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Scutt, Jocelyn --- "Without precedent: Sexlgender discrimination in the High Court" [2003] AltLawJl 15; (2003) 28(2) Alternative Law Journal 74

Without precedent
Sex/gender discrimination in the High Court

Jocelynne A. Scutt[*]

Contemplating why sex/gender discrimination is treated differently from race discrimination.

Over the 30 years that discrimination legislation has been in force in Australia, issues of sex/gender discrimination have featured in only two cases before the High Court. Both cases concerned discrimination under state Acts. Over the same period, the Racial Discrimination Act 1975 (Cth) has been before the Court on many occasions, as has (although less frequently) the Disability Discrimination Act 1992 (Cth) and the disability and race/ethnicity provisions of state Acts. [1]

Discrimination against women is no less real.

Why, then, has this occurred? The reason cannot be that women are rarely discriminated against and therefore have little need for utilising the legislation or seeking the authority of the High Court -this runs against numerous reports and research studies that are far too many to list.[2] Nor is it, in this instance, the outcome of a male dominated court refusing leave on the basis of what it considers important or worthy; the fact is, no-one has sought leave to appeal to the High Court on a case arising directly under the Sex Discrimination Act 1984 (Cth).

In determining why this lack of precedent exists, it is helpful to look at other discrimination cases that have been the subject of decision by the High Court.

Sex/gender discrimination cases in the High Court - Wardley and Banovic

Deborah Wardley's was the first sex/gender discrimination case to be heard before the Victorian Equal Opportunity Board. Ms Wardley had applied for a trainee pilot position with Ansett. She was an experienced recreational pilot, with more than the requisite flight hours required for employment with a commercial airline as well as high marks in her formal pilot qualifications. She traversed the short-listing and interview process successfully, albeit having to handle questions as to her marital status, (potential) childbearing and plans for childcare. She, with others (all male) who had met the first level hurdle, was sent to Chandler & Macleod, psychologists, for standard testing. She passed, gaining marks in the highest percentile -but did not receive an offer from Ansett. A friend passed on news of her success in the testing and, when no letter of offer appeared, Ms Wardley resorted to the newly proclaimed Equal Opportunity Act 1977(Vic) to pursue a case for discrimination.

She was successful; the Board ordered Ansett to desist from any further discrimination against her, pay damages of$14,500 and $40.00 a day until she was employed, with her employment to commence no later than the next intake. Legal manoeuvrings eventuated and, having been ordered to do so, Ansett employed Ms Wardley. Nevertheless, they then sought to evade the decision by dismissing her. Ansett commenced proceedings in the Supreme Court of Victoria challenging the Equal Opportunity Act's application, and arguing that, as her unwilling employer, it had the power to enforce its wish to dismiss Ms Wardley on its own grounds -namely, that she was a woman. The matter was removed to the High Court pursuant to s.40 of the Judiciary Act 1903 (Cth).

A majority of the High Court upheld the Board's decision.[3] Ansett argued that, as it had an unfettered entitlement under the Airline Pilots Agreement (1978) to dismiss its pilots, the Equal Opportunity Act was inconsistent because it made it unlawful to dismiss a pilot on grounds of being female. Chief Justice Barwick and Justice Aicken (in a joint judgment), upheld Ansett's argument and found that the state Act had no operation because federal law covered the field. However, the majority (Stephen, Mason, Murphy and Wilson, JJ) said there was no 'absolute right' of dismissal. Justice Stephen stated:

The right which [the Agreement] confers is not one which is capable of exercise regardless of the unlawfulness under State Jaw of the ground for its exercise. On the contrary it is a right the nature of which is to be understood against the background to its operation which general laws of the land, whether State or federal in origin, provide. [at 246]

He held that both on the 'direct inconsistency' and 'cover the field' tests, the Equal Opportunity Act prevailed:

Concluding, as I have, that there is here no question of direct collision between Agreement and Act, there is, a fortiori, no such inconsistency arising under the doctrine of 'covering the field', and this very much for the reasons which I have stated in dealing with direct collision. Whatever field the Agreement may cover, the question of dismissal upon the discriminatory ground that the pilot is a woman is in my view no part of it. [at 253]

The case was heard by an all male bench, and argued by all male counsel. The absurdity of the proposition that women-can't-be-pilots and pilots-can't-be-women was noted by Justice Mason although he, fortunately, discounted it. 'I should acknowledge', he said, 'that there are provisions in the Award which refer to "wives" of pilots'. Why this acknowledgement? Because, this meant that 'pilot' and 'man' are synonymous: as no woman has a wife, the Agreement obviously confirmed that women are or are intended to be pilots' wives, not pilots. The antiquated notion that a pilot's spouse is necessarily female, hence pilots are necessarily male, was used to attempt to justify the legality of removing a competent woman from a job, and banning women from a profession.

Ten years later the High Court again considered this kind of discrimination. In Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 the High Court looked at a 'last on, first off' rule which operated so that women (proportionate to the whole workforce) would be more likely to lose their jobs. Chief Justice Brennan and Justice McHugh found nothing discriminatory in this rule. But Justices Deane, Dawson and Gaudron did, and the women won.

For years, women had been employed in the steel factory at Australian Iron and Steel (AIS) in the office, or at a keyboard or reception desk. For the few who made it into the steelworks, they were employed on different terms to the men. At the end of the 1980s, a group of 34 women decided they would no longer tolerate being robbed of income and the opportunity to train and utilise their steel-making skills. In Nadjovska and Ors v Australian Iron and Steel Pty Limited (1985) EOC #92-140 the New South Wales Equal Opportunity Tribunal found that AIS had discriminated against them in 'hiring and firing' on the ground of sex/gender. This discrimination existed throughout AIS's employment policies and practices, including the determination of whom to employ, the actual decisions to offer employment, and in relation to retrenchment. Women applying for jobs as steel workers were placed on a waiting list, some waiting more than three years before being employed. By contrast, men were employed in similar positions with little or no waiting time. Because women were discriminated against in hiring, the 'last on, first off rule discriminated against them in termination of employment.

Before the New South Wales Court of Appeal, AIS did not dispute that they discriminated against women when hiring workers. However, they argued that women were not discriminated against in relation to retrenchment and threat of retrenchment, and disputed discrimination on both the less favourable treatment and differential impact bases. The Court of Appeal accepted their argument as to 'less favourable treatment', upholding the appeal on 'direct discrimination', but sustained the finding of 'indirect discrimination' on the basis that the 'last on, first off' was a 'neutral rule with negative impact by reason of sex/gender'.

AIS statistics showed that over a three-year period (between June 1977 and April1980), 4231 male steelworkers were employed, compared with only 58 (1.35%) women. More women were employed from June 1980 until February 1981, when a downturn in the steel industry resulted in job losses. Prior to these retrenchments, the total workforce was 8208, of which 510 were female. Of the 34 complainants in Nadjovska, 14 were retrenched out of a group of 553 retrenched employees, comprising 32 females and 521 males.

In the High Court, the decision focused on how the Court should calculate the groups 'men' and 'women' or 'men workers' and 'women workers' to determine whether the 'last on, first off' rule impacted differentially on the women. This was the essential difference between the majority and the minority judgments. Justices Deane, Dawson and Gaudron found that past discrimination cannot be used to justify conduct that differentiates unfairly in its impact on women. The 'last on, first off' rule would not have been sex/gender discriminatory if women and men had been recruited on merit, not on sex/gender. However, as AIS had discriminated against women in past hiring policy, when an otherwise sex/gender neutral retrenchment rule was put into operation it would and did negatively affect women more than men, or proportionately more women than men, because women had not been employed on the same terms in the first place.

But then-after the High Court decided Banovic, nothing: no sexual harassment cases, no claims of victimisation, no breastfeeding, pregnancy, family responsibilities or plain and simple sex/gender discrimination cases have been to the High Court since. Yet the figures in the Anti-Discrimination and Equal Opportunity Commissions remain high, a reflection on the world outside the courtroom.

Race: property rights or human rights?

Meanwhile, the federal Racial Discrimination Act has often been the focus of High Court attention, starting in 1982 with Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168. John Koowarta of the Winychanam Group of Aurukun sought to purchase or lease through the Aboriginal Land Fund Commission land known as the Archer River Holding for grazing and associated purposes. The sale or lease was refused:

The Queensland Government does not view favourably proposals to acquire large areas of additional freehold or leasehold land for development by Aborigines or Aboriginal groups in isolation.

In the light of this policy the recent development whereby the Aboriginal Land Fund Commission sought to acquire by transfer Archer River Pastoral Holding was reported in detail to State Cabinet, whereupon Cabinet said in June 1976--

(1) That Cabinet's policy regarding Aboriginal reserve lands, as approved in Decision No. 17541 of 4 September
1972 remain unchanged.
(2) That in accordance with such policy and as it is considered the sufficient land in Queensland is already reserved and available for use and benefit of Aborigines, no consent be given to the transfer of Archer River Pastoral Holding No. 4785 to the Aboriginal Land Fund Commission. [at 177]

The fundamental question in this matter was whether the provisions of the Racial Discrimination Act were ultra vires. Chief Justice Gibbs and Justices Aickin and Wilson said 'yes'. Justices Stephen, Mason, Murphy and Brennan said 'no'. Mr Koowarta won. All the judges considered the issue of human rights and appeared to frame their arguments around this concept. Chief Justice Gibbs held that corporations could not be said to have 'human rights' hence the Queensland Government's refusal could not be classed as a breach of human rights under the Act, and they could not be bound by the Racial Discrimination Act. Further, he found that as it was the Aboriginal Land Fund Commission which sought to buy or lease the land, Mr Koowarta had no standing as an aggrieved person for it was not he who had been directly refused. The majority accepted that Mr Koowarta was legitimately before the Court as a plaintiff and that the human rights protected by the Racial Discrimination Act should be recognised. Further, they held that the Australian Parliament had the power (and responsibility) through the external affairs power to enact domestic legislation reflecting United Nations conventions and treaties entered into by the Australian Government.

Whatever commentary there is about human rights in High Court decisions on indigenous Australians and race discrimination the question invariably arises in the context of property. Even where reliant on human rights law (like the Racial Discrimination Act) the High Court is clearly looking at and being asked to decide on property rights in the formal and narrow meaning of that term: 'property'-property as in 'land'. The explanatory paragraph to Mabo demonstrates this. Chief Justice Mason and Justice McHugh (after stating that they agree with Justice Brennan's reasons) add:

In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial.Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown. [at 1]

The short head note to Mabo emphasises it too:

Aborigines- Constitutional Law- Real Property

No word of 'human' or 'rights' or 'human rights', nor of 'discrimination' or 'race discrimination' or 'discrimination against indigenous Australians'. And in Koowarta, despite the apparent emphasis on human rights, the headnote writer does not see fit to mention human rights as an essential element of the case: 'Constitutional Law (Cth)' is all that appears.[4]

This should not come as a surprise, as Australian law, based on British law, takes as its touchstone property rights, not human rights, and ever has it been so.

Why is it so?

In the United States, the explanation for race discrimination being considered differently from sex/gender discrimination was set out in the 1970s (before the appointment of women to the Supreme Court) in sex/gender terms. 'Race' was held by the Supreme Court to be a 'suspect category', meaning that where a distinction, exclusion, restriction or preference was found to operate, the onus rested on the party enforcing it to prove that it was not racially discriminatory. With sex/gender, however, the onus fell the other way-requiring the woman claiming discrimination to prove that the distinction, exclusion, restriction or preference was discriminatory on the basis of gender. On the streets and in women's conferences, the reason was recognised as obvious: Supreme Court judges went home to a woman at night, not to an African-American. The ability of Supreme Court judges to recognise breaches of human rights was limited, it was said, by their personal interest in maintaining the status quo between them and their wives.

When one considers the different approach in the United States between sex/gender and race discrimination it is no doubt fortunate for Australian women that the first case requiring the High Court to consider the constitutional validity of federal human rights laws related to the Racial Discrimination Act, rather than the Sex Discrimination Act 1984 (Cth). Even though the women won in both Banovic and Wardley, they did so pursuant to state legislation. That is, a finding by the High Court that the state laws were not invalid pursuant to s.l 09. What would the result have been if Wardley or Banovic and her colleagues were reliant on the constitutionality of federal human rights Acts? In each case, the numbers lined up so that had one judge alone been minded to find against Ms Wardley or against the Banovic team, women would have lost out. The decisions would have deprived women of the benefit of state equal opportunity and anti-discrimination laws, privileging antipathy towards women-at-work. Had one judge in the Wardley majority sided with his brothers in the opposing team, the numbers would have changed so as to place federal awards ignoring the industrial rights of women above state laws acknowledging women's entitlements to equal job rights. If the foreign affairs power and its constitutional scope vis-a-vis women’s rights had been in issue, that one judge may have changed sides.

In the 'women's rights' cases, the High Court was grappling with 'uppity women', women who believe they have a right to participate equally in employment opportunities and that sex/gender should not stand in their way or be used against them. In the racial discrimination cases the High Court is faced with questions they see as concerning property rights. Certainly, property rights can be seen as a human rights question, but this is not the way Australian "or British law has conceptualised them, and it is not the way the High Court ultimately sees them.[5]

Indigenous Australians are reliant on a High Court peopled by non-indigenous Australians. It took204 years for Australia to recognise legally the existence of indigenous Australians at the point of invasion, and 88 years for the High Court to recognise it. When this starkly obvious reality was acknowledged, however, it came not in the context of an issue of human rights, but framed as property rights. That is, it arrived framed as what is known and familiar to the legal system, and which in the end, however difficult, is about something in which lawyers are well schooled, and upon which judges have dwelt for their entire careers.

Australian women (indigenous and non-indigenous) have lived with a High Court populated by men for almost its entire history. The vast majority of indigenous and non-indigenous Australian women have lived and died without there being any female member of the bench at all. Australian women faced an all male (Wardley) or male dominated (Banovic) bench when sex/gender discrimination legislation was being interpreted. That in both instances the women won is no cause to be sanguine about the ability of the judiciary to uphold women's rights. Nor does it demonstrate that the legal system is accessible to women, or understands or supports the concept of a woman's right notto be discriminated against. But this is far from the only difficulty facing women in gaining the right to be human, and having this right 'approved' by judicial authority. The problem for women is getting to the High Court in the first place.

Women's economic, social and political position militates against women's rights cases under anti- discrimination and equal opportunity Acts going beyond the conciliation stage in Anti-Discrimination and Equal Opportunity Commissions. Too often, women settle for an 'apology' where their rights have been seriously abrogated, in circumstances where no man would simply accept an apology if confronted by the same level of indignity and denial of rights.

Indigenous Australians live mostly in poverty, and without any of the benefits and advantages accruing to non-indigenous Australians. However, in litigation they have two advantages which propel their cases into court and up to the High Court. One is white guilt. The other, the fact that the law of property is the foundation of our legal system. White guilt ensures that there is a bar table cluttered with barristers who have all the advantages of rich, middleclass white anglo-Australian men. Property law ensures that claims about the human rights of indigenous Australians get a hearing.

Women benefit from neither.

Without precedents established by the High Court sex/gender discrimination law remains without the benefit of the highest legal authority. In the absence of cases going 'all the way', the High Court remains uneducated in sex/gender discrimination law. This creates a serious gap in their understanding of the way in which this form of discrimination is founded and operates, meaning that when -if-sex/gender discrimination cases eventually arrive at the door of the court, they may be poorly served. This danger is not only real, but magnified, in circumstances where women's rights are going backwards, and the High Court again has no woman on it.

Discrimination law, and women, therefore face a conundrum: how to get cases into the High Court so that precedents may be set with the authority of the highest court, yet how to ensure that these precedents are founded in a proper knowledge and understanding of the meaning and effect of discrimination against women, so that a woman's right not to be discriminated against by sex/gender may be enhanced rather than diminished by High Court scrutiny.

[*] Jocelynne A. Scutt is a barrister and Anti-Discrimination Commissioner, Tasmania.


© 2003 Jocelynne Scutt (text)

© 2003 Jane Cafarella (cartoon)

[1] For example, Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349(disability); IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696 (disability); X v Commonwealth [1999] HCA 63 (2 December 1999)(disability); Viskauskas v Niland [1983] HCA 15; (1983) 153 CLR 280 (race/ethnicity); on 'age' discrimination, see for example Qantas Airways Ltd v Christie (1997) 152 ALR 365.

[2] The exemption granted by the Anti-Discrimination Commissioner to University of Tasmania Students Union for a 'Women's Officer' position on the Students Representative Council - AppEx 01/021 refers to much of the research and cites amongst other materials and matters comparative statistics for university academics and students (by faculty), male and female.

[3] Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237.

[4] In Mabo and Anor v The State of Queensland and Anor (1989) 166 CLR 186 it is 'Constitutional Law (Cth)'; in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 the 'catchwords' section is extensive, yet without any reference whatsoever to 'human rights' or 'Indigenous Australians rights' (or, better, 'deprivation of human rights' or 'deprivation of Indigenous Australians rights') which many, and particularly the Yorta Yorta, may find astonishing in light of the outcome.

[5] Justice Murphy recognised the intersection of property rights and human rights: Dorman v Rodgers [1982] HCA 25; (1982) 148 CLR 365.

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