Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Sex discrimination legislation in Australia



Download PDFDownload PDF

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

CURRENT ISSUES BRIEF NO. 9 1983

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

Constance Larmour Education and Welfare Group LEGISLATIVE RESEARCH SERVICE

DEPARTMENT OF THE PARLIAMENTARY LIBRARY

The views expressed in this paper do not necessarily reflect those of the Legislative Research Service, or the Department of the Parliamentary Library

c Commonwealth of Australia 1983

ISSN 0726-3244

Printed by C. J. THOMPSON, Commonwealth Government Printer, Canberra

4

7

8

13

13

15

15

16

17

17

17

17

18

19

19

19

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

CONTENTS

A. BACKGROUND: NATIONAL COMMITTEE ON DISCRIMINATION IN EMPLOYMENT AND OCCUPATION

B. SOUTH AUSTRALIA: SEX DISCRIMINATION ACT, 1975

C. NEW SOUTH WALES: ANTI-DISCRIMINATION ACT, 1977, ANTI-DISCRIMINATION (AMENDMENT) ACT, 1980, AND ANTI-DISCRIMINATION (AMENDMENT) ACT, 1981

D. VICTORIA: EQUAL OPPORTUNITY ACT 1977

E. COMMONWEALTH: SEX DISCRIMINATION BILL 1983

F. EFFECTIVENESS OF THE LEGISLATION

Employment

Education

Religious bodies, charities, clubs, sport

Superannuation and insurance

Accommodation

Advertising

Temporary exemptions

Pregnancy

Affirmative action

Combat duty

Requirement of written complaints

Conclusion

PAGE

1

3

- 1 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

A. BACKGROUND: NATIONAL COMMITTEE ON DISCRIMINATION IN EMPLOYMENT AND OCCUPATION

Following the ratification by the Australian Government in June 1973 of the International Labour Organisation Convention No. 111 - the Convention on Discrimination (Employment and Occupation) 1958 - a

National Committee on Discrimination in Employment and Occupation and six State Committees were established. A Committee for the Northern Territory was established later in 1979. The Convention binds the Australian Government to seek to eliminate discrimination on seven

grounds - race, colour, sex, religion, political opinion, national extraction and social origin - in the areas of employment and occupation. Employers' and workers' organisations, vocational guidance and training, placement services, administrative instructions or practices, employment advertisements and superannuation are included in the areas of concern.

The Committees investigate both complaints received an grounds specified in the Convention and complaints on grounds not specified, such as age and disability. In each year since the establishment of the Committees more complaints of discrimination on the ground of sex have been received than on any other ground. Complaints on this ground have come predominantly from females. In

1980-81, 58.3 per cent of complaints on grounds specified in the Convention were complaints on the ground of sex.

Increasing numbers of complaints of sexual harassment led the National Committee to issue a policy statement in March 1981, for the guidance of State committees. This was:

Discrimination in employment could occur when:

a person is denied equality of opportunity or treatment because that person has refused to grant sexual favours or to accept conduct of a sexual nature, such conduct being conduct that a reasonable person would regard as

offensive; or

a person is denied protection against conduct of a sexual nature, such conduct being conduct that a reasonable person would regard as offensive.

Discrimination may involve a complainant who:

is not appointed to a position; or

is denied promotion or other benefit to which they are entitled; or

-2-

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

is dismissed; or

is otherwise treated in such a way as to deny equality of opportunity or treatment.

After the enactment of the South Australian Sex Discrimination Act in 1975, the 1974-75 annual report of the National Committee commented on the likelihood of other State anti-discrimination legislation and on the potential overlap, stating that:

The National Committee believes that there should be only one set of machinery to deal with discrimination in employment and occupation, covering both Commonwealth or State legislation or other arrangements, and that the existing Committees on Discrimination in Employment and Occupation with their tripartite composition and industrial expertise are the appropriate

investigative and conciliative machinery in this respect.[1]

However, since the enactment of anti-discrimination legislation in three States - South Australia, New South Wales and Victoria - liaison and co-operation between the State Committees and the Boards established by the State legislation has developed, and areas of overlap have been minimised. The State Committees provide an avenue for the investigation of complaints in those States which do not have sex discrimination legislation, and for Commonwealth employees in all States. The Committees also provide recourse for employees of small businesses (with fewer than five employees) which are exempted from the provisions of State legislation.

The Committees work through consensus and conciliation. Each State Committee has representatives of the Commonwealth and State Governments, employers organisations and trade unions. As the Committees have no legislative basis, the only sanction available to the National Committee, where it is unable to resolve a complaint, is to submit a report on the matter to the Minister for Employment and

Industrial Relations. The Boards set up by State legislation - the South Australian Sex 'Discrimination Board, the NSW Equal Opportunity Tribunal and the Victorian Equal Opportunity Board - are not representative bodies composed of union and employer members. The Boards aim initially to work through conciliation but they also have legal powers to make determinations and to impose penalties.

1. National Committee on Discrimination in Employment and Occupation, Second Annual Report 1974-75, Equality in Employment pp. 19-20.

- 3 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

B. SOUTH AUSTRALIA: SEX DISCRIMINATION ACT, 1975

In 1973 a •Sex Discrimination Bill was introduced into the South Australian Parliament as a Private Member's Bill by Dr David Tonkin. A Select Committee report on the proposed Bill led to the reintroduction in June 1975 of sex discrimination legislation. The Bill was regarded as a positive step towards achieving the aims of

International Women's Year (1975). Its purpose was 'to render unlawful certain kinds of discrimination on the grounds of sex or marital status; to provide effective remedies against such discrimination and promote equality of opportunity between men and women generally; and to deal with other related matters'. The legislation also had an educative purpose. The Government hoped that

it would create a climate in which public opinion would be 'mobilised against this form of discrimination'.[2]

The 1975 Bill extended the terms of the original Bill in provision for machinery for conciliation or the imposition of penalties. Many of the provisions were modelled on the United Kingdom's Sex Discrimination Act of 1975.

The South Australian Sex Discrimination Act was assented to on 4 December 1975 and took full effect from 12 August 1976. The Act prohibits both direct and indirect discrimination on the ground of sex or marital status. Indirect discrimination is discrimination based on

a characteristic or presumed characteristic appertaining generally to persons of a group (or marital status). Discrimination is defined as less favourable treatment than in identical or similar circumstances to the treatment which would be accorded to a person of the opposite sex or different marital status.

The Act makes discrimination on the basis of sex or marital status unlawful in employment, education, the provision of goods and services (including banking, credit and insurance), access to public places, accommodation and advertising. Discrimination in employment includes work done by commission agents and contract workers, in relation to a partnership, and in the membership and rules of a trade union or employers organisation. Similarly an employment agency or a qualifying body (i.e. an authority or body • empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession or trade) may not discriminate on these grounds.

2. Hon. D.A. Dunstan (Premier and Treasurer) Second Reading Speech Sex Discrimination Bill, 1975, Hansard, House of Assembly (S.A.) p. 3296.

-4-

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

The Act established a Commissioner for Equal Opportunity and a Sex Discrimination Board. The Commissioner is appointed subject to the Public Service Act, 1967 (SA). Duties of the Commissioner are to investigate and conciliate complaints of unlawful discrimination, to

initiate investigations and review all South Australian legislation to identify any discrimination. The Commissioner must present an annual report and in it make any recommendations for the elimination or modification of discriminatory legislative provisions.

The Sex Discrimination Board is chaired by a judge or lawyer of at least seven years standing, and has two other members. These appointments are not subject to the Public Service Act 1967, but the appointment of Registrar to the Board is a public service position. The main functions of the Board are to hear and determine complaints,

initiate inquiries and to grant exemptions from the Act. After hearing evidence the Board may dismiss the complaint or, if satisfied that there has been contravention of a provision of the Act, it may make an order requiring that the contravention cease and that future contravention be eliminated. It may order the payment of compensation to the complainant. Penalties not exceeding $2000 may be imposed for

non-compliance with an order of the Board.

C. NEW SOUTH WALES: ANTI-DISCRIMINATION ACT, 1977 9 ANTI- DISCRIMINATION (-AMENDMENT) ACT. 1980. AND ANTI-DISCRIMINATION

In 1976 an Anti-Discrimination Bill listing nine grounds of unlawful discrimination was introduced by the NSW Government. These grounds were race, sex, marital status, age, religious or political conviction, physical handicap or condition, mental disability, and homosexuality. The Bill was substantially amended by the Legislative Council which deleted all grounds except those of race, sex and marital status and made other amendments. The grounds deleted, and that of membership or non-membership of a trade union, were matters

set for research by the Anti-Discrimination Board, established under the Act.

The Anti-Discrimination Act was assented to on 28 April 1977 and took full effect from 1 June 1977. Its stated purpose is 'to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons'.

Discrimination on the ground of sex or marital status is defined as less favourable treatment than given, or would be given, in the same or similar circumstances to a person of the opposite sex or different marital status. As in the South Australian Act both direct

- 5 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

and indirect discrimination are unlawful on the ground of sex or marital status in certain areas.

The Act prohibits discrimination on the ground of sex or marital status in employment and in applying for employment. It also prohibits discrimination against commission agents and contract workers, discrimination by trade unions, qualifying bodies and employment agencies, discrimination in according access to places where liquor is sold, and discrimination in the provision of goods, services and accommodation. Discrimination on the ground of marital

status is not proscribed in the matter of access to places where liquor is sold or in the provision of goods.

The Act was amended in 1980 to extend its provisions to public employment. The Anti-Discrimination (Amendment) Act, 1980 was assented to on 28 April 1980. Its purpose was to eliminate discrimination in public employment on the grounds of race, sex and marital status, and to promote equal opportunity for women and members of racial minorities in State public employment (including the teaching service, police force and State authorities).

In 1981 the Act was again amended to make discrimination on the ground of physical impairment also unlawful in certain circumstances, and for certain other purposes. The Anti-Discrimination (Amendment) Act, 1981 extends the provisions of the Act to public education (except for single sex schools), discrimination by registered clubs, and discrimination in partnerships.

The 1977 Act established a Counsellor for Equal Opportunity and an Anti-Discrimination Board. The 1981 amendments established an Equal Opportunity Tribunal.

The Counsellor for Equal Opportunity is appointed for a period of up to seven years, and is eligible for reappointment. This is an independent, statutory appointment, not subject to the Public Service Act 1902. Duties of the Counsellor are to investigate complaints of unlawful discrimination and to endeavour to resolve these by conciliation. If the Counsellor is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in

substance he may decline to entertain the complaint but must advise the complainant of the reason for this and the complainant's rights. Where the Counsellor has failed to resolve a complaint he may refer it to the Tribunal.

- 6-

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

The Anti-Discrimination (Amendment) Act, 1981 established an Equal Opportunity Tribunal to be composed of from five to seven part-time members, one of whom is to be a judge or person qualified for appointment as a judge. The Tribunal's main function is to investigate complaints referred to it by the Counsellor or the Minister. The Tribunal may hold a single inquiry •into several complaints arising out of the same or substantially the same circumstances, and might join a person as a party to an inquiry. It might dismiss complaints if judged to be frivolous, vexatious, misconceived or lacking in substance. If the Tribunal finds a complaint substantiated it may order the payment of damages not exceeding $20,000 to the complainant, may order the respondent to cease the unlawful conduct or order the respondent to make redress for

loss or damage suffered by the complainant. The Act provides for the right of appeal against a decision or order of the Tribunal.

The Anti-Discrimination Board consists of a President and two other members who are appointed for a period not exceeding three years and are eligible for reappointment. General functions of the Board are to:

(a) carry out investigations, research and inquiries relating to discrimination, in particular on the grounds of age, religious or political conviction, mental disability, homosexuality and membership of a trade union;

(b) acquire and disseminate knowledge on all matters relating to the elimination of discrimination and the achievement of equal rights;

(c) arrange and co-ordinate consultations, discussions, seminars and conferences;

(d) review, from time to time, the laws of the State;

(e) consult with governmental, business, industrial and community groups and organisations in order to ascertain means of improving services and conditions affecting minority groups and other groups which are the subject

of discrimination and inequality;

(f) hold public inquiries; and

(g) develop human rights programmes and policies.

Some affirmative action is provided for in the Anti-Discrimination (Amendment) Act, 1980. Public service departments and authorities are required to prepare and implement equal opportunity management plans to achieve the objects of equal opportunity. The

- 7-

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

position of Director of Equal Opportunity in Public Employment was established. Functions of the Director include advising and assisting authorities in relation to their management plans, evaluating the effectiveness of these plans and reporting and making recommendations to the Minister on the operation of the plans and on the objective of equal opportunity.

D. VICTORIA: EQUAL OPPORTUNITY ACT 1977

In 1975, International Women's Year, the Victorian Government established a Committee on the Status of Women which reported to the Premier in August 1976. The Committee's recommendations included the introduction of legislation to combat sex discrimination. The Equal Opportunity Act was passed by Parliament on 24 May 1977 and became

fully operative by 3 April 1978. Its stated purpose was 'to render unlawful certain kinds of discrimination on the ground of sex or marital status, to promote equality of opportunity between men and women, to make consequential amendments to certain Acts and for other purposes'.

Discrimination on the ground of sex or marital status is defined again as less favourable treatment than that accorded to a person of the other sex or different marital status.

The Act covers such discrimination in employment and the offer of employment, discrimination against commission agents and contract workers, discrimination in partnerships and in professional and other organisations, discrimination by qualifying bodies, employment agencies and educational authorities, discrimination in the provision of goods, services, or accommodation.

The Act establishes a Commissioner for Equal Opportunity and an Equal Opportunity Board. The Commissioner is appointed subject to the Public Service Act 1974 (Vic). The Equal Opportunity Board consists of a chairman and two other members, appointed by the Governor in Council and not subject to the provisions of the Public Service Act 1974. The Registrar of the Board and other staff are, however, public servants.

The Commissioner's main function is to investigate complaints referred by the Registrar or matters referred by the Board, and attempt to resolve these by conciliation and negotiation. Where this attempt is unsuccessful, the Commissioner may refer the matter to the Board. If the Board is satisfied that a person has contravened a provision of the Act it may make an order requiring that he refrain from contravention of the Act or requiring redress. Failure to obey

- 8 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

an order is an offence and a penalty not exceeding $1000 may be imposed. Both the Commissioner and the Board may dismiss complaints considered to be frivolous, vexatious, misconceived or lacking in substance. Provision is made for appeal to the Supreme Court against an order of the Board.

Educational and other duties of the Board include the dissemination of information to promote equality of opportunity between men and women and the elimination of discrimination on the ground of sex or marital status, a review of legislation to identify discriminatory provisions, relevant research and reports to the Minister.

E. COMMONWEALTH: SEX DISCRIMINATION BILL 1983

On 26 November 1981 Senator Ryan introduced a Sex Discrimination Bill as a Private Member's Bill. The main objectives of the Bill were:

(1) to implement Australia's treaty obligations under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women;

(2) to make discrimination on the ground of sex or marital status unlawful in areas such as employment, education, the provision of goods and services, accommodation, land and clubs; and

(3) to promote affirmative action in employment for women.

Although this Bill was not proceeded with, a joint statement from the Acting Attorney-General, Mr Neil Brown, and the Minister for Home Affairs and the Environment, Mr Tom McVeigh, was issued on 12 October 1982 to announce the planned introduction of a Sex Discrimination (Commonwealth Employees) Bill. This Bill would extend protection against discrimination on the ground of sex or marital status to Commonwealth employees throughout Australia, and would complement existing State legislation. However, this Bill was not

introduced into Parliament before the change of government in March 1983.

Australia signed the United Nations Convention on the Elimination of All Forms of Discrimination Against Women on 17 July 1980. Consultations took place between the Commonwealth and the

- 9-

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

States before ratification by Australia on 28 July 1983.[3] Article 2(b) of the Convention provides that States parties should:

adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

On 2 June 1983 Senator Ryan introduced the Sex Discrimination Bill 1983 into the Senate, and this is expected to be debated in the Budget Session. The objectives of the Bill are:

(a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women;

(b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and

services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs;

(c) to eliminate, so far as is possible, sexual harassment in the workplace and in educational institutions; and

(d) to promote recognition and acceptance within the community of the principle of the equality of men and women.

Thus the Bill is similar in purpose and in many •of its provisions to the 1981 Bill. However, the grounds of unlawful discrimination now also include pregnancy. This is in accord with the U.N. Convention on the Elimination of All Forms of Discrimination Against Women, Article 11, paragraph 2, although the Convention goes further:

In order to prevent grounds of marriage effective right to appropriate measures:

discrimination or maternity work, States

against women on the and to ensure their Parties shall take

3. The intention to ratify was announced in the Governor-General's Speech on the Opening of Parliament, Hansard, Senate, 21 April 1983, p. 13, and in a Joint Statement by the Minister for Foreign Affairs, Mr Hayden, the Minister Assisting the Prime Minister on the Status of Women, Senator Ryan, and the Attorney-General, Senator Evans, 14 July 1983.

-10-

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.

In ratifying the Convention, Australia •has made a reservation on Article 11 (2)(b) concerning maternity leave.

The Bill has also included clauses which make sexual harassment unlawful in the areas of employment and education. Sexual harassment is defined as an unwelcome sexual advance, or an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature directed to a person, where that person has reason to believe that rejecting or refusing the advance or request or taking objection to the conduct would disadvantage that person in any way in connection with employment or work, or possible employment or work, or in connection with the person's studies or application for admission to

an educational institution as a student. Other forms of sexual harassment are not dealt with in this Bill, but the Government plans to give the matter consideration and seek the views of women's

organisations.[4]

The 1981 Bill included provision for affirmative action in public and private employment. This Part has been dropped from the 1983 Bill. Instead, options for further legislation to provide for affirmative action programs in employment are to be set out in a green paper, and public discussion and consultations are to precede the

introduction of further legislation.

It is intended that State anti-discrimination legislation should be preserved and should operate concurrently with Commonwealth legislation. This provision mirrors a similar amendment to the Commonwealth Racial Discrimination Act 1975, made after the decision

4. Second Reading Speech, Hansard, Senate, 2 June 1983, p. 1189.

-11-

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

of the High Court in Viskauskas v Niland which held that provisions of the NSW Anti-Discrimination Act dealing with racial discrimination were inconsistent with the Commonwealth Act and were therefore invalid.[5] Under the Sex Discrimination Bill 1983, if a person has taken action under such a State or Territory law, then that person is

not entitled to institute a proceeding on the same matter under the Commonwealth legislation. However, a person could be prosecuted or convicted under either the State or Commonwealth legislation, but not both for the same action or omission.

The Bill prohibits both direct and indirect discrimination on the ground of sex, marital status or pregnancy. Discrimination on the ground of sex or marital status is defined as having occurred:

(1) If the aggrieved person is treated less favourably by reason of that person's sex or marital status, or a characteristic appertaining to or generally imputed to persons of that sex or marital status.

(2) If the aggrieved person is required to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex or different marital status are able to comply, which is

not reasonable, having regard to the circumstances of the case, and with which the aggrieved person does not or is not able to comply.

Discrimination on the ground of pregnancy is defined as having occurred.

(1) If the aggrieved person is treated less favourably by reason of her pregnancy or a characteristic appertaining to or generally imputed to pregnant women, and where the less favourable treatment is not reasonable in the circumstances, or

(2) If the aggrieved person is required to comply with a requirement or condition with which a substantially higher proportion of persons who are not pregnant comply or are able to comply which is not reasonable having regard to the circumstances of the case, and with which the aggrieved person does not or is not able to comply.

However, a man cannot claim to have been discriminated against by reason only of not being granted the same rights or privileges accorded to a woman in connection with pregnancy or childbirth.

5. Unreported decision 19 May 1983.

- 12 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

The areas in which discrimination on the ground of sex, marital status or pregnancy would be unlawful under the Bill include employment, education, the provision of goods and services, the availability of facilities or accommodation, the disposal of land or the terms and conditions applying to the disposal, and advertising. The employment provisions apply also to applications for employment, commission agents, contract workers, partnerships, licensing or qualifying bodies, employment agencies, trade unions and registered organisations under the Conciliation and Arbitration Act. Commonwealth programs and Commonwealth public servants exercising powers under Commonwealth Acts are covered by the provisions.

The Bill establishes the position of a Sex Discrimination Commissioner, and sets additional functions for the Human Rights Commission. These functions include inquiring into and making determinations on matters referred by the Minister or Commissioner, granting exemptions, promoting understanding and acceptance of, and compliance with this Act, examining enactments or proposed enactments to ensure consistency with the Act, and reporting to and advising the Minister on matters relating to discrimination on the grounds of sex, marital status or pregnancy or discrimination involving sexual

harassment.

The Commissioner is required to inquire into alleged infringements on behalf of the Commission and must endeavour to effect a settlement by conciliation. The Commissioner may decide not to inquire into an act if satisfied the act is not unlawful, is of the opinion that the aggrieved person or persons does not or do not desire the inquiry to continue, if more than 12 months have elapsed since the act or if of the opinion that the complaint is frivolous, vexatious or lacking in substance. If the Commissioner decides not to inquire, or continue to inquire, into a complaint, the complainant is to be

informed in writing of that decision and the reasons for it, and of the complainant's right to serve notice in writing within 21 days requiring the Commissioner to refer the complaint to the Commission. The Commissioner may obtain information from such persons and make such inquiries as thought fit, may require the furnishing of relevant information and documents and may require attendance at a compulsory conference.

Inquiries may be referred to the Human Rights Commission by the Commissioner, the Minister or by complainants. The Commission may hold a single inquiry when the subject matter of two or more complaints is substantially the same, or may determine that a complaint should be dealt with as a representative complaint. The Commission has no legal power to enforce a determination. If a complaint is unresolved through conciliation, the Commission or complainant may institute proceedings in the Federal Court to give

- 13 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

effect to a determination of the Commission. Additionally, failure to provide information or actuarial of statistical data, failure to attend a conference as directed and obstruction of the Commission are offences under the Bill and penalties of $1000 for individuals or $5000 for organisations or groups may be incurred. Penalties of $2500 or imprisonment for three months for an individual, and $10,000 for a body corporate, are set for offences of false or misleading

information or victimisation.

The constitutional validity of the Sex Discrimination Bill rests on the corporations power, the banking power, the trade and commerce power, the territories power and the external affairs power. A substantial area of the Bill could be justified only under the external affairs power, following the wider view of the power by the High Court in Koowarta's case in 1982(6] and in the recent Tasmanian Dams case. These cases also relied on domestic implementation of Trife771.Th ronal treaty obligations.

F: EFFECTIVENESS OF THE LEGISLATION

The State Acts and the Commonwealth Sex Discrimination Bill provide for many exceptions to, and exemptions from, their provisions. Inevitably some of these exceptions reduce the overall effectiveness of the legislation in combating discrimination. Others can be

regarded as common-sense precautions against unreasonable expectations.

Employment

In the area of employment, the Sex Discrimination Bill 1983 provides a list of general exemptions. These apply if:

(a) the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of one sex;

(b) the duties of the position involve performing in a dramatic performance or other entertainment in a role that, for reasons of authenticity, aesthetics or tradition, is required to be performed by a person of a

particular sex;

6. (1982) 39 ALR 417.

- 14 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

(c) the duties of the position need to be performed by a person of a particular sex to preserve decency or

privacy because they involve the fitting of clothing for members of that sex;

(d) the duties of the position include the conduct of searches of the clothing and bodies of persons of one sex;

(e) the occupant of the position is required to enter a lavatory ordinarily used by members of one sex while the lavatory is in use by members of that sex;

(f) the occupant of the position is required to live on premises provided by the employer or principal of the occupant and -

(i) the premises are not sleeping accommodation for members of each sex;

equipped with separate and sanitary facilities and

(ii) it is not reasonable to expect the employer or principal to provide separate sleeping accommodation and sanitary facilities for members of each sex;

(g) the occupant of the position is required to enter areas ordinarily used only by persons of one sex while those persons are in a state of undress;

(h) the occupant of the position is required to keep persons of a particular sex in custody in a prison or other institution or in part of a prison or other institution; or

(j) the occupant of the position provides persons of one sex with personal services relating to their welfare or education, or similar personal services, and persons of that sex or a substantial number of them might

reasonably object to the services being provided by a person of the opposite sex.

These general exceptions in employment reflect the exemptions provided for in the SA Sex Discrimination Act 1975, the NSW Anti-Discrimination Act 1977 and the Victorian Equal Opportunity Act. Each of these Acts, and the Commonwealth Bill, also provide exemptions from the employment provisions for employment within a private household.

In the State Acts, exemptions also apply where the number of employees does not exceed five. Provisions of the Commonwealth Bill covering discrimination against applicants and employees do not apply to employees of a State instrumentality.

-15-

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

The Commonwealth Sex Discrimination Bill exempts from its provisions 'an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment'. In the State Acts, the terms and conditions of industrial awards and agreements are excepted from the provisions which make sex discrimination illegal. The South Australian and NSW Acts also

specifically exempt the payment of discriminatory wage and salary rates from their provisions. Female rates of pay are matters for decision by industrial tribunals such as the Australian Conciliation and Arbitration Commission, and the principle of equal pay was

accepted in Australia by 1975. In fact, however, average weekly full-time earnings •for Australian women are well below those of Australian men. (In 1981 average weekly full-time earnings for Australian women were 76.4 per cent of male earnings in 1981.17]

Education

In the area of education, the State Acts and the Commonwealth Bill all make provision . to allow single sex schools. The NSW Anti-Discrimination Act of 1977 contained no provision to make sex discrimination unlawful in the area of education. The Anti-

Discrimination (Amendment) Act 1981 extended the provisions to education, but excepted private education authorities.

Reliaious bodies t charities sport

Exemptions for religious bodies and charities are provided in the State Acts and Commonwealth legislation. The ordination or appointment of priests, ministers of religion or members of any religious order, and their training or education are matters which are exempt from provisions prohibiting discrimination on the ground of sex, marital status or pregnancy.

It is not unlawful under the NSW Act or the Commonwealth Bill for a voluntary body to discriminate against a person in the terms of the legislation in the matter of admission of members or the provision of benefits, facilities or services.

Some variation exists in the exemptions which apply to clubs. The South Australian Act does not make a provision concerning clubs, but makes discrimination illegal in the provision of goods and services to the public. Private clubs are therefore exempt from the provisions. The NSW Anti-Discrimination Act 1977 exempted registered

7. Second Reading Speech, Hansard, Senate, 2 June 1983, p. 1187.

-16-

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

clubs from the provisions of the Act, but these are covered by the 1981 amendments in terms similar to those of the Commonwealth Bill. The Victorian Act 'does not render unlawful exclusion on the ground of sex or marital status' from a social, recreational, community service or sporting club or from any part of the activities or premises where the club is for, or mainly for, persons of the other sex or marital status.

The Commonwealth's Sex Discrimination Bill makes it unlawful for a club, or a committee of management or representative of a club, to discriminate against a member or an applicant for membership of the club on the ground of a person's sex, marital status or pregnancy. However, it is not unlawful to discriminate against a person on the ground of sex if membership of that club is available only to persons of the opposite sex, or if it is not practicable for a benefit to be

used or enjoyed simultaneously or to the same extent by both men and women. In determining whether these exemptions apply, the matters to be taken into account include the purposes for which the club was established, its membership, the nature of benefits it provides, the opportunities for use and enjoyment of benefits by men and women, and other relevant circumstances.

The South Australian and Victorian Acts contain exemptions for sport. In South Australia it is not unlawful to exclude persons of one sex from participation in any competitive sporting activity in which the strength, stamina or physique of the competitor is relevant.

In Victoria exemptions apply to any sport or competitive activity organised for one sex or marital status, and to sporting clubs organised for, or mainly for persons of one sex or marital status. The Commonwealth Bill provides that it is not unlawful to exclude persons of one sex from participation in any sporting activity, but the exemption does not apply to the coaching or administration of sport or to any prescribed sporting activity.

Superannuation and insurance

The State Acts provide exemptions for superannuation schemes. Discrimination on the ground of sex is also not unlawful in the three States in the terms of insurance policies, where the discrimination is based on actuarial or statistical data and is reasonable, having regard to the data and other relevant factors. The Commonwealth Bill also exempts superannuation schemes and provident funds but only for a period of two years after the commencement of the Act. This Bill also provides that it is not unlawful to discriminate on the ground of sex in the terms in which an annuity, a life assurance policy, or other insurance policy is offered or obtained, where the discrimination is based on reliable actuarial or statistical data or other relevant

factors.

- 17 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

Accommodation

Exemptions apply in each of the State Acts and in the Commonwealth Bill to the provision of accommodation. The exemptions apply when the accommodation is provided for near relatives, or for no more than six people in the terms of the State Acts, or no more than three people in the Commonwealth Bill. Exemptions also apply to the provision of accommodation by religious or charitable organisations and, in NSW, to the provision of accommodation for aged persons.

Advertising

The Commonwealth Sex Discrimination Bill makes it unlawful to advertise in a way which indicates an intention to discriminate in ways prohibited by the Bill. Exceptions in the NSW and Victorian Acts in the area of advertising have weakened the effect of the legislation

there. The NSW Act has allowed sex-specific employment classifications or headings. The Victorian Act permits sex-specific descriptions of a person required for a job, so that such terms as 'waiter', 'waitress', 'salesman' and 'salesgirl' may be used. Persons of the opposite sex are thus deterred from applying for positions described in this way.

Temporary exemptions

The State Acts contain provision for the granting of temporary exemptions for periods of up to three years in S.A and Victoria, and up to five years with a possible extension for up to a .further five years in NSW. The exemptions have to be granted by the Sex

Discrimination Board in S.A., the Equal Opportunity Board in Victoria, or by the Minister on the recommendation of the Anti-Discrimination Board in NSW. The Commonwealth Bill also provides for the granting of exemptions by the Human Rights Commission for a period of up to five years, with the possibility of a further exemption for a period of up

to five years. These provisions have been regarded as potential 'loopholes' in the legislation.

Pregnancy

Pregnancy is not specifically a ground for unlawful discrimination in any of the State Acts. However, in October 1977,[8] the S.A. Sex Discrimination Board ruled that pregnancy was a female characteristic within the meaning of sub-section 16(2) which concerns indirect discrimination:

8. Australian 28 October 1977.

-18 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

A person discriminates against another on the ground of his sex or marital status if he discriminates against him on the basis of a characteristic that appertains generally to persons of that other person's sex or marital status, or a presumed characteristic that is generally imputed to persons of that sex or marital status.

Thus the Board found that discrimination in employment on the ground of pregnancy was unlawful in South Australia. Nevertheless, in her annual report, tabled in the Legislative Council on 12 May 1983, the Commissioner for Equal Opportunity recommended changes to the Act to

include discrimination against pregnant women as discrimination on the ground of sex.[9] The ground of pregnancy has been included in the Commonwealth Sex Discrimination Bill 1983.

Affirmative action

Apart from the NSW Anti-Discrimination (Amendment) Act, 1980, these State Acts contain no provision for affirmative action. (The 1980 NSW Amendment Act provides for policies and programs to 'promote' equal opportunity for women and members of racial minorities in public employment in NSW. In addition, the Commonwealth Public Service has

an Equal Employment Opportunity Bureau and the Public Service Boards of NSW., S.A., Tasmania, Victoria and the Northern Territory have equal opportunities sections or officers.) Without provisions for affirmative action, the anti-discrimination legislation could act to hold back the progress of women. In South Australia, for example, the Minister for Education applied to the Sex Discrimination Board in 1979 for an exemption from its provisions to allow the appointment of more women to deputy principal positions in schools. While women are so

poorly represented in senior levels of the workforce, they will remain disadvantaged even with 'equal treatment' regarding job applications. Some affirmative action appears necessary to achieve more equality of result.

The UN Convention on the Elimination of All Forms of Discrimination Against Women, recognises the possible need for affirmative action programs. Article 4 states:

Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a

consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

9. Advertiser 13 May 1983.

-19-

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

Combat duty

The Commonwealth Sex Discrimination Bill provides that discrimination against a woman on the ground of sex is not unlawful in connection with employment, engagement or appointment in the Defence Force in a position involving the performance of combat duty, or combat-related duties. In ratifying the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, Australia has made a reservation reflecting the present Defence Force practice of excluding women from combat and combat-related positions. However the employment practices of the Defence Forces are to be reviewed in the light of making a greater number of positions available to women.[10]

Requirement of written complaints

The South Australian and NSW Acts require that complaints be made in writing within six months of the alleged act of discrimination (although the NSW Act makes provision for later acceptance). The Victorian 'Act requires the written complaint within twelve months. The Commonwealth Bill provides that the Commissioner may decide not to continue to inquire into an act if, where a complaint has been made, a

period of more than twelve months has elapsed since the act. Only the Commonwealth Bill and the NSW Act make provision for representative complaints, although the Victorian Act allows, two or more persons to make a complaint and provides for the joining of parties. The

requirement of a written complaint, and the prospect of conducting a single action, are seen as barriers to disadvantaged sections of the community such as Aboriginal, migrant and country women. A single complainant is unlikely to be able to match the resources of a large organisation or government department in an adversary situation.

Conclusion

A major objective of sex discrimination legislation is its educative effect. With this in mind, the use of masculine terms in the drafting to apply to persons of either sex can be regarded as ironic. The Anti-Discrimination Act and the Sex Discrimination Act both use phrases such as 'on the ground of his sex' in outlawing sex discrimination. The Equal Opportunity Act and the Commonwealth's Sex Discrimination Bill, however, are phrased in more neutral terms.

10. Joint Statement by the Minister for Foreign Affairs, Mr Hayden, the Minister Assisting the Prime Minister on the Status of Women, Senator Ryan, and the Attorney-General, Senator Evans, 14 July 1983.

- 20 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

Despite the criticism of 'tokenism', the anti-discrimination or equal opportunity boards in three States have provided some protection and an avenue for the redress of sex discrimination practices in those States. More important, perhaps, is the effect of such legislation on community attitudes.

August 1983

- 21 -

SEX DISCRIMINATION LEGISLATION IN AUSTRALIA

References:

National Committee on Discrimination in Employment and Occupation, Annual Reports.

Margaret Thornton, 'Clutching at Straws, Anti-discrimination Legislation in Australia', Refractory Girl, March 1982 pp. 21-24.

.................. 'Sex discrimination in Australia', Australian

Quarterly, Summer 1982.

Chris Ronalds, Anti-Discrimination Legislation in Australia, Butterworth, Sydney 1979.