Updating the Sex Discrimination Act
The fight to get the Sex Discrimination Act (SDA) through federal parliament in the early 1980s marked the beginning of Australia’s original culture war, and it isn’t over yet.
A key element in the next phase will focus on making politicians and judges subject to that law in the same way as other Australians – something mistakenly taken for granted, until the traumatic revelations of gendered violence in Australian politics and the law during the past year revealed this was not the case.
Independent MP Zali Steggall tabled a private member’s bill on March 15, proposing that MPs and judges be drawn into the SDA’s remit. The Morrison government, in its response to the “Respect @ Work: National Inquiry into Sexual Harassment in Australian Workplaces” report earlier this month, announced it would make the change itself.
However, Prime Minister Scott Morrison’s poor record in following announcements through with action, combined with legislative drafting difficulties he flagged during his press conference about the report, have prompted pessimism.
Steggall welcomed Morrison’s decision, and said she was encouraged by some Coalition MPs’ support for the idea but is clear-eyed about its probable fate.
“This is a government that will only act on things when absolutely forced to by public opinion and circumstances, unless it’s core to their ideology,” Steggall told The Saturday Paper. “I will keep pestering. If I have to keep suspending standing orders to raise it, I will.”
The revelation that politicians and judges are not subject to the SDA dawned slowly on the public over the 10 months since the investigation of former High Court justice Dyson Heydon for the sexual harassment of six young female associates became public. This realisation was greatly accelerated by recent allegations against federal MPs and staffers of sexual harassment and rape.
The perception became widespread that judges and politicians are exempt from the SDA – an idea eliding easily from awareness of parliamentary and legal “privilege”, which gives politicians and judges immunity from some laws. Protection from defamation laws for MPs speaking in parliament and lawyers speaking in court is the best-known example.
The SDA does not, in fact, exempt politicians and judges. Rather, they slipped through the cracks in legislation largely built around employers and employees back when the law was conceived in the early 1980s.
Politicians and judges, in the normal sense of the law in Australia, are neither employers nor employees. Nor were they considered a problem when the original bill was drafted, a time when women could be legally sacked simply because of their sex, marital status or pregnancy.
This “lacuna” in the SDA can be easily fixed, according to Steggall, who took advice from the Law Council of Australia in drafting her private member’s bill.
Steggall’s bill proposes deletion of SDA clauses outlining the circumstances where sexual harassment is prohibited and replacing them with a “blanket prohibition” on sexual harassment. This would bring MPs and judges into the SDA net, both in terms of liability for, and protection from, sexual harassment.
It is an elegant drafting solution, inspired by the approach the Law Council used in its national action plan to reduce sexual harassment in the Australian legal profession, produced last year in the wake of the Heydon accusations and their ongoing shockwaves.
In light of this, the fact the prime minister has flagged potential legislative drafting problems in amending the SDA, problems that have already been surmounted by the Australian legal profession, is curious. It shows either that the government has not done its policy homework or, for ideological reasons, it chooses not to see the obvious way to make MPs and judges liable to, and also get the protections of, Australia’s foundational sex discrimination law.
For more than three decades, the SDA has been the bedrock of the drive for gender equity by and for Australian women.
While not sufficient in itself to achieve it, the act was a decisive leap forward from the situation in the early 1980s when job ads were divided into sections headed “Men and Boys” and “Women and Girls”. Australia had the most sex-segregated labour force in the industrialised world, and sexual harassment was a dreaded, routine fact of being a woman at work.
The SDA continues to be the foundational law upon which the gains it delivered are being consolidated and, as the proposed coverage of MPs and judges shows, extended.
Looking back 20 years after the bill became law, its author and champion, the late Labor senator and crusading feminist Susan Ryan, remarked on the SDA’s “capacity for constructive amendment” as a profound strength.
“As social and economic circumstances change, it may well be amended further to better meet the changing needs of women,” Ryan said, noting that “attempts to weaken it or reduce its scope” by opponents would continue, too.
Ryan played a long game to pull off this incredible achievement. She began the SDA from opposition with a private member’s bill in 1981, getting young Sydney lawyer Chris Ronalds to draft it with her.
“It was the first law in the world about sexual harassment, so that caused some problems,” Ronalds, now a senior counsel, recalls.
The private member’s bill was an achievement in and of itself. Drawing on deep involvement with the women’s movement and experience of Labor politics, Ryan crafted the policy, collaborated with Ronalds for the bill’s drafting and locked her party in behind it.
When the Hawke government was elected in 1983, Ryan was ready to press the button. Political wisdom saw the private member’s bill split in two, one embodying its sex discrimination element, with the other, even more controversial, affirmative action element later developed into a separate bill.
The reworked bill “turned out to be just the first step in what became a difficult legislative marathon”, according to Ryan, involving more hours of parliamentary debate than any previous bill had ever attracted.
Ryan endured an immense assault from conservative political forces, while simultaneously holding long and frequent negotiations to secure the bill’s passage through a hostile senate, which the Hawke government did not control.
Many concessions had to be made. “Some improved the bill,” Ryan later said, “others were agreed to for the sake of political compromise.” The SDA’s strong core, however, survived, despite “World War III” having broken out between Ryan and the bill’s foes, including the Women Who Want to be Women group.
The “4Ws”, as Ryan called them, and their ilk besieged the media, petitioned parliament, barraged MPs with objections sent on pink paper, and stirred churches to “curtail” Ryan, characterising her as “the Antichrist”.
“The gist of the opposition,” Ryan recalled in her memoir Catching the Waves: Life In and Out of Politics, was that the convention constitutionally underpinning the bill “was an instrument of the United Nations; the United Nations was dominated by Communists, especially Russians; Communists were dedicated to the destruction of the family through the provision of compulsory 24-hour-a-day child care”. As for their plans for her: “Susan Ryan, the weapon of this mass destruction, must be stopped.”
Outside Parliament House, those protesting against the bill blocked Commonwealth Avenue Bridge with a banner proclaiming, “STOP THE RYAN JUGGERNAUT”. Inside Parliament House, the longest filibuster in federal politics to date was led by Liberal senator Shirley Walters and conservative Tasmanian senator Brian Harradine, who took turns to intervene repeatedly at the committee stage, dragging out debate for months.
Gareth Evans, then attorney-general, “helped out with skilful amendments and persuasive speeches”, Ryan recalled, while less staunch Labor colleagues “grew sick of doing ministerial chamber duty, of defending the bill against grotesquely absurd claims by the filibusterers”.
These included claims that if the bill passed, truck drivers would be forced to drive across the Nullarbor Plain with female co-drivers, their marriages inevitably destroyed by the enforced proximity; that female posties would break their backs trying to start motorbikes; and that film and theatre directors would be forced to cast women in men’s roles.
The assault foreshadowed the later one on Labor prime minister Julia Gillard. Ryan embodied, she realised, “everything that conservative ideologues hated about feminism and Labor’s interventionist ideas”.
The abuse and misrepresentation got Ryan down. “My skin never grew thick enough,” she admitted. Nevertheless, she persisted. With Australian Democrats support, the bill passed in December 1983 and came into force the following year.
“Would I do it again?” Ryan later wondered. “I would. It’s probably the most useful thing I’ve done in my life.”
Susan Ryan’s death last year marked the passing of one of the great achievers of feminist and Labor politics in Australia. She would cast a gimlet eye on the successive gendered-violence revelations that have rocked Australia during the past year.
She would recognise the atmospheric evoked by philosopher Kate Manne in her recent book, Entitled: How Male Privilege Hurts Women: “Many people feel that men are entitled not just to be deemed innocent until proven guilty, but to be deemed innocent, period, regardless of their misdeeds.”
Like Ryan persisting in the herculean task of passing the SDA, women are not giving up on the fight to press on further – including, as Steggall is driving, drawing politicians and judges into the SDA’s ambit.
“Journalists are not letting it rest,” the independent MP says, and when parliament resumes in May, the presence of Andrew Laming, Christian Porter and Linda Reynolds will be divisive. “The issue will not go away.”
This article was first published in the print edition of The Saturday Paper on Apr 17, 2021 as "Sisters act".
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