Victorian Council for Civil Liberties Inc

(Liberty Victoria)

Submission to the Senate Legal and Constitutional Legislation Committee

Inquiry into the Provisions of the Sex Discrimination Amendment Bill (No.1) 2000

  1. The Victorian Council for Civil Liberties Inc ("VCCL" or "Liberty Victoria") is an independent non-government organisation which traces its history back to the first Australian civil liberties body, established in Melbourne in 1936. The VCCL is committed to the defence and extension of human rights, civil liberties, democratic governance and the rule of law, and the independence of the judiciary.
  2. VCCL's purposes include "to promote Australia's compliance with the rights and freedoms recognised in international law."
  3. The proposed Bill seeks to detract from "the rights and freedoms recognised in international law," and should be rejected by the Parliament.
  4. Australia signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) under a coalition Government, with the consent of all the states and territories, and ratified it under a Labor Government.
  5. Australia is bound by the terms of CEDAW, which it freely adopted in the exercise of its sovereignty, to "condemn discrimination against women in all its forms, [and] … pursue by all appropriate means and without delay a policy of eliminating discrimination against women" (Article 2), where "discrimination against women" means "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field" (Article 1; emphasis added).
  6. Australia has also freely signed and ratified the International Covenant on Civil and Political Rights, again under governments of both complexions and with the consent of all the states and territories. By Article 26 of the ICCPR Australia declared to the whole world: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
  7. It is clear that under both CEDAW and the ICCPR Australia has undertaken neither to discriminate on the ground of marital status, nor to permit such discrimination.
  8. The proposed Bill is inconsistent with Australia's freely accepted treaty obligations and is a breach of international law, as it expressly provides for laws to require or permit discrimination on the ground of marital status.
  9. The Bill infringes human rights and freedoms. It should not be passed.
  10. In relation to the purported intention of the government to protect the rights of children, VCCL submits that the Bill does not do this. VCCL has in the past recommended, and now repeats its recommendation, that Australia should fulfil its obligation to implement the Convention on the Rights of the Child in municipal law, in full. VCCL calls on the government to bring in legislation to do so.
  11. VCCL deplores the selective quotation of one aspect of the Convention of the Rights of the Child as a device to cloak an attempt to infringe the human rights of women recognised and declared under CEDAW and the ICCPR.
  12. VCCL notes the Attorney-General's assertion that: "It is the government's view that it was not contemplated that the Sex Discrimination Act would prevent the states legislating to restrict access to ART procedures to women who are married or living in de facto relationships." VCCL rejects this assertion as irrelevant and misleading. The Sex Discrimination Act was intended to implement, so far as the then make-up of the Parliament would allow, the CEDAW. It was intended to prevent discrimination of the sort that CEDAW intended to be prevented, and which Australia had promised the rest of the world that it would prevent. That included the discriminatory aspects of the Victorian Infertility Treatment Act that the Federal Court rightly found was inconsistent with the Sex Discrimination Act and hence inoperative.
  13. Far from seeking to breach Australia's freely assumed obligations under CEDAW, the Government should introduce into the Parliament a Bill to complete the implementation in the broadest terms all the human rights recognised in CEDAW, as Article 2 of CEDAW requires.
  14. Furthermore in order to fulfil Australia's obligations, including that under Article 2(a) of CEDAW whereby States Parties undertake to "embody the principle of the equality of men and women in their national constitutions", the government should undertake to put a Bill of Rights to the people at referendum.

Liberty Victoria–Victorian Council for Civil Liberties Inc
Level 4 / 360 Little Bourke St
Melbourne VIC 3000

Ph: 9670 6422

Per

Jamie Gardiner
Vice President
ph 03 9419 1103 mb 04 1279 5491 fax 03 9415 7288
email: jamie_gardiner@iosphere.net.au

Website notes—not part of the submission

Copies of the legislation and explanatory memorandum are available at http://www.aph.gov.au/senate_legal.

CEDAW: You can obtain the full English text of the Convention on the Elimination of All Forms of Discrimination Against Women here (from the UN High Commission for Human Rights).

ICCPR: You can obtain the full English text of the International Covenant on Civil and Political Rights here (from the UN High Commission for Human Rights).