CHAPTER 4
Scope of the Act
4.1
Much of the evidence the committee received suggested that a significant
deficiency of the Act lies in its limited scope. A particularly strong theme
was that the Act should provide broader protection from discrimination on the grounds
of family responsibilities. Some organisations advocated the inclusion of
additional grounds of discrimination. Others went further and suggested that
the federal anti-discrimination acts should be replaced with a single national
Equality Act.
Limited Scope of the Act
4.2
Several submissions suggested that the Act should contain a broader
prohibition on discrimination rather than making discrimination unlawful in
particular spheres of public life. For example, the Human Rights Law Centre,
argued the effectiveness of the Act is undermined by it being limited to
specified spheres of activity:
The SDA prohibits narrowly defined acts of discrimination in
specified fields of activity, namely: work; accommodation; education; the
provision of goods, facilities and services; the disposal of land; the
activities of clubs; and the administration of Commonwealth laws and programs.
Discrimination which occurs outside these spheres, or which does not fall
within the SDA’s definition of direct or indirect discrimination, is not
considered unlawful.
These limitations on the scope of the SDA restrict its
effectiveness and are inconsistent with international human rights law.[1]
4.3
An officer of HREOC explained that:
In relation to coverage, the way that the Act operates is that
it does not just say it is unlawful to discriminate in anything. It says it is
unlawful to discriminate in particular areas of public life. It puts out a bit
of a patchwork of provisions to ensure that, in the relevant areas of public
life such as employment, goods and services and education, there is no
discrimination.[2]
4.4
HREOC pointed out that one practical consequence of this patchwork
approach is that independent contractors and volunteers may not be protected
from sex discrimination and sexual harassment by the Act because they may not
be able to demonstrate that they fall within the provisions protecting
employees:
For example, in relation to volunteers, currently their
protection is unclear because they need to be able to establish that they are
an employee before they are able to be protected. ...If you are attending one
afternoon a week at the school tuckshop to help out, you might have some
difficulty in convincing a court that you fall within that classic employment
relationship. We are saying that you should be entitled to protection under the
SDA just as much as ...someone who is being paid.
Likewise because independent contractors are not an employee,
they can fall outside the provisions of the Act, even though, for example, if
they are on a work site ...they might be subjected to discrimination or sexual
harassment. Because they do not have that employment relationship, they might
be left without a remedy...[3]
4.5
In addition, subsection 12(1) and section 13 limit the application of
the Act in relation to state governments and state instrumentalities. HREOC
noted that other federal discrimination legislation is not limited in this way:
...[T]here is an exclusion in relation to discrimination in
employment and sexual harassment for state governments and state
instrumentalities. That is something that is quite unique in the federal
discrimination acts. None of the other federal discrimination acts have it. We
are suggesting that that should be removed to give those employees protection
equal to that of any other employee.[4]
4.6
Finally, while section 17 of the Act prohibits discrimination occurring
in relation to partnerships, it only operates in relation to partnerships of 6
or more people. HREOC suggested this limitation was “both arbitrary and
unnecessary”[5]
and told the committee:
Companies do not have any limitation. You can be a sole trader
or a two-person company and you will still be covered. Likewise partnerships
are covered in other aspects of the Act. This limitation of numbers applies in
discrimination as to who is made a partner, or is refused benefits of a partner
and that sort of thing. In our view it just no longer has relevance and should
be removed.[6]
4.7
To provide a general remedy to the difficulties arising from gaps in
coverage under the Act, the Human Rights Law Centre argued the Act should
include a general prohibition on discrimination.[7]
Ms Rachel Ball of the centre told the committee:
The SDA should aim to eliminate all forms of discrimination.
This requires that the scope of the Act be broadened. Currently the SDA is
limited in the activities it covers and the types of conduct to which it
applies. This limits the effectiveness of the Act and allows discrimination in Australia
to go unidentified and unaddressed. ...Ways to remedy this problem would
include introducing a general prohibition on discrimination as defined in
article 1 of the Convention on the Elimination of All Forms of Discrimination
against Women.[8]
4.8
HREOC more cautiously recommended that the merits of amending the Act to
include a general prohibition against discrimination in all areas of public
life should be considered.[9]
HREOC suggested that this general prohibition would be equivalent to the
free-standing prohibition against racial discrimination, in all areas of public
life, under section 9 of the Racial Discrimination Act 1975 and that the
experience under the Racial Discrimination Act has shown that such provisions
do not impose excessive burdens on the community.[10]
HREOC also argued that:
...a blanket prohibition against discrimination in all areas of
public life could represent an important statement of principle. It would make
clear that discrimination offends against fundamental human rights in any area
of public life and should not be tolerated. ...
A blanket prohibition against discrimination in all areas of
public life would also make the SDA clearer and simpler. It would minimise the
need for complex litigation in interpreting the various provisions giving
coverage to specific areas of public life. Rather, the general prohibition
would operate largely as a ‘catch-all’ provision.[11]
4.9
HREOC further recommended that the merits of amending the Act to include
an equality before the law provision, similar to section 10 of the Racial
Discrimination Act, should be considered.[12]
Section 10 of the Racial Discrimination Act provides that if persons of a
particular race, colour or national or ethnic origin do not enjoy a right, or
enjoy a right to a more limited extent, because of a law or a provision of a
law, then, notwithstanding anything in that law, the right shall be enjoyed to
the same extent.[13]
HREOC noted that:
...the Preamble to the SDA affirms the right to equal protection
and equal benefit of the law without discrimination on the ground of sex,
marital status, pregnancy or potential pregnancy. However, the Preamble does
not give rise to enforceable legal rights or obligations. It has no application
to the discriminatory effects of statutory provisions. The current wording of
the Preamble also fails to mention family and carer responsibilities.
In the interests of ensuring complete and faithful
implementation of Australia’s international human rights obligations, HREOC
considers that the reference to equality before the law in the Preamble of the
SDA is insufficient. Rather, it may be appropriate to include the right to
equality before the law within the body of the SDA by inclusion of a similar
provision to s 10 of the RDA.[14]
4.10
The Law Council made a similar proposal that the Act be amended to
include a provision, similar to section 8 of the Human Rights Act 2004 (ACT),
providing that women and men are entitled to equality in law including
equality before the law, equality under the law, equal protection of the law
and equal enjoyment of human rights and fundamental freedoms.[15]
4.11
This inquiry is not the first to consider such proposals. The House of
Representatives Committee recommended in the Half Way to Equal report
that the Act be amended to include a general provision stating that discrimination
on the basis of sex, marital status, potential pregnancy and family
responsibilities is unlawful.[16]
The committee noted that:
The absence of a general prohibition in relation to
discrimination against women in the SDA is in direct contrast to the
Commonwealth legislation dealing with discrimination on the grounds of race. As
discrimination against an individual on the basis of race or sex should be
regarded as a contravention of a basic right, the Committee believes it is
desirable to bring the Sex Discrimination Act in line with the general prohibition
in the Racial Discrimination Act.[17]
4.12
ALRC made a similar recommendation, in Part 1 of the Equality Before
the Law report, that the Act should contain a general prohibition on
discrimination in accordance with article 1 of CEDAW.[18]
However, ALRC warned that:
...the exemptions in the SDA would limit the effectiveness of a
general prohibition of discrimination. Without their removal the prohibition
would remain only of symbolic value.[19]
4.13
The House of Representatives Committee also recommended that a provision
allowing for equal protection before the law similar to section 10 of the Racial
Discrimination Act be inserted in the Act.[20]
ALRC supported inclusion of a provision in the Act modelled on section 10 of
the Racial Discrimination Act, if exemptions in the Act were removed,
particularly those relating to states and territories and acts done under
statutory authority.[21]
Indeed ALRC went further to argue that equality before the law is ‘a limited
notion’ and that:
There is a need for a guarantee of equality with a broader
definition and a comprehensive operation unconstrained by the particular areas
of application and range of exemptions of the SDA.[22]
Coverage of access to assisted
reproductive technology, surrogacy and adoption
4.14
While many submissions supported broadening the scope of the Act, Family
Voice Australia and the Australian Christian Lobby considered that its scope
should be narrowed in relation to access to assisted reproductive technology
(such as in vitro fertilisation (IVF)), adoption and surrogacy.[23]
These organisations were concerned about the effect of the decision of the
Federal Court in McBain v State of Victoria (McBain).[24]
The court in McBain held that provisions in the Infertility Treatment
Act 1995 (Vic) which precluded the provision of fertility
treatment to single women were inconsistent with the Act because those
provisions discriminated on the basis of marital status. Under section 109 of
the Constitution, the Victorian provisions were of no effect to the extent of
that inconsistency. As a result, the fertility services had to be made
available to women regardless of their marital status.[25]
4.15
Mr Benjamin Williams of the Australian Christian Lobby, told the
committee:
...at this point in time, the SDA is blocking the states and
territories from placing restrictions on access to IVF services. We think that
is a completely illegitimate block and should be removed, thereby allowing the
states themselves to decide on their own parameters for allowing access to IVF
and other reproductive services.[26]
4.16
Mr James Wallace of the Australian Christian Lobby argued firstly, that
the Act was not intended to have this effect and secondly, that its operation
in relation to this issue was an illegitimate interference by the Commonwealth
government in an area that was properly the responsibility of the states and
territories.[27]
Finally, the Lobby submitted that:
...the rights of children are paramount in any discussion of
reproductive technology. Evidence clearly supports the proposition that
children do best when raised by both a mother and a father. Using the Sex
Discrimination Act 1984 to challenge this fundamental principle is a social
engineering experiment that deliberately fails to give children the most basic
building blocks of development....
By granting IVF access to single women and lesbians, the Sex
Discrimination Act 1984 has been used as the route to subvert the natural
consequences of lifestyle choices or circumstances. ...The problem of
discrimination remains if the “right” of adults to have children are placed
before the rights of children to have a mother and a father.[28]
4.17
The former Federal Government introduced the Sex Discrimination
Amendment Bill (No.1) 2000 in the House Representatives in August 2000 and this
committee reported on the provisions of the bill in February 2001.[29]
This bill would have amended the Act to allow states and territories to
restrict access to fertility services. However, the bill was not passed by the
Parliament. The Australian Christian Lobby expressed general agreement with the
bill but thought it may need to be broadened to cover alternative parenting
arrangements such as adoption by homosexual couples.[30]
4.18
The Equal Opportunity Commission and the Office of Women (SA), considering
this issue from a different perspective, suggested that discrimination relating
to accessing fertility treatment is an emerging issue:
In South Australia, there are an increasing number of enquiries
from people who feel they are being treated unfairly because they are having
treatment for fertility problems. This is an emerging issue as the average age
of first time mothers increases. Unfair treatment because of fertility
treatment or a lack of flexibility in the workplace to allow women to have
treatment does not neatly fall within the matters covered by discrimination
law. This is because the person is not disabled, nor is it necessarily
discrimination on the grounds of pregnancy or potential pregnancy.[31]
Limited protection against discrimination on the grounds of family
responsibilities
Incidence of discrimination
4.19
Several submissions provided evidence that discrimination on the grounds
of family responsibilities remains prevalent. For example, Legal Aid Queensland
stated that the majority of advice and representation they provide to clients
relates to:
...discrimination on the grounds of pregnancy, family
responsibilities or returning to work from maternity leave. We provide advice
to women who have been discriminated against on this basis every week.[32]
4.20
Similarly, the Equal Opportunity Commission and the Office of Women (SA)
advised the committee that:
In 2007, the Commission received 35 enquiries where people felt
they had been discriminated against because of their caring responsibilities.
In the most serious examples, both women and men claimed that they had been
fired for requesting flexible work arrangements to care for children with
severe disabilities.[33]
4.21
However, Ms Annemarie Ashton of Carers Australia suggested that
discrimination on the grounds of family responsibilities is more commonly indirect
discrimination:
...evidence suggests to us that people are more likely to
experience indirect discrimination from the effect of workplace policies and
practices, such as being looked over for promotion or being ineligible for
benefits or training due to having a status of part-time.[34]
4.22
Dads on the Air submitted that men face particular discrimination on the
grounds of family responsibilities:
Men are still expected to put in long hours and not take time
off for family responsibilities. Women may sometimes find it hard to find an
employer that gives them the job flexibility to enable them to care for their
young children, but most men find it almost impossible.[35]
4.23
The Sex Discrimination Commissioner explained the importance of
addressing discrimination on the grounds of family responsibilities:
[T]here remain major barriers to supporting paid workers, both
women and men, to balance their family and carer responsibilities with their
paid working lives. Right now women continue to perform the bulk of unpaid work,
yet enabling the equal sharing between women and men of responsibilities such
as caring for our children, elderly parents and loved ones with a disability,
is really at the heart of gender equality.
This balancing of paid and unpaid work is a problem that must be
solved, both for the health of our working population and for business and the
strength of our economy, if we are to ensure a sustainable work force into the
future.[36]
Broader protection against
discrimination on the grounds of family responsibilities
4.24
The Act currently provides that it is unlawful for an employee to
directly discriminate on the grounds of family responsibilities by dismissing
an employee.[37]
The Sex Discrimination Commissioner explained that:
...the Act is limited in terms of the protection from
discrimination on the grounds of family responsibilities. It is limited in two
ways: it talks only about direct discrimination, and we know that most
discrimination that occurs in this area is the result of acts or requirements
which, on their face, are neutral, because they equate everyone equally, but
they have a disproportionate impact on people with family responsibilities.
That is the first limitation...
The second is that you can bring an action under the family
responsibilities provision only if you are dismissed or sacked, rather than
throughout the duration of your employment.[38]
4.25
The Sex Discrimination Commissioner further explained that, while women
are sometimes able to pursue indirect sex discrimination claims, as an
alternative to claims of discrimination on the grounds of family
responsibilities, this option is not available to men:
Women can get around that limitation because they can bring an
indirect sex discrimination complaint. Judicial notice is taken of the fact
that women have caring responsibilities for children—not so much that they have
responsibilities for older people, but that they have caring responsibilities
for children. No judicial notice is taken of men have caring responsibilities
for young children. The limitations in the family responsibilities provision,
as are currently set out, really have a greater negative impact on men than
they do on women because women can bring the treatment under indirect sex
discrimination.[39]
4.26
The Law Council submitted that the limited operation of the family
responsibilities ground of discrimination under the Act is “one of the most
significant deficiencies of the legislation.”[40]
Furthermore, the Law Council argued that formulating claims of family
responsibilities discrimination as indirect sex discrimination claims is
problematic:
Claims of indirect sex discrimination by reason of family
responsibilities discrimination under section 5(2) of the SD Act necessarily
require the court to make a finding, or accept on the basis of ‘judicial
notice’, that women are the primary carers of infants and children.
While this may historically have been accurate, and may remain
the case for a large number of women, it perpetuates the stereotype that only
or primarily women have or ought to have the care and responsibility for
infants and children.[41]
4.27
Submissions to the committee overwhelmingly recommended that subsection
14(3A) of the Act should prohibit discrimination on the grounds of family
responsibilities that falls short of dismissal. For example, the Equal
Opportunity Commission and the Office of Women (SA) recommended strengthening
the provisions under the Act to provide greater protection in circumstances:
...where the person is not sacked but is effectively demoted,
demeaned or treated unfairly because of their caring responsibilities.[42]
4.28
HREOC similarly recommended amending the Act as soon as possible to
ensure that all forms of discrimination on the grounds of family and carer
responsibilities are unlawful. In particular, HREOC advocated amendments to:
-
make unlawful discriminatory treatment in all aspects
of work, rather than restricting protection to discriminatory treatment in
employment that results in dismissal.
-
make unlawful indirect family and carer
responsibilities discrimination.[43]
4.29
The Anti-Discrimination Commissioner of Tasmania went further and
recommended extending protection from discrimination on this ground beyond
employment to areas such as the provision of services and rental accommodation.[44]
4.30
Ms Ashton of Carers Australia argued that a further reason the Act does
not provide adequate protection from discrimination to carers is the narrow
definition of ‘family responsibilities’ in section 4A:
There are several key shortfalls in the current Sex
Discrimination Act that do not take into account the totality of caring
relationships. Caring relationships cannot depend upon narrow definitions of
‘near relative’. ... More than ever, we find people in the community who do not
have any family at all around them and they rely on the support of close
friends or neighbours for care when they need it.
...Carers Australia contends that it is the provision of care
that matters, not the type of relationship in which that care takes place.[45]
4.31
The Women Lawyers Association of New South Wales and Australian Women
Lawyers (Australian Women Lawyers) also supported expanding protection under
the Act by replacing references in the Act to ‘family responsibilities’ with
‘responsibilities as a carer’ and including other relationships, particularly
step relatives, within the definition of ‘immediate family’ in subsection
4A(2).[46]
4.32
There was not however universal support for expanding the scope of the
family responsibilities provisions in the Act. The Australian Chamber of
Commerce and Industry (ACCI) noted that the family responsibility provisions in
the Act are not the only protection available to employees. ACCI submitted that
state and territory anti-discrimination legislation, the Workplace Relations
Act 1996 and entitlements employees have through workplace agreements all
play a role in assisting employees to balance work and family responsibilities.[47]
Furthermore, in light of the protection against discrimination on the basis of
family responsibilities available under other legislation, ACCI argued that it
is erroneous to suggest that there is a ‘regulatory gap’ in relation to the
protection available to men against discrimination on the basis of their family
responsibilities.[48]
Positive duty to accommodate family
and carer responsibilities
4.33
In addition to strengthening the prohibition against discrimination on
the grounds of family responsibilities, HREOC considered that the Act should
impose a positive duty on employers, partnerships and principals to reasonably
accommodate the needs of their workers in relation to pregnancy, and family and
carer responsibilities. This duty would include an obligation not to ‘unreasonably
refuse’ requests for flexible work arrangements.[49]
HREOC argued that the imposition of a positive obligation on employers would
involve “a subtle re-positioning of the SDA, rather than a dramatic change”
because the prohibition on indirect discrimination already prohibits “the
unreasonable imposition of barriers that disadvantage, for example, women with
family responsibilities.”[50]
Nevertheless, HREOC submitted the change would be an important one:
Firstly, the current obligation is merely implied and may not be
immediately apparent to employers and others unless they or their advisers have
considerable experience in the operation of the SDA. By making the obligation
clear and mandatory, respondents are therefore on clear notice of what they are
required to do, rather than having to fathom their obligations from the case
law.
Secondly, repositioning the obligation as a positive duty is an
important statement of principle that employers must actually take steps to
redress discrimination. It is a clear call to action, rather than a muffled
warning that doing nothing carries a liability risk.[51]
4.34
In a similar vein, Ms Ashton of Carers Australia argued that:
...reformed legislation should include a positive duty upon
employers to accommodate fair requests for flexible work arrangements from
employees with family and care responsibilities. Anti-discrimination
legislation alone has traditionally resulted in little in the way of wide scale
reform. A requirement to accommodate will have a much more substantive effect
for workers.[52]
4.35
Unions New South Wales also supported a legislative requirement to
provide flexible working arrangements that balance work with caring
responsibilities.[53]
4.36
The Victorian Attorney-General outlined recent amendments to the Equal
Opportunity Act 1995 (Vic) which provide greater protection
against discrimination on the grounds of parental or carer responsibilities in
relation to employment and employment related areas.[54]
The Attorney-General explained that as a result of these amendments:
...an employer, a principal or a firm may not unreasonably
refuse to accommodate the parental or carer responsibilities of a person
offered employment, an employee, a contract worker, a person invited to be a
partner in a firm or a partner in a firm. In determining whether the refusal to
accommodate the worker’s family responsibilities was unreasonable, all relevant
facts and circumstances must be considered, including the needs of the
employer’s business.[55]
4.37
HREOC has previously recommended introduction of a separate Family
Responsibilities and Carers’ Rights Act which would incorporate a positive duty
on employers to reasonably consider requests for flexible work arrangements to accommodate
family and carer responsibilities.[56]
Carers Australia supported this approach.[57]
Ms Ashton told the committee:
Carers Australia supports the Human Rights and Equal Opportunity
Commission’s proposal for a separate specialised family responsibilities and
carers’ rights act. This act will better enable the recognition of carer
responsibilities. It will provide coverage against discriminatory practices in
areas within and beyond the workplace.[58]
4.38
In addition to its proposals for immediate amendments to the Act, HREOC suggested
that longer term options for reform would be either to insert family and carer
responsibilities as a distinct protected ground under a federal Equality Act,
or to give consideration to enacting a specialised piece of legislation, such
as a separate Family Responsibilities and Carers’ Rights Act.[59]
4.39
ACCI did not support amendment of the Act to impose a positive duty on
employers to accommodate family and carer responsibilities. ACCI pointed to the
proposed National Employment Standards (NES) to be introduced in 2010 which
will include a right for employees to request flexible working arrangements and
extensions to parental leave.[60]
ACCI submitted that there should not be:
...any further extension of employee rights in this area, before
employers have had an opportunity to understand and manage the additional
employee rights that will flow from the introduction of the NES.[61]
4.40
Mr Scott Barklamb of ACCI also expressed concern about how the new
obligations under the NES and the Victorian Equal Opportunity Act 1995 would
interact:
The problem potentially for people in Victoria is that you are
going to have a new obligation in the national employment standards and you are
going to have this new extra anti-discrimination obligation in Victoria.
...[T]he changes to the Victorian Equal Opportunity Act are potentially in some
collision with this new national employment standard. [62]
4.41
By contrast, HREOC submitted that:
Whilst the new National Employment Standard is a positive development,
it is insufficient to address the needs of workers with family responsibilities
in a number of respects. In particular, the right to request is confined to
children under school age, does not apply to workers unless they have at least
12 months continuous service and also, in the case of casual workers, a
reasonable expectation of continuing employment.[63]
Discrimination on the basis of sexual orientation, gender identity,
breastfeeding and other grounds
4.42
A number of submissions proposed including additional grounds of
discrimination within the Act. The Equal Opportunity Commission and the Office
of Women (SA) argued that there should be a comprehensive remedy for
discrimination on the grounds of sexual orientation under Commonwealth
legislation rather than the current limited protection under sections 31 and 32
of the HREOC Act.[64]
4.43
Sections 31 and 32 of the HREOC Act confer on HREOC a power to inquire
into practices which may constitute discrimination and report to the
Attorney-General in relation to those inquiries. However, the
Attorney-General’s Department advised that, while sexuality and gender identity
are grounds of discrimination in all state and territory jurisdictions, these
are not grounds of discrimination under Commonwealth law.[65]
4.44
The Castan Centre for Human Rights Law recommended amending the Act to
create specific protection for the rights of transsexual, transgender and
intersex people.[66]
The centre outlined the variable protection of transsexual, transgender and
intersex people from discrimination, available under state and territory
legislation, and advocated the Commonwealth providing consistent and
comprehensive legislative protection from discrimination for these groups.[67]
4.45
The Australian Coalition for Equality supported providing comprehensive
protection against discrimination on the grounds of sexual orientation and
gender identity under Commonwealth law but suggested there were drawbacks to
including sexuality and gender identity as additional grounds under the Act. In
particular, the coalition argued, firstly that the provisions of the Act are
dated and not designed to handle this type of discrimination, and secondly that
an amendment to the Act would not send out a clear message that discrimination
on the grounds of sexual orientation or gender identity is, in and of itself,
unacceptable behaviour. Instead, the coalition supported enactment of specific
legislation dealing with sexuality and gender identity discrimination.[68]
4.46
The Androgen Insensitivity Syndrome Support Group Australia submitted
that people born with intersex conditions continue to face discrimination particularly
in relation to their right to marry and protection from irreversible,
non-therapeutic medical intervention without court authority.[69]
The group did not advocate a specific legislative solution to these issues but
sought the elimination of this discrimination.[70]
4.47
Whilst not opposing the inclusion of additional grounds of
discrimination under the Act, Christian Schools Australia told the committee
that if the scope of the Act was expanded to include additional grounds they
may seek a corresponding expansion of the exemption in section 38. Section 38
allows educational institutions established for religious purposes to
discriminate for some purposes in the areas of employment and education. The Chief
Executive Officer Mr Stephen O’Doherty explained further:
If the Act started to redefine sex to include chosen gender, as
some acts have, that is clearly a matter on which churches have taken a view.
That becomes a very important matter in schools employing persons who will be
able not only to adhere intellectually but also live by the teachings of the
religion in relation to sexuality.
...If you refresh the language in legislative terms to start
using the word ‘gender’ instead of ‘sex’, or if you started to include the
language of ‘chosen gender’, that would raise specific flags for Christian
schools and other Christian organisations, which I think we would then be
asking you to address separately, or at least ensure that our ability to
discriminate included the ability to discriminate on issues such as chosen
gender.[71]
4.48
The Queensland Council of Unions recommended amending the Act to include
several additional grounds of discrimination. In addition to sexuality and
gender identity, the council suggested discrimination on the grounds of lawful
sexual activity as a sex worker, parental and relationship status (as distinct
from marital status) and breastfeeding should be unlawful.[72]
4.49
HREOC also recommended inclusion of breastfeeding as a separate
protected ground under the Act. The Act currently provides that breastfeeding
is a characteristic that appertains generally to women and it is therefore
intended that discrimination on this basis will be captured under the
definition of direct sex discrimination.[73]
However the Act does not make breastfeeding a separate ground of discrimination
in its own right. The Sex Discrimination Commissioner explained:
The way the SDA is currently drafted, it would seem that the
intent is that breastfeeding discrimination is already covered. It is just that
it is in a more indirect way that you get there. What we are suggesting is that
it should just be put up front and made clear that breastfeeding is a protected
attribute.[74]
Addressing intersecting forms of discrimination
4.50
The committee received evidence that existing federal
anti-discrimination legislation, including the Act, has a limited capacity to
address discrimination on intersecting grounds, such as sex and race, or sex,
disability and age. NACLC explained that the experience of intersecting forms
of discrimination, or discrimination on multiple grounds, is not merely the sum
of its parts:
An analogy that has often been used to explain this
intersectionality is that of a cake. Each of its constituent elements – flour,
sugar, eggs, milk, cocoa and so on – are fundamentally different from the
eventual combined product of a chocolate cake. Further, the individual
ingredients can no longer be separated out and identified. The cake is not
merely the accumulation of various ingredients. It is an entirely new entity.
Similarly the experience of discrimination where the victim is an African
Muslim woman is fundamentally different from that of an Anglo-Saxon woman or an
African man. The discrimination experienced is not merely sex discrimination
plus race discrimination plus religious discrimination. It is a new and unique
experience of discrimination based on the intersection of her multiple
identities.[75]
4.51
The National Foundation for Australian Women submitted that the Act
needs to provide better protection against discrimination based on gender and
other grounds. The Foundation noted that there is no capacity for the court to
look at the whole act of discrimination where the discrimination occurs for a
range of reasons.[76]
Ms Shirley Southgate of NACLC discussed this issue in the context of
complaints by women from non-English speaking backgrounds:
The experience of discrimination for a woman from a non-English
speaking background is a separate and unique experience to that of an English
speaking woman. There is no capacity within the legislation to say, ‘This is a
whole unique experience.’
You might be able to say, ‘I have a complaint under the Race
Discrimination Act, and I have a complaint under the Sex Discrimination Act’,
but you cannot say, ‘As they intersect it becomes a different experience.’
There is no capacity for the courts to take that into account.[77]
4.52
Associate Professor Beth Gaze also identified this as shortcoming of the
Act:
The case law indicates that claims by women in these categories
(who could be regarded as affected by multiple discrimination grounds, or
‘intersectionality’) are rarely litigated. It is very difficult to work out
what these women would have to prove to establish their claims if the claim
involves combined ground discrimination.[78]
4.53
The Law Council explained that these difficulties arise from the
structure of federal anti-discrimination legislation:
Because federal anti-discrimination legislation addresses
discrimination by way of four separate pieces of legislation, plus the Human
Rights and Equal Opportunity Commission Act 1986 (Cth), each law is
designed to address discrimination on the basis of only one type of difference
or characteristic (or attribute appertaining to that characteristic).
The SD Act is for example formulated to address only
discrimination on the basis of sex, marital status, pregnancy, potential
pregnancy, family responsibilities and sexual harassment. It is not capable of
taking into account any variation of the experience of only sex discrimination,
such as discrimination on the grounds of both sex and race or sex and
disability.[79]
4.54
The Anti-Discrimination Commission Queensland noted that the ALRC Equality
Before the Law report identified these difficulties and recommended
amending Commonwealth discrimination legislation to enable HREOC to deal with
complaints that fall across different discrimination legislation.[80]
4.55
The Law Council more specifically recommended amending either subsection
46PO(4) of the HREOC Act, or each federal anti-discrimination Act[81]
so that:
...in cases where complainants allege discrimination on multiple
grounds, such as on the grounds of both race and sex, or on the grounds of both
disability and sex, the ‘multiple discriminations’ can be appropriately
addressed. Such legislative amendment ought to include guidance to the court to
take into account the experience of multiple differences in awarding remedies.[82]
4.56
The Human Rights Law Centre similarly supported amending the Act to
require HREOC or the court to consider joining related complaints made on the grounds
of discrimination covered by separate federal anti-discrimination legislation.[83]
An Equality Act?
4.57
Some submissions argued that the whole structure of federal
anti-discrimination legislation needs to be changed to effectively address
discrimination on intersecting grounds. For example, Australian Women Lawyers
submitted that replacing the existing separate pieces of federal
anti-discrimination legislation with a single Equality Act would be a more
effective mechanism for dealing with intersecting forms of discrimination.[84]
4.58
NACLC advocated enacting a single national Equality Act for broader
reasons:
Under the current pieces of Commonwealth anti-discrimination
legislation, limited grounds of protection from discrimination are provided. In
order to provide broader protection and freedom from discrimination, and
implement Australia’s international treaty obligations ...it is submitted that
a single Equality Act would be a preferable legislative mechanism. Clearly, a
single Act would provide a means of harmonising the processes for promoting
equality, addressing systemic discrimination and inequality, and dealing with
individual complaints.[85]
4.59
In addition, Ms Eastman of the Law Council identified practical benefits
which would flow from replacing the existing anti-discrimination acts with an
Equality Act:
I think from a practical perspective—and I speak from a
practitioner’s perspective—to have all of the relevant anti-discrimination
provisions in one act at a federal level would certainly make the process much
easier for applicants, respondents and practitioners because there is not a
consistency in the terms of all of the federal acts, which is race, age, sex
and disability, although each of those areas have their own special
considerations. But there is certainly a real benefit in having some clear
national standards.[86]
4.60
However Professor Margaret Thornton cautioned that a difficulty with the
Equality Act model is that it treats all forms of discrimination as the same:
One of the problems with a so-called omnibus act having a whole
range of grounds within the legislation—sex, race, sexuality, age, disability
and so on—is that they end up being treated as mirror images of the other.
That, I think, can have a distorting effect. We see this happen with state
acts, which do follow the omnibus model. I suppose it is both a strength and a
weakness of the federal legislation that it has adopted a different model of
having the discreet pieces of legislation so that one is not necessarily seen
as a mirror image of the other...[87]
4.61
ALRC considered the merits of an Equality Act in detail as part of its
inquiry into equality before the law. HREOC noted that, in the Equality
Before the Law report, ALRC recommended enactment of an Equality Act to
guarantee men and women equality before the law, with the ultimate aim of
entrenching a constitutional guarantee of equality.[88]
However, the ALRC proposal was for legislation to complement rather than
replace existing anti-discrimination legislation.[89]
4.62
HREOC suggested that the merits of introducing a comprehensive Equality
Act for Australia should be examined by a separate inquiry.[90]
The Sex Discrimination Commissioner explained the rationale for this approach:
An equality act would involve incorporating the Sex
Discrimination Act with other federal discrimination laws, such as the
Disability Discrimination Act, into one piece of legislation. This would be a
major reform, so it needs adequate time to be investigated. We therefore
propose that this committee support a national inquiry into the merits of
adopting an equality act. That would deliver a considered view on whether
having a single federal equality act is indeed preferable to the current
situation of separate federal acts.[91]
4.63
HREOC recommended more generally that a two stage process be adopted to
reform of the Act. The first stage would involve improving institutional
arrangements and immediate amendments to strengthen the Act. The second stage
would involve a national inquiry to look at issues which will require further
consultation.[92]
The Sex Discrimination Commissioner elaborated:
...we are recommending a two-stage process of national reform to
the Sex Discrimination Act to be completed over three years. There are changes
to the Sex Discrimination Act that can be made now to significantly strengthen
the effectiveness of the law. To that extent, we make 54 recommendations for
immediate implementation, and that is our stage one. However, we consider that
some of the reforms to the Act require a more extended period of consultation
to achieve the right outcome.[93]
4.64
Several witnesses expressed support for a two stage approach to
reforming the Act. For example, Ms Eastman of the Law Council:
[I]n general we would be supportive of a two-stage process if
the first stage was to look at issues that could be the subject of immediate
amendment and immediate application in terms of the operation of the Act.[94]
4.65
Dr Belinda Smith noted that such an approach would allow Australia to
thoroughly consider the innovative approaches to addressing inequality adopted
in other countries:
I support the HREOC proposal that this be a two-stage inquiry
and that there are things that could and should be done immediately. But there
are a lot of things that I think we could learn from these other countries that
have developed other regulatory frameworks and have had them in place long
enough to see some of the results. But we need to do research and we need to
have public debate to think about how they might work in Australia.[95]
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