Human Rights and Equal Opportunity Commission: Annual Report 2002 - 2003
Chapter 8: Sex Discrimination
- Sex Discrimination Commissioner
- Research and policy
- International projects
- Submissions
- Sex Discrimination Act exemption applications
- Interventions and amicus curiae functions
- Speeches
Sex Discrimination Commissioner
Commissioner
Pru Goward’s appointment to the position of Sex Discrimination Commissioner
was announced on 29 June 2001. She commenced her term on 30 July 2001.
Statement from the Commissioner
My work over the past 12 months has ranged across a number of issues but has been dominated by the issue of paid maternity leave. In a nation with an array of mandated paid personal leave industrial arrangements (such as sick leave and annual leave), the absence of a national and mandatory paid maternity leave scheme could arguably be construed as a matter of sex discrimination. However, there is no argument about its usefulness as a positive measure in promoting gender equality. Child birth and child rearing are undoubtedly the greatest sources of economic inequality between men and women today and paid maternity leave goes some way to addressing this. For this reason, it is identified as a necessary step towards equality in the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), a United Nations treaty which Australia ratified in 1983. At the time Australia entered two reservations to the treaty, one being the absence of maternity leave with pay or with comparable social benefits. This reservation remains unchanged to this day. It was on the basis of these arguments that I have pursued this issue as federal Sex Discrimination Commissioner.
Following the release of my interim discussion paper, Valuing Parenthood, I embarked on an ambitious series of consultations with employers, unions, community and women’s groups and parents to consider the nature of a national approach. Submissions were sought from the community, and in particular, child development and health and welfare professional groups were invited to provide input. The Commission received 257 submissions. This was the largest number of submissions ever received by the Sex Discrimination Unit for any of its Inquiries or investigations, all the more remarkable given the closely-defined nature of a single public policy proposal.
My final discussion paper, A Time to Value, was released in December 2002. The paper canvassed the limited capacity of the industrial relations system to address the current inequities in the availability of paid maternity leave and the failure of current government payments to meet this need. The paper outlined the benefits of a national scheme of paid maternity leave, such as assisting in ensuring the health and well-being of women and their children, promoting equality, eliminating discrimination, contributing to the maintenance of Australia’s fertility rate and assisting with the maintenance of Australia’s human capital.
The final discussion paper recommended that women who had been in paid work for 40 of the past 52 weeks be entitled to 14 weeks of paid leave, up to the level of the Federal Minimum Wage (the paper also recommended that the Government consider providing two weeks paid paternity leave). The payment would be Government funded. Women receiving the benefit would not be entitled to Family Tax Benefit A and B for those weeks, would not be entitled to the first 12 months of the Baby Bonus or to the Maternity Allowance. For this reason some women might choose not to take the payment. The payment would not be available to women once they returned to work within those 14 weeks. It was estimated that this scheme would support 82 000 women currently in work at the time of their child’s birth and enable them to afford to stay at home for the first three months of the baby’s life.
Many aspects of this proposal were contentious – employers and unions both had points of difference with aspects of the proposal, as did some women’s groups and professional health groups. In part, my final proposal was driven by my belief that the introduction of paid maternity leave, for so long resisted by Australia and Australian governments, would only be possible if it began modestly. In order for the principle of paid leave to be adopted, it was important that the decision was not complicated by affordability. The National Centre for Social and Economic Modelling (NATSEM) was commissioned to provide costings of the proposed model. NATSEM estimated that the net cost of such a scheme would be $213 million each year, once the offsets outlined and reductions in other government payments and increases in tax were included. It is not unusual for governments to introduce policy measures of this order of cost in an ad hoc way and without offsets or even much public discussion.
The government has yet to formally respond to the discussion paper or to adopt any of its recommendations. The paper did, and continues to, generate considerable community and media debate in which political parties have been enthusiastic participants. That has established broad cross-sectional recognition of the struggles of working families to have sufficient time together, in addition to the rights of women in paid work to rest and recover after birth and the importance of enabling them to establish bonds with their children. I am continually invited to speak about the proposal and humbled to find there is broad community support for it, sometimes in unexpected quarters. Sadly, I am unable to provide any comfort to those many young women who ask when the scheme will be starting, although delighted to hear so many of them say support for the proposal and the acceptance of working motherhood attached to it has made them feel more confident about their capacity to combine paid work and family responsibilities. In time we will look back on the paid maternity leave debate as Australia turning the corner, but introducing it may also prove to be easy compared with other aspects of ensuring paid work and family responsibilities can be more readily met by Australians.
If only the same could be said of the horrors of trafficking in women. Australia signed the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention Against Transnational Organised Crime, but has yet to comprehensively respond to its obligations to deal with trafficked women as the victims of crime. Indeed, since legislation was enacted in 1999 regarding slavery and sexual servitude, there has not been a single successful prosecution of a trafficker. Little is known about the extent of trafficking in Australia, but that does not mean that slavery and sexual servitude are not serious crimes. The tragic nature of it was highlighted during the inquest of Puonthong Simaplee – a young Thai sex worker, who claimed that she had been trafficked into Australia when she was found working in a brothel without any visa. She died three days later in an immigration detention centre. The government has responded to rising public disquiet by seeking to develop an interagency and cross jurisdictional approach to trafficking, which is to be commended. The Sex Discrimination Unit and I have been pleased to be a part of that process.
Likewise, I provided a submission to the Northern Territory Law Reform Committee’s Inquiry into the recognition of Aboriginal Customary Law. My submission was based on consultations with a variety of Indigenous women’s groups and activists in the Northern Territory and identified a number of principles they believed should guide the Committee’s deliberations. In particular, it was the strong wish of Indigenous women to have crimes of violence treated within the Territory’s criminal justice system and that any further recognition of traditional law reflects the views of women as well as men and is tailored to the needs and structure of individual communities. The consultations also reflected my concern to engage in projects for the protection and promotion of the rights of Indigenous women, who remain the most disadvantaged group of women in Australia.
The importance of developing sound jurisprudence in sex discrimination law has driven the Commission to seek leave to intervene or appear as amicus curiae in a number of cases. I sought, and was granted, leave to appear as amicus curiae in Gardner v All Australia Netball Association Ltd. My submissions argued that Ms Gardner had been discriminated against by the respondent’s imposition of an interim ban preventing pregnant women from playing netball in the national tournament the respondent administered. Ms Gardner was pregnant when the ban was imposed and was prevented from playing in several netball matches. The Federal Magistrate found that Ms Gardner had been discriminated against on the basis of pregnancy pursuant to section 7 in the provision of services under section 22 of the Sex Discrimination Act 1984 (Cth) and the respondent was ordered to pay $6 750 in damages to Ms Gardner for loss of income. My submissions to the Court are cited extensively in the decision of the Federal Magistrate.
It is important that the Commission continues to intervene in cases involving the Sex Discrimination Act and that I continue to seek opportunities to be amicus curiae. I see the development of comprehensive case law as vital to the acceptance of human rights and equal opportunity in Australia and intend to play as active a role in legal forums as possible. In addition, this work also highlights areas where legislative amendment might be necessary.
Equal opportunity, the promotion of choice and equal rights for women, as the debate about paid maternity leave so amply demonstrates, is about improving the lives of all Australians. There are close connections between the rights of women, economic growth and social harmony and progress. Communities that ignore change and fail to make these connections, do so at their peril. It is my task to ensure that these issues remain at the forefront and to be vigilant and persistent in my pursuit of equality that is embraced and enjoyed by all of us.
A
Time to Value: Proposal for a National Paid
Maternity Leave Scheme
Australia at present does not have legislation in place that deals with the provision of universal paid parental or maternity leave at either the national or state or territory level. Australia retains its reservation to article 11(1) of the Convention on the Elimination of All Forms of Discrimination Against Women concerning paid maternity leave.
The Sex Discrimination Commissioner’s options paper on the issue, outlining options for the introduction of a national scheme of paid maternity leave: Valuing Parenthood, Options for Paid Maternity Leave, was launched in Sydney on 18 April 2002.
Following the preparation of the interim paper, receipt of submissions and consultations, the Sex Discrimination Commissioner launched a final paper: A Time to Value: Proposal for a National Paid Maternity Leave Scheme in Sydney on 11 December 2002.
The proposal makes 15 recommendations for a national paid maternity leave scheme, with consideration given to aspects of funding, coverage, eligibility, duration, payment level and payment mechanism.
Amy Shoemark, Year 12 student at William Clarke College (NSW),
interviews Sex Discrimination Commissioner, Pru Goward on paid maternity
leave; discrimination issues in schools; and equal opportunity in the
workforce.
Additionally, the paper annexes a report by the National Centre for Social and Economic Modelling (NATSEM) costing the paid maternity leave proposal. The report from NATSEM concluded that the Commissioner’s proposal would cost $213 million (net) in its first year.
The paper has generated significant interest within government, the media and the community. The federal Government’s Budget in May 2003 did not include provision for a paid maternity leave scheme, however, the government has indicated publicly that paid maternity leave is one of a number of options being considered as part of a taskforce on work and family. The Sex Discrimination Commissioner has met with the chair of that taskforce on three occasions.
Sexual harassment project
In January 2003, the Sex Discrimination Unit (SDU) commenced a research project into the nature and incidence of sexual harassment in employment in Australia. In collaboration with the Complaints Section of the Commission, SDU analysed 152 sexual harassment complaints finalised in 2002. The SDU also commissioned Gallup to conduct a telephone survey on the nature and incidence of sexual harassment in the workplace. This research will enable estimation of unreported sexual harassment.
A package of information, including public awareness materials, will be launched later in 2003.
Trafficking in women
The Sex Discrimination Commissioner and the SDU have been monitoring the situation in relation to trafficking of women in Australia. In early April 2003, The Australian newspaper published a series of articles on the issue, particularly focusing on the report of the inquest into the death of a young Thai woman in Villawood Immigration Detention Centre who had allegedly been trafficked into Australia. Following these events, the Minister for Justice and Customs formed an interdepartmental committee to examine appropriate approaches to the issue of trafficking in women from a whole of government perspective.
The Sex Discrimination Commissioner, the SDU Director and a member of the Legal Section, attended a meeting with the Minister for Justice and Customs to discuss the issue. The Sex Discrimination Commissioner also wrote to the chair of the inter departmental committee on 19 May 2003 outlining recommendations for approaching the problem of trafficking in a manner that takes account of the human rights of those who are suspected of being trafficked.
The Sex Discrimination Commissioner and Director are in regular contact with government and community organisations to monitor the issue of trafficking.
The Sex Discrimination Commissioner and an SDU staff member travelled to China to participate and present at the second Workshop on Family Violence in Minority Areas, held in Xining City, Qinghai Province in July 2002, as part of the China-Australia Human Rights Technical Cooperation Program.
As a member of the Asia Pacific Forum of National Human Rights Institutions, representatives of the Commission attended the seventh Annual Meeting held in New Delhi, India, from 11–13 November 2002. The Director of the Sex Discrimination Unit was invited to participate as a specialist in the area of trafficking in women.
The Sex Discrimination Commissioner was invited by the Department of Foreign Affairs and Trade to travel to Taipei, Shanghai and Hong Kong to deliver a number of speeches for International Women’s Day 2003, and to deliver a keynote address at the Faculty of Law, University of Hong Kong, on the role of the Commission in Australia. These visits took place between 6–12 March 2003.
As part of the Australian Government delegation, the Commissioner and the SDU Director attended the 47th session of the Commission on the Status of Women at the United Nations in New York, between 3–14 March 2003.
The Commissioner and the SDU Director attended and presented at a county level training course on trafficking in women in Chengdu City, Sichuan Province, China between 30 March and 4 April 2003, as part of the China Human Rights Technical Cooperation Program.
Comment on Australia’s 4th and 5th Reports on Convention on the Elimination of All Forms of Discrimination Against All Women (CEDAW)
The Commission was asked to comment on Australia’s draft CEDAW report. A full list of the Commission’s publications aimed at raising awareness of women’s rights was supplied, along with updates of legislative amendments to the Sex Discrimination Act 1984 (Cth) and the Human Rights and Equal Opportunity Act 1986 (Cth).
Comments on Australia’s Report under Equal Remuneration Convention 1951 (ILO 100)
The Commission’s contribution to Australia’s Report under ILO 100 outlined work on the Pregnancy Guidelines, the Paid Maternity Leave project and the preparation of several submissions, including:
• the Commission’s intervention in Gunn and Taylor Pty Ltd v AMWU AIRC, 4 June 2002 [PR918573] (an appeal before the Full Bench of the Australian Industrial Relations Commission)
• the Commission’s submission to the NSW Government Task Force set up to inquire into the Labour Hire Industry, and
• the Commission’s intervention into the Australian Council of Trade Union’s test case on parental leave for casual workers.
In response to the Committee of Experts’ direct requests, the Commission provided information on the range of publications it produces relevant to pay equity issues and on the outcomes of the National Pregnancy and Work Inquiry.
Submission to the Northern Territory Law Reform Committee Inquiry into the Recognition of Aboriginal Customary Law in the Northern Territory
The Sex Discrimination Commissioner, on behalf of the Commission, lodged a submission to ‘Towards Mutual Benefit: An Inquiry into Aboriginal Customary Law in the Northern Territory’ on 14 May 2003. This Inquiry is being conducted by a sub-committee of the Northern Territory Law Reform Committee and will report to the Northern Territory Government. The submission focused on the interaction of gender, human rights and Customary Law, with particular emphasis on Indigenous women’s experience of violence. The submission drew on consultations held with Indigenous women on Groote Eylandt, Darwin and Alice Springs in the Northern Territory. An accompanying submission was prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner.
Sex Discrimination Act exemption applications
The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) lodged a request for an extension to its temporary exemption from the Sex Discrimination Act 1984 (Cth) (SDA) on 7 August 2002 in relation to its Residential Housing Project. The Woomera Residential Housing Project (WRHP) enables some women and their children to live in family-style accommodation away from the Immigration Reception Processing Centre (IRPC), while remaining in immigration detention. Following a visit to the WRHP and IRPC by the Sex Discrimination Commissioner and Human Rights Commissioner and staff, a Notice of Exemption was granted on 14 October 2002 for a further 12 months, subject to the condition that DIMIA permit the Commission to monitor the operation of the project.
On 29 July 2002, the Civil Aviation Safety Authority lodged an application for exemption under both the SDA and the Disability Discrimination Act 1992, to allow discrimination on the grounds of pregnancy or disability where this prevents a person from safely fulfilling the inherent requirements of the role covered by the licence concerned. Submissions were sought from the public on this matter and a total of 11 submissions were received. The Commission granted an exemption on 26 November 2002 for the duration of five years.
On 30 August 2002, the Catholic Education Office, Archdiocese of Sydney, applied for an exemption under the SDA in relation to proposed scholarships for male trainee primary school teachers. The Commission received 11 submissions in response to a public notice of inquiry. A notice of the decision declining to grant the exemption was issued on 27 February 2003. The Catholic Education Office has lodged an application seeking to have that decision reviewed by the Administrative Appeals Tribunal.
Interventions and amicus curiae functions
The Commission has the power, under both the Human Rights and Equal Opportunity Commission Act and the SDA, to intervene with the leave of the court in court proceedings that involve human rights or discrimination issues. In addition, section 46PV of the Human Rights and Equal Opportunity Commission Act confers on the special purpose Commissioners, including the Sex Discrimination Commissioner, the function of assisting the Federal Court and the Federal Magistrates Service in certain cases as amicus curiae (or friend of the Court).
With the assistance of the Sex Discrimination Unit, the Legal Section monitors and intervenes in appropriate matters concerning discrimination based on sex.
A selection of the 87 public addresses made by the Sex Discrimination Commissioner during 2002–03 are listed below. Further speeches can be accessed on the Commission’s website at www.humanrights.gov.au/speeches/sex_discrim/.
Work and Life: Today’s Issue, Work Life Issue Conference, Melbourne, 5 July 2002.
Paid Maternity Leave: Working for Women, 14th Women, Management, and Employment Relations Conference, Sydney, 26 July 2002.
A Good Beginning: Women and Work, Good Beginnings and Macquarie Bank National Awards, Sydney, 20 August 2002.
Sexually Permeated Workplaces: They Don’t Work for Women, National Association of Women in Construction Conference, Melbourne, 15 August 2002.
Human Rights, Democracy and Women’s Choices, Hunter Valley Research Foundation Series, Newcastle, 3 September 2002.
Tomorrow Today, 21st Century Solutions, National Work and Family Conference, Sydney, 4 September 2002.
Sex Discrimination and Women’s Human Rights, University of Technology Law School, Sydney, 23 September 2002.
Defence and Discrimination, Australian Defence Force Intelligence Group, Canberra, 30 September 2002.
Innovation and Social Policy: How Social Policy Works in the New Economy, Canberra Business Council, Canberra, 17 October 2002.
Both Sides of the Thin Blue Line, Women and Policing Globally Conference, Canberra, 20 October 2002.
Bearing the Burden of Culture, UNIFEM Australia Reception, Brisbane, 24 October 2002.
Without Gender Prejudice, Without Prejudice Forum, Sydney, 15 November 2002.
Professional Women: Choice and Challenge, Second National Conference on Women in Science, Technology and Engineering, Sydney, 29 November 2002.
Today’s Changes, Tomorrow’s Challenges, Australian Mines and Metals Association Conference, 27 February 2003.
Women’s Rights, Human Rights and Economic Development, Australian Consulate General in Shanghai International Women’s Day Luncheon, China, 10 March 2003.
All Aboard the ‘Mummy Track’, VIVE Magazine Working Mothers Forum, Sydney, 8 May 2003.
Women In Sport: The Current Playing Field, Australian Sport Commission Women and Sport Forum, Sydney, 20 May 2003.
Changes in Population and Lifestyle – Impacts on Workplace Practice, Committee for Economic Development of Australia, Adelaide, 23 May 2003.
Discrimination, Harassment and Equal Opportunity: “Insights” Launch, Clayton Utz Solicitors, Sydney, 11 June 2003.
