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Annual Report 2002-2003: Chapter 8

Human Rights and Equal Opportunity Commission: Annual Report 2002 - 2003

8: Sex Discrimination

Sex Discrimination Commissioner

Commissioner Pru GowardCommissioner
Pru Goward’s appointment to the position of Sex Discrimination Commissioner
was announced on 29 June 2001. She commenced her term on 30 July 2001.

Statement from the Commissioner

My work over the past 12 months has ranged across a
number of issues but has been dominated by the issue of paid maternity
leave. In a nation with an array of mandated paid personal leave industrial
arrangements (such as sick leave and annual leave), the absence of a national
and mandatory paid maternity leave scheme could arguably be construed
as a matter of sex discrimination. However, there is no argument about
its usefulness as a positive measure in promoting gender equality. Child
birth and child rearing are undoubtedly the greatest sources of economic
inequality between men and women today and paid maternity leave goes some
way to addressing this. For this reason, it is identified as a necessary
step towards equality in the Convention on the Elimination of all
forms of Discrimination Against Women
(CEDAW), a United Nations treaty
which Australia ratified in 1983. At the time Australia entered two reservations
to the treaty, one being the absence of maternity leave with pay or with
comparable social benefits. This reservation remains unchanged to this
day. It was on the basis of these arguments that I have pursued this issue
as federal Sex Discrimination Commissioner.

Following the release of my interim discussion paper,
Valuing Parenthood, I embarked on an ambitious series of consultations
with employers, unions, community and women’s groups and parents
to consider the nature of a national approach. Submissions were sought
from the community, and in particular, child development and health and
welfare professional groups were invited to provide input. The Commission
received 257 submissions. This was the largest number of submissions ever
received by the Sex Discrimination Unit for any of its Inquiries or investigations,
all the more remarkable given the closely-defined nature of a single public
policy proposal.

My final discussion paper, A Time to Value, was released
in December 2002. The paper canvassed the limited capacity of the industrial
relations system to address the current inequities in the availability
of paid maternity leave and the failure of current government payments
to meet this need. The paper outlined the benefits of a national scheme
of paid maternity leave, such as assisting in ensuring the health and
well-being of women and their children, promoting equality, eliminating
discrimination, contributing to the maintenance of Australia’s fertility
rate and assisting with the maintenance of Australia’s human capital.

The final discussion paper recommended that women who
had been in paid work for 40 of the past 52 weeks be entitled to 14 weeks
of paid leave, up to the level of the Federal Minimum Wage (the paper
also recommended that the Government consider providing two weeks paid
paternity leave). The payment would be Government funded. Women receiving
the benefit would not be entitled to Family Tax Benefit A and B for those
weeks, would not be entitled to the first 12 months of the Baby Bonus
or to the Maternity Allowance. For this reason some women might choose
not to take the payment. The payment would not be available to women once
they returned to work within those 14 weeks. It was estimated that this
scheme would support 82 000 women currently in work at the time of their
child’s birth and enable them to afford to stay at home for the
first three months of the baby’s life.

Many aspects of this proposal were contentious –
employers and unions both had points of difference with aspects of the
proposal, as did some women’s groups and professional health groups.
In part, my final proposal was driven by my belief that the introduction
of paid maternity leave, for so long resisted by Australia and Australian
governments, would only be possible if it began modestly. In order for
the principle of paid leave to be adopted, it was important that the decision
was not complicated by affordability. The National Centre for Social and
Economic Modelling (NATSEM) was commissioned to provide costings of the
proposed model. NATSEM estimated that the net cost of such a scheme would
be $213 million each year, once the offsets outlined and reductions in
other government payments and increases in tax were included. It is not
unusual for governments to introduce policy measures of this order of
cost in an ad hoc way and without offsets or even much public discussion.

The government has yet to formally respond to the discussion
paper or to adopt any of its recommendations. The paper did, and continues
to, generate considerable community and media debate in which political
parties have been enthusiastic participants. That has established broad
cross-sectional recognition of the struggles of working families to have
sufficient time together, in addition to the rights of women in paid work
to rest and recover after birth and the importance of enabling them to
establish bonds with their children. I am continually invited to speak
about the proposal and humbled to find there is broad community support
for it, sometimes in unexpected quarters. Sadly, I am unable to provide
any comfort to those many young women who ask when the scheme will be
starting, although delighted to hear so many of them say support for the
proposal and the acceptance of working motherhood attached to it has made
them feel more confident about their capacity to combine paid work and
family responsibilities. In time we will look back on the paid maternity
leave debate as Australia turning the corner, but introducing it may also
prove to be easy compared with other aspects of ensuring paid work and
family responsibilities can be more readily met by Australians.

If only the same could be said of the horrors of trafficking
in women. Australia signed the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, especially Women and Children, supplementing the
United Nations Convention Against Transnational Organised Crime, but has
yet to comprehensively respond to its obligations to deal with trafficked
women as the victims of crime. Indeed, since legislation was enacted in
1999 regarding slavery and sexual servitude, there has not been a single
successful prosecution of a trafficker. Little is known about the extent
of trafficking in Australia, but that does not mean that slavery and sexual
servitude are not serious crimes. The tragic nature of it was highlighted
during the inquest of Puonthong Simaplee – a young Thai sex worker,
who claimed that she had been trafficked into Australia when she was found
working in a brothel without any visa. She died three days later in an
immigration detention centre. The government has responded to rising public
disquiet by seeking to develop an interagency and cross jurisdictional
approach to trafficking, which is to be commended. The Sex Discrimination
Unit and I have been pleased to be a part of that process.

Likewise, I provided a submission to the Northern Territory
Law Reform Committee’s Inquiry into the recognition of Aboriginal
Customary Law. My submission was based on consultations with a variety
of Indigenous women’s groups and activists in the Northern Territory
and identified a number of principles they believed should guide the Committee’s
deliberations. In particular, it was the strong wish of Indigenous women
to have crimes of violence treated within the Territory’s criminal
justice system and that any further recognition of traditional law reflects
the views of women as well as men and is tailored to the needs and structure
of individual communities. The consultations also reflected my concern
to engage in projects for the protection and promotion of the rights of
Indigenous women, who remain the most disadvantaged group of women in

The importance of developing sound jurisprudence in
sex discrimination law has driven the Commission to seek leave to intervene
or appear as amicus curiae in a number of cases. I sought, and was granted,
leave to appear as amicus curiae in Gardner v All Australia Netball Association
Ltd. My submissions argued that Ms Gardner had been discriminated against
by the respondent’s imposition of an interim ban preventing pregnant
women from playing netball in the national tournament the respondent administered.
Ms Gardner was pregnant when the ban was imposed and was prevented from
playing in several netball matches. The Federal Magistrate found that
Ms Gardner had been discriminated against on the basis of pregnancy pursuant
to section 7 in the provision of services under section 22 of the Sex
Discrimination Act 1984
(Cth) and the respondent was ordered to pay
$6 750 in damages to Ms Gardner for loss of income. My submissions to
the Court are cited extensively in the decision of the Federal Magistrate.

It is important that the Commission continues to intervene
in cases involving the Sex Discrimination Act and that I continue to seek
opportunities to be amicus curiae. I see the development of comprehensive
case law as vital to the acceptance of human rights and equal opportunity
in Australia and intend to play as active a role in legal forums as possible.
In addition, this work also highlights areas where legislative amendment
might be necessary.

Equal opportunity, the promotion of choice and equal
rights for women, as the debate about paid maternity leave so amply demonstrates,
is about improving the lives of all Australians. There are close connections
between the rights of women, economic growth and social harmony and progress.
Communities that ignore change and fail to make these connections, do
so at their peril. It is my task to ensure that these issues remain at
the forefront and to be vigilant and persistent in my pursuit of equality
that is embraced and enjoyed by all of us.

Research and policy

A Time to Value: Proposal for a National Paid Maternity Leave SchemeA
Time to Value: Proposal for a National Paid
Maternity Leave Scheme

Australia at present does not have legislation in place
that deals with the provision of universal paid parental or maternity
leave at either the national or state or territory level. Australia retains
its reservation to article 11(1) of the Convention on the Elimination
of All Forms of Discrimination Against Women
concerning paid maternity

The Sex Discrimination Commissioner’s options
paper on the issue, outlining options for the introduction of a national
scheme of paid maternity leave: Valuing Parenthood, Options for Paid
Maternity Leave
, was launched in Sydney on 18 April 2002.

Following the preparation of the interim paper, receipt
of submissions and consultations, the Sex Discrimination Commissioner
launched a final paper: A Time to Value: Proposal for a National Paid
Maternity Leave Scheme i
n Sydney on 11 December 2002.

The proposal makes 15 recommendations for a national
paid maternity leave scheme, with consideration given to aspects of funding,
coverage, eligibility, duration, payment level and payment mechanism.

Amy Shoemark, Year 12 student at William Clarke College (NSW), interviews Sex Discrimination Commissioner, Pru Goward on paid maternity leave; discrimination issues in schools; and equal opportunity in the workforce.Amy Shoemark, Year 12 student at William Clarke College (NSW),
interviews Sex Discrimination Commissioner, Pru Goward on paid maternity
leave; discrimination issues in schools; and equal opportunity in the


Additionally, the paper annexes a report by the National
Centre for Social and Economic Modelling (NATSEM) costing the paid maternity
leave proposal. The report from NATSEM concluded that the Commissioner’s
proposal would cost $213 million (net) in its first year.

The paper has generated significant interest within
government, the media and the community. The federal Government’s
Budget in May 2003 did not include provision for a paid maternity leave
scheme, however, the government has indicated publicly that paid maternity
leave is one of a number of options being considered as part of a taskforce
on work and family. The Sex Discrimination Commissioner has met with the
chair of that taskforce on three occasions.

Sexual harassment project

In January 2003, the Sex Discrimination Unit (SDU)
commenced a research project into the nature and incidence of sexual harassment
in employment in Australia. In collaboration with the Complaints Section
of the Commission, SDU analysed 152 sexual harassment complaints finalised
in 2002. The SDU also commissioned Gallup to conduct a telephone survey
on the nature and incidence of sexual harassment in the workplace. This
research will enable estimation of unreported sexual harassment.

A package of information, including public awareness
materials, will be launched later in 2003.

Trafficking in women

The Sex Discrimination Commissioner and the SDU have
been monitoring the situation in relation to trafficking of women in Australia.
In early April 2003, The Australian newspaper published a series
of articles on the issue, particularly focusing on the report of the inquest
into the death of a young Thai woman in Villawood Immigration Detention
Centre who had allegedly been trafficked into Australia. Following these
events, the Minister for Justice and Customs formed an interdepartmental
committee to examine appropriate approaches to the issue of trafficking
in women from a whole of government perspective.

The Sex Discrimination Commissioner, the SDU Director
and a member of the Legal Section, attended a meeting with the Minister
for Justice and Customs to discuss the issue. The Sex Discrimination Commissioner
also wrote to the chair of the inter departmental committee on 19 May
2003 outlining recommendations for approaching the problem of trafficking
in a manner that takes account of the human rights of those who are suspected
of being trafficked.

The Sex Discrimination Commissioner and Director are
in regular contact with government and community organisations to monitor
the issue of trafficking.

International projects

The Sex Discrimination Commissioner and an SDU staff
member travelled to China to participate and present at the second Workshop
on Family Violence in Minority Areas, held in Xining City, Qinghai Province
in July 2002, as part of the China-Australia Human Rights Technical Cooperation

As a member of the Asia Pacific Forum of National Human
Rights Institutions, representatives of the Commission attended the seventh
Annual Meeting held in New Delhi, India, from 11–13 November 2002.
The Director of the Sex Discrimination Unit was invited to participate
as a specialist in the area of trafficking in women.

The Sex Discrimination Commissioner was invited by
the Department of Foreign Affairs and Trade to travel to Taipei, Shanghai
and Hong Kong to deliver a number of speeches for International Women’s
Day 2003, and to deliver a keynote address at the Faculty of Law, University
of Hong Kong, on the role of the Commission in Australia. These visits
took place between 6–12 March 2003.

As part of the Australian Government delegation, the
Commissioner and the SDU Director attended the 47th session of the Commission
on the Status of Women at the United Nations in New York, between 3–14
March 2003.

The Commissioner and the SDU Director attended and
presented at a county level training course on trafficking in women in
Chengdu City, Sichuan Province, China between 30 March and 4 April 2003,
as part of the China Human Rights Technical Cooperation Program.


Comment on Australia’s 4th and 5th Reports
on Convention on the Elimination of All Forms of Discrimination Against
All Women (CEDAW)

The Commission was asked to comment on Australia’s
draft CEDAW report. A full list of the Commission’s publications
aimed at raising awareness of women’s rights was supplied, along
with updates of legislative amendments to the Sex Discrimination Act 1984
(Cth) and the Human Rights and Equal Opportunity Act 1986 (Cth).

Comments on Australia’s Report under Equal
Remuneration Convention 1951 (ILO 100)

The Commission’s contribution to Australia’s
Report under ILO 100 outlined work on the Pregnancy Guidelines, the Paid
Maternity Leave project and the preparation of several submissions, including:

• the Commission’s intervention in Gunn
and Taylor Pty Ltd v AMWU
AIRC, 4 June 2002 [PR918573] (an appeal
before the Full Bench of the Australian Industrial Relations Commission)
• the Commission’s submission to the NSW Government Task
Force set up to inquire into the Labour Hire Industry, and
• the Commission’s intervention into the Australian Council
of Trade Union’s test case on parental leave for casual workers.

In response to the Committee of Experts’ direct
requests, the Commission provided information on the range of publications
it produces relevant to pay equity issues and on the outcomes of the National
Pregnancy and Work Inquiry.

Submission to the Northern Territory Law Reform Committee
Inquiry into the Recognition of Aboriginal Customary Law in the Northern

The Sex Discrimination Commissioner, on behalf of the
Commission, lodged a submission to ‘Towards Mutual Benefit: An Inquiry
into Aboriginal Customary Law in the Northern Territory’ on 14 May
2003. This Inquiry is being conducted by a sub-committee of the Northern
Territory Law Reform Committee and will report to the Northern Territory
Government. The submission focused on the interaction of gender, human
rights and Customary Law, with particular emphasis on Indigenous women’s
experience of violence. The submission drew on consultations held with
Indigenous women on Groote Eylandt, Darwin and Alice Springs in the Northern
Territory. An accompanying submission was prepared by the Aboriginal and
Torres Strait Islander Social Justice Commissioner.

Sex Discrimination Act exemption

The Department of Immigration and Multicultural and
Indigenous Affairs (DIMIA) lodged a request for an extension to its temporary
exemption from the Sex Discrimination Act 1984 (Cth) (SDA) on 7 August
2002 in relation to its Residential Housing Project. The Woomera Residential
Housing Project (WRHP) enables some women and their children to live in
family-style accommodation away from the Immigration Reception Processing
Centre (IRPC), while remaining in immigration detention. Following a visit
to the WRHP and IRPC by the Sex Discrimination Commissioner and Human
Rights Commissioner and staff, a Notice of Exemption was granted on 14
October 2002 for a further 12 months, subject to the condition that DIMIA
permit the Commission to monitor the operation of the project.

On 29 July 2002, the Civil Aviation Safety Authority
lodged an application for exemption under both the SDA and the Disability
Discrimination Act 1992, to allow discrimination on the grounds of pregnancy
or disability where this prevents a person from safely fulfilling the
inherent requirements of the role covered by the licence concerned. Submissions
were sought from the public on this matter and a total of 11 submissions
were received. The Commission granted an exemption on 26 November 2002
for the duration of five years.

On 30 August 2002, the Catholic Education Office, Archdiocese
of Sydney, applied for an exemption under the SDA in relation to proposed
scholarships for male trainee primary school teachers. The Commission
received 11 submissions in response to a public notice of inquiry. A notice
of the decision declining to grant the exemption was issued on 27 February
2003. The Catholic Education Office has lodged an application seeking
to have that decision reviewed by the Administrative Appeals Tribunal.

Interventions and amicus

The Commission has the power, under both the Human
Rights and Equal Opportunity Commission Act and the SDA, to intervene
with the leave of the court in court proceedings that involve human rights
or discrimination issues. In addition, section 46PV of the Human Rights
and Equal Opportunity Commission Act confers on the special purpose Commissioners,
including the Sex Discrimination Commissioner, the function of assisting
the Federal Court and the Federal Magistrates Service in certain cases
as amicus curiae (or friend of the Court).

With the assistance of the Sex Discrimination Unit,
the Legal Section monitors and intervenes in appropriate matters concerning
discrimination based on sex.


A selection of the 87 public addresses made by the
Sex Discrimination Commissioner during 2002–03 are listed below.
Further speeches can be accessed on the Commission’s website at

Work and Life: Today’s Issue, Work Life
Issue Conference, Melbourne, 5 July 2002.

Paid Maternity Leave: Working for Women, 14th
Women, Management, and Employment Relations Conference, Sydney, 26 July

A Good Beginning: Women and Work, Good Beginnings and
Macquarie Bank National Awards, Sydney, 20 August 2002.

Sexually Permeated Workplaces: They Don’t
Work for Women,
National Association of Women in Construction Conference,
Melbourne, 15 August 2002.

Human Rights, Democracy and Women’s Choices, Hunter Valley Research Foundation Series, Newcastle, 3 September

Tomorrow Today, 21st Century Solutions, National
Work and Family Conference, Sydney, 4 September 2002.

Sex Discrimination and Women’s Human Rights, University of Technology Law School, Sydney, 23 September 2002.

Defence and Discrimination, Australian Defence
Force Intelligence Group, Canberra, 30 September 2002.

Innovation and Social Policy: How Social Policy
Works in the New Economy,
Canberra Business Council, Canberra, 17
October 2002.

Both Sides of the Thin Blue Line, Women and
Policing Globally Conference, Canberra, 20 October 2002.

Bearing the Burden of Culture, UNIFEM Australia
Reception, Brisbane, 24 October 2002.

Without Gender Prejudice, Without Prejudice
Forum, Sydney, 15 November 2002.

Professional Women: Choice and Challenge, Second
National Conference on Women in Science, Technology and Engineering, Sydney,
29 November 2002.

Today’s Changes, Tomorrow’s Challenges, Australian Mines and Metals Association Conference, 27 February 2003.

Women’s Rights, Human Rights and Economic
Australian Consulate General in Shanghai International
Women’s Day Luncheon, China, 10 March 2003.

All Aboard the ‘Mummy Track’, VIVE Magazine Working Mothers Forum, Sydney, 8 May 2003.

Women In Sport: The Current Playing Field,
Australian Sport Commission Women and Sport Forum, Sydney, 20 May 2003.

Changes in Population and Lifestyle – Impacts
on Workplace Practice
, Committee for Economic Development of Australia,
Adelaide, 23 May 2003.

Discrimination, Harassment and Equal Opportunity:
“Insights” Launch
, Clayton Utz Solicitors, Sydney, 11
June 2003.