When the Sex Discrimination Act was introduced into parliament in 1983 it was derided as the brainchild of radical feminists and a death knell to functioning society. A quarter of a century later much of the smoke blown on the debate has cleared and the SDA has emerged a constructive, but flawed document. In its current form, the SDA is only capable of addressing some forms of discrimination, some of the time. It employs a narrow definition of discrimination, applies to limited areas of public life and fails to provide the tools necessary to address systemic discrimination and promote substantive equality.
The current parliamentary inquiry into the SDA affords an opportunity to address the legislation’s shortcomings. If we are to move towards real and effective equality, our laws must offer a more progressive and robust vision for Australian women and men.
This vision is not amorphous or imaginary. It already exists at the international level and is encapsulated in the Convention on the Elimination of All Forms of Discrimination against Women. CEDAW requires equal outcomes and the elimination of the structural causes of inequality.
The disparity between CEDAW and the SDA is disappointing given that the SDA was Australia’s legislative response to the ratification of CEDAW and should therefore have reflected the convention’s expansive aims. The SDA sits in contrast to the Racial Discrimination Act, which aims to give full effect to the International Convention on the Elimination of All Forms of Racial Discrimination and closely follows the language of that convention.
There are many examples that demonstrate the gaps in the SDA. Consider the broad failure to recognise the parental caring responsibilities of both women and men. When combined with the dominant cultural assumption that women bear the primary responsibility to care for children, the result is that women do not enjoy equality in the workforce. Flow-on effects include women’s financial disadvantage and under-representation in public and political life.
The SDA stares blankly at this problem. The individual complaints process that is the SDA’s main weapon against discrimination serves an important function, but is not designed to address entrenched discrimination. The SDA’s individualised approach needs to be supplemented by mechanisms that can respond to systemic issues. These mechanisms should include a free-standing provision guaranteeing equality before the law. Such a guarantee would allow women to challenge laws, procedures and practices that create or perpetuate inequality. It is a protection exists in every Western, industrialised country except Australia.
The SDA should also adopt a general prohibition of discrimination. The SDA’s current aim of prohibiting narrowly defined acts of discrimination in specified fields of public life is inadequate. The fact is that much of the discrimination experienced by women finds its source outside the SDA’s defined spheres of activity. The SDA needs to reach issues such as the undervaluation of women’s work and women’s susceptibility to male violence.
Finally, for the SDA to realise its full practical and symbolic potential, the permanent exemptions must be removed. Currently the SDA permits discrimination in certain areas, including within sporting clubs, religious bodies and charities. Discrimination should only be permissible when it can be shown to be a necessary and proportionate response to a legitimate need. Absent this analysis, exemptions perpetuate traditional social structures that discriminate disproportionately against women.
These recommendations are not novel – they have appeared in a stream of high-level calls for reform that have been largely ignored by successive Australian governments. It’s time to confront the forces that have stunted the evolution of the SDA. The Labor Party’s own policy platform compels them to ‘make equality real’ for women and to harmonise domestic law with international human rights standards. To achieve these goals the SDA must be strengthened so that it has the capacity to address discrimination, in all its guises.
Rachel Ball is a lawyer at the Human Rights Law Resource Centre and the lead author of the Centre’s submission to the Senate inquiry into the SDA.