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Annual Report 2001-2002: Chapter 8

Human Rights and Equal Opportunity Commission Annual Report 2000-2001

Chapter 8: Sex Discrimination

Former Sex Discrimination Commissioner Ms Susan HallidaySex
Discrimination Commissioner, Susan Halliday

The term of the
Sex Discrimination Commissioner, Susan Halliday, expired on 26 April
2001 and the federal Attorney - General, the Hon. Daryl Williams, AM,
QC, MP announced the appointment of Ms Pru Goward as Sex Discrimination
Commissioner for a five-year term on 29 June 2001. Ms Goward commenced
her appointment on 30 July 2001. In the interim, the President acted
as Sex Discrimination Commissioner.

The Sex Discrimination
Commissioner, on behalf of the Commission, may seek leave of courts
to intervene in cases that raise issues relating to discrimination under
the Sex Discrimination Act. In the last reporting year, the Commission
sought and was granted leave to appear and make submissions in the case
brought by the ACTU in the Australian Industrial Relations Commission
seeking to extend parental leave entitlements for casual workers.

The Commissioner
has a broad educational role to highlight the rights of individuals,
as well as the responsibility of all members of the community to respect
the rights of others and to work cooperatively in developing a fair
and cohesive society.

Education and promotion

Commissioner Halliday
continued her strong educative focus in the last year of her term, working
regularly with school students as well as organisations in the private,
non-government and community sectors. The Commissioner conducted extensive
community education campaigns utilising a range of media.

Harsh Realities 2

Harsh Realities
was launched in Adelaide at the South Australian Equal Opportunity
Commission on 8 November 2000. The set of 17 case studies represent conciliated
complaints of alleged unlawful discrimination lodged under the Sex Discrimination
Act and cover sexual harassment, pregnancy discrimination and sex discrimination
in employment, education and the provision of goods and services.

The launch generated
local radio and print media coverage, and was attended by over 40 representatives
of employers, State Government, schools and non-government organisations.
South Australian Equal Opportunity Commissioner Linda Matthews and her
staff were very generous with their support of the Harsh Realities 2

Woman of the World package

A package aimed
at a general audience, particularly young women, providing information
about the international human rights framework for women and the importance
of human rights for women was launched on International Women’s
Day 8 March 2001. Entitled Woman of the World: Know your international
human rights and how to use them, it comprises 13 information sheets
about the CEDAW, its history, development and implementation domestically.
It deals with the Sex Discrimination Act and the Optional Protocol to
CEDAW and includes resources and contact information for people wishing
to promote, secure and protect women’s rights. The package also
contains a poster. Feedback on the package has been highly positive.

Advertising postcards

Two postcards were
commissioned from Avant Card to promote awareness about the importance
of advertising that dignifies, rather than devalues, women. The two
postcards focus on outdoor advertising, and followed recent concerns
about the lack of respect and sensitivity, and general sexism, displayed
in outdoor advertising media. The first card was co-sponsored by the
Office of the Status of Women and was launched on 7 March 2001, the
day before International Women’s Day, in order to feed into the
celebrations for that day. The second card was co-sponsored by the Australian
Advertising Federation and was launched by Commissioner Halliday on
23 April 2001. Feedback from users of the cards through Avant Card has
been generally positive.

Research and policy

National Inquiry into Pregnancy
and Work

On 26 August 1998
the federal Attorney-General the Hon. Daryl Williams AM QC MP requested
the Commission to undertake a National Inquiry into issues relating
to pregnancy and workplace discrimination.

Launched in 1999,
Pregnant and Productive: It’s a right not a privilege to work
while pregnan
t made 46 recommendations to Government.

The Government
made a formal response to the 46 recommendations on 1 November 2000.
The Government accepted 23 of the 46 recommendations. Importantly, the
Government proposed to amend the Sex Discrimination Act to:

  • clarify that
    particular interview questions and pregnancy testing are prohibited
    as part of the recruitment process; and
  • include breastfeeding
    as a ground of discrimination.

In response to
Recommendation 13, the Government, through the Department of Employment,
Workplace Relations and Small Business and the Office of the Employment
Advocate, is drafting a pamphlet to be distributed to all workplace
participants concerning their rights and responsibilities in relation
to pregnancy and potential pregnancy in the workplace.

In addition, in
direct response to recommendation 16, the Office of the Employment Advocate
has commissioned an employee survey to elicit information on the progress
of Australian Workplace Agreements in contributing to the prevention
and elimination of discrimination in the workplace in relation to pregnancy
and potential pregnancy.

In response to
Recommendation 12, the Government has agreed that the Minister for Employment,
Workplace Relations and Small Business consider the position of pregnant
and potentially pregnant employees in any future workplace relations
reform to ensure that such employees are not exposed to the possibility
of direct and indirect discrimination.

However the Government
failed to agree to a number of important recommendations. In particular,
the Government refused to consider:

  • sponsoring economic
    modelling for paid maternity leave;
  • empowering the
    Commission to publish enforceable standards in relation to pregnancy
    and potential pregnancy;
  • amending the
    Sex Discrimination Act to ensure coverage of unpaid workers, and
  • removing the
    exemption in the Sex Discrimination Act for educational institutions
    established for religious purposes in relation to pregnancy and potential
The Pregnancy

The terms of reference
for the Pregnancy Inquiry required the Commission to produce a set of
educative guidelines to assist all workplace participants and particularly
employers and managers to better understand their obligations and adhere
to the existing legislative framework. The need for educative Guidelines
clearly emerged as one of the priorities in the Pregnant and Productive

Commissioner Halliday
launched the Pregnancy Guidelines nationwide in April 2001. The Guidelines
set out principles to avoid discrimination at each stage of the employment
relationship – recruitment, during employment, taking leave and
dismissal and retrenchment. Case studies and examples set out how employers
can avoid discrimination, as well as explaining other obligations contained
in industrial relations and occupational health and safety laws.

The Pregnancy Guidelines
also contain information on developing and implementing workplace policies
that can assist in ensuring employers comply with their obligations
as well as improving productivity and efficiency.

Sex Discrimination in the
Banking and Finance Industry

The Sex Discrimination
Unit continued to support Ms Sara Charlesworth in her research of the
influence of the industrial and anti-discrimination legislative frameworks,
as well as non-legislative factors on the treatment of sex discrimination
in the banking and finance industries.

Migrant and refugee women

As part of the
Commission’s preparations for the United Nations Third World Conference
Against Racism, Racial Discrimination and Xenophobia and Related Intolerance,
to be held in Durban, South Africa in August – September 2001,
the Sex Discrimination Unit organised a series of focus groups with
immigrant and refugee women and community workers. The focus groups
were organised in consultation with Immigrant Women’s Speakout
and were held in June – July 2001.

The aim of the
focus groups was to provide the Commission with information about the
experiences of the women concerned as well as recommendations for action
to be taken by government, both generally and specifically in the context
of the World Conference. The meetings assisted the Commission to understand
better the range of experiences of women who suffer disadvantage and
discrimination on the basis of race in Australia.

The Sex Discrimination
Unit also prepared an issues paper on the intersection between race
and gender that informed the focus groups and the Commission consultations


Comments to the Education

On 7 September
2000, the Sex Discrimination Unit contributed a submission on behalf
of the Commission to the House of Representatives Standing Committee
on Employment, Education and Workplace Relations’ Inquiry into
the Education of Boys.

Labour Hire Inquiry

The Sex Discrimination
Unit contributed on behalf of the Commission a substantial submission
to the NSW Government Task Force set up to inquire into the Labour Hire
Industry. The submission raised issues around the Sex Discrimination
Act and indirect discrimination, and the difficulty of identifying or
categorising contemporary employment relationships in order to allow
for a remedy to be pursued under this Act. The submission was made on
14 September 2000.

Inquiry into the proposed amendment to the Sex Discrimination Act regarding
IVF services

On 1 November 2000,
the Senate referred the Sex Discrimination Amendment Bill (No. 1)
to the Legal and Constitutional Legislation Committee for inquiry
and report. There were no specific terms of reference for the inquiry.

The submission
was prepared by the Sex Discrimination Unit and the Legal Section on
behalf of the Commission. In November 2000, Commissioner Halliday appeared
before the Legal and Constitutional Legislation Committee to present
the Commission’s opposition to the Bill. On 19 February 2001, the
Sex Discrimination Commissioner made a supplementary submission in response
to the 13 February oral evidence of the Attorney General’s Department.

The Senate Committee
released its findings on 27 February 2001. The Inquiry into the Provisions
of the Sex Discrimination Amendment Bill 2000 Report found that
the Federal Government’s plan to exclude women from assisted reproductive
technology (ART) based on their marital status would be contravening
not only the UN’s Convention on the Elimination of Discrimination
Against Women (CEDAW) but also the Sex Discrimination Act 1984.

The majority Report
stated that:

  • the Bill is
    completely ineffective in implementing the government’s stated
    intention to ensure the best interests of the child (paragraph 5.6);
  • the Bill will
    amend the Sex Discrimination Act so as to conflict with the very treaty
    that the Act is intended to implement (paragraph 5.8);
  • the Bill is
    contrary both to the spirit and the letter of the Sex Discrimination
    Act (paragraph 5.10);
  • no compelling
    case had been made that the rights of children will be advanced by
    the passing of the amendments, but the rights of some women will be
    diminished (paragraph 5.14).

The report does
not make any recommendation that the Bill not be passed. Rather, it
leaves this matter to the Senate to decide. The detailed dissenting
reports of Labor Senators Hogg and Collins, Independent Senator Harradine
and Government Senators Coonan and Mason provide strong support for
the Bill.

The Government
states that the Bill is designed to ensure that the States and Territories,
which have responsibility for the provision of health and medical care
and treatment, should be able to legislate to restrict ART procedures
to women who are married or living in de facto relationships. Despite
the reservations expressed in the majority Report, the Government responded
to the Report by stating that it intended to proceed with the Bill.

ACTU test case - parental
leave to long-term casuals

As part of a strategy
aimed at promoting work and family balance, and with a view to implementing
recommendation 25 of the report Pregnant and productive: it’s
a right not a privilege to work while pregnant
, the ACTU applied
to the Australian Industrial Relations Commission (AIRC) seeking to
extend parental leave to long-term casual workers.

The Commission
sought and was granted leave to intervene on 15 February 2001. The Commission’s
written submissions in support of the ACTU’s application were filed
on 3 April 2001.

In summary the

  • support the
    extension of parental leave to long term casual employees;
  • provide evidence
    of an increase in casual employment and that casual work is predominantly
    performed by women;
  • draw the AIRC’s
    attention to its obligations to help prevent and eliminate discrimination;
  • set out evidence
    provided to the National Inquiry into Pregnancy and Work and complaints
    made to Commission that show that casual employees are often dismissed
    or subjected to other detriment on announcing their pregnancy;
  • alert the AIRC
    to the potential for indirect discrimination to arise from denying
    casual employees access to parental leave entitlements.

The AIRC decided
to grant parental leave entitlements to casual employees covered by
federal awards in its decision of 31 May 2001.

Amicus matter: Harrison
v Santos

Under amendments
to the Human Rights and Equal Opportunity Commission Act 1986, Commissioners
now have the function of assisting the Federal Court or Federal Magistrates
Court as amicus curiae, ‘a friend of the court.’ Commissioner
Halliday first sought to exercise this function in the case of Harrison
v Santos Ltd, for which the Commissioner provided an affidavit in support
of the application to intervene as amicus curiae. The matter was subsequently

Consultation and Speeches


The Commissioner
and staff of the Sex Discrimination Unit conducted over 80 consultations
during the financial year, with international human rights and government
officials, major employers and employer groups and women’s organisations.


Attached is a selection
of speeches, seminars and presentations made by Commissioner Halliday
in the reporting period. Selected papers are available on the Commission’s
website at:

16 August, 00 National
Status of Women Council, Melbourne, 16th Anniversary Proclamation of
Sex Discrimination Act 1984

18 August, 00 Women
at Work Conference, Gold Coast, Sexual Harassment in the Workplace

23 August, 00 Macquarie
University, Sydney, Lecture to Bachelor of Business Administration students

29 August, 00 Youth
Challenge, Canberra, Human Rights

29 August, 00 Victorian
Women Dentists Association, Melbourne, Gender Differentials: women as

30 August, 00 Australian
Human Resources Institute, Melbourne,
What’s sex got to do with it? Work, Life and Relationships.

5 September, 00
Sydney University student rally, In support of CEDAW and signing the
Optional Protocol

29 September, 00
Association of Women Educators’ National Conference, Cairns, Marking
time or marching on?

11 October, 00
Frankston Luncheon Club

12 October, 0O
Australian Services Union Women’s Conference,

17 October, 00
Women’s Network Australia Breakfast, Brisbane, Complexity, Clout
and Change: Women in the New Millennium

27 October, 00
IBM Diversity Council briefing, Sydney

1 November, 00
Strategic Public Leaders Summit, via video conference to Perth, Good
Governance in Practice

1 November, 00
Business & Professional Women Dinner speech, Melbourne

4 November, 00
IR Society of Queensland Annual Convention, Gold Coast

8 November, 00
Launch of Harsh Realities 2, Adelaide

15 November,00
Institute of Public Administration ‘Wine, Women and Song’
function, Adelaide

17 November, 00
World Blind Union 2nd World Blind Women’s Forum, Melbourne, Women
with Disabilities; Doubly Disadvantaged

20 November, 00
Launch of Monash University Work/Life Strategy, Melbourne

28 November, 00
VCTA Comview Conference, Melbourne, IVF and the Law

28 November, 00
Sorry is not OK Conference, Melbourne, Workplace Violence

30 November, 00
Women and Racism Forum, Sydney, A discussion on the UN World Conference
Against Racism

6 December, 00
Disability Companion Card Launch

10 December, 00
HREOC Human Rights Awards 2000 MC

8 February, 01
Women Wise Up Conference, Using the UN to Advance the Rights of Women

15 February, 01
University Of NSW, An Unfavourable Climate – Current Issues for
Equity and Women

17 February, 01
Zonta Seminar, Into the 21st Century: Jumped or Pushed?

22 February, 01
IIR Conference, Identifying the current trends in workplace discrimination

7 March, 01 UNIFEM

7 March, 01 AEU
Annual International Women’s Day Dinner, Director SDU

8 March, 01 Launch
‘No Sweat Shop” Label, Director SDU

8 March, 01 Launch
CEDAW Kit: Woman of the World”, Director SDU

22 March, 01 IPAA
National Conference Rights Position, “On The World Stage: A Report
Card on Australia’s Human

23 March, 01 AUSYOUTH
Conference “Our Future Now–Empowering young people through
youth development”

02-23 April, 01
Pregnancy Guidelines Launch in all capital cities

24 April, 01 Launch
of Sterilisation Paper HREOC