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Commission Submission - Amicus Curiae - Jacomb v Australian Municipal, Administrative, Clerical And Services Union

Legal

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY

No V477 of 2003

BETWEEN:

WILLIAM ROBERT JACOMB

Applicant

and

THE AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION

Respondent

SUBMISSIONS OF THE SEX DISCRIMINATION COMMISSIONER SEEKING LEAVE TO APPEAR AS AMICUS CURIAE

Index

A. Introduction

B. Legislative history of the special measures provision

C. CEDAW and special measures

D. Commentary on CEDAW

General Recommendation No 5 Seventh Session, 1988 (Attachment Ten)

General Recommendation No 23 Sixteenth Session, 1997 (Attachment Eleven)

General Recommendation No 25 Thirtieth Session, 30 January 2004 (Attachment Twelve)

E. Meaning of s7D SD Act: principal submissions

1. The subjective test: what is the purpose of the special measures?

2. The objective test: was it reasonable for the entity taking the special measure to conclude that the measure imposed would further the purpose of achieving substantive equality?

2.1 Substantive inequality

(i) What is the field of activity in which it is said the special measures have been taken?

(ii) What is the correct comparator?

(iii) What are the causes of the inequality?

2.2 The proportionality of the measure

3. Are the special measures still required, or has the purpose of achieving substantive equality been achieved?

F. Special measures: contrast temporary exemptions

G. Jurisprudence from other jurisdictions

United States jurisprudence

European union jurisprudence

Canadian jurisprudence

United Kingdom Legislation

New Zealand legislation

H Conclusion

 

A. Introduction

1. The Sex Discrimination Commissioner seeks leave to appear in these proceedings as amicus curiae for the purpose of making submissions in relation to the meaning and operation of s7D Sex Discrimination Act 1984 (Cth) ("SD Act").

2. Section 7D SD Act permits different treatment of men and women in circumstances where that different treatment constitutes "special measures" taken for the purpose of achieving substantive equality between men and women.

3. These submissions are intended to assist the Court in interpreting and applying s7D SD Act. The submissions deal with the legislative history of s7D SD Act, aids to the interpretation of s7D, commentary on the special measures provision in the Convention on the Elimination of All Forms of Discrimination Against Women and the treatment of similar provisions by the courts in overseas jurisdictions.

4. The principal submission of the Sex Discrimination Commissioner is that the focus of s7D SD Act is on equality of outcomes, rather than formal equality. The Sex Discrimination Commissioner submits that there are many types of measures which, depending on the particular circumstances and the substantive inequality to which they are addressed, may be reasonably regarded as measures which might further the purpose of achieving substantive equality, and therefore meet the description of "special measures" within the meaning of s7D SD Act.

5. The question of whether any particular measures, including the implementation of quotas or numerical goals, constitute special measures taken to achieve substantive equality will depend on the nature of any substantive inequality which exists in the field of activity at issue and whether it is reasonable for the person or entity imposing the special measure to conclude that the measure imposed will further the purpose of achieving substantive equality in that field of activity.

6. In order to ascertain whether it is reasonable to regard the imposition of a quota as a measure which would further the purpose of achieving substantive equality, and to ascertain whether such a special measure continues to be required in order to achieve substantive equality, it may be necessary to apply a higher degree of rigour than might be the case in relation to other special measures.

7. The Sex Discrimination Commissioner submits that the task for a Court assessing whether a measure taken by a person or entity is a "special measure" within the meaning of s7D SD Act involves consideration of the following issues:

1. What is the purpose of the special measures? Special measures must be taken for a particular purpose (either solely or with other purpose/s) namely, that of achieving substantive equality. This is a subjective test.

2. Was it reasonable for the entity taking the special measure to conclude that the measure imposed would further the purpose of achieving substantive equality? This is an objective test.

2.1 This requires the Court to first identify and understand the particular substantive inequality that the special measures seek to overcome.

2.2 The Court should then ascertain whether the special measures adopted are proportionate to the goal of achieving substantive equality in the particular circumstances.

3. Are those special measures still required - or has substantive equality been achieved in that field of activity ?

8. In considering each of the questions set out above, the submissions deal in turn with each of the following matters:

  • Part B Legislative history of the special measures provision
  • Part C CEDAW and special measures
  • Part D Commentary on CEDAW
  • Part E Meaning of s7D SD Act: principal submissions
  • Part F Special Measures: contrast with temporary exemptions
  • Part G Jurisprudence from other jurisdictions
  • Part H Conclusion

B. Legislative history of the special measures provision

9. Section 7D SD Act provides as follows:

Sect 7D Special measures intended to achieve equality

(1) A person may take special measures 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 potentially pregnant.

(2) A person does not discriminate against another person under section 5, 6 or 7 by taking special measures authorised by subsection (1).

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

(a) solely for that purpose; or

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

(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.

10. Section 7D was introduced by amendments to the SD Act in 1995 by the Sex Discrimination Amendment Bill 1995 (Cth). Prior to the amendment, s33 SD Act (Attachment One) provided as follows:

Measures intended to achieve equality

33. Nothing in Division 1 or 2 renders it unlawful to do an act a purpose of which is to ensure that persons of a particular sex or marital status or persons who are pregnant have equal opportunities with other persons in circumstances in relation to which provision is made by this Act.

11. The Explanatory Memorandum to the Sex Discrimination Amendment Bill 1995 (Cth) (Attachment Two) contains helpful commentary in relation to the amendments made to the special measure provision.

12. The commentary in relation to the new s7D SD Act is set out in paragraphs 36-40 of the Explanatory Memorandum at page 9. That commentary states as follows:

Section 7D - Special measures intended to achieve equality:

36. Section 7D provides that a person does not discriminate against another person for the purposes of the Act by taking special measures, a purpose of which is to achieve equality between men and women, people of different marital status, pregnant women and women who have the potential to become pregnant and people who do not. These measures may be discriminatory if they continue once a purpose for which they were protected under this section is achieved.

37 This provision replaces section 33 of the Act which currently provides that an act which would otherwise be discriminatory for the purposes of the Act is not unlawful if a purpose of the act is to ensure equal opportunity. Section 33 therefore operates to provide an exemption from the anti discrimination provisions of the Act.

38. The new clause recognises that certain special measures may have to be taken to overcome discrimination and achieve equality. Subsection (2) clearly states that such measures are not discrimination for the purposes of the Act.

39. Subsection 7D(3) states that measures are special measures for the purpose of subsection (1) if they are being taken solely for the purpose of achieving equality or if they are being taken for that purpose as well as for other purposes. In the latter case it is not necessary for the purpose of achieving equality to be the main purpose for taking the measure.

40. This provision seeks to achieve equality of outcomes and is based on Australia's international obligations to achieve equality, as required by international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women. [emphasis added]

13. As can be seen from the above, the focus of s7D is on "equality of outcomes" and it is therefore a provision which requires regard to be had to substantive equality - or de facto, rather than merely de jure, equality. Further, it operates to provide that certain measures are not discriminatory within the meaning of ss 5, 6 and 7 SD Act.

14. In the Second Reading speech for the Sex Discrimination Amendment Bill 1995 (Cth) Hansard 28 June 1995, page 2456 (Attachment Three) the Attorney General said that: "the Bill also provides for a new approach to special measures by moving and revising the existing provisions to reflect the positive role of special measures in the achievement of equality". He made the following comments in relation to special measures:

"Special measures

An issue raised by both the Half way to equal committee and by the Australian Law Reform Commission under its reference 'Equality before the law' is whether the 'special measures' provision in the act as presently worded is achieving its purpose. The legislation currently provides that an act which would otherwise be discriminatory for the purposes of the act is not unlawful if a purpose of that act is to ensure equal opportunity. The legislation currently treats special measures as discriminatory, but lawful - an approach which reflects the fact that the legislation is structured on an 'equal treatment' model under which any difference in treatment is prima facie discriminatory.

The amendment proposed in the bill makes two significant changes. First, it provides that special measures are not treated as a form of discrimination; instead, they would be considered as part of the threshold question of whether there is discrimination at all. Consequently, the 'special measures' provision will be moved from that part of the act which provides exemptions. Special measures should be presented and understood as an expression of equality rather than an exception to it.

Second, the special measures provision currently focuses on the attainment of equal opportunities. This focus ignores the historical and structural barriers which impede women's utilisation of formal equal opportunities. The Convention for the Elimination of All Forms of Discrimination Against Women refers to measures 'aimed at accelerating de facto equality', and our emphasis should be on measures to achieve real or substantive equality.

To attain substantive equality, it is necessary to look at the end result of a practice that purports to treat people equally. In this way structural barriers that prevent a disadvantaged group from attaining real equality can be taken into account. A narrow and formalistic interpretation of equality will not produce equality in fact and may entrench existing discrimination or create new discriminatory situations." [emphasis added]

15. As can be seen from the Second Reading Speech, the critical change brought about by the introduction of s7D SD Act, was that beneficial treatment of one group for the purpose of achieving substantive inequality would henceforth be treated not as a form of discrimination to which a species of exemption or exception applied, but rather would become part of the notion of what constitutes discrimination in the first place. As such, as the Attorney General noted, "special measures should be presented and understood as an expression of equality rather than an exception to it". The Second Reading Speech makes particular mention of the fact that in order to attain substantive equality, it is necessary to look at "the end result of a practice that purports to treat people equally".

C. CEDAW and special measures

16. One of the objects of the SD Act is to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): s3(c) SD Act.

17. CEDAW is a schedule to the SD Act (Attachment Nine). It is important to have regard to the full text of CEDAW. Article 1 provides that for the purposes of CEDAW, the term "discrimination against women" shall mean any "distinction, exclusion or restriction made on the basis of sex", which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women (on a basis of equality of men and women) of human rights and fundamental freedoms in the political, economic, cultural, civil or any other field.

18. Article 2(e) of CEDAW provides that the State parties condemn discrimination against women in all its forms and agree to pursue by all appropriate means a policy of eliminating discrimination against women and undertake to: "take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise".

19. Article 3 provides as follows:

"States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men."

20. Article 4 which deals specifically with special measures provides as follows:

1. 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.

2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.

21. It is important to note the reference in Article 4 CEDAW to "temporary" special measures. The Article specifically states that these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. This is echoed in s7D(4) SD Act, which provides that the section does not authorise the taking, or further taking of special measures for a purpose referred to in s7D(1) SD Act that is achieved.

22. Article 7 of CEDAW provides that State Parties shall take "all appropriate measures to eliminate discrimination against women in the political and public life of the country", and in particular shall ensure to women equal rights in relation to the capacity to, "participate in non-governmental organisations and associations concerned with the public and political life of the country": see Article 7(c). A federally registered union is, no doubt, one such non-governmental organisation concerned with the public and political life of Australia.

D. Commentary on CEDAW

23. The SD Act gives effect to CEDAW (see s3(a) and s9(10) SD Act). In the absence of any contrary intention, the statute is to be construed in accordance with the method applicable to the construction of the corresponding words in the treaty: Koowarta v Bjelke-Peterson (1982) 153 CLR 168 at 265 (Attachment Four); Applicant A v The Minister (1997) 142 ALR 331, per Dawson J at 339 - 340 (Attachment Five). There may be a need to consider both the text and the object of the Convention, and extrinsic materials which reveal the Convention's object and purpose: Applicant A v The Minister (1997) 142 ALR 331 per Brennan CJ at 333.

24. Indeed, Australian courts generally read statutory provisions in conformity with Australia's treaty obligations, even in circumstances where that Convention or treaty has not been enacted in domestic law: see Minister for Immigration and Ethnic Affairs v Teoh, (1995) 183 CLR 273 per Mason CJ and Deane J at 287 - 288 (Attachment Six).

25. In Teoh, Mason CJ and Deane J stated (at 291) that: "ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights .. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in conformity with the Convention.".

26. Thus, in construing the SD Act and s7D in particular, it is legitimate for this Court to have regard to the full text of CEDAW and commentary on that Convention, in order to understand the way in which it has been interpreted and applied.

27. The Committee on the Elimination of Discrimination Against Women is the expert body with responsibility for considering the progress made in the implementation of CEDAW.[1] It considers reports prepared by States Parties on the legislative, judicial, administrative or other measures adopted to give effect to CEDAW and the progress made by States Parties in that respect.[2] It also has the power to make "suggestions and general recommendations" based on that material.[3] The exercise of those functions and powers necessarily involves the interpretation of the provisions of CEDAW.[4] The General Recommendations made by the Committee are interpretative comments which develop further analysis of the articles and areas of the CEDAW Convention. The recommendations guide State Parties in the best ways to implement human rights standards at the domestic level.

28. The General Recommendations and Concluding Comments on Country Reports thus constitute an expert interpretation of the provisions of CEDAW to which this Court should give weight.

29. While such General Recommendations and Concluding Comments are not binding on this Court, they are significant, being those of a Committee composed of experts from a wide range of countries.[5] Australian courts have accepted that guidance as to the meaning and effect of international conventions may be gathered from the writings and decisions of learned authors, foreign courts, and expert international bodies.[6]

30. There are a number of General Recommendations which have been made by the Committee on the Elimination of Discrimination Against Women which assist in the interpretation of CEDAW. A number of those recommendations are instructive in the interpretation of Article 4 in particular. Those recommendations are discussed below.

General Recommendation No 5 Seventh Session, 1988 (Attachment Ten)

31. In 1988, the Committee on the Elimination of Discrimination Against Women recommended as follows:

"Taking note that the reports, the introductory remarks and the replies by the States parties reveal that while significant progress has been achieved in regard to repealing or modifying discriminatory laws, there is still a need for action to be taken to implement fully the Convention by implementing measures to promote de facto equality between men and women,

Recalling article 4.1 of the Convention,

Recommends that States Parties make more use of temporary special measures such as positive action, preferential treatment or quota systems to advance women's integration into education, the economy, politics and employment". [emphasis added]

32. Thus, the Recommendation explicitly recognises that positive action (including preferential treatment and use of quotas) may qualify as special measures, which need to be taken to implement CEDAW fully and to promote de facto equality between men and women.

General Recommendation No 23 Sixteenth Session, 1997 (Attachment Eleven)

33. In the 1997 Session, the Committee commented on Article 7 CEDAW which deals with the participation by women in political and public life. The Committee remarked that where countries had developed effective temporary strategies in an attempt to achieve equality of participation, a wide range of measures had been implemented including (at 15): "recruiting, financially assisting and training women candidates, amending electoral procedures, developing campaigns directed at equal participation, setting numerical goals and quotas and targeting women for appointment to public positions such as the judiciary or other professional groups that play an essential part in the everyday life of all societies".

34. The reference to setting numerical goals and quotas in this Recommendation is interesting. The Recommendation acknowledges explicitly that in order to secure equal participation by women in public and professional life, it may be necessary to set numerical goals. The Recommendation does not specifically address the question whether there is a significant difference between applying quotas to processes such as appointment, nomination (or perhaps preselection) and the application of quotas with respect to the required result in an election outcome.

35. In paragraphs 33- 34 (in the context of dealing with Article 7(c) which relates to the right to participate in non governmental and public and political organisations) the Committee made the following comments about political parties and trade unions:

33. Measures that have been adopted by some political parties include setting aside for women a certain minimum number or percentage of positions on their executive bodies, ensuring that there is a balance between the number of male and female candidates nominated for election, and ensuring that women are not consistently assigned to less favourable constituencies or to the least advantageous positions on a party list. States parties should ensure that such temporary special measures are specifically permitted under anti-discrimination legislation or other constitutional guarantees of equality.

34. Other organisations such as trade unions and political parties have an obligation to demonstrate their commitment to the principle of gender equality in their constitutions, in the application of those rules and in the composition of their memberships with gender-balanced representation on their executive boards so that these bodies may benefit from the full and equal participation of all sectors of society and from contributions made by both sexes. These organisations also provide a valuable training ground for women in political skills, participation and leaders, as do non-governmental organisations (NGOs). [emphasis added]

36. These comments make it clear that the Committee regards organisations such as trade unions as being likely to benefit from the "full and equal participation" by women. The particular role of such organisations in acting as a training ground for women in political skills, participation and leadership was noted.

37. This is certainly the case in the Australian context, where federally registered unions and the peak body the ACTU have a statutorily entrenched role in relation to industrial relations and litigation (see the Workplace Relations Act 1996 (Cth)) and play a high profile role in public and political life.

General Recommendation No 25 Thirtieth Session, 30 January 2004 (Attachment Twelve)

38. In the recent sessions of January 2004, the Committee noted that CEDAW is a dynamic instrument. The Committee stated (at 4) that the scope and meaning of Article 4 must be determined in the "context of the overall object and purpose of the Convention, which is to eliminate all forms of discrimination against women with a view to achieving women's de jure and de facto equality with men in the enjoyment of their human rights and fundamental freedoms".

39. The Committee noted (at 8): "Pursuit of the goal of substantive equality also calls for an effective strategy aimed at overcoming under-representation of women and a redistribution of resources and power between men and women".

40. The Committee said further (at 9): "Equality of results is the logical corollary of de facto or substantive equality. These results may be quantitative, and / or qualitative in nature, that is, women enjoying their rights in various fields in fairly equal numbers with men, enjoying the same income levels, equality in decision making and political influence and women enjoying freedom from violence".

41. The Committee went on to state (at 15): "The purpose of article 4, paragraph 1 is to accelerate the improvement of the position of women to achieve their de facto or substantive equality with men, and to effect the structural, social and cultural changes necessary to correct past and current forms and effects of discrimination against women".

42. In reference to "temporary" measures, the Committee noted (at 20) that: "The duration of a temporary special measure should be determined by its functional result in response to a concrete problem and not by a predetermined passage of time. Temporary special measures must be discontinued when their desired results have been achieved and sustained for a period of time".

43. The Committee also considered the meaning of "special" and "measures". With respect to "special", the Committee suggested (at 21) that: ". the real meaning of 'special' in the formulation . is that the measures are designed to serve a specific goal". In relation to "measures" the Committee stated (at 22) that it:

"encompasses a wide variety of legislative, executive, administrative and other regulatory instruments, policies and practices, such as outreach or support programmes; allocation and / or reallocation of resources; preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames; and quota systems. The choice of a particular 'measure' will depend on the context in which article 4, paragraph 1 is applied and on the specific goal it aims to achieve".

44. Again, this constitutes a recognition by the Committee that the imposition of numerical goals and quotas may constitute special measures within the meaning of Article 4. Whether a particular quota possesses that character will depend on the context in which it is imposed and the specific goal it is designed to achieve.

45. The Committee went on to recommend (at 27) that States parties ".should evaluate the potential impact of temporary special measures with regard to a particular goal within their national context and adopt those temporary special measures which they consider to be the most appropriate in order to accelerate the achievement of de facto or substantive equality for women." The Committee reiterated (at 33) that "action plans for temporary special measures need to be designed, applied and evaluated within the specific national context and against the background of the specific nature of the problem which they are intended to overcome."

E. Meaning of s7D SD Act: principal submissions

46. For the reasons set out below, it is submitted that the task for a Court faced with a submission that conduct which treats men and women differently is not discriminatory by reason of the operation of s7D, is to address the following issues:

1. What is the purpose of the special measures? Special measures must be taken for a particular purpose (either solely or with other purpose/s) namely, that of achieving substantive equality. This is a subjective test.

2. Was it reasonable for the entity taking the special measure to conclude that the measure imposed would further the purpose of achieving substantive equality? This is an objective test.

2.1 This requires the Court to first identify and understand the particular substantive inequality that the special measures seek to overcome.

2.2 The Court should then ascertain whether the special measures adopted are proportionate to the goal of achieving substantive equality in the particular circumstances.

3. Are those special measures still required - or has substantive equality been achieved in that field of activity?

47. These issues are dealt with in turn below.

1. The subjective test: what is the purpose of the special measures ?

48. Section 7D(1) provides that a person may take special measures for the purpose of achieving substantive equality. Section 7D(3) makes clear that the achievement of substantive equality need not be the only, or even the primary purpose of the measures in question. Measures fall fairly within the section if the achievement of substantive equality was one of the purposes for which they were taken.

49. It is submitted that the test as to the purpose of a special measure is a subjective test, which must be resolved by considering the facts in the particular case.

50. As Brennan J stated in Gerhardy v Brown (1985) 159 CLR 70 (Attachment Seven) (at 135): "Any fact which shows what the persons who took or who promoted the taking of a measure intended it to achieve casts light upon the purpose for which it was taken provided the measure is not patently incapable of achieving what was so intended. The intention of those persons is a matter of fact."

51. A purpose of the special measure must be achieving substantive equality between the groups specified in 7D(1)(a)-(d). That is, the entity taking the special measure must be seeking to overcome or address substantive inequality. Substantive inequality is not always synonymous with gender imbalance. The fact that there are fewer men or fewer women working in a particular industry, gaining admission to a particular university or course, joining a particular union or attaining leadership roles in a particular union may or may not be evidence of substantive inequality. The real question is whether any gender imbalance which is demonstrated to exist has arisen by reason of the operation of structural or historical barriers to entry or advancement by one gender in that particular field.

52. Plainly, the subjective element of s7D SD Act will not be met if the entity taking the special measure lacks the requisite purpose or if a purported purpose is shown not to be held on a good faith basis. Evidence regarding the existence or otherwise of substantive inequality and the utility of the measure taken will be relevant in considering whether such a purpose is genuinely held. That is, while the test under s7D is subjective, the Court should subject the purported purpose to some degree of scrutiny having regard to the objective facts. Further, for the reasons below, it is submitted that those objective matters must be considered by the Court quite apart from the question of purpose.

2. The objective test: was it reasonable for the entity taking the special measure to conclude that the measure imposed would further the purpose of achieving substantive equality?

53. Unlike the former s33 SD Act, s7D incorporates the words of CEDAW by referring to 'special measures'. In contrast, s33 referred to the doing of 'an act'. The term 'special measure' is not simply synonymous with 'act'. It has a different meaning which should be derived from CEDAW and the CEDAW Committee's consideration of the meaning of that term. The Commission refers, in that regard, to the principles of construction outlined in paras 23-29 above and to paragraph 40 of the Explanatory Memorandum to the Sex Discrimination Amendment Bill 1995 (see paragraph 12 above).

54. As noted above, in General Recommendation No 25 the Committee has indicated that the word 'special' refers to the fact that the measures referred to in article 4(1) are designed to serve a specific goal (at 21). It has further emphasised that a degree of rigour is required in the consideration of and implementation of such measures. The measures must be designed, applied and evaluated against the background of the specific nature of the problem that they are intended to address (at 33). Such measures must be able to be justified by reference to the 'actual life situation' of the disadvantaged group and the reasons for choosing one type of measure over another must be able to be explained (at 28). The degree of scrutiny the Committee considers appropriate in relation to special measures is apparent from the fact that State parties reporting to the CEDAW Committee on such measures are required to include references to (at 36):

"concrete goals and targets, timetables, the reasons for choosing particular measures, steps to enable women to access such measures, and the institution accountable for monitoring implementation and progress. States parties are also asked to describe how many women are affected by a measure, how many would gain access and participate in a certain field because of a temporary special measure, or the amount of resources and power it aims to redistribute to how many women, and within what time frame".

55. In other words, the Committee views special measures as being more than simply actions taken on a good faith basis to achieve a particular purpose. Similarly, in the context of s7D, the term 'special measures' requires a closer degree of scrutiny of the problem (substantive inequality between the groups referred to in s7D(1)(a)-(d)) (see section 2.1 below) and the means of addressing that problem (the special measure adopted in the particular case) (see section 2.2 below). That approach is broadly consistent with the High Court's approach to special measures in the context of the Racial Discrimination Act 1975 (Cth).

56. In Gerhardy v Brown (at 137 - 139) Brennan J discussed the Court's role in determining the necessity for and purpose of a special measure (albeit in the context of a legislative special measure). Brennan J stated as follows (at 137):

"To determine whether the measure in question is intended to remove and is necessary to remove inequality in fact (as distinct from formal inequality), the circumstances affecting the political, economic, social, cultural and other aspects of the lives of the disadvantaged group must be known and an opinion must be formed as to whether the measure [was] necessary and likely to be effective to improve those circumstances."

57. Brennan J went on to state (at 138): "Whether a measure is needed and is likely to alter the circumstances affecting a disadvantaged racial group.is, at least in some respects, a political question. A Court is ill-equipped to answer a political question." And later (at 138) "The court can go no further than determining whether the political branch acted reasonably in making its assessment."

58. Brennan J went on to conclude (at 139): "It is enough that the court determines no more than this: could the political assessment inherent in the measure reasonably be made? If the political assessment could not have been reasonably made, the measure does not bear the character of a special measure and the court must hold so."

59. In Gerhardy v Brown the High Court stopped short of saying that the Court ought itself determine whether the measure at issue was necessary and likely to be effective in addressing the particular goal. A similar position was adopted by the Human Rights and Equal Opportunity Commission in Proudfoot v ACT Board of Health [1992] HREOCA 6 (17 March 1992) (Attachment 7A).[7]

60. The approach adopted by the Court in Gerhardy v Brown was clearly influenced by the fact that the "measure" at issue was a legislative one, enacted by the government of the day. Different considerations may arise in cases where the "special measure" in issue is not provided for by legislation and a stricter test may therefore apply in the present case.

61. It is submitted that the Court must determine whether it was reasonable for the person or organisation taking the special measure to conclude that the measure imposed would further the purpose of achieving substantive equality. In making this determination the Court must at least consider whether the measure taken is one which a reasonable entity in the same circumstances would regard as one capable of achieving that goal. The Court ought not substitute its own decision, but should consider whether in the particular circumstances, a measure imposed is one which is not proportionate to the goal sought to be achieved. As stated by Brennan J in Gerhardy v Brown (at 137), the need must match the purpose.

62. In the particular context of this case, it is submitted that the Court must determine whether the particular special measure taken (namely allocating certain positions on the union's executive to female members) is one which it was reasonable for the union to conclude would further the purpose of achieving substantive equality.

63. In the alternative, even if the test to be applied under s7D is focussed solely or primarily upon purpose, it is submitted that the Court should have regard to the matters discussed in 2.1 and 2.2 below in determining whether the purported purpose is genuinely held.

2.1 Substantive inequality

64. In order to conduct the above assessment of reasonableness the Court must understand and identify the substantive inequality that the special measure aims to overcome. As stated by Brennan J in Gerhardy v Brown (at 141): "Matters of fact are involved, and the Court must ascertain some facts in order to determine what is a question of law."

65. As the CEDAW Committee noted in General Recommendation No 25, the choice of a particular "measure" depends on the specific goal it aims to achieve. That is, a degree of particularity is required. Matters which the Court should have regard to in understanding or identifying the substantive inequality include:

(i) the field of activity in which it is said that the special measures have been taken;

(ii) the correct comparator; and

(iii) the potential causes of the inequality.

66. Each of these matters will be dealt with in turn.

(i) What is the field of activity in which it is said the special measures have been taken ?

67. In this case, the relevant field of activity relates to union membership and the participation of union members in union elections. Section 19 SD Act deals with registered organisations. It provides:

Sect 19 Registered organisations under Schedule 1B

(1) It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person, on the ground of the person's sex, marital status, pregnancy or potential pregnancy:

(a) by refusing or failing to accept the person's application of membership; or

(b) in the terms or condition on which the organisation is prepared to admit the person to membership.

(2) It is unlawful for a registered organisation, the committee of management of a registered organisation or a member of the committee of management of a registered organisation to discriminate against a person who is a member of the registered organisation, on the ground of the member's sex, marital status, pregnancy or potential pregnancy:

(a) by denying the ember access, or limiting the member's access, to any benefit provided by the organisation;

(b) by depriving the member of membership or varying the terms of membership; or

(c)by subjecting the member to any other detriment.

68. Thus, the field of activity requiring consideration is that of membership of unions and the ASU in particular. This is likely to require an analysis of the participation by men and women in the industries in which the union has members; the rates of union membership by male and female workers in those industries; the terms and conditions of membership of unions (including the operation of the rules governing union elections) and the benefits of union membership (including the opportunity to nominate for office and participate in elections for office).

69. For the reasons expressed above in the context of the Commentary on CEDAW in relation to Articles 4 and 7, the particular role played by unions in the political and public life of Australia needs to be borne in mind when assessing this field of activity and women's participation in it. The Committee stated in its General Recommendation No 23 that organisations such as trade unions have an obligation to demonstrate their commitment to the principle of gender equality in the application of their rules and in the composition of their memberships with gender-balanced representation on their executive boards.

(ii) What is the correct comparator?

70. In order to properly identify and understand the substantive inequality said to exist in a particular context or field of activity, it is necessary to identify the correct comparator.

71. In this case, it may be necessary for the Court to consider whether the union alleges special measures were taken to address substantive inequality between any or all of the following groups of men and women:

(i) male and female members in particular divisions of the union;

(ii) male and female members across all divisions or across the entire membership of the union;

(iii) male and female employees in the particular workforces or industries represented by the union's divisions.

72. By looking at the question in this way, it can be seen immediately that there is a need to identify the substantive inequality carefully - and to ascertain between which groups of persons it is said to arise.

(iii) What are the causes of the inequality?

73. As noted above 'substantive inequality' is not always synonymous with gender imbalance. The real question is whether any imbalance which is demonstrated to exist has arisen by reason of the operation of structural or historical barriers to entry or advancement by one gender in the relevant field. Thus attention should be directed to the causes of the inequality said to be addressed by the relevant measure. Identifying such causes is a factual exercise that can only be undertaken by having regard to the facts of the particular case and the concrete evidence that is before the Court.

74. In this case, that inquiry will involve considering any historical causes of inequality (see for example, exhibit marked "MOS10" to the affidavit of Michael John O'Sullivan sworn 4 December 2003). It might also involve asking whether any inequality in the participation of women in the union's leadership arose because:

(i) the numbers of female members in particular divisions of the union were not represented in the same proportion in leadership positions at the executive level; and / or

(ii) the numbers of female members across all the divisions or the entire union membership were not represented in the same proportion in leadership positions at the executive level; and /or

(iii) the numbers of female union members in particular divisions of the union were lower than the numbers of male members in the same divisions of the unions.

75. Once the nature and causes of the inequality are identified, it becomes easier to assess whether the measures taken were ones which it was reasonable for the entity taking them to conclude would further the goal of achieving substantive equality.

2.2 The proportionality of the measure

76. In conducting its assessment of reasonableness (see paragraph 61 above) the Court should consider whether in the particular circumstances the special measures imposed are proportionate to the particular goal sought to be achieved.

77. There are many types of measures, depending on the particular circumstances and the substantive inequality to which they are addressed, which may be reasonably regarded as ones which might further the purpose of achieving substantive equality, and therefore meet the description of "special measures" within the meaning of s7D SD Act. Some examples of which are:

(i) Affirmative mobilisation policies: for example, policies or programmes aimed at encouraging female applicants for positions or admission. Such programmes might seek to achieve substantive equality by supporting or actively involving women perhaps through training, mentoring, mobilising women in order to render them competitive candidates for particular positions;

(ii) Positive special measures: comparative advantages (ie special consideration / assigning extra "points" or selection criteria grades) given to women by granting them priority over equally qualified candidates in some circumstances;

(iii) Implementing quotas in respect of numbers of female employees, candidates, appointments or elected officials or members.

78. It is submitted that the implementation of quotas may constitute a special measure taken to achieve substantive equality in particular circumstances at particular times. The imposition of quotas does, however, require particular scrutiny.[8] The imposition of quotas is a fairly rigid tool, because it focuses primarily on numbers and redressing statistical imbalance. Whether the imposition of a quota does in any given case constitute a special measure will depend on the substantive inequality which exists, its nature and the capacity of the implementation of quotas to redress that inequality in the circumstances.

3. Are the special measures still required, or has the purpose of achieving substantive equality been achieved ?

79. Although arguably implicit in s7D(1) in any event, s7D(4) SD Act makes it explicit that the taking, or the further taking of special measures for the purpose of achieving substantive equality is not permitted once that purpose is achieved. This gives rise to the question: when can it be said that the measures are no longer authorised because the purpose of achieving substantive equality has been achieved?

80. It is submitted that there is, in a practical sense, an obligation on persons, companies, employers and unions employing special measures to monitor whether any special measures taken by them continue to be required for the purpose of achieving substantive equality. The obligation to desist from taking special measures is not something which is triggered only when a complaint of discrimination arises.

81. The nature of such "monitoring" or the regularity with which the question may need to be revisited by the entity taking the special measures may depend on the circumstances at issue. In this case, where the union rules provide for an election every four years, one might expect that at the very least, the question of whether these rules have achieved their purpose of attaining substantive equality would be addressed by the union at the time of each new election. That time frame certainly ought provide a trigger for assessment of whether the rule has achieved the purpose sought to be achieved.

82. It may also be that the regularity and rigour with which special measures are assessed by the entity imposing them depends to a degree on the nature of the measure and the circumstances in which it is applied. For example, if the special measure taken is to place a single advertisement in the paper calling for female applicants for a particular position, then once the position is filled, there may be no need to revisit the question of whether substantive equality has been achieved. If the special measure is constituted by a university admissions policy aimed at encouraging female entrants to a particular course, then it may be necessary to revisit the question each semester in light of student numbers.

83. In this case, where the special measure is in the nature of a quota and in respect of elected positions in a federally registered union, it might be expected that the regularity of the assessment of whether substantive equality had been achieved would occur at least prior to each election and that the degree of rigour applied to the assessment would be high, due to the fairly inflexible nature of quota systems.

84. How an entity assesses whether the special measure imposed has achieved substantive equality may require different monitoring strategies depending on the special measures at issue and the field in which they operate. There may be a need to engage in data collection; statistical analyses; feedback; charting progressive improvement and the like.

F. Special measures: contrast temporary exemptions

85. The notion of special measures and their relationship to the definition of discrimination must be carefully distinguished from the capacity of the Human Rights and Equal Opportunity Commission to grant temporary exemptions. The power to grant temporary exemptions is contained in s44 SD Act. HREOC may grant temporary exemptions from the operation of certain provisions of the SD Act. The process and the test and standards applied are quite different. Temporary exemptions are rarely granted and are strictly limited.

86. Of course, the notion of special measures must also be distinguished from the permanent exemptions to the SD Act. The permanent exemptions are set out in Part II, Division 4 of the SD Act.

87. As the Guidelines in relation to Special Measures (1996) explain (at page 23): "There are fundamental differences between exemptions and special measures". The Guidelines go on to state:

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. Provisions 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.

4. Exemptions cannot be granted retrospectively. If a formal complaint alleging discrimination has been lodged with the HREOC 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" [emphasis in original].

88. It is important to bear in mind the distinction between temporary exemptions and special measures. The former are granted only on application, and in specific circumstances usually on limited terms. The latter are a species of actions which treat one group beneficially, taken by a person, employer, educational institution which, by reason of the operation of s7D SD Act, do not constitute discrimination.

G. Jurisprudence from other jurisdictions

United States jurisprudence

89. There is a great deal of jurisprudence from the United States. That jurisprudence has, however, developed in the context of a very different framework. There is no direct legislative basis for affirmative action programmes in the United States. But Title VII of the Civil Rights Act 1964 provides legislative protection against employment discrimination based on race, colour, religion, sex and national origin. The Civil Rights Act 1964 has been interpreted in such a manner as to permit certain kinds of affirmative action: see Titles I to VII, and in particular Titles VI and VII (Attachment Thirteen).

90. The majority of claims which have been in the United States have related to a consideration of whether the protection of the Equal Protection clause of the Fourteenth Amendment (Attachment Fourteen) renders affirmative action policies taken apparently in conformity with the Civil Rights Act, unconstitutional.

91. The United States jurisprudence suggests that bare numerical quotas imposed in order to effect "affirmative action" for women or minority groups are generally not permitted by reason of the operation of the Equal Protection clause. However, the decisions also demonstrate it may be permissible in certain circumstances to adopt procedures which provide enhanced employment opportunities or preferential university admissions policies for women or minorities.

92. One of the key cases in the United States in the decision in Regents of the University of California v Bakke 438 U S 265 (1978) (Attachment Fifteen). In that case, a white male whose application to a University medical school was rejected, brought an action challenging the legality of the school's special admissions programme. Under the special admissions programme, 16 of the 100 positions in the class were reserved for disadvantaged minority students. The claim was made that the programme violated the California constitution, Title VI of the Civil Rights Act 1964 and the Equal Protection clause of the XIV Amendment.

93. The Supreme Court held by majority that the denial to the white male applicant of the right to have his application considered individually, without regard to race, was a fatal flaw in the special admissions programme. The Supreme Court's criticisms of the special admissions programme were focussed on the fact that the admissions policy involved carving out 16 places reserved for minority applicants, who were not required to compete with white applicants. It was held that the reservation of 16 out of 100 places in each class for disadvantaged members of minority groups was not constitutionally permissible.

94. The majority judgment noted (at 289) that white applicants could compete for only 84 seats in the entering class, rather than the 100 seats opened to minority applicants. The Court accepted that the medical school was permitted to engage in some consideration of the race of applicants in order to achieve its goal of achieving a diverse student body. But the Court concluded that the university was not permitted to implement a programme which reserved spaces for persons of particular race or ethnic origins.

95. In other contexts, see the decisions in Local Sheet Metal Workers International Association v Equal Employment Opportunity Commission 478 US 421 (1986)[9] (Attachment Sixteen); Johnson v Transportation Agency 480 US 616 (1987)[10] (Attachment Seventeen); and Richmond v Croson 488 US 469 (1989)[11] (Attachment Eighteen).

96. Similar questions have been considered by the Supreme Court more recently in cases concerning admissions policies: for example Gratz v Bollinger 123 S Ct 2411 (23 June 2003) (Attachment Nineteen). Gratz concerned applications for admission to the University of Michigan. The applicant was denied admission to the university even though under represented minority applicants with his qualifications would have been admitted. The guidelines of the university undergraduate admissions office considered a number of factors in making admissions decisions, including grades, standardised test scores, curriculum strength, alumni relationships, leadership and race. The admission guidelines required use of the selection method under which every applicant from an under represented racial or ethnic minority group would be automatically awarded 20 points of the 100 points needed to guarantee admission.

97. The Supreme Court concluded that the university's use of race in the admission policy was not narrowly tailored to achieve the asserted interest in attaining diversity. The Court was critical of the aspect of the policy which automatically distributed 20 points (or one fifth of the points need to guarantee admission) to every under represented minority applicant solely because of race.

98. The Court noted (at 2427) that: "To withstand our strict scrutiny analysis, respondents must demonstrate that the university's use of race in its current admission programme employs 'narrowly tailored measures at further compelling governmental interest'". The Court concluded that the university's 20 point distribution method had failed that test as it had the effect of making race decisive for virtually every minimally qualified under represented minority applicant.

99. In another decision handed down last year, the Supreme Court considered applications to the law school of Michigan State University, see Grutter v Bollinger 123 S Ct 2325 (23 June 2003) (Attachment Twenty).

100. In Grutter, a law school had a race conscious admissions policy which encouraged student body diversity. Unlike the decisions in Bakke and Gratz, the Supreme Court held that this law school's admissions programme was sufficiently narrowly tailored. The Court confirmed (at 2432), that to be sufficiently narrowly tailored in the manner required, a race conscious admissions programme cannot use a quota system and cannot insulate categories of applicants with certain desired qualifications from competition with other applicants (relying on Bakke per Justice Powell). But a university may consider race or ethnicity as a "plus factor" in a particular applicant's file.

101. The evidence in Grutter revealed that while the admissions policy did use race as a "plus factor" in law school admission decisions, the law school also engaged in a highly individualised, holistic review of each applicant's file and gave serious consideration to all the ways in which an applicant might contribute to a diverse educational environment. The Court stated that a policy which requires only a good faith effort to come within a range demarcated by a stated goal, and which permits consideration of race as a plus factor while still ensuring the candidate competes with all other qualified applicants, may be constitutionally permissible.

102. The United States jurisprudence must be treated carefully, in light of the particular provisions of the Civil Rights Act 1964 and the operation of the Equal Protection clause. However, what does emerge from this line of decisions is that the United States Supreme Court accepts that minority status may be considered as a "plus factor", so long as it is not the sole factor, when considering conferring a benefit on a minority applicant. The Court also accepts that the goal of achieving diversity is a legitimate one, and that there is some relationship between numbers and achieving the benefits to be derived from diversity. Further, the Court accepts that some attention to numbers without more does not transform a diversity policy into a rigid quota. What is not permitted however, is the imposition of a rigid quota, pursuant to which members of minority groups are insulated from competition with others.

European union jurisprudence

103. Article 2(1) of the Equal Treatment Directive Council Directive 76/207/EEC (Attachment Twenty One) provides that the "principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly in particular to marital or family status".

104. Article 2(4) permits the taking of special measures in certain circumstances. It provides that the prohibition on discrimination is, 'without prejudice' to measures to "promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities. ".

105. The approach by the European Union Court to the Directive has changed dramatically over time, and now permits the use of preferential and quota systems to achieve equality of opportunity in some circumstances.

106. In Kalanke v Freie Hansestadt Bremen (C-450/93) [1995] ECR I-3051, (Attachment Twenty Two) the Court held that a law promulgated in relation to the public service in Bremen was discriminatory. The law required that women with the same qualifications as male candidates be given priority in relation to appointment to all official posts and promotions in sectors in which women were under-represented. The notion of "under-representation" was defined as a situation in which women made up less than half of the staff in the particular pay bracket in the relevant personnel group within any department.

107. The Court stated (at 3078) that Article 2(4) had to be read strictly, as it was a derogation from the individual rights laid down in Article 1(1) and Article 2(1). The Court concluded (see 3077-3078) as follows: first, the rule requiring women to be automatically given priority in sectors where they were under-represented did involve discrimination on the grounds of sex; and second, such a rule went beyond promoting equal opportunities and overstepped the limits of the exception in Article 2(4) of the Directive.

108. A broader approach was adopted by the Court in the later decision of Marschall v Land Nordrhein - Westfalen (C-409/95) [1997] ECR I-6363 (Attachment Twenty Three). There, the Court upheld the validity of a national rule which required that where there were fewer women than men at the level of a relevant post in the public service, and both female and male candidates were equally qualified, that priority be given to promotion of the female candidate, unless reasons specific to the individual male candidate did not tilt the balance in his favour.

109. The Court noted that the rule permitted the priority given to female candidates to be overridden where one or more criteria tilted the balance in favour of the male applicant. Thus, the rule afforded priority to equally qualified women, but retained the capacity to give special consideration to exceptional male candidates. The rule was found to be permissible, within the meaning of Article 2(4) of the Directive.

110. This more expansive approach is also evident in the decision in Badeck v Hessischer Minister President (C-158/97) [2000] ECR I-1875 (Attachment Twenty Four). At issue there was a Law of the Land of Hesse which prescribed certain matters in relation to the access of women to posts in the public service and academia, access to training and their participation in collective bodies (including advisory boards, commissions, boards of directors).

111. The law required the implementation of binding targets with reference to the proportion of women in appointments and promotions with the aim of increasing the proportions of women in sectors in which women were under-represented. The Court concluded (at 1919) that a measure which gives priority in promotion to women in sectors of the public service where they are under-represented, does not infringe the Directive if; firstly, it does not automatically and unconditionally give priority to women when male and female candidates are equally qualified; and secondly, the candidates are subject to an objective assessment which takes into account the specific personal characteristics of all candidates.

112. The Court described the law in relation to admissions and promotions in the public service (at 1920) as a "flexible quota system", as quotas were not prescribed uniformly for all sectors and it did not necessarily determine from the outset or automatically that the outcome of each selection process (where qualifications were equal) would necessarily favour the woman candidate.

113. It can be seen that the approach of the European Union Court permits the use of preferential systems as a special measure taken to "remove inequality" in circumstances where it can be demonstrated that the use of a quota does not prevent other candidates from having their application assessed objectively. It is, in that respect, similar to the approach adopted by the United States Supreme Court. However, the approach of the European Court is more flexible than that of the United States Supreme Court as it also permits preferential treatment of minority groups even where such preference is applied with an express aim of achieving numerical goals or quotas.

Canadian jurisprudence

114. Clause 15 of the Canadian Charter of Rights and Freedoms (see Attachment Twenty Five) provides: 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 15 (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic original, colour, religion, sex, age or mental or physical disability.

115. Despite the express terms of Charter 15(2) which appear to positively support the use of affirmative action in some circumstances, to date the jurisprudence of the Canadian Supreme Court has been focussed on Charter 15(1). The Court has, thus far, preferred to adopt a broad approach to Charter 15(1), in a manner which itself permits different treatment in particular circumstances, rather than develop a free standing body of jurisprudence in relation to the operation of s15(2) Charter.

116. The Court's approach to Charter 15(1) was set out in the landmark decision in Law v Minister of Human Resources Development [1999] 1 SCR 497 (Attachment Twenty Six). There, the Court summarised the basic principles applicable to an analysis of s15(1).

117. The Court stated (at 499) that the correct approach to Charter 15(1) focuses on three issues:

(i) whether a law imposes differential treatment between the claimant and others, in purpose or effect;

(ii) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment;

(iii) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

118. The second and third limbs (paras (ii) and (iii) above) are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s 15(1).

119. In considering the third limb, the Court directed attention to this inquiry (at 500): does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society equally deserving of concern, respect and consideration?

120. In Lovelace v Ontario [2000] 1 SCR 950 (Attachment Twenty Seven), the Supreme Court considered the Law approach to the equality guarantee in the context of legislation aimed at benefiting a particular group. In that case, the legislation enacted operated to distribute casino funds to Indian "bands" registered under the Indian Act. The applicants complained that they had been denied participation in the negotiations concerning distribution of the funds because they were not registered as a "band", although they were aboriginals. The Supreme Court accepted that the applicants were subjected to differential treatment, but that differential treatment did not constitute discrimination within the meaning of clause 15(1) Charter.

121. The Court noted that the First Nation Fund programme was undertaken by Ontario in order to further develop a relationship with First Nation band communities, and was aimed at "supporting the journey of these groups towards "empowerment, dignity and self reliance"". The Court proceeded to subject the legislation to the full scrutiny of the discrimination analysis as required by the decision in Law. In considering the operation of Charter 15(1), the Court noted (at 1004) that Charter 15(2) provides a basis "for the firm recognition that the equality right is to be understood in substantive rather than formalistic terms. . Having accepted the substantive approach, the Court has interpreted s 15(1) not only to prevent discrimination but also to play a role in promoting the amelioration of the conditions of disadvantaged persons".

122. Thus, it would appear that the Canadian Supreme Court employs Charter 15(2) more as an interpretative aid in relation to the operation of Charter 15(1) rather than a free standing source of power to enact affirmative action programmes. The Court favoured the view in Lovelace that s 15(2) should be understood as, "confirming the substantive equality approach of 15(1)" (at 1007). But the Court did not (at 1007), "foreclose the possibility that s 15(2) may be independently applicable to a case in the future".[12]

United Kingdom Legislation

123. The Sex Discrimination Act 1975 (UK) (Attachment Twenty Eight) contains provisions permitting the taking of certain affirmative action measures in particular circumstances.

124. The circumstances in which the measures may be taken are very narrowly defined. Sections 47 and 48 permit training bodies and employers to afford men only or women only access to training, in circumstances where at any time within the 12 months immediately preceding the doing of the act, there were no persons of the sex in question among those doing that work or the numbers of the particular sex doing the work were comparatively small.

125. Section 49 applies to trade unions and other elected bodies. It provides that if an organisation comprises a body the membership of which is wholly or mainly elected, and the union is of the opinion that a provision is needed to "secure a reasonable lower limit to the numbers of members" of a particular sex on the body, then it shall not be unlawful to provide that a minimum number of persons of one sex are members of that body by reserving seats for persons of that sex or by making extra seats on the body available for persons of that sex when the number of persons of that sex in the other seats is below the minimum.

126. Section 42A of the Sex Discrimination (Election Candidates) Act 2002 (UK) (Attachment Twenty Nine) excludes from the operation of the Sex Discrimination Act 1975 (UK) certain arrangements in relation to the selection of election candidates. It provides that arrangements may be made by registered political parties which are "adopted for the purpose of reducing inequality in the numbers of men and women elected as candidates of the party". This is an example of an explicit "special measure" adopted by the United Kingdom in order to achieve the participation by women in political life and office.

New Zealand legislation

127. Section 73 of the Human Rights Act 1993 (NZ) (Attachment Thirty) (which is titled "Measures to ensure equality"), makes express provision for performing actions in order to assist or advance persons or groups to achieve equality.

128. The section provides that anything done or omitted to be done which would otherwise constitute a breach of the provisions of that part of the Human Rights Act, shall not constitute a breach if it is done, "in good faith for the purposes of assisting or advancing persons or groups of persons.against whom discrimination is unlawful" and "those persons or groups need or may reasonably be supposed to need assistance or advancement in order to achieve an equal place with other members of the community". The terms of s 73 can be seen to be quite similar to those of s 7D SD Act.

H. Conclusion

129. There many species of measures (including affirmative mobilisation policies, polices which require preference to be given to certain groups, positive special measures and numerical targets and quotas) which, depending on the particular circumstances and the substantive inequality to which they are addressed, may meet the description of "special measures" within the meaning of s7D SD Act.

130. The question whether any particular measures taken to achieve substantive equality may be reasonably regarded as measures which might further the purpose of achieving substantive equality will depend on the nature of any substantive inequality which exists in the field of activity at issue and evidence which demonstrates whether it was reasonable for the entity imposing the measure to conclude that the measure would further the purpose of achieving substantive equality in the field of activity in which it operates.

131. In order to ascertain whether it is reasonable to regard the imposition of a quota as a measure which would further the purpose of achieving substantive equality, and to ascertain whether such a special measure continues to be required in order to achieve substantive equality, it may be necessary to apply a higher degree of rigour than might be the case in relation to other special measures.

2 April 2004

RACHEL DOYLE

Counsel for Sex Discrimination Commissioner - Intervening as Amicus Curiae

 

1. See article 17(1).

2. See article 18.

3. See article 21(1).

4. A Byrnes, 'The "Other" Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination Against Women' (1989) 14 The Yale Journal of International Law 1 at 1.

5. H Burmester, 'Impact of Treaties and International Standards' (1995) 17 Sydney Law Review 127 at 145.

6. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392 per Mason CJ, 396-7 and 399-400 per Dawson J, 405 per Toohey J, 416 per Gaudron J, 430 per McHugh J; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 117 per Gummow J; Commonwealth v Hamilton (2000) 108 FCR 378 at 388 per Katz J; Commonwealth v Bradley (1999) 95 FCR 218 at 237 per Black CJ. Note also Fothergill v Monarch Airlines Ltd [1981] AC 251 at 294-5 per Lord Scarman. See as examples of references to the jurisprudence of human rights treaty bodies Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 307 per Mason CJ and McHugh J; Johnson v Johnson (2000) 174 ALR 655 at 665 para [38] per Kirby J; Commonwealth v Bradley (1999) 95 FCR 218, per Black CJ at 237; Commonwealth v Hamilton (2000) 108 FCR 378 per Katz J at 387, [36]; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54.

7. The decision by HREOC in that matter obviously turned on an application of the previous s33 SD Act, and also predates the General Recommendations 23 and 25 of the Committee in relation to CEDAW.

8. See page 22 in the 1996 Guidelines for Special Measures under the Sex Discrimination Act 1984 (see exhibit to the Affidavit of Pru Goward).

9. In that case, it had been found by the District Court that the union had discriminated against non white workers in recruitment, selection, training and admission to the union. As part of the relief ordered, the district court imposed a goal on the union that it be required to achieve 29% non white membership by 1981. The union appealed, on the basis that the relief ordered violated the Equal Protection clause. The Supreme Court held that Title VII Civil Rights Act did not preclude the district court from ordering preferential relief for past discrimination.

10. There, it was held that a county agency did not discriminate against a male employee when it took into account a female employee's sex in deciding to promote her over the male employee with a higher test score. The decision was made pursuant to an affirmative action plan which directed that sex or race be considered for the purpose of remedying the fact that women and minorities were underrepresented in jobs which were traditionally segregated.

11. In this case it was held that a city plan which required prime contractors to award at least 30% of the dollar amount of each contract to a "minority business enterprise" was not a plan which was narrowly tailored to remedy effects of prior discrimination and that no compelling governmental interest justifying the plan had been demonstrated. The plan was found to contravene the Equal Protection Clause because it denied certain citizens the opportunity to compete for a fixed percentage of public contracts based solely on their race.

12. However, the Court did not note in passing (at 98) in it was accepted in Manitoba Farmers Association v Human Rights Commission (1987) 50 Man R (2d) 92 QB that an ameliorative programme aimed at an identifiable disadvantaged group could be saved under Charter 15(2) if the government could establish that the programme was rationally designed in order to redress the cause of the disadvantage. In other words, a Charter 15(2) analysis was capable of being independently triggered in some circumstances, and might displace the justification analysis from s 1 Charter.

Last updated 14 April 2004.