CHAPTER 3
Objects and
Definitions
3.1
This chapter examines the objects of the Act and how the Act defines
some key terms. In looking at these issues, the committee also received
evidence concerning the interpretation of the Act by the courts and how that
judicial interpretation has affected the operation of the Act.
Objects of the Act
Interpretation of the Act
3.2
Some submissions argued that the courts have narrowly construed the Act
and other anti-discrimination legislation. For example, the Women’s Electoral
Lobby expressed concern that:
...a persistently narrow interpretation of the SDA, particularly
on the part of the High Court, is undermining the efficacy of the Act. It is
notable that, in the 12 years since Wik, not a single discrimination case has
succeeded before the High Court. With the exception of Justice Kirby, High
Court judges have ignored the beneficent purpose of the Act and the contents of
CEDAW, which has frustrated the aims of the legislation.[1]
3.3
To ensure the Act is interpreted consistently with its purpose, the
Women’s Electoral Lobby recommended that section 3 be amended to provide
guidance on how the courts should interpret the Act. Specifically, this
amendment would require that the Act be interpreted so as to further the
objects of the Act set out in section 3.[2]
3.4
The Sex Discrimination Commissioner advocated inserting an express
requirement in the Act that it be interpreted, not just in accordance with
CEDAW but also with the ICCPR, ICESCR and the relevant ILO conventions,
particularly ILO Convention 156, which relates to discrimination on the basis
of family responsibilities.[3]
HREOC submitted that:
The SDA currently does not provide any guidance as to how its
provisions are to be interpreted with respect to Australia’s international
legal obligations.[4]
3.5
HREOC acknowledged that, at common law, there are rules of statutory
construction which require that domestic legislation should be interpreted
consistently with Australia’s obligations under international law and that these
rules have particular application where a domestic statute gives effect to Australia’s
obligations under a particular international convention.[5]
Despite this, HREOC considered that:
...an explicit direction within the SDA to codify this common
law principle would help to clarify this point for courts and litigants and
help to ensure that the SDA is applied consistently with CEDAW and relevant
international obligations under the ICCPR, ICESCR and ILO Conventions in all
cases. It would also help to elevate this presumption of statutory construction
above the melee of competing presumptions.[6]
Drafting of the objects
3.6
Subsections 3(b), (ba) and (c) of the Act provide that the objects of
the Act include elimination of discrimination on various grounds ‘so far as is
possible’. Several submissions argued that the objects of the Act should not be
stated so equivocally and, in particular, should not be qualified by the phrase
‘so far as is possible’.[7]
For example, the Women’s Electoral Lobby argued that:
It is not a statutory convention within Australian law to
proscribe wrongful behaviour and then qualify it with the words ‘so far as is
possible’. We would not tolerate an injunction “to drive on the left-hand side
of the road ‘so far as possible’”. Most significantly, no such qualification is
used in CEDAW, which ‘condemns discrimination against women in all its forms’
(Art 2). [8]
3.7
Similarly, the collaborative submission from leading women’s
organisations and women’s equality specialists (the Collaborative submission)
noted that:
The Objects clause of the SDA undermines the entire SDA because
almost every subsection is equivocal. Section 3(a) states that it will give
effect only to ‘certain provisions’ of CEDAW. The repeated use of the
qualifier, ‘so far as is possible’, appearing in the first line of the
Preamble, and repeated in ss3 (b), (ba) and (c), confirms the impression that
the SDA is ambivalent about its aims.[9]
3.8
In its submission, HREOC also noted that this qualification is not
consistent with CEDAW:
The term ‘so far as is possible’ limits the object of the SDA in
a way that is not provided under CEDAW. CEDAW provides that state parties are
under a general obligation to eliminate discrimination against women. The term
‘so far as is possible’ reflects that the substantive provisions of the SDA do
not go as far as this obligation under CEDAW.[10]
3.9
In summary, HREOC argued that the use of the term ‘so far as is
possible’ results “in a qualified commitment to international obligations,
which is inappropriate in respect of an Act of such importance as the SDA” and
recommended its removal.[11]
3.10
The Women’s Electoral Lobby suggested replacing the phrase ‘to eliminate
as far as is possible’ with ‘to prohibit’, on the basis that ‘to prohibit’ is
stronger than the phrase ‘to eliminate’ and is also more commonly used in legal
parlance.[12]
Definitions in the Act
Definition of Discrimination
3.11
Many submissions were critical of the existing definition of
discrimination under sections 5 to 8 of the Act and, in particular, the use of
the distinction between direct and indirect discrimination. For example, Dr Belinda
Smith considered that:
[A] significant limitation of the SDA is the distinction between
direct and indirect discrimination. This distinction, largely replicated across
all Australian antidiscrimination laws, is artificial, chimerical, difficult to
understand and thus difficult to comply with and enforce.[13]
3.12
National Association of Community Legal Centres and the Combined
Community Legal Centres Group (NSW) (NACLC) also submitted that:
The distinction between ‘direct’ and ‘indirect’ discrimination
is technically complex and difficult to apply. To determine whether a person
has been subject to ‘direct discrimination’, that person needs to work out
whether they have received less favourable treatment; to determine if they have
been the subject to ‘indirect discrimination’, that person needs to work out
whether the treatment they have received has had a less favourable impact on
them. This places the entire burden on the complainant to deal with such a
contrived distinction, and [they] risk failing in their complaint if they are
unable to argue it.[14]
3.13
The Law Council of Australia and the New South Wales Bar Association
(Law Council) suggested that the best approach to simplifying the definitions
of discrimination under the Act would be to remove the distinction between
indirect and direct discrimination altogether:
[T]he definition of both direct discrimination and indirect
discrimination under the Act ought to be repealed and replaced with the
definition of discrimination against women contained in article 1 of CEDAW. We
say this will also address some of the complexities that currently exist in the
Sex Discrimination Act.[15]
3.14
In a similar vein, Professor Margaret Thornton recommended that a
broader definition of discrimination that adverts to substantive discrimination
in a way that more accurately reflects the definition contained in Article 1 of
CEDAW is required.[16]
Direct discrimination
3.15
Several submissions argued that direct discrimination is defined too
narrowly under the Act because it requires the complainant to show he or she
has been treated less favourably, in circumstances that are not materially
different, to the way a person of the opposite sex would have been treated.
This hypothetical person of the opposite sex is known as ‘a comparator’.[17]
The Australian Council of Trade Unions (ACTU) notes that:
The current definition of direct discrimination requiring unfair
comparison with a male comparator is problematic where there is no evidence
available of a male in the same or similar circumstances. The requirement for a
direct male comparison particularly precludes pay inequity claims where male
and female workers perform different types of work, or between different
workplaces or on the basis of occupational segregation.[18]
3.16
An officer of HREOC submitted that, while a comparator may be useful in
some circumstances for determining whether discrimination has occurred, it
should not be an element of the definition of discrimination:
Engaging in a hypothetical comparative exercise as to how
someone else may or may not have been treated in same or similar circumstances
is often a very useful analytical tool for answering that question of
causation. But in our view, including it as a separate element in the definition
as a substantive positive duty of an applicant to establish as a question of
fact can involve a very artificial distraction from that central inquiry.[19]
3.17
He provided an example of the difficulties associated with the
requirement for a comparator:
To give an example, the Sex Discrimination Act clarifies that
breastfeeding is a characteristic appertaining to women, but if there is a
claim of discrimination on the basis of breastfeeding, the comparison is with a
man, in the same or similar circumstances. [That] just is not really a fair
comparison. Men do not breastfeed and they do not do anything that is even
remotely similar to breastfeeding. Yet a claim cannot succeed unless the
applicant can positively establish that there is a comparator so that this
comparative exercise can be undertaken.[20]
3.18
Similarly, Associate Professor Simon Rice stated that it is “both
conceptually and practically difficult for a person to have to prove direct
discrimination on the basis of a comparator.”[21]
3.19
It was further argued that the interpretation of this comparative
element of the definition of direct discrimination by the courts has made it
extremely difficult for complaints to make out a case of direct discrimination.
For example, Dr Smith argued that the narrow interpretation of similar direct
discrimination provisions under the Disability Discrimination Act 1992
by the High Court, in Purvis v New South Wales[22]
(Purvis), has ‘decimated’ the scope of direct discrimination under the Act.[23]
The Collaborative submission similarly suggested that the Purvis case
“raises the burden of proof in direct discrimination complaints to insuperable
heights.”[24]
3.20
In the Purvis case, the High Court considered whether the
expulsion of a boy who had suffered a brain injury which caused behavioural problems
was direct disability discrimination. The majority of the court held that in
determining whether discrimination had occurred the complainant’s treatment
should be compared with how a student without a disability, who had exhibited
similar violent behaviour, would have been treated.[25]
Job Watch noted that:
The minority of McHugh and Kirby JJ held that this behaviour was
a manifestation of the disability and therefore should be excluded from the
construction of the Comparator. However, the majority of the Court thought that
it was the outburst that led to his expulsion and it would seem artificial to
remove this aspect from the objective circumstances. The High Court found that
the school did not directly discriminate against the student because the school
would have also expelled a violent student who did not have an intellectual
disability so the student was not treated differently than the Comparator would
have been treated.[26]
3.21
Dr Smith submitted that the impact of the decision in Purvis is
that the direct discrimination provisions will not prevent discrimination on
criteria which are closely linked to sex but are not expressly sex:
In essence the case makes clear that direct discrimination
provisions do not prevent employers (education providers, etc) from using
criteria that very closely connect or overlap with traits that are supposedly
protected by the SDA. For example, while an employer may be prohibited from
applying a blanket exclusion of women, direct discrimination provisions allow
the employer to choose the candidate who can work 24/7, can do overtime on
short notice, will not take extended leave, will not take their entitlement to
carer’s leave or any other criteria that may have a gendered element but is not
expressly ‘sex’. ...The indirect discrimination provisions are still available
to challenge such criteria, but with all the uncertainty and litigation
difficulties that indirect discrimination provisions entail. [27]
3.22
Job Watch also argued that the decision establishes a test for direct
discrimination which:
...makes it too easy for a respondent to evade liability for
direct discrimination by claiming that their discriminatory behaviour was
because of a consequence of the complainant’s sex or marital status etc and not
the sex or marital status itself.[28]
3.23
Job Watch supported amending the Act to alter the way the comparator is
constructed by the courts.[29]
However, HREOC and Professor Rice suggested that the ‘comparator’ test for
discrimination be replaced altogether by a ‘detriment’ test similar to that
used in paragraph 8(1)(a) of the Discrimination Act 1991 (ACT).[30]
In essence, this would mean a person discriminates against another person if
the person treats or proposes to treat the other person unfavourably because of
an attribute such as his or her sex or relationship status.
Indirect discrimination
3.24
As discussed in chapter 2, indirect discrimination occurs where a
condition, requirement or practice is imposed that is likely to have the effect
of disadvantaging people of one sex, people of a particular marital status or
women who are pregnant or potentially pregnant. It is therefore concerned with
practices which on the face of it treat everyone equally but which disadvantage
particular groups because of the characteristics of those groups. HREOC explained
in its submission:
Indirect discrimination targets facially neutral barriers which
appear to treat everyone equally, but which disproportionately impact on
particular groups (ie women) due to structural, historical, attitudinal,
biological and social inequalities and barriers.[31]
3.25
The Collaborative submission explained how indirect discrimination is
thus linked to the notion of substantive equality as opposed to formal
equality:
In many areas of life, men and women are differently situated,
so requiring same treatment will not ensure equality. For example women cannot
always be treated like men in the workforce as they have specific needs as a
result of their childbearing function. Substantive equality looks to situations
where it is necessary to treat someone differently because they are differently
situated, in order to ensure equality. ...
Indirect discrimination, by challenging apparently neutral
practices that disadvantage women, or married people, or pregnant people, could
provide a path towards substantive equality.[32]
3.26
Some submissions pointed to a need to clarify what constitutes ‘indirect
discrimination’ because this type of discrimination is poorly understood.[33]
The Anti-Discrimination Commission Queensland explained that:
Indirect discrimination ...is a complex notion and not readily
identified in terms of the obligations of employers, service providers and the
like. At the ADCQ, it is common to hear ‘but how can that be discrimination if
the policy (or requirement) applies to everyone?’. Little headway can be made
in achieving equality where discrimination remains misunderstood, including by
those who are victims of it.[34]
3.27
In addition, the Collaborative submission argued that the provisions
prohibiting indirect discrimination have not actually operated to promote
substantive equality because of the barriers to proving an indirect
discrimination claim. In particular, complainants face difficulties, firstly in
identifying a condition, requirement or practice, and secondly in relation to
the reasonableness test under section 7B.[35]
3.28
HREOC agreed that recent court cases have taken a narrow approach to identifying
a condition, requirement or practice and pointed particularly to the cases of Kelly
v TPG Internet Pty Ltd[36]
(Kelly) and the High Court decision in New South Wales v Amery[37]
(Amery).[38]
HREOC explained that in Kelly:
[T]he applicant alleged indirect discrimination because of her
employer’s failure to grant her request for part-time work following her return
from maternity leave. Raphael FM rejected this aspect of the claim on the basis
that there was no relevant requirement, condition or practice. His Honour
reasoned that the refusal of part-time work was merely the refusal of an
employment-related benefit, which his Honour distinguished from a requirement,
condition or practice of employment.[39]
3.29
The Amery case concerned a challenge to different pay
scales applicable to long term casual and permanent teachers, on the basis that
the lower pay scales available to casual teachers indirectly discriminated against
women. This challenge relied not upon subsection 5(2) of the Act but on a
similar indirect discrimination provision in the Anti-Discrimination Act 1977(NSW).
HREOC noted:
A majority of the High Court held that the applicants had failed
to establish a relevant requirement or condition of the position (the NSW
legislation does not include ‘practices’). The majority distinguished casual
and permanent teachers as being separate positions and, accordingly, the pay
scales applicable to one position could not be regarded as a condition,
requirement or practice in relation to the other position.[40]
3.30
HREOC submitted that:
One approach to remedying this situation would be to require
that an applicant simply establish that the relevant circumstances (including
any terms, conditions or practices imposed by the respondent) disadvantaged
women (or other relevant groups). ...This would remove the need for technical
disputes over whether the respondent has imposed a relevant requirement,
condition or practice.[41]
3.31
However, it should be noted that the Law Council considered that the decision
in Amery is of little relevance to the Act because of the different
language used by paragraph 24(1)(b) of the Anti-Discrimination Act 1977(NSW)
and subsection 5(2) of the Act.[42]
3.32
Section 7B provides that a condition, requirement or practice is not
discriminatory if it is ‘reasonable in the circumstances’. HREOC suggested that
the test under section 7B should be more stringent:
What cases often turn on in indirect discrimination cases is whether
the relevant requirement, condition or practice is reasonable. Reasonableness
is the relevant threshold.
...We question whether or not reasonableness is an appropriate
standard in this area. The SDA draws on Australia’s human rights obligations
and, as such, effectively that is a form of protection of human rights.
International jurisprudence on limitations of human rights establishes that for
a limitation to be justified, it needs to be something more than just
reasonable. It needs to be pursuant to a legitimate object and it needs to be
proportionate to the achievement of that object.[43]
3.33
The Collaborative submission expressed similar reservations and argued that
reasonableness is:
...far too open textured a test, as it suggests no objective
requirement. It is much lower than comparable tests in the USA (where
proportionality and business necessity must be established) and the UK (where
the test is ‘justified’).[44]
3.34
HREOC recommended that the reasonableness test be reviewed with a view
to replacing it with a standard that more explicitly requires an assessment of
the legitimacy of the object being sought, and the proportionality of the means
being adopted to achieve that object.[45]
Definition of other terms
3.35
A number of submissions argued that the definitions of ‘marital status’
in section 4 and ‘family responsibilities’ in section 4A discriminate against
same sex couples.[46]
Essentially, this is because, while both definitions use the term ‘de facto
spouse’, the definition of ‘de facto spouse’ in section 4 is limited to a
partner of the opposite sex.
3.36
The committee notes that the Same-Sex Relationships (Equal Treatment
in Commonwealth Laws—General Law Reform) Act 2008 amends the definition of ‘family
responsibilities’ in section 4A to provide coverage to same-sex couples in
relation to discrimination on the grounds of family responsibilities. However, the
Act did not amend the definitions of ‘marital status’ and ‘de facto spouse’ in
section 4 to provide same-sex couples with protection against discrimination on
the basis of their relationship status.[47]
An officer from HREOC explained that:
The marital status provision at the moment applies to people who
are in a de facto relationship, but only if you are in an opposite sex
relationship. Our recommendation is simply to extend that protection to people,
regardless of whether or not it is a same-sex relationship or an opposite sex
relationship.[48]
3.37
Finally, the Anti-Discrimination Commissioner of Tasmania suggested the
definition of ‘club’ in section 4 is too narrow because it is limited to clubs
supplying alcohol for consumption on the premises. The Commissioner pointed out
that this definition posed a technical barrier to bringing complaints against
clubs which do not supply liquor.[49]
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