The Commonwealth Sex Discrimination Act:
Aspirations and Apprehensions
Professor Marian Sawer,
Political Science Program, Research School of Social Science, Australian
National University
Thank you to Commissioner Pru Goward for inviting me here
to be part of the 20th anniversary celebration of the Commonwealth Sex
Discrimination Act. The Act has been in good hands, despite difficult
times. In my paper I am going to discuss some of the pre-history of the
Sex Discrimination Act, and then some of the myths that have become attached
to it.
Australian women were very early in global terms to obtain
formal rights of political equality. This did not, however, bring an end
to sex-based discrimination in politics, let alone in other areas such
as employment and education. There were long campaigns to achieve specific
objectives such as equal opportunity to practice professions. Political
candidates were often quizzed by women's organisations as to their attitudes
towards equal opportunity issues. For example in 1913 the Women's Political
Association in Victoria presented federal candidates with a questionnaire
to rate their views on matters such as equal pay for women and equal opportunities
for women in the public service.
The demand for more general equality guarantees was somewhat
slower to emerge. It surfaces during the Second World War when women were
mobilising to have a voice in postwar reconstruction. In 1942, prominent
feminist Jessie Street wrote to the prime minister informing him that
women in the Allied democracies were requesting Constitutional change
"to extend to women all rights, status and opportunities enjoyed by men
with provision that any sex discrimination prescribed in laws or regulations
be invalid". [1] She asked the government
to prepare an amendment to the Constitution granting women equal economic,
political and social rights. The following year a gathering of some 90
women's organisations in Sydney endorsed Street's call for a Constitutional
equality guarantee. When the government finally put its proposals for
Constitutional change to referendum in 1944, however, no such guarantee
was included.
Demands for a general prohibition of sex discrimination
receded in salience during the Cold War being widely regarded as having
something to do with communism-an attitude we will find was still alive
in the 1980s. Meanwhile the 1960s brought the increased labour market
participation of women, the establishment of the Women's Bureau in the
federal government and the much delayed removal of the Commonwealth marriage
bar. Women public servants and women working in statutory bodies such
as the ABC had still been losing their permanency and their superannuation
on marriage, some 20 years after this ceased to be the case in the UK
and New Zealand. This was thanks to the stonewalling of Menzies with the
able assistance of the Australian Clerical Officers' Association (ACOA).
The 1970s saw the arrival of a new wave of the women's movement and the
creation of Women's Electoral Lobby (WEL), which made sex discrimination
a major campaign issue in 1972.
The many examples of gross discrimination in employment
in Australia were a gift to the articulate and increasingly confident
WEL women. Whatever compelled the federal secretariat of the Liberal Party
of Australia to state that a male graduate would be preferred when advertising
for a position of research officer in late 1972? [2]
Of course at this time, and right up to the passage of the Commonwealth
Sex Discrimination Act in 1984 it was standard for classified job advertisements
that appeared in the newspapers to be divided between those for men and
boys and those for women and girls.
From the vantage point of today it is hard to remember why
you had to be male to do jobs such 'loans officer', 'insurance investigator'
or even to be manager of a Uniting Church Conference Centre.
In November 1972 Senator Lionel Murphy, soon to be Attorney-General
announced that: 'The need to remove discrimination against women is obvious
and will have early priority from a Labor government.' [3]
Apart from re-opening the equal pay case on their second day in office,
the Whitlam government did move quickly to ratify ILO Convention 111 on
Discrimination in Employment and Occupation. The all-male government was
slower to move on sex discrimination legislation, however, and WEL lobbied
in vain in 1973 to have sex discrimination included in the ambit of the
Racial Discrimination Bill and in the abortive Human Rights Bill. In August
1975 the government did circulate a memorandum, on a 'Proposed Bill to
Prohibit Discrimination against Persons by Reason of their Sex or Marital
Status'. [4] By then, of course, it was too
late and the dismissal of the government in November meant that the proposed
Sex Discrimination Act did not eventuate.
In 1974 WEL had succeeded in getting the minimum wage extended
to some 300, 000 women receiving less than the male minimum. Women had
not been eligible for the minimum wage, which was supposed to have a 'family'
component. Edna Ryan's dramatic production of as yet-unreleased statistics
showing women were the sole breadwinners for 131 700 families was the
clincher in the Conciliation and Arbitration Commission. It is important
to remember these things in the context of the propaganda campaign of
the last two decades that has tried to depict equal opportunity as an
elite agenda or the preserve of middle-class women.
Progress on anti-discrimination legislation was made at
the State level with a Sex Discrimination Act enacted in South Australia
in 1975 and Equal Opportunity and Anti-Discrimination acts in Victoria
NSW respectively in 1977. While the Victorian Act was there in time for
Deborah Wardley, whom Ansett refused to employ as a pilot on the ground
of her sex, there was no legislation in States such as Queensland, where
the Mayor of Rockhampton had been adamant in pursuing his policy of sacking
married women from Council employment. [5]
At the Commonwealth level the dismissal of the Whitlam government
by no means brought an end to the project for sex discrimination legislation.
WEL and the UNAA Status of Women Committee were lobbying the new Fraser
government on the issue and the Minister with responsibility for Women's
Affairs, R.J.Ellicott, was persuaded of the case. He told the first meeting
of the newly appointed National Women's Advisory Council in late 1978
that the government was considering legislation to prohibit discrimination
on the grounds of sex and marital status. Convenor of the Council, Beryl
Beaurepaire, took up the proposal with alacrity and brought all her formidable
political skills to bear on the campaign. She organized a major conference
on anti-discrimination legislation in Melbourne in May 1979, intended
to prod the government into action. Liberal women such as Queensland Senator
Kathy Martin played important roles in the Melbourne conference but battle
lines were already beginning to emerge, with Tasmanian Senator Shirley
Walters opposing sex discrimination legislation along with Babette Francis
and Jackie Butler of the newly formed Women Who Want to be Women.
The Melbourne conference was strongly supported by WEL women,
who made up about a third of the participants and presented papers and
led workshops. Their recommendations won the support of the conference,
and included provisions for affirmative action and sanctions, and scope
to cover sexual preference as well as marital status, pregnancy and parenthood.
At its national conference in Adelaide earlier in the year WEL had adopted
an even more ambitious proposal, for a new Section 116A in the Constitution,
to prohibit discrimination on the grounds of sex.
Ellicott, however, was consistently frustrated by the Attorney-General
and by National Party cabinet colleagues in his attempts to advance proposals
for Commonwealth legislation. In late 1979 he tried to force the pace
by issuing, as Minister for the Capital Territory, a press release on
the introduction of a sex discrimination ordinance for the ACT (21 December
1979). This attempt to commit the government also foundered, despite supportive
action by the ACT House of Assembly.
The tripartite National and State Employment Discrimination
Committees (EDCs), established to honour Australia's ratification of ILO
111, were themselves actively lobbying against anti-discrimination legislation
by this time. Employer bodies approved of the EDCs, which were non-statutory
bodies on which business as well as unions were represented and which
had a purely hortatory role.
Beryl Beaurepaire continued her campaign, with an unprecedented
series of town hall meetings with women around Australia over Australia's
Plan of Action for the UN Decade of Women. A centre-piece of the Plan,
of which 50 000 copies were distributed, was legislation to provide guarantees
against 'discrimination on the grounds of sex, sexual preference and marital
status'. The process culminated with a national meeting in the Academy
of Science in Canberra in March 1980, with delegates whose election had
been overseen by the Australian Electoral Office. Thanks to the masterly
chairing of Beaurepaire, broad consensus was reached. Once again, however,
the Plan of Action was blocked by the National Party, and never received
government endorsement.
At the Mid-Decade Conference in Copenhagen Ellicott did
manage to sign the UN Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW). This was despite Women Who Want to be Women trying
physically to prevent the minister from signing. Ellicott and Andrew Peacock,
as Minister for Foreign Affairs, issued a joint statement saying that
signature of the Convention was an important indication of 'Australia's
policy of equality for women and the elimination of discrimination.' [6]
Unfortunately little further progress was made towards ratification before
the change of government.
Meanwhile, on the Opposition benches Senator Susan Ryan,
as Shadow Minister was also increasing the pressure and introduced her
Sex Discrimination Bill as a Private Senator's Bill in 1981. This was
a broad-ranging bill, drafted by long-time WEL member and barrister, Chris
Ronalds. It was to give rise to two major pieces of legislation which
Ronalds continued to advise on, the Commonwealth Sex Discrimination Act
of 1984 and the Affirmative Action (Equal Opportunity for Women) Act of
1986.
It also became a major plank in the Labor Party's election
policy, endorsed by representatives of some 26 national women's organisations
with whom the party consulted in 1981, most of whom had participated in
Beaurepaire's UN Decade of Women consultation process. The momentum built
up seemed unstoppable. In October 1982 the Coalition government finally
announced its intention to legislate, although only in relation to the
ACT and Commonwealth employment, and without undue haste.
With the election of the new Labor government in 1983. however,
the way seemed clear for action at last. A Sex Discrimination Bill modeled
on Chris Ronalds' original Bill, but without the latter's affirmative
action provisions[7] was introduced into parliament
in June 1983. CEDAW, which was to provide some of the Constitutional basis
for the Bill, was ratified in July. It obliged State's parties to promote
women's equal enjoyment of human rights and freedoms in all areas of life,
including education and employment. The High Court had confirmed in the
recent Koowarta case that the federal government was able to use its external
affairs power to legislate to meet obligations under international human
rights conventions.
At about this time all hell broke loose. The Queensland
co-ordinator of Women Who Want to be Women, Jackie Butler, who was also
Chair of the Council for a Free Australia, a far-right organisation, mounted
an extraordinary nation-wide campaign against ratification. This lasted
long after ratification had taken place and flowed seamlessly into a campaign
against what was called 'the Sex Bill'. A propaganda sheet, circulated
through church networks under the names of Butler, Dr A.Rendle-Short and
Mrs Robyn Sully claimed that changes were already being made to the Bible
to eliminate differences between masculine and feminine roles. Ratification
of CEDAW would also lead to a nation-wide network of crèches and childcare
centres, so that the state would have care and control of the child from
infancy. Australia would be placed under the control of foreign powers
and would no longer be free.
The propaganda sheet and the kind of letters it inspired,
was helpfully read into Hansard by Liberal South Australian Senator Baden
Teague in November 1983. The letters, typical of the flood of letters
received by federal members of parliament, expressed fears that ratification
would lead to the elimination of the 'Judaeo-Christian' family and to
the Bible becoming a banned book. [8] Earlier
in the same month Senator Shirley Walters had claimed in parliament that
ratification had already led to the headmistress of a Tasmanian school
removing the Bible from the school library and burning it. [9]
National Party Senator Ron Boswell stated confidently that 'The women
of Australia do not want legislation that is drafted by the public servants
of Mongolia.' [10] Like a number of other
Queensland politicians he believed the clamour for equality emanated from
the Soviet bloc countries. The idea that the equality of women was a Trojan
horse for communist subversion led to ASIO devoting resources to spying
on Women's Liberation groups in the 1970s.
Elaine Nile, of the Festival Light, took out newspaper ads
saying 'Stop the Ryan Juggernaut' and made arrangements for busloads of
supporters to come to Canberra to demonstrate against the Sex Bill outside
Parliament.
Supporters of the Bill were not sitting on their hands either.
Pamela Denoon, the National Co-ordinator of WEL, stitched together a coalition
of women's organisations from across the political spectrum to support
the Bill, ranging from the National Council of Women through to the Union
of Australian Women. In Parliament Susan Ryan was constantly on her feet
to defend the Bill and introduce the 53 amendments intended to placate
opponents. Apart from the spectres of communism and Bible-burning, there
was opposition to intrusion on the rights of States and the rights of
churches to discriminate.
A second Bill was introduced in late 1983 to incorporate
the changes. WEL made a last-minute save to ensure the new draft actually
included employer liability for sexual harassment. WEL also distributed
a practical Guide to the new Bill, prepared by Sydney WEL members including
June Williams, later to be Western Australian Equal Opportunity Commissioner.
Apart from action at the community level there was also
staunch support from Liberal parliamentarians such as Senator Kathy Martin,
and from Ian Macphee, who publicly denounced the 'hysterical and mischievous'
campaign against the Bill. [11] Australian
Democrat Senator Janine Haines was another eloquent supporter, as was
National Party member Tom McVeigh, who had ministerial responsibility
for the Office of the Status of Women immediately before the change of
government. He was to be one of only two National Party members to support
the Bill. The parliamentary supporters were duly acknowledged at the large
WEL celebration party held outside Parliament House on the day the Bill
finally passed on International Women's Day 1984. The parliamentary champions
of the Bill joined with members of women's groups in drinking champagne
and eating the purple, green and white cake in the shape of the women's
symbol.
L to R Pamela Denoon, Ian Macphee, Sen. Susan Ryan, celebrating passage
of SDA.
Perhaps this is the point at which to tackle some of the
myths about the Sex Discrimination Act. which have taken on a life of
their own and are reproduced in one source after another. The first is
the myth that that the parliamentary debate over the Sex Discrimination
Bills was 'the longest in the Senate's history up to that time'[12]
Of course this is nonsense in terms of the history of the Senate. But
even if we take the period from World War II until 1984 the debate on
the Sex Discrimination Bills was only the eleventh longest debate. The
Senate Table Office maintains a statistical record of hours spent in consideration
of Bills. While there were 17 hours of debate on the Sex Discrimination
Bills there were almost 70 hours on the two Communist Party Dissolution
Bills, almost 56 hours on the Commonwealth Bank Bills, 28 and a half hours
on the Family Law Bill and 27 hours on the Customs Amendment Bill (No
2) 1979.
Another myth which has received a wide airing is that having
been the foremost proponent of the Bill, the Women's Electoral Lobby then
attacked it on the day it passed through parliament. It is said that two
spokeswomen for WEL, an organisation whose 'long-standing top priority
had just been enacted', appeared on the 7.30 Report with Susan
Ryan and described the Sex Discrimination Act as 'useless, an insulting
token'. [13] As you can see from the image
of the WEL party thanking Susan Ryan and other parliamentary supporters
of the Sex Discrimination Act this again has no basis in reality.
It derives from a memory of a 7.30 Report segment
after the passage of the Affirmative Action Act two years later,
in which two young WEL spokeswomen said that while WEL welcomed the Act,
the lack of sanctions was a major weakness. This is the role of a Lobby,
to praise what has been done but explain how it does not go far enough.
The sanctions were finally introduced in 1992-no industry assistance or
government contracts for companies named for non-compliance with the Act.
Another myth frequently encountered is that 1980s feminists
had a women's rights-based agenda that did not take into account men's
needs for work and family rights. Here is the 'Joe Average' poster produced
by the Office of the Status of Women in 1983 to promote ILO Convention
156 on Equal Opportunities and Equal Treatment for Men and Women Workers
with Family Responsibilities.
Convention 156 was controversial simply because it did require
policies enabling men as well as women to combine family responsibilities
with paid work. It entailed family friendly work practices and conditions
that would enable men to take a more equal role in raising their children.
Although it was part of the Hawke government's election policy in 1983
there were many delays in ratifying it, on the ground of State objections.
It again became part of the Hawke government's election policy in 1990
after a lot of pushing by 'old-style' feminists. This time ratification
did occur and the Office of the Status of Women kicked off implementation
with the 'Sharing the Load' community education campaign. This included
the videos 'Another Tuesday Night' and 'Any Wednesday', which are brilliant
discussion starters, highly commended by the UN and worthy of rediscovery.
A Work and Family Unit was also established in the industrial relations
portfolio to continue policy development on conditions and practices that
enabled both parents to combine family responsibilities with paid work-a
unit abolished in 2003.
Meanwhile, to return to August 1984 and the first Sex Discrimination
Commissioner, Pam O'Neil, who had been a founding member of WEL Darwin.
Although critics claimed the Act would mainly be of benefit to middle-class
women, O'Neil's experience in the mid-1980s was that it was ordinary women
in traditional, relatively low-level women's occupations, in offices and
shops, who used the legislation to seek redress. Indeed the Act has probably
had its most wide-reaching impact on women's experience of the workplace.
All of us with experience of low-level jobs before 1984 know the kind
of sexual harassment and sexist putdowns of women employees that were
a normal part of that experience. A mock-up of a used tampon on the work-bench
of a new apprentice in the print-room at the ANU was one of the many examples
I encountered when developing the EEO program for the Australian National
University. One of the most important functions of the Sex Discrimination
Act has been to raise women's expectations that they will receive equal
treatment in the workforce.
The argument that equal opportunity for women is a middle
class or elite agenda is part of a broader campaign of denigration against
all supporters of human rights and equal opportunity. Concern for equal
opportunity is presented as part of the contempt displayed by elites for
the values of ordinary Australians. [14]
This discursive strategy emanates from America. It creates a populist
'Us and Them' divide between a so-called elite that wants to spend public
money on items such as ramps for the disabled and ordinary taxpayers who
just want to pay off their mortgage. Not only does this distract attention
from the very real social and economic inequalities that continue to exist
in our society but constructs a strangely feminised elite. The most active
supporters of equal opportunity and human rights have often been groups
such as teachers, librarians and social workers-quite different from the
elites we have been accustomed to, who did not even want to let women
into their clubs!
And let me finish with an image of just one of the new employment
opportunities opening up to women following the passage of the Sex Discrimination
Act.
Women have travelled a long way in a parliament which would
not even employ a woman for the job of Hansard reporter until 1969, despite
the shortage of men with short-hand skills. We cannot, however, rest on
our laurels. Twenty years after the passage of the Sex Discrimination
Act it would be timely to again review the effectiveness of our Commonwealth
sex discrimination and equal opportunity legislation, just as was done
to mark the fifth anniversary of the Act. The review initiated then, which
resulted in the Lavarch Report, Half Way to Equal, is well known
as a milestone in the evolution of the Act. Then as now there is much
to be learned from the innovations progressively introduced into equal
opportunity legislation in other jurisdictions around Australia-one of
the glories of federalism. A reference to the Senate Legal and Constitutional
Affairs Committee would be a very appropriate birthday present for the
Sex Discrimination Act.
Thank you all.
Endnotes
1. Heather Radi (ed.), Jessie Street,
Documents and Essays, Sydney, Women's Redress Press, 1990, pp.
129-130.
2. Anne Hooper, 'The Emergence of Contemporary Feminist
Groups in Australia: With special reference to the Women's Liberation
movement and the Women's Electoral Lobby in the ACT,' BA Hons, Political
Science, The Faculties, Australian National University, 1973, p. 14.
3. Jocelynne Scutt, 'Legislating for the Right to be Equal',
in Cora V. Baldock and Bettina Cass (eds) Women, Social Welfare and
the State, Sydney, Allen & Unwin, 1983; 1988, pp. 230-231.
4. In retrospect, the fact that the only Bill to be enacted
was the Racial Discrimination Act was perhaps a blessing in disguise;
it made an ideal test case before the High Court for the use of the external
affairs power as a Constitutional base for federal human rights legislation
(in Koowarta 1982). This meant that the Constitutionality of the use of
the external affairs power to enact human rights legislation was established
before the more controversial Sex Discrimination Act came along.
5. Eventually resolved in 1978 by the Conciliation and
Arbitration Commission using ILO 111 as a basis to vary the Municipal
Officers' Association to include a non-discrimination clause.
6. Australian Foreign Affairs Record, July 1980,
p. 240.
7. To give time for 'community education' on the meaning
of affirmative action, popularly believed to mean quotas for women in
employment and promotion, rather than the requirement that employers take
action to identify and remove barriers to equal opportunity.
8. Senator Baden Teague, Senate Hansard, 29 November 1983.
9. Senator Shirley Walters, Senate Hansard, 8 November
1983.
10. Senator Ron Boswell, Senate Hansard, 29 November
1983.
11. Ian Macphee, 'The Sex Discrimination Bill: A Liberal
View', Address to the NSW Division of the Liberal party, 17 September
1983. Macphee had become well-known for his actions in pursuit of equal
opportunity for women as Minister of Employment and Industrial Relations
in the final phase of the Fraser governmentn . In January 1983 he sent
away State treasurers and ministers for labour in town to collect their
share of the $200 million wage-pause fund , because their proposals mainly
consisted in creating jobs for men. Macphee told them to come back in
a month with proposals that would create an equal number of male and female
jobs.
12. Susan Ryan, Catching the Waves: Life in and out
of politics,Harper Collins, 1999, p.242. See also Anne Summers, Introduction
2nd revised edition of Damned Whores and God's Police, Penguin,
p. 17: 'The 1984 debate remains the longest in the history of the Australian
parliament'. (In the first ten year years of the federal parliament the
average time spent debating each Bill was 25 hours, considerably longer
than was devoted to the Sex Discrimination Bills.)
13. Ryan, Catching the Waves, p. 243.
14. For a full account of this discursive strategy and
how it has been promoted in Australia see Marian Sawer and Barry Hindess
(eds), Us and Them: Anti-Elitism in Australia, Perth, API Network,
2004.
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