Legal Practice Briefing No. 25

Number 25

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

Preamble

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).

Potential Pregnancy

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.

Special Measures

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

1 (1989)
168 CLR 165

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

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.

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