Human Rights and Equal Opportunity Commission
Annual Report 2001-2002
Chapter 8: Sex Discrimnation
Sex Discrimination Commissioner
Commissioner Pru Goward's appointment to the position of Commonwealth Sex Discrimination Commissioner was announced on 29 June 2001. She commenced her term on 30 July 2001.
Statement from the Commissioner
Since assuming the position of Sex Discrimination Commissioner in July 2001, I have sought to deal with a number of issues important to the rights of Australian women. Over a five year term such as mine there is clearly the opportunity to pursue a number of major objectives but at the outset I considered there was also the need to ensure the approach was neither piece-meal nor the outcomes insubstantial.
At the time, I identified the issues of work and family (including paid maternity leave), discrimination and harassment in sport and the needs of Indigenous women as particular areas where I would devote attention. In the event, the year has ranged more broadly than this and the Sex Discrimination Unit has found itself dealing with the implications of in vitro fertilisation practice for the Sex Discrimination Act, transgender marriage and harassment in the Australian navy, amongst other matters of public interest and concern.
An underlying theme of much of the year's work has been the importance of jurisprudence, seen as the clarification and the development of social issues through the judicial or quasi-judicial processes. The Commission has either intervened or I have sought to be amicus curiae in a number of court proceedings. In my view it is important to do so wherever possible, affordable and prudent in order to assist with and hasten the development of sound jurisprudence in sex discrimination law. In large part the acceptability of human rights to the Australian community depends upon the soundness of their legal basis, that is, upon the case law.
There have been still other issues with which I have chosen not to engage at this stage, but the job remains one where the views of the Commission are sought and expected on a very broad front.
The Sex Discrimination Unit's major work this year has been the development of an interim options paper on paid maternity leave, Valuing Parenthood. The paper was intended to inform public debate about the need or otherwise for such a scheme. Australia is now one of only two member countries in the Organisation for Economic Cooperation and Development without a national entitlement to paid maternity leave; that is to income replacement when one parent, usually the mother, stays out of the workforce directly following the birth of their children.
Australia provides generous income support to low income families and limited but non-means-tested support to families where one parent stays at home for a number of years. However, Australia is yet to recognise the particular needs of a growing number of young women whose personal, professional or financial circumstances mean that, in the absence of paid maternity leave, they need to return to paid work when their children are very young, as young as a few weeks. The increasing participation of women with young children in the workforce is a paradigm shift; it has occurred very rapidly and reflects the social patterns in other developed countries. Paid maternity leave, in an age when the majority of families are two income families, responds to this national need.
The paper also explored the consequences for Australia's birth rate of compromising the choices women make concerning work and family commitments. Arguably, failing to provide income support to women who are able to choose not to have children, will encourage women to have no children at all, or fewer, or later in life. Valuing Parenthood also explores the business case for providing paid maternity leave at the enterprise level. It considers the macro economic consequences of not maximising the work force participation of a significant proportion of the potential workforce in a declining population also engaged in global economic competition. Additionally it reflects on the importance of maximising the nation's economic return on its investment in the education and training of young women.
The paper does not recommend any particular national model although it warned against the adoption of a scheme solely funded by employers, pointing out the possible discrimination consequences of direct employer funding in those enterprises where a business case cannot be made.
The paper's release has sparked a wide ranging debate about the need or otherwise for such a scheme. This has reflected the community's concern about work and family life and the need to examine any paid leave proposal in this broader context.
As part of the development of my final report, the Sex Discrimination Unit has engaged in a lengthy consultation process throughout Australia. We have consulted with employers, unions, community groups, academics and individual women in every state and territory, including in regional centres.
Unsurprisingly, there has been a significant majority of people who have opposed the mandating of individual employer-funded leave and a minority of people who oppose the provision of paid maternity leave, even if government funded.
The final report will be released at the end of 2002.
Other major issues that I turned my attention to in the past year included race and gender, sex discrimination and sport and a High Court case on IVF.
In preparation for my attendance at the United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in August and September 2001 in South Africa, the Sex Discrimination Unit produced an issues paper on the intersection of race and gender, highlighting the gendered nature of racism. The paper drew on focus groups with immigrant and Indigenous women and will inform my future work in this area.
Netball Australia's ban on all pregnant players led to the involvement of the Unit in the development of appropriate guidelines for clubs, players and coaches, under the leadership of the Australian Sports Commission. However the year has also seen my direct involvement in discrimination against women in sport when I became amicus curiae in the case of Holly Ferneley, the female kick boxer banned from competition in New South Wales. The Federal Court rejected her appeal against the ban but recognised it as a matter for the State legislature. Accordingly I have written to every member of the New South Wales State Parliament. The former Minister for Women, Faye Lo Po, replied that "…the question of women's participation in boxing and kick boxing is an inherently difficult issue". All other members who replied were either silent on the desirability of the discrimination or expressed their desire to see the law changed.
One of the most contentious legal issues of the year has been the High Court case Re McBain; Ex parte Australian Catholic Bishops Conference and Another in which the Commission intervened. The case considered whether Victorian State legislation preventing practitioners from providing fertility treatment to single women was in conflict with the Sex Discrimination Act. Moral and social concerns aside, my interest and that of the Commission was in upholding the powers of the Sex Discrimination Act, which make it unlawful to discriminate, inter alia, on the grounds of marital status.
As the debate over paid maternity leave has demonstrated, there is a profound desire among Australians to better address work and family responsibilities. This is especially relevant to enhancing the choices of women through the amelioration of the economic and social disadvantage they bear as mothers and continuing campaigning against workplace discrimination, direct and indirect. Undoubtedly the coming year will see my continued involvement in these issues.
Meanwhile Indigenous women remain the most disadvantaged group in Australia and I hope to advance better understanding of their position over the next 12 months. Likewise the intersectionality of race and gender and of ethnicity and gender, are of growing importance in Australia and therefore to the Commission. There are some difficult conceptual issues as well as sensitivities involved. However it should be possible to work constructively and practically in these areas so long as our principal focus remains the achievement of better outcomes and better lives for Australian women by enhancing the choices they wish to make.
Research and policy
Valuing Parenthood Options for Paid Maternity Leave: Interim Paper 2002
Australia at present does not have in place legislation that deals with the provision of universal paid parental or maternity leave at either the national or state or territory level. Australia retains its reservation to article 11(1) of the Convention on the Elimination of All Forms of Discrimination Against Women concerning paid maternity leave.
In 1999, the Commission's report of the National Pregnancy and Work Inquiry, Pregnant and Productive: It's a right not a privilege to work while pregnant, recognised the importance of paid maternity leave to Australian women and recommended that the Government commission economic modelling to assess the viability and consequences of such a scheme.
Economic modelling has not yet been made publicly available by the Government. The Commissioner decided that the debate around paid maternity leave in Australia would be assisted by the production of a paper raising for discussion the various options for a national scheme for paid maternity leave in Australia.
An interim options paper on paid maternity leave Valuing Parenthood Options for Paid Maternity Leave: Interim Paper 2002 was released in April 2002 in order to consult, inform the debate and examine the options for paid maternity leave in Australia. Consultations on the Interim Paper were conducted with major stakeholders in each State and Territory capital and two regional centres.
The Interim Paper provides background material on current provisions for paid maternity leave, statistics on women's arrangements for combining work and family obligations and information about current government assistance to families. The Interim Paper discusses the objectives for any national paid maternity leave scheme. It also outlines a number of criteria on which a paid maternity leave system could be based and potential options for establishing a paid maternity leave system in Australia. It raises questions and seeks input from interested people, organisations and agencies.
The paper has generated a great deal of interest within government, the media and the community.
A final options paper will be produced at the end of 2002.
Race and gender intersectionality
The Commissioner attended the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in August and September 2001 in Durban, South Africa.
In preparation for the Conference, the Commission produced an issues paper on the intersection of race and gender, highlighting the gendered nature of racism. As part of the process focus groups were held with immigrant, refugee and Indigenous women.
Pregnancy and sport
A ban imposed on all pregnant players participating in netball competitions by Netball Australia instigated a national debate about the issues concerning pregnancy and sport.
The Australian Sports Commission developed Pregnancy and Sport Guidelines Pregnancy in Sport: Guidelines for the Australian Sporting Industry aimed at coaches, sporting administrators and facility managers. The guidelines address legal, medical and ethical issues surrounding pregnancy and sport.
The Commission was represented on the consultation group for the Guidelines, which were launched in May 2002.
Implementation of the pregnancy report and the Sex Discrimination Amendment Bill (No 2) 2002
The Commissioner continued to monitor and implement the recommendations of the Commission's report of the National Pregnancy and Work Inquiry Pregnant and Productive: It's a right not a privilege to work while pregnant and to work with relevant government departments to ensure that progress is made towards achieving the goals outlined in the Government's response to the Report.
In particular, the Sex Discrimination Unit provided advice to the Department of Employment and Workplace Relations on the development of a brochure entitled Working Your Way Through Pregnancy. This was undertaken in response to the recommendation that information be made available to all workplace participants on their rights and responsibilities under the Workplace Relations Act 1996, federal awards and agreements.
In addition, the Sex Discrimination Unit completed an analysis of the data received from Office of the Employment Advocate relating to employees' workplace pregnancy and maternity experiences. The data will be used to inform future work in this area including the paid maternity leave project.
On 27 September 2001 the Attorney-General introduced legislation to amend the Sex Discrimination Act 1984 to prevent pregnancy or potential pregnancy discrimination during the recruitment process and to ensure that breastfeeding was included under the Act as a characteristic appertaining to sex. The legislation passed the House of Representatives and was referred to the Senate during 2001. The legislation lapsed when Parliament rose for the federal election in November 2001. It was reintroduced into Parliament in March 2002.
The Sex Discrimination Amendment Bill (No 1) 2002
The Sex Discrimination Amendment Bill (No 1) 2002 was prepared in response to the Federal Court decision of Justice Sundberg in McBain v State of Victoria et al in July 2000, in which His Honour held that certain provisions of the Victorian Infertility Treatment Act 1995 were inconsistent with certain provisions of the Sex Discrimination Act, and to that extent were inoperative pursuant to section 109 of the Australian Constitution.
The Bill is intended to make clear that states reserve the right to restrict single people and same sex couples from accessing IVF and other assisted reproduction services. The Bill seeks specifically to exempt from the operation of the Sex Discrimination Act state legislation that discriminates on the basis of marital status in relation to the provision of such services.
The Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church took proceedings in the High Court to challenge the decision of Sundberg J. The Commission appeared at the hearing of Re McBain; Ex parte Australian Catholic Bishops Conference and Another before the High Court on 5 and 6 September 2001, having previously been granted leave to intervene. These proceedings are mentioned below and discussed in detail in the report of the Legal Section.
The Sex Discrimination Amendment Bill (No 1) 2001 was passed in the House of Representatives before it lapsed when Parliament rose for the election in November 2001. The Commission is on record criticising the Bill. The Government re-introduced the Bill to the House of Representatives on 27 June 2002.
International projects
Trafficking in women and children
The Commission was a member of a project design mission for the Australian Agency for International Development (AusAID), developing a project design to assist in the prevention of trafficking of women and children in the South East Asian region. The design mission focused on the legal-policy infrastructure of project countries and took a human rights and gender central approach to the issue of preventing trafficking of women and children. The team, of which the Director of the Sex Discrimination Unit was a member, travelled to Jakarta, Bangkok, Phnom Penh, Vientiane and Yangon. The project design document has been submitted to AusAID.
Submissions
Comments to the Senate Foreign Affairs, Defence and Trade References Committee
On 11 June 2002 the Commissioner contributed comments on behalf on the Commission for input into the Senate Foreign Affairs, Defence and Trade References Committee report entitled Japan Politics and Society: Report 2 on the Enquiry into Japan.
Intervention and amicus curiae functions
The Commission has the power, under both the Human Rights and Equal Opportunity Commission Act and the Sex Discrimination Act, to intervene with the leave of the court in court proceedings that involve human rights or discrimination issues. In addition, section 46PV of the Human Rights and Equal Opportunity Commission Act confers on the special purpose Commissioners, including the Sex Discrimination Commissioner, the function of assisting the Federal Court and the Federal Magistrates Court in certain cases as amicus curiae or friend of the court.
With the assistance of the Sex Discrimination Unit the Legal Section monitors and intervenes in appropriate matters concerning discrimination based on sex.
Interventions
The Commission intervened in Re McBain; Ex parte Australian Catholic Bishops Conference and Another, Human Rights and Equal Opportunity Commission and others intervening which was heard by the High Court in September 2001. This matter is referred to above and discussed in detail in the Legal Section of this Report. The Australian Industrial Relations Commission heard an appeal about an interim matter in the case of Gunn and Taylor Pty Ltd v AMWU.
Australian Industrial Relations Commission intervention - Gunn and Taylor Pty Ltd v AMWU (interim matter appeal)
The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union brought proceedings in the Australian Industrial Relations Commission against Gunn and Taylor Pty Ltd on behalf of a female employee requesting an order for equal remuneration for work of equal value under the Workplace Relations Act.
At first instance, the employer argued that the employee had an adequate alternative remedy under the Sex Discrimination Act and the Human Rights and Equal Opportunity Commission Act or the Victorian Equal Opportunity Act 1995 and that therefore section 170BE of the Workplace Relations Act ousted the jurisdiction of the Australian Industrial Relations Commission to determine the matter.
Commissioner Whelan of the Australian Industrial Relations Commission found that the remedies available under the Sex Discrimination Act, the Human Rights and Equal Opportunity Commission Act and the Victorian Act did not provide 'adequate alternative remedies' to the equal remuneration provisions of the Workplace Relations Act. The employer appealed.
The Commission was granted leave to intervene in this interim matter appeal and appeared before the Full Bench on 21 May 2002.
The Commission argued that:
- The Workplace Relations Act extended to both systemic discrimination and cases of direct discrimination and this contention was supported by section 40(1) of the Sex Discrimination Act and section 46PW of the Human Rights and Equal Opportunity Commission Act.
- The remedies available under the Workplace Relations Act are different to those available under the Sex Discrimination Act and Human Rights and Equal Opportunity Commission Act.
In its decision of 4 June 2002, the Full Bench of the Australian Industrial Relations Commission upheld Commissioner Whelan's decision on this interim matter. The Commission is currently monitoring the progress of the substantive proceedings.
Amicus curiae function
For the first time, the Sex Discrimination Commissioner exercised her function as amicus curiae in the case of Ferneley v Boxing Authority of NSW & State of NSW. This matter is discussed in detail in the Legal Section at Chapter 2 of this Report.
In addition, a number of matters were monitored by the Commission with a view to considering seeking leave to appear as amicus curiae. Matters monitored included Song v Ainsworth, Farrell v Travel Corporation, Sandra Escobar v Rainbow Printing Pty Ltd and Rispoli v Merck Sharpe & Dohme (Aust) Pty Ltd. For details on these matters see the Legal Section of this report.
Speeches
A selection of speeches, seminars and presentations made by, or on behalf of, Commissioner Goward during 2001-02 are listed below. Further speeches are available on the Commission's website at www.humanrights.gov.au/speeches/sex_discrim/.
Pregnant Sportswomen and the Sex Discrimination Act, Australian Sports Commission - National Forum on Pregnancy and Sport, Canberra, 1 August 2001.
Briefing on the World Conference Against Racism, Human Rights and Equal Opportunity Commission, Sydney, 4 October 2001.
Transforming the Workplace: Cultural Change for Equality, Women Chiefs of Enterprise International National Conference, Perth, 17 November 2001.
Human Rights and Economic Development, Committee for Economic Development of Australia Conference, Melbourne, 12 February 2002.
Human Rights and Economic Development, Australian Mines and Metals Association Conference, Sydney, 1 March 2002.
Obligations under the Sex Discrimination Act, New South Wales Department of Transport, Sydney, 5 March 2002.
Intersectionality, Beyond tolerance: national conference on racism, Panel Chair, Sydney, 13 March 2002.
Role of the Sex Discrimination Commissioner, Murdoch University Women's Networking Forum, Perth, 25 March 2002.
Women and Work: Future Challenges, 25th Anniversary Conference of the New South Wales Spokeswomen's Program, Sydney, 3 May 2002.
Paid Maternity Leave: Can it affect Australia's population growth?, Migration: Benefiting Australia Conference, Sydney, 8 May 2002.
Pregnancy Discrimination and Sport, Australian Sports Commission, Launch of the National Pregnancy in Sport Guidelines for the Australian Sporting Industry, Canberra, 13 May 2002.
National Structures Protecting Women's Rights, International Council of Jewish Women, Sydney, 26 May 2002.
