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Sex discrimination legislation in Australia
Download PDF The Padiament of the Commonvveahh of l\ustralia
,Sex Discrimination Legislation in Australia
Basic Papeir Number 9 1986-87
Legislative Research Service Department of the Pa.rliamentary Library
The Parliament of the Commonwealth of Australia
SEX DISCRIMINATION LEGISLATION IN AUSTRALIA
Consie Larmour Education and Welfare Group Legislative Research Service
With assistance from: Johanna Sutherland, Law and Government Group, Sue Bromley, Principal Legal Officer, Human Rights Branch, Attorney-General's Department, and
Catherine Wildermuth, Education and Weffare Group.
Legislative Research Service Basic Paper Number 9 1986-87
ISSN 0726 3406
@ Commonwealth of Australia 1987
Except to the extent of the uses permitted under the Copyright Act 1968, no. part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval sys· tern, without the prior written consent of the Department of the Parliamentary Library. Reproduction is per· mitted by Members of the Parliament of the Commonwealth in the course of their official duties .
. The views in this paper are those of the author, and do not necessarily reflact those of the Legislative Research Service or the Department of the Parliamentary Library.
Published by the Department of the Parliamentary Library, May 1987.
Contents
Background: National Committee on Discrimination in Employment and Occupation 1
Commonwealth Legislation 2
1 . Sex Discrimination A ct 1984 2 2. Affirmative Action (Equal Employment Opportunity for Women) Act 1986 5 3. Public Service Reform Act 1984 8 4. Equal Employment Opportunity (Commonwealth Authorities)Act 1987 8
South Australia: Sex Discrimination Act, 1975, Equal Opportunity Act, 1984 9
New South Wales: Anti-Discrimination Act, 1977 11
Victoria: Equal Opportunity Act 1977, Equal Opportunity Act 1984 13
Western Australia: Equal Opportunity Act 1984 15
Other States 16
Effectiveness of the Legislation 16
Employment exemptions 17 Education 18
References 26
Bibligraphy 27
Religious bodies, charities, clubs, sport 19 Superannuation and insurance 20 Accommodation 21 Advertising, application forms 21 Temporary exemptions 21 Combat duties 22 Pregnancy 22 Requirement of written complaints 23 Vicarious liability 24 Sexual harassment 24
Language 24 Operation of the Acts 25
Appendix 1: Comparative Table of Sex Discrimination Acts 28
Appendix 2: List of major Commonwealth and State Acts in the areas of sex discrimination and equal opportunity for women 31
Sex Discrimination Legislation in Australia
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 Occu pation) 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 discrimina tion on seven grounds - race, colour, sex, religion, political opinion, national extraction and so cial 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 were included in the Committees' areas of concern.
The Committees investigated both complaints received on grounds' specified in the Conven tion and complaints on grounds not specified, such as age and disability. To 1984, the Commit· tees received more complaints of discrimination on the ground of sex than on any other ground. In 1982-83, 64.6 per cent of complaints on grounds specified in the Convention were complaints on the ground of sex. Of these complaints, approximately 60 per cent were from females and 40 per cent were from males.1
The Committees worked through consensus and conciliation, and a system of tripartite representation: each State Committee had representatives of the Commonwealth and ,state Governments, employers' organisations and trade unions. The Committees did not have statu tory powers. Hcwever the National Committee could ask the Attorney-General to table in Parlia ment a report of a complaint which it was unable to resolve, including the naming of the discriminating party.2 In practice, however, cases were usually resolved before that stage was reached.
The passage of the Commonwealth Sex Discrimination Act 1984, and its implementation from 1 August 1984, led to arrangements for referral of complaints, where possible, on the grounds of sex, marital status and pregnancy to the newly set up Human Rights Commission or to the State Commissioners for Equal Opportunity (or President of the Anti-Discrimination Board in the case of New South Wales). The State Cofnmittees still provided avenues for complaints on these grounds for State go"'.ernment employees in States which did not have sex discrimination
legislation. ·
Moves to co-locate the National and State Committees with the Human Rights Commission and with the Stat(, Commissioners for Equal Opportunity, or the N.S.W. Anti-Discrimination Board, were then made with the intention of providing a 'one-stop-shop' approach to the handling of discrimination complaints.
With the passage of the Human Rights and Equal Opportunity Commission Act 1986, the func tions of the National and State Committees on Discrimination in Employment and Occupation passed to the Human Rights and Equal Opportunity Commission. ·, he reconstituted Commis sion is now empowered to handle matters relating to complaints on the grounds of the seven areas of discrimination of ILO Convention 111. Nine other grounds of discrimination had been
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Sex Discrimination Legislation in Australia
included in the concerns of the National and State Committees. Under the Act, such additional grounds of discrimination can be added to the Commission's areas of responsibility by regulation.
Provision is made under the Act for the establishment of at least one advisory committee to advise the Commission in relation to the performance of its functions and to report on action which needs to be taken by Australia in order to comply with ILO Convention 111.
COMMONWEALTH LEGISLATION
Australia signed the United Nations Convention on the Elimination of All Forms of Discrinima tion Against Women on 17 July 1980. Consultations took place between the Commonwealth and the States before ratification by Australia on 28 July 1983. Article 2(b) of the Convention pro vides that States parties should:
... adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all descrimination against women.
On 26 November 1981, Senator Ryan introduced a Sex Discrimination Bill as a Private Mem ber's Bill. This Bill was not proceeded with, but on 12 October 1982 a joint statement was issued from the Acting Attorney-General, Mr Neil Brown, and the Minister for Home Affairs and the l:nvironment, Mr Tom McVeigh, to announce the planned introduction of a Sex Discrimination (Commonwealth Employees) Bill. This Bill wold 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 be fore the change of government in March 1983.
1. Sex Discrimination Act 1984
On 2 June 1983 Senator Ryan introduced the Sex Discrimination Bill 1983 into the Senate, and this passed through both Houses (after redrafting and some amendments) by May 1984. The Sex Discrimination Act 1984 came into force on 1 August 1984. Its objectives are:
(a) to give effect to certain provisions of the United Nations 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, 1he provision of goods, facilities and serv· ices, the disposal of land, the activities of clubs and the administra tion 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.
The Act 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:
if the aggrieved person is treated less favourably by reason of that person's sex or marital status, or a characteristic appertaining to or
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Sex Discrimination Legislation in Australia
generally imputed to persons of that sex or marital status, or
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 compJy.
Discrimination on the ground of pregnancy is defined as having occurred:
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;
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 reasona ble 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.
The areas in which discrimination on the ground of sex, marital status or pregnancy are un lawful under the Act include employment, education, the provision of goods and services, the availability of facilities or accommodation, the disposal of land or the terms and conditions ap plying to that disposal, and advertising. The employment provisions apply also to applications for employment, commission agents, contract workers, partnerships, licensing or qualifying bod ies, employment agencies, trade unions and registered organisations under the Conciliation and Arbitration Act. Commonwealth programs and Commonwealth publir; servants exercising pow ers under Commonwealth Acts are covered by the provisions. About two-thirds of the complaints lodged with the Sex Discrimination Act have concerned discrimination in employment. In par ticular, women have-complained of discrimination in recruiting practices, status of and remuner ation for work done, promotion and training, access to fringe benefits, and dismissals.
The Act also makes 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 objec tion 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 applica tion for admission to an educational institution as a student. Other forms of sexual harassment are not dealt with iri the· Act, but when introducing the Bill the Government announced plans to give the matter consideration and to seek the views of women's organisations.3
The Act established the position of a Sex Discrimination Commissioner, and set additional functions for the Human Rights Commission (now the Human Rights and Equal Opportunity 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 the Act, examining enactments or proposed enactments to ensure consistency with the Act, and reporting to and advising the Minister on matters relat· ing to discrimination on the grounds of sex, marital status or pregnancy or discrimination
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Sex Discrimination Legislation in Australia
involving sexual harassment.
The Commissioner is required to inquire into alleged infringements on behalf of the Commis sion and must endeavour to effect a settlement by conciliation. The Commissioner may decide notto inquire into an act if:
he or she is satisfied that the act is not unlawful;
he or she is of the opinion that the aggrieved person or persons does not or do not desire the inquiry to continue;
more than 12 months have elapsed since the act; or
he or she is 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 com plainant 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 Commission by the Commissioner or by the Minister. 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 representa tive 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 effect to a determination of the Commission. Additionally, failure to provide information or actuarial or statistical data, failure to attend a conference as directed and obstruction of the Commission are offences under the Act and penalties of $1000 for in dividuals or $5000 for organisations or groups may be incurred. Penalties of $2500 or imprison ment for three months for an individual, and $10 000 for a body corporate, are set for offences of false or misleading information or victimisation.
Legislation passed through both Houses of Parliament by the end of 1986 to replace the Hu man Rights Commission with the Human Rights and Equal Opportunity Commission. The Com mission has been re-located in Sydney and is responsible for implementing the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 for functions exercised by reference to ILO Convention Ill and four other international instruments. It may also be given functions under future human rights legislation. The new Commission is made up of a President, a Hu man Rights Commissioner, the Race Discrimination Commissioner and the Sex Discrimination Commissioner. The Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 amended the Sex Discrimination Act 1984 to substi t~te the new Commission for the former Human Rights Commission, and to provide that the
Sex Discrimination Commissioner is not subject to the direction of the Commission in the per formance of functions L!nder the Sex Discrimination Act. Other amendments included an increase in the penalty for misuse or wrongful disclosure of information by Commission staff to $5000 or imprisonment for one year or both.
In 1986 the Sex Discrimination (Consequential Amendments) Act was passed to amend cer tain Commonwealth Acts which contained provisions inconsistent with the Sex Discrimination Act 1984 in that discrimination was made on the basis of sex or marital status. Section 40 of the Sex Discrimination Act provided a two-year exemption for acts in direct compliance with any
other Commonwealth, State or Territor·y law in force at the commencement of the Act. A review of Commonwealth legislation identified discriminatory provisions based on sex or marital status
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Sex Discrimination Legislation in Australia
and a number of Acts and ACT Ordinances were amended. Exemptions from the provisions of the Sex Discrimination Act 1984 remain in force for the Social Security Act 1947, the Compen sation (Commonwealth Government EmplO'fees) Act 1971, the Repatriation Act 1920, the Seamen's War Pensions and Allowances Act 1940 and the Papua New Guinea (Members of the Forces Benefits) Act 1957. Many other discriminatory provisions in Commonwealth, State and Territory legislation have been preserved by regulations made pursuant to s.40(3) of the Act. 4
The Sex Discrimination Act 1984 provided that State anti-discrimination legislation should oper ate concurrently with Commonwealth legislation. This provision mirrors a similar amendment to the Commonwealth Racial Discrimination Act 1975, made after the decision 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, to the extent of the inconsistency, rendered inoperative. Under the Sex Discrimintltion Act 1984, 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. A person may be prosecuted or convicted under either the State or Commonwealth legislation, but not both, for the same action or omission. The strengthening of Commonwealth/State co-operative arrange
ments for the investigation, attempted conciliation and determination of complaints was en ·visaged, so furthering the development of the 'one-stop-shopping' conce_pt.
· The Human Rights and Equal Opportunity Commission is now located in Sydney, with a region al office in Brisbane, and representatives in Hobart and Darwin. State offices of the Commis sioners for Equal Opportunity in South Australia and Western Australia, and the Equal Opportunity Board in Victoria, act on behalf of the Human Rights and Equal Opportunity Commission and receive some Commonwealth funding for this purpose. The co-operative arrangements are reflect ed in 1985 amendments to the NSW Anti-Discrimination Act which provide that certain func tions under Commonwealth Acts relating to human rights iri New South Wales (including the Sex Discrimination Act 1984) may be delegated to the NSW Anti-Discrimination Board.
2. Affirmative Action (Equal Emp/Ofment for Women) Act 1986
Senator Ryan's 1981 Sex Discrimination Bill included provision for affirmative action in public and private employment. This Part was omitted from the Sex Discrimination Act 1984. Instead, the Government decided on a course of public discussion and consultation before introducing affirmative action legislation. A Green Paper, Affirmative Action for Women: A Policy Discussion Paper, was presented to Parliament by the Prime Minister, Mr Hawke, on 5 June 1984. This out
lined the reasons, or need for affirmative action and the proposed elements of affirmative action programs, as well as the Government's plans for a voluntary pilot program. The Government also established a Working Party with members representing the Government and Opposition, Busines?, Trade Unions, Women's Organisations (from the National Women's Consultative Coun cil) and· Higher Education Institutions.
The Pilot Program commenced in July 1984 and at the end of May 1985 a Progress Report was issued. The Report of the Working Party on Affirmative Action Legislation was present~ to Parliament by the Prime Minister, Mr Hawke, on 28 November 1985 at which time he made a Ministerial Statement announcing a National Agenda for Women, and the Government's ac ceptance of the recommendations for affirmative action legislation and supportive measures. 5
On 19 February 1986 the Prime Minister, Mr Hawke, presented the Affirmative Action (Equal Employment Opportunity for Women) Bill 1986. The supportive measures recommended by the Working Party in the areas of education, child care and legislative restrictions to women's
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Sex Discrimination Legislation in Australia
employment were also announced in the Prime Minister's Second Reading Speech.
The Affirmative Action (Equal Employment Opportunity for Women) Act 1986 came into effect on 1 October 1986. It requires higher education institutions and relevant mnployers to develop and implement affirmative action programs. An affirmative action program is defined as a pro gram designed to ensure that:
(a) appropriate action is taken to eliminate discrimination by the relevant employer against women in relation to employment matters; and
(b) measures are taken by the relevant employer to promote equal oppor tunity for women in relation to employment matters.
'Discrimination' means discrimination as defined in section 5, 6 or 7 of the Sex Discrimination Act 1984 (Cth).
A 'relevant employer' means a higher education institution which is an employer, or a person, body or association which employs 100 or more employees in Australia. The term does not in clude the Commonwealth, a State, a Territory, an authority or a voluntary body.
A 'higher education institution' is defined as a university, college of advanced education or other institution of tertiary education (other than a technical and further education institution within the meaning of the Commonwealth Tertiary Education Commission Act 1977).
Higher education institutions were required to commence the development and implementa tion of affirmative action program for women in October 1986. Companies employing more than 1000 people were required to commence their programs by 1 February 1987, companies with over 500 and under 1000 employees are required to commence their programs by 1 February
1988 and companies with over 100 and under 500 employees by 1 February 1989. Staff em ployed by subsidiary companies are taken into account when calculating numbers of employees.
Affirmative action programs are to include eight steps which involve:
the issuing by management of a policy statement notifying employees of the commencement of an affirmative action program;
conferring responsibility for the program on a person with sufficient authority and status within the management to enable proper develop ment and implementation of the program;
consulting with trade unions which have members in that work place;
consulting with employees, especially women;
collecting and recording statistical and ·other relevant information on the program;
reviewing policies arid practices of the employer to identify any dis criminatory policy or practice or to identify any patterns of lack of op portunity relating to women;
setting objectives and making forward estimates; and
monitoring and evaluating the implementation of the program to. as sess the achievement of the objectives and forward estimates.
For the purposes of this provision:
6
'forward estimate' is defined as a quantitative measure or aim which may be expressed in numerical terms, designed to achieve equality of opportunity for women in employment matters, being a measure or
Sex Discrimination Legislation in Australia
aim that can reasonably be implemented by the relevant employer wi· thin a specified time; and
'objective' means a qualitative measure or aim, expressed as a gener al principle, designed to achieve equality of opportunity for women in employment matters, being a measure or aim that can reasonably be implemented by the relevant employer within a specified time.
An affirmative action program may contain any other provision which the relevant employer thinks fit which is not inconsistent with the eight steps or the purpose of the Act. The Act specifi· cally states, however, that nothing in it shall be taken to require a relevant employer to take any action incompatible with the principle that employment matters should be dealt with on the ba· sis of merit.
The Act provides for the establishment of the office of a Director of Affirmative Action whose functions include advising and assisting employers in the development and implementation of programs, and the issuing of guidelines for this purpose; the monitoring and evaluation of reports and programs; research, educational programs and promotion of affirmative action through public discussion and community information; reviewirig the effectiveness of the Act; and reporting to the Minister. The Director must submit a report to the Minister within six months after each 31 May on the operations of the Director during that year to 31 May. The Director may also sub· mit other reports on matters relating to the operations, powers or functions of the Director. Reports are to be tabled in. Parliament within 15 sitting days of receipt.
Employers will be required to prepare a public report and a confidential report on the develop ment and implementation of the program. Public reports are to provide statistics and related information, including the number of employees of either sex and their types of job or job clas sifications, and an outline of the processes to develop and implement the affirmative action pro gram. Public reports are to be made available by the Director to a member of the public on request.
Confidential reports are required to provide detailed analyses of the processes undertaken by the employer to develop and implement the program. Where this detailed analysis has been provided in the employer's public report, a separate confidential report need not be lodged.
The Director may request permission from employers to make information from the confiden tial report available to the public or available for use in a report of the Director. The Director, or persons employed by the Director, may not reveal information from confidential reports without consent, and the penalties for so doing are $2500 or imprisonment for three months, or both. This is the heaviest penalty provided for in the Act and applies only to misuse of information by the Director or staff. It is for the protection of employers implementing affirmative action ·programs.
The Director may grant extensions of time to employers for the lodging of private and con fidential reports, where such a request has been made and where the Director considers there are reasonable grounds for extending the period. If, in the opinion of the Director, the informa tion provided in a report fails to comply with the provisions of the Act, the Director may by notice in writing request a relevant employer to provide further information within such time as speci· tied in the notice. Failure to submit a public or confidential report to the Director as required, or failure to provide further information as required may result in the Director naming the em ployer, in the Director's Report, as having failed to provide the report or further information. This is the main sanction against employers in the Act.
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Sex Discrimination Legislation in Australia
3. Public Service Reform Act 1984
The Public Service Reform Act 1984 (Cth) inserted. a new section (s.228) into the Public Service Act 1922 to provide for the commencement, development and implementation of equal opportu nity programs throughout the Australian Public Service. This section of the Act came into opera tion on 1 October 1984 and Commonwealth government departments, statutory authorities with
staff employed under the Public Service Act 1922, and statutory authorities for which the Public Service Board has statutory responsibility in relation to terms and conditions of employment of staff, were required to establish Equal Employment Opportunity (EEO) programs to conform with provisions of the Act. In accordance with the Act, an EEO program must include:
(a) examination of practices in relation to employment matters in the Department to identify -(i) any practices that unjustifiably discriminate against women or persons in designated groups; and
(ii) any patterns (whether ascertained statistically or otherwise) of inequality of opportunity in respect of women or persons in designated groups;
(b) eliminating any practices, and eliminating or ameliorating any pat terns, so identified;
(c) informing officers and employees in the Department, and relevant staff organisations, of the contents of the program and of the results of any review of the program;
(d) collecting and recording information, including ~tatistical information, relevant to the operation of the· program;
(e) assessing the effectiveness of the program by comparing information collected in relation to the results of the program with the indicators against which the effectiveness of the program is to be assessed; and
(f) giving effect to any guidelines on EEO programs issued by the Public Service Board.
Programs are to relate to such 'employment matters' as the selection, promotion, transfer, training and development, and conditions of service of women members of staff and those in designated groups. 'Designated groups' at this stage are Aboriginal people, people with disabil ities and people whose first language is not English.
In addition, the Merit Protection (Australian Government Employees) Act 1984 provides for a Merit Protection Review Agency which will investigate complaints of discrimination.
4. Equal EmplOJment Opportunity (Commonwealth Authorities) Act 1987
Despite the passing of the Public Service Reform Act 1984, and of regulations in June 1986 (Statu tory Rules No.130-135, 1986) which brought other Commonwealth departments and authorities within the scope of section 228 of the Public Service Act, a number of Commonwealth authori ties including some major statutory authorities which had no statutory relationship with the Public Service Board were still not covered by legislation requiring EEO programs. On 19 March 1987 the Equal Employment Opportunity (Commonwealth Authorities) Bill 1987 was introduced in the
House of Representatives. It was read a third time in this House on 26 March 1987 and in the Senate on 5 May 1987. It received assent on 18 May 1987.
The Act widens the requirement for EEO programs to those Commonwealth authorities,
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Sex Discrimination Legislation in Australia
including statutory authorities, employing 40 or more employees in Australia, not at present co· vered by the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 or the Pub· lie Service Act 1984. Four primary industry authorities are exempted from the legislation (the Australian Dairy Corporation, the Australian Meat and Livestock Corporation, the Australian Wheat
Board and the Australian Wool Corporation) as it is planned to amend their establishing legisla· tion to provide for EEO programs. Major authorities to be covered by this legislation include Telecom (approximately 91 000 employees), the Australian Postal Commission (approximately 37 300 employees), and the Commonwealth Banking Corporation (approximately 36 100 em· ployees).
The Act follows sub-section 228(2) of the Public Service Act 1922 in providing for the contents of the EEO program. Minimum requirements for a program include informing employees of the program and results of monitoring and evaluation; appointing an officer of sufficient authority and status to be responsible for development and implementation of the program; consulting relevant trade unions and employees, particularly women and persons in designated groups; collecting and recording relevant statistics and information on employment by the authority, in· eluding numbers and types of jobs or classification, of male and female employees and per· sons in designated groups; identifying discriminatory policies and practices or patterns of lack of equality of opportunity in employment; setting objectives for the program and quantitative and other indicators against which the effectiveness of .the program is to be assessed; and monitoring and evaluating the implementation of the program. No action is to be incompatible with the principle that employment matters should be dealt with on the basis of merit.
SOUTH AUSTRALIA: SEX DISCRIMINATION ACT, 1975, EQUAL ·OPPORTUNITY ACT, 1984
South Australia was the first Australian State to introduce sex discrimination legislation.
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 groun1js 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 pub· lie opinion would be 'mobilised against this form of discrimination·.6 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 prohibited both direct and indirect discrimination on the ground of sex or marital status. Indirect discrimination was discrimination based on a charac teristic or presumed characteristic appertaining generally to persons of a group (or marital sta· tus). Discrimination was defined as less favourable treatment than that 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 made discrimination on the basis of sex or marital status unlawful in employment,
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Sex Discrimination Legislation in Australia
education, the provision of goods and services (including banking, credit and insurance), ac cess to public places, accommodation and advertising. Discrimination in employment included 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 was needed for, or facilitates, the practice of a profession or: trade) might not discriminate on these grounds.
The Act established a Commissioner for Equal Opportunity and a Sex Discrimination Board. The Commissioner was appointed subject to the Public Service Act, 1967 (SA). Duties of the Commissioner were to investigate and conciliate complaints of unlawful discrimination, to initi· ate investigations and review all South Australian legislation to identify any discrimination. The Commissioner had to present an annual report and in it make any recommendations for the elimination or modification of discriminatory legislative provisions.
The Sex Discrimination Board was chaired by a judge or lawyer of at least seven years stand ing, and had two other members. These appointments were not subject to the Public Service Act 1967, but the appointment of Registrar to the Board was a public service position. The main functions of the Board were to hear and determine complaints, initiate inquiries and to grant
exemptions from the Act. After hearing evidence the Board could dismiss the complaint or, if satisfied that there had been contravention of a provision of the Act, it could make an order requiring that the contravention cease and that future contravention be eliminated. It could ord er the payment of compensation to the complainant. Penalties not exceeding $2000 might be imposed for non-compliance with an order of the Board.
On 23 August 1984 the South Australian Attorney-General introduced a new Equal Opportu nity Bill in the Legislative Council. The Bill resulted from the report of a working party on anti· discrimination legislation which recommended in December 1983 that there should be one Act, one agency to administer the legislation and one tribunal to deal with disputed complaints in all areas. The Equal Opportunity Act, 1984 was assented to on 20 December 1984 after the resolv ing of a deadlock between the Houses over the definition of sexual harassment, and passage through the Parliament on 7 December 1984. The Act came into force on 1 March 1986.
The Act replaces the Sex Discrimination Act, 1975 the Racial Discrimination Act, 1976 and the Handicapped Persons Equal Opportunity Act, 1981. Objectives of the Act include:
promoting equality of opportunity between the citizens of South Aus tralia;
preventing certain kinds of discrimination based on sex, sexuality, marital status, pregnancy, race or physical impairment; and
facilitating the participation of citizens in the economic and social life of the community.
Part Ill of the Act concerns the prohibition of discrimination on the ground of sex, sexuality, marital status or pregnancy in the areas of employment (including agents and contract workers), partnerships (the ground of sexuality is exempted), associations with both male and female mem bers, qualifying bodies, and education or in relation to land, goods, services, accommodation, or superannuation. The provision relating to superannuation (Division VI of Part Ill) has not yet been proclaimed. 7 ·
Part VI of the Act concerns 'othe·r unlawful acts' and includes the prohibition of sexual harass ment in the areas of employment (including commission agents and contract workers) educa tion and the provision of goods, services and accommodation. Section 87 includes the provision
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Sex Discrimination Legislation in Australia
that employers, education authorities and the providers of goods and services have a duty to ensure that none of their employees subject other employees, students, customers etc. to sexu al harassment. Sexual harassment is defined as behaviour which causes a person to feel offend ed, humiliated or intimidated in circumstances in whic~ it is reasonable for that person to feel offended, humiliated or intimidated, when the behaviour involves the subjecting of another per son to an unsolicited and intentional act of physical intimacy, demanding or requesting (directly or by implication) sexual favours from the other person or making a remark (on more than one occasion) pertaining to the other person, being a remark that has sexual connotations.
The Act establishes a Commissioner for Equal Opportunity and an Equal Opportunity Tribunal. The Commissioner is appointed for five years and may be reappointed. Duties of the Commis sioner are to foster and encourage informed and unprejudiced attitudes in the community with a view to eliminating discrimination on the ground of sex, sexuality, marital status, pregnancy, race or physical impairment; to institute, promote or assist in _research, collection of data and the dissemination of information relating to such discrimination; to make recommendations to the Minister and to furnish advice; and to make annual reports to the Minister on the operation of the Act. Other duties of the Commissioner and officers who assist the Commissioner are to
investigate complaints (which have.been lodged in writing) and to attempt to resolve these by conciliation. The Commissioner may decli.ne to take action or proceed if of the opinion that a complaint is frivolous, vexati_ous, misconceived or lacking in substance. To assist in the investi gation of a complaint, the Commissioner may require books, papers or documents from the per son alleged to have contravened the Act, and failure to comply carries a penalty of up to $2000.
The Equal Opportunity Tribunal consists of a Presiding Officer who is a judge or magistrate, not more than two Deputy Presiding Officers who are either judges, magistrates or legal practi tioners of not less than seven years standing, and a panel of not more than 12 persons nominat ed by the Minister to be available for selection to sit at hearings. Members of the Tribunal are appointed for three years and are eligible for reappointment.
After hearing evidence and representations concerning a complaint, the Tribunal may order the payment of damages by the respondent to the complainant, may order the respondent to refrain from further contravention of the Act or may order the respondent to perform any acts to redress the loss or damage suffered by the complainant, or may dismiss the complaint. Ap
peal may be made to the Supreme Court against decisions of the Tribunal.
The Government Management and Employment Act, 1985 provides for equal employment op portunity programs in State government employment in South Australia.
NEW SOUTH WALES: ANTI-DISCRIMINATION ACT, 1'JT7
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 convic tion 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 19n and took full effect from 1 June
11
Sex Discrimination Legislation in Australia
19n. 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 and indirect discrimina tion 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 commisi,ion agents and con tract workers, discrimination by trade unions, qualifying bodies and employment agencies, dis crimination 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 ground 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 impair ment 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 (ex cept for single sex schools), discrimination by registered clubs, and discrimination in partnerships.
Amendments in 1982 to the Principal Act made discrimination on the ground of intellectual impairment or homosexuality unlawful in certain circumstances, and transferred to the Presi dent of the Anti-Discrimination Board the functions formerly allocated to the Counsellor for Equal Opportunity.
The Anti-Discrimination (Amendment) Act, 1984 provided that inquiries by the Equal Opportu nity Tribunal may be held in private if the Tribunal (by its own motion or an application of a party to the inquiry) considers this appropriate.
The 19n Act had established a Counsellor for Equal Opportunity and an Anti-Discrimination Board. The 1981 amendments establ.ished an Equal Opportunity Tribunal. Duties of the Coun sellor, which became the duties of the President of the Anti-Discrimination Board, were to inves tigate complaints of unlawful discrimination and to endeavour to resolve these by conciliation.
If the President was satisfied that a complaint was frivolous, vexatious, misconceived or lacking in substance 'he' may decline to enterfain the complaint but must advise the complainant of the reason for this and the complainant's rights. Where the President fails to resolve a com plaint he may refer it to the Tribunal.
The Anti-Discrimination (Amendment) Act, 1981 established the Equal Opportunity Tribunal to be composed of a number of part-time members, at least one of whom is to be a judge or person qualified for appointment as a judge. When sitting, the Tribunal is made up of three mem bers, the senior member being the judicial member, and two non-judicial members. The Tribunal's main function is to investigate complaints referred to it by the President of the Anti-Discrimination Board or the Minister. The Tribunal may hold a single inquiry into several complaints arising out of the same or substantially the same circumstances, and may join a person as a party to an inquiry. It may dismiss complaints if judged to be frivolous, vexatious, misconceived or lack ing in substance. If the Tribunal finds a complaint substantiated it may order the payment of
12
Sex Discrimination Legislation in Australia
damages not exceeding $40 000 to the complainant, may order thfJ 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 the President and two part-time members who are appointed (under the 1982 Amendments) for a period not exceeding seven years in the case of a full-time member (the President) and three years in the case of a part-time member, and are eligible for reappointment. General functions of the Board are to:
(a) carry out investigations, research and inquiries relating to discrimina tion, in particular on the grounds of age, religious or political convic tion, mental disability, and membership or non-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 con ferences;
(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 programs and policies.
The Anti-Discrimination (Amendment)Act, 1985 provides for a closer working relationship be tween State and Commonwealth authorities in the 'promotion of the observance of human rights'. Arrangements may be made between the State and Commonwealth Ministers to delegate cer tain functions under the Sex Discrimination Act 1984 (Cth) and other anti-discrimination or hu
man rights Acts to the President of the Anti-Discrimination Board, to the Board or to an officer of the Board.
Equal employment opportunity in the State public service 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 1984 amendments provided that these plans include provision for physically handicapped persons.) The position of Director of Equal Opportunity in Public Employment was established (1980). Functions of the Director include advising and assisting authorititiS in rela tion 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. ·
VICTORIA: EQUAL OPPORTUNITY ACT 1977, EQUAL OPPORTUNITY ACT 1984
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 recommenda tions included the introduction of legislation to combat sex discrimination. The Equal Opportu nity Act was passed by Parliament on 24 May 19n and became fully operative by 3 April 1978.
13
Sex Discrimination Legislation in Australia
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 conse quential amendments to certain Acts and for other purposes'.
Discrimination on the ground of sex or marital status is defined again as less favourable treat· ment than that accorded to a person of the other sex or different marital status. The Act covered such discrimination in employment and the offer of employment, discrimination against com mission agents and contract workers, discrimination in partnerships and in professional and other organisations, discrimination by qualifying bodies, employment agencies and educational authori ties, and discrimination in the provision of goods, services, or accommodation. The Act estab lished a Commissioner for Equal Opportunity and an Equal Opportunity Board and provided for the investigation and resolution of complaints.
The Act was repealed and replaced by the Equal Opportunity Act 1984 which was assented to on 22 May 1984 and came into operation on 1 August 1984. The new Act also repealed and incorporated the provisions of the Equal Opportunity (Discrimination Against Disabled Persons) Act 1982.
The Equal Opportunity Act 1984 widens the grounds of unlawful discrimination to discrimina tion on the grounds of status and private life. For the purposes of the Act 'status' is defined as the sex, the marital status, the race, or the impairment of that person or the status or condition of being a parent, childless or a de facto spouse. 'Private life' is defined as,
(a} the holding or not holding of any lawful religious or political belief or view by the person; or
(b) engaging or refusing to engage in any lawful religious or political ac tivities by the person.
The Act outlaws sexual harassment in the areas of employment, education and in the provi sion of goods and services and accommodation.
An objective of the 1984 Act was 'to facilitate the administration of the Act by strengthening the investigation, conciliation and enforcement provisions·.8
Amendments made by the Equal Opportunity (Amendment) Act 1985 included provision for the appointment of part-time members of the Board, for preliminary conferences, for the removal of gender specific language in the Act and for the .transfer to the Commissioner of some func tions formerly allocated to the Board.
The Equal Opportunity Act 1984 (as amended} makes provision for a Commissioner for Equal Opportunity and an Equal Opportunity Board. The Commissioner is appointed subject to the Pu_blic Service Act 1974 (Vic). The Equal Opportunity Board consists of a President (1985.amend· ment replacing the former 'chairman'} and not less than two other members, appointed by the Governor in Council and not, by reason of this office, subject to the provisions of the Public Service Act 1974. The Registrar of the Board and other staff are, however, public servants.
It is the Commissioner's function to investigate complaints or matters referred by the Board, and attempt to resolve these by negotiation. The Commissioner may dismiss complaints consi· dered to be frivolous, vexatious, misconceived or lacking in substance. Where this attempt at negotiation is unsuccessful, the Commissioner may refer the matter to the Board. The 1985 amendments included provision for the making of an interim order by the President of the Board to prevent a party from acting in a manner prejudicial to negqtiations or to the conciliation proce dure. Provision is also now made for the holding of preliminary conferences.
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Sex Discrimination Legislation in Australia
If the Board is satisfied that a person has contravened a provision of the Act it may make an order requiring that the person refrain from contravention of the Act, or requiring redress. Failure to obey an order is an offence and a penalty not exceeding 20 penalty units ($2000), and five penalty units ($500) for each day of continuing non-observance, may be imposed. The penalty for giving false or misleading information is also 20 penalty units.
If the Board after hearing a complaint considers that it is frivolous, vexatious or totally lacking in substance or that the respondent has behaved unreasonably, it may order the person who made the complaint to pay the costs incurred by the other person.
Hearings of the Board are to be held in public but the Board may direct that a hearing or part of a hearing be held in private and may order that evidence, documents or information must not be published except as specified by the Board.
Provision is made that for questions of law arising in proceedings before the Board, the Board may seek the opinion of the Supreme Court. Any party to proceedings before the Board may appeal to the Supreme Court against an order of the Board on a question of law only.
Educational and other duties of the Commissioner include the dissemination of information to promote equality of opportunity between men and women and the elimination of discrimina tion on the ground of sex o'r maritG! status, the review of legislation to identify discriminatory provisions, relevant research and reports to the Minister.
The Public Service (Amendment) Act 1984 provides for equal employment opportunity pro grams in State government employment in Victoria.
WESTERN AUSTRALIA: EQUAL OPPORTUNITY ACT 1984
On 20 September 1984 the Western Australian Equal Opportunity Bill was introduced into the Legislative Assembly. The Bill was sent back to the Legislative Assembly from the Council on 6 November 1984 with some minor amendments which were agreed to by the Assembly. The Act was assented to on 7 December 1984 and was proclaimed and entered into force on 8 July
1985.
· Under the Act, discrimination ⢠direct or indirect ⢠is unlawful on the ground of sex, marital status, pregnancy, race and religious or political conviction in the areas of employment, educa tion, the provision of goods, services and facilities, accommodation and the activities of clubs. Sexual harassment is unlawful in employment and education. It will also be unlawful to dis criminate in advertisements and to victimise a complainant.
The Act establishes a Commissioner for Equal Opportunity and an Equal Opportunity Tribunal. The main responsibilities of the Commissioner for Equal Opportunity are the conciliation of com plaints, community education and the review of legislation to identify discriminatory provisions. The Commissioner may direct parties to attend a compulsory conference. The Tribunal consists of a part-time President who must be a legal practitioner of at least seven years standing, and two other members. The Tribunal holds inquiries into complaints referred by the Commissioner and attempts to resolve these by conciliation or by order where possible. Where a complaint is substantiated, the Tribunal may order a respondent to pay the complainant damages not ex ceeding $40 000. The Tribunal may dismiss a complaint if satisfied that it is frivolous, vexatious, misconceived or lacking in substance or should be dismissed for any other reason. Provision
15
Sex Discrimination Legislation in Australia
is made for appeal to the Supreme Court on a question of law in a decision or order of the li'ibunal.
Equal employment opportunity in State Government employment is an important objective of the Act. A Director of Equal Opportunity in Public Employment has been appointed and each State Government authority is required to prepare and implement equal employment opportu nity management plans. The provisions of equal employment opportunity in public employment are based on the New South Wales legislation.
OTHER STATES
The Queensland, Tasmanian and Northern Territory Governments do not have sex discrimina tion legislation, a 1978 Tasmanian Bill having lapsed in that year. Complaints in Queensland, Tasmania and Northern Territory can be directed to regional offices of the Human Rights and Equal Opportunity Commission in Brisbane, Hobart and Darwin.
State and Territory employees, including teachers, police etc, in Queensland, Tasmania and the Northern Territory are not covered by the Commonwealth legislation. The Northern Territory Public Service Act has a requirement of non-discrimination and there is an Assistant Commis sioner for Equal Employment Opportunity in the Northern Territory Public Service.
The Sex Discrimination Act 1984 (Cth) covers the Australian Capital Territory. Some ACT Or dinances have been exempted from provisions of the Sex Discrimination Act 1984 (Cth) and ex tensions of the exemptions for acts done in direct compliance with laws in force in the ACT under section 6 of the Seat of Government Acceptance Act 1909 have been provided, by regulation,
until 31 July 1987.9 The move of the Commission's headquarters from Canberra to Sydney means that residents of the ACT must now take complaints to the Sydney office.
EFFECTIVENESS OF THE LEGISLATION
Reviews of the legislation, assessments of its effectiveness in different areas and recommenda tions for future amendments or action are undertaken by the Human Rights and Equal Opportu nity Commission and by the State Commissioners for Equal Opportunity and by the Anti-Discrimination Board. Inevitably there have been challenges to the legislation and criticisms of the findings of the Board or Commissioners from. various sources. The Labor Council of New South Wales in 1985 proposed arnendments to the Anti-Discrimination Act, 1977 (NSW) which would delete references to discrimination against applicants and employees, commission agents, contract workers and employment agencies. The Council proposed the insertion of a new part, titled 'Discrimination in Work', into the Industrial Arbitration Act, thus transferring the jurisdic tion of responsibility for discrimination in employment. This proposal aroused opposition from
many community groups and has not been taken up by the NSW Government.
Although most complaints are dealt with by conciliation and conference processes, some cases have proceeded tc the Courts for judgment and in a number of cases, in NSW for example, the Court of Appeal has overturned the findings of the Equal Opportunity Tribunal. There has also been academic criticism that the Human Rights Commission failed to address key issues under the Sex Discrimination Act in some cases before it.10 As case law develops it may be that the legislation is increasingly seen as deficient in some areas in terms of achievement of
16
Sex Discrimination Legislation in Australia
the stated objectives.
The State and Commonwealth Acts provide for·many exceptions to, and exemptions from, their provisions. Inevitably some of these exceptions reduce the overall effectiveness of the legis lation in combating discrimination. Others can be regarded as common-sense precautions against unreasonable expectations.
Employment exemptions
In the area of employment, the Commonwealth Sex Discrimination Act 1984 provides a list of general exemptions where it is a genuine occupational qualification to be a person of a particu lar sex. 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 stami na) that are not possessed by persons of one sex;
(b) the duties of the position involve performing in a dramatic perfor mance or other entertainment in a role that, for reasons of authentici ty, aesthetics or tradition, is required to be performed by a person of a particular sex;
(c) the duties of the position need to be performed by a person of a par ticular sex to preserve decency or privacy because they involve the fit ting of clothing for persons of that sex;
(d) the duties of the position include the conduct of searches of the cloth· ing 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 uso by members of that sex;
(f) the occupant of the position is required to live on premises provided by the employer or principal and ⢠(i) the premises are not equipped with separate sleeping ac commodation and sanitary facilities for members of each
sex;
(ii) the premises are already occupied by a person, or persons of one sex; and ·
(iii) it is not reasonable to expect the employer or principal to provide separate sleeping accommodation and sanitary fa cilities 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 un dress; or
(h) the position is declared, by regulations made for the purpose, to be a position in relation to which it is a genuine occupational qualification to be a person of a particular sex.
These general exemptions for employment appear also in the State Acts of New South Wales and Western Australia and, although expressed differently, in the Victorian Equal Opportunity Act 1984. The new South Australian Act also exempts discrimination on the ground of sex in relation to employment 'for which it is a genuine occupational requirement that a person be
of a particular sex'. The Commonwealth and WestemAustralian Acts provide specific exemp tions for employment involving the residential care of children and where the position is one of two to be held by a married couple.
17
Sex Discrimination Legislation in Australia
Exemption for employment within a private household is provided in all five Acts. The New South Wales Act provides exemption from the provisions covering discrimination in employment where the number of persons employed by the employer (excluding those within the private household) does not exceed five. The Victorian Act provides a similar exemption where the num ber of employees does not exceed three. The South Australian Equal Opportunity Act, 1984 re moved the exemption given to employers of fewer than five employees which its Sex Discrimination Act, 1975 had allowed. The Commonwealth Act provides some coverage for employees in small
businesses in Victoria and New South Wales and in States which have no anti-discrimination legislation. The provisions of the Commonwealth Act do not apply to employees of a State or State instrumentality.
The Sex Discrimination Act 1984 (Cth) and the NSW and Western Australian Acts exempt from their provisions any action in compliance with an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment. Under the Victori an Act an action in compliance with a provision of an instrument made or approved by or under any other Act is not unlawful. The Commonwealth and Western Australian exemptions were in tended to apply for two years only, 'except to the extent that regulations .. . otherwise provide'. A major area of concern is the legislative and award restrictions to women·~ employment. Much of this State and Territory legislation was preserved by regulation under the Commonwealth Act until 31 July 1987. Unless amended by that date, these State laws which are inconsistent with the Federal Sex Discrimination Act may be rendered inoperative to the extent of their incon sistency with the Federal Act under s.109 of the Constitution. The Prime Minister has stated the Government's commitment to ensuring no further extensions to the exemptions 'unless there is a clear and substantial justification on health and safety grounds'. The Australian Council of Trade Union's (ACTU) 1981 survey, Federal Award Provisions which Differentiate on the Basis of Sex, identified approximate!,· 300 Federal awards in force at 1 January 1980, which contained provisions the effects of which could be discriminatory to women. The survey demonstrated that a wide range of provisions in awards require review. Women may, for example, be subject to restrictions concerning the hours they work, the maximum weights which they may lift, machines they may operate and jobs that they may perform. Some awards are drafted throughout on the
presumption that only men will be employed in an industry, with the result that women are not entitled to some benefits under the award (such as bereavement leave and transfer entitlements).
The Prime Minister announced in 1986 that the Government had decided to amend the Con ciliation and Arbitration Act 1904. This amendment will require the Conciliation and Arbitration Commission when making future awards or orders to have regard to the anti-discrimination pro visions of the Sex Discrimination Act.
The Office of the Status of Women and the Women's Bureau in the Department of Employ ment and Industrial Relations are jointly funding a comprehensive survey of Federal awards to identify provisions .which differentiate on the basis of sex. The survey will update the ACTU's 1981 survey and identify changes made in the last five years in reviewing restrictive provisions. The ACTU and Confederation of Australian Industry (CAI) have given a commitment to aim to complete the process of removing restrictive provisions from Federal awards by the end of 1988.11
Sex segregation in employment, and the difficulties faced by women in entering non-traditional occupations, have been major factors in keeping women's earnings at a lower rate than those of men.
Education The Commonwealth and State Acts all have provisions allowing single sex schools, colleges and educational institutions. The Commonwealth Act also specifically provides for education
18
Sex Discrimination Legislation in Australia
or training courses for students of one sex, or mainly for students of one sex. Discrimination on the grounds of sex, marital status, pregnancy or sexual preference is not unlawful in educa tional institutions conducted in accordance with religious beliefs or doctrines if the discrimina tion is 'in good faith' and in order to avoid injury to the religious susceptibilities of the particular faith or creed. This provision (with variations in the wording) is contained in all five Acts. The New South Wales Act exempts all private educational authorities from its provisions.
Religious bodies, charities, clubs, sport
The Western Australian Equal Opportunity Act and the Victorian Equal Opportunity Act 1984 make discrimination on the ground of religious or political conviction unlawful. However, all of the Commonwealth and State Acts, including the Western Australian and Victorian Acts, pro vide exemptions to apply to discrimination on the ground of sex or marital status in the ordina tion or appointment of priests, ministers of religion or members of any religious order; their training and education; the selection or appointment of persons to perform duties or functions in con nection with religious observance or practice; and to any oth!:?r act or practice that conforms to the beliefs of that religion.
The conferring of charitable benefits is exempted from the sex discrimination provisions of the Commonwealth and State Acts. Voluntary bodies are exempted from the provisions of the Commonwealth Act, the Western Australian Act and the NSW Act in connection with the admis sion of members and the providing of benefits, facilities and services to members.
Some of the wide exemptions for clubs, contained in early State legislation, have been re moved by the later Acts or amendments. Provisions of the NSW, South Australian and Western Australian Acts are now substantially the same as those of the Commonwealth Act. In July 1985 the NSW Anti-Discrimination Board issued Guidelines tor Registered Clubs in an attempt to reduce the number of complaints in this area;
The Sex Discrimination Act 1984 (Cth) makes it unlawful for a club, or a committee of manage ment or representative of a club, to discriminate against a member or an applicant for member ship 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 the 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 this latter exemption applies, 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. T!le practice of according 'associate' or auxiliary memberships to women members in a club may now be challenged.
The Victorian Act contains a different definition of 'club' from the other Acts. In the 1984 Vic torian Act a club is a social, recreational sporting or community service club or a community service organisation which,
(a) is in occupation of any Crown land; or
(b) is directly or indirectly in receipt of financial assistance from the State Government or a municipality.
In the Commonwealth Act,
club means an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural,
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Sex Discrimination Legislation in Australia
political, sporting, athletic or other lawful purposes that -(a) provides and maintains its facilities, in whole or in part, from the funds of the association; and (b) sells or supplies liquor for consumption on its premises.
The Victorian Act exempts from the anti-discrimination provisions, clubs established solely for persons of a certain status or private life, clubs which exist or operate principally to prevent or reduce disadvantage to members or to preserve a minority culture.
All Acts provide exemptions for competitive sporting activities in which the strength, stamina or physique of competitors is relevant. In the Commonwealth, Victorian and Western Australian Acts this exemption does not apply to coaching, administration, umpiring or refereeing, or to 'any prescribed sporting activity'. Sporting activities by children under the age of 12 years are also not exempted from the provisions of the Commonwealth and Western Australian Acts.
Superannuation and Insurance
The Commonwealth and Western Australian Acts exempt superannuation schemes and provi dent funds from their provisions (s.41(1) Cth and s.34(1) WA) but both Acts then provide that:
Sub-section (1) may be repealed by a regulation, and such a regulation shall come into operation -(a) on a date specified in the regulation, being a date not earli er than 12 months after the making of the regulation; or
(b) at the expiration of the period of 2 years immediately after the commencement of this Act, whichever is later.
Exemptions without the time limit apply under the NSW and Victorian Acts for superannua tion schemes and provident funds, or pensions.
The South Australian Equal Opportunity Act, 1984 makes it unlawful for a superannuation scheme or proviaent fund to discriminate against a person on the ground of sex, sexuality, mari tal status or pregnancy. However the sections of the Act relating to superannuation (sections 41-44) have not yet been proclaimed. Under the South Australian Act, payment of benefits from a superannuation scheme or provident fund to surviving spouses or the payment of no benefits or less favourable benefits to surviving de facto spouses are not to be regarded as discrimina tion ort the grounds of marital status.
All five Acts provide that it is not unlawful to discriminate on the ground of sex in the terms on 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.
At the time of introduction of the Sex Discrimination Bill 1983, the Commonwealth Govern ment acknowledged complexities and problems in the areas of superannuation and insurance.12 In September 1984 the then Attorney-General, Senator Evans, requested the Human Rights Com mission to report on the exemptions in the Act relating to superannuation and provident funds or schemes, and insurance. The Commission's report on superannuation, issued in October 1986, recommended the repeal of section 41(1) of the Act by regulation made under section 41(2) of the Act.13 The Government is considering this report.
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Sex Discrimination Legislation in Australia
Accommodation
Exemptions apply in all Acts to the provision of accommodation when the person providing the accommodation (or a near relative) resides on the premises and the accommodation is provid ed for no more than three other persons (Commonwealth and Western Australian Acts) or for no more than six persons (New South Wales, South Australian and Victorian Acts). Exemptions also apply to the provision of accommodation by non-profit religious and charitable organisa tions, and in NSW to the provision of accommodation for the aged. In Victoria exemptions apply to premises let by a public statutory authority or body corporate for housing for 'lone persons or childless couples' for which financial assistance is received from the Commonwealth or Vic torian Governments. Also in Victoria a person with a child may be refused accommodation 1f the design or location is inappropriate or unsuitable for a child.
Accommodation provided for students of one sex only is specifically exempted in the Com monwealth, Western Australian and South Australian Acts.
In 1986 publicity was given to a case in which the NSW Anti-Discrimination Board awarded damages against a man who refused Jo let a home unit to an unmarried couple. Followir:,g this case, Senator Harradine gave notice of motion of an amendment to the Sex Discrimination (Con sequential Amendments) Bill 1986 to provide an exemption for any act based on genuinely held conscientious beliefs.
Advertising, application forms
Advertisements which indicate an intention to discriminate on the ground of sex or marital sta tus are proscribed by all five Acts. Specific penalties for placing or publishing such advertise ments are set by the Commonwealth, ($1000 or $5000 for a body corporate), South Australian ($1000) New South Wales ($1000) and Victorian Acts (two penalty units - $200). The Sex Dis crimination Commissioner noted in her 1985-86 Annual Report that she receives many submis sions from people offended by sexist advertising, particularly in newspapers and magazines. The Sex Discrimination Act does not appear to provide a clear answer to this problem.
The requiring of information on application forms for use in a discriminatory way is specifical ly forbidden by the Commonwealth and Western Australian Acts.
Temporary exemptions
All Acts provide for the granting of temporary exemptions. The Commonwealth Act provides for the granting of exemptions by the Human Rights and Equal Opportunity Commission for a peri od of up to five years, with the possibility of a further exemption for a period of up to five years. These are notified in the Commonwealth Gazette and have been granted, inter alia, for single sex primary school sport and for women only audiences before Aboriginal women dancers.
The New South Wales and Western Australian Acts also provide for the granting of temporary exemptions and further exemptions of up to five years. The Victorian and South Australian Acts provide for exemptions and further exemptions of up to three years. The State exemptions are granted by the Equal Opportunity Board of Victoria, the Equal Opportunity Tribunals of South Australia and Western Australia or by the Minister on the recommendation of the Anti Discrimination Board in New South Wales.
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Sex Discrimination Legislation in Australia
Combat Duties
The Commonwealth Sex Discrimination Act 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.14 No similar exemption or reference appears in the State Acts as this is an area of Fed eral jurisdiction. In ratifying the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, Australia made a reservation reflecting the present Defence Force practice of excluding women from combat and combat-related positions.
Regulations under the Sex Discrimination Act define 'combat' and 'combat-related' duties to include direct participation in acts of violence against an adversary in time of war as well as duties in support of, or in close proximity to, a person performing combat duties. Also included in the definition of these duties are positions which must be filled by those who have had ex perience in, or training for, warlike operations and the reserve which must be maintained for casualty replacement, relief from arduous duty and the career development of combat personnel.
However, the Government undertook to open more positions in the Defence Force to women, consistent with maintaining combat preparedness, and in August 1984 the then Minister for Defence, Mr Scholes, the Minister Assisting the Prime Minister on the Status of Women, Sena tor Ryan, and the then Attorney-General, Senator Gareth Evans, announced the opening of
17 000 positions within the Defence Force to women on the basis of merit in competition with men.15
Pregnancy
Article 11, paragraph 2 of the United Nations Convention on the Elimination of All Forms of Dis crimination Against Women states:
In order to prevent discrimination against women on the grounds of mar riage or maternity and to ensure their effective right to work, States Par-ties shall take appropriate measures: ·
(a) to prohibit, subject to the imposition of sanctions, dismissal on the-grounds of pregnancy or of maternity leave and dis crimination 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 so cial services to enable parents to combine family obliga
tions with work responsibilities and participation in public life, in particular through promoting the establishment and developmer,t of a network of child-care facilities; and (d) to provide special protection to women during pregnancy in
types of work proved to be harmful to them.
In ratifying the Convention, ~ustralia entered a reservation on Article 11(2)(b) concerning paid maternity leave.
Pregnancy is a ground for unlawful discrimination under the Commonwealth, South Australian and Western Australian Acts. The South.Australian Sex Discrimination Act, 1975 did not specify pregnancy as a ground but in October 1977, 16 the SA Sex Discrimination Board ruled that preg nancy was a female characteristic within the meaning of sub-section 16(2) which concerned
22
Sex Discrimination Legislation in Australia
indirect discrimination:
A person discriminates against another on the ground of his sex or mari· tal 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 un lawful 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.17 The ground of pregnancy was included in the South Australian Equal Opportunity Act, 1984.
However the SA Act provides an exemption if the discrimination is based on the fact that the woman is not, or would not be, able to perform the work adequately without danger to herself or the unborn child, or respond adequately to situations of emergency that should reasonably be anticipated in connection with the employment, where no other reasonably appropriate posi tion in the same employment could be offered to her without encountering these problems.
In terms of the NSWAnti-Discrimination Act, discrimination on the ground of pregnancy or possible pregnancy is a form of direct or indirect sex discrimination. However, under the NSW Act it is not unlawful to discriminate in employment against a woman on the ground of her sex if at the date of application or interview for a position the woman is pregnant. A woman who was pregnant at the time of interview or application for employment may be lawfully dismissed unless she did not know and could not reasonably be expected to have known that she was pregnant.
Pregnancy is not specified as a ground for unlawful discrimination in the Victorian Equal Op portunity Act 1984. Discrimination on this ground is considered implicit sex discrimination wi thin the definition of a characteristic pertaining to persons of a certain status. However, the position regarding discrimination if a woman is pregnant at the time of interview or application for a job is unclear.
All State Acts, ~swell as the Commonwealth Act, provide that the rights and privileges grant ed to women in connection with pregnancy or childbirth are not to be regarded as discrimina tion against other employees.
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 at the discretion of the President of the Anti-Discrimination Board). The Victorian and Western Australian Acts require the written complaint within 12 months. However, the Equal Opportunity (Amendment) Act 1985 (Vic.) provides that in Victoria the Commissioner may, if satisfied that there is good cause, extend the time for lodging of a complaint, whether or not the time has expired. The Commonwealth Act provides that the Commissioner may decide not to inquire or continue to inquire into an act if a period of more than 12 months has elapsed since the act.
The Commonwealth, Western Australian and NSW Acts make provision for representative com plaints, for example by a trade union on behalf of members, and for the joining of parties. The Victorian Act provides for the joining of two or more parties.
The requirement of a written complaint, and the prospect of conducting a single action, are
23
Sex Discrimination Legislation in Australia
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.
Vicarious liability
Under the Commonwealth, Victorian, South Australian and Western Australian Acts, a person (or employer) is liable for unlawful acts done by employees or agents unless it is established that the person took all reasonable steps to prevent the unlawful acts. The NSW Act makes prin cipals or employers liable for acts of their agents or employees unless they 'did not, either be fore or after the doing of the act, authorise [the doing of the act), either expressly or by implication'.
In the case of sexual harassment different approaches are taken to vicarious liability. The Victorian Act makes it unlawful for employee to be harassed with sexual advances or sugges tions or innuendo in the course of employment. The South Australian Act, however, states that a person is not vicariously liable for an act of sexual harassment committed by an agent or em ployee, 'unless he instructed, authorised or connived at that act'.
Sexual harassment
The Commonwealth Act outlaws sexual harassment in the areas of employment and education. The Western Australian Act also prohibits sexual harassment relating to th9 provision or control of accommodation, and the Victorian and South Australian Acts make sexual harassment ille gal in the areas of employment, education and the provision of goods, services and accommo dation. Some differences exist in the definitions of sexual harassment but the common factors are the unwelcome nature of the action and the implicit disadvantage in refusing or objecting to the advance or harassment.
The New South Wales Anti-Discrimi;·,ation Act does not deal specifically with sexual harass ment, although discrimination on the grounds of both sex and homosexuality are proscribed. The Equal Opportunity Tribunal in NSW has held that sex harassment could constitute discrimi nation on the ground of sex.
Language
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 Commonwealth Sex l;)iscrimination Act and the Western Australian Equal Opportu nity Act are phrased in gender neutral terms. The Victorian Equal Opportunity Act was·amend ed in 1985 to remove gender specific language. Thus the 'Chairman' of the Equal Opportunity Board became the 'President' of the Equal Opportunity Board.
The NSW Anti-Discrimination Act and amendments to 1982 were phrased in masculine terms, but subsequent amendments have used gender neutral terms. Some redrafting is necessary to overcome the necessity for explanatory sub-sections such as 31(5): ·
24
Sub-sections (1), (2) and (3) apply to discrimination against a man on the ground of his sex in the same way as they apply to discrimination against a woman on the ground of her sex as if a reference therein-(a) to a man were a reference to a woman; and
Sex Discrimination Legislation in Australia
(b) to a woman were a reference to a man.
Operation of the Acts
As can be seen, although the basic objectives of Federal and State legislation on sex discrimi nation and equal employment opportunity are similar, there are numerous differences in the provisions. The co-location of, and co-operation between, Human Rights and Equal Opportuni ty Commission offices and those of the State Commissions and Boards, will help to minimise areas of confusion, and assist clients in deciding under which legislation to bring a complaint.
In the area of equal employment opportunity there are areas of overlap between the Affirma tive Action (Equal Employment Opportunity for Women) Act (Cth) and State legislation. Higher education institutions, for example, were already covered by the Anti-Discrimination Act (NSW) and the Equal Opportunity Act (WA) before the 1986 Commonwealth Act came into operation. Under the Commonwealth legislation these institutions are to report in October 1987, but in NSW, at least, equal employment opportunity programs had already been developed to the perhaps more demanding requirements of the State legislation. It is not expected that the October reports will show any reduction in these programs. However, discussions have taken place between the Director of Affirmative Action and the Directors 'of Equal Opportunity iry Public Employment in both New South Wales and Western Australia, and co-operative arrangements are being de veloped on the different reporting styles required Linder the Commonwealth legislation.
As case law concerning the Commonwealth and State Acts builds up, it will be possible to judge more fully the effect of areas of overlap and the overall effectiveness of the legislation in combating sex discrimination and providing for more equal opportunities for women in em ployment and other areas of public life.
25
Sex Discrimination Legislation in Australia
References
1. National Committee on Discrimination in Employment and Occupation, Tenth Annual Report 1982-83, p.35. 2. National Committee on Discrimination in Employment and Occupation, Twelfth Annual Report 1984-85. 3. Senate, Hansard, Second Reading Speech, 2 June 1983, p.1189. 4. Sex Discrimination (Operation of Legislation) Regulations (No.1) (No.2) and
(No.3) and Amendments. Statutory Rules 1986 Nos 130, 191, 192, 196; and 1987 Nos 4, 5, 8. 5. House of Representatives, Hansard, 28 November 1985, pp. 3909 ff. 6. Hon. D.A. Dunstan (Premier and Treasurer) Second Reading Speech Sex
Discrimination Bill, 1975, Hansard, House of Assembly (S.A.) p.3296. 7. As at 1 May 1987.
8. Parliament of Victoria Parliamentary Debates, Second Reading Speech, Legislative Assembly 31 May 1983, p.4704. 9. Sex Discrimination (Operation of Legislation) (No. 2) Regulations, Statutory Rules 1986 No. 192.
1 O. See William Adams, 'The judiciary and anti-discrimination law', Legal Service Bulletin, December 1986; A. Byrnes, 'The Human Rights Com mission and Inquiries under the Sex Discrimination Act 1984 (Cth): An Undistinguished Start?' Parts 1 and 2, Australian Current Law, June, July 1986; G.C. Rowe, 'Misunderstanding anti-discrimination law: the NSW Court of Appeal in Reddrop', Adelaide Law Review 10(3) September 1986. Also Reports of the NSW Anti-Discrimination Board and Equal Oppor tunites Commissions of NSW and Victoria. 11 . Department of the Prime Minister and Cabinet, Report of the Conference
on Legislative and Award Restrictions to Women's Employment, 17 Oc tober 1986, December 1986 (Foreword by R.J.L. Hawke, Prime Minister). 1 2 . Senate, Hansard, 20 October 1983, p.1893. 13. Human Rights Commission, Superannuation and Insurance and the Sex
Discrimination Act 1984, Part 1 - Superannuation, Report No.19, October 1986, p.114. 14. Sex Discrimination Regulations, Statutory Rules 1984 No. 181. 1 5. Press Release, 2 August 1984. 16. Australian, 28 October 19n. 17. Advertiser, 13 May 1983. 18. Reproduced with permission from Chris Ronalds, Affirmative Action and
Sex Discrimination: A handbook on legal righ_ts for women, 1987. Some additions have been made _from the table originally devised for Basic Paper No.3 1985.
26
Sex Discrimination Legislation in Australia
Bibliography
A Parliamentary Library Current ;Jpics Reading List will be available on sex discrimination and affirmative action (contact Cathy Madden x7217 or Paula O'Brien x6079). Preliminary reading could include:
Chris Ronalds, Affirmative Action and Sex Discrimination, A Handbook on Legal Rights for Women, 1987.
Marian Sawer (ed.), Program for Change, Affirmative Action in Australia, 1985.
Human Rights Commission, Annual Reports 1984-85, 1985-86.
Superannuation and Insurance and the Sex Discrimination Act 1984, Part 1 - Superannuation, Report No. 19, October 1986.
Anti-Discrimination Board (NSW) Annual Reports from 1978 on.
Discrimination and Legislation Vols 1 and 2, 1978.
Discrimination in Government Policies and Practices, Vols 1 and 2, 1978.
Equal Opportunity Board and the Commissioner for Equal Opportunity (Victoria) Ninth Annual Report, 1986.
Office of the Commissioner for Equal Opportunity (South Australia) Annual Reports.
Commissioner for Equal Opportunity (Western Australia) Annual Report 1985-86.
Department of Prime Minister and Cabinet, Conference on Legislative and Award Restrictions to Women's Employment, Report, December 1986. Also Conference Papers, 17 October 1986.
Legal Service Bulletin - articles on decisions, listed in the Current Topics Reading List.
27
Sex Discrimination Legislation in Australia
Appendix 1
COMPARATIVE TABLE OF SEX DISCRIMINATION ACTS18
Abbreviations:
SDA Sex Discrimination Act 1984 (Commonwealth) ADA Anti-Discrimination Act, 19n (New South Wales) EOA (SA) Equal Opportunity Act, 1984 (South Australia) EOA (Vic) Equal Opportunity Act 1984 (Victoria) EOA (WA) Equal Opportunity Act 1984 {Western Australia)
* no provision
Provision SDA ADA EOA (SA) EOA (Vic) EOA (WA)
GROUNDS Sex 5 24 29(2) 4(1) 8
Marital status 6 39 29(5) 4(1) ·g
Pregnancy 7 24{1A) 29(6) * 10
Direct 5(1),6(1),7(1) 24(1),39(1) 29{2){a)(c) 17 8(1),9(1),1
discrimination 29(5)(a){c) 0(1)
29(6)(a)(c)
Indirect 5(2),6(2), 24(3),39(3) 29(2)(b) 17(5) 8(2),9(2), 1
discrimination 7(2) 29(5)(b) 0(2)
29(6)(b)
Homosexuality * 49ZF-49ZR 5,29-50 * *
EMPLOYMENT Applicants 14(1) 25(1),40(1) 30(1) 21(1) 11(1)
Employees 14(2) 25(2),40(2) 30(2) 21(2) 11(2)
Exceptions 14(3) 25(3),40(3) 34(1) 21(4)(a) 11(3)
Commission agents 15 26,41 31 22 12
Contract workers 16 27,42 32 23 13
Partnerships 17 27A,42A 33 24 14
Qualifying bodies 18 29,44 36 26 16
Trade unions 19 28,43 35 25 15
Employment agencies 20 30,45 39 27 17
SEXUAL HARASSMENT Employment 28 * 87 20(1)(2) 24
Education 29 * 87 * 25
GENERAL EMPLOYMENT EXCEPTIONS Genuine occupation-al qualification 30 31 34(2) 21(4) 27
Employer accomm. 34 * 21(5) 32
Residential care 35 * * 33
Married couple * 46 * * 29
Number of em-ployees * 25{3){b) * 21{4){f) *
Private household 14(3) 25{3)(a) 34(1) 21(4)(a) 11(3)
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Sex Discrimination Legislation in Australia
Provision SDA ADA EOA (SA) EOA (Vic) EOA (WA)
Award of court, wages tribunal etc. 40(1),109 54(1)(2) 100 39(e)(iii) 69(1)
Religious schools 38 31A,46A * * 73
Combat duties 43 * * *
OTHER AREAS Education 21 31A,46A 37 28 18
Goods, services and facilities 22 33,47 39 29 20
Accommodation 23 34,48 40 30 21
Land 24 * 38 * *
Clubs 25 34A,48A 35 31 22
Comm. laws and programs 26 * * * *
Application forms 27 * * * 23
Access to places, v.ehicles - * 32' * * 19
OTHER UNLAWFUL ACTS Advertisements 86 51 103 59 68
Victimisation 94 50 86 18 67
Acts on behalf of others 105 52 90 35 160
Vicarious liability 106 53 91 20(b),34 161
GENERAL EXCEPTIONS Measures for equality 33 47 39(f) 31
Pregnancy and childbirth 31 35 46 17(3) 28
One sex services 32 31(2)(h) * 21(4)(e) 30
Charities 36 55 45 37 70
Religious bodies 37 56 50 38 72
Voluntary bodies 39 57 * 39(a) 71
Acts done under stat. authority 40 54 * 39(e) 69
Superannuation 41 36,49 41-44 36 34
Insurance 41(4) 37 49 39(c) 34
Sport 42 38 48 39(b) 35
Temporary ex-emptions 44 126 92 40 135
CONCILIATION PROCEDURES Written complaint 50 88 93 44(1) 83(1)
Time limit 52(2)(c) 88(3) 93(2) 44(5) 83(4)
Initial rejection 52(2) 90 95(1) 45(1) 89
Confidentiality 112 * * 165
No civil actions 111 101 61A 167.
Obtaining informa-tion and documents 54 * 94(2) 45(3) 86
Compulsory conference-attendance 55 92(2) 95(4) 45(3) 87
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Sex Discrimination Legislation in Australia
Provision SDA ADA EOA (SA) EOA (Vic) EOA (WA)
Compulsory conference-powers 56 * * 88
INTERIM DETERMINATIONS Application 53 89A 96(2) 45A 85
Powers 80 112 96(2) 45A 126
INQUIRY PROCEDURES Complaint reference 52,57,58 91,94,95 95(8) 45(5) 90,93,
107(1)
Holding inquiry 59 96 96(1) 46(1) 107
Witnesses 63 99 24(1)(b) 55 110
Party joinder 63,64 98,100 24(3) 54 109,111
Representation 65 101 24(4) 52(3) 112
Counsel assisting 68 101A 95(9) * 113
In camera 66 1018 23(4) 46(38) 121
Conciliation 73 106 27 458 118
Evidence 75 see note 25(1) 55 see note
Offence 90,91(2) see note 25(2) 57 see note
Procedures n 108 23(2) 51 120
Representative complaints 69-72 102-105 * 44(4) 114-117
Dismissal 78,80(1)(a) 111,113(8) 96(1)(d) 46(2)(d) 125,127(a)
Determination 80 113(b) 96(1) 46(2) 127
Appeal 82 118 98 49(4) 134
Legal aid 83,84 * * * *
Note: The Royal Commissions Act 1923 (NSW) and the Royal Commissions Act 1968 (WA) have relevant provisions concerning evidence and offence.
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Sex Discrimination Legislation in Australia
Appendix 2
Major Commonwealth and State legislation in the areas of sex discrimination and equal oppor tunity for women.
Commonwealth
Sex Discrimination Act 1984 Human Rights and Equal Opportunity Commission Act 1986 Affirmative Action (Equal Employment Opportunity tor Women) Act 1986 Public Service Act 1922
Equal Employment Opportunity (Commonwealth Authorities) Act 1987
New South Wales
Anti-Discrimination Act, 19n
Victoria
Equal Opportunity Act 1984 Public Service Act 1974
South Australia
Equal Opportunity Act, 1984 Government Management and Employment Act, 1985
Western Australia
Equal Opportunity Act 1984
19 May 1987
31
Basic Papers recently published by the Legislative Research Service
1985-86
No.1 Anderson, 0., Equipment of the Australian Defence Forces: an inventory and capabilities.
No.2 Martin, B., The Contadora Process and the Crisis in Central America, 1983-1986.
No.3 Brown, G., An Introduction to the Terminology, Technology and Concepts of Nuclear Warfare.
1986-87
No.1 Wildermuth, C., and D. Daniels, Commonwealth Social Security Cash Benefits Since Federation: a chronology of major events to September 1986.
No.2 Newman, G. and A. Kopras, Federal Elections 1984.
No.3 Newman, G., Federal Election Results 1949-1984.
No.4 O'Sullivan, E. , Telephone Tapping.
No.5 Whittington, S. and D. Woolner, The Evolution of a Defence Strategy for Australia (first in a series of four).
No.6 Woolner, 0., Defence Capabilities - The Review's Recommendations and Subsequent Action (second in a series of four).
No.7 Woolner, D.,The Uses and Limitations of Strategic Analysis in Defence Planning, (third in a series of four).
No.a Woolner, D., The Impact of. Resourqe Pressure on Defence Planning, (fourth in a series of four).
If you wish to receive copies of any of these publications, please contact the Publications Officer, Depart ment of the Parliamentary Library, Kurrajong Annexe, Barton, ACT 2600, or phone (062) 72 7551 .
