Legal and Non-Legal Responses (HSC SSCE Legal Studies): Revision Notes

Legal and Non-Legal Responses

Legal responses

Legal responses to discrimination against women exist at both international and domestic levels. These include treaties, legislation, and government agencies designed to protect women's rights and promote equality.

International law

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

The primary international treaty addressing discrimination against women is CEDAW. This treaty was opened for signature in 1979 and entered into force in 1981.

CEDAW's preamble recognises that the UN Charter and Universal Declaration of Human Rights affirm all humans are born free and equal in dignity and rights. It acknowledges that states have responsibilities to ensure men and women enjoy equal economic, social, cultural, civil and political rights.

The treaty identifies that discrimination against women "hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity."

As a signatory country, Australia has obligations to ensure its laws and policies protect all women's rights and promote equality of opportunity.

Domestic law

Australia has implemented anti-discrimination legislation at both federal and state levels to protect women.

Understanding discrimination

Discrimination means treating someone unfairly because of a particular characteristic. When discrimination occurs on the basis of sex, it may include unfair treatment due to marital status or pregnancy. There are two main types:

Direct discrimination is a practice or policy that treats a person or group less favourably than another person or group in the same position, based on characteristics such as sex, race, national origin, age, or sexuality.

Direct discrimination is usually obvious and easier to identify. It involves clear, intentional unfair treatment.

Indirect discrimination refers to practices or policies that appear neutral and treat everyone the same, but actually have a disproportionate negative impact on a particular group.

Key legislation

Sex Discrimination Act 1984 (Cth)

This federal Act implemented some (but not all) provisions of CEDAW into Australian law.

Main aims:

• Eliminate discrimination based on sex, marital status or pregnancy in key areas including:
  • Employment
  • Education
  • Provision of goods, facilities and services
  • Accommodation and housing
  • Insurance
  • Superannuation
• Promote community respect for the principle of equality between men and women

Key provisions:

The Act makes it illegal to:

• Discriminate against someone based on sex, marital status or pregnancy
• Dismiss someone from employment based on family responsibilities
• Sexually harass someone

Sexual harassment is defined as any unwelcome sexual behaviour (such as sexual advances, suggestive comments, unwanted touching, written communication or gestures, particularly in the workplace) that makes a person feel humiliated or offended, where that reaction is reasonable in the circumstances.

Sexual harassment can occur when:

• A woman (or man) experiences unwelcome behaviour from others because of their gender
• Unwanted sexual advances or touching without consent occurs
• Gender-oriented jokes or suggestive comments are made

Case study: O'Callaghan v Loder [1984] EOC 92-023

Loder, the Commissioner for Main Roads, made sexual advances toward his employee, O'Callaghan. The NSW Equal Opportunity Tribunal acknowledged the power imbalance and sympathised with O'Callaghan. However, the tribunal ruled there is an obligation on employees to make it clear when an employer's conduct is unwelcome. Because O'Callaghan had not explicitly told Loder his behaviour was unwelcome, the tribunal was not satisfied that Loder was aware his conduct constituted sexual harassment. Therefore, he did not breach the law.

Complaints process:

Individuals with complaints under the Sex Discrimination Act can take action through the Australian Human Rights Commission (established under the Australian Human Rights Commission Act 1986). This body was formerly called the Human Rights and Equal Opportunity Commission (HREOC).

Process:

1. The Commission investigates the complaint
2. A conciliation conference is organised to resolve the matter with the other party
3. If conciliation fails, the complainant can apply to the Federal Magistrates Court or Federal Court

Anti-Discrimination Act 1977 (NSW)

This broad-based state legislation makes discrimination unlawful on multiple grounds including:

• Sex
• Race
• Marital status
• Disability
• Responsibility as a carer
• Sexuality
• Age

The Act establishes the Anti-Discrimination Board (part of the NSW Attorney General's Department) to oversee implementation. The Equal Opportunity Division of the NSW Administrative Decisions Tribunal hears discrimination complaints.

Complaints process:

1. Women who believe they have been discriminated against can complain to the Anti-Discrimination Board
2. The Board investigates and attempts to help parties reach a solution
3. If resolution fails, cases can be taken to the Administrative Law and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (established under the Civil and Administrative Tribunal Act 2013)
4. Complaints must generally be made within 12 months of the alleged incident and must be in writing

Workplace Gender Equality Act 2012 (Cth)

This Act promotes equal opportunity in the workplace, reflecting the right to fair access to jobs, career paths, training and equitable employment conditions.

Core principles of equal opportunity:

• Treating people with dignity and respect
• Making unbiased management decisions
• Ensuring equal access to all employment areas (recruitment, transfer, promotion, training, development, information access, management, supervision, conditions of employment)
• Selecting based on merit (the best person for the job)
• Recognising and respecting the cultural and social backgrounds of staff and customers
• Valuing diversity

Key requirements:

Organisations with 100 or more employees must develop and implement workplace programs to remove barriers women face when entering and advancing in the workplace. This applies to:

• Higher education institutions
• Private sector companies
• Non-profit or community organisations
• Private schools
• Unions

The Act establishes the Workplace Gender Equality Agency to oversee implementation.

Government agencies

Several government agencies at federal and state levels provide policy advice and programs on women's issues.

Office for Women (OfW)

This federal office is part of the Department of Prime Minister and Cabinet.

Key roles:

• Provide policy advice to the Minister for Women
• Ensure government and Cabinet decisions about legislation, policy and budgets consider their effects on women
• Administer programs to combat domestic violence and sexual assault
• Represent the Australian Government at national and international forums on women's issues
• Hold primary responsibility within government for Australia's obligations under CEDAW

Women NSW

This state-level office is part of the NSW Department of Health.

Key roles:

• Advise the state government on women's issues
• Work with government agencies and non-government organisations to develop programs and policies with positive outcomes for women
• Lead and manage government policy on preventing domestic and family violence

Non-legal responses

While legislation is crucial, non-legal responses also play an important role in advancing women's rights and keeping women's issues on the political agenda.

Trade unions

Historical context

In the early 20th century, trade unions opposed women's full workplace participation. Because women were paid less than men, unions feared employers would exploit this cheap labour and replace male workers.

Ongoing challenge: Major Australian unions have significantly lower percentages of women at executive level compared to general membership, indicating continued gender inequality even within advocacy organisations.

Paid parental leave campaign

The ACTU recently campaigned for paid maternity leave, arguing it is a fundamental human right and necessary to address discrimination against women who become parents. At least 157 countries have some form of paid leave, including 30 OECD member states.

Without paid maternity leave, women face:

• Lack of job security
• Income loss when taking time off after childbirth
• Pressure to return to work early, limiting time to bond with and breastfeed babies

Outcome: In 2011, the federal government introduced 18 weeks' paid parental leave for working women. The scheme extends to either parent who is the primary carer and earns less than $100,000 per year.

This decision was welcomed by parents, unions, and commentators who argue that policies making it easier for fathers to participate in childcare are necessary for women to have genuine choices. The scheme continues to operate and aims to become an accepted workplace norm over time.

Lobby groups

Non-government organisations (NGOs) throughout Australia promote women's issues independently of political parties.

Women's Electoral Lobby (WEL)

Founded in 1972, WEL is dedicated to "creating a society where women's participation and their ability to fulfil their potential are unrestricted, acknowledged and respected and where women and men share equally in society's responsibilities and rewards."

Key characteristics:

• Self-funded, non-profit organisation
• Not affiliated with any political party
• Independent advocacy focus

Activities:

• Lobbying governments
• Publishing research papers
• Participating in public debate
• Participating in legal cases where women's human rights are at issue
• Conducting awareness-raising campaigns