1996 GUIDELINES FOR SPECIAL MEASURES UNDER THE SEX DISCRIMINATION ACT 1984

1996 GUIDELINES FOR SPECIAL MEASURES UNDER THE SEX DISCRIMINATION ACT 1984

1. INTRODUCTION

2. CRITERIA

3. CASE EXAMPLES

4. COMPLAINTS PROCESS

5. CHECKLIST

APPENDICES:

A: DEFINITIONS

B: AREAS COVERED BY THE SEX DISCRIMINA T1ON ACT 1984

C: PERMANENT EXEMPTIONS

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FOREWORD

This publication, 1996 Guidelines for Special Measures under the Sex Discrimination Act 1984, is produced to increase awareness and understanding of the recently amended special measures provisions in the Sex Discrimination Act 1984 (SDA). It aims to offer guidance on the effective implementation of special measures, or measures designed to achieve equality, in areas covered by the SDA.



Under the SDA, special measures were considered to be discriminatory because they are measures specifically directed to members of one sex, or persons of a particular marital status, or pregnant or potentially pregnant women and not to those persons who fall outside the group targeted by the measure. The Sex Discrimination Amendment Act 1995 amended the special measures provision in the SDA to ensure that these measures are, properly understood as non-discriminatory. The amendment recognises that measures which aim to achieve equality between a disadvantaged group and those who are not disadvantaged do not promote discrimination, rather, they are a crucial means of preventing and eliminating it.



The increasing number of enquiries which I receive about special measures, has brought to my attention the need to provide explanatory material to encourage their implementation. I hope that these guidelines will further the incentive to introduce special measures by offering a means by which employers, educational institutions, provides of goods, services, facilities and accommodation and administrators of Commonwealth law and programs can assess their own equity initiatives for consistency with the SDA.

I would like to acknowledge the work of Cara Seymour (author) and Kathryn Freytag, Sex Discrimination Policy Unit, for producing and writing this publication, also, Prudence Borthwick (publication consultant). I would like to thank Kate Eastman and Mark Nicholls, Legal Section, for their assistance.

Sue Walpole

Sex Discrimination Commissioner

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1. INTRODUCTION

1.1 SHORT TITLE

These guidelines may be cited as the Sex Discrimination Act 1984 Special Measures Guidelines.

1.2 PURPOSE

The purpose of these guidelines is to increase awareness and understanding of the recently amended special measures provisions in the Sex Discrimination Act 1984 (SDA). They aim to encourage the implementation of measures designed to achieve equality in employment, education, the provision of goods, services, facilities and accommodation and in the administration of Commonwealth laws and programs by:

• explaining the importance of sex specific initiatives as a strategy for eliminating systemic discrimination;
• providing criteria based on case law to assist in determining when an action or program is likely to constitute a special measure;
• providing case examples which illustrate special measures;
• explaining the complaint handling process for complaints of discrimination under the SDA.

Definitions of terms used in these guidelines are provided in Appendix A.

1.3 INTERPRETATION

These guidelines are issued under section 48(ga) of the SDA which empowers the Human Rights and Equal Opportunity Commission to prepare and publish guidelines for the avoidance of discrimination on the grounds of sex, marital status, pregnancy or potential pregnancy and discrimination involving sexual harassment.

It is important that these guidelines are read in conjunction with the SDA. They are not legally binding. In any action or proceeding based on an alleged unlawful act of discrimination under the SDA, a respondent shall not be protected from a finding of unlawful discrimination if he/she claims or proves that the act complained of was in conformity with, or in reliance on these guidelines. The guidelines do, however, provide information based on case law as to appropriate steps to be taken in order to meet the requirements of the SDA.

These guidelines do not apply for the purpose of legal determination as to whether:

• the measure is adequate to remedy the inequality it is designed to address;
• a measure constitutes a special measure under the SDA.

This will be a question of fact to be determined on a case by case basis.

Conformity with or reliance on these guidelines does not constitute a prima facie defence nor a complete defence to an allegation of discrimination under the SDA.

1.4 DEFINITION

“Special measure” means a measure (act, practice, program, plan, policy arrangement, mechanism or activity) taken for the purpose of achieving substantive equality between:

(a) men and women; or

(b) people of different marital status; or

(c) women who are pregnant and people who are not pregnant; or

(d) women who are potentially pregnant and people who are not potential pregnant. [1]

1.5 SCOPE

These guidelines apply to special measures taken in areas covered by the SDA. Those areas are set out in Divisions 1 and 2 of Part II of the SDA. Appendix B of these guidelines provides a summary of those areas.



These guidelines do not apply to areas which are exempt from the operation of the SDA. Exemptions are discussed in Chapter Two, section 2.2 of these guidelines. A list of the permanent exemptions to the SDA is provided in Appendix C of these guidelines.

1.6 THE SEX DISCRIMINATION ACT 1984

The Sex Discrimination Commissioner and the Human Rights and Equal Opportunity Commission are responsible for administering the Sex Discrimination Act 1984 (SDA) which prohibits direct and indirect discrimination on the grounds of sex, marital status, pregnancy and potential pregnancy in specified areas of public life.

The objects of the Sex Discrimination Act

The objects of the Sex Discrimination Act are:

• to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and
• to eliminate discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, services and facilities, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and
• to eliminate discrimination involving dismissal of employees on the ground of family responsibilities; and
• to eliminate discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and
• to promote recognition and acceptance within the community of the principle of the equality of men and women.

Grounds of discrimination



The SDA prohibits discrimination on the grounds of:

• sex;
• marital status;
• pregnancy;
• potential pregnancy;
• sexual harassment;
• family responsibilities (but only in the area of dismissal from employment).

Areas where discrimination is unlawful

• Discrimination on these grounds is unlawful in the areas of:
• employment;
• education;
• the provision of goods, services and facilities;
• the provision of accommodation;
• the disposal of land;
• clubs;
• the administration of Commonwealth laws and programs; and
• application forms. [2]

Discrimination and equality



The direct discrimination provisions of the SDA make it unlawful to treat people less favourably on the basis of sex, marital status, pregnancy or potential pregnancy.[3]

Example: It is direct sex discrimination to refuse to employ a woman because she is a woman.

It should be noted that sex, marital status, pregnancy or potential pregnancy need only be one of the reasons for a discriminatory act.

Direct discrimination can also occur on the basis of characteristics which appertain generally or are generally imputed to persons of a particular sex or marital status or women who are pregnant or potentially pregnant. The phrase “characteristics that appertain generally to” refers to characteristics which are usually associated or identified with persons in a particular group.

Example: The capacity to bear children is a characteristic that appertains generally to women.

The phrase “characteristics generally imputed to” refers to characteristics which are generally assumed to be indicative of a particular group whether that assumption is true or not.

Example: If an employer refused to employ a woman because it was assumed that women leave their jobs to have children, that would be direct discrimination on the basis of a characteristic generally imputed to women.

Behind these provisions is the idea that formal equality results where people in the same or similar circumstances, are treated the same.



However, the indirect discrimination provisions make it unlawful to impose, or propose to impose, a rule or policy which is the same for everyone, where it has the effect of disadvantaging persons of one sex, or of a particular marital status, or pregnant or potentially pregnant women, if imposing, or proposing to impose that rule or policy is not reason in the circumstances. [4] The burden of proving that the imposition or proposed imposition of the rule or policy is/was reasonable is on the person who imposed or sought to impose it.

Example: An employer implements a company wide policy that employees’ prospects for promotion in the company will be dependent on their availability to work overtime on request. That policy may be indirectly discriminatory where most women in the company are unable to work overtime because they, to a greater extent than men, experience conflict with overtime hours and their family responsibilities

These provisions recognise that identical treatment of people may produce unequal results and that consideration must sometimes be given to differences based on sex, marital status, pregnancy and potential pregnancy. Indirect discrimination is concerned with the effect not the form of the treatment.



At the same time, the SDA protects voluntary actions taken to achieve equality for women, or between persons of different marital status, or between women who are pregnant or potentially pregnant and those who are not. The voluntary actions, or ‘special measures” which the SDA protects, are measures which have the purpose of addressing disadvantages experienced by members of one or more of these groups in areas where they have been and continue to be unequal.



A special measure is a measure (act, practice, program, plan, policy, arrangement, mechanism or activity) which is taken for the purpose of achieving substantive equality between these groups. The concept of substantive equality recognises that creating equal opportunities for people or treating people equally may lead to serious inequality for groups that have been disadvantaged by a system which fails to take their situations and perspectives into account. Substantive equality is concerned with changing aspects of that system which have disadvantaged particular groups. It is concerned with equality of outcomes whereas formal equality is concerned with equal treatment regardless of the outcomes. [5]



Previously, it was thought that the existence of the “special measures” provision in the SDA created a tension. On the one hand, the direct discrimination provisions suggest that sex, marital status, pregnancy or potential pregnancy should not be a basis for differential treatment while on the other, the special measures provision protects different treatment on those grounds. For this reason, special measures were considered to be discriminatory but exempt under the Act.

This produced the unsatisfactory result that measures aimed at redressing past discrimination and ensuring that women or persons of a particular marital status or women who are pregnant have equal opportunities with others, required exemption from an Act which aims to eliminate discrimination against those groups. The provision referred only to “equal opportunities”, the purpose of special measures was not well understood and narrow interpretations of the section by courts and tribunals inhibited initiatives to achieve equality for women.



The Sex Discrimination Amendment Act 1995 amended the special measures provision in the SDA to ensure that these measures are properly understood as non-discriminatory. The amendment is in recognition of the substantive difference between providing benefits for a dominant group (promoting discrimination) and redressing the inequality experienced by a disadvantaged one (eliminating discrimination).



The amendment makes clear that special measures are measures intended to achieve substantive equality. For example, in many areas, existing social structures and institutions do not take into account the perspectives of women or adequately cater to their needs with consequent sex-based inequality or “systemic discrimination”. Measures designed to redress that inequality should not be considered as special benefits which discriminate against men. In this context, men have not experienced the particular disadvantage which the measure aims to redress. The aim of special measures is not to discriminate by conferring favours but rather to achieve equal outcomes for people who have been disadvantaged people who have not.



The SDA now provides a framework for the resolution of this tension between discrimination and special measures in accordance with the objects and spirit of the Act. The new provision is specifically designed to save initiatives to promote equality from attack on the ground of discrimination It is hoped that this change will act as an incentive for employers, educators, providers of goods, services, facilities and accommodation and administrators of Commonwealth laws and programs to implement special measures. These guidelines are issued to further that incentive by providing practical assistance to those who wish to do so.

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2. CRITERIA

2.1 WHAT IS A SPECIAL MEASURE?

A special measure is a type of affirmative action. Affirmative action may be defined as the systematic identification and elimination of the institutional barriers that women and minority groups encounter in areas of public life.

Special measures encompass a broad and diverse range of actions which focus on the root cause of unequal outcomes. They require people to look to structural barriers to equality or systemic discrimination. The actions which fall within the ambit of special measures are many, varied and difficult to articulate because the problem they are designed to address systemic discrimination, involves a complex interrelationship of directly and indirectly discriminatory practices.

For this reason, it is only possible to determine with any certainty that a measure is a special measure on a case by case basis. The following outline of criteria, which are illustrated by case examples provided in Chapter Three, are intended to provide general guidance on issues likely to be considered in determining whether a special measure exists.

Purpose of the measure

• The measure must be taken for the purpose of achieving substantive equality. [6]
• The purpose of achieving substantive equality does not have to be the “sole” (only) purpose or the “dominant or substantial” (main) purpose of the measure. [7]

Example: A women’s health centre may be set up for the purpose of providing health care and at the same time have the purpose of redressing inequality experienced by women whose health needs have not been adequately met by generalist health services.

• The measure must not be taken for a purpose which has been achieved. The identified inequality which the measure is designed to address must still exist for the measure to be justified. [8]

Identifying inequality

The legal definition of a special measure requires that it be a measure taken for the purpose of achieving substantive equality between men and women, people of different marital status or women who are pregnant or potentially pregnant and those who are not. It also provides that where substantive equality exists, there is no justification for the measure. Clearly then, the basis of the measure must be an existing inequality experienced by people in the designated groups. Those who wish to implement a special measure must have a clear idea of the problem which their action is designed to redress. This requires an analysis to determine whether, in the relevant area (service delivery, employment etc.), there are practices which do, or tend to, exclude, disadvantage, restrict, or result in an adverse effect on people in those groups, or leave uncorrected the effects of past discrimination against them.

There is no mandatory method under the SDA for conducting an analysis to identify inequality. Any analysis or study, whether formal or informal, showing an awareness, either through numerical evidence or otherwise, that individuals are not achieving equal outcomes with others in a particular area and that the disadvantages they experience are based on or related to their sex/marital status/pregnancy or potential pregnancy is sufficient. The most important aspect of identifying substantive inequality is to look at the overall effect of current practices and to trace unequal outcomes to their source.

Example: A number of recent studies have shown that more women than men graduate from law school and that women achieve higher results at law school. Yet, far more men than women reach senior positions in law firms. For the purposes of implementing a special measure to redress the situation, an analysis would need to determine what factors are behind these unequal outcomes and identify any employment practices which are responsible for or contribute to that inequality.

Reasonable basis

If the analysis shows that practices exist in the relevant area, which do, or tend to result in and perpetuate substantive inequality, the person making the analysis has a reasonable basis for concluding that action is warranted.



These are important points to note:

• the criteria for special measures are sufficiently broad to cover societal discrimination;
• there does not have to be a prior formal finding of discrimination to justify a special measure;
• there does not have to be sufficient evidence to make a prima facie case of discrimination to justify a special measure;
• a special measure does not have to be based on an admission of a person’s own discriminatory practices;
• the people for whom the special measure is intended do not have to be the victims of the specific discrimination which the measure is designed to address.

Example: An employer in a computer company may decide to implement an education and training program to assist women re-entering the paid workforce after leaving to have children. The employer has noted that across the industry, the employment and promotion prospects of women who have interrupted their employment have been impaired because they were not up to date with the constant changes in computer technology. The purpose of the program is to ensure that women in this situation be kept abreast of new developments in the industry. This may be a valid special measure even though none of the female employees in the company have actually experienced this discrimination.

Reasonable action



The action taken as a special measure must be reasonably related to the inequality identified. That is, the solution should be tailored to the problem. The question to ask is what action can be taken to ensure equal outcomes. In considering whether a particular measure is reasonable or appropriate in the circumstances, there are a number of points to note:

• there is no test under the SDA to determine whether the measure taken for the purpose of achieving substantive equality is an effective or necessary means of fulfilling that purpose;
• The Commission is not required to determine whether the special measure is in fact necessary or wholly suitable for achieving that purpose;
• what is required is that those who undertake the measure do so with that purpose in view and that it is reasonable for them to conclude that the measure would further that purpose. [9] Whether this requirement has been met is a question of fact to be determined on a case by case basis.

It is more likely that a person who undertakes a measure will meet this requirement if they have:

• a comprehensive analysis of the inequality which the measure is designed to address;
• a carefully planned and implemented measure;
• an explanation of the way in which the measure will achieve the purpose;
• ongoing evaluation methodology to determine whether equality has been achieved.

The special measures provision is designed to protect and encourage voluntary action, and therefore provides for flexibility in the way special measures are implemented

The terms of the special measures provision are sufficiently broad to cover a range of actions. Special measures may include actions which are narrowly directed to disadvantages experienced by a group of women within an organisation, such as a program to redress a disproportionately small number of women in a particular company, or broad measures directed to widespread disadvantage experienced by a group, such as a government departmental education and training program for women in male dominated industries.



The purpose of a special measure is to ensure that employment practices, service delivery, program delivery and so on, operate fairly, but the action taken should not result in unnecessary adverse effects on individuals who are not members of the groups targeted by the measure.

Example: An employment program for women should not require the discharge of an incumbent male employee to make a position available for a woman.

The action taken does not have to be part of a specific affirmative action plan or a formal written plan. Less formal arrangements are covered. However, more formal arrangements often make it easier to provide credible evidence that the action taken meets the requirements of a special measure.

Formal affirmative action plan example: The Affirmative Action Agency which is responsible for administering the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 has published a useful report to assist employers establish and report on their affirmative action initiatives. The report, Your Issues Your Directions: Developing an effective affirmative action program (Affirmative Action Agency Model Directions Series, Commonwealth of Australia, 1995.) provides practical guidance about the process for implementing an effective employment affirmative action program. The report provides that a program should contain a policy statement from senior management expressing the organisation’s commitment to affirmative action and how the particular measure or program is related to the organisation’s wider objectives. All employees should be aware of that policy statement. In order to identify areas where policies and practices are contributing to inequality, an organisation should begin with an examination of the organisation’s employment profile, an examination of statistics such as turnover of employees, recruitment and promotion rates of pay and consultation with employees. The second stage of the process recommends that employers measure their statistics to find out why there is an imbalance in their employment profile, whether their policies and practices are effective and what their targets should be The third stage of the process involves consultation with employees through surveys or focus groups, preferably with union involvement, to collect information concerning any barriers that have not been evident in the investigation process and to discuss potential solutions with staff and union representatives. The final stage involves linking problems with practical solutions.

2.2 WHAT IS NOTA SPECIAL MEASURE?

Mandatory affirmative action

Affirmative action programs are often categorised as “hard” or “soft”. The former mandate particular results, sometimes through the imposition of quotas. Mandatory programs have characterised affirmative action in the United States. “Soft” affirmative action programs specify targets and goals only and encourage and protect voluntary action to achieve them. Affirmative action programs in Australia generally take this form. Special measures are designed to encourage and protect voluntary affirmative action rather than mandate or require it. This is an important distinction which must be clearly understood.

Example A nationwide survey of universities shows that there continues to be a disproportionately low number of women in the traditionally male dominated engineering faculties. Quotas To redress the imbalance, legislation is enacted requiring engineering faculties in all universities to reserve a specified number of places for women students in the next intake. This would be a mandatory affirmative action pro gram based on quotas. Special Measures Engineering faculties in a number of universities aim to even up the numbers by offering five scholarships for women each year to encourage women into the faculty until there is a significant increase in the number of women electing to study engineering. This would be a special measure.

This example illustrates one important difference between quotas and special measures. Quotas focus primarily on numbers: redressing statistical imbalance, sometimes at the expense of the merit principle. Special measures usually accord to members of a particular group an advantage in an otherwise competitive process, while quotas remove certain positions or privileges from competition altogether.



Exemptions



Division 4 of Part II of the SDA provides for three different classes of exemption: permanent exemptions, exemptions for specified acts done under statutory authority and temporary exemptions on application to the Commission.

There are fundamental differences between exemptions and special measures.

1. Exemptions, and in particular permanent exemptions are in conflict with the overall spirit and objects of the SDA which include the aim of eliminating discrimination “so far as is possible”. Exemptions allow sex discrimination in certain spheres of activity. Provision for exemptions to the Act was made to ensure its passage through Parliament and to enable certain areas of public life to make the changes necessary to ensure consistency with the Act. Special measures are aimed at eliminating discrimination and are not in conflict with the objects of the Act.

2. Exemptions make it lawful to do a discriminatory act but do not make the act non-discriminatory whereas an act that is a special measure is lawful because the act itself is non-discriminatory.

3. The granting of an exemption provides a complete defence to a subsequent complaint of unlawful discrimination whereas a special measures determination cannot be made before a complaint of discrimination is investigated (see complaints process below).

4. Exemptions cannot be granted retrospectively. If a formal complaint alleging discrimination has been lodged with the Commission and it is found that the acts or practices were discriminatory and unlawful at the time the complaint was lodged, an exemption granted after that time will not affect the outcome of the complaint. It will only protect against future complaints of discrimination being lodged against the act or practice. A special measures determination occurs after the complaint is lodged and affects the outcome of the complaint.



Permanent exemptions

The SDA contains a number of permanent exemptions which are set out in Appendix C. Permanent exemptions can only be removed by legislative amendment to the SDA. Some exemptions for acts done under statutory authority specify the termination date for the exemption in the SDA itself.

Temporary exemptions

Section 44 authorises the Commission to grant administrative exemptions for periods not exceeding five years upon such terms and conditions as it considers appropriate.

The Commission exercises the power to grant exemptions in a way which is as consistent as possible with the objects of the Act. While all applications are considered on their merits, the Commission will seldom consider it necessary or appropriate to grant any person or organisation a general licence to discriminate. To do so would undermine the objects of the SDA. Consequently, these exemptions are rarely granted and strictly limited.



Persons or organisations applying for an exemption should set out the reasons why the exemption is required, together with any relevant evidence in support. The reasons should state why it is not possible immediately to comply with the Act. It is also advisable that the application address why other non-discriminatory means are not available or are inadequate to achieve a satisfactory result to the matters which are the subject of the proposed exemption.

The Commission is unlikely to grant an exemption that is sought by applicants on a speculative basis, based on a possibility or probability that direct or indirect discrimination will occur. The granting of exemptions must be tied to a particular set of facts which exist or are highly likely to exist. Exemptions will only be granted in carefully defined situations.

In granting a section 44 exemption, the Commission must set out in writing and publish:

• its findings on the relevant facts in the matter;
• all the evidence upon which these findings of fact are based; and
• the reasons for its decision.

The decision of the Commission about whether or not to grant the exemption is reviewable by the Administrative Appeals Tribunal (AAT).

This means for granting exemptions is important in that it recognises the extraordinary nature of exemptions. Exemptions should be subject to conditions, limited in duration and capable of being monitored and reassessed at regular intervals. Review by the AAT provides an additional level of scrutiny.

The following provides a clear example of the rationale for limiting the circumstances in which exemptions will be granted.

Example: The lead industry has historically excluded women from employment on the grounds that lead, which is hazardous for all workers, is particularly dangerous to the foetus. At the time when the SDA came into force on 1 August 1984, women were prohibited from employment in the lead industry by State legislation. In recognition of the need to provide an opportunity for governments to review and amend existing discriminatory legislation and policy, section 40 of the SDA provided an exemption from the Act where a person was acting in direct compliance with any Federal or State law in force at the commencement of the SDA. This exemption ceased to have effect after 1 August 1986 unless regulations were made under section 44(2) of the SDA to extend the period of exemption. The National Occupational Health and Safety Commission (NOHSC) sought to formulate a new national occupational health and safety standard. The NOHSC issued a public discussion paper to assist in the formulation of the standard. However, the central assertion in the paper was that it was impossible to comply both with occupational health and safety standards and the SDA. The NOHSC stated that the SDA must be amended to allow a permanent exemption for the industry. The HREOC submitted that rather than amending the SDA, it would be more appropriate to provide a temporary exemption so that the NOHSC could seriously attempt to address discrimination in the industry.(For a discussion of the lead industry exemption see Occasional Papers from the Sex Discrimination Commissioner - Number 5: “Discrimination against Women in the Lead Industry”, HREOC, November 1990.) A standard for the control of inorganic lead in the workplace has now been redrafted and issued as a national standard by the NOHSC. It applies a test which refers to the reproductive health of both men and women and is designed specifically to work so that occupational health and safety standards can be met with the least possibility of a breach of the SDA. Only if it is absolutely not possible to comply with both, may the industry apply to the Commissioner for a temporary exemption. Had a permanent exemption been granted, there would have been less incentive to find strategies to reduce discrimination against women in employment in the lead industry.

 

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3. CASE EXAMPLES

These guidelines refer to special measures in areas covered by the SDA (see Appendix B). This section sets out those areas and provides case examples of actions which are likely to be special measures in some of those areas. It should be noted that actions which are lawful special measures under the SDA may be unlawful actions under State anti- discrimination legislation. Any person who wishes to implement a special measure should ensure that the measure is not unlawful under State law. Contact details for the equal opportunity and anti- discrimination bodies in each State are provided in Appendix D.

3.1 WORK

Division 1 of Part II of the SDA sets out the areas of work covered by the Act. This division of the Act is divided into sections which relate to different types of work and to work-related organisations. [10]



Employment

Section 14 covers employment including selection and recruitment of employees, the terms and conditions of employment, career development opportunities such as promotion, transfer and training, the dismissal of employees and superannuation.



The SDA specifically includes full-time, part-time and temporary employees. Casual employees are also covered by the Act. [11] Volunteer workers are not employees and are not therefore protected under the SDA. [12]



Section 106 also provides that an employer is vicariously liable (legally responsible) for the unlawful acts committed by employees in the course of their employment.

Case Example: Identifying inequality A television station is concerned that there is a continuing significant under representation of women in engineering and technical positions (less than 5%). The organisation draws up an Equal Employment Opportunity Management Plan confirming the need for special initiatives and recruitment strategies to ensure women‘s equitable participation and representation in all areas of employment within the organisation. The organisation conducts an analysis of its recruitment and selection procedures and collects statistics on the potential pool of qualified women applicants in the labour force as a whole. The managers in the relevant areas then conduct a survey to be filled out anonymously by current staff Reasonable basis On the basis of the information collected, management identifies a number of possible causes for the under representation of women in technical and engineering areas including: that the organisation does not fully advertise all positions through an agency or CES to ensure that women with the skills know that jobs are available, but rather recruits from a list of those who have worked in the area and are currently looking for jobs; that the selection criteria for the jobs places an unnecessary emphasis on previous experience in the industry or the particular position; that the culture in this area of work is not accepting of women; and that there is a lack of women with the required skills in the area.

 

Reasonable action The organisation wishes to take a range of actions with the purpose of attracting and retaining larger numbers of qualified women in engineering and technical positions. The first and second problems identified can be addressed through non-sex specific strategies: advertising through an agency and emphasising skills and qualifications in selection rather than previous experience. The third problem is to be dealt with through cultural change and anti-discrimination training for existing employees and the introduction of policies that may attract female applicants, such as flexible work practices, the introduction of part-time work and family leave. To address the fourth problem the organisation decides to introduce sex specific strategies to increase the recruitment pool of women by: providing traineeships for women in television production operations; conducting education initiatives for women such as visiting schools, TAFE colleges, CES and universities to explain the nature of the work, the knowledge which is required and to encourage women to apply for positions in the organisation; offering scholarships to women enrolled in the final year of relevant tertiary studies such as electrical engineering; advertising positions which encourage women to apply; targeting a maximum of two base grade positions to be filled by women in technical areas. The television station would argue that these strategies are likely to be special measures, should a complaint be made.

 

Commission agents, contract workers

These areas are covered in sections 15 and 16 of the SDA respectively. Like the employment provisions in the Act, they include recruitment and selection processes, terms and conditions of the work provided, career development opportunities associated with the work and termination of the work.

Partnerships

Section 17 of the SDA deals with partnerships or proposed partnerships of six or more persons. The section covers extending invitations to people to become partners, determining who should become a partner, the terms and conditions of the partnership, accessing benefits arising from the partnership and expelling a partner from the partnership.

Case example: Identifying inequality A partner in a firm of chartered accountants announces his retirement. The women in senior management in the firm are concerned that despite a significant proportion of women managers in the firm, there are no women partners. Reasonable basis Management has identified a number of employment practices contributing to this under representation in the partnership including: the tendency for decision-makers in selection processes to choose people most like themselves; the assumption that women will be less able to make the necessary commitment to the firm because of their existing or potential family responsibilities; the firm’s policy of promotion to partnership based on seniority and length of service rather than merit. Reasonable action The partners respond to management’s concerns by issuing a circular to all staff stating that as part of their commitment to the equitable representation of women at all levels of the firm, they are implementing a new policy on partnerships. As a general rule: all senior managers will be eligible for consideration as partners in the firm; existing partners will ensure that they do not assess potential partners on the basis of discriminatory assumptions about women and will take into account concerns raised by women in senior management on this issue; eligibility will be based on demonstrated knowledge and management skills rather than seniority or length of service. In the immediate instance: women in senior management who possess the required high level of knowledge and skill will be favoured for the vacant partnership position and for subsequent vacancies which may arise until the number of male and female partners is approximately equal.

Qualifying bodies

Section 18 of the SDA covers authorities or bodies that are empowered to confer, renew, extend, revoke or withdraw a qualification or authorization that is needed to practise a profession, carry on a trade or engage in an occupation. The section deals with the refusal or failure to provide a qualification or authorization, the terms and conditions on which it is provided, the revocation or withdrawal of the qualification or authorization and the variation of the terms on which it is held.

This section refers to bodies such as universities, TAFE colleges and other vocational education and training organisations which provide degrees, diplomas, practising certificates or trade certificates which a person needs to perform their job (see case example below).

Case example: Identifying inequality An Australia wide analysis of women in trades shows a significant disparity between the increasing number of women qualifying for trade certificates in the metal trades industry, and the small number of women being employed in the industry. Reasonable basis The study identifies as a major cause of the under employment of qualified women, the fact that it is industry practice to recruit using selection criteria heavily weighted towards previous experience in the industry. Reasonable action A technical college which conducts vocational education and training for trades and confers trade certificates implements a program for women, which provides that on qualification from the course, women will be entitled to take part in an employment placement program to gain necessary work experience in the industry. Participants in the program will receive trade certificates with an additional clause in recognition of their on-the-job experience.

Registered organizations under the Industrial Relations Act

Section 19 of the SDA covers membership of registered organizations (such as a union) and membership of committees of management of registered organizations. In particular the section deals with applications for membership, the terms and conditions of membership, access to the benefits of membership, denying or varying the terms of membership (see case example below).

Case example: Identifying inequality The National Executive of a union identifies a significant under representation of women elected to the National Executive and Branch Executive bodies of the union so that the interests of women in the industry are not being properly represented. Reasonable basis The union attributes the under representation to a number of structural barriers to women’s advancement including the traditionally male-dominated nature of the industry, the male- dominated membership of the union and the majority voting system for electing representatives to the Executive bodies. Reasonable action The union proposes a new rule which will reserve for women a senior position on the National Executive and one position on each Branch Executive body which can only befitted by a woman and for which only women members can vote until equal representation is achieved. The union provides a submission to the Industrial Relations Commission which has the power to disallow changes to union rules if they would be contrary to law. If the new rule is a special measure it will not be contrary to the SDA.

Employment agencies

Section 20 of the SDA covers the actions of employment agencies (private employment agencies as well as the Commonwealth Employment Service). These actions include the provision of any of its services, the terms and conditions on which the services are provided and the manner in which those services are provided.

Division 2 of Part II of the SDA covers areas other than work.

3.2 EDUCATION

Section 21 of the SDA covers the treatment of students by educational authorities with regard to applications for admission, the terms and conditions of admission, access to benefits provided by the educational authority and expulsion of students.

The SDA does not apply to the admission of members of one sex to institutions which are conducted for members of the opposite sex only.

Section 21 covers private, State and Commonwealth educational institutions. However, the Act does not cover educational institutions established for religious purposes such as religious schools. Most educational institutions are regulated by the State governments. Educational institutions established under Commonwealth law are the Australian National University and the University of Canberra. State educational institutions are also covered under State anti-discrimination legislation.

Case example: Identifying inequality An educational institution runs a course which provides retraining and vocational education for people who have been out of the paid workforce for a significant period of time for reasons such as unemployment or family responsibilities. The course co-ordinator notes that the rate of absenteeism for classes is significantly greater for women than for men. Reasonable basis Because of the small number of facilities available, the course sets aside a specified number of places for day classes and for night classes. A survey of students reveals that the cause of women’s absenteeism is their frequent inability to attend night classes because of their family responsibilities. Reasonable action The course co-ordinator implements a policy whereby the women have preference in the choice of class times provided this does not prevent a male student from attending the course altogether.

 

Case example: Identifying inequality A scientific research organisation is concerned by the small number of women in high level research positions in chemistry in the organisation. Reasonable basis A review of employment practices reveals that a cause of this under representation is the small number of women with the level of post graduate studies in chemistry required for the positions. Reasonable action The organisation provides funding to a Research School of Chemistry in a university to offer women research grants for PhD studies in areas identified by the organisation

 

3.3 GOODS, SERVICES AND FACILITIES

Section 22 of the SDA covers the provision of goods, services and facilities. It is concerned with whether or not goods, services or facilities are provided, the terms on which they are provided and the manner in which they are provided.

Case example: Identifying inequality A local council is informed by the police station of a marked increase in incidents of domestic violence in the area. 90% of the victims of the violence are women. The police are concerned that their female officers are increasingly being called upon to act as informal counsellors to women who are the victims of this violence, in preference to the qualified counsellors provided by the local community legal and resource centre run by the council with State government funding. These women have told women police officers that the local council’s centre which provides counselling for men and women across a broad range of issues, does not adequately cater to their particular needs. In addition, the women are having difficulty obtaining legal advice and representation. Reasonable basis The local council conducts an analysis of the staffing structure and budget allocation in the centre and a survey of clients. It finds that: the management and staff of the generalist service provided by the council are male-dominated and in particular, there are very few women lawyers or counsellors; the way in which funds are allocated indicates that women’s issues are often seen as peripheral and it is difficult to get funds committed to women’s resources; there are no staff who specialise in domestic/family violence or sexual assault in the centre; there is a lack of appropriate and relevant information about sexual assault and domestic/family violence so that women are able to make informed decisions about possible courses of action; the women have had difficulty in securing legal representation in violence cases because of the centre’s conflict of interest policy which provides that where the centre is representing a man who has violence charges against him, it will not also represent the alleged victim of the violence; many of the women who have been subjected to violence by a man do not feel comfortable discussing their situation with a male lawyer or counsellor; some of the women who had been subjected to violence by a male partner did not want to access a generalist service where other men in the local area would be aware that they had been subjected to violence by their male partner or were seeking to take legal action against their male partner. Reasonable action The council decides to establish and seek government funding for a women’s legal and resource centre run by women, for women in the area, to provide legal advice, legal representation, resources, information, counselling, support networks and referral services. In particular, the centre will provide women who have been subjected to domestic/family violence and sexual assault with access to appropriate and accessible legal representation, legal advice and referral. The centre will have the advantage of providing a specialised service in an atmosphere of mutual support and understanding. It will also avoid the need for expensive private representation where a woman in a conflict of interest situation chooses to pursue the case. The council prefers the option of establishing this separate service for women to targeting employment positions for women lawyers and counsellors within the generalist service on the basis that women who work in these centres would be better supported, resourced and ultimately better informed about women’s issues than those who attempted to assist women within the generalist service. A separate service will also provide a place where women can discuss and share their own concerns, experiences, needs and different strategies for dealing with violence against them in a supportive environment, without feeling guilty or concerned that men in the community will know or presume that they are seeking to take action against a male partner.

3.4 ACCOMMODATION

Section 23 of the SDA applies to the provision of accommodation whether the person providing the accommodation to another person acts as a principal or an agent (such as an owner or a real estate agent). In particular, the section covers the consideration and acceptance of applications for accommodation, the conditions on which accommodation is provided and evictions from accommodation.

The section does not cover accommodation provided for near relatives, or by a religious body, or by a charitable or non-profit organisation where the accommodation is only provided to persons of one sex or of a particular marital status.

The section covers private accommodation and State and Commonwealth government housing. State housing is also covered by State anti-discrimination laws.

Case example: Identifying inequality A national survey conducted for the Australian Institute of Family Studies concludes that women, to afar greater extent than men, have difficulties securing adequate housing on relationship/marriage breakdown. Reasonable basis The study identifies a number of socio-economic factors which contribute to this problem. Women experience higher rates of poverty on relationship breakdown largely because they, to a greater extent than men, take time out from paid work to care for children and perform unpaid work in the home. The unpaid work performed largely by women allows male partners to participate to the full in the paid workforce. However, this factor is seldom recognised in calculating each partner’s financial contribution to the relationship. The unpaid contribution to the financial assets of the marriage relationship is not valued by the legal system to the same extent as paid work performed by men. Largely because of their unpaid work, single mothers and women who have continued throughout the marriage to participate in paid work, often work on a part time or casual basis with obvious consequences for remuneration and status. Even where women work full time, they continue to earn less than men, on average, in all categories of earnings, all components of earnings and all industries and occupations. Consequently, women often find themselves in a precarious financial situation after divorce or relationship breakdown. Additional hardship arises because women generally continue to care for the children of the relationship as sole parents and, in the face of inadequate and expensive formal child care, must attempt to find employment which enables them to combine work and family. Women in this situation have difficulty finding adequately paid employment which is the basis on which private accommodation is provided. Public accommodation is provided for those who are unable to meet the financial commitments of private accommodation. However, public housing is insufficiently available and there are massive waiting lists. Conditions are often overcrowded and there is a high incidence of depression related illnesses, suicide and violence. Reasonable action A group of women who are sole parents are concerned by the accommodation options for women who experience financial hardship. They decide to apply to the State housing service for grants to establish a “Women’s Housing Co-operative” The co-operative aims to work with State housing to implement a financial model to fund other existing and future housing co-operatives for women around the State. Although there are other housing co-operatives, this would be the only housing co-operative for one sex only. The co-operative will provide secure, tenant managed housing for members of the co-operative as an alternative to public housing. Each person in the co-operative will be expected to pay rent while the co operative plays a managerial role and pays insurance, rates, electricity etc. The rent from the houses is expected to fund 30% of the total capital for the co-operative. The co-operative will have a membership system in which all members are women. Men are not excluded from living in the houses, but they are unable to have membership and therefore to hold a lease. The co-operative primarily aims to assist women, and particularly women who are sole parents, who experience a loss of control over their financial security and their housing situation upon relationship breakdown. The co-operative provides a supportive environment which provides childcare to members so that women are better able to gain employment and establish financial independence. The purpose of the membership system is to ensure that the women both gain and maintain control over their housing. The membership system serves the purpose of acting as a safety net for women should they enter into another relationship which breaks down in the future because it ensures that they still hold the lease.

3.5 LAND

Section 24 of the SDA covers the disposal, by a principal or agent, of an estate or interest in land. The principal or agent must not discriminate by refusing or failing to dispose of the estate or interest or by disposing of the estate or interest on less favourable terms and conditions.

3.6 CLUBS

Section 25 of the SDA covers membership and access to the benefits and facilities of a club and the committee of management of a club including applications for membership and the terms and conditions of the membership, access to benefits and facilities provided by the club, depriving membership or varying the terms of the membership. However, the section does not cover clubs which only offer membership to members of one sex.

3.7 COMMONWEALTH LAWS AND PROGRAMS

Section 26 of the SDA deals with the performance of functions or powers under a Commonwealth law or program, or any other responsibility for administering a Commonwealth law or conducting a Commonwealth program.

The section covers any program or scheme which is funded or administered by the Commonwealth government and applies even if the program is run through a private sector organisation or State government department. [13]

Case example: Identifying inequality The Commonwealth Government Department of Health conducts an Australia wide survey of women’s health. The survey is designed to determine whether women have particular health needs as the result of either physiological or socio-economic factors and whether the current system is meeting those needs. The women surveyed identify several major areas of concern. The survey clearly indicates that current health service delivery does not adequately cater to women’s health needs in those areas. These areas include women’s reproductive health and sexuality, the health of ageing women, violence against women, occupational health and safety and the health needs of women as carers. Reasonable basis The survey identifies current practices which are responsible for inadequate service delivery in the area of women’s health. It notes that: there are too few services with knowledge and expertise in women’s health; there is inadequate health information for women; there is a lack of sensitivity to and understanding of women’s health needs in generalist medical services; there is inadequate research conducted and data collected on women’s health; health care providers do not receive adequate training in women’s health issues; women are not well represented in the key decision-making processes on health. Reasonable action The Commonwealth Government launches a National Women’s Health Program which is designed to address major health issues identity by Australian women in the national survey. As part of the Program, State Governments receive Commonwealth government funding to establish women’s health centres in a number of areas around their State. The health centres are set up to provide: an information and referral service on women’s health issues and child care; a women’s counselling service with women counsellors including specialists in domestic violence, child care and I women’s emotional and mental health needs; a professional clinical health service provided by women medical practitioners for women.

 

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4. COMPLAINTS PROCESS

This section explains the process which is followed should a complaint of discrimination be lodged against you.

4.1 LODGING A COMPLAINT

Who can lodge a complaint?



Complaints can be lodged by:

• individuals on their own behalf;
• individuals on behalf of themselves and others with the same complaint;
• two or more people, on their own behalf or on behalf of others also;
• members of a particular class of people, on behalf of the class (called “representative complaints”);
• a trade union on behalf of one or more of its members.

Requirements for lodging a complaint



For a complaint to be lodged it must be:

• a complaint in writing;
• lodged with the Human Rights and Equal Opportunity Commission;
• alleging that a person has done an act which is unlawful under Part II of the SDA which deals with prohibited discrimination;
• lodged by an aggrieved person or persons.

There are three points to note about these last two requirements:

1. Allegations of unlawful discrimination

As long as a person alleges that an act has occurred which, if it were proved, would be unlawful sex discrimination under the SDA, the person has a prima facie case and the complaint must be referred to the Sex Discrimination Commissioner, even if it is plain to the Commission that the allegation is misconceived, wrong in law or in some other way defective.[14] Special measures usually appear, at first instance, to be discriminatory because they are designed specifically to cater to members of one sex, to persons of a particular marital status or to women who are pregnant or potentially pregnant. In the interests of natural justice, a complaint against such a measure will be accepted and investigated even if it appears at first glance that the measure may constitute a non discriminatory special measure.

2. When is a person aggrieved

An aggrieved person is a person who alleges that they have been discriminated against. For example, a man claims that he has applied for a Commonwealth training program for women and that his application has been rejected because he is a man. Where the man has not yet applied and been rejected from the program he is not an aggrieved person. [15]

3. Limits on male complainants

The Commonwealth Government cannot make laws about anything it likes. The Commonwealth Government’s law-making power is derived from section 51 of the Australian Constitution which sets out the areas about which it has power to legislate. The Commonwealth Government’s power to implement international treaties (to make them part of Australian law) is conferred upon the Commonwealth by s51 paragraph (xxix) of the Constitution: the external affairs power. The exercise of the external affairs power and Australia’s obligations under the international Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides much of the constitutional foundation of the SDA. The Act also relies for its validity, on other heads of power such as those relating to regulation of the Commonwealth and of foreign, trading or financial corporations. Section 9 delineates the application of the SDA so as not to exceed the Commonwealth’s constitutional powers.

As CEDAW concerns the rights of women, all women (irrespective of age) are covered by the SDA unless a specific exemption applies. However, men are only covered by the SDA where another head of power confers jurisdiction under the Act. Unless provisions of the SDA proscribing sex, marital status, pregnancy and potential pregnancy discrimination and sexual harassment draw on other heads of Commonwealth constitutional power, those provisions underpinned solely by the external affairs power have effect only in relation to discrimination against women, by virtue of section 9(10) of the SDA. [16] This limits the circumstances in which men can lodge complaints under the SDA.



Employment

In the area of employment, men can lodge complaints of discrimination in employment if they are:

• Commonwealth Government employees;
• employees of a foreign, financial or trading corporation (which covers most private sector companies).

Education

There is no constitutional power relating to education. Education is primarily an area regulated by the States. This means that in most circumstances, male students cannot make complaints of discrimination in education under the SDA and would need to rely on State anti-discrimination laws.

Commonwealth laws and programs

Men are able to lodge complaints of discrimination in the administration of Commonwealth laws and programs.

4.2 INVESTIGATION

If the complaint appears on its face to be a complaint of unlawful discrimination, it is referred to the Sex Discrimination Commissioner. The Commissioner accepts the complaint and allocates the complaint file to a Complaints Officer. The Complaints Officer notifies the respondent that a complaint has been made against him/her and provides the respondent with the opportunity to respond to the allegations.



Process where the act complained of may be a special measure

It is at this point in the proceedings that the respondent is given the opportunity to raise special measures as a reason for his or her actions and provide evidence in support of his or her claim that the act complained of is a special measure.



The SDA makes clear that if an act which appears to be directly or indirectly discriminatory is found to be a special measure, the claim of discrimination has not been made out and the complainant has not discharged his or her burden of proving discrimination.



Special measures are not a respondent defence to discrimination, so the respondent does not have the onus of establishing that the act complained of is a special measure. However, respondents may still be required to produce evidence in support of any claim that their measure is a special measure. Respondents would be wise to mitigate against the chances of a successful discrimination claim against them by presenting a vigorous prima facie defence on behalf of their actions.

If there is any dispute about the facts, the Complaints Officer will investigate the complaint and collect supporting evidence from both parties including statements from witnesses and relevant documentation.



After all the relevant information has been obtained and discussed with the parties, the Sex Discrimination Commissioner is able to assess whether a special measure exists in the case under investigation. She may request a formal legal advice on the matter from the Commission’s legal section. The assessment is made on the basis of the terms of the SDA itself and case law. The section on “criteria” above sets out the relevant considerations.



Process where the act complained of is a special measure

If it is clear that the act complained of is a special measure, the Commissioner may decline to inquire further on the basis that the act is not unlawful discrimination under the SDA. The complainant then has the right to request that the matter be referred to an inquiry (also referred to as “hearings”) conducted by the Commission. (See “declining complaints” and “public inquiries” sections below.)

Process where the act complained of is discrimination

If the complainant has produced sufficient evidence to show that the act is not a special measure and that the alleged unlawful act of discrimination occurred, the matter may proceed to conciliation. In situations where it is clear that the matter is not appropriate for conciliation, it can be referred directly to an inquiry conducted by the Commission.

Evidence collected during the investigation stage is admissable in any subsequent legal proceedings.

4.3 CONCILIATION

Conciliation usually involves holding a conference (either voluntary or compulsory) where the Complaints Officer acting as an independent third party, assists the parties to settle the complaint on mutually agreed terms. The Complaints Officer must not force the parties to settle the dispute by imposing an outcome. The Complaints Officer must observe the principles of natural justice and maintain confidentiality.



Anything said or done during conciliation is not admissable in any subsequent legal proceedings.



Outcomes of conciliation may include specific redress for the individual complainant such as monetary compensation, an apology, access to an employment program or a service as well as more general strategies to avoid discrimination such as the introduction of equal employment policies and the introduction of non-discriminatory practices.



If conciliation is unsuccessful, it can be referred to an inquiry conducted by the Commission.

4.4 DECLINING COMPLAINTS

At any stage in the complaints process, the Sex Discrimination Commissioner may refuse to inquire into a complaint or discontinue an inquiry which has already commenced if:

• she is satisfied that the act complained of is not unlawful;
• the complainant/s does/do not desire an inquiry;
• the act occurred more than 12 months ago;
• she forms the view that the complaint is frivolous, vexatious, misconceived or lacking in substance.

If the complaint is declined because the Commissioner believes that no unlawful act has occurred, the complainant still has the right to request that the matter be referred to an inquiry for determination. If the complaint is declined on any other ground, the complainant may request that the decision be reviewed by the President of the Commission. The decision of the President is final.

4.5 PUBLIC INQUIRIES

Commission inquiries have the following features:

1. They are usually open to the public and press but there is provision under the SDA to request a private hearing and orders may be made which prevent publication of the complainant’s and/or respondent’s identity or the evidence in the hearing.

2. A Hearing Commissioner (which includes the President of Commission and the Commission's Commissioners, but not the Sex Discrimination Commissioner in matters concerning the SDA) presides over an inquiry.

3. The rules of evidence do not apply and the process is designed to be conducted with as little formality and technicality as possible.

4. Legal representation is by leave.

5. Evidence is taken under oath, witnesses can be summoned to appear and parties can be examined, cross-examined and re-examined.

6. After holding an inquiry, a decision is made as to whether the complaint is dismissed or upheld. Different forms of redress for discrimination may be awarded including an award of compensation, a declaration that the complainant should be able to apply for a position, access a service or be provided with accommodation, or a declaration that the act, policy or practice is unlawful and a recommendation of preventative action to be taken so that discrimination will not continue.

4.6 ENFORCEMENT PROCEDURES

The Commission is an administrative and not a judicial body. Consequently, it has no power under the Constitution to enforce its own decisions [17]. If a respondent, refuses to comply with a particular order of the Commission, the complainant (or the Commission on behalf of the complainant) has to initiate separate enforcement proceedings in the Federal Court. The Commonwealth government is currently exploring a more satisfactory the means of enforcing Commission determinations.

However, where the respondent is a Commonwealth government department or agency, the Commission’s decisions are enforceable. The SDA provides that a Commonwealth respondent must comply with a Commission determination, although an application for review regarding the amount of compensation awarded can be made to the Administrative Appeals Tribunal with the permission of the Minister.

[ADDENDUM - Please Note: On 13 April 2000, the Human Rights Legislation Amendment Act (No.1) 1999 (Cth) (HRLAA) commenced operation. This legislation was introduced to ensure enforceability of determinations under Federal anti-discrimination law. The legislation has removed HREOC's public hearing function with complainants being provided access to the Federal Court or the Federal Magistrates Service should conciliation fail to resolve their complaint or where the complaint is terminated for some other statutory reason. Please see https://humanrights.gov.au/about/contact for information on the current complaint process]

4.7 CERTIFICATION

There is no provision in the SDA which permits the Commission or the Sex Discrimination Commissioner to certify that a measure constitutes a special measure under the Act prior to a complaint of discrimination being lodged with the Commission.

In some circumstances, the Sex Discrimination Commissioner has provided “a letter of comfort” to a person/s who, or organisation which, proposes to implement a measure which appears to be a special measure. A “letter of comfort” states that, on the information provided to the Commissioner, the proposed measure may fall within the ambit of a special measure. In the interests of natural justice, the Sex Discrimination Commissioner will not provide a letter of comfort unless there is a clear likelihood that the measure is a special measure.

Example: A Commonwealth Government inquiry into women and the law has identified that particular measures are required to improve women’s access to the legal system. One of these measures involves the provision of Commonwealth Government funding to legal centres to employ women legal officers. Specifically targeted government employment programs of this kind are likely to be special measures

However, the Commission must refer a complaint to the Sex Discrimination Commissioner if it alleges that an act has occurred which appears at first instance to be unlawful sex discrimination under the SDA, even if the Commissioner has issued a letter of comfort indicating that the act may be a non-discriminatory special measure. A letter of comfort will not prevent a complaint of discrimination being brought against those implementing such a measure and it cannot be used as any form of defence should a complaint of discrimination be made against them. Generally, it will be up to those wishing to implement an affirmative action initiative, to assess whether their proposal would constitute a special measure by reference to these guidelines.

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5. CHECKLIST

Case examples illustrating the application of this checklist are provided in Chapter Three of these guidelines.

IS IT A SPECIAL MEASURE?

1. Is the measure taken in an area covered by the SDA?

Check whether the area is covered.

Divisions 1 & 2 of the SDA set out the areas covered by the Act. See Appendix B and Chapter Three of these guidelines.

NO the measure is not a special measure under the SDA and the measure is not unlawful under the SDA

Stop

 

YES the measure may be a special measure under the SDA or the measure may be unlawful discrimination under the SDA

GO

 

2. Do any exemptions apply?

Check if any exemptions apply.

Division 4 of the SDA sets out the Exemptions to the SDA. See Chapter Two, section 2.2 and Appendix C of these guidelines.

YES the measure is not a special measure under the SDA and the measure is not unlawful under the SDA.

Stop

 

NO the measure may be a special measure under the SDA or the measure may be unlawful discrimination under the SDA.

GO

 

3. Is there an existing inequality?



Check whether the measure is based on evidence of unequal outcomes between:



i) men and women; or,

ii) people of different marital status; or

iii) women who are pregnant or potentially pregnant and those who are not.

See s7D(1) and (4) of the SDA. See Chapter Two, section 2.1 of these guidelines.

NO the measure is not a special measure

Stop

 

YES the measure may be a special measure

GO

 

4. Is there a reasonable basis for the measure?

Check whether the measure is based on evidence of practices in the relevant area which are responsible for or contribute to the unequal outcomes identified.

The SDA does not require any such analysis but it will assist those implementing a measure to prove that it is a special measure. See Chapter Two, section 2.1 of these guidelines.

5. Is the measure reasonable?

There is no test under the SDA to determine whether the measure is an effective or adequate way to achieve substantive equality between the groups and in the area which it targets. However, it must be reasonable for those undertaking it to conclude that it will further that purpose. See Chapter Two, section 2.1 of these guidelines.

Check whether a purpose of the measure is to achieve substantive equality. Identify why you think it will achieve or further this purpose?

Check whether there is evidence to show that your opinion is reasonable in the circumstances.

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APPENDIX A

DEFINITIONS

For the purpose of these guidelines the following definitions apply in these areas:

Employment

Employee means:

a person who works under employment contract (a contract of service).

Employment includes:

• part-time and temporary employment;
• work under a contract for services; and
• work as a Commonwealth employee.

Employment contract means:

a contract formed on the pre-condition that both parties (employer and employee) mutually intend to enter into a relationship with legally binding obligations and the presence of consideration.

Commonwealth employee means a person who:

• holds an office or appointment in the Australian Public Service;
• is employed in a department under the Public Service Act 1922 in a temporary capacity;
• holds an administrative office;
• is employed by a Commonwealth public authority;
• holds an office or appointment in the Commonwealth Teaching Service;
• is employed as a temporary employee under the Commonwealth Teaching Service Act;
• is employed under the Australia Security Intelligence Organisation Act 1979, the Supply and Development Act 1939 or the Naval Defence Act 1910;
• is a member of the Defence Force.

Commission agent means:

a person who does work for another person as the agent of that other person and who is wholly or partly paid by commission.

Contract worker means:

an independent contractor / a person who performs work in an industry other than under a contract of employment (i.e. person who enters a “contract for services”).

Employment agency means:

a person or body that assists persons to find employment or other work or assists employers to find employees and workers.

Partnership means:

the relationship which subsists between parties carrying on a business in common with a view to profit. [18]

Qualifying body means:

an authority or body which has the power to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for, or facilitates

• the practice of a profession;
• the carrying on of a trade; or
• the engaging in of an occupation.

Registered organisation means:

a registered organisation as defined in the Industrial Relations Act 1988, PART IX - Division 1, Section 188 “Associations Capable of Applying for Registration”. An association may apply for registration as an organisation if: 1) it is an employers’ association which must employ an aggregate of 1000 employees or 2) it is an employees’ association which must have 10000 members and be an industry based organisation. [19]



Vicarious liability means:

an employer’s legal responsibility for wrongs committed by employees in the course of work.



Voluntary employment means:

work performed by a volunteer which is not performed as part of an employment contract. A volunteer is not an employee.

Education

Educational authority means:

a body or person administering an educational institution.



Educational institution means:

a school, college, university or other institution at which education or training is provided.

Goods, services and facilities

Services includes, but is not limited to:

• services relating to banking, insurance and the provision of grants, loans, credit or finance;
• services relating to entertainment, recreation or refreshment;
• services relating to transport or travel;
• services of the kind provided by the members of any profession or trade; and
• services of a kind provided by a government, a government authority or a local government body.

Accommodation

Accommodation includes:

residential and business accommodation.

Clubs

Club means:

a social, literary, cultural, political, sporting or athletic association of 30 or more persons which wholly or partly provides and maintains its facilities from association funds and which sells or supplies alcohol for consumption on its premises.

Commonwealth law or program

Administration of a Commonwealth law or program refers to administration by:

• a person who performs any function or exercises any power under a Commonwealth law;
• a person who performs any function or exercises any power for the purposes of a Commonwealth program;
• a person who has any other responsibility for the administration of a Commonwealth law;
• a person who has any other responsibility for the conduct of a Commonwealth program.

Complaint handling

Aggrieved person means:

a person who is/has been discriminated against within the terms of the SDA.



Complainant means:

a person/s who has/have lodged a complaint with the Commission.

Commission means:

the Australian Human Rights Commission (legally known as the Human Rights and Equal Opportunity Commission).

Conciliation means:

the process of bringing two disputing parties together to reach a mutually satisfactory agreement with the aid of an independent third party (a Complaints Officer).

Discriminator means:

a person who discriminates against another person or other persons within the terms of the SDA.

Natural Justice means:

the minimum standard of fairness to be applied in the investigation and adjudication of a dispute. This is also referred to as procedural fairness. The substantive procedural requirements of natural justice involve:

• informing a person of the full particulars of any allegation/s made against them;
• giving a person against whom an allegation/s is made reasonable opportunity to state their case, provide an explanation or put forward a defence;
• ensuring that proper investigation of the allegations occurs, that all parties are heard and relevant submissions considered;
• ensuring that the decision maker acts fairly and without bias.

Onus of proof means:

the burden of proving (or disproving) on the balance of probabilities that the alleged discrimination has (or has not) occurred.

Prima facie case means:

the existence of information which appears to support allegations that unlawful discrimination has occurred.

Prima facie defence means:

the existence of information which appears to rebut allegations of discrimination.

Respondent means:

a person or organisation against whom a complaint is lodged with the Commission.



Vicarious liability means:

an employer’s legal responsibility for wrongs committed by employees in the course of their employment.

Discrimination

Direct discrimination means:

a person or persons is/are treated less favourably than another person or persons is/are treated in circumstances that are the same or not materially different on the basis of specified grounds. Those grounds are sex or marital status or pregnancy or potential pregnancy.

Indirect discrimination means:

a person (the “discriminator”) indirectly discriminates against another person (the “aggrieved person”) if he/she imposes or proposes to impose a condition, requirement or practice that is not reasonable in the circumstances, and that has, or is likely to have, the effect of disadvantaging persons of the same sex or marital status as the aggrieved person or women who, like the aggrieved person, are pregnant or potentially pregnant.

Systemic discrimination means:

a complex of directly and/or indirectly discriminatory practices which operates to produce general structural disadvantage for a particular group.

Equality

Formal equality means:

people should be treated the same in all circumstances regardless of their sex, marital Status, pregnancy or potential pregnancy except where relevant differences based on sex, marital status, pregnancy or potential pregnancy justify different treatment.

Substantive equality means:

people should be treated in a way which ensures that they achieve equal outcomes.

Grounds

Sex means:

a member of the male or female sex irrespective of age.

Marital status means:

the status or condition of being:

(a) single;

(b) married;

(c) married but living separately and apart from one’s spouse;

(d) divorced;

(e) widowed; or

(f) the de facto spouse of another person.

De facto spouse (in relation to a person) means:

a person of the opposite sex to the first-mentioned person who lives with the first mentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to that person.

Potential pregnancy means:

a woman:

(a) is or may be capable of bearing children; or

(b) has expressed a desire to become pregnant; or

(c) is likely, or is perceived as being likely, to become pregnant.

Other Terms

Voluntary body means:

an association or other body (whether incorporated or unincorporated) which engages in non-profit making activities, but excludes a club, registered organisation (eg. union), statutory body or financial / money lending institution.

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APPENDIX B

AREAS COVERED BY THE SEX DISCRIMINATION ACT 1984

Employment

These guidelines apply to special measures in employment in the following areas:

• Commonwealth government departments and agencies;
• Commonwealth government business enterprises;
• private sector organisations;
• non government organisations.

These guidelines do not apply to employment in:

• State government departments and agencies;
• State government instrumentalities ;[21]
• other areas of employment which are exempt from the operation of the SDA. [22]

Education

These guidelines apply to the provision of education by:

• Commonwealth government educational institutions;
• State government educational institutions;
• independent educational institutions established by statute;
• private educational institutions.

These guidelines do not apply to areas of education which are exempt from the operation of the SDA. [23]

Goods, Services and Facilities

These guidelines apply to the provision of goods, services and facilities by:

• Commonwealth government departments and agencies;
• Commonwealth government business enterprises;
• State government departments and agencies;
• State government instrumentalities;
• Private sector organisations;
• Non government organisations.

These guidelines do not apply to the provision of goods, services and facilities in areas which are exempt from the operation of the SDA. [24]

Accommodation

These guidelines apply to the provision of accommodation by:

• Commonwealth government departments and agencies;
• Commonwealth government business enterprises;
• State government departments and agencies;
• State government instrumentalities;
• Private sector organisations;
• Non government organisations.

These guidelines do not apply to the provision of accommodation in areas which are exempt from the operation of the SDA. [25]

Commonwealth laws and programs

These guidelines apply to the administration of Commonwealth laws and programs by:

• Commonwealth government departments and agencies;
• Commonwealth government business enterprises;
• State government departments and agencies;
• State government instrumentalities;
• Private sector organisations;
• Non government organisations.

These guidelines do not apply to the areas which are exempt from the operation of the SDA.

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APPENDIX C

PERMANENT EXEMPTIONS

The SDA contains permanent exemptions in relation to the following:

• employment by an instrumentality of a State (section 13);
• sex discrimination in employment where the sex of the employee is a genuine occupational qualification (section 30);
• sex discrimination for granting to a woman rights or privileges in connection with pregnancy or childbirth (section 31);
• sex discrimination for services which can only be provided to members of one sex (section 32);
• accommodation provided for employees or students (section 34);
• sex and marital status discrimination in employment involving the care of a child/children at their residence (section 35);
• charitable benefits (section 36);
• religious bodies (section 37);
• educational institutions established for religious purposes (section 38);
• voluntary bodies (section 39);
• insurance (section 41);
• some aspects of superannuation (sections 41A and 41B);
• sex discrimination in competitive sport in which strength, stamina or physique of competitors is relevant (section 42);
• exclusion of women from direct combat positions in the Defence Forces (section 43).

Exemptions for acts done under statutory authority

Section 40 of the SDA provides exemption from discrimination for anything done by a person in direct compliance with:

• a determination or decision of the Commission;
• an order of a court;
• listed statutes which include laws relating to taxation and social security .[26]

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1. Special measures intended to achieve equality are defined in s7D of the SDA

2. The areas in which it is unlawful to discriminate are set out ii following Divisions and sections of the SDA: Division I – Discrimination in Work - Discrimination in employment or in superannuation s14, Discrimination against commission agents s15, Discrimination against contract workers s 16, Partnerships s 17, Qualifying bodies s 18, Registered organizations s 19, Employment agencies s20; Division 2 – Discrimination in Other Areas - Education s21, Goods, services and facilities s22, Accommodation s23, Land s24, Clubs s25, Administration of Commonwealth laws and programs s26, Application forms etc. s27. (Sections concerning areas where sexual harassment is prohibited are in Division 3 of the Act.)



3. Direct discrimination is defined in the following sections of the SDA: sex discrimination s5(1), marital status discrimination s6(1), pregnancy and potential pregnancy discrimination s7(1), family responsibilities discrimination s7A..

4. The Sex Discrimination Amendment Act 1995 amended the provisions relating to indirect discrimination. The new test for indirect discrimination is set out in the following sections of the SDA: sex discrimination s5(2), marital status s6(2), pregnancy and potential pregnancy s7(2). The “reasonableness test” is in s7B. Section 7C provides that the burden of proving reasonableness lies on the respondent.

5. The special measures provision in the SDA gives effect to Article 4(1) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which states that:

Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

Note: “defacto equality” is another term for substantive equality.

6.Section 7D.(l) of the SDA provides:

7D.(l) A person may take special measures for the purpose of achieving substantive equality between:

men and women; or

people of different marital status; or

women who are pregnant and people who are not pregnant; or

women who are potentially pregnant and people who are not potentially pregnant

7. Section 7D.(3) provides:

(3) A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

solely for that purpose; or

for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

8. Section 7D.(4) provides:

(4) This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.

9. Proudfoot & Ors v Australian Capital Territory Board of Health & Ors (1992) EOC 92-417 at p.78,983.

10. See “Definitions” in Appendix A of these guidelines for the meaning of terms.

11. Casual employment is covered by the common law definition of employment. A number of factors must be taken into account to determine whether an employment relationship exists at common law. There is a string of cases which define criteria for determining a common law employment relationship including: the nature of the task, the degree of skill, the freedom of action given, who gives the orders, the power of selection and dismissal, the power to delegate functions, who determines the amount and manner of payment, the method of tax deduction, who provides tools and equipment, who controls the regularity of the hours of work and the manner of work.

12. Jarry v County Fire Authority unreported, Equal Opportunity Board (Vic.), 8 February 1984.

13. There is recent case law to suggest that the presence of Commonwealth funding could be sufficient to bring the program within the SDA’s definition of a “Commonwealth program” This may be the case even if the program is administered by a State or is jointly funded by the Commonwealth and a State.

14. Ellenbogen v Human Rights and Equal Opportunity Commission & Ors (1994) EOC 92-564.

15. See Proudfoot & Ors v ACT Board of Health, Commonwealth of Australia & Canberra Women’s Health Centre Inc (1992) EOC 92-417.

16. This was confirmed in Aldridge v Booth (1988) EOC 92-222.



17. This was confirmed by the High Court in Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 127 ALR 1 which held as invalid the 1992 legislative provisions in the Racial Discrimination Act 1975 (and the comparative provisions in the SDA and the Disability Discrimination Act 1992) which enabled determinations of the HREOC to be registered and enforced as if they were orders of the Federal Court of Australia unless the respondent applied to the Federal Court for a review of the decision of the Commission within 21 days.



18. Pooley v Driver (1876) 5 Ch D458 at 472



19. For case law on special measures and registered organisations see: Re Australian Journalists Association (1988) EOC 92-224 and Municipal Officers Association of Australia & Anor: Approval of Submission of Amalgamation to Ballot (1991) EOC 92-344.



20. Adapted from the definition provided by Rosemary Hunter, Indirect Discrimination in the Workplace Federation Press, Leichhardt, 1992, p.13



21. State government departments, State authorities and their employees are exempt from the discrimination in employment and sexual harassment provisions in the Federal SDA pursuant to sections 12 and 13 of the Act. However, State government departments, authorities and their employees are required to comply with State and Territory anti-discrimination legislation where it exists.



22. Employment exemptions include: an exemption in section 14(3) relating to employment to perform domestic duties at the employer’s residence; section 30 relating to jobs where it is a genuine occupational qualification to be a person of a particular sex; exceptions concerning religious bodies and employment in educational institutions established for religious purposes in sections 37 and 38(1), (2); and exemptions from certain forms of discrimination in superannuation (s4lA and 41B).



23. In particular, section 38(3) provides that it is not unlawful “to discriminate against another person on the ground of the other person’s marital status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”



24. Exemptions relevant to the provision of goods, services and facilities include: section 31 which exempts sex discrimination against a man where a woman is granted rights or privileges in connection with pregnancy or childbirth; section 32 which exempts the provision of services which can only be provided to members of one sex; section 39 which exempts the provision of benefits, facilities and services to members of a voluntary body; and, section 42 which provides a qualified exemption in relation to the provision of sporting facilities and access to sporting teams.



25. Relevant exemptions include section 34 which provides limited exemption for accommodation provided for employees or students; section 38 which exempts accommodation provided by religious bodies; and section 39 which excludes accommodation or accommodation services provided to members of voluntary bodies.



26. The section also provides an exemption for acts done in direct compliance with an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment. However, following amendments to the SDA and the Industrial Relations Act 1988 (IRA) complaints can now be made about discriminatory provisions in awards and agreements under section 50A of the SDA. Section 111A of the IRA requires the Australian Industrial Relations Commission to remedy any discrimination it finds in awards referred to it by the Sex Discrimination Commissioner under these provisions

Last updated 20 April 2004.