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The Sex Discrimination Act 1984



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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

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THE SEX DISCRIMINATION ACT 1984

C. Larmour

16 April 1984 Education and Welfare Group

LEGISLATIVE RESEARCH SERVICE

DEPARTMENT OF THE PARLIAMENTARY LIBRARY

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THE SEX DISCRIMINATION ACT 1984

Objectives of the Sex Discrimination Act

To give effect to certain provisions of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.

To eliminate, so far as is possible, discrimination on the grounds of sex, marital status and pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administratip n of Commonwealth laws and programs.

To eliminate, as far as isi possible, sexual harassment in the workplace and in educational institutions,

To promote recognition and acceptance within the community of the principle of the equality of men and women.

Basic Provisions of the Act

With certain exemptions, discrimination on the grounds of sex, marital status or pregnancy is unlawful

against . employees or applicants for employment

. commission agents (or applicants)

. contract workers

students or applicants for admission as students

by . qualifying or registration bodies

employment agencies

clubs and

in partnerships

union membership

• the provision of goods, services and facilities

• the provision of accommodation

• the disposal of land (other than by gift or will)

• the administration of Commonwealth laws and programs

advertisements or application forms.

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THE SEX DISCRIMINATION ACT 1984

Sexual harassment is unlawful in employment and education. To protect people against damage from unjustified or malicious complaints, it is illegal to publicise or divulge particulars of a complaint until the Commissioner or Commission has commenced to hold an inquiry into the complaint.

Definitions of discrimination

The definitions of discrimination on the ground of sex, marital status and pregnancy include both direct and indirect discrimination. Indirect discrimination can occur when stereotyped images influence the way a person is treated. (For example, a women who is not appointed to a position because 'Women haveirigh absentee rates' is discriminated against if her own eMP-FoyMent— attendance record is satisfactory).

Discrimination on the ground. sex or marital status is defined as having occurred

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

(2) If the aggrieved person is required t requirement or condition with which higher proportion of persons of the different marital status are able to not reasonable, having regard to the the case, and with which the aggrieved or is not able to comply.

o comply with a a substantially opposite sex or comply, which is circumstances of

person does not

Discrimination on the ground of pregnancy is defined as having occurred

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

(2) if the aggrieved person is required requirement or condition with which higher proportion of persons who are n( or are able to comply, which is not regard to the circumstances of the cas the aggrieved person does not or I comply.

to comply with a a substantially t pregnant comply reasonable having e, and with which

s not able to

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THE SEX DISCRIMINATION ACT 1984

Sexual harassment is defined as an unwelcome sexual advance, or an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature in relation to a person, where that person is disadvantaged or has reason to believe that rejecting or refusing the advance or request or taking objection to the conduct would disadvantage that person in any way in connection with employment or work, or possible employment or work, or in connection with the person's studies or application for admission to an educational institution as a student.

Exemptions

A wide range of exemptions is provided in the legislation. These include:

• where particular physical attributes of one sex are necessary to the duties of a position or for a dramatic or entertainment role

• where duties involve fitting clothing

• where duties include searching persons

• where duties involve entering a lavatory

• where necessary sanitation or sleeping facilities are not available and it is not reasonable to expect them to be provided

• where duties involve entering areas normally used by persons of one sex in a state of undress

• where it is a genuine occupational qualification to be a person of one sex

• where services can be provided to members of one sex only

• where membership of a club is available only to persons of the opposite sex, or if it is not practicable for a benefit to be used simultaneously or to the same extent by both men and women

• where accommodation is provided for no more than 3 other persons or for near relatives

• where accommodation is provided by a religious or charitable body or non-profit organisation

• where accommodation is provided for students of one sex

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THE SEX DISCRIMINATION ACT 1984

• in a sporting activity where strength, stamina or physique of competitors over 12 years of age is relevant

• where the position involves combat duties or combat-related duties

where the terms of an annuity, life assurance policy or other insurance policy are based on reliable actuarial or statistical data or other relevant factors.

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Exempted also from the discrimination provisions are

• the rights or privileges granted in connection_ with pregnancy or childbirth

• measures intended to achieve equality

• the provision of different standards of accommodation to different employees

• single-sex schools

• charities and voluntary bodies

• religious orders and educational institutions conducted by a religious organisation

• the Social Security Act 1947; the Compensation (Commonwealth Government Employees) 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.

Exemptions applying for a limited period relate to

• acts in compliance with Commonwealth or State Acts, laws of a Territory, or regulations, determinations or decisions made under these (2 years)

• acts in compliance with a decision of the Commission, an order of a court or an Arbitration Commission or industrial tribunal award (2 years)

• superannuation and insurance terms and conditions (2 years, or at least 12 months after the making of a regulation, whichever is the later)

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THE SEX DISCRIMINATION ACT 1984

The Human Rights Commission may, specified periods not exceeding specified periods not exceeding 5

on application, grant exemptions for 5 years, and further exemptions for years.

Complaints and Inquiries

The Human Rights Commission and the Sex Discrimination Commissioner are responsible for inquiries into complaints of discrimination on the grounds of sex, mai'.. ital status or pregnancy, and complaints of sexual harassment.

In States which have State legislation prohibitin g sex discrimination (at present New outn Wales, boutn Australia and Victoria) a person may choose whether to institute proceedings under the Commonwealth legislation through the Human Rights Commission, or under the State

legislation through the N.S.W. Equal Opportunity Tribunal, the South Australian Sex Discrimination Board or the Victorian Equal Opportunity Board. However a

person may not take action under both State and Commonwealth law for the one offence. Similarly a person may not be prosecuted or convicted under both State and Commonwealth law for the same act or omission.

Complaints must be in writing and may be lodged by a person, group or trade union.

The Commissioner may decide not to inquire into an act if satisfied the act is not unlawful, is of the opinion that the aggrieved person or persons does not or do not desire the inquiry to continue, if more than 12 months has elapsed since the act or if of the opinion that the complaint is frivolous, vexatious or lacking in substance.

If the Commissioner decides not to inquire, or continue to inquire, into a complaint, the complainant is to be informed in writing of that decision and the reasons for it and of the complainant's right to serve notice in writing within 21 days requiring the Commissioner to refer the complaint to the Commission.

The Commissioner may obtain information from such persons and make such inquiries as thought fit, may require the furnishing of relevant information and

documents and may require attendance at a compulsory conference.

In inquiries by the Commissioner it is not a reasonable excuse for failure to furnish information or to produce documents that this evidence might incriminate the

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THE SEX DISCRIMINATION ACT 1984

person. However, in an inquiry by the Commission, it is a reasonable excuse for failure to answer or to produce a document that this might incriminate the person.

Evidence of the furnishing of information or the

production of the document to the Commissioner is not admissable evidence against the person in any civil or criminal proceeding before a court.

When the subject matter of two or more complaints is substantially the same, a single inquiry may be held.

Employers are liable for the actions of their employees or agents unless it is established that the employer took a17 reasonable steps to prevent such action.

• If necessary, the Commission or complainant may institute proceedings in the Federal Court to enforce a determination of the Commission.

• The Commission disclose private of duties.

or staff of' the Commission may not

information except in the performance

April 1984