1996 GUIDELINES FOR SPECIAL MEASURES UNDER THE SEX DISCRIMINATION ACT 1984

Legal

1996 GUIDELINES FOR SPECIAL
MEASURES UNDER THE SEX DISCRIMINATION ACT 1984

CONTENTS

1.
INTRODUCTION

1.1 SHORT
TITLE

1.2 PURPOSE

1.3 INTERPRETATION

1.4 DEFINITION

1.5 SCOPE

1.6 THE SEX DISCRIMINATION ACT 1984

The objects of the Sex Discrimination Act

Grounds of discrimination

Areas where discrimination is unlawful Discrimination and equality

2.
CRITERIA

2.1 WHAT
IS A SPECIAL MEASURE

Purpose of the measure

Identifying inequality

Reasonable basis

Reasonable action

2.2 WHAT IS NOT A SPECIAL MEASURE

Mandatory affirmative action

Exemptions

Permanent exemptions

Temporary exemptions

3.
CASE EXAMPLES

3.1 WORK

Employment

Commission agents,contract workers

Partnerships

Qualifying bodies

Registered organizations under the Industrial Relations Act

Employment agencies

3.2 EDUCATION

3.3 GOODS, SERVICES AND FACILITIES

3.4 ACCOMMODATION

3.5 LAND

3.6 CLUBS

3.7 COMMONWEALTH LAWS AND PROGRAMS

4.
COMPLAINTS PROCESS

4.1 LODGING
A COMPLAINT

Who can lodge a complaint

Requirements for lodging a complaint

4.2 INVESTIGATION

Process where the act complained of may be a special measure

Process where the act complained of is a special measure

Process where the act complained of is discrimination

4.3 CONCILIATION

4.4 DECLINING COMPLAINTS

4.5 PUBLIC INQUIRIES

4.6 ENFORCEMENT PROCEDURES

4.7 CERTIFICATION

5.
CHECKLIST

IS IT
A SPECIAL MEASURE?

APPENDICES

A: DEFINITIONS

B: AREAS COVERED BY THE SEX DISCRIMINA T1ON ACT 1984

C: PERMANENT EXEMPTIONS

D: CONTACT LIST

FOREWORD

This publication,
1996 Guidelines for Special Measures under the Sex Discrimination Act
1984, is produced to increase awareness and understanding of the recently
amended special measures provisions in the Sex Discrimination Act
1984 (SDA). It aims to offer guidance on the effective implementation
of special measures, or measures designed to achieve equality, in areas
covered by the SDA.

Under the
SDA, special measures were considered to be discriminatory because they
are measures specifically directed to members of one sex, or persons
of a particular marital status, or pregnant or potentially pregnant
women and not to those persons who fall outside the group targeted by
the measure. The Sex Discrimination Amendment Act 1995 amended the special
measures provision in the SDA to ensure that these measures are, properly
understood as non-discriminatory. The amendment recognises that measures
which aim to achieve equality between a disadvantaged group and those
who are not disadvantaged do not promote discrimination, rather, they
are a crucial means of preventing and eliminating it.

The increasing
number of enquiries which I receive about special measures, has brought
to my attention the need to provide explanatory material to encourage
their implementation. I hope that these guidelines will further the
incentive to introduce special measures by offering a means by which
employers, educational institutions, provides of goods, services, facilities
and accommodation and administrators of Commonwealth law and programs
can assess their own equity initiatives for consistency with the SDA

I would
like to acknowledge the work of Cara Seymour (author) and Kathryn Freytag,
Sex Discrimination Policy Unit, for producing and writing this publication,
also, Prudence Borthwick (publication consultant). I would like to thank
Kate Eastman and Mark Nicholls, Legal Section, for their assistance.

Sue Walpole

Sex Discrimination Commissioner

INTRODUCTION

1.1
SHORT TITLE

These guidelines may be cited as the Sex Discrimination
Act 1984 Special Measures Guidelines.

1.2
PURPOSE

The purpose of these guidelines is to increase awareness and
understanding of the recently amended special measures provisions in
the Sex Discrimination Act 1984 (SDA). They aim to encourage
the implementation of measures designed to achieve equality in employment,
education, the provision of goods, services, facilities and accommodation
and in the administration of Commonwealth laws and programs by:

explaining
the importance of sex specific initiatives as a strategy for eliminating
systemic discrimination;

providing
criteria based on case law to assist in determining when an action
or program is likely to constitute a special measure;

providing
case examples which illustrate special measures;

explaining
the complaint handling process for complaints of discrimination under
the SDA.

Definitions
of terms used in these guidelines are provided in Appendix A.

1.3
INTERPRETATION

These guidelines are issued under section 48(ga) of the SDA
which empowers the Human Rights and Equal Opportunity Commission to
prepare and publish guidelines for the avoidance of discrimination on
the grounds of sex, marital status, pregnancy or potential pregnancy
and discrimination involving sexual harassment.

It is important
that these guidelines are read in conjunction with the SDA. They are
not legally binding. In any action or proceeding based on an alleged
unlawful act of discrimination under the SDA, a respondent shall not
be protected from a finding of unlawful discrimination if he/she claims
or proves that the act complained of was in conformity with, or in reliance
on these guidelines. The guidelines do, however, provide information
based on case law as to appropriate steps to be taken in order to meet
the requirements of the SDA.

These guidelines do not apply for the purpose of legal determination
as to whether:

the measure
is adequate to remedy the inequality it is designed to address;

a measure
constitutes a special measure under the SDA.

This will
be a question of fact to be determined on a case by case basis.

Conformity with or reliance on these guidelines does not constitute
a prima facie defence nor a complete defence to an allegation of discrimination
under the SDA.

1.4
DEFINITION

“Special measure” means a measure (act, practice,
program, plan, policy arrangement, mechanism or activity) taken for
the purpose of achieving substantive equality between:

(a) men
and women; or

(b) people of different marital status; or

(c) women who are pregnant and people who are not pregnant; or

(d) women who are potentially pregnant and people who are not potential
pregnant .[1]

1.5
SCOPE

These guidelines apply to special measures taken in areas
covered by the SDA. Those areas are set out in Divisions 1 and 2 of
Part II of the SDA. Appendix B of these guidelines provides a summary
of those areas.

These guidelines do not apply to areas which are exempt from the operation
of the SDA. Exemptions are discussed in Chapter Two, section 2.2 of
these guidelines. A list of the permanent exemptions to the SDA is provided
in Appendix C of these guidelines.

1.6
THE SEX DISCRIMINATION ACT 1984

The Sex Discrimination Commissioner and the Human Rights and
Equal Opportunity Commission are responsible for administering the Sex
Discrimination Act 1984 (SDA) which prohibits direct and indirect
discrimination on the grounds of sex, marital status, pregnancy and
potential pregnancy in specified areas of public life.

The objects
of the Sex Discrimination Act are:

to give
effect to certain provisions of the Convention on the Elimination
of All Forms of Discrimination Against Women; and

to eliminate
discrimination against persons on the ground of sex, marital status,
pregnancy or potential pregnancy in the areas of work, accommodation,
education, the provision of goods, services and facilities, the disposal
of land, the activities of clubs and the administration of Commonwealth
laws and programs; and

to eliminate
discrimination involving dismissal of employees on the ground of family
responsibilities; and

to eliminate
discrimination involving sexual harassment in the workplace, in educational
institutions and in other areas of public activity; and

to promote
recognition and acceptance within the community of the principle of
the equality of men and women.

Grounds of discrimination

The SDA
prohibits discrimination on the grounds of:

sex;

marital
status;

pregnancy;

potential
pregnancy;

sexual
harassment;

family
responsibilities (but only in the area of dismissal from employment).

Areas
where discrimination is unlawful

Discrimination
on these grounds is unlawful in the areas of:

employment;

education;

the provision
of goods, services and facilities;

the provision
of accommodation;

the disposal
of land;

clubs;

the administration
of Commonwealth laws and programs; and

application
forms. [2]

Discrimination
and equality

The direct
discrimination provisions of the SDA make it unlawful to treat
people less favourably on the basis of sex, marital status, pregnancy
or potential pregnancy. [3]

Example:

It is direct sex discrimination to refuse to employ a woman because
she is a woman.

It should
be noted that sex, marital status, pregnancy or potential pregnancy
need only be one of the reasons for a discriminatory act.

Direct discrimination
can also occur on the basis of characteristics which appertain generally
or are generally imputed to persons of a particular sex or marital status
or women who are pregnant or potentially pregnant. The phrase “characteristics
that appertain generally to” refers to characteristics which are
usually associated or identified with persons in a particular group.

Example:

The capacity to bear children is a characteristic that appertains
generally to women.

The phrase
“characteristics generally imputed to” refers to characteristics
which are generally assumed to be indicative of a particular group whether
that assumption is true or not.

Example:

If an employer refused to employ a woman because it was assumed
that women leave their jobs to have children, that would be direct
discrimination on the basis of a characteristic generally imputed
to women.

Behind these
provisions is the idea that formal equality results
where people in the same or similar circumstances, are treated the same.

However,
the indirect discrimination provisions make it unlawful
to impose, or propose to impose, a rule or policy which is the same
for everyone, where it has the effect of disadvantaging persons of one
sex, or of a particular marital status, or pregnant or potentially pregnant
women, if imposing, or proposing to impose that rule or policy is not
reason in the circumstances. [4] The burden of proving
that the imposition or proposed imposition of the rule or policy is/was
reasonable is on the person who imposed or sought to impose it.

Example:

An employer implements a company wide policy that employees’
prospects for promotion in the company will be dependent on their
availability to work overtime on request. That policy may be indirectly
discriminatory where most

These provisions
recognise that identical treatment of people may produce unequal results
and that consideration must sometimes be given to differences based
on sex, marital status, pregnancy and potential pregnancy. Indirect
discrimination is concerned with the effect not the form of the treatment.

At the same
time, the SDA protects voluntary actions taken to achieve equality for
women, or between persons of different marital status, or between women
who are pregnant or potentially pregnant and those who are not. The
voluntary actions, or ‘special measures” which the SDA protects,
are measures which have the purpose of addressing disadvantages experienced
by members of one or more of these groups in areas where they have been
and continue to be unequal.

A special
measure is a measure (act, practice, program, plan, policy, arrangement,
mechanism or activity) which is taken for the purpose of achieving substantive
equality between these groups. The concept of substantive equality
recognises that creating equal opportunities for people or treating
people equally may lead to serious inequality for groups that have been
disadvantaged by a system which fails to take their situations and perspectives
into account. Substantive equality is concerned with changing aspects
of that system which have disadvantaged particular groups. It is concerned
with equality of outcomes whereas formal equality is concerned with
equal treatment regardless of the outcomes. [5]

Previously,
it was thought that the existence of the “special measures”
provision in the SDA created a tension. On the one hand, the direct
discrimination provisions suggest that sex, marital status, pregnancy
or potential pregnancy should not be a basis for differential treatment
while on the other, the special measures provision protects different
treatment on those grounds. For this reason, special measures were considered
to be discriminatory but exempt under the Act.

This produced
the unsatisfactory result that measures aimed at redressing past discrimination
and ensuring that women or persons of a particular marital status or
women who are pregnant have equal opportunities with others, required
exemption from an Act which aims to eliminate discrimination against
those groups. The provision referred only to “equal opportunities”,
the purpose of special measures was not well understood and narrow interpretations
of the section by courts and tribunals inhibited initiatives to achieve
equality for women.

The Sex
Discrimination Amendment Act 1995 amended the special measures
provision in the SDA to ensure that these measures are properly understood
as non-discriminatory. The amendment is in recognition of the substantive
difference between providing benefits for a dominant group (promoting
discrimination) and redressing the inequality experienced by a disadvantaged
one (eliminating discrimination).

The amendment
makes clear that special measures are measures intended to achieve substantive
equality. For example, in many areas, existing social structures and
institutions do not take into account the perspectives of women or adequately
cater to their needs with consequent sex-based inequality or “systemic
discrimination”. Measures designed to redress that inequality
should not be considered as special benefits which discriminate against
men. In this context, men have not experienced the particular disadvantage
which the measure aims to redress. The aim of special measures is not
to discriminate by conferring favours but rather to achieve equal
outcomes for people who have been disadvantaged people who
have not.

The SDA
now provides a framework for the resolution of this tension between
discrimination and special measures in accordance with the objects and
spirit of the Act. The new provision is specifically designed to save
initiatives to promote equality from attack on the ground of discrimination
It is hoped that this change will act as an incentive for employers,
educators, providers of goods, services, facilities and accommodation
and administrators of Commonwealth laws and programs to implement special
measures. These guidelines are issued to further that incentive by providing
practical assistance to those who wish to do so.

2.
CRITERIA

2.1 WHAT
IS A SPECIAL MEASURE?

A special measure
is a type of affirmative action. Affirmative action may be defined as
the systematic identification and elimination of the institutional barriers
that women and minority groups encounter in areas of public life.

Special measures
encompass a broad and diverse range of actions which focus on the root
cause of unequal outcomes. They require people to look to structural
barriers to equality or systemic discrimination. The actions which fall
within the ambit of special measures are many, varied and difficult
to articulate because the problem they are designed to address systemic
discrimination, involves a complex interrelationship of directly and
indirectly discriminatory practices.

For this reason,
it is only possible to determine with any certainty that a measure is
a special measure on a case by case basis. The following outline of
criteria, which are illustrated by case examples provided in Chapter
Three, are intended to provide general guidance on issues likely to
be considered in determining whether a special measure exists.

Purpose of the
measure

The measure
must be taken for the purpose of achieving substantive equality.

The purpose
of achieving substantive equality does not have to be the “sole”
(only) purpose or the “dominant or substantial” (main)
purpose of the measure. [7]

Example:

A
women’s health centre may be set up for the purpose of providing
health care and at the same time have the purpose of redressing
inequality experienced by women whose health needs have not been

The measure
must not be taken for a purpose which has been achieved. The identified
inequality which the measure is designed to address must still exist
for the measure to be justified. [8]

Identifying inequality

The legal definition
of a special measure requires that it be a measure taken for the purpose
of achieving substantive equality between men and women, people of different
marital status or women who are pregnant or potentially pregnant and
those who are not. It also provides that where substantive equality
exists, there is no justification for the measure. Clearly then, the
basis of the measure must be an existing inequality experienced by people
in the designated groups. Those who wish to implement a special measure
must have a clear idea of the problem which their action is designed
to redress. This requires an analysis to determine whether, in the relevant
area (service delivery, employment etc.), there are practices which
do, or tend to, exclude, disadvantage, restrict, or result in an adverse
effect on people in those groups, or leave uncorrected the effects of
past discrimination against them.

There is no mandatory
method under the SDA for conducting an analysis to identify inequality.
Any analysis or study, whether formal or informal, showing an awareness,
either through numerical evidence or otherwise, that individuals are
not achieving equal outcomes with others in a particular area and that
the disadvantages they experience are based on or related to their sex/marital
status/pregnancy or potential pregnancy is sufficient. The most important
aspect of identifying substantive inequality is to look at the overall
effect of current practices and to trace unequal outcomes to
their source.

Example:

A
number of recent studies have shown that more women than men graduate
from law school and that women achieve higher results at law school.
Yet, far more men than women reach senior positions in law firms.
For the purposes of implementing a special measure to redress
the situation, an analysis would need to determine what factors
are behind these unequal outcomes and identify any employment
practices which are responsible for or contribute to that inequality.

Reasonable
basis

If the analysis
shows that practices exist in the relevant area, which do, or tend to
result in and perpetuate substantive inequality, the person making the
analysis has a reasonable basis for concluding that action is warranted.

These are important
points to note:

the criteria
for special measures are sufficiently broad to cover societal discrimination;

there does
not have to be a prior formal finding of discrimination to justify
a special measure;

there does
not have to be sufficient evidence to make a prima facie case of discrimination
to justify a special measure;

a special measure
does not have to be based on an admission of a person’s own
discriminatory practices;

the people for
whom the special measure is intended do not have to be the victims
of the specific discrimination which the measure is designed to address.

Reasonable
action

The action taken
as a special measure must be reasonably related to the inequality identified.
That is, the solution should be tailored to the problem. The question
to ask is what action can be taken to ensure equal outcomes. In considering
whether a particular measure is reasonable or appropriate in the circumstances,
there are a number of points to note:

there is no
test under the SDA to determine whether the measure taken for the
purpose of achieving substantive equality is an effective or necessary
means of fulfilling that purpose;

the Commission is not
required to determine whether the special measure is in fact necessary
or wholly suitable for achieving that purpose;

what is required
is that those who undertake the measure do so with that purpose in
view and that it is reasonable for them to conclude that the measure
would further that purpose. [9] Whether this requirement
has been met is a question of fact to be determined on a case by case
basis.

It is more likely
that a person who undertakes a measure will meet this requirement if
they have:

a comprehensive
analysis of the inequality which the measure is designed to address;

a carefully
planned and implemented measure;

an explanation
of the way in which the measure will achieve the purpose;

ongoing evaluation
methodology to determine whether equality has been achieved.

The special measures
provision is designed to protect and encourage voluntary action, and
therefore provides for flexibility in the way special measures are implemented

The terms of the
special measures provision are sufficiently broad to cover a range of
actions. Special measures may include actions which are narrowly directed
to disadvantages experienced by a group of women within an organisation,
such as a program to redress a disproportionately small number of women
in a particular company, or broad measures directed to widespread disadvantage
experienced by a group, such as a government departmental education
and training program for women in male dominated industries.

The purpose of
a special measure is to ensure that employment practices, service delivery,
program delivery and so on, operate fairly, but the action taken should
not result in unnecessary adverse effects on individuals who are not
members of the groups targeted by the measure.

Example:

An
employment program for women should not require the discharge
of an incumbent male employee to make a position available for
a woman.

The action taken
does not have to be part of a specific affirmative action plan or a
formal written plan. Less formal arrangements are covered. However,
more formal arrangements often make it easier to provide credible evidence
that the action taken meets the requirements of a special measure.

Formal
affirmative action plan example:

The Affirmative Action Agency which is responsible for administering
the Affirmative Action (Equal Employment Opportunity for Women)
Act 1986 has published a useful report to assist employers establish
and report on their affirmative action initiatives. The report,
Your Issues Your Directions: Developing an effective affirmative
action program (Affirmative Action Agency Model Directions Series,
Commonwealth of Australia, 1995.) provides practical guidance
about the process for implementing an effective employment affirmative
action program. The report provides that a program should contain
a policy statement from senior management expressing the organisation’s
commitment to affirmative action and how the particular measure
or program is related to the organisation’s wider objectives.
All employees should be aware of that policy statement. In order
to identify areas where policies and practices are contributing
to inequality, an organisation should begin with an examination
of the organisation’s employment profile, an examination
of statistics such as turnover of employees, recruitment and promotion
rates of pay and consultation with employees.

The second stage of the process recommends that employers measure
their statistics to find out why there is an imbalance in their
employment profile, whether their policies and practices are effective
and what their targets should be The third stage of the process
involves consultation with employees through surveys or focus
groups, preferably with union involvement, to collect information
concerning any barriers that have not been evident in the investigation
process and to discuss potential solutions with staff and union
representatives. The final stage involves linking problems with
practical solutions.

2.2 WHAT
IS NOTA SPECIAL MEASURE?

Mandatory
affirmative action

Affirmative action
programs are often categorised as “hard” or “soft”.
The former mandate particular results, sometimes through the imposition
of quotas. Mandatory programs have characterised affirmative action
in the United States. “Soft” affirmative action programs
specify targets and goals only and encourage and protect voluntary action
to achieve them. Affirmative action programs in Australia generally
take this form. Special measures are designed to encourage and protect
voluntary affirmative action rather than mandate or require it. This
is an important distinction which must be clearly understood.

Example

A nationwide survey of universities shows that there continues
to be a disproportionately low number of women in the traditionally
male dominated engineering faculties.

Quotas

To redress the imbalance, legislation is enacted requiring engineering
faculties in all universities to reserve a specified number of
places for women students in the next intake. This would be a
mandatory affirmative action pro gram based on quotas.

Special Measures

Engineering faculties in a number of universities aim to even
up the numbers by offering five scholarships for women each year
to encourage women into the faculty until there is a significant
increase in the number of women electing to study engineering.
This would be a special measure.

This example illustrates
one important difference between quotas and special measures. Quotas
focus primarily on numbers: redressing statistical imbalance, sometimes
at the expense of the merit principle. Special measures usually accord
to members of a particular group an advantage in an otherwise competitive
process, while quotas remove certain positions or privileges from competition
altogether.

Exemptions

Division 4 of
Part II of the SDA provides for three different classes of exemption:
permanent exemptions, exemptions for specified acts done under statutory
authority and temporary exemptions on application to the Commission.

There are fundamental
differences between exemptions and special measures.

1. Exemptions,
and in particular permanent exemptions are in conflict with the overall
spirit and objects of the SDA which include the aim of eliminating
discrimination “so far as is possible”. Exemptions allow
sex discrimination in certain spheres of activity. Provision for exemptions
to the Act was made to ensure its passage through Parliament and to
enable certain areas of public life to make the changes necessary
to ensure consistency with the Act. Special measures are aimed
at eliminating discrimination and are not in conflict with the objects
of the Act.

2. Exemptions
make it lawful to do a discriminatory act but do not make the act
non-discriminatory whereas an act that is a special measure
is lawful because the act itself is non-discriminatory.

3. The granting
of an exemption provides a complete defence to a subsequent complaint
of unlawful discrimination whereas a special measures determination
cannot be made before a complaint of discrimination is investigated
(see complaints process below).

4. Exemptions
cannot be granted retrospectively. If a formal complaint alleging
discrimination has been lodged with the Commission and it is found that
the acts or practices were discriminatory and unlawful at the time
the complaint was lodged, an exemption granted after that time will
not affect the outcome of the complaint. It will only protect against
future complaints of discrimination being lodged against the act or
practice. A special measures determination occurs after the
complaint is lodged and affects the outcome of the complaint.

Permanent
exemptions

The SDA contains a number of permanent exemptions which are
set out in Appendix C. Permanent exemptions can only be removed by legislative
amendment to the SDA. Some exemptions for acts done under statutory
authority specify the termination date for the exemption in the SDA
itself.

Temporary
exemptions

Section 44 authorises the Commission to grant administrative exemptions
for periods not exceeding five years upon such terms and conditions
as it considers appropriate.

The Commission exercises
the power to grant exemptions in a way which is as consistent as possible
with the objects of the Act. While all applications are considered on
their merits, the Commission will seldom consider it necessary or appropriate
to grant any person or organisation a general licence to discriminate.
To do so would undermine the objects of the SDA. Consequently,
these exemptions are rarely granted and strictly limited.

Persons or organisations
applying for an exemption should set out the reasons why the exemption
is required, together with any relevant evidence in support. The reasons
should state why it is not possible immediately to comply with the Act.
It is also advisable that the application address why other non-discriminatory
means are not available or are inadequate to achieve a satisfactory
result to the matters which are the subject of the proposed exemption.

The Commission is unlikely to grant an exemption that is sought by applicants
on a speculative basis, based on a possibility or probability that direct
or indirect discrimination will occur. The granting of exemptions must
be tied to a particular set of facts which exist or are highly likely
to exist. Exemptions will only be granted in carefully defined situations.

In granting a
section 44 exemption, the Commission must set out in writing and publish:

its findings
on the relevant facts in the matter;

all the evidence
upon which these findings of fact are based; and

the reasons
for its decision.

The decision of
the Commission about whether or not to grant the exemption is reviewable
by the Administrative Appeals Tribunal (AAT).

This means for
granting exemptions is important in that it recognises the extraordinary
nature of exemptions. Exemptions should be subject to conditions, limited
in duration and capable of being monitored and reassessed at regular
intervals. Review by the AAT provides an additional level of scrutiny.

The following
provides a clear example of the rationale for limiting the circumstances
in which exemptions will be granted.

Example:

The lead industry has historically excluded women from employment
on the grounds that lead, which is hazardous for all workers,
is particularly dangerous to the foetus. At the time when the
SDA came into force on 1 August 1984, women were prohibited from
employment in the lead industry by State legislation. In recognition
of the need to provide an opportunity for governments to review
and amend existing discriminatory legislation and policy, section
40 of the SDA provided an exemption from the Act where a person
was acting in direct compliance with any Federal or State law
in force at the commencement of the SDA. This exemption ceased
to have effect after 1 August 1986 unless regulations were made
under section 44(2) of the SDA to extend the period of exemption.

The National Occupational Health and Safety Commission (NOHSC)
sought to formulate a new national occupational health and safety
standard. The NOHSC issued a public discussion paper to assist
in the formulation of the standard. However, the central assertion
in the paper was that it was impossible to comply both with occupational
health and safety standards and the SDA. The NOHSC stated that
the SDA must be amended to allow a permanent exemption for the
industry.

The HREOC submitted that rather than amending the SDA, it would
be more appropriate to provide a temporary exemption so that the
NOHSC could seriously attempt to address discrimination in the
industry.(For a discussion of the lead industry exemption see
Occasional Papers from the Sex Discrimination Commissioner - Number
5: “Discrimination against Women in the Lead Industry”,
HREOC, November 1990.)

A standard for the control of inorganic lead in the workplace
has now been redrafted and issued as a national standard by the
NOHSC. It applies a test which refers to the reproductive health
of both men and women and is designed specifically to work so
that occupational health and safety standards can be met with
the least possibility of a breach of the SDA. Only if it is absolutely
not possible to comply with both, may the industry apply to the
Commissioner for a temporary exemption. Had a permanent exemption
been granted, there would have been less incentive to find strategies
to reduce discrimination against women in employment in the lead
industry.

3. CASE
EXAMPLES

These guidelines
refer to special measures in areas covered by the SDA (see Appendix
B). This section sets out those areas and provides case examples of
actions which are likely to be special measures in some of those areas.
It should be noted that actions which are lawful special measures under
the SDA may be unlawful actions under State anti- discrimination legislation.
Any person who wishes to implement a special measure should ensure that
the measure is not unlawful under State law. Contact details for the
equal opportunity and anti- discrimination bodies in each State are
provided in Appendix D.

3.1 WORK

Division 1 of Part II of the SDA sets out the areas of work
covered by the Act. This division of the Act is divided into sections
which relate to different types of work and to work-related organisations.
[10]

Employment

Section 14 covers
employment including selection and recruitment of employees, the terms
and conditions of employment, career development opportunities such
as promotion, transfer and training, the dismissal of employees and
superannuation.

The SDA specifically
includes full-time, part-time and temporary employees. Casual employees
are also covered by the Act. [11] Volunteer workers
are not employees and are not therefore protected under the SDA. [12]

Section 106 also
provides that an employer is vicariously liable (legally responsible)
for the unlawful acts committed by employees in the course of their
employment.

Case
Example:

Identifying inequality

A television station is concerned that there is a continuing significant
under representation of women in engineering and technical positions
(less than 5%). The organisation draws up an Equal Employment
Opportunity Management Plan confirming the need for special initiatives
and recruitment strategies to ensure women‘s equitable participation
and representation in all areas of employment within the organisation.
The organisation conducts an analysis of its recruitment and selection
procedures and collects statistics on the potential pool of qualified
women applicants in the labour force as a whole. The managers
in the relevant areas then conduct a survey to be filled out anonymously
by current staff

Reasonable basis

On the basis of the information collected, management identifies
a number of possible causes for the under representation of women
in technical and engineering areas including:

• that the organisation does not fully advertise all positions
through an agency or CES to ensure that women with the skills
know that jobs are available, but rather recruits from a list
of those who have worked in the area and are currently looking
for jobs;

• that the selection criteria for the jobs places an unnecessary
emphasis on previous experience in the industry or the particular
position;

• that the culture in this area of work is not accepting
of women; and

• that there is a lack of women with the required skills
in the area.

Reasonable
action

The organisation
wishes to take a range of actions with the purpose of attracting
and retaining larger numbers of qualified women in engineering
and technical positions. The first and second problems identified
can be addressed through non-sex specific strategies: advertising
through an agency and emphasising skills and qualifications in
selection rather than previous experience. The third problem is
to be dealt with through cultural change and anti-discrimination
training for existing employees and the introduction of policies
that may attract female applicants, such as flexible work practices,
the introduction of part-time work and family leave.

To address the fourth problem the organisation decides to introduce
sex specific strategies to increase the recruitment pool of women
by:

•
providing traineeships for women in television production operations;

• conducting education initiatives for women such as visiting
schools, TAFE colleges, CES and universities to explain the
nature of the work, the knowledge which is required and to encourage
women to apply for positions in the organisation;

• offering scholarships to women enrolled in the final
year of relevant tertiary studies such as electrical engineering;

• advertising positions which encourage women to apply;

• targeting a maximum of two base grade positions to be
filled by women in technical areas.

The television
station would argue
that these strategies are likely to be special measures, should
a complaint be made.

Commission
agents, contract workers

These areas are
covered in sections 15 and 16 of the SDA respectively. Like the employment
provisions in the Act, they include recruitment and selection processes,
terms and conditions of the work provided, career development opportunities
associated with the work and termination of the work.

Partnerships

Section 17 of
the SDA deals with partnerships or proposed partnerships of six or more
persons. The section covers extending invitations to people to become
partners, determining who should become a partner, the terms and conditions
of the partnership, accessing benefits arising from the partnership
and expelling a partner from the partnership.

Case
example:

Identifying
inequality

A partner
in a firm of chartered accountants announces his retirement. The
women in senior management in the firm are concerned that despite
a significant proportion of women managers in the firm, there
are no women partners.

Reasonable basis

Management
has identified a number of employment practices contributing to
this under representation in the partnership including:

•
the tendency for decision-makers in selection processes to choose
people most like themselves;

• the assumption that women will be less able to make
the necessary commitment to the firm because of their existing
or potential family responsibilities;

• the firm’s policy of promotion to partnership
based on seniority and length of service rather than merit.

Reasonable
action

The partners
respond to management’s concerns by issuing a circular to
all staff stating that as part of their commitment to the equitable
representation of women at all levels of the firm, they are implementing
a new policy on partnerships.

As a general rule:

•
all senior managers will be eligible for consideration as partners
in the firm;

• existing partners will ensure that they do not assess
potential partners on the basis of discriminatory assumptions
about women and will take into account concerns raised by women
in senior management on this issue;

• eligibility will be based on demonstrated knowledge
and management skills rather than seniority or length of service.

In the immediate instance:

• women in senior management who possess the required
high level of knowledge and skill will be favoured for the vacant
partnership position and for subsequent vacancies which may
arise until the number of male and female partners is approximately
equal.

Qualifying
bodies

Section 18 of
the SDA covers authorities or bodies that are empowered to confer, renew,
extend, revoke or withdraw a qualification or authorization that is
needed to practise a profession, carry on a trade or engage in an occupation.
The section deals with the refusal or failure to provide a qualification
or authorization, the terms and conditions on which it is provided,
the revocation or withdrawal of the qualification or authorization and
the variation of the terms on which it is held.

This section refers
to bodies such as universities, TAFE colleges and other vocational education
and training organisations which provide degrees, diplomas, practising
certificates or trade certificates which a person needs to perform their
job (see case example below).

Case
example:

Identifying inequality

An Australia wide analysis of women in trades shows a significant
disparity between the increasing number of women qualifying for
trade certificates in the metal trades industry, and the small
number of women being employed in the industry.

Reasonable basis

The study identifies as a major cause of the under employment
of qualified women, the fact that it is industry practice to recruit
using selection criteria heavily weighted towards previous experience
in the industry.

Reasonable action

A technical college which conducts vocational education and training
for trades and confers trade certificates implements a program
for women, which provides that on qualification from the course,
women will be entitled to take part in an employment placement
program to gain necessary work experience in the industry. Participants
in the program will receive trade certificates with an additional
clause in recognition of their on-the-job experience.

Registered
organizations under the Industrial Relations Act

Section 19 of
the SDA covers membership of registered organizations (such as a union)
and membership of committees of management of registered organizations.
In particular the section deals with applications for membership, the
terms and conditions of membership, access to the benefits of membership,
denying or varying the terms of membership (see case example below).

Case
example:

Identifying inequality

The
National Executive of a union identifies a significant under representation
of women elected to the National Executive and Branch Executive
bodies of the union so that the interests of women in the industry
are not being properly represented.

Reasonable basis

The union attributes the under representation to a number of structural
barriers to women’s advancement including the traditionally
male-dominated nature of the industry, the male- dominated membership
of the union and the majority voting system for electing representatives
to the Executive bodies.

Reasonable action

The union proposes a new rule which will reserve for women a senior
position on the National Executive and one position on each Branch
Executive body which can only befitted by a woman and for which
only women members can vote until equal representation is achieved.
The union provides a submission to the Industrial Relations Commission
which has the power to disallow changes to union rules if they
would be contrary to law. If the new rule is a special measure
it will not be contrary to the SDA.

Employment agencies

Section 20 of the SDA covers the actions of employment agencies (private
employment agencies as well as the Commonwealth Employment Service).
These actions include the provision of any of its services, the terms
and conditions on which the services are provided and the manner in
which those services are provided.

Division
2 of Part II of the SDA covers areas other than work.

3.2 EDUCATION

Section 21 of
the SDA covers the treatment of students by educational authorities
with regard to applications for admission, the terms and conditions
of admission, access to benefits provided by the educational authority
and expulsion of students.

The SDA does not
apply to the admission of members of one sex to institutions which are
conducted for members of the opposite sex only.

Section 21 covers
private, State and Commonwealth educational institutions. However, the
Act does not cover educational institutions established for religious
purposes such as religious schools. Most educational institutions are
regulated by the State governments. Educational institutions established
under Commonwealth law are the Australian National University and the
University of Canberra. State educational institutions are also covered
under State anti-discrimination legislation.

Case
example:

Identifying inequality

An educational institution runs a course which provides retraining
and vocational education for people who have been out of the paid
workforce for a significant period of time for reasons such as
unemployment or family responsibilities. The course co-ordinator
notes that the rate of absenteeism for classes is significantly
greater for women than for men.

Reasonable basis

Because of the small number of facilities available, the course
sets aside a specified number of places for day classes and for
night classes. A survey of students reveals that the cause of
women’s absenteeism is their frequent inability to attend
night classes because of their family responsibilities.

Reasonable action

The course co-ordinator implements a policy whereby the women
have preference in the choice of class times provided this does
not prevent a male student from attending the course altogether.

Case
example:

Identifying inequality

A scientific research organisation is concerned by the small number
of women in high level research positions in chemistry in the
organisation.

Reasonable basis

A review of employment practices reveals that a cause of this
under representation is the small number of women with the level
of post graduate studies in chemistry required for the positions.

Reasonable action

The organisation provides funding to a Research School of Chemistry
in a university to offer women research grants for PhD studies
in areas identified by the organisation

3.3 GOODS,
SERVICES AND FACILITIES

Section 22 of the SDA covers the provision of goods, services
and facilities. It is concerned with whether or not goods, services
or facilities are provided, the terms on which they are provided and
the manner in which they are provided.

Case
example:

Identifying inequality

A local council is informed by the police station of a marked
increase in incidents of domestic violence in the area. 90% of
the victims of the violence are women. The police are concerned
that their female officers are increasingly being called upon
to act as informal counsellors to women who are the victims of
this violence, in preference to the qualified counsellors provided
by the local community legal and resource centre run by the council
with State government funding.

These women have told women police officers that the local council’s
centre which provides counselling for men and women across a broad
range of issues, does not adequately cater to their particular
needs. In addition, the women are having difficulty obtaining
legal advice and representation.

Reasonable basis

The local council conducts an analysis of the staffing structure
and budget allocation in the centre and a survey of clients. It
finds that:

•
the management and staff of the generalist service provided
by the council are male-dominated and in particular, there are
very few women lawyers or counsellors;

• the way in which funds are allocated indicates that
women’s issues are often seen as peripheral and it is
difficult to get funds committed to women’s resources;

• there are no staff who specialise in domestic/family
violence or sexual assault in the centre;

• there is a lack of appropriate and relevant information
about sexual assault and domestic/family violence so that women
are able to make informed decisions about possible courses of
action;

• the women have had difficulty in securing legal representation
in violence cases because of the centre’s conflict of
interest policy which provides that where the centre is representing
a man who has violence charges against him, it will not also
represent the alleged victim of the violence;

• many of the women who have been subjected to violence
by a man do not feel comfortable discussing their situation
with a male lawyer or counsellor;

• some of the women who had been subjected to violence
by a male partner did not want to access a generalist service
where other men in the local area would be aware that they had
been subjected to violence by their male partner or were seeking
to take legal action against their male partner.

Reasonable
action

The council decides to establish and seek government funding for
a women’s legal and resource centre run by women, for women
in the area, to provide legal advice, legal representation, resources,
information, counselling, support networks and referral services.
In particular, the centre will provide women who have been subjected
to domestic/family violence and sexual assault with access to
appropriate and accessible legal representation, legal advice
and referral.

The centre will have the advantage of providing a specialised
service in an atmosphere of mutual support and understanding.
It will also avoid the need for expensive private representation
where a woman in a conflict of interest situation chooses to pursue
the case.

The council prefers the option of establishing this separate service
for women to targeting employment positions for women lawyers
and counsellors within the generalist service on the basis that
women who work in these centres would be better supported, resourced
and ultimately better informed about women’s issues than
those who attempted to assist women within the generalist service.

A separate service will also provide a place where women can discuss
and share their own concerns, experiences, needs and different
strategies for dealing with violence against them in a supportive
environment, without feeling guilty or concerned that men in the
community will know or presume that they are seeking to take action
against a male partner.

3.4 ACCOMMODATION

Section 23 of the SDA applies to the provision of accommodation
whether the person providing the accommodation to another person acts
as a principal or an agent (such as an owner or a real estate agent).
In particular, the section covers the consideration and acceptance of
applications for accommodation, the conditions on which accommodation
is provided and evictions from accommodation.

The section does
not cover accommodation provided for near relatives, or by a religious
body, or by a charitable or non-profit organisation where the accommodation
is only provided to persons of one sex or of a particular marital status.

The section covers
private accommodation and State and Commonwealth government housing.
State housing is also covered by State anti-discrimination laws.

3.5 LAND

Section 24 of the SDA covers the disposal, by a principal
or agent, of an estate or interest in land. The principal or agent must
not discriminate by refusing or failing to dispose of the estate or
interest or by disposing of the estate or interest on less favourable
terms and conditions.

3.6 CLUBS

Section 25 of the SDA covers membership and access to the
benefits and facilities of a club and the committee of management of
a club including applications for membership and the terms and conditions
of the membership, access to benefits and facilities provided by the
club, depriving membership or varying the terms of the membership. However,
the section does not cover clubs which only offer membership to members
of one sex.

3.7 COMMONWEALTH
LAWS AND PROGRAMS

Section 26 of the SDA deals with the performance of functions
or powers under a Commonwealth law or program, or any other responsibility
for administering a Commonwealth law or conducting a Commonwealth program.

The section covers
any program or scheme which is funded or administered by the Commonwealth
government and applies even if the program is run through a private
sector organisation or State government department [13]

Case
example:

Identifying inequality

The Commonwealth Government Department of Health conducts an Australia
wide survey of women’s health. The survey is designed to
determine whether women have particular health needs as the result
of either physiological or socio-economic factors and whether
the current system is meeting those needs. The women surveyed
identify several major areas of concern. The survey clearly indicates
that current health service delivery does not adequately cater
to women’s health needs in those areas. These areas include
women’s reproductive health and sexuality, the health of
ageing women, violence against women, occupational health and
safety and the health needs of women as carers.

Reasonable basis

The survey identifies current practices which are responsible
for inadequate service delivery in the area of women’s health.
It notes that:

• there are too few services with knowledge and expertise
in women’s health;

• there is inadequate health information for women;

• there is a lack of sensitivity to and understanding
of women’s health needs in generalist medical services;

• there is inadequate research conducted and data collected
on women’s health;

• health care providers do not receive adequate training
in women’s health issues;

• women are not well represented in the key decision-making
processes on health.

Reasonable action

The Commonwealth Government launches a National Women’s
Health Program which is designed to address major health issues
identity by Australian women in the national survey.

As part of the Program, State Governments receive Commonwealth
government funding to establish women’s health centres in
a number of areas around their State. The health centres are set
up to provide:

• an information and referral service on women’s
health issues and child care;

• a women’s counselling service with women counsellors
including specialists in domestic violence, child care and I
women’s emotional and mental health needs;

• a professional clinical health service provided by women
medical practitioners for women.

4.
COMPLAINTS PROCESS

This section explains
the process which is followed should a complaint of discrimination be
lodged against you.

4.1 LODGING
A COMPLAINT

Who can lodge a complaint?

Complaints can be lodged by:

individuals
on their own behalf;

individuals
on behalf of themselves and others with the same complaint;

two or more
people, on their own behalf or on behalf of others also;

members of
a particular class of people, on behalf of the class (called “representative
complaints”);

a trade union
on behalf of one or more of its members.

Requirements for
lodging a complaint

For a complaint
to be lodged it must be:

a complaint
in writing;

lodged with
the Human Rights and Equal Opportunity Commission;

alleging that
a person has done an act which is unlawful under Part II of the SDA
which deals with prohibited discrimination;

lodged by an
aggrieved person or persons.

There are three
points to note about these last two requirements:

1. Allegations
of unlawful discrimination

As long as a person
alleges that an act has occurred which, if it were proved, would be
unlawful sex discrimination under the SDA, the person has a prima
facie case and the complaint must be referred to the Sex Discrimination
Commissioner, even if it is plain to the Commission that the allegation
is misconceived, wrong in law or in some other way defective. [14]
Special measures usually appear, at first instance, to be discriminatory
because they are designed specifically to cater to members of one sex,
to persons of a particular marital status or to women who are pregnant
or potentially pregnant. In the interests of natural justice, a complaint
against such a measure will be accepted and investigated even if it
appears at first glance that the measure may constitute a non discriminatory
special measure.

2. When
is a person aggrieved

An aggrieved person
is a person who alleges that they have been discriminated against. For
example, a man claims that he has applied for a Commonwealth training
program for women and that his application has been rejected because
he is a man. Where the man has not yet applied and been rejected from
the program he is not an aggrieved person. [15]

3. Limits
on male complainants

The Commonwealth
Government cannot make laws about anything it likes. The Commonwealth
Government’s law-making power is derived from section 51 of the
Australian Constitution which sets out the areas about which it has
power to legislate. The Commonwealth Government’s power to implement
international treaties (to make them part of Australian law) is conferred
upon the Commonwealth by s51 paragraph (xxix) of the Constitution: the
external affairs power. The exercise of the external affairs power and
Australia’s obligations under the international Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW)
provides much of the constitutional foundation of the SDA. The Act also
relies for its validity, on other heads of power such as those relating
to regulation of the Commonwealth and of foreign, trading or financial
corporations. Section 9 delineates the application of the SDA so as
not to exceed the Commonwealth’s constitutional powers.

As CEDAW concerns
the rights of women, all women (irrespective of age) are covered by
the SDA unless a specific exemption applies. However, men are only covered
by the SDA where another head of power confers jurisdiction under the
Act. Unless provisions of the SDA proscribing sex, marital status, pregnancy
and potential pregnancy discrimination and sexual harassment draw on
other heads of Commonwealth constitutional power, those provisions underpinned
solely by the external affairs power have effect only in relation to
discrimination against women, by virtue of section 9(10) of the SDA.
[16] This limits the circumstances in which men can
lodge complaints under the SDA.

Employment

In the area of
employment, men can lodge complaints of discrimination in employment
if they are:

Commonwealth
Government employees;

employees of
a foreign, financial or trading corporation (which covers most private
sector companies).

Education

There is no constitutional
power relating to education. Education is primarily an area regulated
by the States. This means that in most circumstances, male students
cannot make complaints of discrimination in education under the SDA
and would need to rely on State anti-discrimination laws.

Commonwealth
laws and programs

Men are able to
lodge complaints of discrimination in the administration of Commonwealth
laws and programs.

4.2 INVESTIGATION

If the complaint
appears on its face to be a complaint of unlawful discrimination, it
is referred to the Sex Discrimination Commissioner. The Commissioner
accepts the complaint and allocates the complaint file to a Complaints
Officer. The Complaints Officer notifies the respondent that a complaint
has been made against him/her and provides the respondent with the opportunity
to respond to the allegations.

Process
where the act complained of may be a special measure

It is at this
point in the proceedings that the respondent is given the opportunity
to raise special measures as a reason for his or her actions and provide
evidence in support of his or her claim that the act complained of is
a special measure.

The SDA makes
clear that if an act which appears to be directly or indirectly discriminatory
is found to be a special measure, the claim of discrimination has not
been made out and the complainant has not discharged his or her burden
of proving discrimination.

Special measures
are not a respondent defence to discrimination, so the respondent does
not have the onus of establishing that the act complained of is a special
measure. However, respondents may still be required to produce evidence
in support of any claim that their measure is a special measure. Respondents
would be wise to mitigate against the chances of a successful discrimination
claim against them by presenting a vigorous prima facie defence on behalf
of their actions.

If there is any
dispute about the facts, the Complaints Officer will investigate the
complaint and collect supporting evidence from both parties including
statements from witnesses and relevant documentation.

After all the
relevant information has been obtained and discussed with the parties,
the Sex Discrimination Commissioner is able to assess whether a special
measure exists in the case under investigation. She may request a formal
legal advice on the matter from the Commission’s legal section.
The assessment is made on the basis of the terms of the SDA itself and
case law. The section on “criteria” above sets out the relevant
considerations.

Process
where the act complained of is a special measure

If it is clear
that the act complained of is a special measure, the Commissioner may
decline to inquire further on the basis that the act is not unlawful
discrimination under the SDA. The complainant then has the right to
request that the matter be referred to an inquiry (also referred to
as “hearings”) conducted by the Commission. (See “declining
complaints” and “public inquiries” sections below.)

Process
where the act complained of is discrimination

If the complainant
has produced sufficient evidence to show that the act is not a special
measure and that the alleged unlawful act of discrimination occurred,
the matter may proceed to conciliation. In situations where it is clear
that the matter is not appropriate for conciliation, it can be referred
directly to an inquiry conducted by the Commission.

Evidence collected
during the investigation stage is admissable in any subsequent legal
proceedings.

4.3 CONCILIATION

Conciliation usually
involves holding a conference (either voluntary or compulsory) where
the Complaints Officer acting as an independent third party, assists
the parties to settle the complaint on mutually agreed terms. The Complaints
Officer must not force the parties to settle the dispute by imposing
an outcome. The Complaints Officer must observe the principles of natural
justice and maintain confidentiality.

Anything said
or done during conciliation is not admissable in any subsequent legal
proceedings.

Outcomes of conciliation
may include specific redress for the individual complainant such as
monetary compensation, an apology, access to an employment program or
a service as well as more general strategies to avoid discrimination
such as the introduction of equal employment policies and the introduction
of non-discriminatory practices.

If conciliation
is unsuccessful, it can be referred to an inquiry conducted by the Commission.

4.4 DECLINING
COMPLAINTS

At any stage in
the complaints process, the Sex Discrimination Commissioner may refuse
to inquire into a complaint or discontinue an inquiry which has already
commenced if:

she is satisfied
that the act complained of is not unlawful;

the complainant/s
does/do not desire an inquiry;

the act occurred
more than 12 months ago;

she forms the
view that the complaint is frivolous, vexatious, misconceived or lacking
in substance.

If the complaint
is declined because the Commissioner believes that no unlawful act has
occurred, the complainant still has the right to request that the matter
be referred to an inquiry for determination. If the complaint is declined
on any other ground, the complainant may request that the decision be
reviewed by the President of the Commission. The decision of the President is
final.

4.5 PUBLIC
INQUIRIES

Commission inquiries
have the following features:

1. They are
usually open to the public and press but there is provision under
the SDA to request a private hearing and orders may be made which
prevent publication of the complainant’s and/or respondent’s
identity or the evidence in the hearing.

2. A Hearing
Commissioner (which includes the President of the Commission and the Commission's Commissioners,
but not the Sex Discrimination Commissioner in matters concerning
the SDA) presides over an inquiry.

3. The rules
of evidence do not apply and the process is designed to be conducted
with as little formality and technicality as possible.

4. Legal representation
is by leave.

5. Evidence
is taken under oath, witnesses can be summoned to appear and parties
can be examined, cross-examined and re-examined.

6. After holding
an inquiry, a decision is made as to whether the complaint is dismissed
or upheld. Different forms of redress for discrimination may be awarded
including an award of compensation, a declaration that the complainant
should be able to apply for a position, access a service or be provided
with accommodation, or a declaration that the act, policy or practice
is unlawful and a recommendation of preventative action to be taken
so that discrimination will not continue.

4.6 ENFORCEMENT
PROCEDURES

The Commission is an
administrative and not a judicial body. Consequently, it has no power
under the Constitution to enforce its own decisions . If a respondent,
refuses to comply with a particular order of the Commission, the complainant
(or the Commission on behalf of the complainant) has to initiate separate
enforcement proceedings in the Federal Court. The Commonwealth government
is currently exploring a more satisfactory the means of enforcing Commission
determinations.

However, where
the respondent is a Commonwealth government department or agency, the
Commission’s decisions are enforceable. The SDA provides that
a Commonwealth respondent must comply with a Commission determination,
although an application for review regarding the amount of compensation
awarded can be made to the Administrative Appeals Tribunal with the
permission of the Minister.

ADDENDUM

Please Note: On
13 April 2000, the Human Rights Legislation Amendment Act (No.1) 1999
(Cth) (HRLAA) commenced operation. This legislation was introduced to
ensure enforceability of determinations under Federal anti-discrimination
law. The legislation has removed the Commission's public hearing function with
complainants being provided access to the Federal Court or the Federal
Magistrates Service should conciliation fail to resolve their complaint
or where the complaint is terminated for some other statutory reason.
Please see http://www.humanrights.gov.au/complaints_information/lodge/index.html
for information on the current complaint process]

4.7 CERTIFICATION

There is no provision
in the SDA which permits the Commission or the Sex Discrimination Commissioner
to certify that a measure constitutes a special measure under the Act
prior to a complaint of discrimination being lodged with the Commission.

In some circumstances,
the Sex Discrimination Commissioner has provided “a letter of
comfort” to a person/s who, or organisation which, proposes to
implement a measure which appears to be a special measure. A “letter
of comfort” states that, on the information provided to the Commissioner,
the proposed measure may fall within the ambit of a special measure.
In the interests of natural justice, the Sex Discrimination Commissioner
will not provide a letter of comfort unless there is a clear likelihood
that the measure is a special measure.

However, the Commission
must refer a complaint to the Sex Discrimination Commissioner if it
alleges that an act has occurred which appears at first instance to
be unlawful sex discrimination under the SDA, even if the Commissioner
has issued a letter of comfort indicating that the act may be a non-discriminatory
special measure. A letter of comfort will not prevent a complaint of
discrimination being brought against those implementing such a measure
and it cannot be used as any form of defence should a complaint of discrimination
be made against them. Generally, it will be up to those wishing to implement
an affirmative action initiative, to assess whether their proposal would
constitute a special measure by reference to these guidelines.

5.
CHECKLIST - find it in archives please

Case examples illustrating the application of this checklist are provided
in Chapter Three of these guidelines.

IS
ITA SPECIAL MEASURE?

1. Is the measure taken in an area covered by the SDA?

Check whether the area is covered.

Divisions 1 & 2 of the SDA set out the areas covered by the Act.
See Appendix B and Chapter Three of these guidelines.

NO the measure is not a special measure under the SDA

and the measure is not unlawful under the SDA

YES the measure may be a special measure under the SDA

or the measure may be unlawful discrimination under the

SDA

2.
Do any exemptions apply?

Check if any exemptions apply.

Division 4 of the SDA sets out the Exemptions to the SDA. See Chapter
Two, section 2.2 and Appendix C of these guidelines.

YES the measure is not a special measure under the SDA

and the measure is not unlawful under the SDA.

NO
the measure may be a special measure under the SDA

or the measure may be unlawful discrimination under the

SDA.

3. Is there an existing inequality?

Check whether the measure is based on evidence of unequal outcomes between:

i) men and women; or,

ii) people of different marital status; or

iii) women who are pregnant or potentially pregnant and those who are
not.

See
s7D(1) and (4) of the SDA. See Chapter Two, section 2.1 of these guidelines.

NO
the measure is not a special measure

YES
the measure may be a special measure

4. Is there a reasonable basis for the measure?

Check whether the measure is based on evidence of practices in the relevant
area which are responsible for or contribute to the unequal outcomes
identified.

The SDA does not require any such analysis but it will assist those
implementing a measure to prove that it is a special measure. See Chapter
Two, section 2.1 of these guidelines.

5.
Is the measure reasonable?

There is no test under the SDA to determine whether the measure is an
effective or adequate way to achieve substantive equality between the
groups and in the area which it targets. However, it must be reasonable
for those undertaking it to conclude that it will further that purpose.
See Chapter Two, section 2.1 of these guidelines.

Check whether a purpose of the measure is to achieve substantive equality.
Identify why you think it will achieve or further this purpose?

Check whether there is evidence to show that your opinion is reasonable
in the circumstances.

NO
the measure is not a special measure.

YES
the measure is a special measure.

APPENDIX A

DEFINITIONS

For the purpose of these guidelines the following definitions
apply in these areas:

Employment

Employee means:

a person who works under employment contract (a contract of service).

Employment includes:

part-time and
temporary employment;

work under
a contract for services; and

work as a Commonwealth
employee.

Employment
contract means:

a contract formed
on the pre-condition that both parties (employer and employee) mutually
intend to enter into a relationship with legally binding obligations
and the presence of consideration.

Commonwealth
employee means a person who:

holds an office
or appointment in the Australian Public Service;

is employed
in a department under the Public Service Act 1922 in a temporary
capacity;

holds an administrative
office;

is employed
by a Commonwealth public authority;

holds an office
or appointment in the Commonwealth Teaching Service;

is employed
as a temporary employee under the Commonwealth Teaching Service
Act;

is employed
under the Australia Security Intelligence Organisation Act 1979,
the Supply and Development Act 1939 or the Naval
Defence Act 1910;

is a member
of the Defence Force.

Commission
agent means:

a person who does work for another person as the agent of that other
person and who is wholly or partly paid by commission.

Contract
worker means:

an independent contractor / a person who performs work in an industry
other than under a contract of employment (i.e. person who enters a
“contract for services”).

Employment
agency means:

a person or body that assists persons to find employment or other work
or assists employers to find employees and workers.

Partnership
means:

the relationship which subsists between parties carrying on a business
in common with a view to profit. [18]

Qualifying
body means:

an authority or body which has the power to confer, renew, extend, revoke
or withdraw an authorisation or qualification that is needed for, or
facilitates

the practice
of a profession;

the carrying
on of a trade; or

the engaging
in of an occupation.

Registered
organisation means:

a registered organisation
as defined in the Industrial Relations Act 1988, PART IX -
Division 1, Section 188 “Associations Capable of Applying for
Registration”. An association may apply for registration as an
organisation if: 1) it is an employers’ association which must
employ an aggregate of 1000 employees or 2) it is an employees’
association which must have 10000 members and be an industry based organisation.
[19]

Vicarious
liability means:

an employer’s legal responsibility for wrongs committed by employees
in the course of work.

Voluntary
employment means:

work performed by a volunteer which is not performed as part of an employment
contract. A volunteer is not an employee.

Education

Educational
authority means:

a body or
person administering an educational institution.

Educational institution means:

a school, college, university or other institution at which education
or training is provided.

Goods,
services and facilities

Services includes,
but is not limited to:

services relating
to banking, insurance and the provision of grants, loans, credit or
finance;

services relating
to entertainment, recreation or refreshment;

services relating
to transport or travel;

services of
the kind provided by the members of any profession or trade; and

services of
a kind provided by a government, a government authority or a local
government body.

Accommodation

Accommodation
includes:

residential and
business accommodation.

Clubs

Club
means:

a social, literary, cultural, political, sporting or athletic association
of 30 or more persons which wholly or partly provides and maintains
its facilities from association funds and which sells or supplies alcohol
for consumption on its premises.

Commonwealth
law or program

Administration of a Commonwealth law or program refers to
administration by:

a person who
performs any function or exercises any power under a Commonwealth
law;

a person who
performs any function or exercises any power for the purposes of a
Commonwealth program;

a person who
has any other responsibility for the administration of a Commonwealth
law;

a person who
has any other responsibility for the conduct of a Commonwealth program.

Complaint
handling

Aggrieved
person means:

a person who is/has been discriminated against within the terms of the
SDA.

Complainant means:

a person/s who has/have lodged a complaint with the Commission.

Commission
means:

the Human Rights and Equal Opportunity Commission.

Conciliation
means:

the process of bringing two disputing parties together to reach a mutually
satisfactory agreement with the aid of an independent third party (a
Complaints Officer).

Discriminator
means:

a person who discriminates against another person or other persons within
the terms of the SDA.

Natural
Justice means:

the minimum standard of fairness to be applied in the investigation
and adjudication of a dispute. This is also referred to as procedural
fairness. The substantive procedural requirements of natural justice
involve:

informing a
person of the full particulars of any allegation/s made against them;

giving a person
against whom an allegation/s is made reasonable opportunity to state
their case, provide an explanation or put forward a defence;

ensuring that
proper investigation of the allegations occurs, that all parties are
heard and relevant submissions considered;

ensuring that
the decision maker acts fairly and without bias.

Onus of
proof means:

the burden of proving (or disproving) on the balance of probabilities
that the alleged discrimination has (or has not) occurred.

Prima facie
case means:

the existence of information which appears to support allegations that
unlawful discrimination has occurred.

Prima facie
defence means:

the existence of information which appears to rebut allegations of discrimination.

Respondent
means:

a person or organisation against whom a complaint is lodged with the
Commission.

Vicarious
liability means:

an employer’s legal responsibility for wrongs committed by employees
in the course of their employment.

Discrimination

Direct discrimination means:

a person or persons is/are treated less favourably than another person
or persons is/are treated in circumstances that are the same or not
materially different on the basis of specified grounds. Those grounds
are sex or marital status or pregnancy or potential pregnancy.

Indirect
discrimination means:

a person (the “discriminator”) indirectly discriminates
against another person (the “aggrieved person”) if he/she
imposes or proposes to impose a condition, requirement or practice that
is not reasonable in the circumstances, and that has, or is likely to
have, the effect of disadvantaging persons of the same sex or marital
status as the aggrieved person or women who, like the aggrieved person,
are pregnant or potentially pregnant.

Systemic
discrimination means:

a complex of directly and/or indirectly discriminatory practices which
operates to produce general structural disadvantage for a particular
group. [20]

Equality

Formal equality means:

people should be treated the same in all circumstances regardless of
their sex, marital Status, pregnancy or potential pregnancy except where
relevant differences based on sex, marital status, pregnancy or potential
pregnancy justify different treatment.

Substantive
equality means:

people should be treated in a way which ensures that they achieve equal
outcomes.

Grounds

Sex means:

a member of the male or female sex irrespective of age.

Marital
status means:

the status or
condition of being:

(a) single;

(b) married;

(c) married but living separately and apart from one’s spouse;

(d) divorced;

(e) widowed; or

(f) the de facto spouse of another person.

De facto
spouse (in relation to a person) means:

a person of the opposite sex to the first-mentioned person who lives
with the first mentioned person as the husband or wife of that person
on a bona fide domestic basis although not legally married to that person.

Potential
pregnancy means:

a woman:

(a) is or may be capable of bearing children; or

(b) has expressed a desire to become pregnant; or

(c) is likely, or is perceived as being likely, to become pregnant.

Other Terms

Voluntary body means:

an association or other body (whether incorporated or unincorporated)
which engages in non-profit making activities, but excludes a club,
registered organisation (eg. union), statutory body or financial / money
lending institution.

APPENDIX B

AREAS COVERED BY THE SEX
DISCRIMINATION ACT 1984

Employment

These guidelines apply to special measures in employment in
the following areas:

Commonwealth
government departments and agencies;

Commonwealth
government business enterprises;

private sector
organisations;

non government
organisations.

These guidelines
do not apply to employment in:

State government
departments and agencies;

State government
instrumentalities ; [21]

other areas
of employment which are exempt from the operation of the SDA. [22]

Education

These guidelines
apply to the provision of education by:

Commonwealth
government educational institutions;

State government
educational institutions;

independent
educational institutions established by statute;

private educational
institutions.

These guidelines
do not apply to areas of education which are exempt from the operation
of the SDA.[23]

Goods,
Services and Facilities

These guidelines
apply to the provision of goods, services and facilities by:

Commonwealth
government departments and agencies;

Commonwealth
government business enterprises;

State government
departments and agencies;

State government
instrumentalities;

Private sector
organisations;

Non government
organisations.

These guidelines
do not apply to the provision of goods, services and facilities in areas
which are exempt from the operation of the SDA.[24]

Accommodation

These guidelines
apply to the provision of accommodation by:

Commonwealth
government departments and agencies;

Commonwealth
government business enterprises;

State government
departments and agencies;

State government
instrumentalities;

Private sector
organisations;

Non government
organisations.

These guidelines
do not apply to the provision of accommodation in areas which are exempt
from the operation of the SDA. [25]

Commonwealth
laws and programs

These guidelines
apply to the administration of Commonwealth laws and programs by:

Commonwealth
government departments and agencies;

Commonwealth
government business enterprises;

State government
departments and agencies;

State government
instrumentalities;

Private sector
organisations;

Non government
organisations.

These guidelines
do not apply to the areas which are exempt from the operation of the
SDA.

APPENDIX C

PERMANENT
EXEMPTIONS

The SDA contains
permanent exemptions in relation to the following:

employment by
an instrumentality of a State (section 13);

sex discrimination
in employment where the sex of the employee is a genuine occupational
qualification (section 30);

sex discrimination
for granting to a woman rights or privileges in connection with pregnancy
or childbirth (section 31);

sex discrimination
for services which can only be provided to members of one sex (section
32);

accommodation
provided for employees or students (section 34);

sex and marital
status discrimination in employment involving the care of a child/children
at their residence (section 35);

charitable
benefits (section 36);

religious bodies
(section 37);

educational
institutions established for religious purposes (section 38);

voluntary bodies
(section 39);

insurance (section
41);

some aspects
of superannuation (sections 41A and 41B);

sex discrimination
in competitive sport in which strength, stamina or physique of competitors
is relevant (section 42);

exclusion of
women from direct combat positions in the Defence Forces (section
43).

Exemptions for
acts done under statutory authoritySection
40 of the SDA provides exemption from discrimination for anything done
by a person in direct compliance with:

a determination
or decision of the Commission;

n order of a
court;

listed statutes
which include laws relating to taxation and social security .[26]

1.
Special measures intended to achieve equality are defined in s7D of
the SDA

2. The areas in which it is unlawful to discriminate
are set out ii following Divisions and sections of the SDA: Division
I – Discrimination in Work - Discrimination in employment or in
superannuation s14, Discrimination against commission agents s15, Discrimination
against contract workers s 16, Partnerships s 17, Qualifying bodies
s 18, Registered organizations s 19, Employment agencies s20; Division
2 – Discrimination in Other Areas - Education s21, Goods, services
and facilities s22, Accommodation s23, Land s24, Clubs s25, Administration
of Commonwealth laws and programs s26, Application forms etc. s27. (Sections
concerning areas where sexual harassment is prohibited are in Division
3 of the Act.)

3. Direct discrimination is defined in the following
sections of the SDA: sex discrimination s5(1), marital status discrimination
s6(1), pregnancy and potential pregnancy discrimination s7(1), family
responsibilities discrimination s7A..

4. The Sex Discrimination Amendment Act 1995 amended
the provisions relating to indirect discrimination. The new test for
indirect discrimination is set out in the following sections of the
SDA: sex discrimination s5(2), marital status s6(2), pregnancy and potential
pregnancy s7(2). The “reasonableness test” is in s7B. Section
7C provides that the burden of proving reasonableness lies on the respondent.

5. The special measures provision in the SDA gives effect
to Article 4(1) of the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) which states that:

Adoption by States Parties of temporary special measures aimed at accelerating
de facto equality between men and women shall not be considered discrimination
as defined in the present Convention, but shall in no way entail as
a consequence the maintenance of unequal or separate standards; these
measures shall be discontinued when the objectives of equality of opportunity
and treatment have been achieved.

Note: “defacto equality” is another term for substantive
equality.

6. Section 7D.(l) of the SDA provides:

7D.(l) A person may take special measures for the purpose of achieving
substantive equality between:

(a) men and women; or

(b) people of different marital status; or

(c) women who are pregnant and people who are not pregnant; or

(d) women who are potentially pregnant and people who are not potentially
pregnant

7. Section 7D.(3) provides:

(3) A measure is to be treated as being taken for a purpose referred
to in subsection (1) if it is taken:

(a) solely for that purpose; or

(b) for that purpose as well as other purposes, whether or not that
purpose is the dominant or substantial one.

8. Section 7D.(4) provides:

(4) This section does not authorise the taking, or further taking, of
special measures for a purpose referred to in subsection (1) that is
achieved.

9. Proudfoot & Ors v Australian Capital Territory
Board of Health & Ors (1992) EOC 92-417 at p.78,983.

10. See “Definitions” in Appendix A of
these guidelines for the meaning of terms.

11. Casual employment is covered by the common law
definition of employment. A number of factors must be taken into account
to determine whether an employment relationship exists at common law.
There is a string of cases which define criteria for determining a common
law employment relationship including: the nature of the task, the degree
of skill, the freedom of action given, who gives the orders, the power
of selection and dismissal, the power to delegate functions, who determines
the amount and manner of payment, the method of tax deduction, who provides
tools and equipment, who controls the regularity of the hours of work
and the manner of work.

12. Jarry v County Fire Authority unreported, Equal
Opportunity Board (Vic.), 8 February 1984.

13. There is recent case law to suggest that the presence
of Commonwealth funding could be sufficient to bring the program within
the SDA’s definition of a “Commonwealth program” This
may be the case even if the program is administered by a State or is
jointly funded by the Commonwealth and a State.

14. Ellenbogen v Human Rights and Equal Opportunity
Commission & Ors (1994) EOC 92-564.

15. See Proudfoot & Ors v ACT Board of Health,
Commonwealth of Australia & Canberra Women’s Health Centre
Inc (1992) EOC 92-417.

16. This was confirmed in Aldridge v Booth (1988) EOC
92-222.

17. This was confirmed by the High Court in Brandy
v Human Rights and Equal Opportunity Commission & Ors (1995) 127
ALR 1 which held as invalid the 1992 legislative provisions in the Racial
Discrimination Act 1975 (and the comparative provisions in the SDA and
the Disability Discrimination Act 1992) which enabled determinations
of the HREOC to be registered and enforced as if they were orders of
the Federal Court of Australia unless the respondent applied to the
Federal Court for a review of the decision of the Commission within
21 days.

18. Pooley v Driver (1876) 5 Ch D458 at 472

19. For case law on special measures and registered
organisations see: Re Australian Journalists Association (1988) EOC
92-224 and Municipal Officers Association of Australia & Anor: Approval
of Submission of Amalgamation to Ballot (1991) EOC 92-344.

20. Adapted from the definition provided by Rosemary
Hunter, Indirect Discrimination in the Workplace Federation Press, Leichhardt,
1992, p.13

21. State government departments, State authorities
and their employees are exempt from the discrimination in employment
and sexual harassment provisions in the Federal SDA pursuant to sections
12 and 13 of the Act. However, State government departments, authorities
and their employees are required to comply with State and Territory
anti-discrimination legislation where it exists.

22. Employment exemptions include: an exemption in
section 14(3) relating to employment to perform domestic duties at the
employer’s residence; section 30 relating to jobs where it is
a genuine occupational qualification to be a person of a particular
sex; exceptions concerning religious bodies and employment in educational
institutions established for religious purposes in sections 37 and 38(1),
(2); and exemptions from certain forms of discrimination in superannuation
(s4lA and 41B).

23. In particular, section 38(3) provides that it is
not unlawful “to discriminate against another person on the ground
of the other person’s marital status or pregnancy in connection
with the provision of education or training by an educational institution
that is conducted in accordance with the doctrines, tenets, beliefs
or teachings of a particular religion or creed, if the first-mentioned
person so discriminates in good faith in order to avoid injury to the
religious susceptibilities of adherents of that religion or creed.”

24. Exemptions relevant to the provision of goods,
services and facilities include: section 31 which exempts sex discrimination
against a man where a woman is granted rights or privileges in connection
with pregnancy or childbirth; section 32 which exempts the provision
of services which can only be provided to members of one sex; section
39 which exempts the provision of benefits, facilities and services
to members of a voluntary body; and, section 42 which provides a qualified
exemption in relation to the provision of sporting facilities and access
to sporting teams.

25. Relevant exemptions include section 34 which provides
limited exemption for accommodation provided for employees or students;
section 38 which exempts accommodation provided by religious bodies;
and section 39 which excludes accommodation or accommodation services
provided to members of voluntary bodies.

26. The section also provides an exemption for acts
done in direct compliance with an order or award of a court or tribunal
having power to fix minimum wages and other terms and conditions of
employment. However, following amendments to the SDA and the Industrial
Relations Act 1988 (IRA) complaints can now be made about discriminatory
provisions in awards and agreements under section 50A of the SDA. Section
111A of the IRA requires the Australian Industrial Relations Commission
to remedy any discrimination it finds in awards referred to it by the
Sex Discrimination Commissioner under these provisions.

Last
updated 27 January 2004.

Search

1996 GUIDELINES FOR SPECIAL MEASURES UNDER THE SEX DISCRIMINATION ACT 1984

1996 GUIDELINES FOR SPECIAL
MEASURES UNDER THE SEX DISCRIMINATION ACT 1984

FOREWORD

Sue Walpole

Sex Discrimination Commissioner

INTRODUCTION

Grounds of discrimination

2.
CRITERIA

Identifying inequality

3. CASE
EXAMPLES

4.
COMPLAINTS PROCESS

ADDENDUM

5.
CHECKLIST - find it in archives please

APPENDIX A

APPENDIX B

AREAS COVERED BY THE SEX
DISCRIMINATION ACT 1984

APPENDIX C

PERMANENT
EXEMPTIONS

Search

1996 GUIDELINES FOR SPECIAL MEASURES UNDER THE SEX DISCRIMINATION ACT 1984

1996 GUIDELINES FOR SPECIAL MEASURES UNDER THE SEX DISCRIMINATION ACT 1984

FOREWORD

Sue Walpole Sex Discrimination Commissioner INTRODUCTION

Grounds of discrimination

2. CRITERIA

Identifying inequality

3. CASE EXAMPLES

4. COMPLAINTS PROCESS

ADDENDUM

5. CHECKLIST - find it in archives please

APPENDIX A

APPENDIX B

AREAS COVERED BY THE SEX DISCRIMINATION ACT 1984

APPENDIX C PERMANENT EXEMPTIONS

1996 GUIDELINES FOR SPECIAL
MEASURES UNDER THE SEX DISCRIMINATION ACT 1984

Sue Walpole

Sex Discrimination Commissioner

INTRODUCTION

2.
CRITERIA

3. CASE
EXAMPLES

4.
COMPLAINTS PROCESS

5.
CHECKLIST - find it in archives please

AREAS COVERED BY THE SEX
DISCRIMINATION ACT 1984

APPENDIX C

PERMANENT
EXEMPTIONS