Legal Practice Briefing
1 May 1996
SIGNIFICANT CHANGES TO THE SEX DISCRIMINATION ACT
The Sex Discrimination Amendment Act 1995 (the Amendment Act) received Royal Assent and came into force on 16 December 1995. The Amendment Act makes significant changes to the Act in relation to:
- the tests for indirect discrimination
- the test for direct pregnancy discrimination
- combat-related duties exemption
- the special measures provision.
Discrimination on the ground of potential pregnancy is also made unlawful.
Background to the Act
The Act aims to:
- give effect to certain provisions of the UN Convention on the Elimination of all Forms of Discrimination Against Women
- eliminate so far as is possible, discrimination against persons on the ground of their 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
- eliminate, so far as is possible, discrimination involving dismissal of employees on the ground of family responsibilities (which is defined in the Act)
- eliminate, so far as is possible, discrimination involving sexual harassment, in the workplace, in educational institutions and in other areas of public activity
- promote recognition and acceptance within the community of the principle of the equality of men and women.
The Act seeks to achieve these aims by making it unlawful to discriminate on the specified grounds (such as marital status) in areas such as the provision of goods and services. It covers both direct and indirect discrimination.
Direct discrimination occurs when a person is treated less favourably than another, by reason of, for example, the person's marital status, in circumstances that are the same or not materially different.
Indirect discrimination is concerned with policies or practices that are neutral or 'non discriminatory' on their surface, but have an adverse impact on members of a specified group of which the aggrieved person is a member. The essence of indirect discrimination is that it impacts on a group of people who share the same attribute. Those attributes are sex, marital status, pregnancy and potential pregnancy. The test for indirect discrimination under the Act was amended in late 1995 and is discussed later in this briefing.
Sexual harassment is also unlawful in specified areas of public life.
It is unlawful for an employer to directly discriminate against someone on the ground of their family responsibilities by dismissing the employee (no provision is made relating to indirect discrimination in this context).
Importantly, the Act also makes employers and principals vicariously liable for the discriminatory acts committed by their employees or agents, unless the employer took all reasonable steps to prevent the discrimination (or harassment) occurring.
The application of the Act is complicated by the extent to which the Commonwealth Government has constitutional power over or in relation to, the subject matter of a complaint. However, as will be seen below, section 26 of the Act is particularly relevant to Commonwealth policy makers and lawyers.
The Act does not bind the Crown in right of a State unless specifically expressed to do so (note however that section 26 is expressed to bind the Crown in right of a State).
Complaints of discrimination may be made to the Human Rights and Equal Opportunity Commission, which currently refers the complaints to the Sex Discrimination Commissioner for inquiry and conciliation if appropriate.
If the matter proceeds but cannot be resolved, it may go to the Commission for inquiry. Matters may eventually end up in the Federal Court either because a successful complainant is forced to take action to enforce a determination of the Commission (this is in the form of a hearing de novo) or as an application for review under the ADJR legislation.
The Act specifically provides that in some circumstances, behaviour which may otherwise form the basis for a complaint is not unlawful. For example, the Act provides a limited legislative exemption in relation to discrimination in the provision of superannuation. It specifically exempts acts done by a person in direct compliance with specified legislation in force as at 1 August 1984, such as the Income Tax Assessment Act 1936. So-called 'special measures' measures designed to redress past inequality and disadvantage are not discriminatory.
Additionally, the Human Rights and Equal Opportunity Commission may grant a temporary (maximum 5 years) administrative exemption from the operation of the legislation in certain circumstances.
Relevance for Administrators
Section 26 of the Act is particularly relevant to Commonwealth lawyers and policy makers. In summary, the section makes it unlawful for a person who performs any function, exercises any power or has any other responsibility for the administration or conduct of a Commonwealth law or program to discriminate against another person, on the ground of the person's sex, marital status, pregnancy or potential pregnancy.
Sexual harassment is also unlawful in the context covered by section 26. The Act defines a Commonwealth program as a program conducted by or on behalf of the Commonwealth Government. 'Commonwealth law' is defined widely to encompass primary legislation, and regulations, rules, by-laws or determinations made under or pursuant to an Act.
It has been held that a Commonwealth program can consist of a program where the Commonwealth contributes some funding, has a real interest in the outcome of the project and has some ongoing involvement in the program.
Section 26 therefore makes it desirable for all government departments, statutory authorities, local government authorities, community organisations and other Commonwealth funded programs to examine the requirements and conditions in their administration. In certain circumstances, the Act's provisions in relation to vicarious liability are applicable to those responsible for administering a Commonwealth program.
The Recent Changes
The Amendment Act inserts the following Preamble into the Act:
'Recognising the need to prohibit, so far as is possible, discrimination against people on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs:
Affirming that every individual is equal before and under the law, and has the right to equal protection and equal benefit of the law, without discrimination on the ground of sex, marital status, pregnancy or potential pregnancy:'
The preamble is intended to complement the objects section of the Act (section 3) and link the Act more closely to the Convention on the Elimination of All Forms of Discrimination Against Women. It operates as a statement of intention and commitment and as an aid to interpretation.
The New Tests for Indirect Discrimination
The Amendment Act replaced the definitions of indirect discrimination on the ground of sex, marital status or pregnancy with a simpler definition of indirect discrimination.
The 'old definition' focused on the inability of a complainant to comply with a requirement or condition, with which a substantially higher proportion of persons of (for example) a different sex or marital status comply, or are able to comply.
The new test provides that, in order to establish a complaint of indirect discrimination, a complainant must show that 'a discriminator' imposes or proposes to impose a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of (for example) the same sex as the complainant (subsection 5(2)).
The tests for indirect discrimination on the grounds of marital status, pregnancy and potential pregnancy are cast in the same terms as the test for indirect discrimination on the ground of sex.
Example of Indirect Discrimination
Indirect discrimination is by its nature very difficult to identify. There is no requirement to show that a person intended to impose a particular condition or requirement in order to discriminate against a group of people sharing a particular attribute.
Similarly, it is not a defence to a complaint to argue that there was no intention to discriminate. There are not yet any reported cases under the December 1995 amended definition to the test for indirect discrimination under the Act.
However, to illustrate the concept, the High Court case of Australian Iron and Steel v Banovic(1) is still relevant. This case concerned complaints under comparable provisions in the NSW anti-discrimination legislation that the threatened or actual retrenchment of women ironworkers constituted both direct and indirect discrimination. The Court found that the company's policy of retrenchment in accordance with the 'last on, first off' policy discriminated against women. To be precise, the majority of the Court identified as the 'offending' requirement or condition, the stipulation underlying the policy that is, employees must have commenced employment before a certain date.
The practice was found to be discriminatory because past discriminatory work practices specifically, delay in employing women in preference to men meant that a higher proportion of women than men would be retrenched.
The complaint of discrimination succeeded because the complainants were also able to show that the requirement was not reasonable. The 1995 amendments now place the onus of establishing the reasonableness of a condition or requirement on the respondent see below.
'Reasonableness' Now a Defence
Under the 'old test' a complainant also had to show that the requirement or condition in question was not reasonable in the circumstances. The Amendment Act removed this requirement. Under the new test (subsection 7B(1)) a defence of 'reasonableness' is available to a respondent to a claim of indirect discrimination. The Amendment Act specifically provides that the onus of establishing this defence is on the respondent (section 7C).
The Amendment Act also sets out some of the matters to be taken into account in deciding whether a condition, requirement or practice is reasonable. This is not intended to be an exhaustive list. For ease of reference, section 7B is set out in full:
'7B.(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.
'(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.'
Paragraph 7B(2)(a) incorporates considerations of the type or degree of disadvantage or detriment to members of the group to which the complainant belongs. For example, under paragraph (a) a relevant factor may be whether the condition complained of subjects persons, for example, of a particular sex, to ongoing disadvantage by entrenching the results of past discriminatory practices.
Assessing the feasibility of overcoming or mitigating the disadvantage to members of the affected group (as referred to in paragraph 7B(2)(b)) involves an examination of the purpose for which the condition, requirement or practice was imposed or proposed to be imposed, and an assessment of whether alternative means of a less discriminatory (or non discriminatory) nature are available to achieve the result sought. Factors such as cost, workplace planning, and business needs may be relevant considerations in determining the feasibility of overcoming or mitigating the disadvantage.
Under paragraph 7B(2)(c) the purpose or reason underlying the imposition, or proposal to impose, the condition, requirement or practice must be considered. This paragraph contemplates a balancing exercise for example, why is a particular condition being imposed, and what will be the disadvantage which will flow to, or is likely to flow to, members of the group to which the complainant belongs?
The situation is similar in some overseas jurisdictions such as the United Kingdom, where a respondent employer is required to show that a particular policy is 'justifiable', a test which is probably higher than 'reasonable'.
The Amendment Act replaced the definitions for direct and indirect pregnancy discrimination with a new section which incorporates a number of important changes to the tests in the definitions.
Discrimination on the Grounds of Pregnancy and Potential Pregnancy
The Act now specifically provides that it is unlawful to discriminate against a woman on the ground of her 'potential pregnancy'. 'Potential pregnancy' is now defined in section 4B of the Act as including a reference to:
'(a) the fact that the woman is or may be capable of bearing children; or
(b) the fact that the woman has expressed a desire to become pregnant; or
(c) the fact that the woman is likely, or is perceived as being likely, to become pregnant.'
The test for direct discrimination on the ground of pregnancy has now been amended to remove the requirement that a complainant also show that the less favourable treatment in question was not reasonable in the circumstances.
The new test for direct pregnancy and potential pregnancy discrimination in section 7 is as follows:
'(1) For the purposes of this Act, a person (the 'discriminator') discriminates against a woman (the 'aggrieved woman') on the ground of the aggrieved woman's pregnancy or potential pregnancy if, because of:
(a) the aggrieved woman's pregnancy or potential pregnancy; or
(b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or
(c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant;
the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.'
As indicated previously, the other major change relates to the test for indirect discrimination on thesegrounds (see the amended subsection 7(2) of the Act).
The Amendment Act makes it clear that it is unlawful under the Act for a person to discriminate against a woman on the ground of her 'potential pregnancy' as defined in section 4B. This is not to say that, prior to the Amendment Act, the Act did not cover, for example, discrimination against a woman based on a perception that she may have children or become pregnant. This sort of behaviour would arguably have come within the definition of discrimination on the ground of sex (subsection 5(1)). The amendment clarifies the situation by specifically proscribing discrimination on this ground.
An example of possible direct potential pregnancy discrimination in the employment context, where it occurs most commonly, follows:
An employer assumes that an employee or job applicant, either because of her sex, marital status or both, or some other reason, is likely to become pregnant. On the basis of this assumption the employer further assumes that the woman will be less reliable or dedicated to the job and so the employer may decide to limit her access to training or to promotion opportunities, or not to hire her, because she or he believes that it is not worth investing time and money on the woman if she will leave to have children.
Discrimination against a woman because of her capacity to become pregnant is explicitly recognised as sex discrimination in other jurisdictions.
Prior to the amendments, the test for direct pregnancy discrimination under the Act required the complainant to also establish that the less favourable treatment was not reasonable in the circumstances.
No Reasonableness Element in the Test for Direct Pregnancy Discrimination
The Amendment Act removed this reasonableness element from the test for direct pregnancy discrimination, bringing it into line with the tests under the Act for direct discrimination on the grounds of sex and marital status.
It also brings the Act into line with the anti-discrimination legislation of the States and Territories (other than Western Australia) which does not excuse direct pregnancy discrimination on the basis that it is 'reasonable' in the circumstances (although other exceptions in the anti-discrimination legislation of States and Territories may be relevant).
Similarly, a complainant alleging direct discrimination on the ground of potential pregnancy need not show that the less favourable treatment is not reasonable.
If a person believes that in the circumstances, it is reasonable or necessary to act in a way which may constitute unlawful discrimination on the grounds ofpregnancy or potential pregnancy, consideration should be given to making an application to the Human Rights and Equal Opportunity Commission for a temporary administrative exemption under section 44 of the Act.
Under this section, the Commission may grant an exemption from the operation of the legislation. The exemption may be granted subject to terms and conditions specified, and may not be granted for a period exceeding 5 years.
Combat-Related Duties Exemption
The Amendment Act removes the exemption relating to the deployment of women in the Defence Forces in positions involving the performance of 'combat-related' duties. This amendment brings the Act into line withcurrent Defence Forces' policy. The exemption relating to the deployment of women in positions involving the performance of combat duties remains.
The Amendment Act repealed section 33, the 'special measures' provision, and replaced it with another provision which is designed to do two things. Firstly, it provides that so-called 'special measures' are not discriminatory. Secondly, it makes clear that the section's protection is not limited to measures to ensure equality of opportunities. The focus has been expanded to encompass measures a purpose of which is to achieve substantive equality.
The new provision, which has been relocated from the exemptions Division of the Act to the definitions Division is as follows:
'7D.(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.'
This amendment clarifies that special measures taken to achieve substantive equality, sometimes referred to as de facto equality or equality in fact, are not discrimination for the purposes of the Act. Measures taken to achieve substantive equality include, but are not limited to, measures taken to achieve equality of opportunity, equality of treatment and equality of outcomes.
It was necessary to make this change in recognition of the fact that the previous section's focus on equal opportunities failed to take into account historical and structural barriers that impede women's utilisation of formal equal opportunities. The 'old' provision was based on an assumption that women and men are equally able to take advantage of formal equality, an assumption not supported by women's experience.
The new 'special measures' provision reflects the view that a narrow and formalistic approach to equality will not produce equality in fact and may entrench existing discrimination or create new discriminatory situations.
Both the repealed section 33 and the new section 7D envisage that a measure may be a special measure even if it is taken for more than one reason and even if the dominant or substantial reason for taking the measure is not to achieve substantive equality.
Although the 1995 amendments change the definition of a special measure under the Act, again, cases decided under the 'old' test illustrate what is contemplated by the section.
Example of a Special Measure
HREOC decided in Proudfoot Ors v ACT Board of Health Ors that the provision of a women's health centre was a 'special measure'. In coming to this conclusion, the President of HREOC stated that it was not necessary to show that the sole or dominant purpose of providing the service was to ensure equal opportunities (the construction in the old section 33 of the Act) in order to come within the special measures section.
The decision that provision of the service constituted a special measure was based on a consideration of the particular health needs women have, and their disadvantaged state. Mention was made of the distinctive health needs of women arising from particular circumstances for example, the need for appropriate services to treat women subjected to violence.
A special measure ceases to be protected by section 7D, and therefore ceases to be a special measure for the purposes of section 7D, if it continues after substantive equality between the relevant groups of people has been achieved.
Copies of the Sex Discrimination Amendment Act 1995 are available from Government Info Shops.
For further information please contact:
Annie McLean (06) 250 6676
Krysti Guest (06) 250 5846
For enquiries regarding supply of issues of the Briefing, change of address details etc, contact the Office of Legal Information and Publishing on Tel: (06) 250 5851 or Fax: (06) 250 5963.
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The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.