The Sex Discrimination Act 1984

In August 1984 the Sex Discrimination Act (SDA) came into effect. A remarkable, if not unique aspect of this law is that twenty years on, its passage has been marked around the nation by forums and celebrations. From my personal participation in these events, I note that the SDA is widely regarded as a successful piece of law reform, a legal instrument that has maintained its relevance. Not many laws of the Commonwealth parliament during its century of existence have provoked, two decades later, such a level of recognition and support. Why does the SDA retain its efficacy and its high standing among activist women? Perhaps these outcomes are to be explained by the clarity and relevance of its political objectives, rather than by its legal character.

On 2 June 1983, on behalf of the Hawke government I introduced into the Senate a bill for an act to make illegal discrimination on the grounds of sex, marital status or pregnancy. The Bill also outlawed sexual harassment in the workplace, the first time in Australia such protection had been legislated. Its coverage extended to all areas of employment, education and services. There was little in the Bill that was entirely new. Several states, NSW, Victoria and South Australia already had sex discrimination legislation in place. The Commonwealth Bill built on state provisions, extended coverage and included the new prohibitions on sexual harassment. To make the Bill as strong and extensive as possible, the Government relied in constitutional terms on the Corporations power and the External Affairs power. In preparation for the use of the latter power the Hawke Government had ratified the United Nations Convention on the Elimination of all forms of Discrimination Against Women.

Twenty years on none of this seems remarkable. At the time, the politics surrounding the bill were explosive. From the first legislative step, the ratification of the UN convention, the initiative met with sustained, vociferous and irrational opposition from powerful sectors of the community. Parliament was besieged by thousands of petitions stating opposition to the Bill in the most colourful terms. Inside and outside parliament, opponents claimed the Bill would bring about the end of the family, ruin the economy, undermine the male labour force, and destroy Christianity and the Australian way of life. The Bill was described in Cold War terms as a Russian plot, designed to replace our sunny, god-fearing way of life with communist barbarisms and godlessness. Criticisms along these lines formed the basis of full-page advertisements in the major newspapers, and found their way onto banners at large rallies held to ‘stop the Ryan Juggernaut’. Talk back radio programs in country towns as well as our cities were clogged up for weeks on end with hysterical critics of the Bill. Some of the most ferocious critics were women.

It is instructive to note that this key initiative to improve opportunities for Australian women provoked more controversy than any of the much more radical measures taken in its first few months by the Hawke Government. As the Bill was being debated, the government floated the Australian dollar and deregulated the banking system. In such a turbulent and unfamiliar policy environment, why did the relatively moderate Sex Discrimination Bill cause such a storm? To answer this question, we should look at the dominant social values of the time.

In matters of the socially approved roles and legal rights of women, Australia at the beginning of the nineteen eighties, despite its fine democratic heritage in other respects, maintained a particularly conservative culture. Tackling this conservatism, and its consequent serious restrictions of economic and other rights for women had been the central focus of my parliamentary work since my election as Senator for the ACT in December 1975. At that time, and for many years subsequently, Australia had one of the most gender-segregated labour markets of any OECD country. Women were locked by discrimination into an employment and pay ghetto. Industrial jurisdictions had accepted the principle of equal pay, but the work ghetto, limited education and training, and the meagre provision of child care meant that women’s earnings were considerably lower – about two thirds – of men’s. In both the public and private sectors, working women were in almost all cases limited to support roles. Although the official marriage bar for women in the public service had been lifted a few years earlier, discriminatory attitudes and practices prevailed, as they did in the private sector. Most girls did not complete high school and were overtly discouraged from studying advanced maths and sciences. In universities, in relation to post graduate and research opportunities female students met systemic as well as individual discrimination. Consequently, in academia women had attained very few senior academic or administrative positions.

To tackle such unfair restrictions on women’s lives, and to get some reform momentum going, in 1981, while still in opposition I introduced a Private Member’s Bill. This was a model construction using every constitutional power possible to prevent discriminatory acts based on sex, marital status or pregnancy. As well as anti-discrimination complaint based machinery, it included affirmative action provisions. The latter, reflecting but not copying the US experience, required employers to establish active and systematic hiring, training and promotion policies for female employees. The Private Member’s initiative served a useful if limited educational function. It attracted some bi-partisan political support and locked the parliamentary Labor party into a commitment to legislate along these lines as soon as they formed government. It encouraged feminist organisations such as the Women’s Electoral Lobby to support Labor. What it failed to do was to bring conservative elements in parliament, the community and business along with it. When in 1983, just a couple months after we were elected to office, I was able on behalf of the Labor government to introduce the Sex Discrimination Bill, conservative elements had mobilised and were more intent than ever on preventing any change to the inferior position of women.

The Bill as introduced turned out to be just the first step in what became a difficult legislative marathon, involving more hours of debate than any preceding piece of legation had ever attracted, requiring the acceptance of numerous amendments and a substantial redrafting, with all of this activity surrounded by the black noise of protest and misrepresentation. Given the broad acceptance at that time in Australia and in first world countries generally of the principles of non-discrimination, the extent of the obstruction was surprising, particularly as the more contentious provisions of my 1981 Private Member’s Bill, the affirmative action measures had been deferred for a later Bill. In government, recognising the widespread public confusion about affirmative action, and the capacity for mischievous misrepresentation by opponents of the intention, we had decided to split the Bill into two parts. The first part, which became the Sex Discrimination Act 1984, covered the now familiar territory of prohibition of discrimination and provision of conciliation procedures. The affirmative action section was deferred. It was introduced as a separate bill in 1986, and then only after consideration of a twelve months pilot program involving 28 major public companies, the universities, representative women’s groups, the ACTU and members of the Opposition.

In 1983 I held lengthy and frequent negotiations with the Opposition and the Australian Democrats, and produced from these discussions a range of amendments. Some improved the Bill; others were agreed to for the sake of political compromise. A temporary exemption was given for the insurance and superannuation sectors. I regretted this step but accepted its necessity because of the actuarial complexities of removing sex discrimination from defined benefit superannuation schemes and life insurance products. Partial exemptions for church schools and areas of the Australian Defence Forces were given as political compromises, to get the Bill through the Senate. Despite the lengthy negotiations and unremitting criticism from opponents of equal opportunities for women, the Bill passed through the Senate and was gazetted and in operation by August 1984.

Since 1984/85, annual reports to parliament from successive Sex Discrimination Commissioners show the Act has provided extensive practical protection to women, mainly in employment matters, including protection from sexual harassment. At last count, since 1984 Commissioners had dealt with some 13000 complaints. This extensive practical use is the main explanation for the continuing public support for the Act. From the beginning, it worked and it continues to work. Since 1984, although Australian women have achieved much greater opportunities in school education, universities and the workforce, and the gender pay gap has lessened, sex discrimination continues. The Act continues to achieve its objectives. Because parliament has revisited and amended it, the Act has maintained its relevance as well as its efficacy.

From 1990, females in the Australian Defence Forces were allowed access to combat related roles, previously exempted. As combat related roles comprise some 43% of all ADF positions this amendment was important in opening up defence careers to women. Exemptions for superannuation were reduced to an actuarially required minimum. When award based superannuation was introduced in 1987, followed in 1992 by compulsory employer superannuation contributions, these measures applied equally to males and females. After a major parliamentary review of the Act produced the report Halfway to Equal in 1992, further amendments included the extension of the Act to federal industrial awards and stronger sexual harassment provisions. The current Sex Discrimination Commissioner has been effective in using the Act to promote the concept of paid maternity leave, highlighting the reality that in the absence of such paid leave, women who become mothers do not have equal opportunity in the workforce, and are thus victims of indirect discrimination.

Conservative elements have wished to amend the Act to remove its protections in specific cases. The Catholic Church, supported by the Commonwealth Attorney General sought a couple of years ago to change the Act to prevent single women from using in vitro fertilisation services. Such a restriction would have allowed discrimination on the grounds of marital status, and in the case of same sex female couples seeking assisted pregnancy, discrimination on gender grounds. This step failed. Recently the Commonwealth Education Minister announced agreement with the intention of a catholic schools system executive who wanted to offer male only teacher scholarships. This step did not proceed and other non-discriminatory means are being found to encourage males into the teaching profession.

The Act’s capacity for constructive amendment is a strength. As social and economic circumstances change it may well be amended further to better meet the changing needs of women. No doubt from those who disagree with the extent of equal opportunity now enjoyed by Australian women we will see more attempts to weaken it or reduce its scope. In my view however the Sex Discrimination Act, 20 years after it was legislated, has become a permanent part of Australia’s human rights machinery. Ironically, this Act that triggered so much obstruction and hostility at its inception has proved remarkably robust. Partly the robust character of the Act can be accounted for by its thorough technical preparation back in 1983, and earlier through the Private Member’s Bill. Partly too, its endurance reflects the unusual extent of negotiation and compromise the Government undertook to ensure not only its passage through the Senate but the genuine adoption of its overall intent by Liberal and Australian Democrat members of parliament.

My final observation is this. The Act coincided with a defining moment in Australia’s social development. In 1983 with the election of a popular reforming government, Australia was finally poised for progressive social change. Although the tempestuous Whitlam Government had started massive change, that administration was too short lived to complete the tasks. In 1983, those defenders of the status quo who wanted no social change, recognised their last opportunity to prevent progress, and they gave it all they had. The Sex Discrimination Bill became the emblematic action that if allowed to succeed would change Australian society forever. As it turned out, the Hawke and Keating governments had between them thirteen years to modernise Australia, and they did this in ways that cannot be unravelled. I doubt that even my greatest critics in 1984 would argue these days that we should return to the era when it was both legal and socially acceptable to sack women on the grounds of sex, marriage or pregnancy. While many injustices remain, social change for the better has happened, irrevocably. The Sex Discrimination Act contributed crucially to that change, and will continue to support greater justice for women in the future.

This article was written for the twentieth anniversary of the introduction the Sex Discrimination Act last year. It was published in the UNSW Law Review.