CHAPTER 5
Effectiveness of the Act
5.1
This chapter considers evidence regarding the overall effectiveness of
the Act and the extent to which it implements Australia’s international
obligations to eliminate sex discrimination as well as looking more specifically
at the effectiveness of the Act in preventing discrimination against men and sexual
harassment.
Overall effect of the Act
5.2
In general, evidence to the committee suggested that the Act has had an
impact on the most overt forms of sex discrimination but has been less
successful in addressing systemic discrimination.[1]
‘Systemic discrimination’ refers to policies, practices or patterns of
behaviour, which are absorbed into the institutions and structure of society, that
create or perpetuate disadvantage for a particular group.[2]
5.3
The submission from HREOC contended that:
[W]hilst the SDA has been successful in contributing to reducing
direct discrimination..., there has been less progress on addressing systemic
discrimination or achieving substantive gender equality. There is clearly much
more that could be done.[3]
5.4
On the basis of consultation conducted through her national listening
tour, the Sex Discrimination Commissioner summarised the position as follows:
My firm conclusion from that tour was that while we had good
experience in terms of reducing overt discrimination, or a lot of the formal
discrimination against women, our progress towards achieving true gender
equality in Australia has stalled. I became convinced that, as a nation, we
need to re-energise our efforts to find innovative solutions to the systemic
gender inequality that persists in many people’s daily lives.[4]
5.5
In response to a question from the committee concerning the overall
progress made in addressing gender equality, Professor Margaret Thornton said:
Certainly, there has been some progress with where women are
located within the workplace, for example, in terms of authoritative and
professional positions. On its face, that looks quite positive. If you take a
position that focuses on numbers, it looks quite good. But I would suggest that
much more than numbers are involved. One has to look beneath the surface at the
substantive aspects.[5]
5.6
This assessment of ‘some progress’ was shared by other witnesses
including Mr Mathew Tinkler of PILCH:
[T]he Sex Discrimination Act, although well intentioned and
having made some very positive steps, really fails to prevent and eliminate sex
discrimination in Australia and, in doing so, Australia fails to meet some of
its human rights obligations.[6]
5.7
The Australian Baha’i Community suggested that the focus of the Act on
providing redress for individual complaints has limited its ability to address
discrimination:
The significance of the Commonwealth Sex Discrimination Act
1984 in giving force to many of Australia’s obligations under CEDAW should
not be underestimated. While the Act plays a useful role for the individual
complainant, however, particularly in redressing complaints of discrimination
in employment and of sexual harassment, it is not without its limitations. With
its focus on identified acts of discrimination within specified spheres of
activity, the Act addresses discrimination as an isolated incident rather than
as a systemic problem.[7]
5.8
A less qualified assessment was made by Mr Daniel Mammone of ACCI who suggested
that the Act has contributed to significant changes within Australian industry:
The Sex Discrimination Act is an important part of the overall
framework of Commonwealth anti-discrimination laws which, taken as a whole,
imposes significant legal obligations on industry and which have contributed to
significant changes in human resource practice within industry over the last 20
years. The underlying objectives and assumptions of anti-discrimination law
that employees deserve equal treatment in employment enjoy an extremely high
level of support within Australian industry.[8]
5.9
Submissions from unions also noted that the Act represents a significant
achievement in terms of addressing sex discrimination. For example, the
Australian Education Union, stated that the Act is:
...a crucial and landmark piece of legislation and its ability
to create an avenue for complaints of sex discrimination to be heard and
resolved is a great achievement.[9]
5.10
While the ACTU stated that the Act has “played an important role in
protecting women from discrimination”.[10]
5.11
However, these two submissions argued that the Act has been less
successful in addressing structural disadvantage and effecting cultural change.[11]
In more concrete terms, the ACTU stated that “women still fare worse than men
on a number of key measures of equality in employment”.[12]
5.12
Academic commentary on the Act also paints a complex picture on the
issue of its overall effect. For example, whilst arguing that the Act embodies
a particularly weak regulatory model, Dr Belinda Smith suggests that the Act
has nevertheless played a normative role in relation to sex discrimination. She
asserts that:
Generation Y will not put up with what their mothers and fathers
might have accepted. The battle line has at least moved forward – it is no
longer drawn over blatant and intentional exclusion, but has moved to more
indirect and structural forms of discrimination.[13]
5.13
This echo of the theme of ‘some progress but more to be done’ seems
consistent with the views of Associate Professor Beth Gaze who wrote on the twentieth
anniversary of the Act:
[W]hile I wouldn’t want to be without the SDA, it has aged over
the 20 years since enactment. Although it has fundamentally changed our legal
and social environment, other changes have undermined some of the gains. It
needs revitalising to continue to drive the case for women’s equality in the
modern context.[14]
Extent to which the Act implements international obligations
5.14
Most of the evidence presented to the committee argued that the Act only
partially implements Australia’s international obligations in relation to
gender equality. Ms Edwina MacDonald of NACLC outlined those obligations:
Australia’s obligations with respect to gender equality go
beyond CEDAW, which codifies women’s rights to non-discrimination and equality
with men. Australia is also obliged to ensure the equal right of men and women
to the enjoyment of civil, political, economic, social and cultural rights
under the ICCPR and also ICESCR. In addition, Australia is also a signatory to
ILO treaties that create obligations with respect to reconciling work and
family.[15]
5.15
She then submitted that:
[T]hese obligations provide an effective human rights framework
within which substantive equality for women and men can be achieved. However,
at present it is our view that Australia is not meeting all those obligations
through the Sex Discrimination Act, or through other legislation.[16]
5.16
HREOC supported the assessment that the Act does not fully implement Australia’s
international obligations:
[I]t has always been acknowledged that the [Act] did not fully
implement all obligations under CEDAW nor other relevant international legal
obligations in the International Covenant on Civil and Political Rights (‘ICCPR’)
, the International Covenant on Economic, Social and Cultural Rights
(‘ICESCR’) and International Labour Organisation (‘ILO’) Conventions.[17]
5.17
Similarly, Australian Women Lawyers, submitted that the Act “remains
only a partial response to women’s legal inequality”.[18]
5.18
The Australian Women’s Health Network explained the limitations of the
Act:
Clearly, the SDA, restricted as it is to individual complaints
and the public sphere, falls far short of being able to influence the
attainment and enjoyment of the fundamental freedoms that CEDAW envisages.[19]
5.19
The Human Rights Law Centre noted that the Act does not implement CEDAW
in its totality and contrasted this with the implementation of the
International Convention on the Elimination of all forms of Racial
Discrimination by the Racial Discrimination Act 1975:
Australia’s cautious approach to the domestic implementation of
CEDAW is in contrast to the approach taken by the Racial Discrimination Act
1975 (Cth) (RDA), which aims to give full effect to the International
Convention on the Elimination of All Forms of Racial Discrimination (CERD) and
closely follows the language of that Convention. Ironically, the different
approaches taken in regards to racial discrimination and discrimination against
women exemplifies the entrenched discrimination that CEDAW is directed at
eliminating.[20]
5.20
Against this evidence that the Act represents only a partial
implementation of CEDAW, an officer of the Attorney-General’s Department noted
that the Act is not the only way in which Australia addresses its obligations
under the convention:
[T]he Sex Discrimination Act is a key plank that meets Australia’s
obligations under the CEDAW, but it is not the only law or program that ensures
that we meet those obligations. [21]
5.21
He argued that other Commonwealth legislation including the EOWW Act
needs to be considered as well as legislation at a state and territory level.[22]
5.22
The UN Committee certainly adopts this broader approach in its
consideration of whether states are meeting their obligations under CEDAW.
Nevertheless, in 2006, the UN Committee criticised Australia’s implementation
of CEDAW in several areas.[23]
Dr Sara Charlesworth noted some of the UN Committee’s concerns:
Australia’s implementation of CEDAW was criticised by the
Committee in a number of respects including the lack of adequate structures and
mechanisms to ensure effective coordination and consistent application of the
Convention in all states and territories, the absence of an entrenched
guarantee prohibiting discrimination against women and providing for the
principle of equality between women and men, the lack of sufficient statistical
data, disaggregated by sex and ethnicity on the practical realization of
equality between women and men in all areas covered by the Convention, and
information on the impact and results achieved of legal and policy measures
taken.[24]
Areas of continuing discrimination and inequality
5.23
Significant evidence was presented to the committee of continuing areas
of sex discrimination or substantive inequality which have not been overcome
despite the passing of the Act. Most of this evidence concerned discrimination
which was employment related including a lack of pay equity, limited access to
paid parental leave, and women being under-represented in particular
professions and leadership positions.
Complaints
5.24
The number of complaints made under the Act is not necessarily an
accurate indication of the level of discrimination since people facing
discrimination may decide not to pursue complaints under the Act for a wide
variety of reasons. For example, they may decide to pursue claims under state
or territory anti-discrimination legislation rather than under federal
legislation or, in the case of employment discrimination, they may pursue a
claim under industrial relations laws. Conversely, an increase in the number of
complaints may simply be evidence of an increase in the awareness of rights and
the willingness to assert them rather than an increase in discrimination itself.
5.25
Nevertheless, it is interesting that the statistics in relation to
complaints received by HREOC show an increase in the number of sex
discrimination complaints over the last two years. HREOC advised that:
Complaints received under the SDA have remained consistent at
around 350 complaints a year since 2002-03, increasing by 36% in the 2006-07
reporting year and remaining at this increased level in the current year.
...It is predominantly women who make complaints of
discrimination and harassment under the SDA. Since 2002-03, women have
represented at least 82% of complainants.[25]
5.26
HREOC further advised the committee that:
...the vast majority of complaints made under the SDA relate to
the area of employment. The next main area of complaint is the provision of
goods and services. The largest ground of complaint is sex discrimination and
this has increased over the past three years. The next most frequent ground of
complaint is pregnancy discrimination followed by sexual harassment.[26]
5.27
However, Professor Thornton told the committee that her more general
research on complaints under anti-discrimination legislation across the country
suggested both a decline in the number of complaints and the number of
complaints going to a formal hearing.[27]
5.28
Notably, Job Watch which provides a free telephone advice service to
Victorian workers including advice in relation to sex discrimination and sexual
harassment did not consider that the incidence of discrimination and harassment
was declining.[28]
Mr Ian Scott of Job Watch told the committee:
Over the last five years, JobWatch has received approximately
850 calls per year in relation to sex based discrimination, and about 90 per
cent of those callers were women. ...We say that sex based discrimination is
still a problem and a problem that mainly relates to women.[29]
5.29
Job Watch assisted the committee by providing a statistical breakdown of
the calls it receives in relation to sex discrimination. Amongst other things,
that breakdown demonstrated that most callers are in the 25 to 34 years age
group (52.6 percent) or the 35 to 44 years age group (27.8 percent) and that:
The main types of sex discrimination inquiries JobWatch receives
relate to maternity leave, parental and carer status discrimination closely
followed by sexual harassment, pregnancy and breast feeding discrimination...
Over the last 12 months there has been an increase in all inquiries, except
sexual harassment, but the largest increase has occurred in parental and carer
status discrimination.[30]
5.30
The Working Women's Centre South Australia, Northern Territory Working
Women's Centre and Queensland Working Women's Service (the Working Women’s
Centres) also provide direct advice to women on work related issues. The
Working Women’s Centres advised that:
In 2007 the three Centres provided information to over 6000
women with approximately 14% of these calls relating to issues about maternity
entitlements, pregnancy, sex and family responsibility discrimination,
returning to work, child care and balancing work and family.[31]
5.31
The Queensland Working Women's Service and Northern Territory Working
Women's Centre both reported receiving an increasing number of inquiries
regarding both pregnancy and work and family discrimination. While, the South
Australian Working Women's Centre noted a slight increase in enquiries about
maternity entitlements in 2007-08.[32]
Pay equity
5.32
One key area of substantive inequality is the continuing gap between male
and female earnings. The Business and Professional Women Australia noted that:
[W]omen in Australia are earning up to 17% less than men, and
retiring on less than a third of male savings. This is despite the fact that in
the last 25 years there have been substantial changes in women’s economic
circumstances. Australian Social Trends reports that the proportion of
women earning their own incomes has risen, and levels of economic autonomy experienced
by women have increased. However, women's relative economic position, as
measured by their share of total gross personal income, has remained largely
unchanged.[33]
5.33
HREOC provided more detail on the causes and practical consequences of the
gender pay gap for women:
Currently, women working full-time earn 16 per cent less than
men. The gender pay gap is even greater when women’s part-time and casual
earnings are considered, with women earning two thirds what men earn overall.
Women are more likely to be working under minimum employment conditions and be
engaged in low paid, casual and part time work. Australian women are
overrepresented in low paid industries with high levels of part time work such
as retail, hospitality and personal services.
The gender pay gap has a number of critical flow-on effects.
Women, having earned less than men and carried a significantly greater share of
unpaid work, have significantly less retirement savings compared to men.
Current superannuation payouts for women are one third of those for men.[34]
5.34
Surprisingly, there appears to be a pay gap between men and women even after
factors such as differences in occupations, qualifications and experience are
taken into account. An officer of the Department of Education, Employment and
Workplace Relations recently gave evidence to the House of Representatives
Standing Committee on Employment and Workplace Relations inquiry into pay
equity on this issue. She noted that :
In terms of gender pay gaps, the gap in Australia is commensurate
with the average across the OECD countries and has followed a similar
trajectory over time. ...The OECD also reported one quarter of this pay gap
remains unexplained, even after considering the impact of direct and indirect
factors, such as education, experience, occupation, motivation, expectations
and field of study.[35]
5.35
Similarly, the Law Council noted that:
From the very beginning of their careers within the legal
profession, men are paid more than women. For example, in New South Wales when
the incomes of solicitors with less than one years experience were compared in
2002, men on average earned $8,200 more than their female counterparts. In 2007
little has changed, the estimated mean income of male solicitors admitted
between one and five years was calculated to be $70,300 while that of female
practitioners was $63,500.[36]
5.36
The Australian Education Union pointed to structural discrimination
contributing to the lack of pay equity between men and women including an
undervaluing of the work that women have traditionally done and concentration
of women in lower paid positions. Mr Angelo Gavrielatos, Federal President of
the Union, told the committee:
[W]ithin our own industry, whilst 70 per cent-plus of our
workforce are women they are underrepresented in terms of the higher earning
rungs of our profession. Those people who went to fields of administration or
principalship, et cetera; women are underrepresented in those higher rungs of
the profession and certainly overrepresented, if you like, in the lower paid rungs
of our industry.[37]
5.37
Unions New South Wales submitted that the Act does not ensure pay equity
for work of comparable value:
This means that whilst men and women who do the same job have
some degree of recourse under the Act if there is a disparity in their pay, the
Act fails to note the genderised nature of many industries and thus allows for
a systematic undervaluing of some work, particularly that performed by women. A
key example of this is the significant disparity in pay between apprentice
hairdressers and apprentice car mechanics, despite them having to undertake
comparable training and purchase comparable trade tools.[38]
5.38
To remedy this, Unions New South Wales suggested that the Act be amended
to require that an award made by an industrial relations commission, or an
agreement recognised by a commission, must provide for equal remuneration for
men and women doing work of equal or comparable value.[39]
Similarly, the United Nations Development Fund for Women (UNIFEM Australia)
argued that equal pay for equal work should be a specific objective of the Act
and legally required by the Act in more explicit terms.[40]
Discrimination within professions
5.39
It appears that the experience of discrimination is not limited to women
in precarious or low paid employment. For example, the Association of
Professional Engineers, Scientists and Managers Australia submitted that the
existing legislation has not eliminated sex discrimination or discrimination on
the basis of family responsibilities within the technical professions. The
Association outlined areas of discrimination including a lack of pay equity and
women being under-represented at senior levels in the professions.[41]
The association noted that:
Indications are that despite existing sex discrimination
legislation the prevalence and impact of direct discrimination [on] women in
technical professions is extensive. A survey of women engineers conducted by
Engineers Australia in 2007 found that 42.3% of women respondents had
experienced discrimination in their role as an engineer (predominantly gender
based), which had increased from 36% in 1999.[42]
5.40
The Law Council provided similar evidence in relation to the experience
of women in the legal profession.[43]
In particular, the Law Council noted that:
While the number of women entering the profession has increased
there has not been a corresponding rise in the numbers of women attaining law
firm partnerships. A 2006 survey of partnership appointment found that at 24 of
Australia’s leading law firms, women make up on average just 18.1% or 429 of
2364 partners.[44]
5.41
Ms Penny Thew of the Law Council also pointed to the attrition of women
from the legal industry as a factor preventing any increase in the proportion
of female lawyers:
Even though the number of women entering the bar in particular
has increased in the very recent past, the level of women at the bar remains
fairly static over the last five to seven years in any event. That is in New
South Wales, and I understand it is the same in relation to the legal
industry generally in New South Wales.[45]
Paid parental leave
5.42
UNIFEM Australia explained that the provision of universal paid
maternity leave is a distinct international obligation under CEDAW and pointed
out that:
Australia is one of the only two OECD Countries that does not
have a requirement for paid maternity leave: Maternity leave is not mandated by
the SDA, but is left to the discretion of the employer.[46]
5.43
HREOC’s submission noted that the absence of a legislative requirement
means that:
Paid maternity leave is accessed by only around one third of
employed pregnant women. The use of paid paternity or parental leave by male
partners is even lower at 25 per cent.[47]
5.44
UNIFEM Australia recommended that the Australian Government remove its
reservation to CEDAW in relation to maternity leave.[48]
Mrs Rosalind Strong the President of UNIFEM Australia submitted that a system
of paid maternity leave should be implemented urgently:
We believe that there should be wide consultation within the
community, not just with industry, in relation to that matter. We also think
that contemporary notions of equality include shared responsibility for care
giving, so the issue of paid maternity leave should be extended to include paid
paternity leave.[49]
5.45
Some submissions made specific proposals for the introduction of a
requirement for paid parental leave. Unions New South Wales recommended there
be a legislative requirement for paid parental leave for a minimum of six
months.[50]
While the Young Women’s Christian Association (YWCA) Australia advocated nine
months of paid parental leave funded by both government and employers to
provide 75-80% replacement of earnings.[51]
5.46
The committee notes that the Productivity Commission released a draft
report on 29 September 2008 as part of its inquiry into paid parental leave. The
draft report sets out a proposal for a statutory, paid parental leave scheme
which would provide a maximum of 18 weeks of paid leave to be shared between
parents, with an additional 2 weeks of paternity leave for the father or same
sex partner.[52]
The scheme would be largely taxpayer funded, available to employed parents and
provide payments at the adult minimum wage for most eligible employees.[53]
The commission has invited submissions on the draft report and is due to report
in February 2009.
Representation of women in leadership
positions
5.47
The submission from HREOC pointed to the representation of women in
leadership positions as another area in which inequality persists:
In Australia, women continue to be significantly
under-represented in senior leadership positions across business, government
and the community, despite Australia leading the world [in] levels of
educational attainment for women. For the top 200 companies listed on the
Australian Stock Exchange at 1 February 2006, women held only 8.7 per cent of
board directorships. Women make up 25 per cent of the House of Representatives
in the Parliament of Australia. The statistics of women’s representation in
leadership positions are indicative of the barriers faced by women to equal
participation and progression in the workplace.[54]
5.48
The Business and Professional Women Australia also raised this issue and
argued that:
[S]tructural change is needed to ensure that women fill a
greater number of senior positions in both government and private enterprise.
Women continue to lag behind in both remuneration and in corporate
leadership...[55]
5.49
UNIFEM Australia noted that the Act does not include any “mechanism to
increase the representation of women in both elected and appointed public
offices until they are present in Australian public life in numbers
proportionate to their representation in the community and their desire for
involvement”.[56]
Mrs Strong of UNIFEM Australia told the committee:
Currently the Sex Discrimination Act is silent on this issue,
although it is an element of CEDAW. We seek a clause that recognises the role
of women in leadership in political, community and business life. We recognise
that this is likely to be a symbolic clause but, by having a reference in the
Act, we think it would be a strengthening of the situation in Australia which,
at the moment, relies mostly on goodwill and the good faith of government or
organisations...[57]
Sexual Harassment
5.50
Evidence to the committee suggested that sexual harassment is an area of
continuing discrimination. The committee was also told that the sexual
harassment provisions in the Act are deficient in several respects.
Incidence of sexual harassment
5.51
Several witnesses and submissions provided evidence that sexual
harassment remains a significant problem in Australian workplaces even in its
most blatant forms. The Sex Discrimination Commissioner noted that sexual
harassment was a key theme emerging from her listening tour.[58]
The submission from HREOC expanded on this:
The Commissioner also heard many experiences of sexual
harassment, ranging across industries and professions. One woman commented on
her experience of repeated unwelcome sexual advances where she lives in close
quarters to her male colleagues:
I’ve been living [in these work quarters] for three years and
I’ve had knocks on my door at night with guys saying, “Guess you’re feeling a
bit lonely, love?” It shouldn’t happen. I’ve been sitting with a group of
males and one will ask, “Don’t you think it’s my turn [for sex] tonight?”[59]
5.52
Legal Aid Queensland stated that sexual harassment is a common complaint
from clients, particularly in private sector organisations and small
businesses, and provided the following examples of sexual harassment cases:
Case example 1: client was employed by café as a waitress and
experienced sexual harassment from the chef and owner. They made lewd
suggestions about her appearance, asked her about her love life, left
pornography lying around, and threw a bucket of water at the top of her torso
whilst at a work function.
Case example 2: young female client worked for butcher and was
regularly slapped on the bottom by the butcher. Butcher could not see that this
behaviour was inappropriate or sexist.[60]
5.53
Similarly, the Public Interest Law Clearing House (PILCH) considered
that “sexual harassment remains prevalent in Australia and there is little
awareness of the incidence, nature and consequences of sexual harassment.”[61]
5.54
A national telephone survey commissioned by HREOC in 2003 found that 28
per cent of women and seven per cent of men had experienced sexual harassment
in the workplace.[62]
The HREOC survey also indicated the prevalence of particular types of sexual
harassment:
Victims of sexual harassment report experiencing a broad range
of behaviours including serious criminal offences such as sexual or physical
assault. The 2003 HREOC telephone survey found that of those who experienced
sexual harassment in the workplace in the last five years 94 per cent
experienced crude or offensive behaviour; 85 per cent experienced unwanted
sexual attention; 43 per cent experienced sexist behaviours; 20 percent
experienced sexual assault; 19 per cent experienced sexual coercion; and 62
percent experienced physical harassment.[63]
5.55
The Association of Professional Engineers, Scientists and Managers, Australia
submitted that sexual harassment continues to be an issue for many women
working in the technical professions and pointed to a recent Engineers
Australia survey in which 22% of women engineer respondents answered that they
had experienced sexual harassment, and 28% bullying, whilst working as an
engineer.[64]
5.56
In addition, some submissions suggested that there is significant
under-reporting of sexual harassment. For example, the ACTU noted:
A recent survey conducted by the Shop Assistant’s Union (SDAEA) found
that over one third of respondents who had experienced sexual harassment in the
workplace did not report it, largely because they thought it would be ignored
by management.[65]
5.57
On the basis of the experience of the Working Women’s Centres, the Collaborative
submission supported the view that the number of complaints of sexual
harassment may only be the “tip of the iceberg”. The submission explained why
there is such significant underreporting of sexual harassment:
Many women contacting the [Working Women’s Centres], in
particular young, lower skilled and precariously employed women, report to the
centres that they feel that they have no alternative than to resign or take
periods of leave after experiencing sexual harassment, especially when it is
ongoing. The [Working Women’s Centres] have also documented numerous cases
where the woman has complained internally and the ultimate result is that she
is compensated or paid out to terminate her employment but the harasser has
remained employed in the organisation and in some cases promoted or moved
sideways.[66]
5.58
NACLC also pointed to the difficulties women who do pursue sexual
harassment complaints face:
Community legal centres report that the vast majority of
complaints or queries about sexual harassment arise in the context of
employment. Further, it seems common that sexual harassment in the workplace
leads to the woman who complains of harassment leaving the workplace. At
Kingsford Legal Centre, none of the clients represented or advised on an
ongoing basis have continued in their workplace after making a complaint of
sexual harassment.[67]
5.59
As the 2003 HREOC survey demonstrates, sexual harassment is not exclusively
directed at women.[68]
Furthermore, the Equal Opportunity Commission and the Office of Women (SA) advised
that the commission is receiving increasing numbers of sexual harassment
complaints from men who have been harassed by other men.[69]
Deficiencies in the sexual
harassment provisions of the Act
5.60
The Sex Discrimination Commissioner pointed to deficiencies in the
existing legislative protection from sexual harassment and recommended
extending coverage in two areas: firstly in relation to workers who are
harassed by customers or clients and secondly in relation to educational
institutions. With respect to workers, the Commissioner told the committee:
At the minute, if I am a customer and I am harassed by a worker,
I have protection; but if I am a worker and the client or customer harasses me,
there is no protection for me as a worker.[70]
5.61
The submission from HREOC noted that:
[M]any workers are just as vulnerable to sexual harassment by
customers as by fellow employees or supervisors. In response to sexual
harassment (or conduct escalating towards sexual harassment) by an important
customer or client, many workers may feel reluctant to take assertive action
out of fear of the repercussions from the employer. The customer may be in a
position to exploit a significan[t] imbalance of power between him or her and
the worker, particularly if the client is important to the business or directly
impacts on the worker’s salary.[71]
5.62
HREOC recommended that Act be amended to “protect workers from sexual
harassment by customers, clients and other persons with whom they come into
contact in connection with their employment.”[72]
5.63
With respect to educational institutions, the Sex Discrimination
Commissioner explained that:
[U]nder the Act, the harasser needs to be an adult student,
which is 16 years or over. But if I harass two students, one who is 16 and one
who is 15 years and 9 months, the 16-year-old victim has protection whereas the
15 years and 9 months year old student does not have protection. We are saying
we should remove the age limit for the victim. We are not exactly sure why the
victim has an age limit.[73]
5.64
Finally, the Commissioner explained that under section 28F of the Act:
[T]here is currently a requirement that the harasser must be at
the same educational institution as the victim. If I go to the school sports
carnival and a lot of neighbouring schools are there and I am harassed by a
student or a teacher from another school, then I do not have any protection. We
are saying that we should remove the requirement that the harasser must be at
the same educational institution as the victim.[74]
5.65
However, the Association of Independent Schools of South Australia
expressed some reservations about expanding the coverage of the sexual
harassment provisions with respect to education institutions. The Association
noted that schools have existing procedures for handling allegations of student
to student sexual harassment and suggested that HREOC handling such cases may
not be in the best interests of either student.[75]
5.66
The Law Council submitted that the Act does not provide comprehensive
protection against sexual harassment. In relation to the legal profession, the
Law Council noted that the Act may not apply to harassment that occurs between:
5.67
Rather than seeking to plug these gaps, the Law Council proposed that
the Act be amended by replacing the existing provisions, which prohibit sexual
harassment in particular areas of public life, with a provision making sexual
harassment unlawful per se. The Law Council recommended that this provision be similar
to section 118 of the Anti-Discrimination Act 1991 (Qld) which simply provides:
A person must not sexually harass another person.[77]
5.68
The Anti-Discrimination Commissioner of Tasmania recommended that the definition
of sexual harassment in section 28A of the Act be broadened. In particular, the
Commissioner suggested that the definition should include the displaying of material
related to a prescribed attribute (such as sex) so that the definition
encompasses the displaying of offensive pornographic material.[78]
5.69
Professor Thornton submitted that subsection 28A(1) of the Act should be
amended to remove the requirement that the person harassed would be ‘offended,
humiliated or intimidated’ and replace it with a requirement ‘that the person
harassed would find the conduct unwelcome’.[79]
She argued that:
[T]he requirement that the person harassed would be ‘offended,
humiliated or intimidated’ contains questionable moralistic overtones. While
sexual harassment undoubtedly contributes to the inequality of women at work,
the phrasing of the SDA requires the person harassed to present themselves as
exceptionally fragile and vulnerable. One of the descriptors may be appropriate
in some cases, but not in others. Most significantly, it plays down the discriminatory
effect of the conduct.[80]
5.70
The Working Women’s Centres were also critical of the definition of
sexual harassment in section 28A. They argued that:
For a complaint of sexual harassment to be upheld, the Act
requires that a reasonable person would have anticipated that offence,
humiliation or intimidation would have occurred. The nature of this requirement
is limiting in that the reasonable person is required to anticipate that the
person actually would be offended. This is a much stricter test than some state
legislation.[81]
5.71
In particular, the Working Women’s Centres preferred the definition
under section 119 of the Anti-Discrimination Act 1991 (Qld) which provides
that “the person engaging in the conduct ...does so in circumstances where a
reasonable person would have anticipated the possibility that the other
person would be offended, humiliated or intimidated by the conduct” (emphasis
added).[82]
5.72
The Law Council and HREOC articulated similar concerns and also
supported broadening the definition of sexual harassment in this way.[83]
In addition, they argued that the Act should include a provision equivalent to
section 120 of the Anti-Discrimination Act 1991 (Qld). Section 120 provides
that the circumstances that are relevant in determining whether a reasonable person
would have anticipated the possibility that the other person would be offended,
humiliated or intimidated include:
-
the sex, age and race of the other person;
-
any impairment that the other person has;
-
the relationship between the other person and the person engaging
in the conduct; and
-
any other circumstance of the other person.[84]
5.73
HREOC submitted that the advantage of incorporating a statutory guide to
assessing reasonableness is that it:
...clearly directs the court to assess the reasonableness of the
impugned conduct by reference to the individual circumstances and
characteristics of the victim. This takes into account any gender, race,
cultural, age or other relevant circumstances or factors that might help to
explain why the individual victim regarded the conduct as unwelcome and
inappropriate. By contrast, the SDA contains only a vague reference to ‘having
regard to all the circumstances’. [85]
5.74
Finally, Ms Michele Panayi of PILCH argued that the identity of the
victim in sexual harassment cases should be protected as a matter of course:
[U]nder the Federal Magistrates Court Act, an application can be
made to a federal magistrate seeking that the identity of a witness or a party
to the litigation be suppressed. However, from the information I have received
from experts in the field, that is not easy to obtain. From the very beginning,
a person who is going through this is extremely traumatised and extremely
anxious. They need legal advice at the beginning to the effect that, ‘If you go
through this process, it will be okay; you will be de-identified.’[86]
Violence
5.75
The committee did not receive extensive evidence in relation to the
incidence and consequences of violence against women. However, HREOC submitted
that violence against women remains a major human rights issue facing Australia:
Research has found that nearly one in five women has experienced
sexual violence since the age of fifteen. An international study found that
around one in three Australian women have experienced violence from an intimate
partner in their lifetime.[87]
5.76
Women’s Forum Australia argued that prostitution and pornography
contribute to violence against women:
[T]he activities of the sex industry, which have become
normalised and entrenched in society, along with other forms of objectification
of women and girls, are major contributors to shaping the attitudes of men and
boys, distorting their views of women and girls, contributing to calloused
attitudes, harassment and violence.[88]
5.77
The Australian Women’s Health Network pointed to the health consequences
of violence against women:
[A] study in Victoria in 2004 found that intimate partner
violence, based as it is in gender inequality, contributed 9 per cent to the
total disease burden for Victorian women aged between 15 and 44 years and 3 per
cent for all Victorian women. Astonishingly, perhaps, partner violence was the
leading contributor to death, disability and illness for women aged between 15
and 44 years, ahead of well recognised risk factors, such as high blood
pressure, smoking and obesity.[89]
5.78
The Working Women’s Centres also raised the issue of violence against
women and suggested that the Act should ensure that women are not discriminated
against in the workplace as a consequence of domestic violence against them:
[H]einous crimes are regularly committed against women by their
partners (and at times other family members) resulting in them being injured
(physically, emotionally and/or psychologically), causing lateness to work,
interfering in their work by constant phoning, following them to their
workplace and entering the site, preventing them from attending work or
impacting on their work in other ways to such an extent that their employers
institute performance reviews. The Act should encompass provisions for making
it illegal to dismiss or disadvantage an employee on the grounds of being a
victim of domestic violence.[90]
Addressing discrimination against men
5.79
Some submissions argued that the Act has been more successful in
addressing discrimination against women than against men. These submissions
pointed to areas such as poorer educational outcomes for boys and higher rates
of male suicide as evidence of discrimination against men.[91]
For example, the Lone Fathers Association of Australia argued that:
Australia’s schools and universities are to a significant extent
failing boys and young men. National policy for the education of girls (1987)
made a point of neglecting boys’ needs. 15 years after the first examination of
boys’ education issues, the situation continues to worsen, with only 75% of
boys completing year 12 in Australia, compared with 81% for girls...[92]
5.80
While Dads on the Air submitted that:
Males have much higher illness, injury, accident and death rates
and die 5 years earlier than females, yet research funding for male health is
less than one-third of that for female health.
Males suicide at almost four times the rate of females. More
males kill themselves each year than the entire Australian road toll.
More than twice as many males as females experience work-related
injuries and illnesses, and over ninety percent of work-related deaths are
males.[93]
5.81
Several submissions argued that there is particular discrimination
against men in their role as fathers.[94]
Dads on the Air submitted that this discrimination is evident in parental leave
arrangements which are inequitable to men and thus reinforce the notion of
fathers as breadwinners not ‘hands-on dads’.[95]
5.82
Similarly, the Equal Opportunity Commission and the Office of Women (SA)
noted that many fathers face discriminatory views when they seek to have their
parental responsibilities taken into account such as when they request extended
leave to care for a child.[96]
5.83
The Human Rights Law Centre pointed out that to effectively address
discrimination against women the Act must also address discrimination against
men. Ms Rachel Ball of the Centre explained that to achieve equality for women:
...you need to also address inequality that men experience. The
example that is often given is of the stereotype that women are mainly
responsible for the care and responsibilities of children and that men are
responsible for going to work, and if that stereotype is perpetuated to the
detriment of both men and women the result is that women generally will be the
ones who end up needing to give up the opportunity to participate more fully in
public and economic life.[97]
5.84
HREOC explained that the Act currently does not provide the same
protection from sex discrimination for men:
Section 9 of the SDA draws on all the available heads of
Commonwealth legislative power to give the SDA its broadest possible effect as
far as it is constitutionally possible to do so. All of those heads of power
are expressed in gender neutral terms, so they apply equally to men and women.
If a claim is against a corporation, a man has protection equal to that of a
woman. The only exception to that is section 9 (10), and essentially that gives
effect to the external affairs power. In relying on the external affairs power,
the government has given effect only to CEDAW.
Because CEDAW is expressed for the protection of women only, if
you are in an area where no other head of constitutional legislative power
applies, such as in an unincorporated body or a state government, a woman will
have protection because CEDAW will give her protection, whereas a man will not.[98]
5.85
An officer of the Attorney-General’s Department provided an example of
the more limited operation of the Act in relation to discrimination against
men:
[A] university was found to be a trading corporation, so a man
was able to take a sex discrimination complaint against that university. But a
group of men who took a complaint against an unincorporated golf club, for
example, found that the Sex Discrimination Act did not provide them with a
remedy ...because the constitutional power of the Commonwealth did not extend
to unincorporated associations. That does not mean to say that, under
Australian law, they do not have any remedy at all. It is very likely ... that,
if they took an action under the state or territory law ...they would be able
to get a remedy or have their complaint heard.[99]
5.86
Dads on the Air submitted that the Act should be gender neutral and be
aimed at gender equality not just equality for women.[100]
The Sex Discrimination Commissioner made a similar recommendation to the committee:
At the moment there are a number of ways in which the Sex
Discrimination Act does not provide equal protection for both men and women.
This is understandable, recognising that in 1984 the Sex Discrimination Act was
enacted primarily to implement our international obligations under CEDAW.
However, in 2008, we consider that to promote substantive gender equality in
this country it is essential that the SDA applies equally for the benefit of
both women and men...[101]
5.87
To ensure that the Act provides equal protection to men, HREOC proposed amending
subsection 9(10) so that, instead of relying on the external affairs power just
to give effect to CEDAW, it would give effect to other international
obligations Australia has in relation to sex discrimination under ICCPR, ICESCR
and the relevant ILO conventions.[102]
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