Human Rights and Equal Opportunity

Submission of the

HUMAN RIGHTS AND EQUAL OPPORTUNITY

COMMISSION (HREOC)

to the

SENATE LEGAL AND CONSTITUTIONAL AFFAIRS COMMITTEE

on the

INQUIRY INTO THE EFFECTIVENESS OF THE SEX DISCRIMINATION ACT 1984(Cth) IN ELIMINATING DISCRIMINATION AND PROMOTING GENDER EQUALITY

1 September 2008

Human Rights and Equal Opportunity Commission

Level 8, 133 Castlereagh St

GPO Box 5218

Sydney NSW 2001

Ph. (02) 9284 9600

Table of Contents

1. Introduction

2. Executive summary

Stage one

Stage two

3. Table of Recommendations and Options for Reform

4. Gender equality in Australia: the state of the nation

Economic independence for women

Work and family balance across the life cycle

Freedom from discrimination, harassment and violence

Overall findings of the Listening Tour

National Plan of Action towards Gender Equality

Improving laws to address sex discrimination and promote gender equality: a national priority

5. The SDA and how it works: an overview

6. A two-staged process of reform

7. Objects and interpretation

Objects of the SDA

Interpretation of the SDA

Reservations to CEDAW

8. Definitions of discrimination

Direct discrimination

Indirect discrimination

Positive duty to eliminate discrimination and promote gender equality

Additional issues regarding the definition of discrimination

Equality before the law

9. Grounds of discrimination

Breastfeeding

Marital status

Sexuality, Sex Identity and Gender Identity

10. Family responsibilities

HREOC’s It’s About Time (2007) findings

Extending protection from discrimination under the SDA

Positive duty to reasonably accommodate family and carer responsibilities

11. Coverage of the SDA

A free-standing prohibition

States and State Instrumentalities

Men

Volunteers and unpaid workers

Independent contractors

Areas of public life in which discrimination is unlawful

Partnerships

Statutory appointees, judges, members of parliament

Other potentially excluded categories of workers

Discrimination in other areas of public life

Administration of Commonwealth laws and programs

Specific issues re coverage of sexual harassment provisions

Ancillary / accessory liability

12. Sexual Harassment

Importance of eliminating sexual harassment

Definition of sexual harassment

Extend the coverage of protection

Positive duty to prevent sexual harassment

13. Victimisation

Concerns over the victimisation provisions

14. Exemptions

The permanent and temporary exemptions and ‘special measures’ under the SDA

Permanent Exemptions which allow differential treatment consistent with substantive gender equality

Permanent exemptions that may be contrary to substantive gender equality but are sought to be justified by competing public policy consideration/s

Religious exemptions (s 37 and 38)

Voluntary Bodies (s 39)

Sport (s 42)

13. Complaint Handling

Introduction

Overview of the Complaint Process

Complaint Handling Statistics

The efficiency and effectiveness of the complaint handling service

Standing to bring complaints

14. Powers and Capacity of HREOC and the Sex Discrimination Commissioner

Existing functions and powers of HREOC and the Commissioner

Existing Capacity of HREOC and the Commissioner

Strengthening the functions, powers and capacity to address systemic discrimination and promote gender equality

Policy Development, Education, Research, Submissions and Public Awareness

Initiating Inquiries

Self-Initiated investigations

Certification of Special Measures

Amicus curiae and intervention functions

Independent Monitoring and Reporting of National Gender Equality Benchmarks and Indicators

Standards, Codes of Practice and Guidelines

Positive Duties and Action Plans

Procurement Standards

15. Impact on the economy, productivity and employment

16. Harmonisation of discrimination and equality laws

17. Merits of an Equality Act for Australia

Annexures

Annexure A: Background to the SDA and subsequent amendments

Annexure B: Comparison of the SDA with the RDA, DDA, ADA and HREOC Act

Annexure C: Comparisons with the United Kingdom, New Zealand and Canada

Annexure D: Australian State and Territory Religious Exemptions for Educational Institutions

Annexure E: A summary of the submissions made in Half Way to Equal (1992)

Annexure F: A summary of the submissions made Review of Exemptions (1992)

Annexure G: Additional Information on the Background on Complaint Handling Function

Annexure H: Table of Major Non-Complaint Work by HREOCunder the SDA

1.Introduction

1.The Human Rights and Equal Opportunity Commission (‘HREOC’) makes this submission to the Senate Legal and Constitutional Affairs Committeefor its Inquiry into the effectiveness of the Commonwealth Sex Discrimination Act 1984(Cth) (‘SDA’) in eliminating discrimination and promoting gender equality (‘the Inquiry’).

2.HREOC is Australia’s national human rights institution (‘NHRI’)[1] and is responsible for administration of the SDA.

3.This Inquiry is the first occasion upon which HREOC has developed specific recommendations for reform to the SDA as an entire piece of legislation since 1994.

4.HREOC has undertaken recent policy work about ways in which national laws could be improved to increase legal protection from discrimination on the grounds of pregnancy and family responsibilities, relevant to some of the Terms of Reference of this Inquiry. In particular, HREOC conducted its National Pregnancy and Work Inquiry, which led to publication of Pregnant and Productive: It’s a right not a privilege to work while pregnant (‘Pregnant and Productive (1999)’).[2]HREOC also conducted its Women, Men, Work and Family Project, leading to publication of It’s About Time: Women, Men, Work and Family (2007) (‘It’s About Time (2007)’).[3]

5.The SDA has also been subject to two previous national inquiries:

• House of Representatives Standing Committee on Legal and Constitutional Affairs. ‘Inquiry into Equal Opportunity and Equal Status for Women in Australia’ (1992). Findings from this inquiry are published in Halfway to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (1992)(‘Halfway to Equal (1992)’)[4] ; and
• Australian Law Reform Commission, Inquiry into Equality before the Law Justice for Women (1994). Findings from this inquiry are published in Equality Before the Law: Justice for Women (1994) (‘Equality Before the Law (1994)’).[5]

6.Each report made many recommendations about how to improve the SDA, only some of which have been implemented.

7.In Victoria, the Equal Opportunity Act 1995 (Vic) has been the subject of a recent review. The Victorian review raises many similar issues to the present Inquiry. The findings of the Victorian review were released on 30 June 2008 in An Equality Act for a Fairer Victoria: Equal Opportunity Review Final Report (2008).

8.HREOC draws on its recent policy work, recommendations from past national inquiries, the Victorian review process, external academic and civil society analysis, relevant jurisprudence and HREOC’s direct experience of the operation of the SDA for this Submission.

9.However, in light of the limited time available to prepare this submission, HREOC has not had the opportunity to undertake external consultations regarding its proposals for reform. HREOC would welcome the opportunity to make supplementary submissions to the Committee during the course of this Inquiry, as required.

10.HREOC is committed to working with the Australian Government and all interested parties to achieve a high quality outcome from this Inquiry.

2.Executive summary

11.HREOC welcomes this Inquiry as a unique opportunity toassess the effectiveness ofthe SDAin 2008 and to make proposals for reform that will ensure it exists asa first class national gender equality law.

12.There has been significant progress inreducing direct sex discrimination since 1984, when the SDA was passed by the Australian Parliament. However, the application of the SDA over a quarter of a century has highlighted some serious limitations with its current form and content. It is clear that our progress on achieving substantive gender equality in Australia has stalled, and the SDA is currently limited in its ability to proactively address this problem. It is also widely acknowledged that the SDAhas never fully implementedour international legal obligations, particularly under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’).[6]

13.HREOC believes the SDA needs to be amended to:

• Addressthe problems with existing provisions which have emerged in the quarter of a century since its adoption;
• Enhance its ability to actively progress substantive gender equality and promote systemic reform; and
• Fulfil our international legal obligations.

14.HREOC recommends a two-staged reform process to achieve this result.

Stage one

15.In Stage One, HREOC urges the Committee to adopt as soon as possiblea range of ‘Recommendations’ to strengthen the SDAand improve associated institutional arrangements.

16.In summary, in Stage One, HREOC recommends that the SDA should be amended now to:

Objects and Interpretation /

• Improve the objects and interpretation of the Act to comply with international obligations

Definition of discrimination /

• Remove the comparator element in direct discrimination
• Reform indirect discrimination in accordance with human rights principles

Grounds of discrimination /

• Specify breastfeeding as a separate protected ground
• Remove discriminatory effects of the current definition of ‘marital status’by renaming as ‘couple status’ and expanding the definition of ‘de facto’

Family Responsibilities /

• Increase protection from discrimination on the grounds of family and carer responsibilities and include a positive duty

Coverage /

• Provide equal coverage for women and men
• Expand coverage regarding state and territory governments, instrumentalities, and laws and programs, as well as volunteers, independent contractors, partnerships and other business enterprises, and students

Sexual harassment /

• Strengthen sexual harassment laws, both in terms of what constitutes harassment and who is protected and liable

Exemptions /

• Place a sunset clause of three (3) years on all permanent exemptions and exceptions(and undertake an inquiry into removing or refining the exemptions and exceptions strictly in accordance with human rights principles)

Complaint handling /

• Extend the time limit for commencing actions in the Federal Court or Federal Magistrates Court.
• Enable public interest organisations to commence actions for breaches under the SDA

Powers and capacity of HREOC and the Commissioner /

• Increase the statutory functions of HREOC and the Sex Discrimination Commissioner(subject to being appropriately funded) in relation to:
• broad inquiries into gender equality;
• initiating complaints for breaches of the SDA;
• certifying special measures;
• intervening and appearing as amicus curiae in court proceedings; and
• independent monitoring and reporting to the Australian Parliament on progress to achieve gender equality.

17.In addition to the above amendments, HREOC also recommends the following in relation to funding:

• Increase funding for HREOC to handle complaints, and to perform existing non-complaint handling functions;
• Increased availability of legal aid and specialist free and low cost legal assistanceto help people take action for breaches of the SDA, including working women’s centres, community legal centres and legal aid
• Assess new funding that would be needed to undertake new functions for HREOC and the Commissioner

18.Full details of all Recommendations are set out in the Table of Recommendations and Options for Reform, below.

Stage two

19.HREOC also sets out in this submission a range of ‘Options for Reform’ which it proposes for a second stage of reform of the SDA, to be completed within three (3) years.

20.This Inquiry represents asignificant law reform opportunity. It raises fundamental issues about the adequacy of the way in which the human right to gender equality – and equalityingeneral – should be protected under Australian law. Some changes to the SDA could have implications for other discrimination and equality laws in Australia, including the Age Discrimination Act 2004 (Cth) (‘ADA’), the Disability Discrimination Act 1992(Cth) (‘DDA’) and the Race Discrimination Act 1975 (Cth) (‘RDA’). There is also a need to consider other areas in need of equality protection, including sexualityand ‘sex and gender identity’.[7]

21.Some changes to the SDA could affect significant constituencies, including religious bodies, sporting bodies, and voluntary bodies. Proposed reforms mayraise important public debates about our national culture of equality and how we view the role of men and women in modern Australian life.

22.For these reasons,HREOC submits that Options for Reform discussed in this Submission may require further consultation with all interested parties, in order to reach firm recommendations.This is outside thetime available forthis Inquiry.

23.Accordingly, HREOC recommends that the Committee support a second stage of reform to the SDA, arising out of this Inquiry, to be completed within three (3) years. The form of Stage Two would be either:

• A national inquiry into the merits of a comprehensiveEquality Act for Australia; or, alternatively,
• A reference to the Australian Law Reform Commission (‘ALRC’) or other suitable body to consider adopting a human-rights based frameworkforthe SDA, including:
• A general prohibition on gender-based discrimination;
• A general right to gender equality before the law;
• A general positive duty to eliminate gender-based discrimination, including sexual harassment, and promote gender equality;
• Removal of all permanent exemptions under the SDA in their current form or limit them on strictly human rights grounds (linked to the sunset clause introduced in Stage One);
• A general limitations clause, whichpermits differential treatment strictly in accordance with human rights principles; and
• Power to adopt legally-binding standards and audit gender equality action plans.

24.HREOC would welcome the Committee’s support for a second stage inquiry into the merits of a comprehensiveEquality Act. An inquiry into an Equality Actwould be an appropriate vehicle to consider harmonising and improvingexisting federal anti-discrimination laws. It would also be an opportunity to consider extending protection from discrimination on other grounds, such as sexuality, and ‘sex and gender identity’.

25.An inquiry into an Equality Act could also take place as a stage of reform arising out of the forthcoming Australia-wide consultation to determine how best to recognise and protect human rights and responsibilities. HREOC expresses support for the national consultation into human rights.

26.If an inquiry into an Equality Act does not proceed, HREOC supports a second stage reference to the ALRC or other suitable body to completethe necessary reforms to the SDA.

27.A second stage of inquiry is essential to complete the process of converting the SDA into a first class national gender equality law.

28.Full details of all Options for Reform for consideration in stage two are set out in the Table of Recommendations and Options for Reform, below.

1

3.Table of Recommendations and Options for Reform

Issue

/

Recommendations (Stage One) or Options for Reform (Stage Two)

/

Terms of Reference

Two Stage Reform Process

(Page 45) / Recommendation 1: A Two-Stage Inquiry Process
(1) Support a two-stage inquiry process for the SDA, with some amendments made now to the existing law (Recommendations), and the rest completed within three (3) years (Options for Reform)
(2) Complete reforms as part of an inquiry into an Equality Act for Australia
(3) Alternatively, refer stage two of the SDA inquiry to the ALRC or other suitable body /

M

Objects and interpretation

(Page 48) / Recommendation 2: Objects of the SDA (Stage One)
Amend the objects of the SDA to remove ‘so far as is possible’ and fully reflect the obligations of CEDAW and other international legal obligations under the ICCPR, ICESCR and ILO Conventions to eliminate discrimination and promote substantive gender equality. /

A, B

(Page 49)

/ Recommendation 3: Interpretation of the SDA (Stage One)
Insert in the SDA the express requirement that it be interpreted in accordance with Australia’s international legal obligations, including relevant provisions of CEDAW, ICCPR, ICESCR and ILO Conventions /

A, B

CEDAW

(Page 50) / Recommendation 4: Removal of Paid Maternity Leave Reservation under CEDAW (Stage One)
The Australian Government should remove its reservation under art 11(2)(b) of CEDAW about paid maternity leave /

B

Definition of discrimination

(Page 54) / Recommendation 5: Direct Discrimination (Characteristics extension) (Stage One)
Amend the wording of the characteristics extension in the definitions of direct discrimination to include characteristics that are actually imputed by the alleged discriminator, even if not generally imputed by others /

A

Definition of discrimination

(Page 62) / Recommendation 6: Removal of comparator element (Stage One)
Amend the definition of direct discrimination to remove the comparator element, along the lines of the equivalent definition in the ACT /

A

Definition of discrimination

(Page 65) / Recommendation 7: Clarifying causation (Stage One)
In making any changes to the definition of direct discrimination, parliament should make clear its intention, either via legislation or even extrinsic materials such as explanatory memoranda or second reading speech to any amending Bill, that the SDA does not require an applicant to prove that the relevant ground of discrimination was the true basis or real reason for the impugned conduct and confirm the operation of s 8 of the SDA /

A

Definition of discrimination

(Page 71) / Recommendation 8: Shifting the onus (Stage One)
Amend the SDA to make establishing causation more achievable, such as by:
(a) directing courts to draw an adverse inference where a respondent fails to establish a non-discriminatory basis for its conduct;
(b) shifting the onus to the respondent to establish a non-discriminatory basis for its conduct in circumstances where its conduct was plausibly based (in whole or in part) on a protected attribute or characteristic, such as along the lines of s 63A of the Sex Discrimination Act 1975 (UK); or
(c) reversing the onus of proof in relation to establishing causation, along the lines of s 664 of the Workplace Relations Act 1996 (Cth) /

A

Definition of discrimination

(Page 76) / Recommendation 9: Requirement, condition or practice element (Stage One)
Amend the SDA to remedy the narrow approach taken in certain cases to the requirement, condition or practice element, such as by providing that an applicant must simply establish that the relevant circumstances (including any terms, conditions or practices imposed by the respondent) disadvantaged women (or other relevant groups). The onus would then shift to the respondent to establish that the relevant circumstances were reasonable /

A

Definition of discrimination

(Page 79) / Recommendation 10: Reasonableness standard (Stage One)
Review the standard of reasonableness as part of the definition of indirect discrimination to become more closely aligned with human rights based principles of legitimacy and proportionality /

A