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Friday, 16 December 1983
Page: 4008

Senator HARRADINE(3.58) — We come to the Schedule of the Bill, the United Nations Convention on the Elimination of All Forms of Discrimination against Women. I ask that the response of the Attorney-General (Senator Gareth Evans) to me, which included certain interpretations placed by the Government on the Convention, be incorporated in Hansard.

Leave granted.

The document read as follows-

M83/11639:SB Senator Brian Harradine,Senator for TasmaniaParliament House, Canberra, A.C.T.

Dear Senator Harradine,

During the Second Reading Debates on the Sex Discrimination Bill 1983 you expressed your intention to seek further details of the Government's interpretation of various Articles of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.

You will appreciate, as the Bill deals with discrimination in certain specified areas, a number of Articles of the Convention will not be relevant. Article 6 ( exploitation of prostitution), Article 9 (nationality rights), Article 16 ( rights relating to marriage) and Parts V and VI of the Convention, for example, fall outside the scope of this particular legislation. In addition to these a number of aspects of other Articles will also not be relevant.

In assessing the relationship between the Convention and the Bill a further factor to bear in mind is that the Convention deals with two themes: measures to eliminate discrimination by ensuring equality of rights, and measures to prevent discrimination. It is the first of these themes with which Part II of the Sex Discrimination Bill is concerned.

In the light of these matters I enclose a copy of a note my Department has prepared on the interpretation of relevant Articles of the Convention. I understand the Prime Minister wrote to you some time ago in regard to some specific matters of interpretation you raised concerning Articles of the Convention. The attached note is fairly general and if after reading it you see any specific problems you may wish to raise these with me.

During the continuation of your speech on the Sex Discrimination Bill last Friday you also sought an assurance as to the position of pharmacists who did not wish to supply certain drugs, such as abortifacients, to customers. As Senator Ryan indicated at the time, if a pharmacist refused to stock these drugs that pharmacist would not commit an act of discrimination under the legislation. The essence of discrimination in clause 5 of the Bill is less favourable treatment on the ground of the sex of a person. A pharmacist who does not stock particular goods is not in a position to supply them to any person, so the sex, or indeed marital status, of the customer is irrelevant. A further consideration is that the refusal to stock the goods is because of the pharmacist's concern about the nature of the goods, not about the sex of any potential customer.

Yours faithfully,GARETH EVANS


Relationship to provisions of the Sex Discrimination Bill

Article 1 Definition of ''discrimination against women''.

Article 2 General obligations to ensure elimination of discrimination against women

The Government is committed to the elimination of discrimination against women and has chosen the Sex Discrimination Bill as an appropriate means of implementing obligations in Article 2. A number of the requirements of this Article can be satisfied by non-legislative means, such as through the conciliation and community education functions vested in the Human Rights Commission under the Sex Discrimination legislation.

Article 3 Article 3 is complementary to Article 2. Whereas Article 2 requires measures to eliminate discrimination, Article 3 requires measures to ensure equality. Article 3 is in general terms and does not oblige State parties to any particular course of action. One of the objectives which the Human Rights Commission has under its own Act and under the Sex Discrimination legislation is to guarantee the human rights and fundamental freedoms of Australians without distinctions such as sex.

Article 4 Article 4 allows States Parties to adopt temporary special measures to accelerate the achievement of equality between men and women: however these measures must be discontinued when their objectives have been achieved. Article 4.2 allows State Parties to adopt measures aimed at protecting maternity. These matters are reflected in the exemptions provided in the Sex Discrimination Bill.

Article 5 Article 5 requires appropriate measures-

(a) to modify social and cultural patterns of conduct of men and women, with a view to achieving elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

This obligation is concerned with measures to eliminate prejudices and practices based on inferiority or superiority of either sex or on stereotyped roles of men and women. Stereotyping occurs where a particular role which is quite capable of being performed by either sex, is regarded as the preserve of one sex only, that is, without reference to the capabilities of individual members of that sex. The Sex Discrimination Bill is concerned with equality of opportunity. Neither the Convention nor the Bill requires that a man or woman is to be compelled to choose any particular role or to avail themselves of this equality of opportunity.

(b) to ensure family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

This obligation is not concerned with the actions of individuals and how they instruct their families. The Government interprets this obligation consistently with Article 23 of the International Convenant on Civil and Political Rights which recognizes that the family is the natural and fundamental group unit of society and is entitled to protection. Part II of the Sex Discrimination Bill is not inconsistent with the principle in Article 23.

Articles 7 and 8 These Articles are concerned with equal participation in public and political life and are self-explanatory.

Article 10 Article 10 contains a number of specific requirements aimed at equality of opportunity and access to education and the elimination of discrimination. This will enable men and women to compete on the basis of skills and merit without regard to their sex. Similarly the Sex Discrimination Bill contains provisions aimed at ensuring equality of access to education and training. The Article does not require the abolition of single-sex schools but requires opportunities to be made available for equivalent standards of education, equivalent courses of study and equal access to higher education. The Article is also concerned with the quality of access to specific educational information on matters of health but not with the content of that information.

Article 11 Article 11 contains a number of specific requirements aimed at equality of rights in employment and employment-related areas. Sub-Article 11.1 is concerned with equal enjoyment of the rights listed therein and does not create separate rights for women. In this regard two matters should be noted: first, the reservation lodged on ratification in regard to employment of women in the Defence Force in combat and combat-related duties and secondly, the recognition in sub-Article 11.3 of the existence of certain ''protective legislation'' which may be applicable to matters listed in the Article.

The Sex Discrimination Bill contains provisions aimed at the elimination of discrimination in matters relating to work.

Sub-Article 11.2 provides that certain measures should be taken in order to prevent discrimination against women on the ground of marriage or maternity and to ensure their effective right to work. Regard should also be had to the reservation lodged on ratification in respect of paid maternity leave. Paragraph 11.2 (a), prohibition of dismissal on the ground of pregnancy or maternity leave and discrimination in dismissals on the basis of marital status, is the only part of the sub-Article of direct relevance to the Sex Discrimination Bill.

Article 12 Sub-Article 12.1 deals with equality of access to health care services. These are matters falling within the prohibition in the Sex Discrimination Bill on discrimination in the provision of services and facilities. The sub-Article is concerned with the provision of access to services and does not impose an obligation to provide services that are not already available.

Article 13 Article 13 is concerned with equality in economic and social life. In this regard the Sex Discrimination Bill covers discrimination in regard to the provision of services, Article 13 (b) (the right to bank loans, mortgages and other forms of financial credit), and in regard to clubs, Article 13 (c) (the right to participate in recreational activities, sports and all aspects of cultural life). In regard to Article 13 (c), this obligation is to give women the same freedom of choice as regards what sporting and recreational activities they may wish to pursue as men. It does not require that all such sporting activities be mixed.

Article 14 Article 14 is concerned with the special problems of rural women. The rights enumerated in sub-Article 14 (2) are interpreted as being concerned with the equality of rural women and rural men.

Article 15 Article 15 is concerned with the question of equality of men and women before the law. This question is of indirect relevance to the Sex Discrimination Bill in that men and women are treated equally in all stages of procedure before the Sex Discrimination Commissioner and the Commission. Further , the Australian legal system does not treat women as second class citizens or give them a lesser right than men in relation to the capacity to maintain legal proceedings or enter into contractual or other legal relationships.

Senator HARRADINE —I thank the Senate. It is not possible in the short time available to deal with all these matters. I believe it is very important to see the interpretations that the Government places on the various provisions and articles of the Convention which this Bill seeks to implement. May I seek leave to continue my remarks, Mr Chairman?

The CHAIRMAN —No. The debate is terminated. The time allocated for the consideration of the remainder of the Bill has expired.

Remainder of Bill agreed to.

Bill reported with an amendment and a resolution; report adopted.