Legislative context and statutory history
37 There was no attack in the proceeding on the validity of any relevant section of the SDA. Nor was it argued that s 7D had no application to the prohibition in s 19. It is appropriate to deal in some detail with the legislative context and statutory history of the SDA in general and s 7D in particular, especially as the new section has not been considered before by this Court. The SDA, inter alia, prohibits as far as possible, discrimination against people on the grounds of sex, in the area of work. The objects of the Act include relevantly giving 'effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women': subs 3(a).
38 The Explanatory Memorandum for the amending Act provides:
"This provision [s 7D] replaces section 33 of the Act which currently provides that an act which would otherwise be discriminatory for the purposes of the Act is not unlawful if a purpose of the act is to ensure equal opportunity. Section 33 therefore operates to provide an exemption from the anti discrimination provisions of the Act.
. . .
This provision seeks to achieve equality of outcomes and is based on Australia's international obligations to achieve equality, as required by international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women."
39 In the Second Reading speech for the Sex Discrimination Amendment Bill 1995 (Cth), House of Representatives, Debates (Hansard), 28 June 1995 at p 2456, the Attorney‑General described the origin of the proposed change in respect of special measures in some detail as follows:
"An issue raised by both the Half way to equal committee and by the Australian Law Reform Commission under its reference 'Equality before the law' is whether the 'special measures' provision in the act as presently worded is achieving its purpose. The legislation currently provides that an act which would otherwise be discriminatory for the purposes of the act is not unlawful if a purpose of that act is to ensure equal opportunity. The legislation currently treats special measures as discriminatory, but lawful - an approach which reflects the fact that the legislation is structured on an 'equal treatment' model under which any difference in treatment is prima facie discriminatory.
The amendment proposed in the bill makes two significant changes. First, it provides that special measures are not treated as a form of discrimination; instead, they would be considered as part of the threshold question of whether there is discrimination at all. Consequently, the 'special measures' provision will be moved from that part of the act which provides exemptions. Special measures should be presented and understood as an expression of equality rather than an exception to it.
Second, the special measures provision currently focuses on the attainment of equal opportunities. This focus ignores the historical and structural barriers which impede women's utilisation of formal equal opportunities. The Convention for the Elimination of All Forms of Discrimination Against Women refers to measures 'aimed at accelerating de facto equality', and our emphasis should be on measures to achieve real or substantive equality.
To attain substantive equality, it is necessary to look at the end result of a practice that purports to treat people equally. In this way structural barriers that prevent a disadvantaged group from attaining real equality can be taken into account. A narrow and formalistic interpretation of equality will not produce equality in fact and may entrench existing discrimination or create new discriminatory situations."
40 The Convention on the Elimination of All Forms of Discrimination Against Women (entered into force 3 September 1981) (the "Convention") referred to by the Attorney‑General in his Second Reading speech and in subs 3(a) of the SDA is a schedule to the SDA. Article 4, par. 1 of the Convention provides:
"1. Adoption by State Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved."
Article 7(c) of the Convention provides that State Parties should ensure women have equal capacity to participate in 'non‑governmental organisations and associations concerned with the public and political life of the country', which would include an organisation such as the respondent, which is in any event expressly covered by s 19 of the SDA. It is clear that in adopting and implementing art. 4 par. 1 of the Convention, Parliament chose to use some of the same words in s 7D as used in the Convention itself.
41 In the absence of any expression of intention to the contrary in the statute, s 7D of the SDA should be construed in conformity with the Convention: see the Vienna Convention on the Law of Treaties ("Vienna Convention") art 31; see also Koowarta v Bjelke‑Petersen (1982) 153 CLR ("Koowarta") 168 at 265 per Brennan J; Applicant A v The Minister (1997) 142 ALR 331 ("Applicant A") at 339-340 per Dawson J. and at 349-352 per McHugh J.; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287/288 per Mason CJ and Deane J. Moreover, it has been recognised by McHugh J. in Applicant A that:
". . . international treaties often fail to exhibit the precision of domestic legislation. This is sometimes the price paid for international political comity . . . in my opinion, Art 31 of the Vienna Convention requires the courts of this country when faced with a question of treaty interpretation to examine both the 'ordinary meaning' [of a word] and the 'context . . . object and purpose' of a treaty."
42 The phrase "special measures", and the provision that a "special measure" is not discriminatory (subs 7D(2)), cannot be understood without recognising that the SDA is implementing the express wording of the Convention in this regard or without recognising the context, object and purpose of the Convention. "Special measure", as a phrase construed according to its plain or ordinary meaning means a measure which is exceptional, out of the ordinary or unusual. Where the word "special" qualifies laws, as in the races power, s 51(xxvi) of the Constitution, it denotes laws which are special to, or for, a particular group, or special because they address special needs: Koowarta at 210, per Stephen J.. Equally, laws may be special because they operate differentially: see WA v Commonwealth at 461 per Mason CJ and Brennan, Deane, Toohey, Gaudron and McHugh JJ:
"A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race. The law may be special even when it confers a benefit generally, provided the benefit is of particular significance or importance to the people of a particular race."
43 While recommendations made by the Committees on the Elimination of Discrimination Against Women under the abovementioned Convention are not binding they explain the Convention's context, object and purpose. In the General Recommendation No. 25, Thirtieth Session, 30 January 2004 it is observed:
"State parties often equate "special measures" in its corrective compensatory and promotional sense with the terms "affirmative action"; "positive action"; "positive measures"; "reverse discrimination"; and "positive discrimination". These terms emerge from the discussions and varied practices found in different national contexts (at p 5) . . . The term "special" though being in conformity with human rights discourse . . . needs to be carefully explained . . . the real meaning of "special:" in the formulation of Article 4, paragraph 1, is that the measures are designed to serve a specific goal (at p 6)."
Article 4 par. 1 of the Convention contains its own explication of "temporary special measures" as measures 'aimed at accelerating de facto equality between men and women'. It is that factual basis which dictates a special measure is 'not [to] be considered discrimination.'
44 A "special measure" as referred to in s 7D, and as construed by reference not only to the ordinary meaning of words repeated from the Convention, but also by reference to the context, object and purpose of the Convention is one which has as at least one of its purposes, achieving genuine equality between men and women. The phrase "special measure" is wide enough to include, what is known as, affirmative action. A special measure may on the face of it be discriminatory but to the extent that it has, as one of its purposes, overcoming discrimination, it is to be characterised as non‑discriminatory. Without reference to the legislative history and the Convention, it would not necessarily be easy to appreciate the characterisation of a "special measure" as non‑discriminatory when s 19 contains explicit prohibitions against discrimination in the workplace. That difficulty lies at the heart of this proceeding and explains the applicant's efforts in various forums to have rules 5 and 9 declared invalid, because they ostensibly discriminate against men, which of course includes him. This emphasises the importance of the Human Rights Commission's function specified in s 11(1)(g) of the HREOC Act 'to promote an understanding and acceptance, and the public discussion of human rights in Australia'.