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Australia’s Implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) - 2010

Discrimination Sex Discrimination
Friday 14 December, 2012

Australia’s Implementation of the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW)

Independent Report to the Committee on the
Elimination of Discrimination against Women

5 July 2010


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Table of Contents


1
Introduction

  1. The Australian Human Rights Commission (the
    Commission)[1] welcomes the
    opportunity to submit this Independent Report on Australia’s
    implementation of the Convention on All Forms of Discrimination against Women
    (CEDAW) to the Committee on the Elimination of Discrimination against Women (the
    Committee).

  2. The Commission is Australia’s national human rights institution. The
    Commission is compliant with the Paris
    Principles,[2]
    and a member of the
    International Coordinating Committee of National Human Rights
    Institutions[3] and the Asia Pacific
    Forum of National Human Rights
    Institutions.[4]

  3. The Commission administers the Sex Discrimination Act 1984 (Cth)
    (SDA). The SDA was enacted in order to give effect to obligations of Australia
    under CEDAW. 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. The SDA also aims to promote
    recognition and acceptance within the community of the principle of the equality
    of men and women.[5]

  4. The SDA creates the office of the Sex Discrimination
    Commissioner.[6] The Sex
    Discrimination Commissioner is a member of the Commission together with the
    President of the Commission, the Aboriginal and Torres Strait Islander
    Commissioner, Disability Discrimination Commissioner, Human Rights Commissioner
    and Race Discrimination Commissioner. The Sex Discrimination Commissioner leads
    the work of the Commission to promote gender equality in Australia.

  5. In 2007, the Sex Discrimination Commissioner conducted a national Listening Tour in Australia, which involved extensive consultations with
    women and men across the country. The key finding of the Listening Tour was that gender equality matters to both women and men but that progress towards
    this goal in Australia had stalled.[7]

  6. All of the material included in this document has been previously brought to
    the attention of the Australian Government through a range of Commission
    publications and submissions.

  7. The recommendations in this Independent Report are also contained in the
    Commission’s Gender Equality Blueprint 2010 launched in June 2010.
    The Blueprint is a synthesis of the Commission’s key outstanding
    recommendations for immediate reform in Australia to promote gender equality,
    arising out of its submissions and reports since 2007.

  8. The Shadow Report prepared by Women’s Non Government Organisations and
    submitted to the Committee in 2009 provides a comprehensive overview of positive
    developments and current challenges referenced to every article of CEDAW.

  9. The Australian Human Rights Commission’s Report does not seek to
    replicate that information but rather to update the Committee on major
    developments in key areas since July 2009, drawing on the Commission’s
    domestic policy submissions and advocacy.

2
Overview

  1. Since 2007, there have been some significant positive developments in
    promoting gender equality in Australia and fulfilling Australia’s
    international obligations under CEDAW. These development are set out in this
    Report.

  2. A significant number of these developments have arisen out of important
    national reviews which have considered, at least in part, the state of gender
    equality in Australia over the last 18 months.

 

Timeline - gender equality Dec 2008 - Jan 2010

  1. However, there remain gaps in substantive equality between women and men.
    Gender inequality continues to be a significant problem in
    Australia:

    • Australia is ranked 1st on women’s educational attainment
      but, between 2008 and 2009, Australia’s international ranking for
      women’s participation in the workforce dropped from 40th to
      50th position.[9]

    • Women in Australia currently earn approximately 82 cents in the male dollar
      (full-time adult ordinary time earnings) and the gender gap in pay has widened
      over the last four years.[10]

    • One in three Australian women experiences physical violence in their
      lifetime.[11]

    • Nearly one in five Australian women has experienced sexual assault since the
      age of 15[12]

    • Women chair only two per cent of ASX200 companies (four Boards) and hold
      only 8.3% of Board
      Directorships.[13]

    • Women spend almost three times as many hours per week looking after children
      as men.[14]

    • Average superannuation payouts for women are less than half that received by
      men – $63,000 compared with
      $136,000.[15]

    • Women make up 73% of Single Age Pension
      recipients.[16]

  2. There are a number of areas in which significant further action is required
    to achieve substantive equality between women and men.

  3. This Independent Report addresses five key areas of reform, relevant to
    Australia’s international obligations under CEDAW. This Report is not a
    comprehensive review of all aspects of inequality. It highlights five areas in
    which the Commission has undertaken significant policy and advocacy at the
    national level.

  4. The Report highlights key positive developments in each of these areas, and
    presents recommendations for addressing current challenges.

3
Balancing paid work and family and caring responsibilities

3.1
Improving the Paid Parental Leave Scheme

(Art
11(2)(b): Paid maternity leave)

  1. Australia has been one of only two OECD countries in which there is not a
    statutory right to paid maternity leave.

  2. Australia has been criticised for not having this basic right in place,
    including by the
    Committee.[17]

Positive
Developments

  1. On 17 June 2010, the Australian Parliament passed the Paid Parental Leave
    Act 2010
    (Cth) which will deliver Australia’s first statutory Paid
    Parental Leave scheme on 1 January 2011. This is an historic victory for all
    women and parents in Australia. The Australian Government is to be
    congratulated for continuing to pursue this reform particularly during the
    global economic slowdown.

  2. The scheme will provide 18 weeks leave paid to the primary carer at the
    federal minimum wage. The scheme will provide a significant step towards
    reducing the workplace disadvantage that women experience following the birth of
    a child and enable parents to stay at home to care for their baby during the
    vital early stages.

  3. The Paid Parental Leave Act 2010 (Cth) also includes provision for a
    review of the scheme two years after its
    commencement.[18]

Current
Challenges

  1. There are a number of gaps in the current Paid Parental Leave scheme that
    should be addressed.

  2. The scheme does not include superannuation, which impacts on the major
    gender gap in retirement savings and economic security between older women and
    men.

  3. There is also no specific paid leave for fathers and other supporting
    parents. Australian men and women overwhelmingly believe (90%) that men should
    be as involved in parenting as women,[19] and that equal participation in
    caring work leads to greater financial and gender equality over the life
    course.

  4. Improving the scheme will better protect women’s financial security
    and provide a greater opportunity for fathers and other supporting partners to
    bond with their babies and share in their
    care.

Recommendation One
for Concluding Comments

  • That the Australian Government be congratulated for introducing the first
    statutory Paid Parental Leave scheme to commence on 1 January 2011.

  • That the Australian Government ensure the legislated independent review of
    the new Paid Parental Leave Act 2010 gives particular consideration to providing
    superannuation on paid leave and a minimum of two weeks paid leave for fathers
    and other supporting parents.

  • That the Australian Government also give consideration to extending the
    scheme over time to provide a full year of paid parental leave that can be
    shared between parents including a minimum of four weeks paid leave for fathers
    and supporting parents, available on a ‘use it or lose it’ basis as
    well as increasing the level of payment to at least two thirds of
    income.

 

3.2
Making flexible work an accepted part of workplace culture

(Art 11: Work)

  1. One of the most common reasons that women and a growing number of men
    struggle to stay in paid work is because of their responsibility for the care of
    children and other loved ones.

  2. In many workplaces caring is still seen as an individual choice. Workplaces
    do not adequately support employees who have caring roles. Many workers are not
    able to obtain the flexible work arrangements they need. When it gets too hard
    to juggle their various responsibilities, some have no option but to
    resign.

  3. There has been a lot of talk about the importance of ‘flexible
    work’ and getting the ‘work-life balance’ right.

  4. However, the simple reality is that quality flexible working arrangements
    are still uncommon in Australian workplaces. Where flexible work policies are
    available, unsupportive workplace cultures mean that many workers – and
    men in particular – report being reluctant to use them. Men report
    concerns about money, adverse effects on careers, fears about job security,
    negative attitudes of supervisors and lack of awareness about leave as reasons
    for their low take-up.[20] While
    women report having better access to family friendly employment conditions,
    using these often comes at the expense of job quality, pay, satisfaction with
    hours worked and career
    progression.[21]

  5. To be effective, flexible work arrangements need to be an accepted part of
    all Australian workplaces. They need to be available to both men and women and
    cover all forms of caring responsibilities, not just young children, in order to
    support the more equal sharing of paid work and family and caring
    responsibilities.

Positive developments

  1. The National Employment Standard (NES) on the right to request a flexible
    work arrangement commenced on 1 January 2010 under the Fair Work Act 2009 (Cth). The NES will give parents covered by Australia’s
    national industrial relations laws the right to request a flexible work
    arrangement where they have children below school age or a child under 18 years
    old with a disability. This is a welcome recognition of the reality that many
    workers need to balance paid employment with their family and caring
    responsibilities.

  2. On 24 June 2010, the Australian Government introduced the Sex Discrimination
    Amendment Bill 2010 into the Australian Parliament. If passed, this Bill will
    extend the protection from discrimination on the grounds of family
    responsibilities to both female and male workers who are caring for a child or
    immediate family member.[22]

Challenges

  1. The NES in its current form does not extend to the full range of caring
    responsibilities that workers often have to meet. The right to request flexible
    work is currently restricted to carers of a child below school age or a child
    under 18 years old with a disability.

  2. Carers of older children, elderly parents or a family member with a
    disability may also need flexible work arrangements to meet their caring
    responsibilities and remain in paid employment.

  3. The Sex Discrimination Act 1984 (Cth) in its current form also
    provides only limited protection from discrimination on the grounds of family
    and caring responsibilities. Protection is confined to direct discrimination
    upon dismissal from
    employment.[23]

  4. The Sex Discrimination Amendment Bill 2010 has not yet been enacted, and is
    not therefore part of the law of
    Australia.

Recommendation Two
for Concluding Comments

  • That the Australian Government be commended for including the right to
    request flexible working arrangements within the National Employment
    Standards.
  • That the Australian Government amend both the National Employment Standard
    and the Sex Discrimination Act 1984 to provide comprehensive
    protection from discrimination on the grounds of all forms of family and carer
    responsibilities to both women and men in all areas of employment and place a
    positive duty on employers to reasonably accommodate a worker’s family and
    carer responsibilities, including through the provision of flexible work
    arrangements.

3.3
Affordable, accessible, quality early childhood education and care and school
age care

(Art 11(2)(c): Childcare)

  1. Many parents who want to
    stay in paid work after they have children rely on formal childcare. Parents use
    a range of services to assist them balance their paid work with their
    responsibilities for their children – childcare for infants, care and
    education for preschool aged children and outside school hours care for school
    aged children. These services also support children's social, cognitive,
    physical and emotional development.

  2. However, parents continue to experience difficulty in finding appropriate
    care for infants, preschool education and care for school aged children before
    and after school and during school
    holidays.[24]

  3. The lack of appropriate and affordable childcare has been identified as one
    of the main barriers to women returning to work after having
    children.[25]

  4. Some parents report that care fees are prohibitive, sometimes costing them
    more than they earn. Others struggle to find a place for their child, even when
    they can afford to pay. For parents using childcare and after school hours care,
    getting to these centres on time can be stressful and costly. Many parents still
    do the ‘double drop-off’, dropping one child at childcare and
    another at school. To complicate matters, the hours when care is available can
    often be incompatible with paid work hours, particularly shift work.

  5. Some parents also question the quality of care their children receive or the
    age appropriateness of activities and care.

  6. Increasingly, grandparents are being called on by their adult children to
    ‘fill the gap’ and provide this care. As a result grandparents may
    have to reduce, or even give up, their own paid work to provide care for their
    grandchildren. Women are twice as likely to undertake informal childcare as
    men.[26]

Positive
Developments

  1. In 2008, Australian Governments made a commitment to ensure that by 2013
    every child will have access to 15 hours a week, 40 weeks a year in a preschool
    program in the 12 months prior to full-time
    schooling.[27]

  2. In 2009, Australian Governments agreed to a new National Quality Framework
    to improve early childhood education and care in Australia. The agreement
    includes a commitment to establish a new national body jointly governed by the
    Commonwealth and the state and
    territories.[28]

  3. In addition, the Australian Government has provided a significant increase
    in funding towards child care services and
    improvements.[29]

Challenges

  1. However, Australia has a significant challenge ahead in building an early
    childhood education and care and school age care system as a major piece of
    essential national social infrastructure.

  2. In 2008, the United Nation’s Children’s Fund ranked Australia's
    childcare system as the third worst in 25 OECD
    countries.[30] It also urged
    Australia to reduce its reliance on the corporate sector for the provision of
    child care services.

  3. The Senate Committee Inquiry into the Provision of Childcare also found that
    “the need for quality childcare for children of all ages is beyond
    question and governments have a responsibility to ensure that it is regulated
    and affordable.”[31] It is
    essential that national structures, systems and resources are put in place to
    progressively build a system of universal childhood education and care.

Recommendation
Three for Concluding Comments

  • That the Australian Government establish a strong national body to oversee
    the ongoing development and improvement of early childhood education and care in
    Australia. The national body must be adequately funded to drive national reform
    in a transparent manner, with a lead role in policy and planning, operating as a
    single point of national accountability.
  • That the Australian Government ensure improvements under the National
    Quality Framework do not lead to increases in costs to individual parents and
    families.
  • That the Australian Government ensure services deliver equal outcomes to all
    children, including children in regional and remote areas, Indigenous children,
    children from culturally and linguistically diverse communities and children
    with specific needs.
  • That the Australian Government provide greater options for families for
    non-standard hours child care services.
  • That the Australian Government introduce a scheme of financial incentives or
    grants for primary and secondary schools, community based organisations and
    children's services to introduce innovative and age appropriate activities
    outside school hours and in school holidays.
  • That the Australian Government promote greater accessibility and
    coordination between all services for children, including schools, recreation
    and sport programs and health-related services and programs.

4
Ensuring women’s lifetime economic security

4.1 Pay equity
(Art
11(1)(d): Equal pay)

  1. Women in Australia currently earn approximately 82 cents in the male dollar
    (full-time adult ordinary time earnings) and the gender gap in pay has widened
    over the last four years.[32]

  2. The gender pay gap is even greater when women’s part-time and casual
    earnings are considered, with women earning just two thirds the amount men
    earn.[33]

  3. Women are more likely to work under minimum employment conditions and be
    engaged in low-paid, casual and part-time
    work.[34]

  4. Australian women are over-represented in low-paid industries, with high
    levels of part-time work in retail, hospitality and personal services
    sectors.[35]

  5. The Australian workforce is highly segregated by gender and female-dominated
    industries have been historically undervalued.[36] For example, industries such as aged
    care, child care, health and community services are all female-dominated and
    generally lower paid compared to male-dominated industries such as engineering,
    mining and finance.[37]

  6. The gender pay gap is not limited to female-dominated industries. It is also
    particularly pronounced in ASX200 companies. Among the key management personnel
    in these companies for whom remuneration data is available, the pay gap is 28.3%
    – more than 10% higher than the current national average gender pay
    gap.[38]

Positive
developments

  1. The Australian Government introduced new provisions for achieving pay equity
    in the Fair Work Act 2009 (Cth). The new provisions expand the definition
    of the test associated with challenging pay rates on the grounds of the gender
    pay gap by introducing the requirement that equal pay must be provided for work
    of equal or comparable
    value.[39]

  2. The Australian Government is also to be congratulated for referring to the
    House of Representatives Standing Committee on Employment and Workplace
    Relations its Inquiry into Pay Equity and associated issues related to
    increasing female participation in the workforce. The Committee released its
    comprehensive report on 23 November
    2009.[40]

  3. In addition, the Australian Government is to be congratulated for supporting
    the test case under the Fair Work Act 2009 (Cth) under the new equal
    remuneration laws led by the Australian Services Union. The test case
    seeks a review of pay rates under the Social and Community Services Award and
    will affect approximately 200,000 community workers. The Commission has
    intervened in this case.

Challenges

  1. The Australian Government has yet to respond to the Report of the House of
    Representatives Standing Committee on Employment and Workplace Relations into
    Pay Equity.

  2. The response to any outcome of the test case by funding bodies of affected
    community services, including by the Australian Government, is not yet known.

Recommendation
Four for Concluding Observations

  • That the Australian Government be congratulated for introducing new
    provisions for achieving pay equity in the Fair Work Act 2009 (Cth).
  • That the Australian Government provide the Equal Opportunity for Women in
    the Workplace Agency, the Sex Discrimination Commissioner, the Australian Human
    Rights Commission and Fair Work Australia with the mandate and resources to
    develop a National Pay Equity Strategy.
  • That the Australian Government amend the Equal Opportunity for Women in the
    Workplace Act to make pay equity a specific ‘employment
    matter.’
  • That the Australian Government establish a specialist unit to develop and
    monitor pay equity mechanisms within the new wage setting body of Fair Work
    Australia.
  • That the Australian Government put in place measures to promote greater
    transparency in relation to pay rates, including in individual contracts.
  • That the Australian Government provide funding required to ensure that any
    decision of Fair Work Australia arising from the Australian Services
    Union’s application for an Equal Remuneration Order on behalf of Social
    and Community Service workers can be implemented without job losses or reduction
    of services.

 

4.2 Closing
the gender gap in retirement incomes, superannuation and valuing unpaid work

(Art 11: Work)

  1. There is a major gap between the financial security of Australian men and
    women in later life and women face a much greater risk of living in poverty.

  2. Current average superannuation payouts for women are less than half that
    received by men – $63,000 compared with
    $136,000.[41]

  3. Of all household types in Australia, elderly single women are at the
    greatest risk of persistent poverty, with more than half of elderly single women
    living in poverty.[42]

  4. Many women are reliant on the Age Pension due to minimal retirement savings
    – 73% of single Age Pensioners are
    women[43] and 58.3% of all Age
    Pensioners are women.[44]

  5. Australia’s retirement income system is based on compulsory savings
    enforced through the superannuation guarantee and voluntary savings (both
    through superannuation and other sources). The government-provided Age Pension
    supplements this income.

  6. Superannuation savings are directly linked to paid work. This means women
    who take time out of paid work to care for children or other family members are
    penalised in retirement savings. Women do two thirds of the unpaid caring and
    domestic work in Australian
    households[45] and spend almost
    three times as many hours each week looking after children as
    men.[46]

Positive
developments

  1. The Australian Government has conducted the Henry Tax
    Review[47]
    and the Cooper
    Review
    into superannuation in
    Australia.[48]

  2. The Australian Government is now taking action to increase retirement
    savings by raising the superannuation guarantee to 12 per cent by 2019/20. This
    will increase the retirement savings of many people in the paid
    workforce.[49]

  3. The Australian Government has also committed to making a superannuation
    contribution of up to $500 annually for people on low
    incomes.[50]

Challenges

  1. Reforms are needed to the whole retirement income system to ensure women,
    who receive lower salaries in paid work and perform the majority of unpaid work
    in the home, are not left in poverty in their retirement.

  2. In particular, the retirement income system needs to include mechanisms that
    provide a financial reward for unpaid caring work carried out during a
    person’s lifetime.

  3. The reviews conducted by the Australian Government have so far failed to
    grapple with the gender inequality inherent in Australia’s retirement
    income system. While the recently announced changes to the superannuation system
    may have some benefits for people on low incomes, the persistent gender pay gap
    and the continuing ‘broken’ work patterns of women mean their
    retirement savings will continue to lag behind those of
    men.

Recommendation Five for Concluding
Observations

  • That the Australian Government extend the superannuation co-contribution
    scheme. This scheme has particularly benefited women who are more likely to be
    low income earners.[51]
  • That the Australian Government undertake a gendered analysis of the findings
    of the Henry Review to ensure that changes to the tax system help close
    the gap in economic security between men and women.
  • That the Australian Government support an independent inquiry into
    recognising unpaid caring work within Australia’s superannuation and
    pension schemes.

 

4.3 Providing
safe, secure and affordable housing

(Art 13:
Economic and social rights)

  1. Australia is facing a national housing crisis with not enough supply to meet
    the demand of a growing population.

  2. The rising cost of housing means that women, with less financial resources
    at their disposal than men, are particularly vulnerable to living in insecure or
    inadequate housing.

  3. Women can also experience periods of homelessness, especially following
    domestic or family violence or the breakdown of a
    relationship.

Positive developments

  1. The Australian Government has taken a number of steps to reduce
    homelessness and to expand the availability of low cost and social housing in
    Australia.

  2. In particular, the Commission welcomes the establishment of the National
    Rental Affordability Scheme,[52] and
    the substantial increase in funding for low cost
    housing.[53]

  3. The Commission also welcomes the Homelessness White Paper (The Road
    Home),[54] the commitment to
    achieving targets in the reduction of homelessness to 2020 and the significant
    increase in funding to homelessness
    services.[55]

  4. The Australian Government is also to be congratulated for initiating the
    House of Representatives Standing Committee on Family, Community, Housing and
    Youth Inquiry into National Homelessness Legislation. The Commission
    particularly welcomes the Report of that Inquiry in November 2009, which
    recommended that:

    • National homelessness legislation should specify the right to the
      progressive realisation of adequate housing and provide for independent
      monitoring of progress against this international human rights
      standard[56]
    • Data collection mechanisms should allow monitoring of specified vulnerable
      and marginalised population
      groups[57]
    • Tenancy and public space laws should be audited to ensure compliance with
      anti-discrimination and human rights
      obligations[58]

Challenges

  1. Australia continues to face a national crisis in access to affordable
    housing.[59]

  2. There is yet to be a long term assessment of housing need which has led to a
    national framework for ensuring that current and future adequate housing needs
    will be addressed.

  3. Women and their children continue to be particularly affected by the
    affordable housing crisis, due to the major gap in overall economic security
    across the life-cycle, and to women’s experience of gender-based violence
    which leads to housing vulnerability.

  4. Women account for close to two thirds of people using Australia’s
    homelessness assistance
    services.[60] Young women
    (15–19 years) are the most likely population group to use a homeless
    assistance service with one in every 50 women in this age bracket accessing
    support in a 12 month period.[61].

  5. 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.[62]

  6. The mechanisms for coordinating government action associated with the
    National Plan to reduce Violence against Women have yet to be articulated.

Recommendation
Six for Concluding Observations

  • That the Australian Government be commended for its commitments to reduce
    homelessness and to expand the availability of low cost and social housing in
    Australia.
  • That the Australian Government develop and implement a National Housing
    Strategy with the aim of delivering equal outcomes for women and men.
  • That the Australian Government ensure national responses to homelessness and
    affordable housing are disaggregated by gender and other relevant
    characteristics to monitor equality of outcomes.
  • That the Australian Government ensure all government funded research,
    reporting, monitoring and evaluation frameworks should include disaggregated
    data collection and analysis of the outcomes being achieved for vulnerable
    groups, including women and their children.
  • That the Australian Government integrate national initiatives to eliminate
    violence against women, including legal support services with national housing
    and homelessness initiatives.
  • That the Australian Government undertake a review of tenancy laws to better
    protect people from being evicted into homelessness.

5
Promoting women in leadership

5.1
Strengthening representation at decision-making levels

(Art 4:
Temporary Special Measures; Art 7: Public participation)

  1. Despite making up 45% of Australia’s total workforce, women remain
    grossly under-represented in leadership and management positions in virtually
    all sectors.

  2. The number of women in leadership positions in the public and private sector
    is not representative of women’s interest or ability. Furthermore,
    increasing the representation of women at decision-making levels would help
    challenge and change the gendered culture of workplaces and institutions.

Positive Developments

  1. New reporting requirements introduced by the Australian Securities Exchange
    Governance Council will require all listed companies to set targets for
    increasing the number of women on their Boards and at senior executive level.

  2. These new reporting requirements are a welcome call to action to business to
    address the low representation of women at decision-making levels.

  3. Most state and territory governments have already put in place gender
    equality targets for government-appointed Boards and Committees and these have
    had a dramatic impact on the representation of women on these bodies.

Challenges

  1. The Australian Government has not adopted quotas and targets to increase the
    number of women in political and public life and particularly to ensure the
    equal representation of women in all publicly appointed bodies.

  2. It is time for the Australian Government to follow suit and take concrete
    steps to ensure greater gender equality in Australian Government appointments,
    including on Boards and Committees and within the Australian Public Service as a
    whole.

 

Recommendation
Seven for Concluding Observations

  • That the Australian Government set a minimum target of 40% representation of
    each gender on all Australian Government Boards within three years. These
    targets should be publicly announced and progress should be reported
    annually.
  • That the Australian Government set a minimum gender equality target in the
    Senior Executive Service in the Australian Public Service, publicly announce the
    target and progress should be reported annually.
  • That the Australian Government require all publicly listed companies
    providing goods or services to the Australian Government to be certified by the
    Equal Opportunity in the Workplace Agency.
  • That the Australian Government set a target of 40% representation of each
    gender on all publically listed Boards in Australia, to be achieved over five
    years. If progress is not made, the Australian Government should consider
    legislating to require publicly listed companies and other large employers to
    achieve a mandatory gender diversity quota of a minimum of 40% of both genders
    within a specified timeframe, failing which penalties would be
    imposed.

 

5.2
Lifting the voices of women in civil society

(Article 7(b)(c),
Article 8: Participation in formulation of government policy, non government
organisations and representation)

  1. Women also play crucial leadership roles in civil society, developing
    initiatives to improve the health and well-being of their communities. Women
    leaders ensure that women are able to have a voice in the formation and
    implementation of legislation, policies and services which affect their
    lives.

  2. It is crucial that women leaders have the opportunity to share their skills,
    experience and insights with others in Australia and abroad. It can be
    particularly difficult for women from different ethnic, religious and cultural
    backgrounds to participate in meetings and fora at a national and international
    level.

Positive Developments

  1. In March 2010, the Australian Government funded six new National Women’s Alliances to improve dialogue between women and the Australian Government on a range of policy issues including violence against women, issues facing Aboriginal and Torres Strait Islander women, women in rural region settings and immigrant and refugee women. The Australian Government has also announced specific funding for the Alliance and UNIFEM Australia to coordinate, promote and hold a range of events to mark the centenary of International Women’s Day.

  2. The Australian Government announced grants to 117 organisations under the 2010-11 Sport Leadership Grants and Scholarships for Women program, which provides grants and scholarships in the areas of coaching, officiating, governance, management, administration, communications and the media.

  3. Nongovernment organisations have coordinated and produced a detailed Shadow Report to the Australian Government’s sixth and seventh reports and continue to participate actively in policy formation despite limited resources.

  4. The Australian Government has funded NGO delegates, including specific positions for Aboriginal and Torres Strait Islander Women on the Australian Government Delegation to the UN Commission on the Status of Women.

Challenges

  1. Non government women’s services and organisations are not adequately
    funded to provide policy advice to government.

 

Recommendation
Eight for Concluding Observations

  • That the Australian Government be congratulated for funding women’s
    nongovernment organisations to provide a Shadow Report to the Committee and
    commended for funding six women’s alliances to provide expert policy
    advice to Government.
  • That the Australian Government specifically and adequately support
    women’s organisations and representatives to participate fully in local,
    national, regional and international policy and decision-making processes.
  • That the Australian Government ensure policy development includes meaningful
    and ongoing consultation with grassroots communities, women’s
    organisations and women’s alliances.
  • That the Australian Government ensure all Australian delegations to regional
    or international intergovernmental bodies reflect the diversity of women in
    Australia.

6
Preventing violence against women and sexual harassment

6.1
Putting an end to violence against women

  1. Many women in Australia continue to experience violence as an everyday
    reality. Almost every week in Australia, one woman is killed by her current or
    former partner, often after a history of domestic
    violence.[63] Intimate partner
    homicides account for just over one-fifth of all
    homicides.[64] Research from the
    State of Victoria confirms that domestic violence is the leading contributor to
    death, disability and illness of women in Victoria under the age of
    45.[65]

Positive Developments

  1. It is commendable that the Australian Government has taken a ‘zero
    tolerance’ approach to violence against women and has committed to a
    National Plan to address the problem.

  2. The National Plan to Reduce Violence against Women and their Children and its first three-year Action Plan are currently being developed by the
    Council of Australian Governments. The Plan when finalised, will be the first
    national plan for an Australian Government to address violence against women,
    and will be a significant step forward in addressing this important area of
    concern.

Challenges

  1. In order to be effective, a National Plan must create national structures
    which ensure cooperation and consistency across all Australian
    jurisdictions.[66] International
    research and experience suggests a national-level body, with a strong mandate,
    should drive the implementation and further development of the National
    Plan.[67]

  2. Services established to respond to the needs of women experiencing violence,
    including legal services, must be adequately funded and properly supported.

Recommendation
Nine for Concluding Observations

  • That the Australian Government be congratulated for initiating a new
    national approach to violence against women.
  • That the Australian Government ensure both national structures and adequate
    Commonwealth funding are put in place to support coordinated and strategic
    implementation of the National Plan to Reduce Violence Against Women across
    jurisdictions and sectors.
  • That the Australian Government nominate and fund a suitable independent
    statutory office to monitor and inform the development of the National Plan.
    Monitoring should contribute to the development of a national research and
    education agenda and promote best practices.
  • That the Australian Government ensure services responding to the needs of
    women and girls who have experienced violence are adequately funded as an urgent
    priority.
  • That the Australian Government adequately resource independent advocacy
    organisations and representatives to contribute to the development and
    evaluation of the National Plan.
  • That the Australian Government invite the UN Special Rapporteur on Violence
    Against Women to visit Australia to contribute to independent monitoring of the
    nation’s ‘zero tolerance’ approach to gender-based
    violence.

 

6.2
Preventing sexual harassment

(Art 11: Work)

  1. Sexual harassment remains a chronic problem in Australian workplaces,
    despite being outlawed for over 25 years.

  2. Every year, sexual harassment is one of the most common grounds of complaint
    under the SDA.[68]

  3. The proliferation of new technologies – such as mobile phones and
    social networking websites – is also creating new mediums where sexual
    harassment can occur.

Positive developments

  1. The Australian Government has accepted a number of the Senate
    Committee’s recommendations from the Inquiry into the Effectiveness of the Sex Discrimination Act relating to sexual
    harassment. The proposed changes to the SDA will greatly improve the
    protection available for women who experience sexual harassment at work or in
    schools.

  2. The Australian Government has also agreed to consider amending the SDA to
    include a general prohibition against sexual harassment in any area of public
    life, as recommended by the Senate Committee’s Inquiry into the Effectiveness of the Sex Discrimination Act and as part of the proposed
    consolidation of federal discrimination laws.

Challenges

  1. The proposed changes to the SDA have not yet been passed by the Australian
    Parliament and therefore are not part of Australian law.

  2. There is a need for a coordinated and adequately funded strategy to drive
    down the incidence of sexual harassment involving key government agencies
    including the Commission, the Equal Opportunity for Women in the Workplace
    Agency, Fair Work Australia, employers, unions and civil society groups.

Recommendation
Ten for Concluding Observations

  • That the Australian Government amend the SDA to provide greater protection
    from sexual harassment for students and workers, as proposed by the Australian
    Government in its response to the review conducted by the Senate Committee.
  • That the Australian Government strengthen the powers of the Sex
    Discrimination Commissioner by inserting into the SDA a function for the
    Commissioner to initiate investigations within Australian workplaces without
    requiring an individual complaint, in order to drive down the incidence of
    sexual harassment.
  • That the Australian Government develop and implement a national Sexual
    Harassment Prevention Strategy to assist all employers and workers understand
    their rights and responsibilities in relation to sexual harassment. The strategy
    should focus on prevention and education with key roles for the Equal
    Opportunity in the Workplace Agency, the Sex Discrimination
    Commissioner/Australian Human Rights Commission and Fair Work
    Australia.

 

7
Strengthening gender equality laws, agencies and monitoring

7.1
Building gender equality machinery

(Art 2: Obligations to
eliminate discrimination; Art 3: Advancement of women)

  1. Government systems and agencies are most effective in promoting gender
    equality when they are located at a high level within the national
    decision-making hierarchy to influence government policy.

  2. Gender equality machinery must have a clear mandate and functional
    responsibility and be linked to civil society groups that support the
    advancement of women’s rights. National machinery must have adequate
    human and financial resources and be accountable to the
    public.[69]

Positive developments

  1. Since 2007, the Australian Government has initiated a number of important
    reviews that have considered how to strengthen Australia’s gender equality
    machinery. In particular, the Government has initiated reviews into the SDA the Equal Opportunity for Women in the Workplace Act 1999 (Cth) and an
    inquiry into closing the gender pay gap.

Challenges

  1. At present, responsibility for gender equality is shared between a number of
    Government Agencies and there are no formal agreements in place to ensure a
    consistent implementation of CEDAW. The laws that underpin the various agencies
    are inconsistent and may lead to confusion, increased enforcement costs and
    reduced impact.

  2. There is a need for reform to provide greater clarity around roles and
    responsibilities and to coordinate action towards gender
    equality.

Recommendation
Eleven for Concluding Observations

  • That the Australian Government improve the quality of government
    decision-making and policy-making relating to women by ensuring that the federal
    Office for Women is adequately funded and has influence at the highest level of
    government.
  • That the Australian Government strengthen the independent agencies that
    contribute to gender equality, including the Equal Opportunity for Women in the
    Workplace Agency and the Australian Human Rights Commission.
  • That the Australian Government promote concrete measures such as setting
    targets to increase the proportion of women running for election and entering
    both houses of federal Parliament.

7.2
Improving gender equality legislation

(Art 2: Obligations to
eliminate discrimination against women; Art 3: Advancement of
Women)

7.2.1 Sex Discrimination Act 1984 (Cth)

  1. The operation of the SDA over the last 25 years shows that there are some
    serious limitations with the current form and content of Australia’s
    gender equality legislation. This was confirmed when the Senate Legal and
    Constitutional Committee reviewed the SDA in 2009. Evidence presented to the
    Committee suggested that while the SDA has had an impact on the most overt forms
    of sex discrimination, it has been less successful in addressing systemic
    discrimination.

  2. It is also widely acknowledged that the SDA does not fully implement
    Australia’s international legal obligations, particularly under
    CEDAW.

Positive Developments

  1. In its report of December 2009, the Committee made a suite of
    recommendations designed to ensure the SDA can continue to progress gender
    equality in Australia. These recommendations were also endorsed by the House of
    Representatives Inquiry into Pay Equity in 2009.

  2. The Australian Government responded to the SDA review in April 2010. The
    Government’s proposed immediate action would:

    • ensure that the protection from discrimination provided by the SDA applies
      equally to women and men

    • establish breastfeeding as a separate ground of discrimination

    • provide greater protection from sexual harassment for students and
      workers

    • extend protection from discrimination on the grounds of family and caring
      responsibilities to both women and men in all areas of
      employment.

  3. On 24 June 2009, the Australian Government introduced the Sex Discrimination
    Amendment Bill 2010 (Cth) into the Australia Parliament to give effect to this
    first stage of reform.

  4. The Australian Government has stated that it will give further consideration
    to implementing the outstanding recommendations of the SDA Review as part of the
    proposed consolidation of federal discrimination laws. The consolidation of
    federal discrimination laws is one of the outcomes of the Australian
    Government’s Response to the National Human Rights
    Consultation.

Challenges

  1. The Sex Discrimination Amendment Bill 2010 has not yet been passed by the
    Australian Parliament and therefore is not part of Australian law.

  2. The process for the consolidation of federal discrimination laws has
    commenced but the outcome of the process is yet to be determined.

Recommendation
Twelve for Concluding Observations

  • That the Australian Government implement its response to the Senate Legal
    and Constitutional Committee’s Report into the Effectiveness of
    the Sex Discrimination Act 1984
    (Cth).
  • That the Australian Government amend the SDA to insert a function for the
    Sex Discrimination Commissioner to commence self-initiated investigations for
    alleged breaches of the SDA, without requiring an individual
    complaint.

 

7.2.2
Equal Opportunity for Women in the Workplace Act 1999

  1. Women continue to experience discrimination in the paid workforce. This is
    demonstrated by the level of women’s workforce participation, particularly
    women with young children, the gender gap in pay, the level of women’s
    representation in management and leadership positions, complaints of pregnancy
    discrimination and the prevalence of sexual harassment.

  2. The Equal Opportunity in the Workplace Act (EOWW Act) plays a crucial
    role in promoting and progressing gender equality in Australian workplaces.

Positive developments

  1. In 2009, the Australian Government Office for Women conducted a review of
    the EOWW Act

Challenges

  1. The outcome of the review of the EOWW Act is not yet
    known.

Recommendation
Thirteen for Concluding Observations

  • That the Australian Government amend the EOWW Act to change its name to the Gender Equality in the Workplace Act and rename the Equal Opportunity in
    the Workplace Agency as the Gender Equality in the Workplace Agency.
  • That the Australian Government amend the EOWW Act to include the achievement
    of gender equality as a key object of the Act.
  • That the Australian Government amend the EOWW Act to cover Australian
    Government departments and statutory agencies with 100 employees or more.
  • That the Australian Government amend the EOWW Act to include pay equity as a
    separate ‘employment matter’.
  • That the Australian Government ensure the Equal Opportunity in the Workplace
    Agency receives adequate funding to properly fulfill its statutory
    mandate.

 

7.3
Monitoring progress towards gender equality

(Art 2:
Obligations to eliminate discrimination: Art 3: Advancement of
women)

  1. A key part of the national gender machinery of the country is the setting of
    indicators of progress, data collection, benchmarking, monitoring and evaluation
    of progress.

  2. Regular independent monitoring and reporting against an integrated set of
    national gender equality indicators provides an evidence-based assessment of
    progress towards gender equality, benchmarked over time.

Positive
developments

  1. The Australian Government is currently working with the Australian Bureau of
    Statistics (ABS) to develop a set of gender equality indicators that will enable
    both Government and the community to measure progress towards gender equality in
    Australian society.

  2. The Australian Government has also commenced work to develop an access point
    to key gender data on the ABS website

Challenges

  1. There is currently no formal arrangement in place for an independent agency
    to report to Parliament and the Australian public on progress towards achieving
    gender equality across a broad range of national
    indicators.

Recommendation
Fourteen for Concluding Observations

  • That the Australian Government amend the SDA to require the Sex
    Discrimination Commissioner to monitor progress towards eliminating sex
    discrimination and achieving gender equality and report to the Australian
    Parliament every two years.
  • That the Australian Government ensure the Australian Bureau of Statistics is
    adequately resourced and required to generate gender-disaggregated data and
    analysis to enable independent monitoring of progress towards gender
    equality.

 

7.4
Human rights and equality protection

(Art 2: Obligations to
eliminate discrimination)

  1. Australia has strong traditions of liberal democracy, an independent
    judiciary and a robust media. Our largely harmonious and prosperous society can
    mask systemic weaknesses and gaps in the protection of human rights in
    Australia. These weaknesses are compounded by a federated structure with
    responsibilities split between federal, state / territory and local governments.

  2. In 2009, the Australian Government convened a national consultation on human
    rights which concluded that there is a patchwork of protection in Australia with
    “its inadequacies... felt most keenly by the marginalised and the
    vulnerable’ and with the ‘current legal and institutional framework
    fall[ing]short of th[e] commitment to respect, protect and fulfil human
    rights”.[70]

  3. While Australia has a strong record of ratification of human rights
    treaties, including CEDAW, there remains an ‘implementation gap’ at
    the domestic
    level.[71] The
    Australian Constitution and common law provides limited human rights
    protection.[72]The
    absence of an entrenched guarantee of equality / non-discrimination in the
    Constitution is of particular
    concern.[73] While there are federal, state and territory discrimination laws, there are
    inconsistencies between them and their coverage is not comprehensive. [74]

  4. There is no other comprehensive human rights protection legislation and
    access to remedies for human rights breaches is accordingly very limited.

  5. Resources to the Australian Human Rights Commission have not kept pace with
    demand for its services, with the six statutory offices which constitute the
    Commission currently filled by four individuals and substantial increases in
    complaint handling loads having led to backlogs in complaint
    handling.[75]

Positive
developments

  1. In November 2008, the Australian Government ratified the Optional Protocol
    to CEDAW.[76]

  2. The Australian Government, in partnership with the Australian Human Rights
    Commission has published an educational resource on
    CEDAW.[77]

  3. The Australian Government has also taken a lead role in commencing
    negotiations for securing the independent participation of national human rights
    institutions at the United Nations Commission on the Status of Women.

  4. In April 2010, the Australian Government released the Australian Human
    Rights Framework in response to the recent National Human Rights Consultation.
    The framework includes a number of new measures, parliamentary review processes
    and legislative reform which will significantly improve the protection of human
    rights, including the right to equality, in Australia.

Challenges

  1. Australia has yet to remove its reservations under CEDAW.

  2. The measures announced by the Australian Government in response to the
    National Human Rights Consultation will not address all of the existing
    weaknesses in human rights protection in Australia.

Recommendation
Fifteen for Concluding Observations

  • That the Australian Government be congratulated for acceding to the Optional
    Protocol to CEDAW.
  • That the Australian Government remove Australia’s reservations under
    CEDAW.
  • That the Australian Government continue to support the Australian Human
    Rights Commission and other national human rights institutions to secure
    independent participation status at the United Nations Commission on the Status
    of Women.
  • That the Australian Government commence a process of constitutional reform
    to protect the principle of equality for all people in Australia.
  • That the Australian Government fully incorporate into Australian law its
    human rights obligations, including through the adoption of a federal Human
    Rights Act.

 


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

[2] The Commission is established
and operates under the Australian Human Rights Commission Act 1986 (Cth)
and exercises functions under the following legislation: Racial
Discrimination Act 1975 (
Cth); Sex Discrimination Act 1983 (Cth); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2005 (Cth) and Native Title Act 1993 (Cth)

[3] National Human Rights
Institutions Forum, International Coordinating Committee of National Human
Rights Institutions (ICC)
, www.nhri.net/default.asp?PID=85&DID=0 (viewed 30 June 2010)

[4] Asia Pacific Forum: Advancing
Human Rights in our Region, www.asiapacificforum.net/ (viewed 30 June 2010)

[5]Sex Discrimination Act
1984
(Cth), s 3(d). The SDA also prohibits sexual harassment in many areas
of public life: s 28.

[6]Sex Discrimination Act
1984
(Cth), s 96

[7]8 Human Rights and Equal
Opportunity Commission, What matters to Australian women and men: Gender
equality in 2008: the Listening Tour Community Report
(2008). At www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 28 October 2009).

[9] World Economic Forum, The
Global Gender Gap Report 2009
(2009), p 63. See also World Economic
Forum, The Global Gender Gap Report 2008 (2008), p 43. At www.weforum.org/en/Communities/Women%20Leaders%20and%20Gender%20Parity/GenderGapNetwork/PastReports/index.htm (viewed 5 March 2010).

[10] ABS, Average Weekly
Earnings, Australia, February 2010
Catalogue No 6302.0 (2010). R Cassells, Y
Vidyattama, R Miranti & J McNamara, The impact of a sustained gender wage
gap on the Australian economy
(2009), National Centre for Social and
Economic Modelling, p v. At www.canberra.edu.au/centres/natsem/publications?
sq_content_src=%2BdXJsPWh0dHAlM0ElMkYlMkZ6aWJvLndpbi5jYW5iZXJyYS5lZHUuYXUlMk
ZuYXRzZW0lMkZpbmRleC5waHAlM0Ztb2RlJTNEcHVibGljYXRpb24lMjZwdWJsaWNhdGlvbiUzRDEyNzAmYWxsPTE%3D

(viewed 6 April 2010).

[11] ABS, Personal Safety,
Australia, 2005
(Reissue), Catalogue No. 4906.0 (2006), p 7. At www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4906.0Main+Features12005%20(Reissue)?OpenDocument (viewed 5 March 2010).

[12] ABS, Personal Safety,
Australia, 2005
(Reissue), Catalogue No. 4906.0 (2006), p 7.

[13] Equal Opportunity for Women
in the Workplace Agency (EOWA), EOWA 2008 Australian Census of Women in
Leadership
(2008), p 3. At www.eowa.gov.au/Australian_Women_In_Leadership_Census.asp (viewed 5 March 2010).

[14] ABS, How Australians Use
Their Time 2006,
Catalogue No. 4153.0, (2008). At www.abs.gov.au/ausstats/abs@.nsf/mf/4153.0 (viewed 5 March 2010).

[15] R Clare, The Age Pension,
superannuation and Australian retirement incomes
(2009), p 22, At www.superannuation.asn.au/Reports/default.aspx (viewed 5 March 2010).

[16] Department of Families,
Housing, Community Services and Indigenous Affairs, Pension Review Background
Paper
(2008) p 6. At www.fahcsia.gov.au/sa/seniors/progserv/PensionReview/Documents/pension_review/default.htm (viewed 9 February 2009).

[17] CEDAW Committee, Concluding comments of the Committee on the Elimination of Discrimination
against Women: Australia
, UN Doc CEDAW/C/AUL/CO/5 (2006)

[18] Section 307A BUT NEEDS TO BE
CHECKED ONCE RECEIVES ASSENT FROM GG

[19] A Evans & E Gray,
‘What makes an Australian family?’ in S Wilson, G Meagher, R Gibson,
D Denemark & M Western (eds), Australian Social Attitudes: The first
report,
(2005), pp 12–29, p 27.

[20] Australian Human Rights
Commission, It’s about time: women, men, work and family (2007), p
86.

[21] Australian Human Rights
Commission, It’s about time: women, men, work and family (2007), p
87.

[22] Sex Discrimination Amendment
Bill 2010

[23]Sex Discrimination Act
1984
(Cth),s 7A. See further HREOC, Federal Discrimination Law (2008), 118-20.

[24] Australian Human Rights
Commission, , It’s about time: women, men, work and family (2007),,p 147; National Foundation for Australian Women, Security 4 Women,
Australian Women’s Coalition, National Rural Women’s Coalition &
WomenSpeak, Barriers to Women's Employment Women and Recession Project (2010), p 9. At www.ywca.org.au/news/women-and-recession-project (viewed 6 April 2010).

[25] X Gong, R Breunig, A King,
‘New estimates of the relationship between female labour supply and the
cost, availability, and quality of child care’, Australian Government The
Treasury, Economic Roundup, Issue 1 2010; House of Representatives
Standing Committee on Employment and Workplace Relations (2009), Making it
Fair
. At www.aph.gov.au/house/committee/ewr/payequity/report.htm (viewed 6 April 2010).

[26] ABS, Voluntary work,
Australia, 2006,
Cat No. 4441.0 (2007), p 66

[27] Council of Australian
Governments, National Partnership Agreement on Early Childhood Education,
(2008), p 5

[28] Council of Australian
Governments, Early Childhood Development Steering Committee, National Quality
Standard for Early Childhood Education and Care and School Age Care (December
2009), 2.

[29] Kate Ellis, Early
Childhood Education and Child Care
, http://kateellis.com.au/child-care/.
(viewed 30 June 2010)

[30] UNICEF, The child care
transition, Innocenti Report Card 8
(2008), p 2

[31] The Senate Education,
Employment and Workplace Relations References Committee, Provision of
childcare
(2009), p 16.

[32] ABS, Average Weekly
Earnings, Australia, February 2010
Catalogue No 6302.0 (2010); R Cassells, Y
Vidyattama, R Miranti & J McNamara,.The impact of a sustained gender wage
gap on the Australian economy
(2009), National Centre for Social and
Economic Modelling, p v

[33] ABS, Average Weekly
Earnings, Australia, February 2010
Catalogue No 6302.0 (2010).

[34] For example approximately
45% of women in the workforce are employed part-time compared with approximately
16% of men: ABS, ‘Table 03: Labour force status by Sex,’ Labour
Force, Australia
, September 2009, Catalogue No 6202.0 (2009). At www.ausstats.abs.gov.au/ausstats/meisubs.nsf/0/2DE8EA310F563A2BCA257648001518D9/$File/6202003.xls#A163137K (viewed 29 October 2009).

[35] ABS, Labour Force,
Australia, Detailed, Quarterly, May 2008
, Catalogue No. 6291.0.55.003
(2008).

[36] House of Representatives
Standing Committee on Employment and Workplace Relations, Making it Fair: Pay
equity and associated issues related to increasing female participation in the
workforce
(2009). At www.aph.gov.au/house/committee/ewr/payequity/report.htm (viewed 30 June 2010)

[37] ABS, ‘Table 06.
Employed persons by Industry Subdivision and Sex,’ Labour Force,
Australia, Detailed, Quarterly
Catalogue No. 6291.0.55.003 (2010);ABS,
‘Table 10H. Average Weekly Earnings, Industry, Australia (Dollars) -
Original - Persons, Full Time Adult Total Earnings,’ Average Weekly
Earnings, Australia
, 6302.0 (2010)

[38] EOWA, Pay, Power and
Position: Beyond the 2008 EOWA Australian Census of Women in Leadership
(2009), p. 6. At www.eowa.gov.au/Australian_Women_In_Leadership_Census/
2008_Australian_Women_In_Leadership_Census/Pay_Power_Position/Pay_Power_Position_Beyond_the_Census.pdf

(viewed 26 October 2009).

[39]Fair Work Act 2009 (Cth), s 302.

[40] House of Representatives
Standing Committee on Employment and Workplace Relations, Making it Fair: Pay
equity and associated issues related to increasing female participation in the
workforce
(2009).

[41] R Clare, The Age Pension,
superannuation and Australian retirement incomes
(2009), p 22,

[42]B Heady & D Warren,
Families, Incomes and Jobs, Volume 3: A Statistical Report on Waves 1 to 5 of
the HILDA Survey
(2008) p.55. 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. The poverty measurement tool for this study is 50% of the
median income poverty line.

[43] R Tanton, Y Vidyattama, J
McNamara, Q Ngu Vu & A Harding, Old Single and Poor: Using
Microsimulation and Microdata to Analyse Poverty and the Impact of Policy Change
Among Older Australians
(2008) p 14. At https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880 (viewed 9 February 2009).

[44] Department of Families,
Housing, Community Services and Indigenous Affairs, Pension Review Background
Paper
(2008) p 37.

[45] ABS, How Australians Use
Their Time 2006,
Catalogue No. 4153.0, (2008)..

[46] ABS, How Australians Use
Their Time 2006,
Catalogue No. 4153.0, (2008).

[47] See Australia’s
Future Tax System,
www.taxreview.treasury.gov.au/Content/Content.aspx?doc=html/home.htm (viewed
30 June 2010)

[48] See Australian Government, Review into the Governance, Efficiency, Structure and Operation of
Australia’s Superannuation System
(viewed 30 June 2010)

[49] Commonwealth of Australia, Tax Policy Statement, Stronger, Fairer, Simpler: A tax plan for our
future
(2010), p 25

[50] Commonwealth of Australia, Tax Policy Statement, Stronger, Fairer, Simpler: A tax plan for our
future
(2010), p 26

[51] Since the introduction of
the scheme, many women have used the scheme to build their retirement savings.
During 2007–08, 60% of individuals who were paid co-contributions were
female, and 31% of these women were aged between 46 and 55: Australian Tax
Office (ATO), ‘Superannuation System,’ Taxation statistics
2006–07
. Available at www.ato.gov.au/corporate/content.asp?doc=/Content/00177078.htm&page=50&H50 (viewed 6 April 2010).

[52] Australian Government,
Department of Families, Housing, Community Services and Indigenous Affairs National Rental Affordability Scheme (NRAS), www.fahcsia.gov.au/sa/housing/progserv/affordability/nras/Pages/default.aspx (viewed 30 June 2010) 

[53] Australian Government,
Department of Families, Housing, Community Services and Indigenous Affairs, National Affordable Housing Agreement, www.fahcsia.gov.au/sa/housing/progserv/affordability/affordablehousing/Pages/default.aspx and National Partnership Agreement on Social Housing www.fahcsia.gov.au/sa/housing/progserv/affordability/affordablehousing/Pages/NPASocialHousing.aspx (viewed 30 June 2010)

[54] Australian Government,
Department of Families, Housing, Community Services and Indigenous Affairs, The Road Home: Homelessness White Paper (2008)

[55] The Hon. Tanya Plibersek,
MP, Minister for Housing, ‘Government launches 12 year plan to reduce
homelessness in Australia,’ (Media Release, 21 December 2008) 

[56] House of Representatives Standing Committee on Family, Community, Housing and Youth, Housing the
Homeless
: Report on the inquiry into homelessness legislation (2009),
pp xiv-xv

[57] House of Representatives Standing Committee on Family, Community, Housing and Youth, Housing the
Homeless
: Report on the inquiry into homelessness legislation (2009),
p xv

[58] House of Representatives Standing Committee on Family, Community, Housing and Youth, Housing the
Homeless
: Report on the inquiry into homelessness legislation (2009),
xv

[59] C Zappone, ‘Home
prices surge record 20%’ The Sydney Morning Herald, 3 May 2010. At www.smh.com.au/business/home-prices-surge-record-20-20100503-u2im.html (viewed 30 June 2010) and ABC News, ‘20yrs of poor policy blamed for
housing crisis’, ABC News Online, 16 June 2010 www.abc.net.au/news/stories/2010/06/16/2928875.htm (viewed 30 June 2010)

[60] Australian Institute of
Health and Welfare (AIHW), Government-funded specialist homelessness
services: SAAP National Data Collection annual report 2008–09
, Cat.
no. HOU 219 (2010), p 17

[61] Australian Institute of
Health and Welfare (AIHW), Government-funded specialist homelessness
services: SAAP National Data Collection annual report 2008–09
, Cat.
no. HOU 219 (2010), p ix

[62] D Warren, Aspects of
Retirement for Older Women
(2006) p 45. At
www.fahcsia.gov.au/sa/women/pubs/economic/aspects_retirement/Documents/…
(viewed 30 June 2010).

[63] J Dearden & W Jones, Homicide in Australia: 2006–07 National Homicide Monitoring Program
annual report
, Australian Institute of Criminology (2008), p 2

[64] J Dearden & W Jones, Homicide in Australia: 2006–07 National Homicide Monitoring Program
annual report
, Australian Institute of Criminology (2008), p 2

[65] VicHealth (2004), The
health costs of violence: Measuring the burden of disease caused by intimate
partner violence
, p 8

[66]L Fergus, Setting the Standard: international good practice to inform an
Australian National Plan of Action to eliminate violence against women
(2008), Amnesty International Australia, p 6.

[67] L Fergus, Setting the
Standard: international good practice to inform an Australian National Plan of
Action to eliminate violence against women
(2008), Amnesty International
Australia, p 15.

[68] Australian Human Rights
Commission, Annual Reports. Available at http://humanrights.gov.au/about/publications/annual_reports/index.html.

[69] S Rai, ‘Institutional
mechanisms for the advancement of women: mainstreaming gender, democratizing the
state?’ in S Rai (Ed), Mainstreaming gender, democratizing the state?
Institutional mechanisms for the advancement of women
, (2003), p 26.

[70] National Human Rights
Consultation, National Human Rights Consultation Report, (2009), p127, At www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads#doc

[71] The United Nations treaty
bodies charged with monitoring implementation of the ICCPR, ICESCR, CRC and CAT
have each expressed concern that those treaties have not been adequately
incorporated into Australia’s legal system. See further: UN Human Rights
Committee, Concluding Observations: Australia (2009), para 8; UN
Committee on Economic, Social and Cultural Rights, Concluding Observations:
Australia
(2009), para 11; UN Committee on the Rights of the Child, Concluding Observations: Australia (2005), paras 9 - 10; UN Committee
against Torture, Concluding Observations: Australia (2008), para 9.

[72] The Australian Constitution
provides safeguards for the following individual rights and freedoms:

  • the right to compensation on just terms in the event of a compulsory
    acquisition of property by the Commonwealth (section 51(xxxi));
  • the right to trial by jury for a federal indictable offence (section
    80);
  • the right to challenge the lawfulness of decisions of the Australian
    Government in the High Court (section 75(v));
  • a prohibition on making federal laws that establish a religion, impose a
    religious observance or prohibit the free exercise of any religion (section
    116); and
  • a prohibition on making federal laws that discriminate against a person
    because of the state in which they live (section
    117).

[73] The UN
Committee on the Elimination of Racial Discrimination has expressed this concern
on several occasions. See further: UN Committee on the Elimination of Racial
Discrimination: Concluding observations: Australia (2005), para 9; UN
Committee on the Elimination of Racial Discrimination: Concluding
observations: Australia
(2000), paras 6-10

[74] Australia has four federal
anti-discrimination laws, as identified in note 1 above. The particular grounds
of unlawful discrimination covered under federal anti-discrimination law are:
race, colour, descent or national or ethnic origin; sex; marital status;
pregnancy or potential pregnancy; family responsibilities; disability; people
with disabilities in possession of palliative or therapeutic devices or
auxiliary aids; people with disabilities accompanied by an interpreter, reader,
assistant or carer; a person with a disability accompanied by a guide dog or an
‘assistance animal’; and age. Also falling within the definition of
‘unlawful discrimination’ is: offensive behaviour based on racial
hatred; sexual harassment; harassment of people with disabilities; and
victimisation and several criminal offences relating to discrimination.

Federal human rights and anti-discrimination law provides for the Commission
to investigate and resolve complaints of discrimination and breaches of human
rights. Over the past five years the number of complaints the Commission has
received has increased by 81 percent.
Unlike equivalent legislation in
Australia’s states and territories, federal anti-discrimination laws do
not provide enforceable protection against discrimination on the basis of
attributes such as religion, political beliefs, sexual orientation/ preference,
sexuality/transgender, trade union activities, nationality, occupation, medical
record and criminal record.

In 2009, the UN Human Rights Committee stated that it was ‘concerned
that the rights to equality and non-discrimination are not comprehensively
protected in Australia in federal law’ and recommended that Australia
‘adopt Federal legislation, covering all grounds and areas of
discrimination to provide comprehensive protection for the rights to equality
and discrimination’: UN Human Rights Committee, Concluding Observations:
Australia (2009), para 12. Similar concerns have been raised by the UN Committee
on Economic, Social and Cultural Rights, which recommended in 2009 that
Australia ‘enact federal legislation to comprehensively protect the rights
to equality and non-discrimination on all the prohibited grounds’: UN
Committee on Economic, Social and Cultural Rights, Concluding Observations:
Australia (2009), para 14.

There are also gaps in the protections that are provided by the existing
federal anti-discrimination laws. For example, the Sex Discrimination Act falls
well short of achieving comprehensive protection in CEDAW. The protection
provided to men and women varies, and protection against discrimination on the
grounds of family responsibilities (being limited to direct discrimination that
results in dismissal from employment) is minimal when compared to other areas of
discrimination. Similarly, the Racial Discrimination Act does not provide
protection against discrimination and other unlawful conduct on the ground of
religion.

A number of practical obstacles further limit the effectiveness of current
federal anti-discrimination laws. For example, the various tests for direct
discrimination incorporate a requirement that an applicant establish less
favourable treatment compared with a hypothetical ‘comparator’. The
practical application of the comparator, however, has proved problematic due to
difficulties in constructing the same or similar circumstances for carrying out
the comparison. Practical difficulties also arise in relation to proving
indirect discrimination. Under the Disability Discrimination Act, for example,
applicants must establish that they have been required to comply with an
unreasonable requirement or condition with which they cannot comply, but with
which a substantially higher proportion of persons without their disability can
comply. This has raised difficulties and uncertainties where, for example, an
applicant can technically comply with the relevant requirement, but with
additional hardships not experienced by other persons without their
disability.

In addition, despite widely recognised difficulties in proving
discrimination, current federal laws generally require the applicant to carry
the onus of proof in relation to all elements of discrimination. This is despite
the reality that information relating to causation (such as the
respondent’s basis for treating the applicant in a particular way) is
typically within the control of the respondent, not the applicant.

Further, each of the laws establishes a proscriptive, negative-based
standard. Discriminatory conduct is prohibited, rather than non-discriminatory
or other positive conduct being required. Federal anti-discrimination laws lack
positive obligations to promote equality

[75] The Commission has not had a
full time Race Discrimination Commissioner since 1999. At present, the
Commission’s President also undertakes the statutory functions of the
Human Rights Commissioner, and the Disability Discrimination Commissioner
undertakes the statutory functions of the Race Discrimination Commissioner. For
further information on the long term funding issues that the Commission has
faced over the past decade see: Australian Human Rights Commission, Submission to the Joint Committee of Public Accounts and Audit Inquiry on the
Effects of the ongoing Efficiency Dividend on Smaller Public Sector Agencies
(2008). At http://humanrights.gov.au/legal/submissions/2008/20080729_efficiency_dividend.html (viewed 30 June 2010)

[76] The Hon Tanya Plibersek, MP.
Minister for the Status of Women and The Hon Robert McClelland MP,
Attorney-General, Australia comes in from the cold on Women's rights’
(Media Release 24 November 2008). At
www.tanyaplibersek.fahcsia.gov.au/mediareleases/2008/Pages/womens_right…
(viewed 30 June 2010)

[77] Australian Human Rights
Commission and Australian Government Department of Families, Housing, Community
Services and Indigenous Affairs, Women’s Human Rights: United Nations
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW)
. At http://humanrights.gov.au/sex_discrimination/publication/CEDAW/index.html (viewed 30 June 2010)