Dismantling sex discrimination: There’s still a long way to go

1 August, 1984, was a milestone for women’s equality in Australia. On that day the Sex Discrimination Act 1984 (Cth) (“SDA”) came into effect, and the office of Sex Discrimination Commissioner was established. Dame Quentin Bryce was the first person appointed to the role in 1988.

Spearheaded by senator Susan Ryan, the SDA made it unlawful to discriminate against women in the workplace, education, clubs, and the provision of goods, facilities and services on the basis of sex, marital status and pregnancy, implementing Australia’s international commitment to eliminating discrimination against women.

The SDA was also the first piece of legislation world-wide to use the term “sexual harassment”.

But, as with many of the steps we’ve taken towards equality, the SDA was met with political and community resistance. On the SDA’s 20th anniversary, the Hon. Susan Ryan AO recalled:

“Inside and outside parliament, opponents claimed that 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.”

Forty years later, the sky has not fallen down.

Politicians even extended the SDA. It now prohibits discrimination because of potential pregnancy, breastfeeding, and family responsibilities. In 2013, it was further updated to protect women from discrimination because of their gender identity, sexual orientation, and intersex status.

Read more: Women employees should expect more from the law when they’re pregnant

It’s lawful for organisations to do things such as advertise jobs for women, or have female-only gyms or scholarship programs for girls.

But the SDA was neglected in her 20s and 30s, even though we recognised that women were discouraged from bringing legal claims because the burden rested on them to “name, blame and claim” in what was typically a lengthy, expensive and risky court process.

Many women lost their case. If they won, their damages payments were low.

It’s no wonder women walk away from the legal system, particularly pregnant women and women returning to work, as my research with Adriana Orifici showed.

Our attention returned to the SDA when the Australian Human Rights Commission (AHRC) released the Respect@Work report in 2020. The report highlighted the ongoing prevalence of sexual harassment in the workplace, and the law’s inability to effectively address it.

The government improved the SDA by strengthening the prohibition of sexual harassment and, most significantly, by introducing a positive duty on employers and persons conducting a business, which requires them to take measures to eliminate sex discrimination, sexual harassment and victimisation.

The positive duty is the greatest change we’ve seen to tackling sex discrimination in the past 40 years.

Read more: Workplace sexual harassment laws have design flaws in need of improvement

Until now, the law was retrospective; sex discrimination was only addressed once a woman experienced it and she decided to do something about it by making a complaint to the AHRC, which assisted her to settle the complaint.

Settlements include compensation payment. Apologies, training and a reference aren’t as common. This process remains in place, but it’s now supplemented by the positive duty.

The positive duty is designed to address problems before they escalate and relationships sour. Employers are required to evaluate their workplace, identify potential issues, and do something about them. If they don’t comply with the duty, the AHRC can investigate them.

The positive duty takes the burden off the individual woman and places it on the employer, which is in the best position to predict how its policies and practices could impact upon equality.

This shift in thinking is anticipatory and proactive, a dramatic improvement on what’s come before.

The SDA’s greatest impact will continue to be at the individual level, by giving women the power to point to a law and say, “That behaviour is unlawful.”

But without the means to enforce that statement, the SDA cannot completely fulfil the hopes of the brave women who championed it.

Very few women have the tenacity and financial support to pursue a legal claim in court, preferring to settle or withdraw.

Lawyers I’ve interviewed over the years have told me about clients who have brought discrimination claims and won, only to be awarded damages that barely covered their legal fees.

Emerita Professor Margaret Thornton, Kieran Pender and Madeleine Castles recently analysed damages awarded in SDA claims, finding the average award for economic loss is $24,861.44, and $7825.09 for general damages. Of concern was their finding that 34% of the time, unsuccessful claimants were ordered to pay the other side’s legal costs.

As a lawyer I interviewed recently said:

“It takes a remarkable amount for a woman to stand up for herself and say, ‘Well, I’m just going to do it. I don’t care.’”

The Commonwealth parliament is now considering a bill that will introduce an “equal access” cost protection provision into discrimination law. This means that the person who brings the claim cannot be ordered to pay the other side’s costs unless they acted vexatiously or without reasonable cause, their behaviour caused the respondent to incur costs, or if the respondent is successful and doesn’t have a significant power or financial advantage over the complainant.

Changing the costs provision in this way would impact claims significantly. The change would apply not just to the SDA, but to federal laws prohibiting race, age and disability discrimination.

Like many women reaching their 40s, the SDA has entered a new phase. As is the case for women, our 40s is not a decade of rest. It’s a decade of change and renewal.

So while we should pause and reflect on the importance of this piece of legislation and acknowledge the tremendous contribution of the women who championed it, let’s not stop for long.

There’s more work to be done. I’d like to see changes to how claims are enforced. This could be in the form of giving the AHRC stronger investigative powers, and by enabling it to take claims on behalf of women.

We need increased funding for community legal centres, and a less formal hearing process akin to tribunals and the Fair Work Commission. I’m willing to be bold and say we could achieve this by the time the SDA turns 45.