It's about Time — for a New Regulatory Approach to Equality
| Author | Belinda Smith |
| DOI | 10.22145/flr.36.2.1 |
| Published date | 01 June 2008 |
| Date | 01 June 2008 |
| Subject Matter | Article |
APPROACH TO EQUALITY
Belinda Smith*
I INTRODUCTION
In March 2007, the Human Rights and Equal Opportunity Commission ('HREOC')
concluded that 'it's about time for a new approach' to the problems faced by men and
women in respect of work and family responsibilities in Australia.1 Based on two years
of consultation, HREOC issued its final report, It's About Time: Women, Men, Work and
Family,2 noting that many Australians struggle to combine work and family and that
workers with family responsibilities experience significant discrimination and
inequality. HREOC concluded that the federal government could do more to address
the difficulties faced by workers trying to satisfy both their work and family
responsibilities and put forward a wide array of recommendations to this effect. Its
central recommendation was the enactment of new federal legislation to promote
cultural change through greater protection and support for workers with family
responsibilities. The Family Responsibilities and Carers' Rights Act3 would serve to
bolster the prohibition of discrimination on the basis of carers' responsibilities and
provide employees with a right to request flexible working arrangements.
While the proposal is welcome, there is a disjuncture in the report between the
conclusion that fundamental cultural change is needed in respect of work-family
norms and the legislative tool proposed, which is not well equipped to achieve cultural
change. The legislative recommendation is essentially an expansion of the existing anti-
discrimination law framework. This amounts to an acceptance by HREOC of the
existing regulatory model that features individual rights as the primary mechanism for
achieving equality. This approach relies upon victims standing up for their rights and
prompting social change through individual litigation and its subsequent ripple effect.
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*
University of Sydney. The author would like to thank Alexandra Wasiel for her excellent
research assistance and the anonymous referees for their helpful comments and
suggestions.
1 John von Doussa (President, Acting Sex Discrimination Commissioner and Commissioner
Responsible for Age Discrimination for the Human Rights and Equal Opportunity
Commission), 'It's About Time: Women, Men, Work and Family' (Speech delivered at the
It's About Time: Women, Men, Work and Family Final Paper Launch, Sydney, 7 March
2007).
2
Human Rights and Equal Opportunity Commission, It's About Time: Women, Men, Work and
Family — Final Paper (2007).
3
Ibid xvii.
118
Federal Law Review Volume
36
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It assumes that victims have the capacity to identify discrimination, that an adequate
norm will exist for the conduct to be understood as a legal wrong, and that the victims
have the time, security and resources to pursue litigation in the event of breach.
In accepting this approach HREOC's recommendation stands in contrast to the
findings of the report which stress that the dichotomisation of work and family, and
the construction of the ideal worker as being one unencumbered by family
responsibilities, is deeply entrenched as the cultural norm. Moreover, a central finding
of the inquiry is that workers with family responsibilities are extremely time poor and
thus not ideally placed to take on the additional job of reforming workplaces through
litigation. HREOC has made out a strong case for change, but then recommends a
weak legal tool for achieving it.
Around the world other governments have recognised that a rights or fault-based
approach to achieving equality is limited and needs to be supplemented with
regulatory mechanisms requiring action of those in positions to promote equality, not
only those who are victims of inequality.4 Drawing upon lessons from Northern
Ireland and Canada, in the past decade the United Kingdom has progressively
developed a more proactive regulatory approach to achieving equality and is currently
undertaking a review to consider furthering such developments. Leading the way at
home, the Victorian government has implemented more proactive measures5 and
further amendments of this kind may be on their way.6 As with other human rights
issues, the Australian government has fallen behind comparable nations in respect of
equality measures.7 In exploring ways to emerge from this status as human rights
laggard, we would do well to heed the lessons and warnings emerging from those who
have been more progressive in tackling the problems.
In this article, I explore the basis and nature of HREOC's legislative proposal,8 its
merits and limitations, and the assumptions that underpin it. In the final part I provide
some examples of alternative equality laws, such as those adopted in the UK, and draw
out some principles that we might use to guide Australia toward a more effective
regulatory response to inequality and work-family conflict.
II
INQUIRY, REPORT AND RECOMMENDATION
Using its education and awareness-raising powers,9 the HREOC consultation on work
and family built upon earlier inquiries into various aspects of discrimination and
inequality faced by women in the workplace, such as pregnancy discrimination10 and
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4 Paul Chaney and Teresa Rees, 'The Northern Ireland Section 75 Equality Duty: An
International Perspective' in Eithne McLaughlin and Neil Faris (eds), The Section 75 Equality
Duty — An Operational Review (2004) vol 2 Annex A.
5 Such as the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Equal
Opportunity Amendment (Family Responsibilities) Act 2008 (Vic), discussed below in Part III.
6 See State of Victoria, Department of Justice, Equal Opportunity Review Final Report: An
Equality Act for a Fairer Victoria (2008).
7
Chaney and Rees, above n 4.
8 For a general summary and review of the final paper, see K Lee Adams and Chris Geller,
'Work and Family: Seeking Solutions' (2007) 20 Australian Journal of Labour Law 312.
9
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 11, 13.
10 Human Rights and Equal Opportunity Commission, Pregnant and Productive: It's a Right
Not a Privilege to Work While Pregnant (1999).
2008
It's About Time — For A New Regulatory Approach to Equality 119
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sexual harassment.11 In 2002, HREOC conducted a major inquiry into paid maternity
leave, and issued a final report — A Time to Value: Proposal for a National Paid Maternity
Leave Scheme.12 The inquiry looked around the world and found that Australia was a
laggard in being one of only two nations in the Organisation for Economic Co-
operation and Development ('OECD') (along with the United States) that does not have
a national paid maternity leave scheme.13 In response, HREOC put forward a
comprehensive, well-considered and costed proposal to introduce a paid maternity
leave scheme that would have at least enabled Australia to meet the minimum
international standards.14
There is some evidence that the inquiry and report raised awareness and shifted
community expectations about paid maternity leave and this prompted some response
by employers.15 However, this (moderate) corporate response was not matched by
government. The recommendation for paid maternity leave was rejected and instead a
'Baby Bonus' was introduced granting a lump sum to parents in respect of all births.16
This was a welcome contribution to the expenses of a newborn, but the payment that
was not means tested or related to workforce participation failed to challenge the
family-unfriendliness of many workplaces.
By 2005, with no paid maternity leave scheme on the horizon,17 HREOC broadened
its focus to inquire into work and care generally, launching the consultation with a
discussion paper, Striking the Balance: Women, Men, Work and Family.18 The aim of this
inquiry was to
broaden the 'work and family debate' to better include men's role in family life; to include
forms of care other than child care (such as elder care and care for people with disability);
and to highlight the relationship between paid work and unpaid work.19
As a result of its inquiry, HREOC made a number of key findings20 demonstrating
the costs to women, men and society arising out of the gendered division of labour as
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11 Human Rights and Equal Opportunity Commission, A Bad Business: Review of Sexual
Harassment in Employment Complaints (2002).
12 Human Rights and Equal Opportunity Commission, A Time to Value: Proposal for a National
Paid Maternity Leave Scheme (2002).
13 Human Rights and Equal Opportunity Commission, Valuing Parenthood: Options for Paid
Maternity Leave — Interim Paper (2002) [4.1].
14 For a summary and analysis of the recommendation, see Belinda Smith, 'A Time to Value:
Proposal for a National Paid Maternity Leave Scheme' (2003) 16 Australian Journal of Labour
Law 226.
15 Sara Charlesworth, Contributions and Limitations of the Sex Discrimination Act at the
Workplace Level, National Equal Opportunities Network...
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