Human Rights and Equal Opportunity Commission
Annual Report 2000-2001
Sex
Discrimination Commissioner, Susan Halliday
The term of the Sex Discrimination Commissioner, Susan Halliday, expired on 26 April 2001 and the federal Attorney - General, the Hon. Daryl Williams, AM, QC, MP announced the appointment of Ms Pru Goward as Sex Discrimination Commissioner for a five-year term on 29 June 2001. Ms Goward commenced her appointment on 30 July 2001. In the interim, the President acted as Sex Discrimination Commissioner.
The Sex Discrimination Commissioner, on behalf of the Commission, may seek leave of courts to intervene in cases that raise issues relating to discrimination under the Sex Discrimination Act. In the last reporting year, the Commission sought and was granted leave to appear and make submissions in the case brought by the ACTU in the Australian Industrial Relations Commission seeking to extend parental leave entitlements for casual workers.
The Commissioner has a broad educational role to highlight the rights of individuals, as well as the responsibility of all members of the community to respect the rights of others and to work cooperatively in developing a fair and cohesive society.
Education and promotion
Commissioner Halliday continued her strong educative focus in the last year of her term, working regularly with school students as well as organisations in the private, non-government and community sectors. The Commissioner conducted extensive community education campaigns utilising a range of media.
Harsh Realities 2
Harsh Realities 2 was launched in Adelaide at the South Australian Equal Opportunity Commission on 8 November 2000. The set of 17 case studies represent conciliated complaints of alleged unlawful discrimination lodged under the Sex Discrimination Act and cover sexual harassment, pregnancy discrimination and sex discrimination in employment, education and the provision of goods and services.The launch generated local radio and print media coverage, and was attended by over 40 representatives of employers, State Government, schools and non-government organisations. South Australian Equal Opportunity Commissioner Linda Matthews and her staff were very generous with their support of the Harsh Realities 2 project.
Woman of the World package
A package aimed at a general audience, particularly young women, providing information about the international human rights framework for women and the importance of human rights for women was launched on International Women’s Day 8 March 2001. Entitled Woman of the World: Know your international human rights and how to use them, it comprises 13 information sheets about the CEDAW, its history, development and implementation domestically. It deals with the Sex Discrimination Act and the Optional Protocol to CEDAW and includes resources and contact information for people wishing to promote, secure and protect women’s rights. The package also contains a poster. Feedback on the package has been highly positive.
Advertising postcards
Two postcards were commissioned from Avant Card to promote awareness about the importance of advertising that dignifies, rather than devalues, women. The two postcards focus on outdoor advertising, and followed recent concerns about the lack of respect and sensitivity, and general sexism, displayed in outdoor advertising media. The first card was co-sponsored by the Office of the Status of Women and was launched on 7 March 2001, the day before International Women’s Day, in order to feed into the celebrations for that day. The second card was co-sponsored by the Australian Advertising Federation and was launched by Commissioner Halliday on 23 April 2001. Feedback from users of the cards through Avant Card has been generally positive.
Research and policy
National Inquiry into Pregnancy and Work
On 26 August 1998 the federal Attorney-General the Hon. Daryl Williams AM QC MP requested the Commission to undertake a National Inquiry into issues relating to pregnancy and workplace discrimination.
Launched in 1999, Pregnant and Productive: It’s a right not a privilege to work while pregnant made 46 recommendations to Government.
The Government made a formal response to the 46 recommendations on 1 November 2000. The Government accepted 23 of the 46 recommendations. Importantly, the Government proposed to amend the Sex Discrimination Act to:
- clarify that particular interview questions and pregnancy testing are prohibited as part of the recruitment process; and
- include breastfeeding as a ground of discrimination.
In response to Recommendation 13, the Government, through the Department of Employment, Workplace Relations and Small Business and the Office of the Employment Advocate, is drafting a pamphlet to be distributed to all workplace participants concerning their rights and responsibilities in relation to pregnancy and potential pregnancy in the workplace.
In addition, in direct response to recommendation 16, the Office of the Employment Advocate has commissioned an employee survey to elicit information on the progress of Australian Workplace Agreements in contributing to the prevention and elimination of discrimination in the workplace in relation to pregnancy and potential pregnancy.
In response to Recommendation 12, the Government has agreed that the Minister for Employment, Workplace Relations and Small Business consider the position of pregnant and potentially pregnant employees in any future workplace relations reform to ensure that such employees are not exposed to the possibility of direct and indirect discrimination.
However the Government failed to agree to a number of important recommendations. In particular, the Government refused to consider:
- sponsoring economic modelling for paid maternity leave;
- empowering the Commission to publish enforceable standards in relation to pregnancy and potential pregnancy;
- amending the Sex Discrimination Act to ensure coverage of unpaid workers, and
- removing the exemption in the Sex Discrimination Act for educational institutions established for religious purposes in relation to pregnancy and potential pregnancy.
The Pregnancy Guidelines
The terms of reference for the Pregnancy Inquiry required the Commission to produce a set of educative guidelines to assist all workplace participants and particularly employers and managers to better understand their obligations and adhere to the existing legislative framework. The need for educative Guidelines clearly emerged as one of the priorities in the Pregnant and Productive Report.
Commissioner Halliday launched the Pregnancy Guidelines nationwide in April 2001. The Guidelines set out principles to avoid discrimination at each stage of the employment relationship – recruitment, during employment, taking leave and dismissal and retrenchment. Case studies and examples set out how employers can avoid discrimination, as well as explaining other obligations contained in industrial relations and occupational health and safety laws.
The Pregnancy Guidelines also contain information on developing and implementing workplace policies that can assist in ensuring employers comply with their obligations as well as improving productivity and efficiency.
Sex Discrimination in the Banking and Finance Industry
The Sex Discrimination Unit continued to support Ms Sara Charlesworth in her research of the influence of the industrial and anti-discrimination legislative frameworks, as well as non-legislative factors on the treatment of sex discrimination in the banking and finance industries.
Migrant and refugee women
As part of the Commission’s preparations for the United Nations Third World Conference Against Racism, Racial Discrimination and Xenophobia and Related Intolerance, to be held in Durban, South Africa in August – September 2001, the Sex Discrimination Unit organised a series of focus groups with immigrant and refugee women and community workers. The focus groups were organised in consultation with Immigrant Women’s Speakout and were held in June – July 2001.
The aim of the focus groups was to provide the Commission with information about the experiences of the women concerned as well as recommendations for action to be taken by government, both generally and specifically in the context of the World Conference. The meetings assisted the Commission to understand better the range of experiences of women who suffer disadvantage and discrimination on the basis of race in Australia.
The Sex Discrimination Unit also prepared an issues paper on the intersection between race and gender that informed the focus groups and the Commission consultations generally.
Submissions
Comments to the Education Inquiry
On 7 September 2000, the Sex Discrimination Unit contributed a submission on behalf of the Commission to the House of Representatives Standing Committee on Employment, Education and Workplace Relations’ Inquiry into the Education of Boys.
Labour Hire Inquiry
The Sex Discrimination Unit contributed on behalf of the Commission a substantial submission to the NSW Government Task Force set up to inquire into the Labour Hire Industry. The submission raised issues around the Sex Discrimination Act and indirect discrimination, and the difficulty of identifying or categorising contemporary employment relationships in order to allow for a remedy to be pursued under this Act. The submission was made on 14 September 2000.
Senate Inquiry into the proposed amendment to the Sex Discrimination Act regarding IVF services
On 1 November 2000, the Senate referred the Sex Discrimination Amendment Bill (No. 1) 2000 to the Legal and Constitutional Legislation Committee for inquiry and report. There were no specific terms of reference for the inquiry.
The submission was prepared by the Sex Discrimination Unit and the Legal Section on behalf of the Commission. In November 2000, Commissioner Halliday appeared before the Legal and Constitutional Legislation Committee to present the Commission’s opposition to the Bill. On 19 February 2001, the Sex Discrimination Commissioner made a supplementary submission in response to the 13 February oral evidence of the Attorney General’s Department.
The Senate Committee released its findings on 27 February 2001. The Inquiry into the Provisions of the Sex Discrimination Amendment Bill 2000 Report found that the Federal Government’s plan to exclude women from assisted reproductive technology (ART) based on their marital status would be contravening not only the UN’s Convention on the Elimination of Discrimination Against Women (CEDAW) but also the Sex Discrimination Act 1984.
The majority Report stated that:
- the Bill is completely ineffective in implementing the government’s stated intention to ensure the best interests of the child (paragraph 5.6);
- the Bill will amend the Sex Discrimination Act so as to conflict with the very treaty that the Act is intended to implement (paragraph 5.8);
- the Bill is contrary both to the spirit and the letter of the Sex Discrimination Act (paragraph 5.10);
- no compelling case had been made that the rights of children will be advanced by the passing of the amendments, but the rights of some women will be diminished (paragraph 5.14).
The report does not make any recommendation that the Bill not be passed. Rather, it leaves this matter to the Senate to decide. The detailed dissenting reports of Labor Senators Hogg and Collins, Independent Senator Harradine and Government Senators Coonan and Mason provide strong support for the Bill.
The Government states that the Bill is designed to ensure that the States and Territories, which have responsibility for the provision of health and medical care and treatment, should be able to legislate to restrict ART procedures to women who are married or living in de facto relationships. Despite the reservations expressed in the majority Report, the Government responded to the Report by stating that it intended to proceed with the Bill.
ACTU test case - parental leave to long-term casuals
As part of a strategy aimed at promoting work and family balance, and with a view to implementing recommendation 25 of the report Pregnant and productive: it’s a right not a privilege to work while pregnant, the ACTU applied to the Australian Industrial Relations Commission (AIRC) seeking to extend parental leave to long-term casual workers.
The Commission sought and was granted leave to intervene on 15 February 2001. The Commission’s written submissions in support of the ACTU’s application were filed on 3 April 2001.
In summary the submissions:
- support the extension of parental leave to long term casual employees;
- provide evidence of an increase in casual employment and that casual work is predominantly performed by women;
- draw the AIRC’s attention to its obligations to help prevent and eliminate discrimination;
- set out evidence provided to the National Inquiry into Pregnancy and Work and complaints made to Commission that show that casual employees are often dismissed or subjected to other detriment on announcing their pregnancy;
- alert the AIRC to the potential for indirect discrimination to arise from denying casual employees access to parental leave entitlements.
The AIRC decided to grant parental leave entitlements to casual employees covered by federal awards in its decision of 31 May 2001.
Amicus matter: Harrison v Santos
Under amendments to the Human Rights and Equal Opportunity Commission Act 1986, Commissioners now have the function of assisting the Federal Court or Federal Magistrates Court as amicus curiae, ‘a friend of the court.’ Commissioner Halliday first sought to exercise this function in the case of Harrison v Santos Ltd, for which the Commissioner provided an affidavit in support of the application to intervene as amicus curiae. The matter was subsequently settled.
Consultation and Speeches
Consultations
The Commissioner and staff of the Sex Discrimination Unit conducted over 80 consultations during the financial year, with international human rights and government officials, major employers and employer groups and women’s organisations.
Speeches
Attached is a selection of speeches, seminars and presentations made by Commissioner Halliday in the reporting period. Selected papers are available on the Commission’s website at: http://www.humanrights.gov.au/speeches/.
16 August, 00 National Status of Women Council, Melbourne, 16th Anniversary Proclamation of Sex Discrimination Act 1984
18 August, 00 Women at Work Conference, Gold Coast, Sexual Harassment in the Workplace
23 August, 00 Macquarie University, Sydney, Lecture to Bachelor of Business Administration students
29 August, 00 Youth Challenge, Canberra, Human Rights
29 August, 00 Victorian Women Dentists Association, Melbourne, Gender Differentials: women as leaders
30 August, 00 Australian Human Resources Institute, Melbourne,
What’s sex got to do with it? Work, Life and Relationships.5 September, 00 Sydney University student rally, In support of CEDAW and signing the Optional Protocol
29 September, 00 Association of Women Educators’ National Conference, Cairns, Marking time or marching on?
11 October, 00 Frankston Luncheon Club
12 October, 0O Australian Services Union Women’s Conference,
Melbourne17 October, 00 Women’s Network Australia Breakfast, Brisbane, Complexity, Clout and Change: Women in the New Millennium
27 October, 00 IBM Diversity Council briefing, Sydney
1 November, 00 Strategic Public Leaders Summit, via video conference to Perth, Good Governance in Practice
1 November, 00 Business & Professional Women Dinner speech, Melbourne
4 November, 00 IR Society of Queensland Annual Convention, Gold Coast
8 November, 00 Launch of Harsh Realities 2, Adelaide
15 November,00 Institute of Public Administration ‘Wine, Women and Song’ function, Adelaide
17 November, 00 World Blind Union 2nd World Blind Women’s Forum, Melbourne, Women with Disabilities; Doubly Disadvantaged
20 November, 00 Launch of Monash University Work/Life Strategy, Melbourne
28 November, 00 VCTA Comview Conference, Melbourne, IVF and the Law
28 November, 00 Sorry is not OK Conference, Melbourne, Workplace Violence
30 November, 00 Women and Racism Forum, Sydney, A discussion on the UN World Conference Against Racism
6 December, 00 Disability Companion Card Launch
10 December, 00 HREOC Human Rights Awards 2000 MC
8 February, 01 Women Wise Up Conference, Using the UN to Advance the Rights of Women
15 February, 01 University Of NSW, An Unfavourable Climate – Current Issues for Equity and Women
17 February, 01 Zonta Seminar, Into the 21st Century: Jumped or Pushed?
22 February, 01 IIR Conference, Identifying the current trends in workplace discrimination
7 March, 01 UNIFEM Breakfast
7 March, 01 AEU Annual International Women’s Day Dinner, Director SDU
8 March, 01 Launch ‘No Sweat Shop” Label, Director SDU
8 March, 01 Launch CEDAW Kit: Woman of the World”, Director SDU
22 March, 01 IPAA National Conference Rights Position, “On The World Stage: A Report Card on Australia’s Human
23 March, 01 AUSYOUTH Conference “Our Future Now–Empowering young people through youth development”
02-23 April, 01 Pregnancy Guidelines Launch in all capital cities
24 April, 01 Launch of Sterilisation Paper HREOC
