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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
AUSTRALIAN GOVERNMENT BOARDS (GENDER BALANCED
REPRESENTATION) BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of Senators Xenophon, Lambie, Lazarus and Waters)
AUSTRALIAN GOVERNMENT BOARDS (GENDER BALANCED REPRESENTATION)
BILL 2015
OUTLINE
This Bill seeks to implement existing Government policy in relation to gender-balanced
representation on Government boards. The existing policy, introduced by the Gillard Labor
Government in 2010 and maintained under the current Government, provides for a gender
diversity target of 40 per cent men on Government boards, 40 per cent women, and 20 per
cent to be made up of either gender. This Bill seeks to move from the current aspirational
target to a positive obligation that will apply in relation to each appointment to a Government
board.
This Bill also replicates the existing reporting requirements for Government portfolios, under
which they are required to provide statistical information to the Office for Women for the
purpose of publishing the Gender Balance on Australian Government Boards Report.
Currently, the report is consolidated and published by the Department of Prime Minister and
Cabinet as the portfolio under which the Office for Women sits.
The Bill requires Commonwealth officials making appointments to Government boards to
ensure that each board is made up of at least 40 per cent men and at least 40 per cent women.
It also requires each portfolio department to prepare a report each financial year, setting out
the gender composition of each Government board within that portfolio. Further, the Minister
for Women must then publish that information in a consolidated report, to be tabled in
Parliament.
NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1 - Short title
This clause is a formal provision and specifies that the Bill, once enacted, may be cited as the
Australian Government Boards (Gender Balanced Representation) Act 2015.
Clause 2 - Commencement
This clause provides for the commencement of the Bill on the day after the Bill receives
Royal Assent.
Clause 3 - Simplified outline
This clause provides for a simplified outline of the Act. The simplified outline is not intended
to be comprehensive, but is included to assist readers to understand the substantive
provisions. It is intended that readers should rely on the substantive provisions.
Clause 4 - Definitions
This clause provides for specific definitions in the context of the Bill.
Australia is defined to include the external territories when used in a geographical sense.
board member means a member of any Government board, including the chair of the board
(if any).
Cabinet includes a committee of the Cabinet.
Government appointee refers to a person who is appointed to a Government board by a
Government appointer.
Government appointer refers to the Governor-General, the Cabinet, a Commonwealth
Minister, and a Secretary of a Department of State, to the extent that the person or body is
responsible for appointing an individual to a Government board. The person or body does not
have to have sole responsibility for the appointment to be considered a Government appointer
for the purposes of the Bill.
Government board refers to a Commonwealth entity under the Public Governance,
Performance and Accountability Act 2013; a Ministerial advisory committee; a review
committee where the appointments are made entirely by a Minister or the Cabinet; or a
Commonwealth statutory authority. This definition is consistent with the boards that are
currently required to report for the purpose of the Gender Balance on Australian Government
Boards Report.
Clause 5 - Crown to be bound
This clause states that the Act binds the Crown in right of the Commonwealth, but not the
Crown in right of the States, the Australian Capital Territory, the Northern Territory or
Norfolk Island.
Clause 6 - Extension to external Territories
This clause states that the measures in this Act extend to every external Australian Territory.
Part 2 - Gender balanced representation on Government boards
Subclause 7(1) requires a Government appointer to ensure that a Government board consists
of at least 40 per cent men and at least 40 per cent women when making an appointment.
Subclause 7(2) provides for certain exceptions where the obligations imposed by subclause
(1) do not apply. Paragraph (2)(a) excepts appointments to a court or tribunal; paragraph
(2)(b) excepts appointments that must be made on the basis of a nomination by a non-
Government third party, where the Government does not have discretion and therefore cannot
control the gender-balance; and paragraph (2)(c) excepts circumstances where legislation
requires a particular individual or officeholder to be appointed (see Example 1 at the end of
subclause (2)). These exemptions are consistent with those in the existing reporting
requirements for the Gender Balance on Australian Government Boards Report.
Paragraph (2)(d) excepts appointments where the maximum number of board members is 4
or less (due to the mathematical difficulty of determining the relevant percentages for these
numbers), or where the maximum number of board members means it is not mathematically
possible for the percentage requirements to be met. In these circumstances, the provisions in
subclause (3) must be met (see Example 2 at the end of subclause (2)).
Paragraph (2)(e) allows an exception where there are extraordinary circumstances that mean
it is not reasonably practicable for the obligations imposed by subclause (1) to be complied
with. For the purposes of this Bill, extraordinary circumstances may be considered to have
occurred when the Government appointer can demonstrate that reasonable efforts have been
made to find a candidate of the appropriate gender, and despite those efforts it has not been
possible to appoint a suitable candidate of the necessary gender to meet the requirement of at
least 40 per cent men and at least 40 per cent women on the relevant Government board.
For these purposes, reasonable efforts would include where all of the following steps have
been taken:
a. the board vacancy has been advertised and/or there has been a call for expressions of
interest in the board position;
b. relevant government databases such as AppointWomen or BoardLinks have been
searched for potential candidates;
c. a gender balanced shortlist of candidates has been compiled;
d. candidates have been interviewed that reflect the gender balance of the shortlist; and
e. each candidate has been evaluated against a consistent set of selection criteria.
Each appointment must be considered individually when determining whether extraordinary
circumstances have occurred. Where this is deemed to be the case, the Government appointer
must ensure that the Government board consists of a balance of male and female members
that complies with the requirements in subclause (1) to the greatest extent possible, keeping
in mind that subclause (1) requires at least 40 per cent men and at least 40 per cent women.
Further, if extraordinary circumstances have been considered to have occurred, this matter
should be noted as part of the reporting requirements under subclauses 8(1) and (5), along
with an explanation of what these extraordinary circumstances were considered to be.
Subclause 7(3) requires that, when the exemptions in paragraph (2)(d) and (e) apply, the
Government appointer must ensure that the Government board consists of a balance of male
and female members that complies with the requirements in subclause (1) to the greatest
extent possible. It is important to note that subclause (1) requires at least 40 per cent men and
at least 40 per cent women.
Part 3 - Reporting requirements
Subclause 8(1) requires the Secretary of a Department of State to provide, no later than 30
days after the end of the financial year, a report on the gender composition of all the
Government boards in the Department's portfolio.
Subclause 8(2) requires the report to be given to the Minister, meaning the Minister
responsible for the administration of the Act, and to the Minister responsible for
administering the Department, if that is another Minister. For example, the Secretary for the
Department of Agriculture will be required to provide the report to the Minister for Women
and to the Minister for Agriculture.
Subclause 8(3) outlines the information that must be provided in a report under subclause
8(1). This includes a list of all Government boards in the portfolio (paragraph (3)(a)); the
number of positions on each Government board in the portfolio, including any requirements
regarding the maximum or minimum number of members (paragraph (3)(b)); the gender
composition of each Government board within the portfolio, expressed as both an aggregate
and a percentage as at the end of the financial year and the previous three financial years
(paragraph (3)(c)); if there have been any appointments during the financial year where the
requirements in section 7 have not been complied with, the particulars as to why those
requirements have not been complied with (paragraph (3)(d)); the total number of
Government appointments made in that portfolio during the financial year, including the
number of ordinary members and members who are chairs (paragraph (3)(e)); and the
aggregate gender of those appointees (paragraph (3)(f)).
Subclause 8(4) requires that a report under subclause 8(1) not include the name of a
Government appointee. Further, it requires that if particulars are included in the report as to
why clause 7 was not complied with, those particulars must not include any information that
directly identifies a Government appointee, or information that directly or indirectly identifies
an unsuccessful candidate for the position who may have been considered by the Government
appointer.
Subclause 8(5) requires the Secretary to include certain information in the Department's
annual report for the financial year. This includes a statement of compliance setting out
whether each Government board in the portfolio was compliant with the gender-balance
requirements in section 7 (paragraph (5)(a)); and, if section 7 was not complied with for any
Government board in the portfolio, the particulars as to why this was the case (paragraph
(5)(b)); and information regarding how the details of the portfolio's compliance can be
accessed in the consolidated report required under section 9 (paragraph (5)(c)).
Subclause 8(6) requires that information included in the annual report under subclause 8(5)
not include the name of a Government appointee. Further, it requires that if particulars are
included in the information as to why section 7 was not complied with, those particulars must
not include any information that directly identifies a Government appointee, or information
that directly or indirectly identifies an unsuccessful candidate for the position who may have
been considered by the Government appointer.
Subclause 9(1) requires the Minister responsible for the administration of this Act (at the
time of drafting, the Minister for Women) to prepare and publish a consolidated report on the
gender composition of all Government boards in the previous financial year.
Subclause 9(2) sets out the information that must be included in the consolidated report. This
includes the information provided in a report by the Secretary of a Department, prepared in
accordance with subclause 8(1), which includes the requirements set out in subclause 8(3)
(paragraph (2)(a)); the total number of Government boards in each portfolio (paragraph
(2)(b)); the total number of positions on Government boards in each portfolio (paragraph
(2)(c)); the gender composition of Government boards in each portfolio, expressed as both an
aggregate and a percentage, at the end of the financial year and the end of the previous three
financial years (paragraph (2)(d)); the total number of Government appointments made
during the year, including both ordinary members and members who are chairs (paragraph
(2)(e)); and the aggregate gender of those appointees (paragraph (2)(f)).
Subclause 9(3) requires the Minister to table the copies of a report prepared under subclause
(1) in each House of Parliament within 10 sitting days after the Minister has received all the
reports from the Secretaries of Departments, prepared under subclause 8(1).
Subclause 9(4) requires that a report under subclause 9(1) not include the name of a
Government appointee. Further, it requires that if particulars are included in the report as to
why clause 7 was not complied with, those particulars must not include any information that
directly identifies a Government appointee, or information that directly or indirectly identifies
an unsuccessful candidate who may have been considered by the Government appointer.
Part 4 - Miscellaneous
Clause 10 provides that this Act is a special measure for the purposes of section 7D of the
Sex Discrimination Act 1984. Under that section, measures that may otherwise be considered
to be discriminatory are exempt if they are taken for the purpose of achieving substantive
quality between, among others, men and women. The measures in this Bill are taken to be for
that purpose.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
AUSTRALIAN GOVERNMENT BOARDS (GENDER BALANCED
REPRESENTATION) BILL 2015
This Bill is compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
This Bill seeks to implement existing policy regarding the equal representation of gender on
Government boards into legislation by requiring Government boards to consist of at least 40 per cent
men and at least 40 per cent women, with the remaining 20 per cent unallocated.
Human rights implications
This Bill engages human rights relating to equality and non-discrimination, as enshrined in articles 2,
16 and 26 of the International Covenant on Civil and Political Rights (ICCPR), and articles 2, 3, 4 and
15 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
While the Bill could be considered to limit human rights by introducing gender percentage
requirements to the make-up of Government boards, this should be considered a permissible
limitation as the aim of the Bill is to promote equal and balanced participation for men and women on
Government boards. Further, it is important to note that the percentage requirements are equal for
both men and women (at least 40 per cent) and do not favour one gender over the other.
Conclusion
This Bill is compatible with human rights as the gender percentage requirements are a permissible
limitation in seeking to promote gender equality on Government boards.