Effectiveness of Responses (HSC SSCE Legal Studies): Revision Notes

Effectiveness of Responses

Introduction

The legal system continuously adapts through parliamentary legislation and court decisions to reflect changing societal values. Over the past three decades, Australian women have witnessed significant legislative reforms addressing workplace and broader social inequalities. However, despite considerable progress, many areas still require ongoing attention and advocacy to achieve genuine equality.

Evaluating the effectiveness of legal responses requires examining both international obligations under treaties like CEDAW and domestic mechanisms such as anti-discrimination legislation. This assessment considers how responsive the law has been regarding discrimination, workplace equality, pay equity, gender segregation, sexual harassment, and childcare provisions.

International responses to women's disadvantage

CEDAW and global standards

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) represented a landmark achievement in establishing international standards for women's rights. The treaty obligates signatory nations to commit to ending discrimination against women and highlights issues that were previously treated as isolated domestic concerns.

Since CEDAW's adoption, 179 countries have ratified the convention and implemented laws consistent with its provisions. This has resulted in tangible improvements globally:

• Millions more girls now receive primary education
• Millions of women have gained access to credit facilities and loans
• Property ownership and inheritance rights have been extended to women in numerous countries
• Women's issues have been firmly established on the global agenda with systematic monitoring

Limitations of international enforcement

Despite these achievements, CEDAW faces significant enforcement challenges. Nations maintain sovereignty over their treaty obligations and typically act from economic or political self-interest when determining compliance. Notably, CEDAW ranks among the most frequently ignored international treaties.

These limitations help explain why serious violations of women's rights persist globally:

• At least 4 million women and girls are sold into sex slavery annually
• Approximately 25% of all women experience domestic violence
• Up to 130 million women have undergone genital mutilation
• Two-thirds of illiterate adults worldwide are women, reflecting unequal educational opportunities especially in developing nations
• Women are four times more likely than men to contract HIV/AIDS
• Up to 130 million women die from AIDS-related illness each year

Australia's compliance with CEDAW

Upon ratifying CEDAW, the Australian Government entered two significant reservations. The first concerned paid maternity leave, which Australia has now implemented, thereby fulfilling this obligation. The second reservation stated that Australia did not accept the convention's application where it would require changing Defence Force policies excluding women from combat duties.

While women now serve in combat roles within the Australian Defence Force, structural and cultural discrimination remains deeply embedded. The 2012 Treatment of Women in the Australian Defence Force review revealed that one in four women in the defence forces had experienced sexual harassment. This demonstrates that eliminating entrenched cultural attitudes requires sustained effort beyond legislative change alone.

The optional protocol

An optional protocol is an addendum to a treaty, agreed by parties at a later date, to create enforcement provisions or interpret the treaty considering subsequent developments. The UN General Assembly approved an optional protocol for CEDAW to strengthen enforcement mechanisms, similar to those existing for other human rights instruments.

The optional protocol does not create additional rights but aims to improve enforceability of existing provisions. It enables individuals and groups to lodge direct complaints with the CEDAW committee about alleged treaty breaches. Australia signed the optional protocol in 2008, signalling its commitment to the international community. The Australian Human Rights Commission argued that signing the protocol would incentivise correction of deficiencies in domestic laws, as individuals could complain directly to the committee, creating additional pressure on the Australian Government.

Domestic responses: Anti-discrimination legislation

Overview and accessibility

State and federal anti-discrimination Acts provide extensive protection for women experiencing workplace discrimination. Few legal restrictions now limit what work women can undertake, largely due to anti-discrimination law. Women have entered the workforce in unprecedented numbers.

However, legislative effectiveness remains constrained by several factors:

• Lack of knowledge about legal rights
• Reluctance to exercise rights due to fear of dismissal
• Failure to recognise discriminatory situations
• Unawareness that legal protections exist

The Sex Discrimination Act 1984 (Cth)

The Sex Discrimination Act 1984 (Cth) serves as Australia's primary domestic mechanism for addressing gender discrimination. This legislation has evolved significantly since its introduction, reflecting changing social values and addressing gaps identified through experience.

Achievements and strengths

The Act has achieved notable successes in eliminating overt discrimination. Most blatant forms of discrimination have disappeared due to complaints lodged against employers and the educative effect of the legislation itself. The Act has enabled important legal victories, such as a 1994 case where a woman received $160,000 after losing her career and partnership position at a law firm. This represented the largest award under the Act at that time, though critics argued this amount inadequately compensated for a lost career.

Sexual harassment provisions have proven particularly effective. The Act requires complainants only to demonstrate that unacceptable behaviour occurred, without needing to prove discriminatory intent. To establish sexual harassment, a complainant need only show they 'reasonably' felt offended, humiliated, or intimidated by the conduct.

Limitations and weaknesses

Despite its achievements, the Act faces several significant limitations that reduce its effectiveness:

Hostile work environments: Even when complainants win cases and receive damages, they often must return to hostile work environments. The economic and emotional costs of pursuing complaints can prove extensive. The Australian Human Rights Commission estimates that over two-thirds of those making complaints subsequently leave their employment. This staff turnover represents a poor use of human resources and reflects residual lack of respect for female colleagues, as most complainants are women.

Difficulty proving discrimination: Demonstrating that an employer or other person has discriminated can prove difficult and often impossible. Discrimination today typically manifests in subtle and covert forms rather than blatant practices. These subtle forms generally involve systematic practices of disadvantage.

Gaps in coverage: Critical assessments have identified specific gaps in the legislation. The Australian Human Rights Commission's 1999 report Pregnant and Productive argued that working while pregnant constitutes a right, not a privilege, and identified gaps in federal anti-discrimination legislation coverage regarding pregnancy discrimination.

Intersectionality issues: The Act fails to adequately account for how gender combines with other personal characteristics (such as race, disability, or sexuality) to create different forms of disadvantage. Discrimination does not affect all women identically regardless of their individual attributes.

Key amendments to strengthen the Act

The legislation has evolved through several important amendments:

1992 amendments:

• Banned discrimination based on a person's spouse's occupation or identity
• Removed 'reasonableness' as a defence for direct discrimination on pregnancy grounds

1994 amendments:

• Extended protection scope
• Simplified the definition of 'indirect discrimination'
• Reduced the number of exemptions under the Act, including those relating to superannuation and insurance

Strengthened sexual harassment provisions:

• Clarified that complainants need only show unacceptable behaviour occurred
• Established that the complainant's reasonable perception of feeling offended, humiliated, or intimidated is sufficient

Indirect discrimination provisions: The onus of proof in indirect discrimination cases now falls on employers to demonstrate why allegedly discriminatory systems and policies are reasonable and necessary.

Anti-discrimination versus equal opportunity approaches

An important distinction exists between anti-discrimination and equal opportunity legislation. Anti-discrimination legislation, such as the Sex Discrimination Act, operates on a complaint-based system where individuals must lodge formal complaints about discriminatory treatment. This reactive approach addresses individual instances but may not tackle underlying systemic issues.

In contrast, the Workplace Gender Equality Act 2012 (Cth) takes a systemic approach based on introducing programs to eliminate discrimination at organisational levels. However, this Act has not significantly improved women's representation in senior management and boards of Australia's top 200 companies. While some workplaces have successfully implemented equality of opportunity programs, structural and cultural impediments to workplace equality for women continue proving difficult to overcome.

Ongoing challenges and effectiveness assessment

Gender segregation in the workforce

Gender segregation refers to the separation of people according to their gender in employment contexts. Despite legislative protections, occupational segregation persists, with women concentrated in certain industries and roles, typically those offering lower pay and fewer advancement opportunities.

Representation in leadership

Statistics from the 2010 Gender Equality Blueprint published by the Australian Human Rights Commission illustrate persistent inequality:

The role of cultural change

Legal mechanisms alone cannot achieve full equality. As noted in the conclusion section of the source material, it is impossible to legislate attitudes. Firmly held beliefs prove difficult to change through law alone. Improvement of women's rights and status will occur gradually across generations, making educative programs critically important.

Economic and social imperatives

As a nation, Australia cannot afford to disenfranchise 50% of its population. Creating a more just and fairer society benefits everyone, not only women. Maximising human potential and ensuring all citizens can contribute fully to social and economic life serves the national interest.

Exam guidance

When evaluating the effectiveness of responses to women's disadvantage, consider:

Remember!