Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise tonight to speak on the Commonwealth Sex Discrimination Act and in fact to celebrate, in 2009, its 25th anniversary. The Sex Discrimination Act today is regarded as an essential piece of law. It is hard to imagine that it could have ever caused controversy, yet it did. The history of the SDA is colourful by today’s standards, but this carefully crafted piece of legislation changed the social fabric of Australia for the better in a way that can never, hopefully, be undone.

The Hon. Susan Ryan, who was at the time the Minister Assisting the Prime Minister on the Status of Women and oversaw the passage of the SDA through parliament, said in an article in 2004 in the University of New South Wales Law Journal that, at the time, Australia had one of the most gender-segregated labour markets of any country in the OECD. Women were trapped by discrimination in what she called ‘an employment and pay ghetto’. She stated:

Industrial jurisdictions had accepted the principle of equal pay, but the work ghetto, limited education and training, and the meagre provision of child care meant that women’s earnings were considerably lower than—in fact, about two thirds of—men’s wages.

               …            …            …

Most girls did not complete high school and were overtly discouraged from studying advanced mathematics and sciences.

Women were in limited numbers as professional lawyers, architects, accountants or engineers. Executive levels of business and careers in the media were out of the reach of most women and there was still an expectation on them to stop working once they were married.

After a false start while in opposition in November 1981, Senator Ryan, then Minister Ryan, introduced the Sex Discrimination Bill into the Senate in June 1983 on behalf of the Hawke government. The bill sought to make discrimination on the grounds of sex, marital status and pregnancy, and also sexual harassment, illegal in the workplace. It also applied to areas of education, employment and services. Sounds simple really, doesn’t it? It sounds like it is a piece of everyday life in 2009. But at the time it caused great controversy.

It is hard to imagine now what the fuss was about, but one only has to search back to the debates on the Sex Discrimination Bill held in parliament and in the wider Australian community at the time. Opponents of the bill declared inside and outside parliament that the bill would bring about the end of the family, it would ruin the economy and it would destroy Christianity and the Australian way of life.

In fact, looking back through the transcripts, then Senator Robert Hill echoed these misgivings about the bill in parliament. He said:

… the legislation will undermine the family unit; that it will destroy the traditional concept of the family; that it will lessen the traditional respect accorded to women as home-makers; that it will virtually consign marriage to irrelevance; and that it will drive women who are totally satisfied with their role as wife and mother, sustainer and supporter, and up-bringer of children to outside employment, against their wishes, and their children to creches.

He went on to argue that the aim of the bill to support equality was misguided, as most women were biologically ‘homely and caring, that they are not wildly ambitious, that they are not naturally dominating and that they are mostly inclined to avoid authority’. I must say that in my experience that is not an awful lot like the women I have met in my life. Not a lot of women I have met would actually agree with that statement.

However, at the time a few prominent women were vocal in their opposition to the bill. Senator Flo Bjelke-Petersen declared:

In my opinion, after reading it, I think that the best amendment of all would be to forget about it.

Mr Bruce Goodluck, then Member for Franklin, said that after doing some research on the Women’s Electoral Lobby, that:

Most of the members of it were given-up Catholics. They are all women who had had problems, et cetera.  They were women who had something against men.

After proclaiming that the female members of the federal Labor government were always campaigning about something and were very good talkers, compared to the majority of Liberal women who were quiet, did not say much and supported their husbands—

Judith Adams (WA, Liberal Party) Share this | Link to this | Hansard source

Senator Adams interjecting—

7Y6 Crossin, Sen TrishSenator CROSSIN—Senator Adams, I think times have changed—Mr Goodluck then declared:

We have to fight back. These women have it all their own way; if we do not fight back they will take over.

Mr Michael Hodgman, then Member for Denison, whilst conceding that there were parts of the bill with which he had no quarrel whatsoever, stated:

I have to say that this legislation as a whole is tainted with the pseudo intellectualism of selfish and unrepresentative feminism and doctrinaire Marxist-socialist precepts of contrived equality-defying laws of nature.

How is that for a quote? It is hard to imagine that these arguments were being seriously touted only 26 years ago.

The SDA sets out its objectives in section 3, where it aims to eliminate discrimination against people on the grounds:

... of sex, marital status, pregnancy or potential pregnancy in—

a vast array of areas such as—

… work, accommodation, education, the provision of goods—

and even—

... the administration of Commonwealth laws.

It also aims to eliminate sexual harassment, discrimination involving termination of employees on the basis of family responsibilities and:

... to promote recognition and acceptance within the community of the principle of the equality of men and women.

Since its inception, thousands of complaints have been made to the Sex Discrimination Commissioner in the Australian Human Rights Commission. This shows that, while the SDA has been successful in raising awareness that discrimination as outlined in the act is absolutely unacceptable, it appears that it does not go far enough to be truly effective.

There is no doubt that this legislation has helped bring about equality for women. No longer is it an accepted norm that women are discriminated against because of their sex or their marital status or because of pregnancy, not only in the workplace but also in education and other services. However, society is ever-changing and this legislation must be too. The creators of the SDA recognised that the legislation was not perfect, and it has been amended since then as society has progressed. The time has come again to further mould the legislation to ensure that it fulfils its objectives of gender equality and to continue to educate the public on sex discrimination and harassment.

A recent report by the World Economic Forum demonstrates that equality between men and women has still not been achieved in Australia. ‘No,’ you say, ‘I don’t believe that.’ Incredibly, though, women in Australia are facing bigger wage gaps than those faced by women in countries such as Sri Lanka. On 29 October, the ABC news reported that the forum’s global gender gap index shows that Australia’s rank has slipped five places, to 20th, in three years. Sex Discrimination Commissioner Elizabeth Broderick reported in her article in the Australian Financial Review on 29 October that Australia is ranked 50th in the world for women’s labour force participation rates, down from 40th place in 2008.

Ms Broderick outlined in her speech entitled Lifelines: sex discrimination over the lifecycle at the Sex Discrimination Act Silver Anniversary conference this year that in order to reduce sex discrimination one must look at the lifecycle of a woman as a whole. She outlined three stages of a woman’s life where sex discrimination and inequality begin to ‘cluster’ and intensify: in her experiences in education and entering the workforce; having children and other caring responsibilities; and, finally, around retirement. She states that not only are women more likely to be engaged in low-paid occupations and industries but they also make up a higher proportion of casual workers and are more likely to be working under minimum employment conditions.

Complaints statistics and research conducted by the Sex Discrimination Commissioner show that women are commonly vulnerable to discrimination when they are pregnant and when they return to work following maternity leave. They often receive demotions and redundancies, miss out on promotions and are denied family-friendly conditions. Appallingly, in some situations they are even the subject of workplace bullying.

At retirement age, the discrimination deepens. Ms Broderick states that the number of divorced or separated women entering retirement is expected to rise in the next 20 years. When compared to men, they are more likely to experience financial insecurity following divorce. In 2003, men who separated experienced an average drop in their household disposable income of $4,100 per year, but women who separated experienced a drop of $21,400.

Timothy McDonald reported for The World Today on ABC radio on 22 September this year that the Workplace Ombudsman receives approximately 30 discrimination complaints a week, with a large number of those relating to maternity leave. In 2008, the Senate Standing Committee on Legal and Constitutional Affairs held an inquiry into the effectiveness of the Sex Discrimination Act in eliminating discrimination and promoting gender equality. This was an inquiry that I myself initiated after consultation with some wonderful leading female academics in this country. The committee found that, while there is overwhelming support for the act, there are certainly areas which need improvement. In the report, the committee stated that it shared the views of the Sex Discrimination Commissioner that:

The Sex Discrimination Act matters. It matters as a tool for driving systematic and cultural change which is needed if we are to live in a country where men and women enjoy true gender equality in their daily lives. The act has been in operation for nearly 25 years. Like most law, it is time to renew it to ensure that it continues to be an effective platform for progressing gender equality.

The report organised 43 recommendations into three stages. In the first stage, the recommendations are quite simple. They include removing the phrase ‘so far as is possible’ from the preamble and from subsections (3)(b), (ba) and (c) in order to demonstrate an unequivocal commitment to eliminating sex discrimination and sexual harassment and to amend subsection (3)(a) to refer to other international conventions Australia has ratified which create obligations relating to gender equality. There is also a reference to amending the wording of the act in order to provide protection for same-sex couples. References to and the definition of ‘marital status’ should be replaced with ‘marital or relationship status’.

Recommendation 8 looks at including, ‘a general prohibition against sex discrimination and sexual harassment in any area of public life’, similar to the provisions in the Racial Discrimination Act 1975. Recommendation 12 suggests amending the act, ‘to make breastfeeding a specific ground of discrimination.’ Other recommendations that can be actioned immediately include: providing protection to students regardless of their age and removing the requirement that the person responsible for the harassment must be at the same educational institution; increasing the time limit for lodging an application with the Federal Court or Federal Magistrates Court from 28 days to 60 days; expanding the Human Rights Commission’s powers to conduct formal inquiries and that the Human Rights Commission be required to intervene in proceedings relating to discrimination based on family responsibilities or victimisation; and requiring the Sex Discrimination Commissioner to monitor progress toward the elimination of sex discrimination and achieving gender equality and to provide a report on that monitoring to parliament every four years. These recommendations are all relatively simple and could be implemented immediately to strengthen the act and provide further protection for individuals.

The second stage, which provides recommendations that would require further consultation over a 12-month period or longer, includes giving the Sex Discrimination Commissioner the power to investigate alleged breaches of the act without requiring an individual complaint; amending the act to give the Human Rights and Equal Opportunity Commission the power to commence legal action for a breach of the act; and amending the Equal Opportunity for Women in the Workplace Act—an act which I notice Minister Plibersek currently has under review—to provide for positive duties and to promote gender equality. The third stage, which will be much more difficult, recommends that HREOC conduct a public inquiry to examine the merits of replacing the existing federal anti-discrimination acts with a single equality act in this country, and that the inquiry should report by 2011.

Over the years there have been two attempts to reduce the coverage of the SDA. The first was when the Catholic Church attempted to have the legislation changed in relation to its proposal for male-only teacher scholarships, and the second saw the Howard government seek to exclude single women and lesbians from accessing IVF. However, both attempts failed.

Despite a rocky start, the Sex Discrimination Act was, at the time, a radical piece of legislative reform. While not perfect, it is undeniable that it changed the social fabric of Australia for the better. No longer were women able to be discriminated against on the basis of their gender or the possibility that they would fall pregnant. Social norms were challenged and the gender gap began its long journey to equality.

However, we are not there yet. The strong women who kick-started the Sex Discrimination Act have done the hard yards, and we need to continue their legacy. The Hon. Susan Ryan, the women and men who stood beside her and voted for the legislation, and the sex discrimination commissioners through the years all fought for equality between men and women. As Ms Broderick said in her speech this year:

The SDA is best viewed as a work in progress and we need to continually assess the legislation against women’s changing social conditions.

So we do celebrate the 25 years of this legislation in this country. Not only was it a watershed moment for the Hawke government, Senator Susan Ryan and the people who stood with her in getting this legislation through the parliament; it was a watershed moment in the history of reform for women and equality in this country. In celebrating this act, we also need to remember that it is not the end. In fact, these are not the final stages of the Sex Discrimination Act in this country. We still have a long way to go. Society is constantly evolving and adapting, and so too must this act.

I would urge people who are listening—and I know I speak for the Human Rights and Equal Opportunity Commission and Elizabeth Broderick herself—to help ensure that this government takes up the challenge of accepting the recommendations of the Senate committee’s report. As I said, the recommendations are in three stages. The first stage we could do immediately, the second stage needs a bit more work and the third stage will require national consultation. But as society changes, as women and their expectations of this country change, and as the expectations of this government change, so too must this act. It must be amended and it must keep evolving with the expectation that women and girls and men in this country have of achieving equality.