SEX DISCRIMINATION ACT AND COMPLIANCE ISSUES

The Sex Discrimination Act and Compliance Issues

The Sex Discrimination Act and Compliance Issues

Introduction

When Australia ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) twenty-five years ago, it agreed to pursue all appropriate means to realise the principle of equality of men and women.

The Sex Discrimination Bill was introduced as a measure towards achieving equality of men and women, and at the time it was controversial. Consequently the Bill was amended and redrafted, and affirmative action provisions were dropped. Although affirmative action provisions are now in the Commonwealth Equal Opportunity for Working Women Act 1999, there is still inequality between men and women, particularly in the workplace and as a consequence of the inequities associated with work.

The objects of the Sex Discrimination Act 1984 (the SDA) stated in the SDA make it clear it was not intended to give effect to all of the provisions of the CEDAW, even though the power under which the Act was made is in part premised on the CEDAW and it is re-produced as a Schedule to the SDA.

So even on the face of it, the SDA goes only part way to eliminating discrimination against women, both to the extent to which it purports to give effect to the CEDAW and in the areas in which it proscribes discrimination. In so far as the SDA purports to address discrimination against men, its application is limited by the powers of the Commonwealth under the Constitution.

Analysis

Many of the exemptions under the SDA recognise differences between the sexes and that in some cases it is necessary to provide special services or measures in order to achieve equality for a disadvantaged group. The need for special measures is specifically recognised in CEDAW, and consistent with the requirement to ensure the full development and advancement of women for the purpose of achieving equal rights and freedoms.

However the SDA allows some exemptions that are inconsistent with CEDAW, namely:

Schools based on religion are able to discriminate on the basis of sex, pregnancy and marital status in work arrangements, and on the basis of marital status and pregnancy in connection with the provision of education or training (s38).

Voluntary bodies are free to discriminate on the basis of sex, marital status and pregnancy in connection with membership and the provision of benefits, services and facilities (s39). Clubs are able to discriminate on the ground of sex if membership of the club is available to persons of the one sex only (s25(3)).

Discrimination of the basis of sex and marital status is permitted, in certain circumstances, in the superannuation area (ss41A & B).

The ADCQ supports the recommendation of the Australian Law Reform Commission that "the exemption contained in section 38 of the SDA for educational institutions established for religious purposes be removed. At the very least the exemption should be removed in relation to discrimination on the ground of sex and pregnancy. The exemption for discrimination on the ground of marital status, if it is to ...