Strengthening National Gender Equality Laws, Agencies and Monitoring
Sex discrimination remains a harsh reality for many Australian women, who continue to experience unfair treatment in the workplace and other spheres of life, with complaints on the grounds of SDA rising in recent years:
- In 2006/07 the Commission received 472 complaints.
- In 2007/08, the Commission received 438 complaints
- In 2009/10, the Commission received 532 complaints.
The Sex Discrimination Act 1984 (Cth) (SDA) protects people from discrimination on the grounds of sex, pregnancy, breast feeding and marital status, as well as protecting workers with family responsibilities.
Sex Discrimination Act 1984 (Cth): Review and Bill
In 2008, the Senate Committee conducted and completed an inquiry which examined the effectiveness of the Sex Discrimination Act 1984 (Cth) ‘in eliminating discrimination and promoting gender equality’.
Commissioner Broderick contributed to the review of the SDA to ensure that the law is effective to address sex discrimination and sexual harassment experienced by individuals, as well as promoting gender equality in Australian society.
On 2 September 2008, the Commission lodged its Submission to the Senate Inquiry into the Effectiveness of the Sex Discrimination Act 1984 (Cth). The current SDA is limited in its ability to proactively address the problem of gender inequality. It is also widely acknowledged that the SDA has never fully implemented our international legal obligations, particularly under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’).
The Commission’s submission explained that the SDA needed to be amended to:
- Address the problems with existing provisions which have emerged in the quarter of a century since its adoption;
- Enhance its ability to actively progress substantive gender equality and promote systemic reform; and
- Fulfill our international legal obligations.
The Commission made 54 recommendations for immediate reform of the SDA including;
- Specifying breastfeeding as separate grounds for discrimination;
- Increasing protection from discrimination on the grounds of family and carer responsibilities; and
- Strengthening sexual harassment laws, both in terms of what constitutes harassment and who is protected and liable.
It also recommended a more extensive second stage review to consider 11 more reform proposals, including a national inquiry into the merits of a comprehensive Equality Act of Australia.
The Senate Committee tabled its Report on the Inquiry in 2008. The Report included 43 recommendations. The Committee reported that the majority of its recommendations should be introduced immediately. Some of these recommendations included that the SDA:
- be interpreted in accordance with Australia’s obligations under international human rights law that related to gender equality;
- remove the requirement of a comparator and replace this with a test of unfavourable treatment;
- impose a positive duty on employers to reasonably accommodate flexible working arrangements; and
- amend and expand the functions and powers of the Commission and Commissioners.
The Report also included a number of recommendations that required further consideration over the next 12 months and longer term changes which required additional consultation. In 2010, the Government published its Response to the Senate Report proposing immediate action to amend the SDA by:
- ensuring the protections from discrimination apply equally to women and men, through reference to additional international instruments which create obligations in relation to gender equality;
- establishing breastfeeding as a separate ground of discrimination;
- providing greater protection from sexual harassment for students and workers; and
- extending protection from discrimination on the grounds of family responsibilities to both women and men in all areas of employment.
The Government Response noted that several of the outstanding recommendations would be considered by the Government in its consolidation of all Commonwealth anti-discrimination legislation into a single Act.
The Australian Government subsequently introduced the Sex and Age Discrimination Legislation Amendment Bill 2010 to amend the SDA to give effect to selected recommendations made by the Senate Committee.
The Bill was introduced to the House of Representatives on 30 September 2010 by the Attorney-General, the Hon Robert McClelland MP and the referred to the Senate Legal and Constitutional Affairs Committee.
The Bill had two purposes:
- To strengthen protections against sex discrimination and sexual harassment for both women and men, by amending the Sex Discrimination Act 1984 (Cth)
- To create a separate position of Age Discrimination Commissioner and to provide the mechanism and terms of appointment for the Age Discrimination Commissioner.
The Bill would amend the SDA in several areas including:
- Making breastfeeding a separate ground of discrimination
- Broadening the prohibition on discrimination on the ground of family responsibilities
- Strengthening protection against sexual harassment in the workplace and schools
- Prohibiting Sexual harassment by way of new technologies
- Exempting for official records of a person’s sex.
On 1 March 2011, the Committee released its report on its inquiry into the Sex and Age Discrimination Legislation Amendment Bill 2010.
The Sex Discrimination Act 1984 was amended by the passing of the Sex and Age Discrimination Legislation Amendment Bill in May 2011. The following amendments were made:
- Ensuring that protections from sex discrimination apply equally to women and men.
- Prohibiting direct discrimination against male and female employees on the ground of family responsibilities, in all areas of employment.
- Strengthening protections against sexual harassment in workplaces and schools and prohibiting sexual harassment conducted through new technologies.
- Establishing breastfeeding as a separate ground of discrimination, allowing measures to protect and to accommodate the needs of breastfeeding mothers.
These changes have significantly strengthened the SDA, and are an important step forward in ensuring that all members of the Australia community are not discriminated against due to their sex, and in promoting gender equality.
Links: Passage of sex and age discrimination legislation amendment a great day (25 May 2011)
Equal Opportunity for Women in the Workplace Agency (EOWA) Act: Review and Reforms
On the 30 October 2009, the Commission lodged its Submissions to the Inquiry into the Equal Opportunity for Women in the Work Place Act 1999 and Equal Opportunity for Women in the Workplace Agency (EOWA). The Equal Opportunity for Women in the Work Place Act 1999 (Cth) Review(EOWW Act) provided a unique opportunity to strengthen Australia’s national laws and institutions that regulate gender equality in Australian workplaces by amending the EOWW Act. The EOWA review highlighted some significant limitations with its current application and form.
The Government’s Responses to the Review were released on 9 March 2011. Several of the proposed reforms align with the recommendations from the Commission. The main reforms to EOWW Act and Agency include:
- The EOWW Act will be renamed the Workplace Gender Equality Act, and the Agency renamed as the Workplace Gender Equality Agency.
- The objects of the Act will include pay equity, against which organisations will be required to report, and will also acknowledge the caring responsibilities of both women and men.
- Coverage of the Act will be broadened to include men, particularly in relation to caring responsibilities.
- Employers will also be required to report on the gender composition of their boards.
FaHCSIA states that the amending legislation will be developed this year, with the new reforms to commence in 2013. Employers will also be subject to a transitional period before the reforms commence. More information can be found in Minister Kate Ellis, MP’s Parliamentary speech delivered on 9 March 2011.
25th Anniversary of the Sex Discrimination Act (Cth) 1984
The 25th Anniversary of the Sex Discrimination Act 1984 was celebrated in 2009. The SDA has been a major part of ensuring that all Australian’s are equal regardless of sex, promoting the elimination of discrimination on the basis of sex, marital status or pregnancy or potential for becoming pregnant. Since its introduction, the SDA has helped thousands of people, who have suffered sex discrimination seek redress, promoting gender equality in Australia in most areas of public life.
Related Speeches and Media
- Sex and Age Discrimination Legislation Amendment Bill 2010
- Better protection is needed against gender based discrimination in the 21st Century (4 September 2008)
- Time for fresh ideas to tackle sex discrimination (27 June 2008)
- Sex and Age Discrimination Legislation Amendment Bill 2010
- Senate Inquiry into the Effectiveness of the Commonwealth Sex Discrimination Act 1984 (Cth)
- Exemption applications under the Sex Discrimination Act 1984 (Cth)
- Guide to the Sex Discrimination Act
- Get the facts: Know your rights (2006)
- Getting to know the Sex Discrimination Act: A guide for young women (2002)
- Harsh Realities 2: Further Case Studies on Sex Discrimination in the Workplace (2002)
- Listening Tour Community Report. (July 2008)
 Australian Human Rights Commission, Annual Report 2009-2010 (2010)
 Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).