I Introduction – an unfair comparison?
This paper responds to the question “do laws against sex discrimination inappropriately prioritise the goal of gender equality over the promotion of other human rights like freedom?” The scope of this paper examines gender equality vis-à-vis other human rights/fundamental freedoms in the Australian context and with reference to the international phenomena. In this paper, I: (II) explore any authoritative basis for preferential status amongst human rights; (III) analyse the purpose and merits of gender equality; (IV) assess the criticisms of imbalance from a social justice perspective; and (IV) given that the law is dynamic, conclude whether comparisons ...view middle of the document...
The above viewpoints do not help us determine whether certain rights should take precedence. What we can examine is: ‘what’ and ‘how’ differences in human rights are expressed in the law – through Constitutions, Bills of Rights, Conventions and domestic law.
The Australian ethos is built upon the foundation of ‘a fair-go’ for all. Much of what Australians take for granted as human rights does not appear in binding legislation and those that are specifically included are subject to criticisms of incompleteness or ineffectiveness. The Australian Constitution was framed to deal with separation, division, limits of executive power, and provides little in the way of human rights. Australia was an early leader in many human rights, such as women’s voting rights, old age pensions and the minimum wage. Australia has implemented a raft of anti-discrimination legislation since 1975 and given effect to a number of conventions, such as the Convention on the Elimination of all Forms of Discrimination against Women, which was implemented as domestic law in the Sex Discrimination Act 1984 (Cth). However, there are notable exceptions to Australia’s implementations such as the International Covenant on Civil and Political Rights (ICCPR) of 1976 which covers the right to life, freedom of speech and rights to due process amongst many others. However, this situation is not a denial or denigration of those rights, they are respected. The reasons are partly political and partly a reflection of social development in Australia. When the United Nations adopts conventions, it sets up the process for each nation state to give effect to the conventions under their own terms and circumstances. There is no precedent for a particular right to have more ‘right’.
III Gender equality – a “right” of passage
Discrimination and equality are human rights issues that are enshrined under Article 7 of the United Nations Universal Declaration of Human Rights. Equality between men and women was not a concept recognised in Australian legislation or at common law, and therefore equality could not be guaranteed.
In 1986, the establishment of the Australian Human Rights Commission (AHRC) was ushered in on the back of a raft of anti-discrimination legislation based on race, age, disability and sex - which includes gender equalities, sexual harassment and marital status discrimination under the Sex Discrimination Act. The Workplace Gender Equality Act 2012 (Cth) gave rise to an agency charged with specifically promoting gender equality in the workplace. The function of both these pieces of legislation serve (along with legislation supplemented at the State levels) is to ‘eliminate’ discriminations (which usually only affects women), in order to achieve egalitarianism and social equality.
To some, the gender agenda may appear less significant compared to other rights, especially those that guard against evils. However, the instances and problems of gender inequality are very...