By Susan Booth.
THE SEX DISCRIMINATION ACT 1984 -20 YEARS ON
(This statement contains comments from the presentation on The Sex Discrimination Act 1984 – 20 years on and is presented here to contemplate thought and discussion. This statement does not reflect the position of the Human Rights and Equal Opportunity Commission)
• The Sex Discrimination Act originally also contained affirmative action provisions – which were split when the Bill was passed in 1986.
• Affirmative action provisions have limited effect and are in separate legislation (Equal Opportunity for Women in the Workplace Act 1986 (EOWA))
• Affirmative action provisions are limited as the EOWA legislation only applies to companies and businesses, unions, universities, etc, with greater than 100 employees and has no complaint based mechanism.
• The current sex discrimination legislation is limited because it focuses only on an individual complaint mechanism and contains significant exemptions. Its emphasis is on private resolution of complaints.
• This approach suggests that discrimination of women is an isolated incident rather than a common experience of many women.
• Formal equality between men and women will often result in discrimination against women.
• The current individual model is least effective for those most discriminated against – Indigenous women, women from culturally and linguistically diverse communities, women with disabilities and older women.
1. Improvement of access to current sex discrimination provisions –
• Remove current exemptions, all of which breach CEDAW including the instrumentality of the State; Education bodies established for religious purposes (which allow the dismissal of female teachers in defacto relationships and lesbian relationships); Voluntary bodies; Sport.
• Publication of private details of conciliated outcomes. It is a paradox in both the Sex Discrimination Act and state legislation that it requires education of the community about anti-discrimination and human rights and yet the main mode of the legislation is a private conciliated process with no educational value to the broader community.
• assist parties within the complaint process to progress their matter.
2. Addressing systemic discrimination.
In addition to individualised complaint processes the Sex Discrimination Act 1984 needs to be amended to address systemic discrimination.
• The Sex Discrimination Commissioner should be given power to investigate systemic discrimination.
• Systemic discrimination is discrimination based on assumptions and stereotypes about the appropriate role of women in society which has undervalued women’s work and perpetuates assumptions about their participation in the workforce. Where there is discrimination both on the basis of gender and for example, race, individual complaint mechanisms cannot address any causal link between ethnicity and sex which results in general disadvantage by the narrowing of opportunities for culturally and linguistically diverse women in the workforce.
• The Canadian Example:
The Employment Equity Act requires positive steps to be taken by employers to identify barriers and implement measures to increase the employment of under-represented groups such as women, members of visible minorities, Aboriginal people and people with disabilities. The Canadian Federal Commissioner is responsible for auditing employers to see if they have complied with the Act. It does not rely on an individual complaint to begin this audit process. Where there is indication that there has been lack of compliance, the Federal Commission can itself take legal action.
Striking results in improvement of representation of women in the Canadian workforce has been achieved by this process.
3. Expanding the role of the Sex Discrimination Commissioner:
The Sex Discrimination Commissioner should be required to provide a mandatory annual report to Parliament in the same manner as the Social Justice Commissioner is required to report on the education, health and economic wellbeing of Indigenous Australians. The Sex Discrimination Commissioner should be required to report on the same matters in relation to Australian women. It is likely that, for example, in this year matters such as trafficking women and women refugees would be important issues that would be reported on for all Australian women to see.
The removal of these exemptions was first raised in the Australian Law Reform Commission’s Report Strengthening the Sex Discrimination Act 1984 in 1992 by the Sex Discrimination Commissioner. (This Report is a useful resource and considers broad issues of reform of the Sex Discrimination Act 1984.
Anecdotal evidence of similar complaints brought to the Anti-Discrimination Commission Queensland is that complainants often settle matters because of a lack of support to progress matters to public hearing.
There are various definitions of systemic discrimination. See Smyth & Falk – Addressing Systemic Discrimination in the Public Sector: Report of Study Tour – March 2003. Most definitions include “allegations of a pattern of violations or a systemic failure to protect the rights of a group of individuals” (Smyth & Falk @ 9).