Guidelines: Special measures under the Sex Discrimination Act 1984 (Cth) (2018)

Message from Kate Jenkins, Sex Discrimination Commissioner

Over the last century, Australia has made significant progress towards achieving gender equality and creating a more inclusive society. We have seen women’s increased participation in education and work, and increased prominence of women in leadership roles in many spheres of life. We have seen ‘equal pay for work of equal value’ enshrined in law and employers required to report on the gender pay gap.

We have enacted domestic laws honouring Australia’s international commitment to work towards eliminating discrimination on the basis of sex, sexual orientation, gender identity and intersex status. More recently, Australia has legislated for marriage equality, to ensure that adult couples can marry regardless of their sex, sexual orientation, gender identity or intersex status. The Australian Human Rights Commission (the Commission) welcomes these positive steps. However, recognising that some deeply embedded barriers to equality in certain areas of public life remain pervasive, a ‘positive discrimination’ mechanism known as ‘special measures’ was included in the Sex Discrimination Act 1984 (Cth) (SDA) to enable individuals and organisations to take steps to correct this inequality.

The SDA recognises that some groups, including women and lesbian, gay, bisexual, transgender and intersex (LGBTI) persons, have suffered historical disadvantage and do not enjoy their human rights equally with others. The gender pay gap, the under-employment of women, barriers to leadership roles, reduced retirement savings and high rates of sexual harassment at work are examples of this continuing inequality. LGBTI persons continue to experience discrimination at work on the basis of sexual orientation, gender identity and intersex status, and experience higher than average rates of violence, harassment and bullying.

Increasingly, organisations are seeking to address this inequality by taking proactive measures.

The SDA permits individuals and organisations to take special measures for the purpose of achieving substantive equality for disadvantaged groups.

These guidelines are intended to assist organisations and individuals to understand and use the special measures provisions in the SDA. They are an important resource for organisations and individuals seeking to take positive steps to achieve gender equality and a more inclusive Australia.

Kate Jenkins

Sex Discrimination Commissioner