Sex Discrimination

The World Economic Forum (WEF) released its Global Gender Gap Report 2020, placing Australia 44th out of 153 countries in overall liveability of the nation for women. This is down 4 places since the last WEF report, and significantly lower than a 2012 poll that placed Australia at number 4 out of 19 (excluding the European Union) of the G20 countries. While Australia clearly still faces challenges, its standing is in the top 1/3 of nations assessed.

Legislation and Government Initiatives

The Australian Human Rights Commission (AHRC) provides a comprehensive discussion of the Sex Discrimination Act (SDA) in its publication on Federal Discrimination Law.

Australia’s legislative and policy framework includes such initiatives as Safe At Home, aimed at changing attitudes to domestic violence, including viewing domestic violence as criminal behaviour, like any other violence, Safe At Home also aims to promote safety for women in the home, with a focus on moving the offender from the home, rather than the victim being forced out of their home.

In terms of rights, protections and opportunities, particularly in the workplace, Australia has the Sex Discrimination Act 1984 (Cth) (SDA) and the Paid Parental Leave Act 2010 (Cth). The Sex Discrimination Act includes the Convention on the Elimination of Discrimination Against Women (CEDAW), an international agreement to which Australia is a party. The SDA is part of Australia’s domestic fulfillment of its obilgations under the CEDAW. This section looks at the Sex Discrimination Act and briefly at the Paid Parental Leave Act.

Paid Parental Leave

The Paid Parental Leave Scheme is an example of the Australian government attempting to ‘level the playing field’ for mothers and fathers who want to take parental leave but still maintain access to work opportunities. The Scheme is aimed at providing the primary carer (usually the mother) with a means of taking a reasonable period of leave to take care of a child or children, and helping employers provide a longer period of maternity leave. It also aims at levelling the access to paid parental leave for casual, part-time, and full-time workers, as well as for women who work in casualised industries (such as hospitality and retail), or who work in low wage employment. The greater the income, the greater the access to paid parental leave. The paid parental leave attempts to address these inequities.

The Scheme also facilitates women returning the workplace, and in returning to the same workplace, from which they took leave to care for a child or children. One of the underlying objectives of the scheme is achieving greater gender equity and balance between paid work and family life. This objective is consistent with those of the Sex Discrimination Act (s3, SDA).

What is sex discrimination?

Under the SDA it is unlawful to discriminate against a person because of sex, marital status or pregnancy, potential pregnancy and family responsibilities. There SDA also makes sexual harassment unlawful. For example, pregnant women can only be treated differently from people who are not pregnant where there is good reason (such as a specific medical condition) to do so.

It is unlawful to discriminate or sexually harass a person in:

• employment;
• education;
• provision of goods, services and facilities;
• accommodation;
• the activities of clubs;
• the administration of a Commonwealth law or program;
• qualifying bodies; and
• disposal of property

The SDA protects women and men from sex discrimination and sexual harassment.

Exemptions

There are many exemptions under the Act. For example, it does not cover services which can only be provided to people of one sex; or jobs where there is a good reason to employ either a male or a female, such as acting roles, fitting clothes, searching clothes or bodies, or change-room or toilet attendants (s30). Discrimination on the ground of sex or marital status is allowed in relation to jobs involving the residential care of children (s35). Voluntary bodies, such as organisations like Rotary, are exempt from the Act as far as membership is concerned (s39).

Other exemptions are competitive sports where strength, stamina and physique are relevant, the employment of women in combat duties in the armed forces, and the practices of religious bodies following their beliefs (s30).

Victimisation and other offences

It is an offence under the SDA to victimise a person (s94). The offence is punishable by a fine or up to three months imprisonment. Similar to the other anti-discrimination Acts, victimisation is where detriment is threatened or occurs to a person who asserts rights under the Act, or the AHRC Act, makes a complaint, intends to make a complaint, assists or intends to assist a person in making a complaint. Victimisation can either be the subject of a civil or criminal proceeding. This is because ‘unlawful discrimination’ in section 3 of the AHRC Act includes conduct that is an offence under section 94 of the SDA.

As with other anti-discrimination Acts, some of the acts that a person can make a complaint about to the AHRC are not unlawful discrimination, and so cannot be the subject of a court proceeding. Aside from victimisation under section 94, other specific offences under the SDA include:

• Publishing or displaying an advertisement or notice that indicates an intention to do an act that is unlawful by reason of Part II of the SDA (s86).
• Failing to provide the source of actuarial or statistical data on which an act of discrimination was based in response to a request, by notice in writing, from the President or the Commission (s87).

Complaints

Complaints can be directed to the AHRC following the AHRC procedures. The 2018-2019 statistics indicate a 72 percent conciliation rate for all human rights complaints. If the AHRC procedure doesn’t produce the desired result, a complainant can make an application to the Federal Court or Federal Magistrates Court.