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Sex Discrimination in Uncertain Times

Sex Discrimination in Uncertain Times

Edited by Margaret Thornton
Copyright Date: 2010
Published by: ANU Press
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  • Book Info
    Sex Discrimination in Uncertain Times
    Book Description:

    This collection of essays arose from a conference held to mark the silver anniversary of the Australian Sex Discrimination Act (1984). The collection has two aims: first; to honour the contributions of both the spirited individuals who valiantly fought for the enactment of the legislation against the odds, and those who championed the new law once it was passed; secondly, to present a stock-take of the Act within the changed socio-political environment of the 21st century. The contributors present clear-eyed appraisals of the legislation, in addition to considering new forms of legal regulation, such as Equality Act, and the significance of a Human Rights Act. The introduction of a proactive model, which would impose positive duties on organisations, is explored as an alternative to the existing individual complaint-based model of legislation. The contributors also pay attention to the international human rights framework, particularly the Convention on the Elimination of all Forms of Discrimination against Women and the UN Declaration on the Rights of Indigenous People. The essays are illuminated by recourse to a rich vein of historical and contemporary literature. Regard is also paid to the comparative experience of other jurisdictions, particularly the UK and Canada.

    eISBN: 978-1-921666-77-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)
  4. Contributors
    (pp. ix-xiv)
  5. Preface
    (pp. xv-xxiv)
  6. Part I: A Silver Anniversary

    • Opening Address I
      (pp. 3-10)
      Helen Watchirs

      We are here to honour the twenty-fifth anniversary of the Sex Discrimination Act 1984 (Cth) (SDA) in the place where the legislation laboured in debate and was born (although conception took place in many minds and hearts around the country). It is fitting that we have the mother/s and midwives here to celebrate and speak. Just as interesting as the legislation are the individual feminists who have applied it to real life—people who have been brave enough to complain to equal opportunity agencies when their rights have been breached, women’s groups who have consistently lobbied on important gender issues,...

    • Opening Address II
      (pp. 11-16)
      Susan Ryan

      It is reassuring to me as a former legislator—and one who copped more than a fair share of controversy—that the conference on which this collection is based is being held to mark the twenty-fifth anniversary of the Sex Discrimination Act 1984 (Cth) (SDA). To those who believe that it is the basic responsibility of Parliament to use its legislative powers to advance fairness and justice, the fact of this conference is reassuring in itself. Of the many hundreds, perhaps thousands of bills passed in the 13 years that I sat in the Senate, very few have attracted positive...

    • Opening Address III
      (pp. 17-22)
      Chris Ronalds

      When I look back now to matters that were so controversial in 1983–84, I note with a tinge of satisfaction/amusement/curiosity that most are matters that attract little or no controversy at all these days. Those colourful and controversial debates of the 1980s were instrumental in forming the ground on which so much important current legislation and freedoms for women have been built. It was a privilege to be engaged to work on issues that were truly ‘new ground’ and that would serve to support future generations of Australians. That is not to say also that there is no need...

  7. Part II: Then and Now

    • 1. The Sex Discrimination Act and its Rocky Rite of Passage
      (pp. 25-46)
      Margaret Thornton and Trish Luker

      The passage of the Sex Discrimination Act 1984 (Cth) (SDA) represents a high political moment in the history of gender relations in Australia. The seemingly protracted debates of 1983–84² were marked by a deep anxiety about sex roles, the patriarchal family and the wellbeing of children. The hysterical propaganda campaign and the fear engendered by the Bill were out of all proportion to its modest liberal intent that women be ‘let in’ to certain domains of public and quasi-public life, including employment, on the same terms as men.

      Reliance on the external affairs power (Constitution, s. 51 [xxix]) to...

    • 2. A Radical Prequel: Historicising the Concept of Gendered Law in Australia
      (pp. 47-74)
      Ann Genovese

      In considering how to approach historicising the concept of gendered law in Australia in this way, it is worth reflecting on the fact that it was not until the mid-1980s that gender was theorised, let alone operationalised, as a conceptual category in law, history or other disciplinary traditions. For historians, one of the most influential essays that argued for a theoretical approach to using gender in ways that went beyond descriptive or causal techniques was US historian and theorist Joan Wallach Scott’s ‘Gender: a useful category for historical analysis’ in the American Historical Review. Scott suggested ‘we must constantly ask...

    • 3. Women’s Work is Never Done: The Pursuit of Equality and the Commonwealth Sex Discrimination Act
      (pp. 75-92)
      Marian Sawer

      It is now 25 years since the SDA came into force. The Act had a long prehistory and this chapter touches on the decades spent by women advocating for gender equality guarantees and then protecting the Act from sometimes unfriendly governments.

      The modern history of demands for effective Commonwealth guarantees of gender equality starts in many ways with feminist campaigner Jessie Street. In 1942, when the Commonwealth Government began considering amendments to the Constitution to facilitate postwar reconstruction, Street wrote to Prime Minister John Curtin informing him that women in the Allied democracies were requesting constitutional change to ‘extend to...

    • 4. ‘To Demand Equality is to Lack Ambition’: Sex discrimination Legislation—Contexts and Contradictions
      (pp. 93-106)
      Susan Magarey

      Of course, it was an outstanding achievement: the Sex Discrimination Act passed in 1984, 25 years ago. That moment was one of exceptional confluence between the reforming goals of the Australian Labor Party (ALP) and the liberal commitment to equality between the sexes of the Australian women’s movement. Both were personified in Susan Ryan, a member of the cabinet in the first Labor government of Bob Hawke and a longstanding member of the Women’s Electoral Lobby (WEL).² This landmark legislation enjoyed enthusiastic support from all over Australia, from WEL and from a host of feminist organisations considerably older than WEL...

  8. Part III: Critiquing the SDA

    • 5. The Sex Discrimination Act at 25: Reflections on the Past, Present and Future
      (pp. 107-132)
      Beth Gaze

      The Commonwealth Sex Discrimination Act 1984 (SDA) turned 25 in August 2009. Has it come of age as a full-grown and effective piece of legislative regulation? Or is it instead a case of arrested development? Answering this question requires an evaluation of the effects of the SDA against a background of extensive social change over 25 years and persistent sex differentiation in our society. Analysing changes in large-scale social phenomena such as gender relations or workplace practices is challenging, and identifying operative causes of change from among the multitude of factors that affects these social institutions is even more difficult....

    • 6. The Sex Discrimination Act: Advancing Gender Equality and Decent Work?
      (pp. 133-152)
      Sara Charlesworth

      With the regulatory and institutional basis for regulation in the area of gender equality in employment the subject of various inquiries and of recent legislative reform, it is opportune not only to reflect on where we have been over the past 25 years but to imagine where we might go in the future.

      In her chapter, Beth Gaze highlights the limited impact of the Sex Discrimination Act 1984 (Cth) (SDA) on workforce practices. In this chapter, I focus more broadly on regulation in the area of paid employment. The persistence of gender inequality in employment is often seen as due...

    • 7. Reproducing Discrimination: Promoting the Equal Sharing of Caring Work in CEDAW, at the ILO and in the SDA
      (pp. 153-172)
      Caroline Lambert

      The profile of Australian workplaces has changed significantly in recent years as more women have entered the workforce and more women, and some men, have sought workplaces that better respond to their combined roles as workers and carers of family members.² How has the Sex Discrimination Act 1984 (Cth) (SDA) responded to caring work (commonly practised by women) and to what extent does the SDA reflect the international labour and human rights obligations that relate to this issue?

      This chapter is limited to a discussion of the SDA. I note nonetheless that anti-discrimination law is but one aspect of a...

  9. Part IV: Equivocations of Equality

    • 8. Equality Unmodified?
      (pp. 175-196)
      Reg Graycar and Jenny Morgan

      When we were asked to speak at the conference out of which this collection arises, it was suggested we speak on the proposal that Australia should consider the enactment of an ‘Equality Act’.² In doing so, we reflect on a previous proposal to introduce an Equality Act, and the central importance of defining what we mean by equality. We then go on to consider the one aspect of Australia’s equal opportunity laws that is explicitly gendered: the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (previously the Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth)). Towards the...

    • 9. And Which ‘Equality Act’ Would that Be?
      (pp. 197-234)
      Simon Rice

      In 2008, a review of the Sex Discrimination Act 1984 (Cth) (SDA) recommended an inquiry ‘to examine the merits of replacing the existing federal anti-discrimination acts with a single Equality Act’.² Submissions to the Senate Standing Committee on Legal and Constitutional Affairs canvassed different ways one can think of an ‘Equality Act’, and it is unclear what particular idea of an Equality Act the committee had in mind in its recommendation.³

      The idea of an Equality Act in Australia risks going the way of the idea of ‘access to justice’, where the term is a rallying cry and goal for...

    • 10. Rethinking the Sex Discrimination Act: Does Canada’s Experience Suggest we Should give our Judges a Greater Role?
      (pp. 235-260)
      Belinda Smith

      Seeking to understand how the Sex Discrimination Act 1984 (Cth) (SDA) has operated in the past 25 years and why it has not achieved all we might have wished of it, this contribution compares the Act with equivalent legislation in Canada and contrasts the approaches taken by each nation’s judiciary in interpreting this legislation. This comparison prompts the question: should Australian judges be given a greater role in determining what constitutes discrimination and what is meant by ‘equality’?

      At first glance, Canada’s anti-discrimination laws do not appear to differ greatly from Australia’s, apart from the important constitutional backdrop of Canada’s...

    • 11. Equality as a Basic Human Right: Choice and Responsibility
      (pp. 261-288)
      Archana Parashar

      The recent senate review of the Sex Discrimination Act 1984 (Cth) (SDA) became the occasion for asking whether the legislation is adequate for the task of eliminating discrimination and promoting gender equality.¹ The Senate, however, did not ask the initial question of how the aims of the SDA might be ascertained and how we would measure its effectiveness. These are recurring questions in legal scholarship and as yet remain unresolved. In this chapter, instead of focusing on measuring the effectiveness in quantitative terms, I propose to focus on the normative effect and the aim of anti-discrimination legislation.

      There is robust...

  10. Part V: Women’s Rights as Human Rights

    • 12. Raising Women Up: Analysing Australian Advocacy for Women’s Rights under International and Domestic Law
      (pp. 291-318)
      Susan Harris Rimmer

      In 2004, to mark the twentieth anniversary of the passage of the Sex Discrimination Act 1984 (Cth) (SDA), Elizabeth Evatt made a speech in Melbourne titled ‘Falling Short on Women’s Rights’.² She argued that Australian law was falling short of its obligations under the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)³ and other international instruments to provide equality rights and non-discrimination safeguards for women. A decade earlier, in her role as chairwoman of the CEDAW Committee, Evatt had set a test for success in this regard: ‘Ultimately we have to be judged not by...

    • 13. Can We Feminise Human Rights?
      (pp. 319-346)
      Margaret Thornton

      Human rights have become what Costas Douzinas terms ‘the lingua franca of the New Times’.² Animated by economic globalisation and the ‘War on Terror’, human rights have made a dramatic return to the world stage. In this chapter, I set out to explore the significance of human rights for Australian women against the backdrop of the Sex Discrimination Act 1984 (Cth) (SDA). The exploration is somewhat tentative because the Commonwealth has neither an entrenched bill of rights nor a statutory charter, although legislation was proposed by the National Human Rights Consultation Report (Brennan Report) in 2009.³ In addition to considering...

    • 14. Sex, Race and Questions of Aboriginality
      (pp. 347-368)
      Irene Watson and Sharon Venne

      Indigenous women of Australia suffer from multiple disadvantages linked to race and gender.¹ Indigenous identity also brings to the mix of disadvantage the experiences of a historic and continuing colonialism. Thornton’s chapter raises issues about the capacity of human rights laws and in particular the SDA to address the imbalance between the ‘feminine and authority’; in part, Thornton argues this imbalance is a result of the law’s individualised and ad-hoc complaint-based approach to anti-discrimination, which is also interdependent with the same authority that it is authorised by. The approach of Australian human rights laws is one-dimensional and incapable of addressing...

  11. Acronyms and abbreviations
    (pp. 369-372)
  12. Index
    (pp. 373-380)