularly review social security systems to ensure they comply with the
      right to social security.

(b) Relationship between
the right to social security and the right to an adequate standard of living
  1. The Committee has emphasized the special relationship between the right to
    social security (above) and other economic, social and cultural rights in the
    ICESCR - including the right to an adequate standard of
    living.[38]

  2. Article 11 of the ICESCR provides:

    The States Parties to the
    present Covenant recognize the right of everyone to an adequate standard of
    living for himself and his family, including adequate food, clothing and
    housing, and to the continuous improvement of living
    conditions.[39]

  3. The Committee has not yet authored a General Comment on the right to an
    adequate standard of living, although there are General Comments on elements of
    the right, including General Comment 4 on the right to adequate housing and
    General Comment 12 on the right to adequate food.

  4. The Committee has considered the right to an adequate standard of living in
    General Comment 6 ‘ the economic, social and cultural rights of older
    persons’. The Committee attaches great importance to principle 1 of the
    United Nations Principles for Older Persons, which provides that ‘older
    persons should have access to adequate food, water, shelter, clothing and health
    care through the provision of income, family and community support and
    self-help’.

  5. The right to social security, along with other complimentary measures to
    combat poverty and social exclusion and providing supporting social services,
    play an important role in supporting the realization of the right to an adequate
    standard of living. The Committee warns that the adoption of other measures to
    realize the right to an adequate standard of living will not in itself act as a
    substitute for the creation of adequate and accessible social security
    schemes.[40]

(c) Equal
enjoyment of the right to social security for women and men
  1. Under
    Article 2(2) of the ICESCR and Article 3 of the ICESCR, the Australian
    Government has an obligation to prevent discrimination and ensure that all women
    and men equally enjoy their economic, social and cultural rights, including the
    right to social security.

  2. Article 2(2) of ICESCR ensures the principle of non-discrimination is
    guaranteed for economic, social and cultural rights, such as the right to social
    security:

    The States Parties to the present Covenant undertake to
    guarantee that the rights enunciated in the present Covenant will be exercised
    without discrimination of any kind as to race, colour, sex, language,
    religion, political or other opinion, national or social origin, property, birth
    or other status.

  1. Article 3 of ICESCR imposes a duty on governments not only to prevent
    discrimination, but also to ensure that women and men equally enjoy the
    economic, social and cultural rights contained within the
    Covenant:

    The States Parties to the present Covenant undertake to
    ensure the equal right of men and women to the enjoyment of all economic, social
    and cultural rights set forth in the present Covenant.

  2. The Committee has stated that the definition of equality includes both
    formal and substantive equality.

    Formal equality assumes that
    equality is achieved if a law or policy treats men and women in a neutral
    manner. Substantive equality is concerned, in addition, with the effects of
    laws, policies and practices and with ensuring that they do not maintain, but
    rather alleviate, the inherent disadvantage that particular groups
    experience.[41]

  3. The Committee has directed governments to take specific action to ensure
    substantive equality:

    Substantive equality for men and women will
    not be achieved simply through the enactment of laws or the adoption of policies
    that are gender-neutral on their face. In implementing Article 3, States parties
    should take into account that such laws, policies and practice can fail to
    address or even perpetuate inequality between men and women, because they do not
    take account of existing economic, social and cultural inequalities,
    particularly those experienced by
    women.[42]

  4. Under article 2 of ICESCR, the Australian Government is obliged to:

    take steps... to the maximum of its available resources, with a
    view to achieving progressively the full realization of the rights recognized in
    the present Covenant by all appropriate means, including particularly the
    adoption of legislative measures.

  5. Accordingly, there are clear international human rights obligations to which
    Australia is bound which should inform the outcomes of the Review, both in terms
    of the Review ensuring that the Australia Governments meets it’s
    obligation to fulfill a person’s right to social security and to ensuring
    that this fundamental human right is enjoyed equally between women and men .

5 The
extent of the gender gap in retirement savings and retirement income in
Australia

  1. The Commission views the significant disparity between women and men’s
    retirement savings, and the high proportion of women with alarmingly low
    superannuation balances, as one of the gravest aspects of gender inequality in
    Australia. Several researchers and organisations have commented on the extent of
    the gender gap in retirement savings and retirement income in
    Australia.[43]

  2. This section provides an overview of the nature and extent of the gender gap
    in retirement savings and retirement income. It examines:

    • average superannuation account balances of women and men

    • distribution of superannuation account balances by gender and age

    • income and assets during retirement for women and men and

    • the impact of divorce and separation on financial security in
      retirement.

  3. Retirement savings refers both to compulsory savings accumulated through the
    SG and voluntary contributions. Retirement income refers to income received
    during retirement from government transfers such as the Age Pension,
    superannuation or annuity, investments or capital income from
    assets.

5.1 Average
superannuation account balances and payouts

  1. The most recent assessment of retirement savings, compiled by the
    Association of Superannuation Funds of Australia, reports that in 2006, the
    average superannuation account balance was $35 520 for women, compared to $69
    050 for men. This data may be compared with 2004, when it was reported that the
    average superannuation balance as $23 900 for women, compared to $56 400 for
    men.Between 2004 and 2006, women’s superannuation balances, as
    a proportion of men’s balances, increased from 42% to 51%. Accordingly,
    while there has been a slight improvement in women’s superannuation
    balances overall, there remains a significant gender gap.[44]

  2. Similarly, in 2006, the average retirement payouts (determined by the
    average balance for those aged 60 to 64) were $63 000 for women and $136 000 for
    men. In 2004, the average payout was $37 000 for women and $110 000 for men. As
    a proportion of the average payouts for men, women’s average payouts
    increased from 34% to 46% between 2004 and 2006. Again, while this represents an
    improvement, a significant gender gap
    persists.[45]

  3. A gender breakdown of the total shares of superannuation assets shows that,
    in 2006, men held around 66% of total superannuation account balances, compared
    to 34% for women.[46]

  4. Further, a recent study released by Access Economics and AMP, based on data
    from 320,000 AMP members, reports that in December 2007 the average
    superannuation balance was $51,639 for men and $30,887 for women.

  5. The data overwhelmingly reveals a significant gap in the average
    superannuation balances and payouts between women and men.

5.2 Distribution of
superannuation

  1. While the disparity between men and women’s average superannuation
    balances and payouts provides some indication of the gender gap in retirement
    savings, examining the distribution of superannuation amongst age groups, and
    within age groups provides further insight into the problem.

  2. For instance, breaking the average superannuation balances down by age,
    shows that the gender gap widens over the lifetime for individuals, with
    women’s superannuation balances as a proportion of men’s balances
    decreasing from 71.1% (25-34 age bracket) to 46.1% (60-64 age bracket). These
    figures are set out in the following
    table.

    Table: Estimated superannuation balances by age, Australia,
    2006[47]

Age group
Males
Females
Persons
Female/Male Proportion
25-34
$19,780
$14,060
$16,920
71.1%
35-44
$46,890
$25,580
$36,150
54.6%
45-54
$93,920
$48,250
$70,820
51.4%
55-59
$126,090
$58,760
$92,460
46.6%
60-64
$135,810
$62,600
$99,430
46.1%
All ages
$69,050
$35,520
$52,200
51.4%

  1. Further analysis of the data on superannuation balances shows significant
    inequality in the distribution of superannuation balances amongst women, with a
    significant majority of women holding superannuation balances that are
    alarmingly low. For example, in 2004, the Australian Bureau of Statistics
    reported that, despite average woman having $35 000 in superannuation, 30% of
    women have no superannuation, 50% have $8 000 or less and 70% have $25 000 or
    less’. A disparity between men aged 45-59 also exists. For example,
    although the average balance for these men is $87 100, 30% have $9 000 or less,
    50% have $31 000 or less and 70% have $80 000 or less. However, a significant
    gender gap is still evident.[48]

5.3 Income and assets
during retirement

  1. As a consequence of the gender gap in retirement savings, women generally
    have lower incomes from superannuation during retirement in comparison to men.
    In particular, single women are likely to fare worse financially in
    retirement, compared to women and men in couples and single men. This is
    compounded by the higher living costs for single individuals, compared to those
    in couples.

  2. A report based on the data from the Household, Income and Labour Dynamics
    in Australia Survey
    (HILDA), found the average household disposable income
    for a single retired woman over the age of 65 was $14 000, compared to $18 000
    for a single retired man. The average household income for a couple over the age
    of 65 was $28 000, shared by both members of the
    couple.[49]

  3. Another aspect of financial security during retirement in based on wealth
    acquired from assets. In Australia, property is the most common type of
    household asset followed by
    superannuation.[50] Again, a gender
    gap becomes apparent in assessing the average household net worth. For example,
    in 2002, the average household net worth for single retired women over 65 was
    $160 000, compared to $238 000 for
    men.[51]

  4. Many women who participated in the Sex Discrimination Commissioner’s Listening Tour reported their struggles to meet their basic financial
    commitments. For example:

    Because I was unable to access
    superannuation funds through my work in earlier years I had to return to work at
    the age of 66 [years], because I found it was impossible to maintain a house on
    my own and pay service bills etc. on the old age pension. I am now 72 [years]
    old and still working. I love my work and am dedicated to it - but long hours
    are having a deleterious effect on my health and the constant worry of not being
    able to meet the greedy interest rate payments is very stressful...Paying [a
    loan] back, out of a pension, is impossible - and women don’t realise this
    until they have been forced in to the situation of using their only asset to try
    to achieve a liveable
    income.[52]

  5. The higher likelihood of poverty for women in retirement is the end result
    of women being unable to enjoy their right to social security on equal basis
    with men. This unequal protection of their right to social security is due to
    systemic disadvantage that women experience as a result of the current
    retirement income system being linked exclusively to paid work.

5.4 The impact of
divorce and separation on financial security in retirement

  1. Divorce and separation is a further factor contributing to financial
    insecurity for older women. The number of divorced women entering retirement is
    expected to rise significantly in the next two
    decades.[53]

  2. It is well established that women often experience financial hardship
    following divorce. However, a study examining the impact of divorce in
    retirement has found that divorce has lifetime financial
    consequences.[54]

  3. For example, examining the financial circumstances of individuals aged
    55-74, by marital status and gender, shows that divorced women have the lowest
    levels of household equivalent income, superannuation and per capita household
    net assets compared to married women and men and divorced men. Divorced women
    were also less likely to own their home outright compared to married
    women.[55]

  4. Although divorced women are more likely than divorced men to own their home,
    women’s disposable income decreases following separation, thereby limiting
    their capacity to accumulate superannuation or make voluntary
    savings.[56]

6 The
implications of the gender gap in retirement savings

  1. This section sets out the consequences of the gender gap in retirement
    savings. It examines the:

    • number of women in receipt of the Age Pension

    • incidence of poverty amongst older women

    • consequences of poverty for older women.

  2. The most critical implication of the gender gap in retirement savings is the
    likelihood of poverty for women in retirement. Lower levels of retirement
    savings, a likelihood of early retirement and longer life expectancy places
    women at greater risk of a sharp decline in their standard of living during
    retirement.[57]

  3. The Commissioner heard many stories of women justifiably anxious about
    prospects of poverty in retirement on her Listening Tour, and working longer
    hours to redress their situation:

    As a baby boomer approaching
    retiring age and having spent most of my years raising children, I have very
    little hope of retiring and will need to work for as long as possible. I will
    not be independent financially...The pressure is really on women who have not
    been high income earners and the outlook for the future is bleak. I see many
    tired women who are working fulltime, supporting husbands and trying to be a
    helpful grandparent.[58]

  4. As a result of low superannuation savings, women are currently and will
    continue to be heavily reliant upon the Age Pension. The Australian Government
    has reported that 58.3% of all Age Pensioners are women and 73% of those
    receiving the single rate of the Age Pension are women. Of all retired
    households, single women are most likely to be reliant on the full Age Pension
    as their main source of retirement
    income.[59]

  5. The Commission is concerned that the current single rate of the Age Pension
    is below the commonly used poverty line of 50% of median
    income.[60] This has a
    disproportionate impact on women due to the higher proportion of women in
    receipt of the single rate of the Age Pension.

  6. The Commission views women’s vulnerability to poverty in retirement as
    a serious failing of the current retirement income system. Of all household
    types in Australia,[61] elderly
    single women are at the greatest risk of poverty, with 56.3% of these households
    living in poverty between 2001 and 2005. Elderly single women are also the most
    likely household to experience persistent poverty with over one third
    consistently living in poverty for the entire 5 year period between 2001 and
    2005.[62]

  7. There are a number of serious consequences of poverty for women in
    retirement, including the inability to pay for basic expenses such as food,
    housing, utilities, clothing and health expenses not covered by Medicare.

  8. In a study on life after retirement, 43.5% of single women reported that
    their standard of living was worse or much worse after retirement. Of these
    single women, divorced women were even more likely to experience a decline in
    standard of living, with 54.3% of divorced or separated women reporting their
    standard of living had worsened, which was a higher proportion compared to women
    and men who were widows and women and men who were never
    married.[63]

  9. Reliance on the Age Pension in retirement results in women making major
    adjustments to meet their living expenses. Both single and partnered women are
    more likely than men to cut back on their normal weekly spending in retirement.
    Retired single women are almost twice as likely as single men to sell their
    house to move to lower cost accommodation because of their financial
    circumstances in retirement.[64]

7 The
reasons for the gender gap in retirement savings and retirement income

  1. This section sets out the factors contributing to the gender gap in
    retirement savings. It examines the:

    • level of women’s earnings compared to men’s earnings

    • level of women’s labour market participation, and underlying
      factors

    • specific barriers to labour market participation for older women.

  2. The Commission acknowledges that, since the introduction of
    Australia’s compulsory superannuation system in 1992, there has been a
    series of positive changes made to improve the coverage and level of
    superannuation for women. These developments include:

    • removal of the blanket exemption which exempted superannuation or provident
      fund schemes from the operation of the SDA

    • protection for small superannuation accounts (under $1000) against depletion
      from fees and charges

    • introduction of measures to assist in the roll-over or consolidation of
      small superannuation accounts

    • introduction of a spouse rebate entitlement to allow spouses to make
      contributions on behalf of a spouse who is not in a paid workforce or on a low
      income

    • introduction of super splitting provisions whereby one spouse can split
      their superannuation into two accounts and superannuation can be split in cases
      of divorce

    • introduction of the Superannuation Co-contribution Scheme to increase
      superannuation savings for low income
      earners.[65]

  3. However, the extent of the gender gap in retirement savings demonstrates
    that a number of significant systemic barriers remain for women’s equal
    participation in and benefit from the current superannuation system.
    Accordingly, these systemic barriers prevent women being able to equally enjoy
    their human right to social security.

  4. The factors contributing to the gender gap in retirement savings are complex
    and interconnected. As the superannuation guarantee is linked to participation
    in the paid workforce and the level of individual earnings, this disadvantages
    women, as women generally have lower earnings over the lifetime and lower levels
    of labour market participation due to caring responsibilities.

  5. Prior to the introduction of the SG, many women were excluded from
    superannuation schemes. This is a further contributing factor to the gender gap
    in retirement savings.

7.1 Lower earnings
over the lifetime

  1. One of the factors contributing to the gender gap in retirement savings is
    the ratio of women’s to men’s earnings – commonly known as pay
    inequity or the gender pay gap. This means that women will have lower earnings
    over the lifetime, resulting in women accumulating lower amounts of
    superannuation. As a further result of lower earnings, women generally have a
    lower capacity to make voluntary contributions to superannuation without
    significant detriment to current consumption.

  2. The gap between men’s and women’s ordinary full time earnings is
    currently 16%.[66] The gender pay
    gap is even greater when women’s part-time and casual earnings are
    considered, with women earning around two thirds of the amount earned by
    men.[67]

  3. In Australia, women constitute a higher proportion of casual workers, are
    more likely to be working under minimum employment conditions and be engaged in
    low paid occupations and industries. Whilst the gender difference overall for
    casualised work is modest with fifty-six per cent of casual workers being women,
    82% of female casual workers are part time. In comparison, 52% of male casual
    workers are part-time, representing a significant gender
    difference.[68]

  4. Industries and occupations in Australia remain highly segregated by gender
    and women’s work is often undervalued. Women are generally concentrated in
    lower level work classifications with few opportunities for training and skill
    development.[69]

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

    The amount of pay is
    incredibly low and the work is undervalued. Caring for children should be valued
    in our society but we are
    invisible.[70]

  6. A further explanation of pay inequity is women’s continuing greater
    responsibility for the care of dependent family members such as children,
    elderly parents, partners or people with disability requiring
    care.[71]

  7. Women may typically take on paid work to balance caring responsibilities
    which does not fully reward their skills and experience in order to work
    part-time or secure flexible working arrangements. Such trade-offs between
    conditions and pay were reported to the Commission throughout the consultations
    for the report, It’s About Time: Women, Men, Work and Family (‘It’s About Time (2007)’).[72]

  8. The Commission has also found that pay inequity is a major factor in
    determining who undertakes care in couple families, creating limited choices and
    opportunities for both women and
    men.[73]

  9. Along with an often unspoken assumption that women will undertake the
    majority of unpaid caring work, pay inequity in effect forces the higher earner
    to take on the majority of paid work while the lower earner is left with the
    majority of unpaid caring work. This occurs regardless of skill levels,
    preferences or the needs of those requiring care.

  10. The gender pay gap means that women are generally further disadvantaged
    through the superannuation tax concessions. Current taxation arrangements in
    relation to superannuation are configured to advantage high income earners,
    which in turn generally disadvantages women because of their lower earnings. For
    example, higher income earners receive a greater benefit from superannuation tax
    concessions (contributions tax), compared to lower income earners. The flat
    contributions tax rate for employer contributions and salary sacrifice
    arrangements mean that high income earners effectively save more tax per dollar
    contributed towards their superannuation accounts. Given that higher income
    earners also have greater capacity to make voluntary contributions, this tax
    arrangement further perpetuates gender inequality within the superannuation
    system.[74]

7.2 Disrupted and
lower rates of labour market participation

  1. The superannuation system has been designed to provide maximum economic
    security in retirement on the premise of participants’ maximum benefit on
    their investment following 35 years of continuous full-time labour market
    participation. However, this system inherently disadvantages women.

  2. Women’s’ disrupted and lower rates of labour market
    participation is a key factor resulting in their lower capacity to make
    compulsory contributions to superannuation and their lower capacity to
    contribute to voluntary savings.

  3. Overall, women’s labour market participation has steadily increased to
    58.7%, but is still significantly lower compared to 72.9% for
    men.[75] Further, 45% of women
    workers work part time,[76] many of
    them mothers working part time in order to balance their paid work and family
    responsibilities. Seventy-one per cent of all part time workers are
    women.[77]

  4. Over the lifecycle, women spend fewer years in paid work compared to men.
    For example, women born between 1948 and 1964 are estimated to spend 60% of the
    time in paid work that is estimated for men in their age
    group.[78]

  5. In Australia, mothers’ workforce participation continues to be low by
    international standards. The employment rates for Australian women with
    children, particularly those where the youngest child is under six years of age,
    are low by comparison with other OECD countries. The employment rate of mothers
    with a youngest child under six years of age is 49.6%, compared with the OECD
    average of
    59.2%.[79]

  6. Employment rates also vary considerably between different groups of women,
    such as women with disability,[80]
    Indigenous women[81] and women from
    culturally and linguistically diverse
    backgrounds.[82] This results in
    even lower superannuation savings for these groups, increasing their
    vulnerability to poverty under the current retirement income system

  7. The Commission has reported on the significant and persistent barriers to
    women’s workforce participation in the Listening Tour Community Report
    (2008) and It’s about Time (2007). The barriers to
    women’s full and equal participation in the workforce include, but are not
    limited to:

    • ongoing direct and indirect discrimination on the basis of sex, pregnancy,
      potential pregnancy and family and carer responsibilities

    • limited availability of flexible working arrangements and quality part time
      work

    • a lack of access to paid maternity, paternity and/or parental leave

    • a lack of access to quality, affordable child care and other care
      facilities

    • tax arrangements that provide a disincentive to women’s workforce
      participation.

  8. These barriers must be addressed for women to be able to participate equally
    and gain benefits equally from Australia’s retirement income
    system.

(a) Ongoing
discrimination
  1. Women in Australia continue to experience workplace discrimination on the
    basis of sex, pregnancy, potential pregnancy and family and carer
    responsibilities. In the 2007-2008 year, the Commission received 438 complaints
    under the SDA, 84% of which were from women. 87% of these complaints were in the
    area of employment.

  2. On the Listening Tour, the Sex Discrimination Commissioner heard that
    discrimination remains a reality of women’s lives, despite nearly 25 years
    of legislation. A participant at the Hobart community consultation described the
    experience of her daughter-in-law, which highlights how discrimination can
    impact upon women’s labour market participation:

    I have a
    daughter-in-law who works for a call centre. She fell pregnant and had a baby,
    at this time her boss said that if she wanted to come back she could. After six
    months, he gave her a hard time and said she had to work full time if she wanted
    to work. He did this because he thought women should be in the home. She ended
    up leaving. She knew it was discrimination but he is the
    boss.[83]

  3. To increase women’s labour force participation, and subsequently
    increase women’s retirement savings, the Commission views the need to
    strengthen legislative protection against discrimination, both in relation to
    sex, and also family and carer responsibilities, particularly given the ageing
    of the Australian population and the likelihood of an increasing number of women
    in particular combining child rearing and elder care with paid
    work.[84]

(b) Lack of flexible
work arrangements and paid parental leave
  1. Perhaps the most fundamental barrier to women’s full participation in
    paid work is the struggle to balance paid work and family responsibilities,
    which prevents many women from participating in the labour market to the degree
    that they would like, thereby limiting their capacity to accumulate
    superannuation and voluntarily contribute to savings.

  2. A recent survey of time-use has found that mothers of young children (where
    the youngest child in the family was aged 0 to 4 years) spend over 30 hours a
    week caring for children, compared to 11 hours for fathers. The same survey
    found that women spend double the time on unpaid domestic work compared to
    men.[85] More time spent in unpaid
    and caring work means that there is less time for paid work.

  3. The Commission views the current structure of workplaces as inherently
    disadvantageous to women. Workplace structures have evolved around an
    ‘ideal worker’ norm of the traditional male breadwinner who is
    supported by a wife at home full time raising children. The ‘ideal
    worker’ norm refers to a traditional male breadwinner pattern of
    continuous full time work with no recognition of caring
    responsibilities.[86] A consequence
    of this model is lower rates of labour market participation for women and the
    resulting gender gap in retirement savings.

  4. The Commission has identified a lack of access to family-friendly policies
    such as flexible working arrangements and paid parental leave as a key barrier
    to women’s workforce participation. However, often where these policies
    are available, resistant and inflexible management and cultures prevent their
    take up.[87]

  5. Increasing the availability and application of family friendly policies such
    as flexible work arrangements and paid parental leave will increase
    women’s labour market attachment. For example, retention rates for some
    companies with paid leave entitlements such as Monash University, GM Holden and
    other ‘Employer of Choice for Women’ companies are around
    90%.[88]

  6. The Commission has also jointly commissioned research which shows that
    parents with children of school age nominate greater flexibility in paid work as
    a priority for providing better support in balancing their paid work and family
    responsibilities.[89]

  7. The Commission holds the view that measures to improve women’s labour
    market attachment, such as protection from discrimination on the grounds of
    family and carer responsibilities, for both women and
    men,[90] and flexible work practices
    and paid parental leave,[91] can be
    expected to improve their the ability of women to engage in paid work and to
    thereby accumulate greater lifetime earnings and subsequently higher retirement
    savings.

(c) Lack of access to
quality, affordable child care and other care facilities
  1. In relation to women’s workforce participation, the Commission has
    consistently heard that there is a dire need for access to quality, affordable
    child care and other care
    services.[92] During the
    Commissioner’s Listening Tour, many participants reported that the
    cost and limited availability of child care often meant that it made better
    financial sense for one parent, commonly the female partner, to stay at
    home.[93]

  2. To improve women’s workforce participation, the Commission has
    previously reported that there needs to be: increased availability of formal
    child care, particularly in regional areas; improved affordability for parents;
    flexibility of child care for long and irregular hours workers; and integration
    of school and work hours and availability of outside school hours
    care.[94]

  3. With the rapid ageing of the population it is paramount also that the
    accessibility and affordability of other care services, such as disability and
    elder care services are also considered in the context of increasing
    women’s labour market participation.

(d) Tax arrangements
that provide a disincentive to women’s workforce participation
  1. The Commission has previously reported on community concern regarding the
    current tax arrangements where Family Tax Benefit Part B (‘FTB(B)’)
    is withdrawn on the income of the secondary earner in two parent families.

  2. Researchers have argued that this creates a disincentive to labour market
    participation for secondary earners, primarily women, as it results in financial
    penalties through a higher effective marginal tax
    rate.[95] In It’s About
    Time (2007)
    , the Commission reported:

    It has been argued that
    this situation is inequitable towards second earners – overwhelmingly
    women – and damaging to the economy in respect of encouraging female
    labour force participation and that a fairer system lies in a return to a
    progressive individual tax system. Such a system would apply a lower rate of tax
    to the lower earning partner, improve vertical equity, allow the expansion of
    the tax base and thus provide greater resource to provide a more universal
    system of child benefits and improve women’s labour market
    participation.[96]

  1. The Commission considers that the family tax system should support choice
    within families about paid work and caring responsibilities.

7.3 Specific barriers
to labour force participation for older women

  1. The tendency of women to retire earlier than men has been documented as a
    further contributing factor for lower levels of retirement
    savings.[97] For example, in the
    50-54 age bracket, 17.7% of women are retired, compared to 8% of men. In the
    55-59 age bracket, 31.4% of women are retired, compared to 17.4% of
    men.[98]

  2. It is commonly often suggested that older women should stay in the paid
    workforce for longer to accumulate greater retirement savings. The Commission
    notes that although increasing labour market participation for older women has
    some positive role in increasing retirement savings, this alone will not close
    the gender gap on retirement savings. This is because the system is designed
    upon the principle that contributions made early in life will accrue the most
    benefits over time.[99]

  3. Furthermore, older women encounter a number of specific barriers to
    workforce participation including sex and age discrimination, lack of flexible
    work to accommodate caring responsibilities and a lack of training and education
    opportunities. These barriers need to be removed to increase workforce
    participation for women in this age group.

(a) Discrimination
  1. Older women experience unique forms of discrimination based on their age and
    gender. For example, some studies have found that older women are more likely to
    receive negative responses during recruitment and are more likely to be made
    redundant.[100]

  2. Research undertaken by Dr Barry Partridge of Workplace Images Consulting on
    ‘Age-Gender Based Discrimination in Australian Workplaces’ provides
    insight into this discrimination. Based on interviews with more than 100
    managers from workplaces around Australia, the research investigates employment
    decisions made by managers across different age and gender employee categories.
    Decisions on promotion, selection, and training were
    considered.[101]

  3. Of the preferences expressed by managers, mid-aged women between 30 and 45
    years of age received the highest percentage of positive selection
    decisions of all age and gender groups. Women less than 30 years of age received
    the highest percentage of positive training decisions. However, on the
    question of promotion, men aged between 30 and 45 received the highest
    percentage of positive promotion decisions. In stark contrast, across all
    decisions made on selection, training and promotion, older women (45+) received
    the lowest percentage of positive decisions from managers. Even older female
    managers would not hire, train or promote other women over 45.

  4. The stereotypes and assumptions behind these results reveal the extent of
    negative attitudes towards older women workers. Managers saw older women as
    ‘loyal but lacking in potential’ which in turn impacts on their
    ability to be promoted. Older women were also perceived as being ‘low in
    energy’ and as ‘unwilling to accept criticism’ which again can
    effect manager’s selection and training decisions.

  5. The Commission considers these discriminatory attitudes act as a barrier to
    older women being able to find and maintain employment, and consequently being
    able to build savings for retirement.

(b) Caring
responsibilities
  1. Secondly, older women also often find it difficult to find work that is
    flexible to support their family responsibilities including caring for children,
    grandchildren, relatives with disability, elderly parents or sick
    spouses.[102] This accords with
    the research finding that women commonly retire early due to caring
    responsibilities.[103]

  2. The Commission considers that flexible work arrangements should be made
    available to women of all ages to maximise labour market participation across
    the lifecycle. Legal protection from discrimination on the grounds of caring
    responsibilities is also required.

(c) Access to education
and training
  1. Participants in the Commissioner’s Listening Tour reported a
    lack of access to training and return to work preparation programs for older
    women which presents another barrier to older women’s labour market
    participation.[104] Current
    consultations being undertaken by the Commission in the area of age
    discrimination have also identified this is a key barrier for re-entry into the
    labour market.[105]

7.4 The impact of
women’s past exclusion from superannuation schemes

  1. Until 1993, there was a blanket exemption in the SDA which allowed
    superannuation funds and insurance to discriminate on the basis of sex. During
    the early years of superannuation, prior to the 1991 amendment to the SDA and
    the introduction of the SG, many funds excluded women. For example, in 1988,
    only 47% of women working full-time were members of superannuation funds,
    compared to 64% of men.[106]

  2. Participants in the Commissioner’s Listening Tour, commented on
    the impact of this exclusion:

    When I worked years ago men could
    join the super fund but women couldn’t. My husband said,
    “Don’t worry about super because you’ll be leaving [the paid
    workforce] soon”. Then my marriage fell apart and I was left with no
    superannuation because all the money had gone into the house instead. I left
    after 15 years in the paid workforce with nothing, no superannuation, a bit of
    long service leave. I didn’t get the same wage as the males yet I was
    expected to take on more secretarial work. That is the way the work was
    structured. Everyone worries about retirement savings but let’s remember
    we were not invited to join the superfund until 25 years
    ago.[107]

8 Solutions
for increasing women’s financial security in retirement

  1. This submission specifically addresses the gender inequality in
    Australia’s retirement income system. Whilst the Commission has not had
    the capacity to undertake detailed analysis of the retirement income system and
    the taxation system more broadly, the Commission considers that a broad range of
    immediate and long term strategies must be implemented in order to redress the
    disadvantage that women experience. A range of measures need to be adopted in
    order to ensure that women and men equally enjoy their human right to social
    security under article 3 and 9 of the ICESCR.

  2. The Commission has developed recommended areas for action which draw upon
    its previous work and expertise in the following areas:

    • removing barriers to women’s labour market participation

    • increasing life-time earnings for women by reducing the gender pay gap

    • extending initiatives to increase superannuation contributions for low
      income earners and those on welfare payments

    • ensuring the Age Pension protects individuals from poverty and fulfils
      Australia’s international human rights obligations for women and men to
      equally enjoy a right to social security

    • regular monitoring and reporting on the gender impact of Federal budgets and
      reforms

    • introducing measures to achieve equality in women’s representation in
      superannuation fund governance positions

    • independent monitoring and reporting on Australia’s progress towards
      achieving substantive gender equality

    • reviewing the superannuation exemptions in the Sex Discrimination Act
      1984
      (Cth).

8.1 Removing barriers
to women’s labour market participation

  1. Increasing women’s labour market participation across the lifecycle is
    critical to closing the gender gap in retirement savings and increasing
    women’s financial security in retirement.

  2. The Commission recommends the following actions to remove barriers to
    women’s labour market participation:

    • Extend legal protection from discrimination on the grounds of family and
      carer responsibilities; and

    • Introduce a positive duty to reasonably accommodate family and carer
      responsibilities;

    • Introduce a national scheme of paid leave for parents; and

    • Remove tax disincentives to women’s labour market
      participation.

(a) Extend legal
protection from discrimination on the grounds family and carer responsibilities
  1. Ensuring that women with family and carer responsibilities have reasonable
    access to flexible work arrangements is important for improving labour market
    participation and subsequently increasing superannuation.

  2. If employees are able to access flexible work arrangements in accordance
    with their family and carer responsibilities, more women will be able to remain
    in secure forms of work that are commensurate with their skill levels, retain
    access to benefits, training and promotional opportunities. This in turn will
    increase their level of earnings.

  3. The Commission has found that many men and women workers with family and
    carer responsibilities want to share the care of children and other dependents
    more equally. However, they face a number of barriers to doing
    so.[108]

  4. Increasing access to flexible working arrangements for both women and men
    will also facilitate greater choice for couples who wish to share their caring
    responsibilities more equally, thus creating greater opportunities for women to
    participate in the workforce and increase their superannuation.

  5. The Commission has welcomed the proposed extended protections against
    discrimination on the grounds of family and carer responsibilities set out in
    the Fair Work Bill 2008
    (Cth).[109]

  6. However in the Commission’s view, the family responsibilities
    provisions of the SDA continue to provide insufficient protection for men and
    women workers with family responsibilities. In the Submission to the Senate
    Legal and Constitutional Affairs Committee Inquiry into the effectiveness of the
    Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting
    gender equality
    (2008) (‘SDA Submission (2008)’), the
    Commission reiterated its view that protection from discrimination on the
    grounds of family and carer responsibilities needs to be extended. Increasing
    legal protection in this area would have a significant impact on women’s
    labour force participation and earnings over the lifetime.[110]

  7. While the SDA provides protection from discrimination on the ground of
    family responsibilities it is more limited than the other grounds, in that it
    only provides protection from:

    • direct discrimination; and

    • dismissal (including constructive dismissal) from
      employment.[111]

  8. To increase women’s labour market participation, the Commission
    considers that the SDA should be amended as soon as possible to ensure that all
    forms of discrimination on the grounds of family and carer responsibilities are
    unlawful. The amendment should:

    • make unlawful discriminatory treatment in all aspects of work, rather
      than restricting protection to discriminatory treatment in employment that
      results in dismissal.

    • make unlawful indirect family and carer responsibilities
      discrimination.

    • extend the definition of family responsibilities to include family and
      carer responsibilities,
      which is inclusive of same-sex families, and provide
      a definition of family members and dependents which ensures adequate cover for
      both children and adults to whom care is being
      provided.[112]

  9. The Report of the Senate Inquiry into the Effectiveness of the Sex
    Discrimination Act 1984 in eliminating discrimination and promoting gender
    equality (‘The SDA Inquiry Report (2008)’) adopted the
    Commission’s recommendation to extend family responsibilities under the
    SDA.[113] The Commission urges the
    Australian Government to implement this recommendation without delay.

Recommendation 1: Extend family and carer responsibilities protection
under the Sex Discrimination Act 1984 (Cth)

Implement recommendation 13 of the Standing Committee on Legal and
Constitutional Affairs’ report on the Effectiveness of the Sex
Discrimination Act 1984
in eliminating discrimination and promoting gender
equality:

The committee recommends that the prohibition on discrimination on the
grounds of family responsibilities under the Act be broadened to include
indirect discrimination and discrimination in all areas of
employment.[114]

 

(b) Introduce a positive
duty to reasonably accommodate family and carer responsibilities
  1. Introducing a positive duty to reasonably accommodate family and carer
    responsibilities would provide a greater level of support for women and men who
    require flexible working arrangements. As stated in the section above, greater
    availability of flexible work arrangements for both women and men would increase
    women’s labour market participation. This in turn would increase
    superannuation accumulations.
  2. Introducing a positive duty would also assist in clarifying employer
    responsibilities in this area.
  3. In the SDA Submission (2008), the Commission recommended that the SDA
    be amended to introduce a positive obligation on employers and other appropriate
    persons to reasonably accommodate the needs of workers in relation to their
    pregnancy or family and carer responsibilities. This would complement the right
    to request flexible work practices in the proposed National Employment
    Standards
    in the proposed Fair Work Bill 2008 (Cth).
  4. This recommendation was adopted by the SDA Inquiry Report
    (2008)
    .[115]
  5. In the Submission to the Senate Education, Employment and Workplace
    Relations Committee for the Inquiry into the Fair Work Bill 2008,
    the
    Commission made a number of recommendations to strengthen the proposed National
    Employment Standard on the right to request flexible work
    practices.[116] These
    recommendations were made with the objective of removing barriers to
    women’s labour market participation. The Commission repeats these
    recommendations to this Review.

Recommendation 2: Positive duty to reasonably accommodate the needs of
workers who are pregnant and/or have family or carer responsibilities

Implement recommendation 14 of the Standing Committee on Legal and
Constitutional Affairs’ report on the Effectiveness of the Sex
Discrimination Act 1984
in eliminating discrimination and promoting gender
equality:

The Committee recommends that the Act be amended to impose a positive duty
on employers to reasonably accommodate requests by employees for flexible
working arrangements, to accommodate family or carer responsibilities, modelled
on section 14A of the Equal Opportunity Act 1995
(VIC).[117]

Recommendation 3: Strengthen the right to request flexible work
arrangements National Employment Standard

To strengthen the right to request flexible work arrangements National
Employment Standard
the Commission recommends the following:

  • qualification requirements that restrict the categories of employees who can
    make a request for flexible working arrangements should be removed.

  • the right to request flexible working arrangements should be extended to all
    forms of family and caring responsibilities.

  • the right to request flexible working arrangements be extended to employees
    with a disability.

  • same rights of redress applicable to the other nine National Employment
    Standards should be extended to the unreasonable refusal of a request for
    flexible work arrangements

  • the right to request should be accompanied by an education campaign that
    includes clear information that employees may have access to the provisions of
    the Sex Discrimination Act 1984 (Cth) (and the Disability
    Discrimination Act
    ) where flexible arrangements are
    denied.[118]

(c) Introduce a national
scheme of paid leave for parents
  1. In the Submission to the Productivity Commission Inquiry into Paid
    Maternity, Paternity, and Parental Leave
    , the Commission urged
    the government to introduce a national paid leave scheme in two stages. Stage
    One proposed a first phase of paid maternity leave (14 weeks) and supporting
    parent leave (two weeks).The Commission recommended that Stage Two
    include an additional paid parental leave component (38 weeks, of which four
    weeks are reserved for the supporting parent on a “use it or lose
    it’ basis).[119]
  2. In addition to other benefits, the Commission considers that a national paid
    leave scheme will increase women’s labour market attachment and
    consequently increase retirement savings. The Commission recommended that the
    leave entitlements be paid as taxable income including superannuation.
  3. In November 2008, the Commission endorsed the national paid leave scheme
    model proposed by the Productivity Commission, with recommendations for
    improvement in a number of areas. The Commission welcomed the inclusion of
    superannuation as part of the payments under the proposed
    scheme.[120]

Recommendation 4: Introduce a national scheme of paid leave for
parents

The Australian Government should adopt the Productivity Commission’s
proposed model for paid parental leave as a matter of urgency. The scheme should
include compulsory additional superannuation payments.

 

(d) Remove tax
disincentives to women’s labour market participation.
  1. Creating an equitable tax system that both supports families and
    facilitates equal workforce participation by women and men is important for
    closing the gender gap in retirement savings and ensuring financial security in
    retirement.

  2. In It’s About Time (2007), the Commission made recommendations
    specifically in reference to Family Tax Benefit Part B. These recommendations
    were based on the principle of maximising choice within families about the
    sharing of paid work and caring
    responsibilities.[121] These
    changes will also provide low income secondary earners, primarily women, higher
    disposable incomes, to enhance their capacity to make voluntary superannuation
    contributions.[122]

Recommendation 5: Modify Family Tax Benefit Part B

Family Tax Benefit Part B should be modified to support choice within
couple families around the sharing of paid work and caring
responsibilities.

 

8.2 Increasing
life-time earnings for women by reducing the gender pay gap

  1. The gender gap in retirement savings is a consequence of women’s lower
    earnings over the lifetime. Reducing the gender pay gap is an important priority
    for increasing women’s financial security in retirement.

  2. In 2008, the Commission made a submission to the House of Representatives
    Standing Committee on Employment and Workplace Relations on the Inquiry into
    pay equity and associated issues related to increasing female participation in
    the workforce
    (“Pay Equity Submission
    (2008)”).[123]

  3. The Commission made a number of recommendations in the Pay Equity
    Submission (2008)
    to reduce the gender pay gap. The Commission considers
    that these measures should be introduced without delay to increase women’s
    retirement savings and improve financial security in retirement.

Recommendation 6: Improve data collection and monitoring of the gender
pay gap

The Australian Government should revisit previous recommendations made by
the Commission in relation to data collection and monitoring of women’s
pay and employment conditions in order to:

  • address gaps in data collection by resourcing the Australian Bureau of
    Statistics to collect and publish regular gender disaggregated data in areas of
    need identified by Women in Economic and Social
    Research[124]

  • fund the Department of Education, Employment and Workplace Relations to
    conduct an annual national workplace relations survey to monitor gender
    differences in changes to pay and conditions and

  • establish a comprehensive set of indicators for measuring achievement
    towards gender equality in this area over time, either independently or as part
    of a broader set of indicators and monitoring to be developed by the Commission,
    subject to recommended legislative change to the SDA and appropriate, tied
    funding.

Recommendation 7: Strengthen legal and institutional
arrangements to reduce the gender pay gap

The Australian Government should consider the range of alternative
approaches for achieving pay equity as previously recommended by the Commission,
including workplace audit processes, monitoring and enforcement processes.

Possible options include:

  • setting up a specialist unit in the new wage setting body of Fair Work
    Australia to develop and monitor pay equity mechanisms

  • requiring Fair Work Australia to undertake investigations focused on
    undervaluation and comparative worth in female dominated occupations and
    industries

  • amending legislation to require pay equity audits and action plans to be
    carried out at the workplace level

  • introducing the ability for the Equal Opportunity in the Workplace Agency
    and/or the Commission to receive gender equality action plans, from bodies other
    than employers currently covered by the Equal Opportunity for Women in the
    Workplace Act 1999
    (Cth) (‘EOWW Act’), including specific plans
    on pay equity

  • amending the EOWW Act or the SDA to provide for an auditing function for
    gender equality action plans which is properly resourced

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

  • introducing specialised pay equity legislation.

8.3 Extending
initiatives to increase superannuation contributions for those not in paid work
due to caring responsibilities and low income earners

(a) Superannuation for
those not in paid work due to caring responsibilities
  1. In It’s about Time (2007), the Commission reported on community
    concern about the linking of superannuation payments to paid employment and the
    lack of social and economic value placed on unpaid work. Individuals and
    organisations commented on the inequity of the current system being linked to
    paid work, particularly given the significant value of unpaid work to the
    nation’s economy.
    [125]

  2. The Commission’s view is that Australia’s retirement income
    system should recognise the value of unpaid work to the economy. At a minimum,
    those who take time out of paid work to provide care, should receive
    superannuation contributions in addition to their Centrelink payments. Carers
    should also be eligible for the Superannuation Co-Contribution Scheme.

  3. Importantly, the Commission views that superannuation contribution should
    not be made in place of an adequate carer payment to meet current living
    costs. Accordingly, these superannuation payments should have a new and separate
    budget allocation.

  4. The Commission recognises that even with superannuation contributions paid
    in addition to Centrelink payments for carers, many will remain reliant on the
    Age Pension. Carers also have a lower capacity to make voluntary contributions.
    Therefore, the Commission considers that, in the medium term, there is a need to
    establish a specific scheme to recognise the economic contribution of unpaid
    carers with a retirement benefit. This could include government funded carer
    superannuation credits to be paid at the time of retirement, or a national fund
    or social insurance scheme established specifically for
    carers.

Recommendation 8: Provide superannuation for those not in paid work due
to caring responsibilities

The Australian Government should make direct superannuation contributions
for those who are not in the paid workforce because of caring responsibilities.
These contributions should be made at the same level as the SG in addition to
existing Centrelink income support.

This should include those eligible for the Carer Payment, Parenting Payment
or in receipt of the Carer allowance in addition to other Government income
support payment for people of working age.

The Australian Government should also extend the Superannuation
Co-contribution Scheme to these groups.

Recommendation 9: Investigate establishing a superannuation scheme for
carers

The Australian Government should investigate establishing a specific
retirement income scheme to recognise the value of unpaid caring work.

This could include government funded carer superannuation credits to be
paid at the time of retirement, or a national fund or social insurance scheme
established specifically for carers.

(b) Increasing
superannuation savings for low income earners
  1. Greater efforts are needed to build adequate superannuation balances for low
    income earners, many of whom are women.

  2. The Commission notes that the requirement to earn $450 a month before
    employers contribute superannuation results in casual and low paid workers
    (primarily women) being excluded from coverage. However, the Commission shares
    the concern that removing the $450 threshold may result in the loss of current
    income amongst those who are in greatest
    need.[126]

  3. The Commission is also concerned that any increases in the SG may have a
    disadvantageous effect for low and middle income earners as further increases
    may lead to financial hardship because of reduced disposable income and lower
    increases in salary.[127] The
    Commission views that any modifications to the SG, in terms of level and
    coverage, should be modelled to assess whether they reduce or increase gender
    inequality and create financial hardship for those on low incomes.

  4. Additionally, the Commission considers that the current tax arrangements
    should be modified to provide greater equity across income levels and provide
    better incentives for low income earners, primarily women, to save for
    retirement and reduce reliance on the Age Pension. Accordingly, the Commission
    proposes a review, including a gender impact assessment, of the current tax
    concessions related to
    superannuation.[128]

  5. Finally, the Commission proposes that the Australian Government should also
    make superannuation apply to Aboriginal and Torres Strait Islanders on the
    Community Development Employment Program in addition to their benefits, in
    recognition of the value of this work to the
    community.

Recommendation 10: Model the gender impact of any proposed changes to
the Superannuation Guarantee

The Australian Government should model the gender impact of any proposed
changes in the coverage or level of the Superannuation Guarantee with a view to
minimising financial hardship for those on low incomes. This analysis should be
made publically available.

Recommendation 11: Equity in superannuation tax concessions

The Australian Government should review and modify superannuation tax
concessions to ensure that benefits are provided equitably between low, middle
and high income earners, and to maximise gender equality.

Recommendation 12: Superannuation for those in the Community Development
Employment Program

The Australian Government should make direct superannuation contributions
at the same level as the SG, in addition to existing benefits, for those who are
in the Community Development Employment Program.

8.4 Ensuring the Age
Pension fulfils Australia’s international human rights obligations for
women and men to equally enjoy a right to social security

  1. The Age Pension has an important role in the retirement income system as a
    safety net for those unable to save for retirement.

  2. Even though current projections show that the gender gap in retirement
    savings will gradually reduce over time, economic modelling reveals that even
    following the maturation of the SG, a significant proportion of women will
    remain solely reliant on the Age
    Pension.[129]

  3. In the absence of a specific component of the retirement income system to
    recognise unpaid caring work, the Age Pension remains a critical framework for
    redressing the gender inequality inherent in the superannuation system due to
    its link to paid work. The Commission views that from a gender equality
    perspective, a strong policy focus should be maintained on the Age Pension to
    ensure that it provides an adequate standard of living in retirement for those
    unable to save through superannuation or voluntary savings, as an essential
    component of fulfilling the right to social security without discrimination.

(a) Objectives of the
Age Pension
  1. The Commission considers that at a minimum, the Age Pension should protect
    people from poverty and provide an adequate standard of
    living.[130] Long term reform is
    required to ensure that both the couple and single rate of the Age Pension
    provides sufficient income to eliminate the incidence of poverty for those in
    retirement and no longer able to work.

  2. Australia’s retirement income system, including the Age Pension and
    Superannuation Guarantee must at a minimum, incorporate the essential factors of
    the right to social security, such as being available, accessible,
    non-discriminatory and
    comprehensive.[132]

(b) Single
rate of the Age Pension
  1. Give the high proportion of women reliant of the single rate of the Age
    Pension, and the greater risk of poverty amongst this group, the Commission
    views that the single rate of the Age Pension should be increased as an urgent
    priority to ensure women and men equally enjoy the right to adequate social
    security.

  2. Data from the National Centre for Social and Economic Modelling shows that
    increasing the single rate of the Age Pension from 60% of the couple rate to the
    OECD average of 63% would decrease the incidence of poverty amongst single women
    households (over age of 65) by around 4%. Increasing the single Age Pension rate
    to 66% of the couple rate would decrease the incidence of poverty amongst single
    women households (over age of 65) by around 10%. However, even this increase
    would not eliminate poverty completely within this
    group.[133]

(c) Monitoring and
tracking of poverty
  1. Given the higher risk of poverty amongst single retired women, and the wide
    social policy and human right imperative of ensuring that all people enjoy an
    adequate standard of living, it is important that the incidence of poverty is
    monitored to evaluate the effectiveness of reforms to the Age Pension and
    retirement income system more broadly.

  2. The Committee on Economic, Social and Cultural Rights has expressed specific
    concern that Australia lacks an officially set poverty line in Australia. The
    lack of an official measure of poverty means it is not possible to determine the
    progress of Australian Government efforts to reduce
    poverty.[134]

  3. The Commission recognises that the measurement of poverty remains highly
    contested with practical and theoretical limitations associated with various
    poverty measures. However, the Commission supports the need for a nationally
    agreed national poverty measure to allow the tracking and monitoring of the
    incidence of poverty over time.

Recommendation 13: Ensure the Age Pension protects individuals against
poverty and meets international human rights standards

At a minimum, the Age Pension should protect individuals against poverty,
ensure an adequate standard of living and fulfil the right to social security
for individuals in line with relevant international human rights standards.

The couple and single rate of the Age Pension should be raised
progressively to eliminate poverty. This should start with an immediate increase
of the single rate to 66% of the couple rate.

Recommendation 14: Monitor and track the incidence and impact of
poverty

The Australian Bureau of Statistics should establish an agreed poverty
measure and issue an annual report on the incidence of poverty, disaggregated by
gender, age, Aboriginal and Torres Strait Islander status, disability,
sexuality, cultural background, household type and location.

8.5 Regular
monitoring and reporting on the gender impact of Federal budgets and
reforms

  1. The gender gap in retirement savings highlights the need for regular
    monitoring of the gender impact of government policies and budgetary measures.
    As Sharp and Austen set out:

    Budgetary decision making is rarely
    gender neutral, and policy decisions that are of great consequence to the
    largest proportion of the population (i.e. women) can take place without any
    research into their potential effects. This approach to policy fails the
    standard policy test of efficiency, effectiveness and equity. Further research
    is needed on the actual (rather than predicted) impacts of recent budgetary
    measures on the retirement incomes of men and women, and on the level of
    retirement income inequality within these two
    groups.[135]

  1. Gender budgeting is the monitoring of budgeting and expenditure of public
    funds to assess whether ‘policies and their associated resource
    allocations likely to reduce or increase gender
    inequalities.[136]

  2. The United Nations Commission on the Status of Women (‘CSW’)
    urges governments to improve financing for gender equality. The Agreed
    Conclusions of CSW, adopted by member states in New York in
    March 2008, recommend that governments should:

    Develop and
    implement, where appropriate, methodologies and tools, including national
    indicators, for gender-responsive planning and budgeting, in order to
    systematically incorporate gender perspectives into budgetary policies at all
    levels, with a view to promoting gender equality in all policy
    areas. [137]

  3. There are many different tools to examine Government budgets and advocate
    for more responsive budgets. These include:

    • Gender-disaggregated public expenditure incidence analysis:
      This research technique compares public expenditure for a given programme,
      usually with data from household surveys, to reveal the distribution of
      expenditure between women and men, girls and boys.

    • Gender-disaggregated tax incidence analysis: This research technique
      examines both direct and indirect taxes in order to calculate how much taxation
      is paid by different individuals or households.

    • Gender-disaggregated analysis of the impact of the budget on time
      use:
      This looks at the relationship between the national budget and the way
      time is used in households. This ensures that the time spent by women in unpaid
      work is accounted for in policy analysis.

    • Gender-aware medium term economic policy framework: This
      attempts to incorporate gender into the economic models on which medium term
      economic frameworks are based.

    • Gender-aware budget statement: This involves an accountability
      process which may utilise any of the above tools. It requires a high degree of
      commitment and co-ordination throughout the public sector as ministries or
      departments undertake an assessment of the gender impact of their line
      budgets.[138]

  4. Where there is a group of people who are marginalised or disadvantaged and
    unable to enjoy particular human rights, it may be legitimate for governments to
    take actions which are gender specific or that require differential treatment
    between women and men in order to achieve substantive gender equality outcomes.
    These are called temporary special measures. Governments may introduce temporary
    special measures which are advantageous to that group of people and aim to
    deliver formal and substantive equality. If these measures are necessary to
    redress discrimination and last only until equality is achieved, they will not
    be considered to be a violation of the right to non-discrimination and
    equality.[139]

  5. CEDAW permits special measures to promote substantive gender
    equality.[140] In Australia,
    special measures to achieve substantive gender equality are permitted under
    section 7D of the SDA.

  6. Section 7D of the SDA provides that:

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

    (a) men and women; or

    (b) people of different marital status; or

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

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

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

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

    (a) solely for that purpose; or

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

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

  1. Under CEDAW and the SDA special measures should be discontinued when the
    specific objective of the measure have been met.

  2. With respect to Australia’s retirement income system, gender budgeting
    and monitoring would assist in identifying policies and measures that increase
    inequity. This may provide a basis for the introduction of gender-specific
    measures, as special measures, to redress gender inequity and improve
    women’s economic security over the lifecycle.

Recommendation 15: Regular gender budget statements

The report from Australia’s future tax system review should include a
section containing modelling and analysis of the gender impact of the proposed
recommendations.

A Gender Analysis Unit should be established within Treasury to conduct
gender disaggregated public expenditure analysis, gender disaggregated tax
incidence analysis, and yearly gender budget statements.

8.6 Increasing the
representation of women in superannuation fund governance positions

  1. Increasing women’s representation in decision making positions and the
    governance of superannuation funds has been suggested as a complementary
    strategy to improve financial security for women in retirement. It is argued
    that better representation of women in superannuation fund governance would
    improve outcomes for women by ensuring that women’s experiences and
    perspectives are reflected in the operation and management of superannuation
    schemes. This may also ensure that women’s interests are equally
    considered by the superannuation industry more
    broadly.[141]

  2. Although currently women make up around 45% of those in the paid
    workforce[142], the most recent
    estimate had the proportion of female trustees in major superannuation funds at
    18%. Only 7 % of funds had female chairs and 40% of boards had no female
    trustees at all.[143]

  3. The Commission is concerned about the absence of women in superannuation
    fund governance positions. Given that superannuation fund trustees have a
    specific duty to act in the best interests of members while managing the
    superannuation savings in their
    care[144], it is imperative women
    are equally represented in fund governance positions. It is important that
    women’s experiences and perspectives around workforce participation,
    financial management, and retirement are included in decision making processes
    around the investment and management of funds.

  4. The statistics regarding female representation in superannuation fund
    governance positions are representative of the broader picture of women’s
    representation in leadership positions. Currently in ASX200 companies, women
    chair only 2% of companies, hold only 8.3% of board directorships, hold only
    four chief executive officer positions and represent only 10.7% of executive
    management positions. Australia trails behind the United States, United Kingdom,
    South Africa and Canada on the proportion of female board directors[145]

  5. With reference to superannuation funds, breaking down the gender
    representation on boards by industry found that the insurance industry has 17%
    female board directors, the diversified financials sector has 12.5% and banking
    had 16.4%.[146]

  6. The Commission considers that women’s representation in senior
    leadership positions needs to increase across all sectors as a national
    priority. Under CEDAW, it is recognised that women must be fully and equally
    involved in decision making in all fields and all levels, both to achieve
    women’s empowerment and the advancement of society as a
    whole.[147]

  7. Greater representation of women in leadership positions has a number of
    positive flow-on effects. In a business context, international evidence suggests
    that a greater female representation in senior management positions is linked to
    better financial performance.[148]
    For example, a study of Fortune 500 companies in the United States found that
    companies with the highest proportion of women board directors performed better
    financially, compared to those companies with the lowest proportion of women
    directors.[149]

  8. CEDAW recognises that simply removing discriminatory practices is not
    sufficient to redress gender inequality. In some instances, temporary
    gender-specific measures may be required to accelerate the achievement of
    substantive gender equality.[150] As noted above, these are referred to as ‘special measures’.

  9. Special measures may be introduced to increase women’s representation
    in senior positions. There are a number of options including targeted
    recruitment of women for senior positions, mandatory gender targets or quotas
    and prioritised promotion of women candidates of equal
    merit.[151]

  10. For example, a mandatory women’s representation in board director
    positions has been introduced in Norway. In 2004, legislation was introduced to
    oblige companies to have a minimum of 40% representation of each gender on their
    boards in the Norwegian Parliament. This legislation covers 500 public limited
    companies in the private sector and all state-owned and inter-municipal
    companies in Norway. All companies were given a two year period of transition to
    comply with the law from these dates. The Norwegian Parliament later amended
    the act to enable courts to dissolve a company if it was found not to be
    complying with the law. By the time the transition period for public limited
    companies expired in July 2008, 39% of Board members were women. This was an
    increase from 7% in 2003.[152]

  11. The Commission considers that the Australian Government should investigate
    specific strategies to increase the representation of women in senior leadership
    positions, and specifically, in superannuation fund governance positions. This
    could include the introduction of mandatory quotas and targets, allocation of
    specific funding to train women trustees and board directors or tax incentives
    for funds that have an appropriate balance of gender in senior management.

  12. A requirement for gender balance on superannuation fund trustee boards could
    operate similarly to the requirement that there is equal representation of
    employees and employers on the trustee board of employer sponsored funds with
    200 or more members.[153]

  13. At a minimum, superannuation funds should be required to report on the
    gender balance of their trustee boards as part of their annual compliance
    reporting to the Australian Prudential Regulatory Authority.

Recommendation 16: Increasing women’s representation in
superannuation fund governance positions.

The Australian Government should investigate specific strategies to
increase the representation of women in senior leadership positions, and
specifically, in superannuation fund governance positions. This could include
the introduction of mandatory quotas and targets, allocation of specific funding
to train women trustees and board directors or tax incentives for funds that
have an appropriate balance of gender in trustee positions.

At a minimum, superannuation funds should be required to report on the
gender balance of their trustee boards as part of their annual compliance
reporting to the Australian Prudential Regulatory Authority.

8.7 Independent
monitoring and reporting on Australia’s progress towards achieving
substantive gender equality

  1. The extent of the gender gap in retirement savings and the various
    contributing factors are key markers of gender inequality in Australia. To
    progressively improve Australia’s social and economic well-being, it is
    paramount that the markers of gender inequality are independently monitored and
    reported, on a regular, periodic basis.

  2. In Australia, regular independent monitoring and reporting on progress in
    achieving gender equality does not occur. Data collection is conducted in a
    range of important areas. However there are gaps and gender disaggregated data
    is not always readily available.

  3. The Commission remains concerned that there is no institutional arrangement
    in place for an agency independent of government to report to Parliament and the
    Australian public, providing a considered evidence-based assessment of progress
    against an integrated set of national gender equality indicators and to
    benchmark progress against those indicators over time.

  4. The Commission already has existing functions, such as its education and
    research function, which would enable ongoing monitoring and reporting on gender
    equality benchmarks and indicators at a national level. However, with one
    exception,[154] the Sex
    Discrimination Commissioner and the Commission has assessed that it is not in a
    position to assume this important national role under existing funding
    arrangements.

  5. In 2007, the Commission recommended to the Australian Government’s
    2020 Summit that comprehensive gender equality benchmarks be established, which
    should be independently monitored to track progress on key indicators of
    equality between men and women. The gender gap in retirement savings would be
    one such benchmark.

  6. In the SDA Submission (2008), the Commission recommended that it
    could perform this role with specific tied
    funding.[155] This was
    recommendation was adopted in the SDA Inquiry Report
    (2008)
    .[156]

Recommendation 17: Independent monitoring of national gender equality
indicators and benchmarks

Implement recommendations 33 and 34 of the Standing Committee on Legal and
Constitutional Affairs’ report on the Effectiveness of the Sex
Discrimination Act 1984 in eliminating discrimination and promoting gender
equality:

The committee recommends that the Act be amended to require the Sex
Discrimination Commissioner to monitor progress towards eliminating sex
discrimination and achieving gender equality, and to report to Parliament every
four years.

...The Committee recommends that HREOC be provided with additional
resources to enable it to...perform the additional roles and broader functions
recommended in this report...
[157]

8.8 Reviewing the
superannuation exemptions in the Sex Discrimination Act 1984 (Cth)

  1. Until 1991, the SDA contained a blanket provision which exempted
    superannuation or provident fund schemes from complying with the Act.

  2. In 1991, the blanket exemption was removed and replaced with a range of
    specific exemptions which permit discrimination in the following instances:

    • The discrimination is based on actuarial or statistical data from a source
      on which is it reasonable for the discriminator to
      rely.[158]

    • The discrimination is in the case of a member who has no spouse or has no
      child.[159]

    • The discrimination is in relation to the vesting, preservation or
      portability of
      benefits.[160]

  3. In the SDA Submission (2008), the Commission argued that the removal
    of permanent exemptions such as those described above needed further
    consultation and consideration, and as such, should be subject to a 3 year
    sunset clause.

  4. The SDA Inquiry Report (2008) recommended that further consideration
    be given to removing the permanent exemptions and replacing these exemptions
    with a general limitations cause.
    [161]

Recommendation 18: Review superannuation exemption in the Sex
Discrimination Act 1984
(Cth)

With the objective of achieving gender equality, implement recommendation
36 of the Standing Committee on Legal and Constitutional Affairs’ report
on the Effectiveness of the Sex Discrimination Act 1984 in eliminating
discrimination and promoting gender equality:

The committee recommends that further consideration be given to removing
the existing permanent exemptions in section 30 and sections 34 to 43 of the Act
and replacing these exemptions with a general limitations
clause.[162]


[1] The Australian Human Rights
Commission was until recently known as the Human Rights and Equal Opportunity
Commission. In this submission, all footnote references to documents produced
prior to this change retain the name they were originally published under.

[2] The Commission is established
by the Human Rights and Equal Opportunity Commission Act 1986
(‘HREOC Act’). Sections 11 and 31 of the HREOC Act set out the
Commission’s functions relating to human rights and equal opportunity in
employment respectively. The Commission also has functions under the Sex
Discrimination Act 1984
(Cth), Racial Discrimination Act 1975
(Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination
Act 2004
(Cth).
[3] Section
3(d). The SDA also prohibits sexual harassment in many areas of public life: s
28.
[4] Robert Holzmann and
Richard Hinz, Old-Age Income Support in the 21st Century: An International
Perspective on Pension Systems and Reform
(2005) p
1.
[5] Ross Clare, Retirement
Savings Update
(2008) p 3. Available at
http://www.superannuation.asn.au/Reports/default.aspx
(viewed 11 February 2009).
[6]
Robert Tanton, Yogi Vidyattama, Justine McNamara, Quoc Ngu Vu and Ann Harding,
Old Single and Poor: Using Microsimulation and Microdata to Analyse Poverty
and the Impact of Policy Change Among Older Australians
(2008) p 15.
Available at
https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880
(viewed 9 February 2009).
[7] The
Sex Discrimination Commissioner, Elizabeth Broderick, conducted a national
Listening Tour from November 2007 to May 2008 to seek community and stakeholder
feedback on three key themes relevant to gender equality: economic independence
for women; work and family balance over the lifecycle; and freedom from
discrimination, harassment and violence. Commissioner Broderick’s Plan
of Action towards Gender Equality
, based on her findings from the
Listening Tour sets out five priority areas:

• improving laws to address sex discrimination and promote gender
equality;

• advocating for policies and systems to achieve a greater balance of
paid work and family responsibilities for women and men;

• reducing the incidence and impact of sexual harassment in the
workplace;

• reducing the gender gap in retirement savings to increase
women’s financial security across the lifecycle; and

• increasing the number of women in leadership positions, including
supporting Indigenous women’s leadership.
For further information see
Human Rights and Equal Opportunity Commission, What matters to Australian
women and men: Gender equality in 2008, The Listening Tour Community Report
(2008). Available at
http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html
(viewed 9 February 2009).
[8]International Covenant on Economic, Social and Cultural Rights, opened
for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January
1976).
[9] The meaning of
‘social security’ under international human rights law is wider than
in the domestic Australian lexicon. See, paragraph 34 in Section 4 of this
submission.
[10]International
Covenant on Economic, Social and Cultural Rights,
opened for signature 16
December 1966, 993 UNTS 3 (entered into force 3 January 1976) arts
9.
[11]International Covenant
on Economic, Social and Cultural Rights,
opened for signature 16 December
1966, 993 UNTS 3 (entered into force 3 January 1976) art 2(2) and
3.
[12]International Covenant
on Economic, Social and Cultural Rights,
opened for signature 16 December
1966, 993 UNTS 3 (entered into force 3 January 1976) art
11.
[13]International
Covenant on Economic, Social and Cultural Rights,
opened for signature 16
December 1966, 993 UNTS 3 (entered into force 3 January 1976) art
9.
[14] Senate Standing Committee
on Legal and Constitutional Affairs, Parliament of Australia, Effectiveness
of the Sex Discrimination Act 1984 in eliminating discrimination and promoting
gender equality
(2008), para 11.33. At
http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm
(viewed 9 February 2009).
[15]
Senate Standing Committee on Legal and Constitutional Affairs, Parliament of
Australia, Effectiveness of the Sex Discrimination Act 1984 in eliminating
discrimination and promoting gender equality
(2008), para 11.34. Available
at
http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm
(viewed 9 February 2009).
[16]
Australian Human Rights Commission, Submission to the Senate Education,
Employment and Workplace Relations Committee for the Inquiry into the Fair Work
Bill 2008
(2009). Available at
http://www.humanrights.gov.au/legal/submissions/2009/20090123_Fair_Work.html#intro
(viewed 11 February 2009).
[17]
Women in Economic & Social Research (WiSER), Women’s pay and
conditions in an era of changing workplace regulations: Towards a
“Women’s Employment Status Key Indicators” (WESKI)
database
(2006) p 21.
[18]
Senate Standing Committee on Legal and Constitutional Affairs, Parliament of
Australia, Effectiveness of the Sex Discrimination Act 1984 in eliminating
discrimination and promoting gender equality
(2008), paras 11.87-11.90. At
http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm
(viewed 9 February 2009).
[19]
Ibid para 11.98.
[20]Convention on the Elimination of All Forms of Discrimination Against
Women
, opened for signature 18 December 1979, 1249 UNTS 13 (entered into
force 3 September 1981) art
11(1)(e).
[21]International
Covenant on Economic, Social and Cultural Rights,
opened for signature 16
December 1966, 993 UNTS 3 (entered into force 3 January 1976) art
9.
[22]International Covenant
on Economic, Social and Cultural Rights,
opened for signature 16 December
1966, 993 UNTS 3 (entered into force 3 January 1976) art
3
[23] CESCR, General Comment 19,
para 28.
[24]Convention on
the Elimination of All Forms of Discrimination Against Women
, opened for
signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981)
art 11(1)(e).
[25] UN Committee
on the Elimination of Discrimination Against Women (CEDAW), UN Committee on
the Elimination of Discrimination Against Women: Concluding Comments,
Canada
, 19 May 2006, CEDAW/C/CAN/CO/4-5, para
21.
[26] UN Committee on the
Elimination of Discrimination Against Women (CEDAW), UN Committee on the
Elimination of Discrimination Against Women: Concluding Comments, United
Kingdom
, 26 June 1999, CEDAW/C/1999/L.2/Add/7, para
314.
[27] UN Committee on the
Elimination of Discrimination Against Women (CEDAW), UN Committee on the
Elimination of Discrimination Against Women: Concluding Comments,
United
Kingdom, 28 January 1999, CEDAW/C/SR.223), para
544.
[28]International
Covenant on Economic, Social and Cultural Rights,
opened for signature 16
December 1966, 993 UNTS 3 (entered into force 3 January 1976) art
9.
[29] UN Committee on Economic,
Social and Cultural Rights (CESCR), General Comment 19: The Right to Social
Security
, E/C.12/GC/19
(2007).
[30] UN Committee on
Economic, Social and Cultural Rights (CESCR), General Comment 19: The Right
to Social Security
, E/C.12/GC/19 (2007) para 47.

[31] UN Committee on Economic,
Social and Cultural Rights (CESCR), General Comment 19: The Right to Social
Security
, E/C.12/GC/19 (2007) para
48.
[32] UN Committee on
Economic, Social and Cultural Rights (CESCR), General Comment 19: The Right
to Social Security
, E/C.12/GC/19 (2007) para
49.
[33] UN Committee on
Economic, Social and Cultural Rights (CESCR), General Comment 19: The Right
to Social Security
, E/C.12/GC/19 (2007) para
50.
[34] UN Committee on
Economic, Social and Cultural Rights (CESCR), General Comment 19: The Right
to Social Security
, E/C.12/GC/19 (2007) para
59(a).
[35] UN Committee on
Economic, Social and Cultural Rights (CESCR), General Comment 19: The Right
to Social Security
, E/C.12/GC/19 (2007) paras
9-28.
[36] UN Committee on
Economic, Social and Cultural Rights (CESCR), General Comment 19: The Right
to Social Security
, E/C.12/GC/19 (2007) para
42.
[37] UN Committee on
Economic, Social and Cultural Rights (CESCR), General Comment 19: The Right
to Social Security
, E/C.12/GC/19 (2007) para 59(d).

[38] UN Committee on Economic,
Social and Cultural Rights (CESCR), General Comment 19: The Right to Social
Security
, E/C.12/GC/19 (2007) para
28.
[39]International
Covenant on Economic, Social and Cultural Rights,
opened for signature 16
December 1966, 993 UNTS 3 (entered into force 3 January 1976) art
11.
[40] UN Committee on
Economic, Social and Cultural Rights (CESCR), General Comment 19: The Right
to Social Security
, E/C.12/GC/19 (2007) para
28.
[41] UN Committee on
Economic, Social and Cultural Rights (CESCR), General Comment 16: The equal
right of men and women to the enjoyment of all economic, social and cultural
rights
E/C.12/2005/4 (2005) para
7.
[42] UN Committee on Economic,
Social and Cultural Rights (CESCR), General Comment 16: The equal right of
men and women to the enjoyment of all economic, social and cultural rights

E/C.12/2005/4 (2005) para 8.
[43]
Therese Jefferson, 'Women and Retirement Incomes in Australia: A Review' (2005)
81(254) The Economic Record p 273; Diana Olsberg, Ms...ing Out? Women
and Retirement Savings: A Position Paper Prepared by the University of NSW
Research Centre on Ageing & Retirement, Sydney, Australia for the Economic
Policy Summit
(2001); Simon Kelly, 'Entering Retirement: the Financial
Aspects' (Paper presented at the Communicating the Gendered Impact of Economic
Policies: The Case of Women's Retirement Incomes, Perth, 12-13 December 2006) p
12.;Therese Jefferson and Alison Preston Siobhan Austen, Women and
Australia's Retirement Income System

(2002).
[44] Ross Clare,
Retirement Savings Update (2008) p 3. Available at
http://www.superannuation.asn.au/Reports/default.aspx
(viewed 11 February 2009).
[45]
Ibid.
[46] Ibid p
4.
[47] Ross Clare, Retirement
Savings Update
(2008) p 6. Available at
http://www.superannuation.asn.au/Reports/default.aspx
(viewed 11 February 2009).
[48]
Simon Kelly, 'Entering Retirement: the Financial Aspects' (Paper presented at
the Communicating the Gendered Impact of Economic Policies: The Case of Women's
Retirement Incomes, Perth, 12-13 December 2006) p
12.
[49] Diana Warren, Aspects
of Retirement for Older Women
(2006) p 38. Available at
http://www.ofw.facsia.gov.au/downloads/pdfs/Aspect_of_Retirement%20_report_final.pdf
(viewed 9 February 2009).
It should be noted that this data is from 2002-03
when the rate of the Age Pension was $11447.80 per annum for singles, and
$9555.00 per person for couples.

[50] Gary Marks and Mark Wooden
Bruce Headey, 'The Structure and Distribution of Household Wealth in Australia'
(2005) 38(2) The Australian Economic Review p
159.
[51] Diana Warren,
Aspects of Retirement for Older Women (2006) p 42. Available at
http://www.ofw.facsia.gov.au/downloads/pdfs/Aspect_of_Retirement%20_report_final.pdf
(viewed 9 February 2009).
[52]
Anonymous, Blog entry (2007) Human Rights and Equal Opportunity
Commission Listening Tour website at 18 December
2007
[53] Matthew Gray David de
Vaus, Lixia Qu and David Stanton, The consequences of divorce for financial
living standard in later life
(2007) p 13. Available at
http://www.aifs.gov.au/institute/pubs/rp38/rp38.html
(viewed 9 February 2009).
[54]
Ibid p 3.
[55] Ibid p 13.

[56] AMP and NATSEM,
Financial impact of divorce in Australia: Love can hurt, divorce will
cost
, Income and Wealth Report Issue 10. 2005, p 9-10. Available at
http://www.melbourneinstitute.com/hilda/Biblio/ophd/AMP.NATSEM_love_can_hurt.pdf
(viewed 6 February 2009).
[57]
Diana Warren, Aspects of Retirement for Older Women (2006) p 44.
Available at
http://www.ofw.facsia.gov.au/downloads/pdfs/Aspect_of_Retirement%20_report_final.pdf
(viewed 9 February 2009).
[58]
Anonymous, Blog entry (2007) Human Rights and Equal Opportunity
Commission Listening Tour website at 18 December 2007

[59] FAHCSIA, Pension Review
Background Paper
(2008) p 6. Available at
http://www.facs.gov.au/seniors/pension_review/pension_review_paper.pdf
(viewed 9 February 2009); Robert Tanton, Yogi Vidyattama, Justine McNamara, Quoc
Ngu Vu and Ann Harding, Old Single and Poor: Using Microsimulation and
Microdata to Analyse Poverty and the Impact of Policy Change Among Older
Australians
(2008) p 15. Available at
https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880
(viewed 9 February 2009).
[60]
Robert Tanton, Yogi Vidyattama, Justine McNamara, Quoc Ngu Vu and Ann Harding,
Old Single and Poor: Using Microsimulation and Microdata to Analyse Poverty
and the Impact of Policy Change Among Older Australians
(2008) p 15.
Available at
https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880
(viewed 9 February 2009).
[61]
This includes: working age couple with no children; working age couple with
children; working age lone female; working age lone male; lone mother household;
elderly couple household; elderly lone male; elderly lone female.

[62] The poverty measurement
tool for this study is 50% of the median income poverty line. Bruce Heady and
Diana Warren, Families, Incomes and Jobs, Volume 3: A Statistical Report on
Waves 1 to 5 of the HILDA Survey
(2008) p.55. Available at
http://www.melbourneinstitute.com/hilda/statreport/statreport-v3-2008.pdf
(viewed on 9 February 2009).
[63]
Ibid p 31.
[64] Diana Warren,
Aspects of Retirement for Older Women (2006) p 45. Available at
http://www.ofw.facsia.gov.au/downloads/pdfs/Aspect_of_Retirement%20_report_final.pdf
(viewed 9 February 2009).
[65]
Diana Olsberg, Ms...ing Out? Women and Retirement Savings: A Position Paper
Prepared by the University of NSW Research Centre on Ageing & Retirement,
Sydney, Australia for the Economic Policy Summit
(2001); Ross Clare,
Women and Superannuation (2001) p 33. Available at
http://www.superannuation.asn.au/Reports/default.aspx
(viewed 11 February 2009); Human Rights and Equal Opportunity Commission,
It's About Time: Women, Men, Work and Family: Final Paper (2007) p 145.

[66] Australian Bureau of
Statistics, Average Weekly Earnings, Australia, August 2008, Cat no.
6302.0 (2008).
[67] Australian
Bureau of Statistics, Average Weekly Earnings, Australia, August 2008,
Cat no. 6302.0 (2008).
[68]
Australian Bureau of Statistics, Employee Earnings, Benefits and Trade Union
Membership
Cat no. 6310.0 (2008).

[69] See Human Rights and Equal
Opportunity Commission, It’s About Time: Women, men, work and
family
Final paper (2007), pp
79-81.
[70] Human Rights and
Equal Opportunity Commission, Sex Discrimination Commissioner's Listening
Tour - Women's focus group 6

(2008).
[71] See Human Rights and
Equal Opportunity Commission, It’s About Time: Women, Men, Work and
Family
(2007), pp 40-41 and pp 99-122. See also Human Rights and Equal
Opportunity Commission, Striking the Balance: Women, men, work and family
Discussion paper (2005), pp 52-55 and p 57.

[72] See Human Rights and Equal
Opportunity Commission, It’s About Time: Women, Men, Work and
Family
(2007), pp 76-77.
[73]
See Human Rights and Equal Opportunity Commission, It’s About Time:
Women, Men, Work and Family
(2007), p 79 and Human Rights and Equal
Opportunity Commission, Gender equality: What matters to Australian women and
men The Listening Tour Community Report
(2008).

[74] Rhonda Sharp and Siobhan
Austen, ‘The 2006 Federal Budget: A Gender Analysis of the Superannuation
Taxation Concessions’ (2007) 10(2) Australian Journal of Labour
Economics
p 69.
[75]
Australian Bureau of Statistics, Labour Force, Australia Cat No 6202.0
December 2008 (2009)
[76]
Australian Bureau of Statistics, Labour Force, Australia Cat No 6202.0
April 2008 (2008)
[77]
Australian Bureau of Statistics, Labour Force, Australia Cat No 6202.0
April 2008 (2008)
[78] Therese
Jefferson, 'Women and Retirement Incomes in Australia: A Review' (2005) 81(254)
The Economic Record p
258.
[79] Australian Bureau of
Statistics, Australian Social Trends, 2007 Cat No 4102.0
(2007).
[80] Women with
disability are less likely to be in the paid workforce than men with disability:
See HREOC, Issues paper 1 Employment and Disability – the
Statistics
(2005). Available at
http://www.humanrights.gov.au/disability_rights/employment_inquiry/papers/issues1.htm
(viewed 15 September 2008).
[81]
Aboriginal and Torres Strait Islander people have a labour market participation
rate of 56%. The labour market participation rate for Indigenous men is 65%,
while for Indigenous women it is 48%: Australian Bureau of Statistics, Labour
Force Characteristics of Aboriginal and Torres Strait Islander Australians,
Estimates from the Labour Force Survey, 2007
Cat No 6287.0 (2008).

[82] In 2004, migrant men had a
similar age standardised labour force participation rate (74%) to
Australian-born men (75%). Migrant women's age standardised labour force
participation (52%) was lower than Australian-born women (60%), and much lower
than migrant men: Australian Bureau of Statistics, Australian Social Trends,
2006 
Cat No 4102.0 (2006).

[83] Human Rights and Equal
Opportunity Commission, Sex Discrimination Commissioner's Listening Tour -
Hobart Community Consultation

(2007)
[84] The Australian
Institute of Health and Welfare (AIHW) anticipates there will be at least around
600,000 primary carers by 2013, with 70% likely to be women: AIHW, Carers in
Australia: assisting frail older people and people with a disability
(2004).
For an extensive discussion on this point see Human Rights and Equal Opportunity
Commission, Striking the Balance (2005) Chapter 4 and Chapter 6 and Human
Rights and Equal Opportunity Commission, It’s About Time (2007) pp
173-179. For the further information on legislative protection from
discrimination on the grounds of family and carer responsibilities see Section
10 of Human Rights and Equal Opportunity Commission, Submission to the Senate
Legal and Constitutional Affairs Committee Inquiry into the effectiveness of the
Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting
gender equality
(2008). Available at
http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html
(viewed 6 February 2009).
[85]
Australian Bureau of Statistics, How Australians Use Their Time, Cat no.
4153.0 (2006). Available at
http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4153.0Main+Features12006?OpenDocument
(viewed 9 February 2009).
[86]
See Joan Williams Unbending Gender: Why work and family conflict and what to
do about it
(2000), p 2. See also Human Rights and Equal Opportunity
Commission, Striking the Balance: Women, men, work and family
(2005), p 59 and passim.

[87] See Human Rights and Equal
Opportunity Commission, It’s About Time: Women, men, work and
family
(2007).
[88] Equal
Opportunity for Women in the Workplace Agency , Paid Maternity Leave –
The Business Case

<http://www.eowa.gov.au/Developing_a_Workplace_Program/Employment_Matter…;
at 26 May 2008
[89] Newspoll,
Out of School Hours Care Study (2008). Study jointly commissioned by
National Foundation of Australian Women, the WomenSpeak Network, Security for
Women, Women’s Information and Referral (Vic), Network of Community
Activities (NSW), Queensland Children’s Activities Network and Human
Rights and Equal Opportunity
Commission.
[90] See Section 10
of Human Rights and Equal Opportunity Commission, Submission to the Senate
Legal and Constitutional Affairs Committee Inquiry into the effectiveness of the
Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting
gender equality
(2008). Available at
http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html
(viewed 6 February 2009).
[91]
See Human Rights and Equal Opportunity Commission, It’s About Time:
Women, men, work and family

(2007).
[92] Human Rights and
Equal Opportunity Commission, Gender Equality: What Matters to Australian
Women and Men: The Listening Tour Community Report
(2008); Human Rights and
Equal Opportunity Commission, It's About Time: Women, Men, Work and Family:
Final Paper
(2007).
[93]
Human Rights and Equal Opportunity Commission, Gender Equality: What Matters
to Australian Women and Men: The Listening Tour Community Report

(2008).
[94] See Chapter 7, Human
Rights and Equal Opportunity Commission, It's About Time: Women, Men, Work
and Family: Final Paper
(2007) p
157.
[95] Patricia Apps, Ray Rees
and Margi Wood, ‘Population Ageing Taxation, Pensions and Health
Costs’, (2007) 10(2) Australian Journal of Labour Economics p
83.
[96] Human Rights and
Equal Opportunity Commission, It's About Time: Women, Men, Work and Family:
Final Paper
(2007) p131.
[97]
Simon Kelly, 'Entering Retirement: the Financial Aspects' (Paper presented at
the Communicating the Gendered Impact of Economic Policies: The Case of Women's
Retirement Incomes, Perth, 12-13 December
2006)
[98] Australian Institute
of Health and Welfare, Older Australians at a Glance 4th edition
(2007) p 24. Available at
http://www.aihw.gov.au/publications/index.cfm/title/10402
(viewed 25 January 2009).
[99]
Department of Victorian Communities and Industrial Relations Victoria, Paving
the Way for Older Women in the Workforce 2025
(2005)

[100] See Chapter 2,
Department of Victorian Communities and Industrial Relations Victoria, Paving
the Way for Older Women in the Workforce 2025
(2005) p 17. Available at
http://www.business.vic.gov.au/busvicwr/_assets/main/lib60079/wiwchapter2.pdf
(viewed 25 January 2009).

[101] These unpublished
research findings were provided by Dr Barry Partridge to the Australian Human
Rights Commission during the Commission’s consultations in the age
discrimination area. Further information can be found at www.workplaceimages.com (viewed 17
February 2009).
[102] See
Executive Summary, Department of Victorian Communities and Industrial Relations
Victoria, Paving the Way for Older Women in the Workforce 2025 (2005) p
7. Available at
http://www.business.vic.gov.au/busvicwr/_assets/main/lib60079/wiwsummary.pdf
(viewed 25 January 2009).

[103] Australian Bureau of
Statistics, Employment Arrangements, Retirement and Superannuation,
Australia
, Cat no. 6361.0 (2008)
p14.
[104] Human Rights and
Equal Opportunity Commission, Gender Equality: What Matters to Australian
Women and Men: The Listening Tour Community Report

(2008)
[105] The outcomes of
these consultations are anticipated to be released in
2009.
[106] Australian
Institute of Health and Welfare, Older Australia at a glance (1997) p.44.
Available at
http://www.aihw.gov.au/publications/age/oag/oag-c21.html

(viewed 11 February 2009).

[107] Human Rights and Equal
Opportunity Commission, Sex Discrimination Commissioner's Listening Tour -
Women's focus group 7

(2008)
[108] Human Rights and
Equal Opportunity Commission, Gender Equality: What Matters to Australian
Women and Men: The Listening Tour Community Report
(2008); Human Rights and
Equal Opportunity Commission, It's About Time: Women, Men, Work and Family:
Final Paper
(2007).
[109]
Australian Human Rights Commission, Submission to the Senate Education,
Employment and Workplace Relations Committee for the Inquiry into the Fair Work
Bill 2008
(2009) p 3. Available at
http://www.humanrights.gov.au/legal/submissions/2009/20090123_Fair_Work.html#intro
(viewed 11 February
2009).
[110] For further
information see Human Rights and Equal Opportunity Commission, Submission to
the Senate Legal and Constitutional Affairs Committee Inquiry into the
effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating
discrimination and promoting gender equality
(2008). Available at
http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html
(viewed 6 February 2009).
[111]Sex Discrimination Act 1984 (Cth) ss 7A and 14(3A).

[112] Submissions to the
Women, Men, Work and Family project advocated the extension of ‘family
responsibilities’ protection to all workers with carer responsibilities.
See, for example, Women Lawyers Association of New South Wales, Submission 112,
pp 9-10. This would provide protection to workers based on the nature of their
responsibilities rather than the more arbitrary nature of their relationship to
the person requiring care.

[113] Senate Standing
Committee on Legal and Constitutional Affairs, Parliament of Australia,
Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination
and promoting gender equality
(2008), para 11.33. At
http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm
(viewed 9 February 2009).
[114]
Ibid.
[115] Senate Standing
Committee on Legal and Constitutional Affairs, Parliament of Australia,
Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination
and promoting gender equality
(2008), para 11.34. At
http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm
(viewed 9 February 2009).
[116]
Australian Human Rights Commission, Submission to the Senate Education,
Employment and Workplace Relations Committee for the Inquiry into the Fair Work
Bill 2008
(2009). Available at
http://www.humanrights.gov.au/legal/submissions/2009/20090123_Fair_Work.html#intro
(viewed 11 February
2009).
[117] Senate Standing
Committee on Legal and Constitutional Affairs, Parliament of Australia,
Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination
and promoting gender equality
(2008), para 11.34. Available at
http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm
(viewed 9 February 2009).
[118]
Australian Human Rights Commission, Submission to the Senate Education,
Employment and Workplace Relations Committee for the Inquiry into the Fair Work
Bill 2008
(2009). Available at http://www.humanrights.gov.au/legal/submissions/2009/20090123_Fair_Work.html#intro
(viewed 11 February
2009).
[119] For further
information see Human Rights and Equal Opportunity Commission, Submission to
the Productivity Commission Inquiry into Paid Maternity, Paternity, and
Parental
Leave (2008). Available at
http://www.hreoc.gov.au/legal/submissions/2008/20080602_productivity.html
(viewed 6 February 2009).
[120]
For further information see Human Rights and Equal Opportunity Commission,
Submission to the Productivity Commission Inquiry into Paid Maternity,
Paternity and Parental Leave
(2008). At
http://www.humanrights.gov.au/legal/submissions/2008/20081124_maternity.html
(viewed 6 February 2009).
[121]
Human Rights and Equal Opportunity Commission, It's About Time: Women, Men,
Work and Family: Final Paper
(2007) p
133.
[122] Patricia Apps,
Women and Retirement Incomes (2009) p 8. Available at http://nfaw.org.au/assets/Socialpolicy/Tax/retPA.pdf
(viewed 2 February 2009).
[123]
Human Rights and Equal Opportunity Commission, Submission to the House of
Representatives Standing Committee on Employment and Workplace Relations on the
Inquiry into pay equity and associated issues related to increasing female
participation in the workforce
(2008). Available at
http://www.humanrights.gov.au/legal/submissions/2008/20080923_pay_equity.html
(viewed 6 February 2009).
[124]
Women in Economic & Social Research (WiSER), Women’s pay and
conditions in an era of changing workplace regulations: Towards a
“Women’s Employment Status Key Indicators” (WESKI)
database
(2006) p 21.
[125]
Human Rights and Equal Opportunity Commission, It's About Time: Women, Men,
Work and Family: Final Paper
(2007) p
144.
[126] Therese Jefferson
and Alison Preston Siobhan Austen, Women and Australia's Retirement Income
System
(2002) p 36.
[127]
Ibid p 35.
[128] Rhonda Sharp
and Siobhan Austen, ‘The 2006 Federal Budget: A Gender Analysis of the
Superannuation Taxation Concessions’ (2007) 10(2) Australian Journal of
Labour Economics
p 73;
Therese Jefferson and Alison Preston Siobhan
Austen, Women and Australia's Retirement Income System (2002)
p.33.
[129] Therese Jefferson
and Alison Preston Siobhan Austen, Women and Australia's Retirement Income
System
(2002); Robert Tanton, Yogi Vidyattama, Justine McNamara, Quoc Ngu Vu
and Ann Harding, Old Single and Poor: Using Microsimulation and Microdata to
Analyse Poverty and the Impact of Policy Change Among Older Australians

(2008) p 15. Available at
https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880
(viewed 9 February 2009).
[130]
According to the World Bank, ‘First, all pension systems should, in
principle, have elements that provide basic income security and poverty
alleviation across the full breadth of the income distribution.’ Robert
Holzmann and Richard Hinz, Old-Age Income Support in the 21st Century: An
International Perspective on Pension Systems and Reform
(2005) p
1.
131 Ross Clare, Retirement Savings Update (2008) p 3.
Available at http://www.superannuation.asn.au/Reports/default.aspx
(viewed 11 February
2009).
[132] UN Committee on
Economic, Social and Cultural Rights (CESCR), General Comment 19: The Right
to Social Security
, E/C.12/GC/19 (2007) paras
9-28.
[133] This study uses the
50% of median income as the poverty measure. Robert Tanton, Yogi Vidyattama,
Justine McNamara, Quoc Ngu Vu and Ann Harding, Old Single and Poor: Using
Microsimulation and Microdata to Analyse Poverty and the Impact of Policy Change
Among Older Australians
(2008) p 15. Available at
https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880
(viewed 9 February 2009).
[134]
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment
19: The Right to Social Security
, E/C.12/GC/19 (2007) para
20.
[135] Rhonda Sharp and
Siobhan Austen, ‘The 2006 Federal Budget: A Gender Analysis of the
Superannuation Taxation Concessions’ (2007) 10(2) Australian Journal of
Labour Economics
p
73.
[136] UNIFEM, ‘Tools
for Gender-Sensitive Analysis of Budgets’, April 2005.at
http://www.idrc.ca/uploads/user-S/11279431651Tools_for_Gender-Sensitive_Analysis_of_Budgets.pdf
(viewed 3 February 2009).
[137]
UN Commission on the Status of Women, Agreed Conclusions on Financing for
Gender Equality and the Empowerment of Women
, para 21(p), UN Doc
E/CN.6/2008/L.8, available at:
http://www.un.org/womenwatch/daw/csw/csw52/AC_resolutions/L.8_Advance%20unedited_as%20corrected.pdf.
[138]
Unifem, ‘Tools for Gender-Sensitive Analysis of Budgets’, at
http://www.idrc.ca/uploads/user-S/11279431651Tools_for_Gender-Sensitive…
(viewed 3 February 2009),
[139]
CESCR, General Comment 16, para 35.

[140]Convention on the
Elimination of All Forms of Discrimination Against Women
, opened for
signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981)
art 4.
[141] Diana Olsberg,
Ms...ing Out? Women and Retirement Savings: A Position Paper Prepared by the
University of NSW Research Centre on Ageing & Retirement, Sydney, Australia
for the Economic Policy Summit
(2001) p
63.
[142] Australian Bureau of
Statistics, Labour Force, Australia, Spreadsheets, Jan 2009, Cat no.
 6202.0.55.001
(2009). Available at
http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/6202.0.55.001Jan%202009?OpenDocument
(viewed 13 February 2009).

[143] Diana Olsberg,
Ms...ing Out? Women and Retirement Savings: A Position Paper Prepared by the
University of NSW Research Centre on Ageing & Retirement, Sydney, Australia
for the Economic Policy Summit
(2001) p 63; Ross Clare, Women and
Superannuation
(2001) p 33. Available at
http://www.superannuation.asn.au/Reports/default.aspx
(viewed 11 February
2009).
[144] Australian
Prudential Regulatory Authority, A recent history of superannuation in
Australia
(2007) p 6. Available at
http://www.apra.gov.au/insight/upload/history-of-superannuation.pdf
(viewed 11 February
2009).
[145] Equal Opportunity
for Women in the Workplace Agency, 2008 EOWA Australian Census of Women in
Leadership
(2008) p 22. Available at
http://www.eowa.gov.au/Australian_Women_In_Leadership_Census/
2008_Australian_Women_In_Leadership_Census/Media_Kit/
EOWA_Census_2008_Publication.pdf

(viewed 11 February 2009).

[146] Ibid p
5.
[147] Committee on the
Elimination of Discrimination against Women, General Recommendation
No. 23: Political and Public Life,
A/52/38 (1997) para
17.
[148] Catalyst,
Advancing Women Leaders: The Connection Between Women Board Directors and
Women Corporate Officers
(2008); McKinsey and Company, Women Matter:
Gender diversity, a corporate performance driver
(2007).
[149] Catalyst,
Advancing Women Leaders: The Connection Between Women Board Directors and
Women Corporate Officers
(2008) p
4.
[150]Convention on the
Elimination of All Forms of Discrimination Against Women
, opened for
signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981)
art 4 (1).
[151] Committee on
the Elimination of Discrimination against Women, General
Recommendation No. 23: Political and Public Life,
A/52/38 (1997) para
15.
[152] Ministry of Children
and Equality, Government of Norway, Balanced gender representation on company
boards
(2008). Available at
http://www.regjeringen.no/en/dep/bld/Topics/Equality/kjonn_og_makt/
Balanced-gender-representation-on-compan.html?id=1250


(viewed 12 February
2009).
[153]Superannuation
Industry (Supervision) Act 1993
(Cth) s
89.
[154] The Sex
Discrimination Commissioner has now conducted two periodic National Telephone
Surveys on the nature and extent of sexual harassment in Australia. The first
study in 2003 was the first major population-based research to measure the
incidence of sexual harassment in Australian workplaces. The 2008 study provided
an assessment of trends in the incidence and nature of sexual harassment in the
preceding five years. For further information see Human Rights and Equal
Opportunity Commission, Sexual harassment: Serious business, Results of the
2008 Sexual Harassment National Telephone Survey
(2008). Available at
http://www.humanrights.gov.au/sexualharassment/
serious_business/index.html

(viewed 25 February
2009).
[155] Human Rights and
Equal Opportunity Commission, Submission to the Senate Legal and
Constitutional Affairs Committee Inquiry into the effectiveness of the Sex
Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender
equality
(2008) (‘SDA Submission (2008)’) . At
http://www.humanrights.gov.au/legal/submissions/
2008/20080901_SDA.html

(viewed 6 February 2009).
[156]
Senate Standing Committee on Legal and Constitutional Affairs, Parliament of
Australia, Effectiveness of the Sex Discrimination Act 1984 in eliminating
discrimination and promoting gender equality
(2008), paras 11.87-11.90. At
http://www.aph.gov.au/Senate/committee/legcon_ctte/
sex_discrim/report/index.htm

(viewed 9 February 2009).
[157]
Ibid.
[158]Sex
Discrimination Act 1984
(Cth)
s41A(i)A.
[159]Sex
Discrimination Act 1984
(Cth)
ss41A(ii).
[160]Sex
Discrimination Act 1984
(Cth)
ss41A(iii).
[161] Senate
Standing Committee on Legal and Constitutional Affairs, Parliament of
Australia, Effectiveness of the Sex Discrimination Act 1984 in eliminating
discrimination and promoting gender equality
(2008), para 11.98. At
http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/
report/index.htm

(viewed 9 February 2009).
[162]
Ibid.