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Maternity leave & equal opportunity overboard

The priority that no longer rates

Anne Summers

Pru Goward must be wondering what it was she did. Not only has the Prime Minister derailed her paid maternity leave proposals; now his Attorney-General is trying to abolish her job.

A couple of weeks ago, John Howard signalled that next month's budget would not now make any provision for the work and family measures that, a few months ago, he said were a priority of his third term. With a war to pay for, apparently we can't afford even a pittance for working women wanting time out to become mothers.

A few days earlier, on the last day of the parliamentary sitting, Daryl Williams introduced legislation that, to quote its explanatory memorandum, "removes the position of Sex Discrimination Commissioner".

On the face of it, the Australian Human Rights Commission Legislation Bill 2003 has as its main function to curb the independence of the Human Rights and Equal Opportunity Commission (HREOC). The government is irritated that in recent years HREOC has intervened in court proceedings on behalf of women, refugees and people in detention, among others.

The new legislation abolishes HREOC and replaces it with a new body called the Human Rights Commission, which will need the permission of the Attorney-General if it is to intervene in any court proceedings. No prizes for guessing that the next time HREOC wants to go to the High Court in support of a single woman who wants access to IVF treatment, permission will be denied.

The five HREOC specialist commissioners (sex, race, disability, human rights and Aboriginal and Torres Strait Islander Social Justice) are to be replaced by three general commissioners whose function will be "education" and the "dissemination of information on human rights and assistance to business and the general community". A catchy new slogan, "Human rights - everyone's responsibility", epitomises what these changes are all about.

If it passes, this legislation would replace the HREOC function of hearing complaints under specific laws that outlaw stated acts or areas of discrimination, with a warm and fuzzy general education function to inform "Australians about human rights and discrimination, and helping them understand their responsibilities ... in respect of other people's human rights".

Will this new commission issue guidelines to help Australians respect the human rights of people in detention centres? I think not. Clearly the government wants to muzzle HREOC, which in turn has criticised the bill, saying it "significantly undermines the commission's independence". This would be unremarkable except for the fact that all the commissioners, including the president, Professor Alice Tay, are government appointees.

But there are several agendas at work here. The proposed legislation also imposes major - and so far unremarked upon - collateral damage on equality of opportunity for women. The very name change of the commission sums it up - Equal Opportunity is excised from the title of the new body.

The Sex Discrimination Act 1984 (SDA), landmark legislation of the Hawke government, outlaws discrimination in employment, education or in the provision of goods and services on the grounds of sex, marital status or pregnancy. It also has strong provisions against sexual harassment.

Since 1984 thousands of women have used the SDA to complain against discrimination. Last year, there were 399 complaints, most of them, according to HREOC's annual report, relating to employment; one-third of these concerned pregnancy discrimination.

The government has been trying to weaken the Sex Discrimination Act ever since the High Court's refusal to disallow a Federal Court decision that asserted the primacy of the Sex Discrimination Act (SDA) over a Victorian state law that excluded single women from receiving IVF treatment. HREOC intervened in this case, much to the annoyance of the government, which retaliated with the unprecedented action of assisting the Catholic Bishops Conference to argue against the SDA in the High Court.

Howard said on Melbourne radio on June 28 last year: "We want to change the Sex Discrimination Act so that if a state, as a number do at present, decides to restrict the IVF program to married or de facto heterosexual couples, it can do so." The trouble is that the only way to achieve this would be to eliminate the discrimination on the grounds of "marital status" provisions, a pivotal provision of the act. Legislation to restrict IVF treatment to married women has been introduced twice - and either lapsed or failed to pass. Such a law would deny heterosexual women in de facto relationships IVF access - not just lesbians, the government's real target - and hence it breaches the SDA.

The Human Rights Commission bill is a lateral move to make the SDA redundant. There will be little and, over time, no point whatsoever in complaining about employment discrimination to a commission that has no specialist powers or knowledge in the area. This point has been made by a former sex discrimination commissioner, Sue Walpole, in a submission to the Senate Legal and Constitutional Committee, which has been asked to report on community reaction to the bill by the end of May.

The new commission is being given expanded responsibilities, for age discrimination for instance, with fewer commissioners and no designated expertise. Women who have been sexually harassed, or have lost their jobs because they were pregnant, will have to take their chances before a commissioner who may or may not know anything about the subject. It won't be long before they stop complaining.

Which is presumably what the government wants. It has no commitment to equal opportunity in employment - and its interest in work and family issues turned out to be short-lived. No wonder Goward has recently issued a press release praising the Greens' parental leave policy. Whether she keeps her job now depends on Labor, the Democrats and the Greens lining up in the Senate to defeat the bill.

For the sake of preserving equal opportunity for women, we have to hope they do the right thing.


Anne Summers is a former chief advisor for women's issues to former Australian Prime Ministers' Bob Hawke and Paul Keating, and the author of several books, including the classic Damned Whores and God's Police: The Colonization of Women in Australia (Penguin) and Ducks on the Pond: An Autobiography 1945-1976 (Viking, 1999). Damned Whores was republished in March 2002 with new material, including a 'Time Line of Achievements for and by women in Australia 1788-2001'. Anne is a columnist for the Sydney Morning Herald, where this piece first appeared on 28 April 2003. The column has been reproduced with the kind permission of the author, who retains all © copyright privileges in the work, which is not to be reproduced without explicit permission. Image courtesy ICMI.


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