Introduction
The issue of discrimination is drawing a lot of attention from all the stakeholders in the various sectors that have been affected. All over the world, the issue of discrimination is very pronounced and it is affecting many people; as a result, it has had an effect on the performance of the workers as well as the general work output in the organizations that have been affected. As Margaret Thornton puts it in her publication The Liberal Promise, 1990, there is a need to have a formal means of ensuring that there is equality as this is the basis upon which true Liberalism will be achieved. There have been various measures that have been taken in line with the law over time; the most important legislation can be considered to have been the Sexual Discrimination Act of 1984. This paper will examine the various legislations that have been formulated in a effort to ensure that equality is attained and that any form of gender or sex discrimination has been completely eliminated from the society.
The objectives of the legislation will be outlined and the extent to which these objectives have been attained will be identified; all this will be done so as to be in a position to determine whether there have been any positive aspects resulting from the formulation of these legislations to address the issue of discrimination. The analysis will also be aimed at determining whether the law adequately addresses all forms of discrimination and whether the laws may in a way have in retrospect contributed to an increase in the discrimination at the workplace instead of fighting this discrimination.
Legal Measures for Elimination of Discrimination
There have been various measures that have been put in place to address the issue of any form of discrimination against the persons that are involved. There are two main forms of discrimination that are known to occur regularly and these are related to the issue of sex and gender (Tenbensel, 1996). There have been various efforts that have been put in place to address the issue of sexual discrimination; in Australia, there has been the enactment of various legislations to ensure that the workplace is free of any form of discrimination. The greatest milestone to the achievement of this objective is considered to have been the formulation and enforcement of the sex discrimination act of the year 1984. This act was aimed at addressing various issues in relation to the issue of discrimination at the workplace; this discrimination can take place on the basis of two main issues, the sexual orientation of the individual as well as the gender.
Objectives of the Legislation
Gender Equality
In almost each and every society, the issue of gender equality occupies a central role to the making of a society that is characterized by both fairness and equality; the issue of gender equality was one of the key motivating factors for the enactment of the Sex Discrimination Act of the year 1984. This Act was aimed at ensuring that the issue of discrimination was completely eliminated, another key aspect in this Act was the elimination of sexual harassment in any form whatsoever. These measures were all aimed at ensuring that there was equality in all aspects and forms in the Australian community. This Act prevents any form of discrimination for the people on the basis of either sex, pregnancy, or their marriage status. Its ultimate aim is to give protection to the workers who may have any form of responsibilities to their families and ensure that any form of sexual harassment that may be likely to occur is avoided by all means (Hunt & Lateef, 2006).
This act gives the individuals who may feel aggrieved by any means a leeway to lodge complaints with the Australian Human Rights Commission; the role of the Australian Human Rights commission as outlined in this Act is to carry out various activities that are aimed at addressing the issue of gender equality; key among these activities is addressing the issue of discrimination, sexual harassment as well as any other conditions that may be perceived as creating a barrier to the achievement of the desired equality (UNDP, 2006). The other activities that the commission undertakes in relation to the issue of discrimination involves the issue of reviewing the existing laws, carrying out research activities, formulation of advice on the relevant policies and conducting education programs for the community.
In line with the promotion of the issue of gender equality, there are various issues that need to be addressed so as to eliminate this kind of discrimination; there is a wide believe that if these issues are given due attention then the issue of sex discrimination will be completely addressed and the gender equality will be hugely promoted in Australia. The issues that need to be given due attention includes the creation of a balance between paid work, the family and the responsibilities of caring for the needs of the family. For the women there is a need to ensure that their economic future is guaranteed and there are efforts to promote the participation of the women in leadership activities in line with the promotion of gender equality. There is also a need to shift focus on the prevention of violence against women and any form of sexual harassment that may be encountered; in line with these objectives, there is a need to carry out more integration to ensure that the national laws on gender equality are strengthened and easily monitored to ensure that all forms of discrimination are addressed (AusAID, 2002).
The Sex Discrimination Act of 1984 ensures that both men and women are treated equally at the workplace and that they are exposed to and given the same number f opportunities at the workplace. The main aim is to protect all the residents in Australia from any form of discrimination in the public life areas and these areas include the Employment sector, Education, in the housing and accommodation sector, sports, buying of goods and offering of the various services and the commonwealth laws and programs.
Sexual discrimination
Another form of discrimination that occurs in most of the cases and which needs to be clearly addressed is the issue of discrimination on the basis of sex. Sexual discrimination can occur on the basis of any of the following; a refusal to grant employment on the basis of sex, unfair dismissal, denial of promotion, a transfer request or any other work related benefits. The discrimination can also be on the basis of denial to access in opportunities to undergo training on the basis of sex or the terms of employment that are given to the various employees in the organization (Commonwealth Secretariat, 2005).
The act also clearly addresses the issues related to the women who are either pregnant or they are making a return from a maternity leave; under the Act the pregnant women still continue to work as the other employees in the organization. Any dismissal on the basis of being pregnant is considered to the a form of discrimination under the Sex Discrimination Act of 1984, there is an introduction of an unpaid parental leave for the workers who have worked for at least twelve months; plans are still underway to introduce a paid parental leave for the workers; with regards to a woman who is returning from a maternity leave, there are provisions to ensure that she gets back her position or is given a position that is as near as possible to the previous position that she had (Trubek, 1977).
Sexual Harassment
The Sex Discrimination Act of 1984 defines sexual harassment as any form of sexual behavior that may be regarded as inappropriate and which may offend a person or lead to humiliation. There are many forms of behavior that may constitute sexual harassment and these include; staring or any form of touch that may be considered to be inappropriate; any form of comments that may be considered to be suggestive, emails or messages that may be of an explicit nature, questions that may be deemed to interfere into one’s privacy, persistence in requests to go out on a date, sexual requests and advances, or displaying pictures in any form that may be considered to be of a sexual nature. Under the provisions of the sexual discrimination Act, a person who displays any behavior that is deemed to be sexually harassing in a nature will be held responsible for their behavior. It is also the duty of the employers to ensure that they have taken all the necessary steps to address the issues related to sexual harassment and prevent its occurrence at the workplace (Morgan, 1995).
Positive Aspects of the Legislation
The occurrence of sexual harassment in most of the cases takes place in relation to the young women who in most of the cases are faced with unwarranted sexual advances from the senior male colleagues especially at the workplace. It is the responsibility of the employers to take measures to address the issue of sexual harassment at the workplace; such steps include the formulation of a policy at the workplace to ensure that sexual harassment does not take place at the workplace, there should also be a well laid down procedure to ensure that all the complaints from the employees regarding sexual harassment at the workplace are addressed (Fredman, 1997). Finally, there should be integrated efforts to ensure that all the employees are well trained on how to identify sexual harassment at the workplace and the steps that are to be taken once any form of sexual harassment is identified at the workplace.
There are steps that have been laid down to ensure that any complaints that are lodged in relation to any kind of discrimination are addressed as fast as possible; as soon as a complaint is made there are various situations that can arise to resolve the complaint and these include giving an apology, in case of a job situation, one can be reinstated to a job, or a flexible work arrangement can be reached. The provision of any goods and services can also be done in a way that is considered to be non-discriminatory. If the organization has not taken the necessary measures to address the discrimination at the workplace, then there can be a formulation of policies to ensure that the necessary changes are made in the workplace t o address the shortcomings (Garner, 1995). There can also be an offer for financial compensation to address any complaints that have been made with regard to discrimination at the workplace.
The Sex and Age Discrimination Legislation Amendment Act, 2011
There have been concerns that have been raised to the effect that the Sex Discrimination Act of 1984 does not address all the forms of sex discrimination that are likely to occur. With this in mind there was an introduction of an amendment that took place on the 21st of June in 2011; this amendment was aimed at addressing the shortcomings that were deemed to exist in the previous Sex Act; it is however very important to note that the main aim of this amendment was to ensure that there is an achievement of gender equality in Australia (Morris, 1997). There are various amendments that are proposed in this new Act and these amendments include the fact that the men seem to have been neglected in the gender equality debate and therefore there is a proposal for changes to ensure that both men and women enjoy equal protection from any form of discrimination at the workplace. In terms of family responsibilities, this new Act prohibits any form of discrimination on either the male or female employees. The issue of sexual harassment either at the workplace or the schools has been advanced through the use of the new technological advancements and these have been addressed in the new Act (Gaze, 2010).
The new Act also aims at establishing a new possible form of discrimination that addresses the breast feeding mothers; this category will ensure that the breast feeding mothers do not face any form of discrimination at the workplace. With the enactment of these changes in the Sex Act, it will be possible to ensure that the Australia community is well protected against the occurrence of any form of discrimination at the workplace, school or any other forums in which discrimination on the basis of either sex or gender is likely to occur (Caprioli, 2003).
Limitations of the Sex Discrimination Act
It is important to note that all efforts have been made to ensure that all forms of discrimination are addressed in Australia; however, the issue of discrimination can take many forms. Achieving equality is a matter of considering all the possible aspects that may result to causing an imbalance in the achievement of equality in Australia; the issue of equality has been predominantly based on the discrimination in terms of gender and sex, however it is also very important to note that in view of this the issue of inequality may not have been adequately addressed. This is because there exists another form of discrimination that may be the result of an even greater form of inequality in Australia; this is a discrimination that is caused by the issue of age (MacKinnon, 1989). There have been numerous cases whereby individual have been denied basic rights simply on the basis of their age.
In order to realize the dream of achieving a society that is completely free of any form of discrimination in Australia, it is very important to ensure that all the possible causes of discrimination are clearly addressed and any possible shortcoming is adequately addressed and all the possible forms of discrimination and causes are effectively addressed (Finley, 1989). Discrimination based on age can occur in different forms in Australia, all the people despite the age i.e. whether young or old are suppose be given equal treatment and opportunities and not face any form of discrimination. Whether at work, in education or even during shopping, Australians of all ages should be given equal treatment; when a job is being offered or a training opportunity is up for grabs, age should not be used as a basis for discriminating the concerned persons. The same should also apply to situations that arise in the Education sector, the housing and accommodation sector, or even in the acquisition of goods and services (McCann, 2005).
However the law should also be very clear in situations whereby differential treatment may be allowed to take place; such treatment is allowed in the application of laws on taxation, social security or in situations whereby migration is being considered. This can also be allowed in some health programs, the law therefore needs to clearly define the application of the age and any differential treatment that may be allowed on the basis of age.
The law and systemic discrimination
It is important to consider the extent to which the law addresses all the issues of discrimination and whether all the issues that are related to discrimination in Australia are adequately addressed. However there is a feeling that though there are antidiscrimination laws, the law could be more effective in addressing the issue equality in the society by addressing systemic discrimination in the society (Wills, 2001). There are various forms of discrimination that exist due to the policies and practices that are entrenched in systems that have been put up to govern various institutions. This is due to the fact that these rules are used to govern whole groups of people and therefore there might not be a leeway for individuals to express their views. However, a better system can be incorporated in the Australia laws to ensure that systemic discrimination is addressed in its entirety (Rees, Lindsay & Rice, 2008).
A response to systemic discrimination will address all the issues related to all the forms of inequality and it will be able to ensure that the issue of discrimination does not occur in any form. The addressing of systemic discrimination will ensure that there will be fair and more inclusive working conditions in Australia (United Nations, 2005a).
Conclusion
There has been a formulation of rules in Australia to try and address the issue of gender and sex discrimination. There have been amendment to the Sex Discrimination Act 1984 to address all forms of discrimination in Australia and ensure that equality is achieved in all facets of the Australian community; however there is a need to expand the nature of the legislations to address the other forms of discrimination that may result to inequality in the community (Bottomley& Bronitt, 2006). Such laws may be aimed at addressing issues related to age as well as the issue of systemic discrimination; addressing all these will enhance equality in the Australian community.
References
AusAID 2002, Gender and development: GAD lessons and challenges for the Australian aid program, Commonwealth of Australia, Canberra.
Bottomley, S & Bronitt, S 2006, Law in context, 3rd edn, The Federation Press, Sydney, pp. 32-35.
Caprioli, M 2003, Gender equality and civil wars Report No. 27091 World Bank, Washington DC.
Commonwealth Secretariat, The Commonwealth plan for action for gender equality 2005–2015 London.
Finley, LM 1989, ‘Breaking women’s silence in law: the dilemma of the gendered nature of legal reasoning’, Notre Dame Law Review, vol. 64, pp. 886-910, pp. 886-897.
Fredman, S 1997, Women and the law. New York: Oxford University Press.
Garner, H 1995, The first stone: some questions about sex and power, Picador, Sydney, pp.1-18.
Gaze, B 2010, ‘The Sex Discrimination Act at 25: reflections on the past, present and future’, in Sex discrimination in uncertain times, ed, M Thornton, ANU E-Press.
Hunt, J and Lateef, S 2006, ‘Making gender mainstreaming a reality: Using gender action plans’ Development Bulletin No. 71, September 2006.
MacKinnon, CA 1989, ‘Sex equality: on difference and dominance’, Toward a feminist theory of the state, Harvard University Press, Cambridge, Mass; London.
McCann, D 2005, Sexual harassment at work: National and international responses, Geneva, Switzerland: International Labour Office.
Morgan, W 1995, ‘Queer law: Identity, culture, diversity, law’, Australasian Gay and Lesbian Law Journal 5.
Morris K, 1997, Sexual Justice: Democratic Citizenship and the Politics ofDesire, London/New York, Routledge.
Rees, N, Lindsay, K & Rice, S 2008, ‘The policy goals of Australian antidiscrimination law’, Australian anti-discrimination law: text, cases and materials, The Federation Press, Sydne
Tenbensel, T 1996, ‘International Human Rights Conventions and Australian Political Debates: Issues raised by the ‘Toonen Case’’, Australian Journal ofPolitical Science 31(1).
Thornton, M 1990, ‘The elusiveness of equality’, The liberal promise: antidiscrimination legislation in Australia, Oxford University Press, Sydney
Trubek, D 1977, ‘Complexity and Contradiction in the Legal Order: Balbus and the Challenge of Critical Social thought about Law’, Law and Society Review, Vol. 11, No. 3, p. 553.
United Nations 2005a, The Millennium Development Goals Report 2005, New York.
United Nations Development Programme (UNDP) 2006, Gender equality: Evaluation of gender mainstreaming Evaluation Office UNDP, New York.
Wills, S 2001, ‘The challenge of sexualities’, in Marian Sawer and Gianni Zappala (eds), Speaking for the People: Representation in Australian Politics, Melbourne, Melbourne University Press.