Late last year the Senate Committee on Legal and Constitutional Affairs released a major report on the Sex Discrimination Act 1984. The Report recommends a transformation in the way our laws deal with discrimination and promote gender equality. We are surrounded by evidence of the need for change. Australia lags behind the United States, United Kingdom, South Africa, Canada and New Zealand in the representation of women in executive management positions. A quarter of all Australian teenagers are aware of domestic violence being committed against their mothers or step mothers. We are one of only two OECD countries without a national paid parental leave scheme. These are not indicators of a country that can afford to be complacent about discrimination against women.
Gender equality is an issue for men, too. For example, the stereotypes that women are primarily responsible for parenting and that men are the ‘breadwinners’ limits the autonomy and potential of men and women and is perpetuated to the detriment of both.
These problems are deeply entrenched in our institutions and social structures and are not adequately addressed by the existing legal framework. Currently, the Sex Discrimination Act is effective only in those areas where individuals choose to challenge specific instances of discrimination that fall within limited and defined spheres of activity. The Act is a blunt weapon in the fight to end systemic discrimination.
The Committee’s Report recommends a more comprehensive, robust regime which would have the capacity to attack systemic discrimination and promote substantive equality.
Recommendations include the introduction of a general prohibition of discrimination in all areas of public life to replace the ‘patchwork’ coverage of the current Act. This amendment, along with a freestanding guarantee of equality before the law – such as that already included in the Racial Discrimination Act 1975 – would free the Act of its existing marks of anachronistic political compromise.
The Committee also recommends broadening the powers of the Sex Discrimination Commissioner to investigate instances of systemic sex discrimination and allowing remedies such as corrective and preventative orders which go beyond compensating an individual and require institutional change. If adopted, these reforms would open the eyes of the law to the entrenched issues that lie at the root of the individual instances of discrimination which are the focus of the current legislation.
Other recommendations, including broadening the prohibition of discrimination on the grounds of family responsibilities and imposing a positive duty on employers to reasonably accommodate requests for flexible working arrangements, would further contribute to building a real and effective blueprint for equality.
Such initiatives are not, as the Committee’s dissenting report suggests, ‘misguided attempts at social engineering’. Rather, they are necessary steps towards the fulfillment of Australia’s human rights obligations to actively promote gender equality.
In the words of the Sex Discrimination Commissioner, Elizabeth Broderick, ‘the Sex Discrimination Act matters. It matters as a tool for driving systemic 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.’
Any new laws will stand on the shoulders of the Sex Discrimination Act which, despite its shortcomings, has made an important contribution to Australian society. However, that Act was passed 25 years ago and it’s time for our laws to reflect a stronger vision of equality for Australian men and women.
Rachel Ball is a Lawyer at the Human Rights Law Resource Centre